Sterling Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 16, 1968

169 N.L.R.B. 892 (N.L.R.B. 1968)

892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dumas, Inc. d/b/a Sterling Manufacturing Company
and International Union , United Automobile,
Aerospace and Agricultural Implement Workers
of America , UAW-AFL-CIO. Case 9-CA-4115
2. Delete the words "engage in spying, or" from
the third indented paragraph of the Appendix.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations not found
herein.
February 16, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 20, 1967, Trial Examiner Harry
H. Kuskin issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached trial Exam-
iner's Decision. He also found that the Respond-
ent had not engaged in other unfair labor practices
alleged in the complaint and recommended dismis-
sal of those allegations. Thereafter, the Respondent
filed exceptions to the Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Dumas, Inc. d/b/a
Sterling Manufacturing Company, Springfield,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
1. Add the following as paragraphs 1(c) and (d),
the present paragraph 1(c) being relettered as para-
graph 1(e):
"(c) Creating the impression of engaging in sur-
veillance."
"(d) Discouraging membership in the aforesaid
Union, or any other labor organization, by dis-
criminating as to the hire, tenure, or any other term
or condition of employment of any of its em-
ployees."
I We find, contrary to the Trial Examiner, that the activities of the
Respondent's supervisors on November 22, 1967, did not constitute sur-
veillance and shall dismiss that allegation of the complaint. Cf Milco inc.,
159 NLRB 812.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This case was
heard at Springfield, Ohio, on April 18 and- 19, 1967. A
complaint issued herein on February 8, 1967, presenting
the questions of whether Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act. More particularly, the
complaint alleges that, in violation of Section 8(a)(1),
Respondent has since on or about September 6, 1966, in-
terrogated its employees concerning their union activity;
engaged in surveillance; created the impression of engag-
ing in surveillance; and threatened employees with
reprisals if International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW-AFL-CIO, herein called the Union,
was successful in its organizational campaign. And as to
the violations of Section 8(a)(3), the complaint alleges
that Respondent discriminatorily discharged Curtis Boyd
on November 25, 1966, and Dorothy Rhoades on
November 28, 1966, and thereafter failed and refused to
reinstate them because of their union membership and ac-
tivity. Respondent's answer denies that it committed any
of the aforesaid alleged unfair labor practices.
Upon the entire record,' including my observation of
the witnesses, and after due consideration of the briefs of
the General Counsel and Respondent, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent admits, that it
is an Ohio corporation engaged in the manufacture of
component parts for aircraft at its plant 1 and plant 2 in
Springfield, Ohio; that during the preceding 12-month
period it sold and caused to be shipped outside Ohio,
goods and products valued in excess of $50,000; and that
during the same period it purchased and caused to be
shipped to it, from outside Ohio, goods and products
valued in excess of $50,000.
I find, upon the foregoing, as Respondent further ad-
mits, that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International
Union, United Automobile, Aerospace and Agricultural
I As corrected by my order correcting transcript, dated September 8,
1967.
169 NLRB No. 126
DUMAS, INC.
Implement Workers of America, UAW-AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Summary of Events
The Union launched a campaign to organize Respond-
ent's employees in September 1966 after its aid had
been enlisted by employee Curtis Boyd. During the
months of September, October, and November,2 four or-
ganizational meetings of the employees were held by the
Union in buildings in Springfield, Ohio. During this
period, there was union talk in the plant concerning
meetings held and to be held, some of which talk was
overheard by, or reported to, management; and there was
solicitation in the plant for signatures to authorization
cards which became known to Respondent. According to
Max A. Williams, who was first employed as Respond-
ent's general manager in May, there was always "a gen-
eral rumor of something around" in the nature of union
activity, but his first indication of a definite union cam-
paign came "about mid-October" in the form of informa-
tion that cards were being circulated within the plant.
And, according to Plant Superintendent Cornelius Schou-
ten, he first learned of union activity at the plant on Oc-
tober 26, after he returned from a 2-week vacation; at
that time he heard, from an employee, of a union meeting
to be held in the Tower Building in Springfield. Williams'
reaction to the information about the union activity was
to call a meeting of all supervisors and to instruct them as
to what he conceived the employees' rights were in the
matter and as to what the supervisors were not allowed to
do. He also told them "that any information that might be
offered in relation to [distribution of union literature on
company time] should be returned to the management so
that it would be aware of the activities that were going on
within the plant." According to the allegations of the
complaint, referred to above, beginning early in
November and throughout that month,3 Respondent in-
terrogated its employees, made threats to them, engaged
in acts of surveillance and gave the impression of engag-
ing in surveillance; also, on November 25, it discharged
employee Boyd, and on November 28, it discharged em-
ployee Rhoades.
B. The Specific Allegations of the Complaint and
Conclusions thereon
1. The 8(a)(1)
In the interest of an orderly presentation of the 8(a)(1)
issues herein, I shall group the relevant evidence, wher-
ever feasible, according to the representative or agent of
management involved, all of whom are admittedly super-
visors within the meaning of the Act.
2 All references hereinafter are to the year 1966, unless otherwise in-
dicated.
3 The complaint alleged only one incident prior thereto , i e, in Sep-
tember 1966
4 Shroyer stayed in the Tower Building after the meeting adjourned As
a result , he was locked up in the building for a time that evening until the
police came to his rescue At the plant, the following morning, there was
a. Cornelius Schouten
893
Employee Jane Kettlehate testified that, when she ex-
pressed surprise to Schouten at the time he hired her on
September 6, 1966, at one of the conditions of employ-
ment set forth by him, namely, when vacation accrued
after a year of service, an employee could either take his
vacation or take the money equivalent and continue
working, Schouten replied, "well we can do this. They are
never going to have a union. We don't need a union."
Schouten did not testify concerning this incident, leaving
Kettlehate's testimony uncontradicted on the record.
Employee Shroyer testified that Schouten called him
into his office during the morning of November 2, talked
to him concerning his work for some 15 minutes and then
questioned him for 15 minutes or more about the union
meeting at the Tower Building, the night before,4 asking
him who the leaders were and who attended; inquiring
whether he had signed a union authorization card; and re-
marking that, if the Union came into the plant, the em-
ployees would lose their coffee breaks.5 Shroyer testified
further that during the ensuing period Schouten talked to
him in the plant "about 5 or 6 times more or less" telling
him that if the Union came into the plant, employees in
the mill would have to set up their own jobs and if they
could not do so they would try to get replacements who
could. Shroyer testified specifically concerning his
second conversation with Schouten "a couple of weeks
later." At that time, he and other employees, who had
finished work and were outside the plant, were called
back by Schouten and he told them that, if the Union
came in, they would lose their coffeebreak, would not get
any more raises in salaries or increases in wages, and they
would have to work more hours and closer to the
machines.
