Teledyne Republic Manufacturing

National Labor Relations Board - Board Decisions

Oct 9, 1970

185 N.L.R.B. 937 (N.L.R.B. 1970)

TELEDYNE REPUBLIC MANUFACTURING
Teledyne Republic Manufacturing and District 54
of the International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 8-CA-5745
October 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 18, 1970, Trial Examiner Samual Ross
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision.' Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, 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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner as herein modified.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, Teledyne Republic Manufacturing,
Cleveland, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified herein.
' This case was heard in a consolidated hearing with the objections
filed in representation proceedings, Cases 8-RC-7725 and 8-RM-577
Pursuant to the order consolidating cases and notice of consolidated
hearing, Cases 8-RC-7725 and 8-RM-577, were, after the issuance of
the Trial Examiner's Decision, severed from Case 8-CA-5745 and remand-
ed to the Regional Director for Region 8 for further proceedings pursuant
to the agreement for consent election
' As the representation proceedings have been severed and remanded
for further proceedings to the Regional Director for Region 8 (fn 1,
supra) we do not, in our Decision, adopt the Trial Examiner's Conclusion
of Law 5, that Respondent's conduct interfered with the employees'
exercise of a free and untrammeled choice in the election of January
22, 1970, nor do we adopt his recommendation that the election be
set aside and a new election held
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
937
SAMUEL Ross, Trial Examiner: Upon a charge filed
February 6, 1970, by District 54 of the International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO
(herein called the Union), the General Counsel of the
National Labor Relations Board issued a complaint on
March 10, 1970, which alleges that Teledyne Republic
Manufacturing (herein called the Respondent or the Compa-
ny) had engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act. The Respondent filed an answer
to the complaint which denies the substantive allegations
of the complaint On March 10, 1970, this complaint case
was consolidated with two representation cases involving
the Company and the Union (Cases 8-RC-7725 and 8-
RM-577) for hearing on certain objections to the election
which had been conducted by the Board among the Compa-
ny's employees on January 22, 1970
Pursuant to due notice, a hearing on these consolidated
cases was conducted before me at Cleveland, Ohio, on
April 13 and 14, 1970. Upon the entire record, and my
observation of the witnesses and their demeanor, and after
due consideration of the briefs filed by the parties, I make
the following:
FINDINGS OF FACT
I. COMMERCE
The Respondent, an Ohio corporation, is a wholly owned
subsidiary of the Teledyne Company, a California corpora-
tion whose principal place of business is located in Los
Angeles, California. The Respondent is engaged at its Cleve-
land, Ohio, plant in the manufacture and sale of valves
and valve lifters. In the course and conduct of its business,
the Respondent annually sells and ships products valued
in excess of $50,000 from its Cleveland, Ohio, plant directly
to places outside the State of Ohio I find on the above
admitted facts, that the Respondent is engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5)
of the Act
III. THE UNFAIR LABOR PRACTICES
A Background
In April or May 1969, the Union began a campaign
to organize the Respondent's employees, and on December
22, 1969, it filed a petition to be certified as the exclusive
collective-bargaining representative of the Company's pro-
185 NLRB No. 129
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction and maintenance employees.' On January 7, 1970,2
the Company and the Union signed an agreement for
a consent election wherein it was stipulated, inter alia,
that an election based on both petitions would take place
on January 21. At the ensuing election, out of 241 eligible
voters, 107 votes were cast for the Union and 123 against
it.' There were no challenged ballots On January 29, the
Union filed timely objections to conduct affecting the results
of the election. On February 3, the Respondent discharged
employees Joseph A Mizick, one of the leading union
advocates in its plant, and as previously noted, on February
6, the Union filed the instant unfair labor practice charge
with the Board alleging that Respondent had thereby violat-
ed Section 8(a)(3) and (1) of the Act.
On March 10, the Regional Director issued his Decision
on the Union's objections to the election in which he
found no merit and overruled all of the Union's specific
objections, but directed a hearing based on the Union's
"catch-all" provision that "by other acts," the Company
had interfered with, restrained, and coerced employees so
as to deny them a free choice in the election. In respect
to the latter general objection, the Director concluded that
his investigation disclosed supporting evidence, and that
he was issuing a complaint that Respondent thereby had
violated Section 8(a)(1) of the Act.
B. The Issues
The issues thus posited by the complaint and objections
to the election in these cases are
(a) Whether or not the Respondent restrained and coerced
its employees in the exercise of their rights under the
Act in violation of Section 8(a)(1) of the Act, and thereby
also interfered with the exercise of a free and untrammeled
choice in the Board election, by the alleged conduct of
its vice president, Ernest Irti, of interrogating employees
regarding their union membership, activities, and sympa-
thies, and of allegedly threatening employees with discharge
or other reprisals to discourage adherence to the Union.
(b) Whether or not the Respondent discharged employee
Joseph A. Mizick because of his activities on behalf of
the Union
C. Interference, Restraint, and Coercion
The Respondent admittedly is opposed to the representa-
tion of its employees by any labor organization, and prior
to the last Board election, there had been three previous
elections at which unions, attempting to achieve representa-
tive status for Respondent's employees, had been defeated.
