Waggoner Corp.

National Labor Relations Board - Board Decisions

Jan 25, 1967

162 N.L.R.B. 1161 (N.L.R.B. 1967)

WAGGONER CORPORATION 1161
the mailing of the April 19 notices with W-2 tax forms was no more than a book-
keeping device to keep Respondent's payroll records accurate and current for tax,
accounting, or other legitimate purposes. Hence, the circumstances cited by the
Union, which must include the labor conferences in June between Smith and Man-
ning seeking to arrange terms for a consent election, raise no more than a suspicion
that Respondent may have been anticipating a possible election and trying to pre-
pare for it by getting union adherents off the payroll beforehand. Hence, I find
nothing discriminatory in the "paper" terminations of April 19 25
Considering all the pertinent facts and circumstances in the whole record, I find
no coercive or other unlawful conduct by Respondent before or after the Union's
demand which would indicate a fundamental rejection of the principle of collective
bargaining, or that Respondent's responses to the union demand were motivated by
a desire to gain time within which to undermine it or dissipate its majority status.
Hence there is nothing in the case which convinces me that its conduct was moti-
vated by bad faith, but on the other hand, I am persuaded that, on the basis of
what it learned lawfully about the Union's campaign, Respondent entertained a
good-faith doubt of the Union's majority status, and hence was lawfully entitled
to insist that the Union establish its claim to recognition through a secret-ballot
election conducted by the Board.26 I conclude that on the entire record General
Counsel has failed to sustain the ultimate burden of proof that Respondent was
motivated by bad faith or violated the Act in its insistence on an election and its
refusal to recognize and bargain with the Union without an election.27 I therefore
grant Respondent's motion to dismiss the complaint allegations to that effect, and
shall recommend dismissal of the complaint in its entirety.
On the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and the Union is a labor
organization, within the meaning of the Act.
2. All production and maintenance employees at Respondent's South Fort Mit-
chell, Kentucky, plant, excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
3. On April 13, 1965, and at all times thereafter, the Union was and has been
the bargaining representative of a majority of employees in said unit, and therefore
the exclusive bargaining representative of all employees in such unit within the
meaning of Section 9(b) of the Act.
4. Respondent has not at any time mentioned in the amended complaint, failed,
or refused in good faith to bargain with said Union as such representative in vio-
lation of the Act, and has not engaged in any other coercive or discriminatory con-
duct toward its employees as alleged in said complaint or as litigated herein.
RECOMMENDED ORDER
I recommend that the complaint, as amended , be dismissed in its entirety.
25 I have carefully considered other arguments and authorities submitted by General
Counsel and the Union on all Issues , and find the arguments without merit and the cases
inapposite on the facts.
It is well settled that an employer may refuse to recognize and bargain with an un-
certified union if he has a good-faith doubt of its majority status, even though it is proven
at the hearing that the union represented a majority of the employees A L. Gilbert Co.,
110 NLRB 2067, 2069 ; Paramount Paper Products Co, 154 NLRB 1064.
27 See John P. Serpa, Inc., 155 NLRB 99.
Waggoner Corporation and International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case 7-CA-54192. January 05,
1967
DECISION AND ORDER
On August 17, 1966, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respond-
162 NLRB No. 107.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in
the complaint, and recommended dismissal as to them. Thereafter,
the Respondent filed exceptions to the Decision and a supporting
brief, and the General Counsel and the Charging Party filed cross-
exceptions and supporting briefs. Respondent then filed an answering
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 [Members Fanning, Brown, and Zagoria].
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 briefs, and the entire record
in this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications :
1. We disagree with the Trial Examiner's failure to find that
Respondent violated Section 8(a) (1) of the Act by telling employees
that they could obtain, and then by assisting them in securing, copies
of statements they had furnished to a Board agent during investiga-
tion of the instant charges. In this connection, the record shows that
Board Investigator David Basso took the pretrial statements of
employees Darga and Hensel in company offices. Thereafter, Dr.
Waggoner, the Company's chief executive, called these employees into
his office and advised them that they should be able to obtain copies
of their statements. Identical letters requesting the statements were
then prepared by Dr. Waggoner and signed by the employees. The
letters designated the return address as "% Waggoner Corporation."
When the Regional Director wrote to the employees requesting a
statement as to the reasons for these requests, Dr. Waggoner prepared
answering letters, which the employees signed, stating that their
counsel had advised them to request copies. The counsel in question
was John H. Westphal, a company director, and its General Counsel.
On these facts, we are satisfied that Respondent's conduct consti-
tuted an interference with both the processes of the Board and the
rights guaranteed employees by Section 7 of the Act. While it does
not appear that Respondent requested the statements, or inquired as
to their contents, its actions in initiating the requests, coupled with
its preparation of letters calling -for their- return to the Employer's
' Respondent 's request for oral argument Is hereby denied as the record , including the
exceptions and briefs , adequately reflects the issues and the positions of the parties.
WAGGONER CORPORATION 1163
place of business, would necessarily impress employees with the
Employer's concern for the matters related by them to the Board.
In our opinion an employee's knowledge that his employer has man-
ifested an interest in what the employee has to say about him can
only exert an inhibitory effect upon the employee's willingness to
give a statement at all, much less a statement which might contain
matters damaging to the employer. The employee, fearful of incur-
ring the employer's displeasure and possible reprisal, may become
unwilling to cooperate in the investigation of unfair labor practice
charges, thereby frustrating the policies of the Act and the vindica-
tion of the statutory rights protected thereby. Accordingly, we find,
contrary to the Trial Examiner, that Respondent, by suggesting to
employees that they obtain their pretrial statement and assisting
them in attempting to do so, violated Section 8(a) (1) of the Act.2
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Reletter the present paragraph 1(c) as 1(d) and add the follow-
ing as1(c):
["(c) Advising employees to obtain copies of their pretrial state-
ments given to agents of the National Labor Relations Board, and
assisting them in obtaining same."