Schouten admitted talking to Shroyer about the union
campaign or activities after he had returned from his va-
cation on October 26; also that there were a few conver-
sations at Shroyer's machine; and that, at various times,
Shroyer came to his office.6 According to Schouten,
Shroyer "tried to feed" information to him as he passed
by Shroyer's machine about when there was a meeting,
how many and who attended, and what eventuated, that
he never asked Shroyer to get any information about the
Union for him, never asked who the union leaders were,
never asked whether he, Shroyer, had signed a union
card, nor did Shroyer ever tell him whether he had signed
such a card. With respect to the conversation with
Shroyer, the morning after the union meeting at the
Tower Building, Schouten testified that Shroyer came
and talked to him about it because he, Shroyer, wanted
him to know that he was not locked in the building but,
that it was another man. Schouten testified further that,
on the one occasion when Shroyer did ask him his opinion
about the Union, he indicated that it was the employees'
decision and not his to make. And with respect to
whether he ever told Shroyer that if the Union came into
the plant he, Shroyer, would have to work harder and stay
considerable discussion by employees of Shroyer 's predicament , includ-
ing his physical condition the night of the meeting
5 Apparently, there was no regular coffeebreak but employees were al-
lowed to take time out for coffee
6 Schouten testified that Shroyer talked to him about once or twice a
week about the Union
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closer to the machine, he testified, at first, that he
probably did tell Shroyer that "if there was a union in this
plant it would be more strict as far as working."
Thereafter, Schouten changed his testimony to say that
he told Shroyer pnly that there was a possibility that there
could be changes but did not tell him what kind of
changes because he did not know.
Employee Curtis Boyd testified that, around the
second week of November, Schouten asked him at the
plant whether he knew anything about the Union, and
when he responded in the negative the first time and was
asked again and responded by saying that it was none of
Schouten's damn business, Schouten "went away mad."
Also, according to Boyd, about a week later, Schouten
came up to him at his machine and inquired as to how the
Union and he were getting along. Schouten, on the other
hand, recalled only that he had one conversation with
Boyd about union activities, that it took place at Boyd's
machine, that Boyd then volunteered that there was
nothing to the rumor going around that he was the leader
of the prounion faction and was behind all the union ac-
tivities at the plant, and that he did not ask Boyd any
questions about the Union at the time.
Employee Raymond Emory Foulke testified to a con-
versation with Schouten, during the middle of November,
in which he asked Schouten for a raise and "somehow
they got on the Union" and Schouten said they had heard
that the Union was going on strike and, if it did, the em-
ployees would lose money and "would never make it up"
and that, in this connection, he, Schouten, pointed to
other plants in the area where there had been strikes and
specifically to the Buffalo Road Roller Company plant.
Schouten did not testify as to this incident.
Employee Donald Chenowegh testified that, on the
Friday following the distribution of literature by the
Union outside the plant, Schouten walked up to employee
David Circle and him while they were in conversation at
his machine and said to both of them that the Union was
making promises that it could not keep, and queried them
as to whether either of them had signed up the other in the
Union. After Circle replied in the negative and left to go
to his work bench, according to Chenowegh, Schouten
talked to him for about half an hour about the Union, say-
ing that Joe Sterling, the president of Respondent, would
shut the plant down, that Sterling could also cut back the
work schedule to 40 hours a week (at the time, male em-
ployees were encouraged to work 55 hours a week or
more), that the strikes at the area plants of Buffalo Road
Roller and of Ohio Steel resulted in shutdowns and, while
the employees gained a lot of things, they would never
gain everything back that they lost, that, similarly, if they
were shut down due to a strike, the employees would lose
a lot of time and money, and that Chenowegh "being a
family man can't afford it." According to Circle, on the
occasion in question, Chenowegh was trying to prevail
upon him to sign a union card. Schouten approached them
and accused them of standing and talking too long. He
testified that he does not recall Schouten saying anything
about signing union cards, just that they should not have
been discussing what they were discussing, that he, Cir-
cle, walked off and that Schouten remained with
9 Although Kettlehate testified, without contradiction, that Schouten
said to her on September 6, when he hired her, that there would never be
a union in the plant and that there was no need for a union, so far as ap-
pears, this remark was made before the Union's organizational activity
herein either began or became apparent to Respondent. In these circum-
Chenowegh for a minute longer and walked off, too.
Schouten denied making any remarks about signing union
cards to these two employees or making any statements
to Chenowegh about the Union at any time, and specifi-
cally denied making any statement to Chenowegh that
Sterling could shut the plant down or cut back the work-
ing hours per week to 40.
According to Circle, about this time, he did engage
Schouten in a conversation in the plant about inequities
in the pay structure, assuring Schouten that his inquiry
was a personal one and not connected with the Union.
Whereupon, Schouten said to him that this plant was just
not the place for a union and further that he, Schouten,
thought it would not work out.
I am persuaded from all the foregoing that, once Schou-
ten returned from his vacation on October 26, and was
apprised of the state of union organization at the plant, he
pursued a course of conduct intended to checkmate the
Union.7 To this end, he encouraged Shroyer to keep him
informed about the latest union developments. In this
latter connection, I note that Schouten explained that
"the reason [they] talked was because Shoyer would
give [him] the information and [Shroyer] asked him all
kinds of questions." It is thus apparent, and I infer and
find, that Schouten welcomed these conversations with
Shroyer as a means of keeping abreast of developments
in the Union's organizational campaign and getting
management's position on the Union across to him, and
that, in those instances in which Shroyer initiated the con-
versation, he was being responsive to Schouten's
manifest desire for such information and to the en-
couragement of such practice by Schouten. That Schou-
ten did more than listen to talebearing by Shroyer is ap-
parent from his admission at one point, referred to above,
that he probably told Shroyer during one of these conver-
sations, as the latter had testified, that "if there was a
union in the plant it would be more strict as far as work-
ing." While it is true that Schouten thereafter admittedly
changed his testimony to say, in effect, that his remarks
were couched in terms of a prediction rather than a threat,
I do not credit this subsequent testimony. In view of
Schouten's initial corroboration of Shroyer's testimony
in this respect and my observation of the demeanor of
both witnesses, I am persuaded that Shroyer is the more
credible, and I find that Schouten did threaten stricter
working conditions for the employees upon the advent of
the Union. Further, I find, in accordance with the
testimony of Shroyer, that during the course of the five or
six conversations they had in November 1966, Schouten
inquired as to the union leadership and those in at-
tendance at union meetings and mentioned the following
changes which would result if the Union came into the
plant: loss of time out for coffee; mill employees would be
required to set up their own jobs and, if unable to do so,
could be replaced; no more pay raises; and a cut back to
40 hours of work a week. I am further persuaded that
Schouten discussed the Union with employees at their
work benches. Thus, I find credible the testimony that
Schouten inquired of Boyd, while at work, whether he
knew anything about the Union and how he and the
Union were getting along, that Schouten interrogated
stances and in view of the context in which these remarks were made, I
am not persuaded that this remark either had a coercive effect or was cal-
culated to coerce. I therefore predicate no finding of violation of Section
8(a)(1) thereon
DUMAS, INC.