On about December 24, 1969, after the Union filed
its petition for certification, Respondent's Vice President
Ernest Irti held a meeting with his supervisors at which
he instructed them that he did not want them to take
"any part in the defense of the Company and [that] if
' The Company filed an RM petition (Case 8-RM-577) the following
day.
' All dates hereafter refer to 1970 unless otherwise noted
The election was actually conducted on January 22
there is anything to be done around the plant that it
was I [Irti] who was supposed to do it." Thereafter, before
the election on January 22, Irti admittedly interrogated
"most of the people" in the plant "in reference to their
Union activities." Specifically, Irti asked employees,'
What do you think of the Union? What do you expect
to gain? How can they do more for you than we
already have done for you? You have every benefit.
You have good working conditions You have consider-
ate management. You can consult with me all day
long Why do you need a union? If you have a problem
you can come to me and your problems are solved.
On January 7, the date that the consent election agreement
was signed by the Union and the Respondent, employees
Frank A. Adkins and James C. Sacco were present at
the Board's office on behalf of the Union. Adkins was
a long time employee of the Company who had been
active on behalf of the Union in the prior organizational
campaigns at the Respondent's plant, and also in the most
recent one However, before their January 7 meeting at
the Board office, Vice President Irti had suggested to Adkins
that he cease being involved in union activities because
of the heart condition for the correction of which Adkins
expected to soon undergo corrective surgery. And Adkins
had replied, " I am still all through with that stuff. I
have got (sic) personal problems "' Irti was therefore sur-
prised and admittedly chagrined when he saw Adkins at
the Board office on January 7.
On the following day, Irti came over to Adkins' work
station in the plant and told Adkins that he was very
disappointed with him for becoming involved with the
Union in the light of his condition, and that he had been
led to believe that Adkins would not take any part in
the organizing campaign . According to Adkins' credited
testimony, Irti also told him that he "could hire a woman
for my job, that she could do the work I was doing,
and do it cheaper." Irti also said that because of Adkins'
condition, he "couldn't get a job nowhere (sic) else and
that was why they did me a favor." Irti further told
Adkins that "there are all kinds of ways that he could
fire me," and asked Adkins whether he remembered what
had happened to the Yablonskis.' Adkins replied that his
wife "had mentioned this" to him Irti then said that
Adkins' wife "was smarter" than he was, that "the people
wouldn't vote the Union in anyway" because "they were
afraid to," and finally that "we [the Union supporters]
had better make it this time."'
' The quotes in this paragraph are from Irti 's credited testimony
The quotes above are based on Irti's uncontroverted and credited
testimony
This apparently was a reference to the United Mine Workers official
and his wife and daughter who had been murdered in their home
The quotes above are from Adkins' testimony which I credit Irti's
version of this conversation did not controvert that of Adkins, but it
did not include a number of the statements attributed to him by Adkins
Irti denied only that he had "threatened to give him [Adkins] harder
work to do," but no such threat was asserted by Adkins ' testimony,
either implicitly or inferentially Irti admitted that because of the many
conversations which he had with employees , he could not remember
the precise nature of this conversation with Adkins, and that it went
along "these lines " Accordingly , although I regard Irti as a truthful
witness, I deem Adkins ' testimony in respect to this conversation as
more reliable
TELEDYNE REPUBLIC MANUFACTURING
On or about the day after Respondent signed the consent
election agreement, employee Sacco, who had accompanied
Adkins to the Board office, also was engaged by Irti in
conversation at his work station in the plant. Sacco was
then wearing a union button which bore the legend, "I
am Committee," and Irti asked him to remove it. Sacco
replied that he believed what he was doing was right,
that he saw nothing wrong or illegal in it, and that he
was not going to remove it, Irti then referred to the Yablon-
ski murders and said to Sacco that with all the trouble
that was occurring in Pennsylvania, Sacco "shouldn't be
in this type of situation " Sacco replied that he came
from Pennsylvania, and that he was aware of what had
happened there Irti then said that "he could have gotten
rid of me quite a while before " Sacco answered, "Well,
if that's the way you felt, why didn't you?" Irti did not
reply, and apparently this ended the conversation.'
D. Concluding Findings in Respect to Interference,
Restraint, and Coercion
The General Counsel contends that the conduct of Irti
described above constitutes unlawful interrogation and
threats proscribed by Section 8(a)(1) of the Act. The Union
contends that this conduct interfered with the free and
untrammeled choice of the employees in the election, and
that a new election should therefore be directed. The
Respondent contends that Irti 's statements were "nothing
more than the exercise on the part of Mr . Irti of free
speech to which he is entitled under Section 8(c) of the
Act."
In respect to Irti's conversations with Adkins and Sacco
after he saw them at the Board office, there can be little
doubt that Irti 's statements were coercive in nature.
Irti's remarks that Adkins ' job could be performed equally
well by a woman at less cost , that in the light of Adkins'
heart condition , the continuation of his employment had
been a favor , that there were all kinds of ways that he
could fire Adkins, that the Union had better succeed this
time, and the reference to the murders of the Yablonskis,
clearly constituted threats of discharge or other reprisals.
Accordingly , since these remarks were made to Adkins
in a context of admitted displeasure over Adkins ' espousal
of the Union, I find that the Respondent thereby engaged
in interference , restraint , and coercion within the meaning
of Section 8(a)(1) of the Act.