[2. Add the following as the fourth indented paragraph to the
Appendix :
[WVE WILL NOT advise our employees that they can obtain copies
of the statements given agents of the National Labor Relations
Board during its investigations, nor assist employees in obtaining
same.
[3. Delete the period at the end of new paragraph 1(d) and add
the following :
[". . . , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959."]
Member Fanning also would find , contrary to his colleagues and the Trial Examiner,
that Respondent had a rule prohibiting the distribution of printed matter "of any descrip-
tion on Company property at any time without specific authority of management" and that
such rule violates Section 8 (a) (1) of the Act Admittedly , the rule was included in a set
of rules drafted by Dr . Waggoner in 1957 It was amended in 1963 by the addition of
another page and this page was posted A copy of the rules was handed to the Board's
field examiner by Dr. Waggoner when the latter was asked whether the Company had
any rules . At least one foreman found a set of rules in his desk Under these circumstances,
Member Fanning cannot agree that this is a case "in which there was no rule" The
president of the Company apparently thought the rule had some vitality and his foreman
who "found" a set in his desk could hardly have believed otherwise . If, as suggested, the
rule has no life, there should not be any objection to ordering Respondent to post a notice
to this effect.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the "Act," was heard before Trial Examiner
William J. Brown, at Detroit, Michigan, on April 13 to 16 and April 26 and 27,
1966. The underlying charges of unfair labor practices had been filed on Decem-
ber 16, 1965,1 by the above-indicated Charging Party, hereinafter sometimes
referred to as the "Union," with due service on the above-indicated Respondent,
hereinafter sometimes referred to as the "Company." The complaint was issued
February 28, 1966, by the General Counsel of the National Labor Relations
Board, acting through the Regional Director for Region 7. It alleged, in addition
to jurisdictional matters, that the Company engaged in interference within the
scope of Section 8(a)(1) of the Act by maintaining a plant rule against distribu-
tion of union literature and by the action of supervisory employees in threatening
employees with discharge in reprisal for activities on behalf of the Union. The
complaint also alleged the commission of unfair labor practices defined in Section
8(a)(3) of the Act by discharging employees Evelyn Wood and Monez Smith in
reprisal for their activities on behalf of the Union. The Company's duly filed an-
swer admitted the jurisdiction allegations of the complaint and the maintenance of
the aforementioned plant rule; it denied the commission of the alleged unfair labor
practices.
At the outset of the hearing the General Counsel, over objection of the Com-
pany, was allowed to amend the complaint by adding allegations of unfair labor
practices defined in Section 8(a)( I) of the Act by the Company's action in request-
ing pretrial statements of employees and coercively interrogating and threatening
employees with respect to their prospective testimony. In the course of the hearing,
the Company, over objection of the General Counsel, was allowed to amend its
answer so as to deny that it maintained in effect the plant rule above mentioned.
At the hearing the parties appeared and participated as noted above. They were
afforded full opportunity to present evidence and argument on the issues. Subse-
quent to the close of the hearing written briefs were received from the General
Counsel and the Company which have been fully considered. On the entire record z
herein and on the basis of my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
The pleadings and evidence herein indicate and I find that the Company is a
corporation organized and existing under the laws of the State of Michigan and
maintains its office and place of business at Troy, Michigan , where it is engaged in
the manufacture and sale of metal stampings and related products . During the fiscal
year ending August 31, a representative period , the Company manufactured at its
Troy plant and distributed to purchasers outside the State of Michigan, products
valued in excess of $50 ,000 while, during the same period , it received at its Troy
plant directly from points outside the State of Michigan products valued in excess
of $50 ,000. I find, as the Company concedes , that it is an employer engaged in
commerce within the meaning of Section 2(6) and ( 7) of the Act. The volume of
such commerce is such as to warrant the exercise of jurisdiction on the part of the
Board.
H. THE LABOR ORGANIZATION INVOLVED
I find, in accordance with the pleadings and evidence , that the Union , is a labor
organization within the purview of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction to the issues
The Company's manufacturing operations, principally stamping, welding, and
related processes, are normally carried on on two shifts: 8 a.m. to 4:30 p.m. and
5 p.m. to 1:30 a m. with approximately 50 employees assigned to the day shift and
1 Dates hereinafter relate to the year 1965 unless otherwise indicated.
2 The transcript is hereby corrected at p. 26, 1. 22, by substituting "except" in place
of "accept," and at p 511, 1 22, by substituting "can see" in place of "concede"
WAGGONER CORPORATION 1165
30 to the night shift. The day shift is under the direction of Al Ratcliff; the night-
shift foreman is Pete Skrec who reports to Ratcliff, the general foreman. Skrec has
had some 12 years service with the Company, the last 6 as night-shift foreman.
Ratcliff, who had extensive experience as a foreman in manufacturing operations
similar to the Company's prior to his employment by the Company in June, went
through an orientation period prior to assuming the duties and title of general
foreman on August 30. At all material times the Company's principal executive has
been Dr. C. Stanley Waggoner, who, after some years of medical practice, assumed
the management of the Company in 1957.
The evidence indicates that Ratcliff imposed stricter productivity standards than
had previously obtained at the Company; it also indicates that with the hiring of
Earl Germaine on September 2 as data processing operator and production con-
trol clerk, efforts were initiated to systematize records of employee productivity.
On October 4, Union Representative Joseph Adams, wrote to Mr. Stanley W.