Chenowegh and Circle as to whether they had signed
each other up in the Union , and thereafter separately
threatened Chenowegh that Respondent would shut the
plant down and that Respondent would cut back the
workweek to 40 hours if the Union came into the plant. I
find that, by all the foregoing acts of interrogation and
threats, Respondent interfered with , restrained, and
coerced its employees in their rights guaranteed to them
under Section 7 of the Act and thereby violated Section
8(a)(1) of the Act.8
b. Larry Allen Fitzwater
It is apparent from the record that Shroyer had trouble
setting up the various jobs assigned to him and that Fitz-
water would do the setting up for him. According to the
testimony of Shroyer, Fitzwater spoke to him during
November concerning what would happen to set up work
in the mill and to overtime if the Union came into the
plant. As to the former, Shroyer testified that Fitzwater
said that, if the Union came into the plant, they would
have to set up their own jobs and be more skillful to run
a job; and, further, that if they could not do so, they would
be replaced. As to the latter, Shroyer quoted Fitzwater as
saying that overtime would also be assigned on the basis
of seniority and not as theretofore, to those who wanted
overtime work. Fitzwater acknowledged telling Shroyer
that "if you made top money, you should be able to set up
your own job, something like that." Fitzwater, however,
denied that he ever threatened those who could not set up
their own jobs with loss of employment, or that he ever
told Shroyer that overtime would be assigned according
to seniority, irrespective of the machine at which such
senior employee worked.
There is also testimony by employee Boyd that around
November 11, Fitzwater asked him for a union card.
Fitzwater denied making such inquiry or ever discussing
the union campaign or union activities with Boyd. Also,
according to Boyd, on November 20, Fitzwater and he
had another conversation in which the Union was men-
tioned by Fitzwater. On that occasion, he had taken a
part from his machine upstairs to the milling department
to be milled by an employee in that department. It is the
uncontradicted testimony of Boyd that Barnhart, his su-
pervisor, had told him to wait while the work was being
done. Boyd testified further that he handed the part to be
milled to employee Brooks. At that time, Fitzwater, the
supervisor of the milling department, was standing there
talking to one Hamilton, an employee. When Fitzwater
observed Boyd waiting for the part, he remarked to Boyd,
according to the latter, "Hey when you get your union in
you are not going to be able to stand around here like this.
We are going to have you sweeping the floors when you
don't have anything to do." Fitzwater then turned to
Hamilton and said, while pointing at Boyd, "Walter
Reuther, there is Reuther."9 Fitzwater testified to a dif-
ferent version of this incident. According to him, it would
have taken about 3 hours to get the job done for Boyd.
When he understood that Boyd was going to wait for it, he
8 While there is credible testimony that Schouten told employees that,
if they engaged in a strike at Respondent , they would never make up their
individual losses in pay , etc., and mentioned the experience of strikers at
plants of other companies in the area , I am persuaded that this was no
more than a prediction of what might eventuate and not a threat of such
consequences in the event of a strike. I, therefore, find that these remarks
were not vulnerable.
895
told Boyd that he would have to see his foreman and get
another job because of the delay but Boyd "didn't say too
much. He just stood up there talking to the man all the
time." Whereupon, according to Fitzwater, he said to
Boyd that, "if the Union was in he would not do that."
Fitzwater testified also that he did not believe that he
ever called Boyd by the name, "Walter Reuther."
It is apparent from Fitzwater's testimony that he did
hold a conversation with Shroyer about the impact of
higher pay on the skills required of setup men and that he
injected the union discussion into the conversation with
Boyd in the mulling department, indicating that working
conditions would be stricter if the Union came into the
plant. In the latter connection, Fitzwater paralleled the
similar remarks of Plant Superintendent Schouten to
Shroyer. In view of the foregoing and the fact that
Shroyer and Boyd impressed me as being more reliable
witnesses than Fitzwater, I credit the testimony of
Shroyer and Boyd and find that Fitzwater, in effect,
threatened Shroyer that if the Union were successful
there would be changes in requirements for setup men
with the result that those who could not meet the require-
ments would be removed and there would also be less
overtime for him and others due to a different mode of
overtime assignments, that he asked Boyd for a union
card, and that he, in effect, threatened Boyd with stricter
working conditions if the plant were to become unionized.
c. Claude Barnhart
Boyd testified that, early in November, Assistant Su-
perintendent Barnhart approached him in his department
and asked if he knew anything about the Union, and that,
when he denied that he did, Barnhart said, "don't feed me
that s-t, I know better." According to Boyd, Barnhart
had mentioned the Union to him "a lot of times," but he
could not recall specific occasions. Barnhart
acknowledged having only one conversation concerning
the Union with Boyd in which he asked Boyd, "if he had
anything to do with the Union." Barnhart's version of this
incident was to the effect that Boyd then said that he has
had absolutely nothing to do with unions since several
years ago when he was "called on the carpet" by a former
plant manager in respect to a union matter. Whereupon,
the matter was dropped.
As already noted, Boyd was discharged on Friday,
November 25. The following Saturday evening, em-
ployee Raymond Emory Foulke visited a restaurant
which is operated by Barnhart as a side business. Accord-
ing to the testimony of Foulke, Barnhart volunteered to
him that he, Barnhart, had gotten rid of one of Foulke's
buddies.10 He then brought up the subject of the Union
and Barnhart countered by saying that he "bet [Foulke]
was one of the first ones to sign a card." Whereupon, he
asked Barnhart if he would discharge him for that and
Barnhart assured him that "they can't fire for doing that."
Also during this conversation, Barnhart said something
to him about knowing that 19 employees attended the
meeting of the Union at the Fairfax Motel and that they
' According to Boyd, "He was called `Walter Reuther' by Fitzwater
dung November about every time that [Fitzwater] saw [him]," which
was usually a couple of times a day.
11 Foulke testified that he "was close to Boyd and [he] got close to
[one] Hildebrant through the union meetings ." Foulke testified further
that Hildebrant had been fired about a month before Boyd was fired
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed cards. Barnhart, when questioned by Respond-
ent's counsel, on direct, disputed the occurrence of the
foregoing conversation and as to each aspect thereof an-
swered variously with "honestly no"; "not that I can
honestly remember, sir"; "not honestly"; and "not that I
can think of."
Although there is testimony by Boyd that he was
friendly with Barnhart, went fishing with him, and that
Barnhart was "all the time joking around, punching [him]
in the ribs, stuff like that," he asserted that he did not
know whether Barnhart was joking when Barnhart asked
him questions about his union activity. I am persuaded
that, in matters relating to work, Barnhart took a serious
view of their relationship qua supervisor and supervisee.
Thus, Barnhart testified variously that he recommended
that Schouten discharge Boyd and that, although he did
not recommend Boyd's discharge, Schouten knew how he
felt about Boyd's attitude. I, therefore, find that Barnhart
was not joking when he admittedly asked Boyd if he had
anything to do with the Union, and that the incident oc-
curred as Boyd credibly testified. And with respect to the
above conversation with Barnhart, testified to by Foulke,
I find that Barnhart's denials were guarded and less than
forthright. In view of this, and as Foulke impressed me as
a reliable witness, I find, in accordance with Foulke's
testimony, that Barnhart queried him as to whether he
was the first to sign a card for the union and gave him the
impression of having engaged in surveillance of a Union
meeting by asserting that he knew the number of em-
ployees who attended that meeting and that they had
signed cards.I a
d. Cornelius Schouten, Charles A. Travis, John Earnest
Frazier and Claude Barnhart and the surveillance issue
It is not disputed that, on November 22, two Interna-
tional representatives12 of the Union stationed them-
selves at or near the entrance or exit ways of plants 1 and
2 of Respondent which face Ames Place (an alley and
public area, 20 feet wide, which runs between both
plants) and distributed union literature to employees as
they were leaving work for the day at 3:30 p.m. and 4:30
p.m. Since employees in plant 2 had to go to plant 1 in
order to clock out for the day, those in plant 2 either
received the literature on their way to plant 1 in order to
clock out or on their way home, after clocking out. It is
also not disputed that supervisors of Respondent sta-
tioned themselves at or near the doorway of plant 2 and
observed the distribution for a while. And, although it is
not entirely clear, from the testimony, which supervisors
were present at the doorway at a given time, or in what
order they arrived, it is quite clear that Schouten, Travis,
Frazier, and Barnhart took part in the observation of the
second distribution at 4:30 p.m. and that this activity en-
gaged all of Respondent's supervisors, except General
' 1 See Hendrix Mfg. Co v N.L.R.B., 321 F.2d 100, 104, fn . 7 (C A. 5)
and Precision Products & Controls , Inc., 160 NLRB 1119.