I similarly regard Irti 's statements to Sacco. Thus, as
previously noted , Irti first asked Sacco to remove his union
button , and when the latter refused , Irti reminded him
of the fate of the Yablonskis , and that he could have
fired Sacco in the past. These statements clearly conveyed
the message that continued employment depended on Irti's
good will , that support of the Union was not the means
by which such good will could be maintained, and therefore
tended to discourage adherence to the Union . I therefore
conclude that the Respondent thereby interfered with,
' The findings and quotes in the paragraph are based on Sacco's
uncontroverted and credited testimony Irti was not asked and gave
no testimony regarding the conversation Moreover, he did not deny
that such a conversation occurred.
939
restrained, and coerced employees in the exercise of their
rights, guaranteed by the Act, to be represented by a
labor organization, and further violated Section 8(a)(1) of
the Act.
There remains for consideration whether Irti's admitted
interrogation of most of the employees also was unlawful
and/or interfered with the free choice of employees at
the election. As previously noted, after the Union filed
its petition for certification, in a context of admitted opposi-
tion to the Union, Irti asked most of the employees in
the plant, inter alia, "what do you think of the Union?"
and "why do you need a union?" and he also told them,
"If you have a problem you can come to me and your
problems are solved."
In respect to the recurring question of the lawfulness
of such interrogation, the Board said in its decision in
Struksnes Construction Co., Inc.,'
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
generally tends to cause fear of reprisal in the mind
of the employee if he replies in favor of unionism
and, therefore, tends to impinge on his Section 7 rights
As we have pointed out, 'An employer cannot discrimi-
nate against union adherents without first determining
who they are.' [Citation omitted.] That such employee
fear is not without foundation is demonstrated by
the innumerable cases in which the prelude to discrimi-
nation was the employer's inquiries as to the union
sympathies of his employees.
That such fears existed at Respondent's plant is clearly
disclosed by Adkins' false statement to Irti that he was
not involved in the Union's campaign, when in fact he
was one of the active proponents of the Union. Since
an election conducted by the Board had been consented
to, the Respondent had no legitimate need to inquire about
its employees' union sympathies for that would be deter-
mined at the secret election. Moreover the interrogation
of why the employees "needed a union," accompanied
as it was by the statement that their problems could be
solved by merely bringing them to Irti's attention, quite
apparently was an attempt to ascertain employee grievances,
and implied a promise to correct them without the interven-
tion of the Union 10
I am persuaded by the foregoing that Irti's interrogation
of the employees after the Union filed its petition interfered
with, restrained, and coerced employees in the exercise
of their Section 7 rights, and that the Respondent thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(l) of the Act."
E. The Alleged Discriminatory Discharge of Joseph A. Mizick
Joseph A. Mizick was hired by Respondent as an inden-
tured machinist apprentice in 1965 or 1966. He successfully
completed his apprenticeship on about July 1969, and
received his certificate as a journeyman machinist. He then
165 NLRB 1062
° King Chrysler-Plymouth, Inc., 174 NLRB No. 80; Tom Wood Pontiac,
Inc., 179 NLRB No 98
" Strucksnes Construction Co, Inc., supra. Barry Industries, Inc.,
181 NLRB No 159
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was assigned to work in Respondent's Acme Gridley Depart-
ment No. 475 as an operator and setup man on an automatic
screw machine under the immediate supervision of Foreman
Karl Korber. Mizick worked in Department 475 until Febru-
ary 3, 1970, when he was fired The complaint herein
alleges that Mizick's discharge was motivated by antiunion
considerations. The Respondent contends that his termina-
tion was for cause. The record in respect to this issue
will be described hereinafter.
In April or May 1969, Mizick called the Union and
asked them to come out to the plant and handbill. Thereafter,
the Union commenced an organizational campaign which
culminated in a Board election on January 22, 1970. During
that campaign, Mizick attended all the Union's meetings,
distributed handbills in front of the plant "a couple of
times" (including the day before the election), and distribut-
ed union authorization cards to employees for signature.
In addition, during the week preceding the election, Mizick
wore a union button on his shirt collar in the plant which
bore the legend "Vote Yes."" Mizick admittedly was not
the only employee in his department who supported the
Union's organizational campaign, but according to his cred-
ited testimony, the others were not as "out[wardly prounion]
as I was " The Respondent's witnesses, Vice President
Ernest Irti, Superintendent Robert L. Kellogg, and Foreman
Karl Korber, all admitted that they knew that Mizick
was a union proponent."
In October or November 1969, Mizick asked his foreman
Karl Korber how he was getting along and Korber replied
that he "was doing pretty good " On December 8, 1969,
Korber recommended Mizick for a raise in pay, and at
that time he rated Mizick as follows: "Ability, good; Con-
duct, good, Attendance, excellent; Production, good." The
raise for Mizick of from $3.30 to $3 50 per hour subsequently
was approved by Superintendent Kellogg and Vice President
Itri, and was made effective on January 26.14 Notwithstand-
ing his recent raise in pay, the Respondent fired Mizick
one week later on February 3, allegedly for doing a job
poorly which later was corrected at a cost to the Company
of $18.75. The circumstances which led to Mizick's discharge
were as follows:
On February 3, Foreman Korber assigned Mizick to
perform certain machining operations on 143 metal pieces
11 Although Mizick distributed "10 or 20" like buttons to employees
to his Department 475, according to his credited testimony, the other
employees did not wear them and "put them in their pockets " Foreman
Korber testified that he saw other employees in his department wear
union buttons , and that one also was pinned on him However , Korber
admitted on further examination that the button which he and other
employees wore "was sort of a joke," that it was worn for only a
minute, and passed from one employee to another Korber also testified
that he did not see Mizick wear the union button "regularly," and
that he wore it for "only a matter of minutes " I do not credit Korber
in these regards because his testimony frequently was evasive and self-
contradictory , and occasionally implausible , as a consequence of which
I regard his testimony as generally unreliable.