Waggoner 3 at the Company's address, asserting a claim as majority representative
of the Company's employees. There is a dispute in the testimony and evidence as
to whether or not that communication contained an enclosure consisting of a list
of the Union's employee organizing committee; a resolution of this dispute is
important in determining the issue of company knowledge of Monez Smith's union
activity.4 Thereafter the Union filed a representation petition and on October 14 a
consent-election agreement was signed; a Board election was held on October 28
which the Union lost. The complaint alleges instances of interference, restraint, and
coercion on the part of Skrec and Ratcliff in the period preceding the election.
Thereafter, and following issuance of the complaint herein, employees Darga
and Hensel signed letters prepared by company representatives and addressed to
the Board's field examiner, David Basso, who had taken pretrial affidavits from
them, requesting copies of such statements. On March 17, in response to inquiry
from the Regional Director under date of March 15 as to the reason for their
requests, they signed letters, again prepared by company representatives, referring
to the forthcoming hearing and stating that their counsel had advised them to
request the statements. The amendment to the complaint above referred to alleges
that these requests for affidavits constituted interference with the Board's processes
and with employee rights under Section 7 of the Act and were unfair labor prac-
tices within the scope of Section 8(a)(1) of the Act.
On March 31, or thereabouts, Skrec called employee Bernice Terick into his
office and told her that he intended to sue employees who had been making false
charges against him with respect to the matter of his opposition to the union cam-
paign. The General Counsel asserts that this conversation, in the circumstances,
amounted to interference both with employee rights under Section 7 of the Act
and with the Board's proceedings.
B. Interference, restraint, and coercion
1. The no-distribution rule
The evidence indicates that upon assuming the management of Company in
1957, Waggoner drafted a six-page document 5 entitled "Company Rules." The
document sets forth among the list of violations which would be sufficient grounds
for disciplinary action the following:
Posting or removal of notices, signs or writing in any form on Company
bulletin boards or the distribution of unauthorized literature, written or
printed matter of any description on Company property at any time without
specific authority of management.
Waggoner testified, and I credit his testimony, that these rules were never posted
and that he never advised employees of their existence nor instructed foremen to
advise employees of their existence. They were not shown to new hires at the
time of their employment. No set of the rules was ever furnished to night-shift
8 The letter appears to have been duly received by Dr. C. Stanley Waggoner.
* Woods' union sympathy became known to the Company when she acted as a union
observer at the election next herein referred to. The union observer for the night shift,
Dorothy Goatley, is still employed by the Company.
5 An additional page labeled "Carelessness" was added to the original draft early in
1963. After having been voted upon favorably by employees this particular page was
posted on the bulletin board.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Skrec who was employed as night-shift foremen since some time in 1959.
In fact the testimony of Skrec, considered together with that of General Counsel's
witness, Bernice Terick, indicates that he resented being accused of preventing dis-
tribution of union literature
General Foreman Ratcliff testified, and I credit him in this regard, that he found
a set in his desk but never discussed them with Waggoner or any employee.
The evidence establishes that these rules were resurrected from a state of
dormancy by Waggoner's response to a field examiner's inquiry in the investigation
of the instant case as to whether there were any company rules. The evidence fails
to establish that these rules were ever promulgated much less enforced ; in a real-
istic sense they were not maintained in effect, i.e. they were never published nor
applied, as alleged in the complaint . This is not a case of a rule which is more
honored in the breach than in the observance; rather it is a case in which there
was no rule . I recommend dismissal of the allegations of paragraph 13(a) of the
complaint.
2. Interference-Peter Skrec
The complaint alleges in paragraph 13(b) that Peter Skrec,6 on or about Octo-
ber 21 threatened that prounion employees would be discharged if the Union lost
the then pending election . It also alleges in paragraph 13(e) that on or about
April 1, 1966 , Skrec coercively interrogated and threatened employees concerning
their prospective testimony in the instant case. The Company denies these charges.
With respect to the alleged preelection threat, Norma Deaton, a company
employee on the night shift since December 1963 and an outspoken union sup-
porter, testified that one night in October prior to the election while she was work-
ing on press 11, Skrec approached her and said that he had worked under a union
and that if the Union did not get in at the Company there would be a lot of girls
gone. It appears from her cross -examination that at the time of the incident she
was working on a Ford door reinforcement panel with three other employees on
the press . Her pretrial affidavit furnished the General Counsel asserted that the
employee working alongside her was either Wanda Myke or Betty Gibson but her
recollection at the hearing as to the identity of her fellow workers was indefinite.
Germaine testified that the Company's production control records establish that
Norma Deaton worked with employees Mary Jane Hughes and Virginia Burton
on the Ford door reinforcement panel on October 22. Their testimony is that they
never heard Skrec say anything related to the Union on the occasion in question.
Skrec denied ever speaking to employees concerning the Union or threatening dis-
charge for support of it.
Making due allowance for Norma Deaton's sympathy toward the Union, I found
her to be a direct and credible witness and I accept her account that Skrec made
the statement to her which she attributed to him.
The Company asserts that even if it be found that Skrec made this utterance it
still would not constitute an unfair labor practice because it is at the most ambigu-
ous and equivocal within the principle outlined in Louisville Chair Co., Inc., 146
NLRB 1380; Augusta Bedding Company, 93 NLRB 211; and Lerner Shops of
Alabama, Inc., 91 NLRB 151.
In Louisville Chair the Board found that a supervisor's statement to a prounion
employee, delivered while shaking his fist at the employee, that he had helped
another prounion employee at work and he could help his replacement and that
"the least mistake you make . you 're going out the door," was an equivocal
statement and not violative of the Act.
In Augusta Bedding, the Trial Examiner found that a general manager 's state-
ment to an employee, referring to what he would get out of the union , to the effect
that "you are just making your gravy much thicker for yourself " was equivocal and
could either be a threat (and unlawful) or a mere reference to the matter of the
expense of union dues . The Board did not disturb the Trial Examiner 's findings.