12 Robert L. Bateman and William Farmer.
13 There is testimony by Bateman that , during the 3:30 distribution, he
saw Frazier and Schouten standing on the inside stairway which goes to
the second floor of plant I and that they watched the distribution from
there for 10 minutes However, in view of Bateman 's testimony which er-
roneously described Frazier and because of the denials of Frazier and
Schouten that they stood anywhere in plant 1 and observed the 3 : 30 p.m.
distribution , I do not credit Bateman's testimony in this respect and credit,
instead , Frazier's and Schouten's denials.
Manager Williams and Foreman Fitzwater.13 I am per-
suaded, too, contrary to the testimony of Frazier, Barn-
hart, and Schouten, that they were there by design and
not fortuitously. Thus, Frazier testified that he had gone
to plant 2 in order to talk to Travis at the other end of the
shop from the doorway, that he had "checked with
[Travis] what he wanted and [both of them] started back
toward the alley" and when they reached the doorway of
plant 2, they observed the distribution going on. Yet,
Travis, who impressed me as a frank and reliable witness,
told a different story. Travis credibly testified that he was
pretty sure that Frazier entered plant 2 from the alley and
as Frazier came through the door, he was standing there;
and that Frazier found him at the door rather than at the
back of the plant. Travis' credible testimony also gave the
lie to Barnhart's testimony to the effect that his observa-
tion of the distribution was a fortuity, in that he
proceeded into plant 2 "to check on something that
[they] were running in the plant," then "started up
toward the front, started to go out and the buzzer blew for
the 4:30 quitting time so [he] stood and watched." In this
connection, Travis testified that Barnhart "walked into
plant entrance of plant No. 2, stood there behind Mr. Fra-
zier and [him]." Nor am I persuaded that Schouten was
testifying truthfully in attributing his presence at the door-
way of plant 2 to the fact that he was trying to find Barn-
hart at the time "because it was close to shift change and
[he] wanted to make sure that [Barnhart] knew what
kind of job that the men were to do that night." It strains
one's credulity to believe that Schouten, the plant su-
perintendent, had to resort to a personal search for Barn-
hart, his assistant, in order to engage him in conversation
on production matters. And finally, with respect to the
time spent by these four individuals, it is also apparent
from the credible testimony of Travis that he arrived first
at the doorway of plant 2, that he stood there for about 4
or 5 minutes and Frazier and Barnhart were there during
that period, and that he was the first to leave, going across
the alley to plant 1.14 It further appears from the
testimony of Schouten on this point, which I credit, that
Frazier had entered plant 1 before he, Schouten, left for
plant 2 that afternoon, that he found Barnhart at the door-
way to plant 2, and that he was there between 5 and 10
minutes. In view of the above and in the light of the fact
that the distribution time was variously estimated as 20
minutes and a half hour, I conclude and find that one or
more representatives of management were openly
watching the distribution of union literature to employees
leaving the plant at 4:30 p.m. during most, if not all, of the
time that it was in process. It is also clear, and I find, that
employees were aware as they picked up the union
literature15 that they were being so watched by manage-
ment.
In view of all the foregoing, I am persuaded that, con-
trary to Respondent's contention in its brief, its super-
14 Travis explained that he went to plant 1, because he was "just
nosey."
'5 1 find it unnecessary to resolve the conflicting testimony as to who,
among management, stopped in the alley and picked up union literature-
Moreover, even assuming , as employee Kettlehate testified, that Schou-
ten and Barnhart were standing in the alley at one point during such dis-
tribution and she had to stop her car as she was driving through the alley
in order to pick up a piece of union literature because they were standing
directly in her way, I am not persuaded that the record would support a
finding that this constituted a deliberate interference with such distribu-
tion by them
DUMAS, INC.
visors did more than engage in mere observation of open
activity by union representatives in their vicinity in order
to ascertain whether the distribution was taking place on
company property and whether employees were being ap-
proached on company time. Rather do I find that this ac-
tivity by its supervisors was open and calculated surveil-
lance conducted from an elected position, from which
they could observe, as well as make visibly obvious to the
employees leaving the plant for the day their presence
and the message that their surveillance plainly carried.
Furthermore, when viewed against the background of in-
terference, restraint, and coercion found above, the
watchful presence of most of Respondent's managerial
hierarachy, i.e., its plant superintendent, assistant plant
superintendent, and two foremen during most, if not all,
of the time the distribution was taking place, was calcu-
lated to indicate even more forcefully to the employees
accepting the union literature that they were under scru-
tiny and might be marked men. I therefore conclude, and
find, that Respondent engaged in surveillance on
November 22, 1966, in violation of the organizational
rights guaranteed employees under Section 7 of the Act
and thereby violated Section 8(a)(1) of the Act. is
e. Conclusions as to the 8(a) (1) allegations
In sum, therefore, I find that, by the following conduct
of its supervisors and agents, i.e., Schouten, Fitzwater,
Barnhart, Frazier, and Travis, Respondent violated Sec-
tion 8(a)(1) of the Act: (1) Schouten's threat to Shroyer of
stricter working conditions for employees upon the ad-
vent of the Union, and his specification of loss of timeout
for coffee, no more pay raises, a cutback to a 40-hour
workweek, and greater skill requirements of incumbent
setup men and the replacement of those who could not
qualify; (2) Schouten's interrogation of Boyd as to
whether he knew anything about the Union and as to how
he and the Union were getting along; (3) Schouten's inter-
rogation of Chenowegh and Circle; (4) Schouten's threat
to Chenowegh variously that Respondent would shut the
plant down and that it would cut back the workweek to 40
hours if the Union came into the plant; (5) Fitzwater's in-
terrogation of Boyd and his threat to Boyd that working
conditions would be stricter if the plant was unionized;