" Kellogg testified that he first learned that Mizick was active on
behalf of the Union the night before the election when he was told
that Mizick had handbilled in front of the plant
" The rate increase recommendation dated December 8, 1969, also
bore the notation "MUST DO GOOD WORK CONSISTENTLY IN
THE FUTURE " There is no evidence that prior to that date, Mizick's
work was other than consistently good as the same document (Resp
Exh. 3-A) stated
of a part called a free flow valve. This particular job
had previously been performed in other departments of
Respondent's plant on Goss machines, but this was the
first time that it was being done in Mizick's department
475 on Acme-Gridley machines, and likewise the first time
for Mizick. The valve was about 3 to 4 inches long, and
had an angle on the front end which is called an A N.
nose. Mizick's job was to drill a hole in the nose of
the valve and to put threads in the hold and on the
side of the valve. Mizick set up his machine for the job,
ran 8 pieces, and then "got an okay" from Inspector
Charles Hop to proceed with the job.15 Mizick then "punched
in on IBM on production and started to run the job."
He then observed that burs were forming at the edge
of the hole he was drilling
Machinists, like Mizick, who perform secondary opera-
tions in the production of parts, admittedly are not expected
to remove burs. The Respondent maintains a regular depart-
ment known as the burnng department whose specific
function it is to wash the oil and chips from the parts
which are produced in its machining departments, and
to remove burs which still adhere to the parts. Nevertheless,
although he was not required to do so, as the job continued
to run on his machine, Mizick removed burs from the
free flow valves by the use of a rubber wheel.16 However,
at the same time, Mizick also had to manually feed the
parts into the machine (the job was not an automatic
feed), and, therefore, the removal of the burs did not
proceed as quickly as the parts were being machined. There
also was a time standard of an hour and one half for
the production of the job which Mizick was required to
maintain . When about half the job or about 75 pieces
had been machined, Mizick called over Foreman Korber
and told him about the burs that he was encountering,
and that he was removing the burs as fast as he could
while "at the same time trying to keep up my production."
According to Mizick's credited testimony, Korber told him
to "do the best he could."" Mizick then continued to
run the job and remove the burs which formed As Mizick
finished the machining of each valve, he placed it in the
oily corrugated boxes with which he had been provided.
These boxes contain corrugated separators to keep the
parts from touching each other and causing damage to
the surface or threads of the parts The same boxes are
used again and again , and therefore, they are usually quite
oily from the cutting oils used to reduce friction and
heat during the machining process. Mizick completed the
job in about two hours, but about half of the parts still
had burs which Mizick had not had time to remove. Accord-
ingly, Mizick carried the job in the oily corrugated boxes
" Hop was not called by Respondent to testify
16 The burnng department concededly is equipped with rubber wheels
such as that used by Mizick to remove burs from the nose of the
free flow valve
" Korber testified that he told Mizick, "Don't let them leave the
department like this " Mizick credibly denied that he received any such
instruction I do not credit Korber in this regard for the following
reasons (a) I regard Mizick as a candid and reliable witness whose
testimony is generally worthy of credence , (b) since the removal of
burs was a regular function of the burring department , there was no
reason for Korber to order the parts kept in his machining department
merely for removal of burs, and (c) as noted above (see fn. 12, supra),
I regard Korber's testimony as generally unworthy of credence.
TELEDYNE REPUBLIC MANUFACTURING 941
out to the burring department and set them down there
for washing and for the removal of the burs which he
had not had time to eliminate. Mizick then proceeded
to set up his machine for his next job.
Mizick was thus engaged at about 11 30 am when
Plant Superintendent Kellogg came over and said that
there was a puddle of oil in the burring department from
the pieces Mizick had just run Kellogg also told Mizick
that the parts were "no good " Mizick looked at the parts
which had in the interim been returned from the burring
department, and observed that some still had burs and
others did not Eighteen of the pieces also had rough
surfaces on the nose of the valve. He offered "to put
them back on the machine and take the burs off," but
Kellogg said, "No."
At 2 p.m. that afternoon, Mizick was told by Foreman
Korber that "we were wanted in the office." He then
accompanied Korber to Kellogg's office where Kellogg
and Personnel Director Don Boudreau awaited them. Upon
arrival at the office Kellogg said that the job was no
good, that the parts which Mizick had machined were
scrap, that there should not have been burs at the end
of the hold, and that 18 of the pieces had "rough noses."