In Lerner Shops of Alabama , Inc., the Board, reversing its Trial Examiner,
found that the store manager's statements to two employees , on learning that they
had joined the union , that they had stabbed him in the back were too equivocal in
nature to constitute unlawful interference.
It appears that there is nothing equivocal about Skrec's statement insofar as a
relationship among support of the Union , the outcome of the election, and con-
tinued employment is concerned . While his remark might be interpreted as mean-
ing that ' if the Union won the election its supporters would have continued employ-
ment, whereas if it lost its supporters would be discharged , there can be no serious
6 Skree's supervisory status is established by the pleadings.
WAGGONER CORPORATION 1167
doubt but that Skrec related union support to continued employment and on that
basis I find and conclude that his remark constituted interference with and restraint
and coercion of employees in the exercise of their rights under Section 7 of the Act.
With respect to the allegations of paragraph 13(e) of the complaint relating to
coercion concerning the testimony of prospective witnesses the General Counsel
called Bernice Terick an employee of the Company on its night shift. She testified
that the night of March 31-April 1, 1966, while she was assigned to the task of
piling stock for the welding operation , Skrec called her into the office and said
that he had a report that she had threatened one of her sister employees . Terick
asked for the identity of the employee and Skrec refused to tell her. Thereafter,
according to Terick, Skrec informed her that he had prevailed upon Waggoner to
call the meeting of employees which had been held on March 7, 1966, for the pur-
pose of dispelling hard feelings among the proponents and opponents of the Union,
and then Skrec displayed a union pamphlet and said "After this case is over, I'm
going to sue each and every one of you girls who have anything to say about me
and Al."
Skrec 's testimony on his direct examination is that he had a report from employee
Lucy Holland that Erika Compton had been threatened by a prounion employee
and called Terick in and asked her about it He then showed her the union pam-
phlet accusing him and Ratchff of preventing distribution of union literature and
told her that he would find out who were responsible for the untruths therein and
sue them. On cross-examination, Skrec denied telling Terick that he would sue the
person responsible for the lies . Skrec's testimony that he had a report from Hol-
land of a threat by Terick is confirmed by Lucy Holland who impressed me as a
credible witness.
Respondent contends that Skrec 's admitted rebuke of Terick was justifiable in
view of the reports given him, that he had a right to maintain an action under the
rule of Linn v. United Plant Guard Workers et al., 86 S. Ct. 657, and that any
threat was unrelated to continued employment and was not purported to be made
on behalf of the Company.
The evidence clearly reveals that Skrec had a report of Terick 's threats against
another employee and properly rebuked her on the basis of the report. It also
reveals that he went further and introduced the matter of the union leaflet accusing
him of preventing dissemination of union material and that he threatened to sue
for the false statements therein. The question appears to be as to whether the refer-
ence to the "case" referred to in Bernice Terick 's testimony is sufficient to convert
the incident into the offense alleged in the complaint , namely that of coercively
interrogating and threatening employees with respect to their prospective testimony.
The evidence is that the incident occurred fresh upon the report from Holland;
there was no reference to the possibility of Terick 's being a General Counsel wit-
ness in the instant case . Finally any threat was not directed against Terick's telling
the truth but against her telling any lies. Under all the circumstances it appears
that there is not a preponderance of evidence to establish the allegations of unfair
labor practices set forth in Section 13(e) of the complaint.
3. Interference-Al Ratcliff
The complaint alleges in paragraph 13(c) that the Company engaged in inter-
ference through the conduct of Al Ratcliff in threatening employees on or about
October 22 that prounion employees would be discharged if the Union lost the
election . These charges are denied by the Company.
Evelyn Wood, an alleged discriminatee , testified that some day prior to her
termination on December 1, while she and Monez Smith, the other alleged dis-
criminatee , were working on a press , which she believed to be press 15, Ratcliff
came by while they were waiting on stock, rebuked them for not handling the stock
themselves and then said that the ones that were for the Union were going to be
fired. On cross-examination , Wood amended her testimony to attribute to Ratcliff
the statement that those who voted for the Union would be fired, a difference
which she felt to be insubstantial.
Monez Smith , the other alleged discriminatee , corroborated Wood's account
except that she asserted that Ratcliff referred to reprisal if the "election" does not
get in She also thought that the incident occurred at press 15 but, like Wood was
not positive in this. She recalled that she and Wood were the only ones on the
press at the time.
It appears from Germaine's testimony that company records indicate that Wood
and Smith never worked alone on press 15 but that they did work alone on press
17 on October 29, on press 15 on November 15, on press 11 on November 15, and
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on press 16 on November 22. Germaine 's testimony also is to the effect that they
never worked on the same press prior to October 25. I believe Germaine to be a
thoroughly conscientious witness; it is clear , however , from his testimony that he
had no personal knowledge of the locations of employees at any given time. His
testimony reveals that the General Counsel 's witnesses worked together , and with-
out other employees, on press 17 on October 29.
Ratcliff denied ever speaking to any employees concerning the Union. Company
witnesses Wobrock and Ragland who worked on the presses on the day shift testi-
fied that they never heard Ratcliff speak to employees on the matter of the Union.
It does not appear however , that they would necessarily be in a position to hear
any and all utterances to Wood and Smith on October 29.
I do not accept the Company's contention that the nature of the alleged threat
is such that it necessarily referred to the preelection period . I credit the testimony
of Wood and Smith and find that , as alleged in the complaint , Ratcliff approached
them at work and threatened reprisals against union supporters if the Union did
not succeed in securing recognition . Although on October 29 the tally of the ballots
had been made available there was still a period within which objections could be
filed and the representation case was still an open matter . On the basis of all the
evidence and in view of my finding that Wood and Smith were credible witnesses
I find that Ratcliff engaged in the threat alleged in paragraph 13(c) of the
complaint.