(6) Fitzwater's specification to Shroyer that, if the above
eventuated, there would be a change in requirements for
setup men and those who did not qualify would be
removed, and there would be less overtime for him and
a
16 See The Rose Company, 154 NLRB 228; Certain-Teed Products
Corporation , 153 NLRB 495 ; and N .L.R.B. v Collins &A tkman Corp.,
146 F.2d 454,455 (C.A. 4).
17 Boyd testified that he stepped down from the foreman's job because
Respondent would not give him "full authority" and that there were no
hard feelings on either side. General Manager Williams' testimony con-
tradicted Boyd According to Williams, Boyd was relieved because he
would report late in the morning, leave early at night, or not report after
lunch without informing management, thereby leaving his five subor-
dinates unsupervised for periods of time; and this happened during a
period when Respondent was behind schedule in the airplane parts which
Boyd's department was machining Also, according to Williams, Boyd
was told why he was being moved and that Respondent was willing to give
him another opportunity, "if he was willing to become a machinist rather
than a fire fighter." It is clear, in the latter connection, that Boyd was a
volunteer firefighter and belonged to a volunteer fire department in the
community and it is also the testimony of Williams that Boyd had come in
late to work at times, explaining that he "was up all night or half the night
897
others due to a different mode of overtime assignments;
(7) Barnhart 's interrogation of Boyd as to whether he had
anything to do with the Union ; (8) Barnhart ' s interroga-
tion of Foulke as to whether he was the first to sign a
union card; (9) Barnhart 's creation of the impression to
Foulke that he had engaged in surveillance of a union
meeting; and ( 10) the actual surveillance on November
22 by Schouten , Barnhart, Frazier , and Travis of the dis-
tribution of union literature to employees , after working
hours, in a public area outside plants 1 and 2 of Respond-
ent.
2. The 8(a)(3)'s
a. The alleged 8(a)(3) in the discharge of Curtis Boyd
Boyd started working for Respondent in August 1961.
After serving as a drill press operator, as a painter of
parts, and as an inspector of finished machine parts, he
was promoted in April 1966 to the job of foreman of plant
2 where five employees worked under his direction in the
clevis department, machining clevis. His responsibilities
included keeping all the machines going and taking care
of the necessary packing, inspection, and painting of
items to be shipped. In August 1966, he ceased being a
foreman and became an operator of a machine in plant 1.
Although the circumstances which brought about this
change in Boyd's status are in dispute, I am persuaded,
and find, that the change was made at Boyd's request and
without any conditions attached.17 Boyd remained in this
job until November 25, 1966, when he was discharged.
With respect to Boyd's work performance after he was
relieved as a foreman, there is no indication in the record
that its quality was unsatisfactory. However, it is ap-
parent that Boyd did not take advantage to any substan-
tial degree of the opportunities afforded him by Respond-
ent to work overtime. In this connection, the record
shows that the basic workweek for Respondent's em-
ployees was 40 hours, but that, because Respondent was,
during this period, past due delivery wise on aircraft parts
manufactured for aircraft companies, which were them-
selves under United States Government contracts, it
maintained a work schedule for its male employees that
"got as high as 10 hours a day, 7 days a week"; and, ac-
cording to Williams, male employees could and did work
between 50 and 60 hours a week. The record shows
further, as set forth in the payroll records of Boyd, in
evidence as Respondent's Exhibit 8, that from the payroll
chasing fires " Assistant Plant Superintendent Barnhart, on the other
hand, refuted Williams' version of Boyd's work record as foreman in his
pretrial affidavit to the General Counsel, in evidence as General Coun-
sel's Exhibit 2. Thus, he there stated, "when Boyd had been in charge of
the clevis department he had a pretty good work record, being there 10
hours a day. But when he griped his way out of that position he made it,
clear to me and others in the plant that he wasn't working more than an 8-
hour day for any man " I note, too, that Plant Superintendent Schouten
testified that Boyd was relieved at the instance of management; he at-
tributed this action to Boyd's inability to run any machine in the clevis de-
partment and gave his absenteeism, which he described as "pretty bad,"
as a contributing factor. In view of this divergent testimony among these
three top management representatives and in view of the testimony by
Williams and Barnhart as to the laxity which prevailed at the plant in
respect to reporting time and leaving time, in disregard of the formally
scheduled hours for work, and my findings on this laxity hereinafter, I am
satisfied that Boyd's testimony more accurately reflects the true situation
and I credit him in those respects where his testimony is at odds with
either Williams, Barnhart, or Schouten
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period ending October 4, through the last full payroll
period before his discharge on November 25, Boyd
worked, as follows: week ending October 4-35 hours;
week ending October 11-48.5 hours; week ending Oc-
tober 18-47.8 hours; week ending October 25-27
hours; week ending November 1- 47.4 hours; week end-
ing November 8-44.3 hours; week ending November
15-43.5 hours; and week ending November 22-45.3
hours. Schouten's testimony, therefore, that Boyd never
made the 40 hours a week was an obvious exaggeration.
While the record also shows that Boyd arrived at work up
to an hour after 7 a.m. some mornings and left work as
much as 1 hour before 4:30 p.m. some afternoons (i.e., as-
suming one was working the 9-hour day from 7 a.m. to
4:30 p.m. which was made available to employees by
Respondent) and further shows that Boyd left work at or
about noon some days, I cannot fault Boyd therefor. This
is so because the work schedule in excess of 40 hours a
week was not mandatory, i.e., employees were advised
that they were expected to work overtime and were urged
to do so, but the option was apparently still theirs to work
beyond the basic workweek, and Boyd did, in fact,
average 42.35 hours during the months of October and
November. 18
On Friday, November 25, the day of his discharge,
Boyd reported for work before 7 a.m. and worked until
noon. Boyd testified that he left at that time because he
was feeling ill; that he made this known to Barnhart, his
supervisor, when Barnhart appeared at his machine that
morning, indicating that he was going home at noon if he
was able to "make it that long"; and that Barnhart said
"OK," but called him a "panty waist" when he, Barnhart,
walked away.1' Employee Kraykraft, who was working
on a machine in the same area as Boyd, testified, in this
connection, that Boyd came in that morning and said that
he "didn't feel too good." Boyd testified further, as fol-
lows: On his way out of the plant, he called the paymaster
to say that he was sick and to inquire whether, if he left at
noon, he would get paid for the day before, which was
Thanksgiving. At the time he left, Schouten and Barnhart
had already gone to dinner. He did not go to the doctor;
he went home instead and went to bed. Later that after-
noon, at the insistence of his wife that he get his check
that day, which was the regular payday, he drove her to
the plant so that she could pick up his paycheck. He ex-
Is The rather laissez faire attitude of Respondent on the matter of hours
worked is apparent from Boyd's credible testimony to the effect that Barn-
hart twitted him about having bankers' hours. Significant, too, is Schou-
ten's reply to the question as to whether he ever specifically warned Boyd
about leaving without permission or coming in late His verbatim
testimony was- "I didn't tell him specifically about coming late in the
mornings, I know I did tell him several times that he could get there or
should or had to get there on time. And, he gave me some sort of a reason
as far as why but I don't know exactly what that reason was that he gave
me but he did give me a reason why he was not coming in on time " The
record also shows that Respondent knew that Boyd's morning lateness
was at tunes due to his activities as a volunteer fireman during the night or
early morning. And I have heretofore referred to the statement in Barn-
hart's preheating affidavit to the General Counsel, in evidence, to the ef-
fect that, when Boyd was transferred from the foreman's job, Boyd said
that he was not going to work more than an 8-hour day for any man. I have
also noted above that during the months of October and November 1966,
Boyd averaged 42 35 hours per week
11 I take official notice that this term means "a sissy" in slang
20 Boyd denied making a request to get his paycheck at noon. Also, ac-
cording to Schouten, when he discussed Boyd's absence with Barnhart
that same afternoon, Barnhart "did not mention" anything of the conver-
sation that morning concerning Boyd getting his check early
plained that, although he was not well enough to drive, he
did this because his wife does not drive. His wife entered
the plant while he stayed in the car with their children.