Mizick again offered to "put it back in the machine and
fix it." Kellogg again said "no." Mizick said, "it would
only take a half hour." Mizick suggested that the rough
noses could have been caused by defective material, but
Kellogg said it was not. Kellogg then asked Korber what
he wanted to do about the situation, and Korber replied
that "he couldn't use a man that couldn't do a job right,"
and that he did not want Mizick in his department Mizick
then asked, "Am I discharged?", and Kellogg replied, "Yes "
Mizick was then requested to sign a memorandum of their
meeting which had been prepared by Personnel Director
Boudreau, but he refused and left. He has not since been
reinstated.18
F. Concluding Findings in Respect to the Motivation for
Mizick's Discharge
According to Kellogg, Mizick was fired "because of
the fact that he consistently had been negligent in his
work and because of the fact that he sent this [free flow
valve] job out of the department in a defective condition."
Korber testified that Mizick was fired because of the free
flow valve job and "other jobs that were similar," and
because he [Mizick] had to be reprimanded quite frequently
for "things such as leaving his machine that he was working
on, bothering other employees, making parts that were
scrap, and [because he was] just a headache in the depart-
ment." For the reasons stated hereinafter, I regard the
grounds assigned by Kellogg and Korber for Mizick's termi-
nation as pretextual and unworthy of credence.
1 As previously noted, on December 8, 1969, in connec-
tion with his recommendation that Mizick's rate of pay
'° The findings in this section of my Decision are based for the
most part on the testimony of Mizick whom I regard as a truthful
and frank witness Korber gave no testimony regarding what transpired
at the termination meeting Kellogg's version did not materially differ
from Mizick's but to the extent that there is a variance , I do not
credit Kellogg, for unlike Mizick, Kellogg 's responses to questions were
frequently evasive, and I regard his testimony as generally contrived
be raised, Korber had rated Mizick's conduct as "good."
Aside from Korber's conclusionary testimony above, there
is no evidence, documentary or otherwise that Mizick ever
left his machine unattended, bothered other employees,
or was "a headache in the department " In the light of
Korber's documented rating of Mizick's conduct as good,
I regard his testimony to the contrary as unworthy of
belief or credence
2. As of December 8, 1969, 2 months before Mizick's
dismissal , Korber also had rated Mizick's work as "good"
in both "production" and "ability " There is no evidence,
other than Korber's and Kellogg's conclusions quoted above,
that prior to that date, Mizick either was negligent in
his work, that he had produced scrap, or that he was
reprimanded therefor Thereafter, before the free flow valve
job which triggered Mizick' s dismissal , he assertedly per-
formed only one job "negligently " Mizick received a repri-
mand for that job on December 18, 1969,19 notwithstanding
that the Respondent had no reasonable basis for charging
him with responsibility for the poor work and ' scrapping
of parts involved therein. 20 In any event, one or even
two poor jobs (only one of which resulted in scrap) out
of the many that Mizick produced during his 6 months
of journeyman status hardly can be accurately described
either as "consistent negligence" or the "making of parts
that were scrap" as Kellogg and Korber testified. I therefore
regard their conclusions to the effect as exaggerations unwor-
thy of belief.
3. The record in regard to the prior job for which
Mizick received a reprimand was as follows: About 2 days
before December 18, 1969, Mizick was assigned to a job
of machining a part called a mini-check Twenty-five hun-
dred of these parts were to be made over a period of
a week, and the job admittedly was run by Mizick on
the first shift, and by another operator on the second
shift Mizick's assignment was to drill a hole of a certain
diameter on one side of the part, and to check occasional
parts with a plug gauge to verify that the diameter of
the hold conformed to the specification. Another hole,
on the other side of the part previously had been drilled
in the same parts by another machinist. After Mizick
set up the job, it was inspected by the Respondent's inspec-
tor, and Mizick was authorized to proceed to run the
job While he ran it during the first day of operation,
both Mizick and the inspector checked occasional parts
and verified that the diameter of the hole was proper 2i
Mizick discovered while he was running the job that the
holes on the other side of the parts which had been drilled
by another machinist were not deep enough, and he reported
his finding to Foreman Korber. Accordingly, after Mizick
and the night shift operator who performed the same opera-
tion finished their job on the parts, they were sent by
Foreman Korber to the Rework Department to increase
the depth of the hole on the other side of the part. On
December 18, 1969, about a day and a half or 2 days
after the running of this job started, the inspector in the
"See Resp Exh 2
30 My reasons for this conclusion will be explicated infra.
31 Mizick credibly testified without contradiction that the inspector
checked the job more than three or four times that first day
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rework Department discovered that 770 of the holes which
had been dulled either by Mizick, the night shift operator
who ran the same job, or by both, had oversized diameters.
However only Mizick was called into Superintendent Kel-
logg's office, charged with responsibility for the oversized
holes, and accused of not checking the job properly. In
addition, Mizick was told that the Respondent had scrapped
the parts involved at a cost to it of $3,100.22 At the
same time, Mizick was warned that a repetition of "negli-
gence of this type" would result in his discharge
The manner by which Respondent allegedly determined
Mizick's responsibility for these defective parts is most
revealing. When Foreman Korber was asked how he had
determined that it was Mizick's work, and not the night
shift machinist's, which was responsible for the oversized
holes, he first testified that he knew it was Mizick's, notwith-
standing that the pieces were not otherwise identifiable,
because of the "order" in which the boxes containing the
pieces were "stacked." He then explained that the day
shift (Mizick) put "their pieces [in boxes] on the floor
alongside the machine and [that] the night shift put their
pieces on the floor on top of the day shift work," and
that he knew that this was not the night shift's work
because these were "day shift pieces [that] were in their
containers on the bottom." Korber further testified that
the job had run "either one or two days" before the
oversized condition of the holes was called to his attention
by the inspector in the Rework Department. This of course
clearly disclosed that the boxes had been moved from
their original position in his department, and that the
order in which the boxes were later stacked in the Rework
Department was not necessarily the same as when the
parts were being worked on in Department 475. Still later,
Korber testified that the night shift had not worked on
this job the first day, that the "scrap [oversized holes]
was found before the night shift ran the job," and that
"it was all Mizick's work."" However, Korber also testified
that he always made "sure a job is running correctly"
before he allows the night shift to get "involved in it."