4. Demand for pretrial affidavits
The complaint alleges in paragraph 13(d) that the Company, on or about
March 2, 1966 , requested pretrial statements of employees thus interfering with
the Board 's processes and the statutory rights of employees.
Employees Florence Darga and Francine Hensel signed identical letters (General
Counsel's Exhibits 5 and 8 ) on March 2, 1966 , addressed to Board Investigator
David Basso requesting copies of their signed statements previously taken by Basso
in connection with the instant case. Their address was given as "C/O Waggoner
Corporation." On March 15 the Regional Director wrote them requesting a state-
ment as to their reasons for their requests. Under date of March 17, they signed
identical responses referring to the pending hearing and stating that their counsel
had advised them to request copies. These latter communications were signed with
the employees ' home addresses.
It appears that the pretrial statements in question were taken by Basso in Wag-
goner's office at the plant where Basso and the two employees were introduced by
Waggoner. It also appears that the reference in the letters of March 17 to the
advice of "counsel" refers to advice of Attorney John H. Westphal, a company
director and its general counsel and a relative by marriage of one of Waggoner's
sons. It also appears that the letters in question were typed in the company office
by the Company's secretary, Donna Black, from a handwritten draft composed by
Waggoner. The evidence indicates that Darga and Hensel were ultimately allowed
to see their affidavits but were not given copies to keep.
Darga's testimony is that she was informed by the younger Waggoner that man-
agement personnel had obtained copies of their affidavits and that she should be
able to obtain hers . She also testified that she raised with Dr . Waggoner the ques-
tion as to how she could obtain a copy of her statement and that thereafter she
talked on the telephone with Westphal and subsequently signed the letters in ques-
tion . Francine Hensel's testimony is essentially consentaneous with that of Darga.
It appears from the testimony of all witnesses on both sides of the present case
that Darga and Hensel got the idea of obtaining their copies of their pretrial state-
ment from Waggoner himself who testified that after writing for the management
affidavits he called Darga and Hensel into the office and advised them that they
should be able to obtain copies of their statements . Subsequently the letters were
written after Darga and Hensel had some telephone conversations with Westphal.
It appears that Westphal was never separately retained by Darga or Hensel.
The evidence boils down to the conclusion that company management personnel
and legal counsel implanted in Darga and Hensel the idea of obtaining copies of
their statements The evidence indicates that Waggoner singled out Darga and Hen-
sel from the rank-and-file group because their statements had been taken in his
office. The evidence indicates that they were advised that they could obtain their
statements for themselves and that management officials never requested that the
copies be obtained for company use.
Braswell Motor Freight Lines, Inc., 156 NLRB 671, relied on by the General
Counsel and the cases therein cited are distinguishable . Unlike the instant case those
precedents involve situations in which the employer sought to inform himself as to
WAGGONER CORPORATION 1169
the contents of the employees ' pretrial statements furnished the Board agent. While
the use of the Company as the employees ' address on the initial request is some-
what suspicious it cannot be concluded that the evidence herein indicates anything
other than the two employees whose affidavits were taken in Waggoner 's office
were advised that they were entitled to copies of those affidavits and that secretarial
assistance was furnished them in their attempt to obtain such copies . If the Com-
pany wants to furnish free legal and secretarial service to employees that is its own
concern provided that , as here, it is not part of an effort to impede the Board's
processes by ascertaining the contents of such statements or threatening or coercing
employees with respect thereto I recommend dismissal of the allegations of the
complaint in this regard.
C. The discriminatory discharges
1. Evelyn Wood
Evelyn Wood was discharged on December 1 after some 9 years' service with the
Company as a press operator in which period she progressed from a starting rate
of $1.40 to her rate in November of $2.10; it does appear, however , that her
periodic increases in pay were in the nature of plantwide general increases rather
than individual merit adjustments. As noted above she served as the union observer
at the October 28 election and thereby the Company undoubtedly became aware
of her sympathies in the matter of union organization as the Company 's answer
points out It also appears from the testimony of Florence Darga, a veteran
employee of some 16 years ' service with the Company and one of its observers at
the election , that following the Union 's defeat in the election , Wood, alone among
union supporters , kept up the campaign for union support in the plant. Darga's
testimony , undenied by company witnesses , indicates that some of Wood's cam-
paigning after the election took place in Ratcliff 's presence . I find and conclude
that the Company knew of Wood 's active and continuing role in promoting union
organization.
In making this finding , I do not , however, rely on any testimony of Adams to
the effect that he transmitted with his October 4 letters a separate sheet listing the
names of employees serving on the union organizing committee in view of the con-
fused and unconvincing nature of the testimony offered to indicate that such a list
was enclosed, the absence of any reference to an attachment in the letter itself,
the absence of any secretarial subscription , such as "encl." or the like, the complete
failure of Adams to substantiate his assertion that it was his normal practice in
organizing campaigns to forward such an attachment , the failure of the General
Counsel to introduce the list in evidence ,7 and the testimony of Waggoner, which
I credit, that he opened the October 4 letter and it contained no enclosure.
The Company 's answer herein asserts that Wood was discharged for excessive
absenteeism , refusal to work scheduled overtime , disruptive attitude, use of abusive
and profane language in the plant and because her physical condition impaired her
work capability.8
Wood's account of her termination interview is to the effect that 5 minutes before
quitting time on the afternoon of Wednesday , December 1, Ratcliff summoned her
from her press to the office but before she arrived there he met her and said that
he had her checks in full. When she asked the reason for her termination, this
being apparently their mutual understanding of the significance of the two checks,
Ratcliff said that he did not know but that she could discuss it with Waggoner. She
proceeded to Waggoner 's office where the doctor and his son , Donald, were and
asked why she was being fired. Dr. Waggoner , according to Wood, said that it was
for absenteeism and her attitude toward her work. She protested that her absentee-
ism was no worse than others and mentioned specifically one Ann Kaminski to
which the doctor merely replied that Ann Kaminski was a sick girl Waggoner did
not deny her account respecting the reference to Kaminski and Donald Waggoner
did not testify.