She saw Schouten, but the latter insisted on seeing him
before delivering the paycheck. When he was so advised,
he entered the plant and spoke with Schouten in his of-
fice. It was at this time that the terminal interview took
place. Schouten inquired as to what had happened that af-
ternoon and he replied that he became sick. When he
asked Schouten whether Barnhart had not so advised
him, Schouten replied, "yes, but he told me that you were
just kidding." At Boyd's insistence that he was, in fact,
sick, Schouten said, "Yes, I know, we pulled your card
out." Upon further questioning, Schouten said that he
was discharged and the reason therefor was "taking this
afternoon off without permission." He insisted that Barn-
hart knew that he was taking off for the afternoon but
Schouten replied that Barnhart denied that he knew. And
when he pointedly asked, "You are firing me over the
Union, aren't you?", Schouten did not reply but got up
and walked out of the office. Schouten refused his request
to call Barnhart into the office so that his story could be
verified and further refused to try to find Barnhart in the
plant in order to have such a confrontation.
Barnhart testified that he did have a conversation with
Boyd that morning at his machine, that it started with
Boyd's asking if he could get his paycheck at noon
because he wanted to go home,20 and that Boyd said
nothing about being ill and did not ask for permission to
go home. He testified further that he has called Boyd a
"panty waist" but does not "honestly remember" calling
him that on November 25, that he did tell Boyd that he
could not make an exception with respect to being paid
early, and that at no time did he tell Boyd that he could
not go home early that day.21 According to Barnhart, he
discovered Boyd's absence between 12:30 and 1 p.m. and
learned from employee Coblentz that Boyd had gone
home at noon; and, later that afternoon, when Schouten
came by the department and inquired as to why Boyd's
machine was not running, he apprised Schouten that
Boyd had gone home at noon, and that Coblentz had said
that Boyd left because he was sick. Whereupon, they
discussed Boyd's "chronic absenteeism, his general atti-
tude.' It is also Barnhart's testimony that Schouten
never told him in so many words why Boyd was
21 During cross-examination, Barnhart testified as follows, in this con-
nection
Q. Did you ask hum why he was going home at noon?
A. That is his business
Q You are his supervisor, aren't you9
A. That is right He may want to go out and rob a bank, that is no
concern of mine.
Q Do you condone employees leaving at noon9
A I do not
Q Do you tell them not tog
A. No, I did not tell him not to leave. I did not know that he was
I thought that after our little talk that we had had, which was very
brief, I was led to believe, was left with the impression that he was not
going home at noon.
22 1 find that Barnhart's testimony was evasive throughout and I do not
credit him in those instances where his testimony is at odds with that of
Boyd. I find therefore, in accordance with Boyd's testimony, which I
credit, that Boyd did tell Barnhart that he was sick and that Barnhart did
say it was "OK" to leave early Moreover, the credited testimony of Boyd
that Barnhart called him a "panty waist" when he told Barnhart of his
desire to leave early strongly suggests, and 1 find, that Barnhart was
thereby telling Boyd in slang that he was acting the "sissy" by asking per-
mission to go home on illness grounds.
DUMAS, INC. 899
discharged but he always took if for granted that it was
because of Boyd's "absenteeism and his general attitude
about everything."23
According to Schouten, he noticed that Boyd was not
at his machine about 1 o'clock and, upon inquiry, learned
from Barnhart, about that time, that Boyd had left at noon
without giving a reason therefor. He testified further that
Boyd's leaving without permission "is the reason for
[Boyd's] discharge, we couldn't put up with it any
longer" and that when Boyd appeared at his office later
that day, he told Boyd that he was discharged for the
reason that he did not come back after 12:30 p.m. And
when Boyd accused him of discharging him because of
the Union, he answered that, "it was positively not the
case." In answer to Boyd's position that the discharge
was unfair, he told Boyd that he, Boyd, had been absent
so often, and told about this so often, that his leaving at 12
noon for the day brought on the decision to discharge.
Schouten admitted that Boyd spoke about being sick that
day, saying that "he was not feeling good." 24 He also
testified that Boyd asked him to reconsider but he told
Boyd that the decision was final, that there was nothing
he could do about changing it. Schouten volunteered,
"even if I could, I would not have."
I note that Schouten did not deny Boyd's testimony
that he, Schouten, had acknowledged to Boyd that Barn-
hart had told him of Boyd's becoming sick. Nor did he
deny Boyd's further testimony that, when he, Schouten,
said that Barnhart had denied that Boyd had given him a
reason for leaving early, Boyd sought, but was denied, an
opportunity to confront Barnhart in order to establish that
he had, in fact, given Barnhart a reason for leaving early.
In view of this, the catagoric rejection of Boyd's request
for reconsideration of his discharge suggests, and I infer
and find, that Schouten, who made the decision to
discharge Boyd, was not concerned with the merits or
demerits of Boyd's early departure on that day. Further-
more, this unusual firmness in disciplining Boyd in the
light of the laissez faire attitude of Respondent, in regard
to Boyd as well as others, concerning reporting time,
leaving time, and getting permission therefor,25 further
underscores such lack of concern about the merits of
Boyd's early departure. I therefore find that the asserted
ground of Boyd's leaving early without permission on
November 25 was not the real reason for his discharge.
Moreover, I have heretofore found that Barnhart did
grant permission to Boyd to leave, in accordance with
Boyd's request to do so, on illness grounds.
The General Counsel urges that the real reason for
Boyd's discharge is rather to be found in his union activi-
ty and leadership. In this connection, I am satisfied, and
I find, that Boyd played an important part in the Union's
organizational drive. Thus, he was the one who ap-
proached the Union to enlist its aid in organizing Respond-
ent's employees. In addition, Bateman, the International
representative of the Union who took over the conduct of
the organizational drive in the latter part of October,
testified credibly that, "Boyd acted almost as a committee
chairman of the plant," attended every union meeting and
turned in signed authorization cards for the Union at al-
most every meeting. It is also apparent from the record
that Boyd personally distributed I 1 or 12 authorization
cards to employees and that he solicited employee
Kraykraft in the plant during the noon hour. I also find
that Respondent was well aware of Boyd's union activity.
According to Foreman Fitzwater, Boyd "always did talk
about unions" and has been a union man as long as he can
remember. Indeed, Boyd epitomized to Fitzwater the
leadership of the Union in the plant as is evident from
Fitzwater's taunting him by calling him "Walter Reuther"
on many occasions.26 Furthermore, that Boyd's union ac-
tivity was a focus of attention for management during the
Union's organizational drive is clear, too, from my
findings above that three of Respondent's supervisors, in-
cluding Fitzwater, interrogated him about the Union dur-
ing November. Thus, Schouten asked him, during the
second week in November, whether he knew about the
Union, and inquired further about a week later as to how
he and the Union were getting along; Fitzwater asked him
around November 11 for a union card; and, in early
November, Barnhart asked him if he knew anything
about the Union.