If true this clearly would suggest that Mizick's (the day
shift's) work had been checked by Korber and found to
be proper before the night shift began to run it
All of the foregoing persuade me, not only that little
or no credence can be given to Korber's testimony that
it was Mizick who was responsible for the defective pieces
on the mini-check job, but also that the Respondent had
no reasonable basis for so concluding 24
" According to Foreman Korber, the Respondent has a Scrap Depart-
ment which prepares and makes available to him a monthly report
of the jobs which are scrapped No report which shows the scrapping
o_f the 770 mini-check parts was offered by Respondent
" The obvious inconsistency of this latter testimony with Korber's
earlier explanation, that he knew it was Mizick's work because of the
order in which the boxes were stacked, elicited the comment from
the Trial Examiner at the hearing that the prior testimony must have been
"all hogwash "
24 Since Mizick was not then fired because of his asserted responsibility for
the oversized holes on the mini-check job, and since the complaint does not
allege that the Respondent violated the Act by issuing its warning to Mizick
at that time, I deem it unnecessary to determine whether the Respondent's
conduct in this regard was motivated by Mizick's espousal of the Union to
which it was opposed
4. Notwithstanding that the oversized holes in the mini-
check job for which Mizick assertedly was responsible
resulted in scrapping parts valued at $3,100, and despite
the reprimand to Mizick on December 18, 1969, Superin-
tendent Kellogg and Vice President Irti shortly thereafter
approved a pay raise for him of from $3.30 to $3.50
per hour, effective as of January 26, 1970. This was not
a part of an automatic general cost-of-living increase given
to all employees, but was given pursuant to a policy of
the Respondent of annually reviewing each employee's per-
formance. If an employee's work was "totally unsatisfacto-
ry," he admittedly "would be automatically released." The
granting of this raise to Mizick after the mini-check job
persuasively suggests and I find that as of that date at
least, he had not been "consistently negligent," and had
not constantly made scrap, as Kellogg's and Korber's testi-
mony implied.
5. There is no evidence that Mizick's work after December
18, 1969, either was negligent, produced any scraps, or
was other than satisfactory. This bungs us then to a consider-
ation of the free flow valve job which Mizick performed
on the morning of February 3, 1970, and as a result
of which he allegedly was discharged.
6. Kellogg testified that his attention was attracted to
this job by a puddle of oil in the burring department
which emanated from the 5 or 6 corrugated boxes in
which the 143 valves had been placed by Mizick. According
to Kellogg, "it concerned me why it [the puddle of oil]
was there," that he therefore stooped down and glanced
at the parts "to see where they came from" and that
he observed that many of the parts had burs and "didn't
look so good." Kellogg further testified that he then instruct-
ed the foreman of the burring department "to take the
parts back where they came from," and that when the
boxes were returned to Department 475, he and Korber
"started to look at the pieces," and observed burs on
about half of them, and 18 with rough surfaces on the
nose angle. According to Kellogg, he then reprimanded
Foreman Korber for allowing the job to leave his department
in that condition, and Korber replied that he had given
Mizick instructions not to do so. Kellogg testified that
he then decided "to get to the bottom of it," and called
Mizick to a meeting that afternoon. At the meeting, accord-
ing to Kellogg, Mizick did not deny that Korber had
instructed him not to send the parts out of the department,
and Korber said that he "couldn't continually put up
with this type of workmanship " Accordingly, he decided
to fire Mizick although he then had a "positive" belief,
later proven accurate, that the parts could be reworked.25
7. Despite the surface plausibility of Kellogg's testimony
above regarding his reasons for firing Mizick, it does not
withstand close scrutiny or analysis. There was, to start
with, nothing unusual about a puddle of oil in the burring
department which reasonably should have attracted Kel-
logg's attention to Mizick's free flow valve job. The undisput-
ed record in this regard discloses that the Respondent
operates a machine shop where cutting oils are regularly
25 According to G C Exh 4, the parts were deburred and the rough
surfaces on the nose angle were removed in the Respondent 's rework
department at a costof $18 75 None of the valves were scrapped
TELEDYNE REPUBLIC MANUFACTURING
used to reduce friction and heat generated by the machining
process. The Respondent's machinists admittedly are not
required to clean the oil and chips from the parts which
they work on, and all parts are sent to the burring depart-
ment to be washed clean of oil. The corrugated boxes
supplied by Respondent to the machinists to put their
parts in are used over and over again , and thus are generally
saturated with oil. Under the circumstances, the presence
of a puddle of oil in the burring department was not
a condition which either would attract "attention" or cause
"concern" as Kellogg testified.