7 The two-page letter of October 4 ( General Counsel ' s Exhibit 3, Respondent 's Exhibit
11) was received in evidence . The file of General Counsel ' s exhibits erroneously includes
the list
8 While it appears that shortly after her discharge , Wood secured other employment at
a concern known as Data -Link, there is no indication that her -work duties there are
comparable to those at the Company.
2134-047-67-vol. 16 2- 7 5
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ratcliff's account of the events of the afternoon of December 1, is that when
he gave her her discharge slip in his office she asked why she was being discharged
and he replied that her work was not satisfactory . Then , according to Ratcliff,
Wood asked to see Waggoner and he told her that she could . I credit Wood's
account which is to the effect that Ratcliff told her that he did not know the reason
for her discharge but that she could discuss the matter with Waggoner.9
Waggoner's account of the posttermination interview is that Wood came, Donald
Waggoner being also present in the office, and he went over her file, pointing out
excessive and unexplained absenteeism , which he testified he referred to as the
worst in the plant. He also related her complaints concerning her profanity and her
slowness on the production line. Wood , according to Waggoner , promised to reform
and he informed her that there was no alternative in view of her record but
discharge.
The composite of the testimony of all the witnesses indicates to me that Ratcliff
told her that he did not know why she was being discharged , that Waggoner told
her it was for absenteeism and attitude but, in effect , conceded that Kaminski's
absenteeism record was worse than Wood 's. The testimony also establishes that in
this conversion Waggoner made no reference to Wood 's physical condition as a
factor in her discharge.
Wood testified that in 9 years' service with the Company she had never been
criticized or reprimanded concerning her production or her attitude . 1° She conceded
that she was absent without prior calling in on November 10 for which she re-
ceived a written "Warning Notice" from Ratcliff on November 11. This warning
was labeled "2nd Notice" but when she protested to Ratcliff that it was her first
such notice , Ratcliff, according to Wood , said that he had checked the records and
agreed that it was in fact the first such notice; Ratcliff conceded that it was in fact
her first written warning but asserted that he had given her a prior oral warning
for refusal to lay up stock. In connection with the factor of absenteeism it is noted
that the only portion of company rules which were in fact promulgated by posting
on the bulletin board refers to the factor of "carelessness in attendance -frequent
tardiness or absenteeism without reasonable cause" as a matter of discipline. The
rules state that the discipline for such an offense is written warning for the first
offense, 3 days to a week layoff for the second offense , and layoff or termination of
employment for the third offense. In connection with absenteeism Wood testified,
without contradiction , that she has worked Saturday at straight time when she had
been absent on a weekday.
Wood frequently consulted Waggoner with respect to headaches and he prescribed
medications . While Waggoner testified that he determined that she was increasing in
emotional instability there is no evidence that this was ever mentioned to her as
would normally be expected in view of their frequent medical consultations. I do
not believe that this was a significant factor in the decision to discharge her. Nor
do I believe that profanity entered into the termination since, even allowing for
Waggoner 's testimony which I credit , that he abominates profanity , it appears from
Darga's testimony that Wood was no worse than others in this respect.
Ratcliff testified that following upon his hire in June and during his orientation
period in summer of 1965 he observed that Wood was slow on the production line.
He testified that in August he reported this slowness on the part of Wood , Smith,
and two or three others whose names he could not recall to Waggoner who advised
him of the company policy to work with employees toward their improvement. In
this period Ratcliff testified that he observed excessive visiting of the restroom by
Wood and experienced several instances of insubordination on her part leading up
to an instance of insubordination on October 27 for which Ratcliff proposed to Wag-
goner that Wood be fired . Waggoner vetoed the discharge in view of the fact that
the representation election was scheduled for the following day. As noted above, he
gave her a written "Warning Notice" on November 11 on account of her unexcused
absence of the day before . Also, as noted , above, Ratcliff had a complaint on the
e It appears from testimony of employee Thelma Gillespie , whom I believe to be a
credible witness, that on the morning of December 1, she complained to Rateliff that
Wood had been "needling" her to complain concerning job conditions. On the basis of all
the evidence it does not appear that this was a significant factor in Wood 's discharge.
It could be regarded as a disturbance or as a renewal of concerted activities.
1° Wood conceded that her 1965 absenteeism record was poorer than in prior years.
She also conceded that Ratcliff frequently urged her to speed up but the evidence indicates
that Ratcliff was regarded by all the girls as a "pusher " frequently admonishing them all
to speed up their work on the production lines.
WAGGONER CORPORATION 1171
morning of December 1 from Gillespie and that occasioned his again reviewing
her record and recommending discharge to Waggoner . It should be noted that the
Gillespie complaint was unrelated to any deficiencies of Wood on the production
line. It should also be noted that although Ratcliff testified that he was moved to
recommend discharge of Wood on December 1 by three or four complaints from
girls who did not want to work with her the only substantiating testimony is that of
Marion White who testified that she complained of Wood as slow and not coopera-
tive. This complaint occurred sometime apparently prior to November when White
went on the night shift.
It is true that Wood 's absenteeism record for 1965 appears from Respondent's
Exhibit 5 to be substantial . But there is no refutation of her assertion to Waggoner
that others, specifically Kaminski , was equally bad. It is noted also that the absen-
tee record reflects many instances of early release at the employee 's option."
It is not easy to determine which way the evidence preponderates in this matter
but I conclude that the preponderance is in favor of the conclusion that Wood was
discharged in reprisal for her relatively substantial activity in support of the Union.