There yet remains for determination, whether, given
Boyd's considerable union activity and Respondent's
knowlege thereof, these factors were operative in Boyd's
discharge. In this respect, I find significant the following:
(1) Respondent's asserted reason for Boyd's:discharge is
lacking in merit, as I have heretofore found; (2) Boyd was
discharged precipitately and without warning; (3) the
discharge occurred at a time when the Union's organiza-
tional campaign was gaining momentum, as evidenced by
the distribution of union literature outside the two plants
3 days before; and (4) Respondent manifested its union
animus, throughout the month of November,, by nu-
merous acts of interference, restraint, and coercion,
found herein to be violative of Section 8(a)(1) of the Act.
Furthermore, viewing the discharge of Boydon the basis
of the entire record and in its total context, as outlined
above, I am persuaded, and I find, that the reason given
by Respondent for Boyd's discharge was pretextual, and
that the real reason therefor was his union membership
and activity. Accordingly, I conclude, and find further,
that by discharging Boyd on November 25, 1966,
Respondent violated Section 8(a)(3) and (1) of the Act.
E3 I note, in this connection, that Schouten's preheating affidavit to the
General Counsel, in evidence, refutes this part of Barnhart's testimony.
Schouten there says, "I told Barnhart that afternoon of my action in
discharging Boyd and the reason "
24 When Schouten's attention was called to the fact that his testimony
above is different from his preheating affidavit to the General Counsel, in
evidence as General Counsel's Exhibit 3, where he affirmatively states
that Boyd said nothing about being sick that day, he replied, "I thought
that he did but I am not sure actually he was very upset and he was carry-
ing on and I did not say very much to him then I did not talk to him much
at all He did most of the talking He was very upset.. . "
25 In this connection , Barnhart testified that he does "not specifically
remember " discussing Boyd 's absenteeism with him. And as to whether
Barnhart ever reprimanded Boyd for absenteeism , Barnhart parried the
question in this manner " I would have to say yes I could probably say
yes. I would have to say yes," and, while his answer to the kind of repri-
mands, spoke of verbal reprimands for being late and leaving early, he
could not remember when this took place In these circumstances, I find
incredible Barnhart's testimony that he ever reprimanded Boyd for absen-
teeism
As to others than Boyd, Barnhart testified that employees Foulke, Paul
Woods, and Wetzel Eldridge had absenteeism records which were as bad
or worse than Boyd's record, that there were some employees that did
have a worse record, and, with particular reference to Woods, that he
would come to work whenever he felt like doing so
26 As already found , Fitzwater said to him, on November 20, "when
you get your union in , you are not going to be able to stand around like this
..." and then added , speaking to employee Hamilton and pointing at
Boyd, "Walter Reuther , there is Reuther."
350-212 0-70-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The alleged 8(a)(3) in the discharge of Dorothy
Rhoades
Rhoades began to work for Respondent in August
1965. She has always worked in the jet department. Dur-
ing the year prior to November 25, 1966, the critical date
herein, Rhoades was assigned to visual inspecting of oil
jets. But, when she had no jets to inspect, she did burring
and filing or other jobs on thejets themselves. During the
months of October and November 1966, Rhoades did not
work the basic workweek of 40 hours;27 in fact, she
worked 37 hours during 4 of these weeks, 36-1/2 hours 1
week, 32 hours during 2 weeks, and 31 hours 1 week.
Rhoades explained that the reason she did not work a full
week was either because of her health or because of fami-
ly problems. However, she recalled one occasion in
November where she was sent home early for lack of
work. According to Travis, her supervisor, there were
times that Rhoades left the job early, and, on those occa-
sions, she would not talk to him first, "she would just put
her coat on and walk out the door." Rhoades, however,
denied ever leaving early without talking to her super-
visor first. Travis also recalled that, after one such in-
cident in which Rhoades left early, he got all seven em-
ployees in the jet department together the following day
and talked to them, urging their cooperation and help so
that he could do the job he had to do. Travis also con-
ceded that, on no occasion, had he given any employee a
warning or told them "they were going to get fired or
nothing like that"; nor had he ever reprimanded Rhoades
for not doing her work.
It is not disputed that on November 25, Rhoades re-
ported for work at 7 a.m., the usual starting time; that, at
about 8:30 a. m., while she was washing jets with a solvent
and an air hose, Travis told her that he wanted her to run
the broacher, a machine with which she was unfamiliar;
and that she told Travis that she did not feel up to learning
this new job and that as soon as she finished what she was
doing she would go home. Rhoades admitted that she did
not ask Travis what sort of work she would have to do on
the broacher,28 that, in most instances, women operate
that machine; and that, although she did not feel well dur-
ing the morning, making several trips to the bathroom and
passing a little blood, she did not tell Travis, before he
talked to her about going on the broacher, that she was
not feeling well Rhoades testified furrther that she was
then given permission by Travis to go home. Whereupon,
she punched out and did not wait to tell Plant Superintend-
ent Schouten that she was leaving, because Travis as-
sured her that "[he] will take care of it." Travis, on the
other hand, gave a different version. According to him,
when Rhoades said , upon his assigning her to the
broacher, "I think IT go home because I don't feel
good," he, at first, turned around and started to walk off
but then changed his mind, walked back to Rhoades and
told her, "if that was how or the way she felt to get ready
to go home and go home." He testified further that, after
Rhoades went home, he spoke to Schouten about
Rhoades and it was Schouten's decision that Rhoades
was to be discharged for refusing to do the broacher job.
27 The jet department was scheduled for 9 hours a day, 5 days a week,
so that female employees could put in 45 hours of work during those 5
days, which is the maximum hours available to them in a week.
28 According to Travis, the broacher opened up holes to a certain size
on jet parts and the operation consisted of pushing a button.
Rhoades reported for work the following Monday,
November 28, but was unable to locate her timecard. She
proceeded to her work bench but was called by Travis
into his office. Travis there told her, she testified, that she
was being discharged because she refused to do the
broacher job the Friday before and because Respondent
had "two too many girls" in the jet department.29
Rhoades also testified to the effect that Travis stated that
Respondent viewed her conduct on Friday as a quit, but
that she denied quitting; and when she told Travis that "it
is up to you to tell me that I am fired or it is up to Cor-
nelius [Schouten] to tell me. And I will go home," Travis
then said, "all right, you are fired."
I am persuaded from all the foregoing, and I find, that
Rhoades' refusal to work the broacher was an act of in-
subordination, notwithstanding the fact that she had
never worked this machine before. I find persuasive, in
this connection, the fact that other female employees in
her department had operated this machine before and ap-
parently did so without difficulty. And I deem suspicious
the fact that Rhoades was less than forthright with Travis,
her supervisor, in waiting until he made the broacher
machine assignment to her before telling him that she was
ill and wanted to go home as soon as she finished what
she was doing. However, the question still remains
whether, despite such insubordination, her union activity
was, in the circumstances, an operative factor in her
discharge. As to this, Rhoades testified that her union ac-
tivity consisted of the following: She signed an authoriza-
tion card for the Union "before the first part of
November"; attended two of the four union meetings;
distributed union authorization cards in the ladies'
restroom of the plant and talked to employees about sign-
ing such cards at lunchtime and on her breaks. It is also
Rhoades' testimony that Travis did not say anything to
her at the time of her discharge on November 28 about
the Union, nor did he ever question her about the Union
or her union activity; that she never heard Travis
question any other employee in these respects; that no
other supervisor or foreman ever talked to her about the
Union or accused her of being involved in the union cam-
paign, nor had she ever said anything to Travis about her
solicitation in behalf of the Union nor to any supervisor
about her attendance at union meetings. In this connec-
tion, Schouten testified that, when he made the decision
to discharge Rhoades, he had no indication from Travis
or anyone that Rhoades was in any way connected with
the union campaign. In these circumstances, including the
nature of Rhoades' union activity described above, I am
persuaded, and find, that the record does not prepon-
derate in favor of a finding that, at the time of Rhoades'
discharge, Respondent knew of her union activity. Ac-
cordingly, since an essential ingredient for a finding of
violation is lacking here, namely, that Respondent was
either aware of Rhoades' union or concerted activity or
assumed the same, it is unnecessary to make findings or
reach a conclusion with respect to any other circum-
stances of Rhoades' discharge.