8. The drilling of holes into pieces of metal frequently
causes burs to form at the point where the drill enters
the hole. And, precisely because burs are not unusual
in a metal machine shop, the Respondent maintains a
burring department whose function is to remove them,
and it admittedly does not require its machinists to do
so.26 Moreover, employees of the Respondent who previously
had worked on free flow valves encountered the same
problems in machining them as did Mizick. Thus, James
Sacco and Herman Richards, employees of Respondent
who had processed free flow valves in Department 700
on Goss machines, credibly testified without contradiction
that not only burs, but also rough AN noses, had resulted
during the machining of these parts, that they removed
some of the burs (like Mizick) with a rubber wheel, and
sent others to the burring department for removal. In
addition, Frank Adkins, a burring department employee,
also credibly testified that he had removed burs from parts
similar to the free flow valve by using a countersink on
a drill press. All of the foregoing persuasively suggests,
as I have already found, that Mizick neither received nor
violated any instruction from Foreman Korber when he
sent the free flow valves to the burring department," that
his action in this regard was in accordance with the Respond-
ent's usual practice, and that there was nothing about
the presence in the burring department of parts with burs
on them, which was either unusual or should have caused
"concern" as Kellogg testified.2'
9. The Respondent also maintains a rework department
whose function it is to correct, when possible, errors which
occur during the machining process. The rework department
prepares a monthly report of the work it performs. The
third and last page of the February 1970 report (G.C.Exh.
4), which covers half a sheet of 8" x 10" paper, lists
7 of the jobs, including Mizick's free flow valve job, which
the department reworked that month.29 It would thus appear
that about 35 jobs in all were performed by the rework
department that month. I conclude from the foregoing
that the necessity for reworking parts at the Respondent's
plant is not uncommon.
10. Significantly, of all the machinists who performed
the original work which later required the rework disclosed
26 The Respondent operates the burring department on two shifts, and
employs 12 or 13 people on the day shift alone, and an undisclosed number
on the night shift
27 Seefn 12,supra
z9 As previously noted, by his own testimony, Kellogg only glanced at the
five boxes containing the free flow valves in the burring department to see
where they came from, and he first "started" to examine the parts with
Korber after they had been returned to Department 475
11 The other two pages were not offered in evidence
943
by the February report, only Mizick was discharged, not-
withstanding that the cost of reworking his job ($18.75)
was the lowest of all those listed on the exhibit, some
were considerably higher, and Kellogg admittedly had a
"positive" belief when he fired Mizick that the free flow
valve job could be reworked.
I am persuaded by all of the foregoing, including the
Respondent's previous failure to fire Mizick for an asserted
$3,100 error, and the granting of him of a raise after
that alleged error, that no reliance can be placed on the
testimony of either Kellogg or Korber regarding their rea-
sons for firing Mizick for his asserted $18.75 malfeasance.
I also regard their testimony regarding his consistent negli-
gence and production of scrap as unworthy of credence,
and as pretexts to conceal the true motivation for his
dismissal.
The real reason why Mizick was not fired for his alleged
$3,100 error, then given a raise, and fired shortly thereafter
for an asserted minimal one, is not difficult to ascertain
from the record in this case. Mizick was one of the most
active proponents of the Union in the plant. It was he
who initially invited the Union to organize the Respondent's
employees. The Respondent concededly was opposed to
the representation of its employees by the Union, and
before the Board election, it had engaged, as found above,
in unfair labor practices to discourage its employees from
supporting the Union. When Mizick allegedly committed
an error which cost the Respondent $3,100 in scrap, Kellogg,
by his own testimony did not know that Mizick was active
in the Union, for he admittedly learned about it later
"for the first time" when he was told that Mizick had
distributed union handbills in front of the plant on January
21, 1970, the day before the Board election. However,
when Kellogg fired Mizick for assertedly violating instruc-
tions by sending bad work out of the department which
cost the Respondent $18.75 to rework, he then knew that
Mizick was an active advocate of the Union.
In Shattuck Denn Mining Corporation v. N.L.R.B., the
Court of Appeals appropriately said:)"
Nor is the trier of the fact-here the trial examiner-
required to be more naif than is a judge. If he finds
that the stated motive for a discharge is false, he certainly
can infer that there is another motive. More than that,
he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least where,
as in this case, the surrounding facts tend to reinforce
that inference. [Emphasis supplied.]
In the light of the incredible and pretextual reasons asserted
for firing Mizick when it did, and not before, I am impelled
to the conclusion that the disparity in Respondent's treat-
ment of Mizick can only be reconciled by Kellogg's later
acquired knowledge of Mizick's active union support. That
conclusion is further supported by the fact that when Mizick
was fired, the Union's representation case was still pending,
for on January 29, 1970, it had filed timely objections
to the Respondent's conduct affecting the results of the
election, and a second election thus was still a possibility.
In reaching this conclusion, I have given serious consider-
ation to the well established principles that it is not the
10 362 F 2d 466 , 470 (C A 9)
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's function to substitute its judgment for that of
an employer in respect to either the selection or retention
of employees, and that an employer lawfully may fire
employees for any reason with but the simple exception,
that it may not do so if the termination is motivated
by antiunion considerations." Nevertheless, in the light
of my disbelief in the reasons asserted by Respondent
for Mizick's termination, and for all the reasons previously
stated, I find and conclude that Mizick was terminated
not because of any shortcomings in either his work or
conduct, but by reason of his espousal of the Union, and
the Respondent's opposition thereto. Accordingly, I con-
clude that the Respondent thereby engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having further found that the Respondent's conduct
in violation of Section 8(a)(1) of the Act interfered with
the exercise of a free and untrammeled choice by its employ-
ees in the Board election, I will recommend that said
election be set aside and that a new election be directed.
