Worthington Corp.

National Labor Relations Board - Board Decisions

Apr 9, 1965

151 N.L.R.B. 1512 (N.L.R.B. 1965)

1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone
No. Melrose 3-8921.
The Annin Company, Division of Worthington Corporation and
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO . Case No. 21-CA-5661. April 9. 1965
DECISION AND ORDER
On December 14, 1964, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
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 Decision. He
also found that the Respondent had not unlawfully discriminated
against Donald W. Morton as alleged in the complaint and recom-
mended that that allegation be dismissed. Thereafter the General
Counsel and the Respondent filed exception to the Decision, and
supporting briefs.
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 [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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 Trial Examiner's findings,
conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner and orders
that the Respondent, The Annin Company, Division of Worthington
Corporation, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner David Karasick in Los Angeles,
California, on May 4, 5, and 6, 1964, upon a complaint alleging that The Armin
151 NLRB No. 147.
THE ANNIN COMPANY, ETC. 1513
Company, Division of Worthington Corporation, had engaged in unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended, herein called the Act.'
Upon the entire record, including consideration of briefs filed by each of the parties,
and upon my observation of the demeanor of the witnesses, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Worthington Corporation is a Delaware corporation with its principal office and
place of business in Harrison, New Jersey. The Annin Company, Division of
Worthington Corporation, the Respondent herein, operates a plant in Montebello,
California, where it is engaged in the manufacture, sale, and distribution of valves
and related devices. The Respondent annually purchases and receives at said Monte-
bello plant, directly from points located outside the State of California, goods, mate-
rials, and supplies valued in excess of $50,000 and annually ships from said plant,
directly to points located outside the State of California, products valued in excess of
$50,000. The Respondent concedes that it-is an employer engaged in commerce
and in a business affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada , AFL-CIO, herein called the Union,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Interference, restraint, and coercion
1. The advent of the Union and the Respondent's opposition
The Union began its organizing drive at the Respondent's plant approximately the
first week of May 1963.2 At that time, a union handbill was distributed to the
employees as they left the Respondent's parking lot.
As part of its organizing efforts, the Union distributed a series of newsletters
addressed to the Respondent's employees urging them to join the Union 3
On June 5, the Respondent distributed to all its employees a handbook entitled
"You and Your Job with the Annin Company." Under the title "Solicitations," the
handbook provides in part as follows:
No solicitations of funds, gifts or contributions are to be made without your
supervisor's approval ....
Under the caption "Rules and regulations of Personal Conduct", the handbook
sets forth a number of rules and provides that the infraction of any of them "will be
sufficient grounds for disciplinary action, ranging from a warning to immediate dis-
charge." Among these rules are the following:
12. Posting of notices, printed material, and the distribution of written or
printed literature or articles of any kind on Company property is prohibited
without prior approval.
13. Solicitations of any kind during working hours without specific approval
being granted in advance by management ....
I The complaint, which was issued on March 17 and amended April 22, 1964, is based
upon a charge filed November 18, 1963 At the time of the hearing, this case was con-
solidated with Case No 21-RC-8481 On September 1, 1964, folloin ing the close of the
hearing, the General Counsel filed a motion to sever Case No. 21-RCJ8481 from Case
No. 21-CA-5661 and to remand Case No. 21-RC-8481 to the Regional Director for
Region 21 On the same day, I served on all parties by telegram a notice to show cause
on or before September 14, 1964 why the General Counsel's motion in question should not
be granted No response inas received from any of the parties within the time so alloted
and the motion in question was thereafter granted on September 15, 1964
2 All dates hereafter refer to 1963 unless otherwise indicated
3 The first of these letters, dated June 17, iefers to an earlier letter which does not
appear in evidence The record shows that in addition to that of June 17, similar letter,
Aole went by the Union to the employees on June 27, .litiv 2 and 12, Septenibei 2`l and
October 29
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 26, John Raymer, manager of manufacturing, called together the shop
employees, whom the Union was trying to organize, in 4 separate groups, comprising
13 to 15 employees in each group, and read a speech which urged them not to join
the Union.
From July 1 to September 9 the Respondent gave wage increases to 28 of the 57
employees in the unit which the Union was seeking to represent.