Moreover, even assuming , contrary to my finding
above, that Respondent had knowledge of Rhoades'
29 Travis admitted giving these two reasons to Rhoades for her
discharge, although Schouten had given him only the one relating to her
refusal to do the broacher job.
DUMAS, INC.
union activity, I still find no violation herein. I have taken
into consideration (1) Respondent's laissez faire attitude
with respect to employees' coming in late and leaving
early, as found heretofore; (2) the decision by Schouten
on November 25, to discharge Rhoades for insubordina-
tion, and then the twofold reason of insubordination and
the need to reduce the complement in the jet department
by two persons30 given by Travis to Rhoades on
November 28; (3) the fact that Rhoades was discharged
while girls with less seniority were retained;31 (4)
Respondent's manifestation of union animus during
November by numerous acts of interference, restraint,
and coercion, found herein to be violative of Section
8(a)(1) of the Act, and by its discriminatory discharge of
Boyd, in violation of Section 8(a)(3) of the Act, the previ-
ous Friday; and (5) the timing of the discharge of
Rhoades at a time when the Union's organizational cam-
paign was gaining momentum in the plant. However, I am
unable to conclude, under all the circumstances, that the
record preponderates in favor of a finding that the real
reason for Rhoades' discharge was her union activity and
not her insubordination on November 25. I am therefore
convinced, and I find, that the allegations of the com-
plaint with respect to the discriminatory discharge of
Rhoades and the refusal thereafter to reinstate her have
not been sustained.32
Upon the basis of the entire record, I make the follow-
ing:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, Respondent has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
Curtis Boyd on November 25, 1966, and by thereafter
refusing to reinstate hum, because of his membership in,
and activities on behalf of the Union, Respondent has en-
gaged, and is engaging, in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
6. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act by discharging Dorothy Rhoades on November 28,
1966, and thereafter refusing to reinstate her.
THE REMEDY
Having found that Respondent has engaged, and is en-
gaging, in unfair labor practices violative of Section
8(a)(1) and (3) of the Act, I shall recommend that it cease
31 Since the decision had already been made by Schouten, Travis' su-
perior, I am inclined to attribute the additional reason given by Travis to
his zealousness to make Schouten 's decision stick.
The record shows that thereafter Respondent did lay off employees
Kettlehate and Pat Beagle in that order , although no date is given.
Si According to Rhoades , only employees Dolihite and Kettlehate had
more seniority than she did in the jet department
901
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. In the latter
connection, I shall recommend that Respondent post an
appropriate notice; and with particular reference to the
discriminatory discharge of Boyd, I shall recommend that
Respondent offer Boyd immediate and full reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights, privileges, or
working conditions, and make him whole for all earnings
lost by reason of the discrimination against him, by pay-
ing to him a sum of money equal to the amount he would
have earned from the date of the discharge to the date of
a proper offer of reinstatement, less his net earnings dur-
ing said period. Backpay, with interest at the rate of 6 per-
cent per annum, shall be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices en-
gaged in by Respondent, I shall also recommend that
Respondent cease and desist from in any manner infring-
ing upon the rights guaranteed employees by Section 7 of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, I
recommend that Respondent, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees generally with stricter
working conditions, or, more specifically, with loss of
time out for coffee or no more pay raises, or a cutback to
a 40-hour workweek, or shutting the plant down, or
greater skill requirements for setup men and their replace-
ment if they do not qualify, or less overtime to setup men
due to a change in the method of making overtime assign-
ments, should the Union become the bargaining repre-
sentative of its employees.
(b) Interrogating employees concerning their union
membership or activity.
(c) In any other manner interfering with, restraining,
or coercing their employees in the exercise of their right
to self-organization , to form labor organizations , to join
or assist the aforementioned Union or any other labor or-
ganization, to bargain collectively through representa-
tives of their own choosing , or to engage in other con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right
may be affected by any agreement requiring membership
in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Curtis Boyd immediate and unconditional
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights,
privileges or working conditions, and make him whole for
32 Although I attach no controlling significance thereto, the record
shows that the Ohio Unemployment Compensation Bureau considered an
application for benefits by Rhoades in connection with the above
discharge and ruled , as follows : "This is a discharge forjust cause in con-
nection with the work as claimant's refusal constitutes insubordination."
The record also shows that Rhoades did not appeal from this ruling, as
was her right.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any loss of earnings he may have suffered, in the manner
set forth in the section hereof entitled "The Remedy."
(b) Notify Curtis Boyd if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its plants I and 2 in Springfield, Ohio, co-
pies of the attached notice marked "Appendix."33 Copies
of said notice, to be furnished by the Regional Director
for Region 9, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.34
(f) It is further ordered that the allegations of the com-
plaint alleging that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Dorothy Rhoades and
by thereafter refusing to reinstate her, be, and they
hereby are, dismissed.
33 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
04 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
overtime to setup men due to a change in our method
of making overtime assignments , should the Interna-
tional Union , United Automobile , Aerospace and
Agricultural Implement Workers , UAW-AFL-CIO,
become your collective-bargaining representative.
WE WILL NOT interrogate you concerning your
union membership and activity.
WE WILL NOT engage in spying , or create the im-
pression of engaging in spying , upon your lawful
union or organizational activities.
WE WILL NOT discourage membership in the
aforesaid union , or any other labor organization, by
discriminating as to the hire, tenure, or any other
term or condition of employment of any of our em-
ployees.
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form , join, or assist
a labor organization, to bargain collectively through
a bargaining agent chosen by themselves , to engage
in concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to
refrain from any such activities except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment , as authorized by Section
8(a)(3) of the Act, as amended.
WE WILL offer Curtis Boyd his former or substan-
tially equivalent job (without prejudice to seniority
or other employment rights and privileges ) and WE
WILL pay him for any loss suffered because of our
discrimination against him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act
and the Universal Military Training and Service Act,
as amended , after discharge from the Armed Forces.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
aforesaid union or of any other labor organization , except
to the extent that this right may be affected by an agree-
ment executed in conformity with Section 8(a)(3) of the
Act.
Dated By
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten you generally with stricter
working conditions, or, more specifically, with loss
of time out for coffee, or no more pay raises, or a cut-
back to a 40-hour workweek, or shutting the plant
down, or greater skill requirements for setup men
and their replacement if they do not qualify, or less
DUMAS, INC. D/B/A
STERLING
MANUFACTURING
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 684-3686.