In reaching this conclusion I am impressed by her lengthy record of service during
which any weaknesses and absences were condoned . It is also significant that her
absenteeism was never made the subject of a warning until subsequent to the elec-
tion and that she was discharged in violation of established rules calling for layoff
or termination only after first experiencing a written warning , then a short layoff. I
also am persuaded that the Company is shown by the evidence , particularly that
establishing threats on the part of Skrec and Ratcliff to have been hostile to the
Union 's campaign and the employee supporters thereof. I also find support for my
conclusions in the unconvincing nature of the company references to physical disa-
bility on the part of Wood particularly in view of Waggoner 's concern with physi-
cal disabilities affecting safety and the complete absence of any such references
respecting Wood , although it is claimed that her symptoms reflected increasing emo-
tional instability.12
In short the discharge of Wood reflects discharge of a veteran employee who
appears to have been the most outspoken 13 in support of the Union , whose support
continued after the loss of the election, and whose discharge was in violation of
established plant rules, insofar as absenteeism was relied on, and for relatively
trivial difficulties of attitude insofar as that was assertedly a reason. I conclude that
Wood was discharged because of her union activity and that thereby the Company
engaged in an unfair labor practice within the scope of Section 8(a)(3) and (1) of
the Act.
2. Monez Smith
Monez Smith was hired as a press operator in November 1963 and worked on
the day shift . Although Adams testified that her name was included in the list of
members of the organizing committee the evidence does not indicate that this list
was transmitted to the Company. The extent of her organizing activity set forth in
the record appears to be limited to the handing of union literature to Alice Nedrow
in the plant . Nedrow called by the Company did not deny Smith 's testimony con-
cerning this incident but there is no indication that management officials were
aware of it and Waggoner denied any knowledge of her union activity . Further-
more, Darga 's testimony indicates that , unlike Wood , Smith did not continue the
union campaign after the election.
Smith was discharged by Ratcliff shortly before quitting time on the afternoon of
December 10. Her testimony is that when Ratcliff gave her her check and told her
n Monez Smith testified that Wood's absenteeism record was about the same as hers
and that employees with equal or worse records included in addition to Kaminski, em-
ployees Nedrow , Reed, Holland , Kolodjlez , and Fields . Company records were not produced
to refute this testimony.
22 In finding that the Company was hostile to the Union 's organizational effort I do not
rely on its antiunion appeal as set forth in an October 22 letter to employees (General
Counsel ' s Exhibit 12) nor do I rely on testimony of Terick concerning a March 7, 1966,
meeting of employees called by Waggoner to discuss the discharges of Wood and Smith
in which Waggoner , who did not dispute Terick 's testimony , said that if the Company lost
the case, it lost everything , since that appears to be an equivocal utterance , not incon-
sistent with innocence.
'a Dorothy Goatley, the union observer for the night shift at the election , testified that
she wore union insignia in the plant in Skrec's presence and passed out union literature,
all without reprimand or reprisal This is not sufficient to refute the indications of
discriminatory treatment of Wood.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was discharged she asked for the reason and Ratcliff said that he did not know
but that she could talk to Waggoner if she wished. Unable to see Waggoner at that
time, she telephoned on arrival at her home and asked Waggoner for the reason for
her discharge; Waggoner replied that he could not tell and he would have to con-
sult the records. When she talked to Waggoner on the following Monday, he in-
formed her that her discharge was on account of absenteeism and her attitude
toward her work.
Smith's testimony continues to the effect that she protested the charge with respect
to her attitude and said that since the production bind had started she had missed
only 1 day, in addition to the occasion of her brother's illness discussed below.
According to Smith, Waggoner then said that people make mistakes to which she
replied that this mistake could be rectified. Thereupon, according to Smith, Wag-
goner said that since Ratcliff had effected the discharge he, Waggoner, could not
overrule him without losing control in the shop. Waggoner's account of this con-
versation does not dispute Smith's except that he testified that he also mentioned her
production as an added factor in her termination.
General Counsel's Exhibit 19, Waggoner's December 21 letter to Board Agent
Basso, sets forth absenteeism, attitude, and poor productivity as the reasons for
Smith's discharge. It specifically refers to her failure to report for scheduled over-
time on Saturday, November 27 and her excuse for her subsequent week-long
absence that she had visited a sick brother.14 Smith testified however that the reason
for her failure to report for Saturday overtime was that a notice subsequent to the
November 1 posting informed employees that they were no longer to report for
Saturday overtime unless specifically advised to report by their foremen and that she
was not so specifically advised. Her testimony in this respect is contradicted by that
of Ratcliff. I credit Smith's testimony in this area and find that she was not notified
to report for Saturday, November 27 overtime. Ratcliff's testimony that he specif-
ically notified her, although discredited by me, would nevertheless indicate that the
Company by that time no longer had the practice of all hands automatically report-
ing on Saturdays.
On Sunday, November 28, Smith was notified that a brother was to undergo a
serious surgical operation in Missouri. She asked her husband to notify the Com-
pany that she would be absent and she traveled to Missouri to be with her brother.
She returned to work on Monday, December 6. Her testimony is that nothing was
said concerning her week-long absence until Tuesday or Wednesday of that week
when Ratcliff asked concerning her brother's condition." The evidence indicates that
Waggoner, in approving Ratcliff's decision to discharge her, regarded this absence
as inexcusable inasmuch as the crisis was not in the immediate family.