In approximately the middle of July, Earl Worner, general manager of the Respond-
ent, approached Morton while the latter was at work in the plant, told him that he
was aware of Morton's feelings about the Union and stated that he was opposed to a
union because unions were an economic waste, that the existence of a union could
bring about a work stoppage, and that work stoppages had occurred at two other
plants of the Respondent where the employees were represented by a union. Worner
also stated that if the Union got in this would be taken by the Company as a failure
on his part.4
On July 29, Raymer observed three cardboard figures approximately 10 to 12 inches
in length which were suspended from the rafters of the shipping department by cords
around the neck of each effigy and a label designating the figures as "the union trio."
These figures were in the shipping department. He also observed an antiunion sign
displayed near the work station of Eli Gussler, who worked as a degreaser operator.
In addition, a "Vote No" sign was displayed near the work station of Robert Streiten-
berger in the assembly department and a bunch of bananas was hanging from an
inspection sign at the work station of Louie Loera. Raymer directed Wolford,° Guss-
ler, Streitenberger, and Loera to remove the material near their respective work sta-
tions.6 Wolford protested that prounion employees were displaying union matches
which were sticking out of their pockets. Raymer, thereupon, went to Morton and
informed him that he had directed employees who were displaying antiunion signs
and material to remove them and said that if Morton would keep the union employees
from displaying various signs indicating their sympathies, Raymer would keep the
antiunion employees from doing the same thing. When Morton stated that he had
not known that any of the prounion employees had engaged in such activity, Raymer
replied that Ronald Walls, one of the members of the organizing committee, had been
displaying a book of matches, which bore the insignia "AFL-CIO," in his pocket in
a manner in which they could be seen. Morton agreed that he would see to it that
Walls did not continue to display the union matches in question.
In the meantime, between July 17 and September 20, the Respondent sent to its
employees a series of five letters, each of which was signed by General Manager
Worner, in which the Respondent countered the claims made by the Union in its
literature and stated the Respondent's opposition to the Union and to labor organiza-
tions in general.
The letter of July 17 ended with the following paragraph:
Make no mistake about my feelings and that of management. No union is
needed or wanted here at Annin. No union was needed to provide your job, or
this plant or any of the privileges and benefits you now enjoy. No union is
needed to keep them for you.
The letter of August 9 stated as follows:
.. We know that our labor rates are better than most in this area. Our work-
ing conditions are the best Our vacation and holiday policy along with the
total fringe benefit package, is exceptionally good, and as rapidly as is eco-
nomically sound, will improve as we continue to grow. This has been our prac-
tice in the past, and we will continue this plan in the future without pressure,
intervention or coercion from any outsiders. In short, we are now competitive
in our industry, we are fair to our employees and we do not need a union.
We are opposed to the union because we see no additional benefits that the
United Association of Journeymen and Apprentices can provide you. The Com-
pany has given regular and systematic pay increases. The Company will keep
abreast of the trends of the industry and provide additional benefits accordingly.
Morton testified , and Worner denied , that Worner also said that if the Union got in
lie would probably be replaced by another general manager who would be tough and mean
to the employees and would enforce the contract in a rigid and harsh manner I do not
consider it necessary to resolve this conflict in the testimony for the reasons set forth
hereafter in the section entitled " Summary and conclusions as to the allegations of in-
terference , restraint , and coercion "
c Wolford , a leadman in the shipping department , was apparently included in the unit
6 Raymer testified that the dimensions of the sign posted by Streitenberger were 21/. by
3 to 4 feet and the sign displayed by Gussler was approximately 2 feet by 2 feet
THE ANNIN COMPANY, ETC. 1515
From the Company point of view , we resist unions because of the economic
waste involved in endless meetings, letter writing , negotiations and possible work
stoppages.
In its letter of August 16, the Respondent urged the employees to vote against
the Union in the election which was then scheduled to be held on September 24 and
stated, "We do not believe a union can get anything for you that you cannot obtain
for yourselves."
In its letter of September 12, the Respondent statea in part:
We believe our employees are far too intelligent to be taken in by this
union's fantastic claims, when the Company has in the past and will continue
in the future , to provide what it can for its employees.
... Unions apparently think that all things come from a make-believe money
tree somewhere in the "backyard." This union , above many others, is unrealis-
tic in the demands it has imposed upon industry for many, many years. The
industry is caught in a strangle-hold by this union , and cannot free itself from
this "spider-web" clutch.