Having further found that the Respondent discriminated
against Joseph A. Mizick by terminating his employment
to discourage union activities and thereafter failing and
refusing to reinstate him, I will recommend that the
Respondent be ordered to offer him immediate reinstatement
to his former position or, if it no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination by the payment of a sum
of money equal to the amount he normally would have
earned- from the date of his termination to the date of
reinstatement , less his net earnings during said period,
with backpay computed on a quarterly basis in the manner
established by the Board.J2
I will also recommend that the Respondent preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records,
11 N L R B v McGahey, 233 F 2d 406, 413 (C A 5)
32 F W Woolworth Company„90, NLRB 289, backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716
social security payment records, timecards, personnel
records and reports, and all other records necessary to
analyze and determine the amount of backpay due under
the terms of this recommended remedy.
In view of the nature and extent of the unfair labor
practices committed by Respondent, the commission of
other unfair labor practices may reasonably be anticipated.
I will therefore recommend that the Respondent be ordered
to cease and desist from "in any other manner" infringing
upon rights guaranteed to employees by Section 7 of the
Act, in addition to the manner in which those rights
were found to have been violated herein.33
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Teledyne Republic Manufacturing is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. District 54 of the International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discriminating against Joseph A. Mizick by termi-
nating his employment and failing to reinstate him because
of his adherence to and support of the Union, the Respond-
ent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, by coercively interrogating
employees concerning their union membership and desires,
and by threatening employees with discharge or other repris-
als because of their support of the Union, the Respondent
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by Section 7 of the Act,
and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
5. By its conduct set forth above, the Respondent also
has interfered with the exercise of a free and untrammeled
choice in the election held on January 22, 1970
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this
case , I recommend that the Respondent , Teledyne Republic
Manufacturing, its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of District 54 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, or of any
other labor organization of its employees, or in any other
manner discriminating in regard to hire or tenure of
employment or any term or condition of employment
11 NL RB v Entwistle Mfg Co, 120 F 2d 532,536 (C A 4)
TELEDYNE REPUBLIC MANUFACTURING
(b) Threatening employees with discharge or other
reprisals to discourage support of the above -named union
(c) Coercively interrogating employees regarding their
union membership , activities or sympathies.
(d) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights to self-
organization , to form labor organizations , to join or assist
District 54 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from engaging in such activities , except to the extent that
such rights 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.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer Joseph A. Mizick immediate and full
reinstatement to his former job or , if that job no longer
exists, to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges
enjoyed , and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him in
the manner provided in the section of this Decision entitled
"The Remedy."
(b) Notify Joseph A . Mizick , 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 Training
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 and determine the amount of backpay
due under the terms of this Recommended Order.
(d) Post at its plant in Cleveland , Ohio, copies of the
notice marked "Appendix "34 Copies of said notice, on
forms provided by the Regional Director for Region 8, after
being duly signed by Respondent , shall be posted 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 the
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith.sa
34 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and Recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, automatically become
the findings, conclusions, decision and order of the Board, and all objections
thereto shall be deemed waived for all purposes In the event that the Board's
order is enforced by a judgment of a United States Court of Appeals, the
words in the notice reading "Posted by Order of the National Labor
Relations Board" shall be changed to read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
945
IT IS FURTHER RECOMMENDED that the election held
in Cases 8-RC-7725 and 8-RM-577 on January 22, 1970,
be set aside and that these cases be remanded to the
Regional Director for Region 8 for the purpose of conducting
a new election at such time as he deems that circumstances
permit the free choice of a bargaining representative.
15 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director for
Region 8, in writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post
this notice and wejntend to carry out the order of the
Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT discourage union activity or member-
ship in District 54 of the International Association
of Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization by discriminating against
you if you choose to engage in union activity or
join that Union or any other union.
WE WILL NOT coercively question you in any way
about the Union, or any other union.
WE WILL NOT threaten you in any way to discourage
your support of the Union.
Since the Trial Examiner decided that we discriminat-
ed against Joseph A. Mizick to discourage union active-
ties, WE WILL offer him full reinstatement to his
former job, and WE WILL pay him for any loss
he suffered because we fired him. If he is presently
in the Armed Forces of the United States, we will
notify him of his right to full reinstatement upon
application after discharge from the Armed Forces.
WE WILL respect your rights to self-organization,
to form, join or assist any labor organization, or to
bargain collectively in respect to terms or conditions
of employment through the Union named above, or
any representative of your choice, or to refrain from
such activity, and we will not interfere with, restrain,
or coerce our employees in the exercise of these rights,
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except insofar as these rights could be affected by
a contract with a union, which may require membership
in the Union as a condition of employment after the
30th day following the date of such contract or the
beginning of employment, whichever is later
You and all our employees are free to become members
of any labor organization, or to refrain from doing so.
TELEDYNE REPUBLIC
MANUFACTURING
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
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
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
1695 Federal Office Building, 1240 East Ninth Street, Cleve-
land, Ohio 44199, Telephone 216-522-3715