Smith testified, and I credit her testimony, that Ratcliff never reprimanded her
during her employment on account of her attitude or her production. Ratcliff testi-
fied that he had observed slowness on the part of Smith with consequent holding up
of the production line and that he discussed this with her. Ratcliff also testified that
shortly before the discharge he checked her production record but it appears that
the overwhelming bulk of production work is done on operations involving numbers
of employees; it also appears that Ratcliff finally testified that he could not recall the
methods he used to check on her production. This appears somewhat difficult to
understand since Ratcliff at one point of his testimony asserted that low production
was the prime reason for her termination and that her absenteeism was no worse
than that of other employees although it was a factor in her discharge.
The reasons furnished by the Company for the discharge of Smith are confused
and unconvincing in my view. Nevertheless the situation of Smith is, unlike Wood's,
that of a relatively junior employee with a substantial absenteeism record. It also
appears that Ratcliff, unlike his predecessor as general foreman, was somewhat of a
pusher for production and had received reports from employees Nedrow and White
that Smith was a slow worker. In view of the clear indication of the evidence that
Smith's union activity was relatively insignificant and the absence of any evidence
indicating company knowledge thereof, I am impelled to conclude that the evidence
ii In connection with the missing of scheduled overtime it is noted that the November 1
bulletin board notice concerning the production bind and consequent necessity for Saturday
overtime refers to the fact that 12 employees had failed to report the preceding Saturday.
This could mean either that absences were condoned or that there was thereafter a tight-
ening up on absenteeism on Saturdays
n Apparently her husband arranged for notice through emplo3 ee Marks who testified
that after Smith' s discharge she informed Waggoner that she had notified the Company
of Smith's situation.
WAGGONER CORPORATION 1173
does not preponderate in favor of the conclusion that Smith was discharged in repri-
sal for union activity. I shall therefore recommend dismissal of the allegations of
unfair labor practice in her discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company set forth in section III, above, and
there found to constitute unfair labor practices as defined in the Act, occurring in
connection with the operations of the Company 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 such
commerce and the free flow thereof.
V. THE REMEDY
In view of the findings set forth to the effect that the Company has engaged in
unfair labor practices affecting commerce it will be recommended that the Company
be required to cease and desist therefrom and take such affirmative action as appears
necessary and appropriate to effectuate the policies of the Act. In view of the find-
ing that employee Evelyn Wood was discriminatorily discharged it will be recom-
mended that the Company be required to offer her immediate and full reinstatement
to her former or a substantially equivalent position, without prejudice to her senior-
ity or other rights and privileges, and make her whole for loss of earnings suffered
as a result of the discrimination against her in accordance with the remedial relief
principles of F. W. Woolworth Company, 90 NLRB 289, and Isisl Plumbing & Heat-
ing Co., 138 NLRB 716. Since a discriminatory discharge of an employee is an
unfair labor practice which strikes at the heart of rights guaranteed under the Act,16
I shall recommend that the Company be required to cease and desist from any and
all types of interference with employee rights under the Act.
On the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Company 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 meaning of Section 2(5) of the
Act.
3. By threatening employees with discharge as a consequence of the outcome of
the Union's organizational efforts the Company engaged in interference, restraint,
and coercion respecting employee rights under the Act thereby engaging in unfair
labor practices defined in Section 8 (a) (1) of the Act.
4. By discharging employee Evelyn Wood in reprisal for her support of the
Union, the Company engaged in unfair labor practices defined in Section 8(a)(3)
and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Except as specifically found herein the Company has not engaged in unfair
labor practices alleged in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case it is recommended that the Respondent Company, its
officers, agents, successors, and assigns, be required to:
1. Cease and desist from:
(a) Threatening employees with discharge as a consequence of the outcome of
representation proceedings under the Act
(b) Discouraging membership in the Union or any other labor organization by
discharging or otherwise discriminating against employees with respect to hire,
tenure, or terms or conditions of employment.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which appears necessary and appropriate
to effectuate the policies of the Act:
(a) Offer to Evelyn Wood immediate and full reinstatement to her former or
substantially equivalent position without prejudice to her seniority or other rights
16 N.L R.B. v. Entwistle Mfg Co , 120 F.2d 532 (C.A. 4).
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and privileges and make her whole for loss of earnings suffered as a consequence
of the Company's discrimination against her in the manner set forth in the section
above entitled "The Remedy." 17
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, timecards, social security payment
records, and all other records necessary to analyze and give effect to the backpay
requirements set forth herein.
(c) Post at its plant in Troy, Michigan, copies of the attached notice marked
"Appendix." 18 Copies of said notice, to be furnished by the Board's Regional
Director for Region 7, after being duly signed by a duly authorized representative
of the Company, shall be posted immediately upon receipt thereof, and be main-
tained 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 Company to insure that said notices are not altered, defaced, or covered by
other material.
(d) Notify the Board's Regional Director for Region 7, in writing, within 20
days from receipt of this Decision, what steps have been taken to comply with the
provisions hereof.19
It is recommended that the complaint be dismissed with respect to unfair labor
practices not herein specifically found to have been engaged in.
271n this case It does not seem appropriate to provide for the eventuality of service in
the Armed Forces.
19 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. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words, "a Decree of the United States Court of Appeals Enforcing an Order" for the words
"a Decision and Order "
19 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read. "Notify the Regional Director for Region 7, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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 discharge or in any way discriminate against employees on
account of membership in or support of International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America (UAW),
AFL-CIO, or any other labor organization of our employees.
WE WILL offer Evelyn Wood reinstatement with backpay and without preju-
dice to her seniority and other rights and privileges.
WE WILL NOT threaten employees with discharge or other reprisals on
account of activity for or membership in the above or any other labor
organization.
WE WILL NOT in any way interfere with, restrain, or coerce employees in
their exercise of their rights under the National Labor Relations Act, as
amended.
All our employees are free to become or remain members of the above-named
or any other labor organization, or to refrain from such, except as their rights so
to refrain may be affected by an agreement according with Section 8(a) (3) of the Act.
WAGGONER CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(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, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone
226-3244.