We, the management of the Annin Company do not intend to ever let this
happen to our Company so that our operations will be hampered and hindered
merely to further the power-hungry desires of the leaders of this union.
Worrier's letter of September 20 stated in part as follows:
... You know that you enjoy better than average rates of pay. Your work-
ing conditions and fringe benefits are excellent , and we are considering improve-
ments in these areas . If there are other benefits that might be extended to our
employees , these certainly can be openly discussed without any union outsiders
getting paid for their "help". Remember, the union can provide you nothing.
Only a successful and competitive Annin Company can give you improved
conditions.
You know that Annin has provided steady employment in the past . We feel
that with your cooperation , steady work in the future would be assured. How-
ever, if we must deal with a third party, such as a union , before we make normal
business decisions , there is serious doubt in my mind as to whether or not we
can continue to grow and provide additional work for more people. You now
have a friendly management , interested in the welfare of the individual. Let's
keep it this way.
You are well aware of the current and recent strikes throughout our Country
Recently we posted a notice on the bulletin board to show you that this Plumbers
union is not above calling a strike-2,000 employees were out of work. The
Government and the employees themselves , suffered as a result of this wild-cat
strike called by the union.
Last year you saw and read of the thousands of man hours lost and millions
of dollars lost as a result of the New York newspaper strike. There also was a
newspaper strike in Hawaii.
In Los Angeles right now, hundreds of workers are out of jobs because of a
strike in the furniture industry.
Under the caption "WHY WE DO NOT WANT A UNION AT ANNIN," the
letter listed eight reasons, among them being the following:
6 A union will require enforcement of rigid work rules.
7. A union will undoubtedly make "no lay offs" and "overtime " things of the
past. The union will try for added jobs ( featherbedding ) to increase the num-
ber of people paying dues and cut down on overtime per their Rules and
Regulations.
8. A union can mean "strike" if the company does not meet their demands
Can you or the company afford a strike ? Nobody wins!
After two further paragraphs the letter continued as follows:
There have been no disciplinary layoffs. The discipline at Annin is very
lax and has been so since the Company 's inception . A union here could force
us to adhere strictly to a contract which requires such action.
We have been reluctant to fire anyone even for cause . Where separation is
inevitable , we have tried to relocate them in other companies . We have been
sensitive to your petitions for changes . A union usually forces a company to
deal coldly with employees who have violated standards of good conduct.
All of you have probably traveled past the U.S. Royal Tire and Rubber
Company, and know that they have been on strike.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The real issue in considering strikes or work stoppages is not whether it can
happen, but rather when it will happen The possibility of strike always exists
when one is dealing with a big international union. Make no mistake about it,
the selfish interests of the union leaders are not the interests of the small local
union.
Strikes cause employees fantastic losses of money. The chart listed below
will give you some idea of the "benefits" that the union can obtain for their
members in order to fulfill union promises. "These Champions of the working
man" are truthfully far more interested in furthering their own power, positions
and collecting your dues than they are in protecting you from abuses of unscrupu-
lous employers. Certainly, I do not believe that the Annin Company can be
placed in such a fantastic, unrealistic category.
If a strike lasts this many
weeks
And an employee
earns an average of
Then if an employee by striking gains the fol-
lowing increases in pay, it would take the be-
low listed number of weeks of work just to
make up the pay he lost while on strike
83 00 per hour
4 cents 5 cents 6 cents
Weeks Weeks Weeks
5 $600 00 375 300 250
10----------------'------ 1,200 00 750 600 500
15 1,800 00 1,125 900 750
20---- ------------------- -___ _ 2, 400 00 1,500 1,200 1 000
This gives you an idea of what labor strife and related problems can can [sic]
cost everyone concerned.
I trust that all of you will vote in a manner which I would expect from the
kind of group of fine people that I believe you to be. Vote "NO" against joining
a big international union ....
The first of several attachments to this letter stated as follows:
We hope we will be able to continue operating at a profit so that all of our jobs
will be secure. There are three companies in this neighborhood who had to
shut down-Harper Reynolds, Union Hardware and Sperry Flour Mills. It is our
understanding that unions were a major contributing factor to this unfortunate
occurrence.
On the after noon of September 23 the employees were notified through the plant
intercommunications system to attend a speech delivered by General Manager
Worner.7
Worrier delivered his speech from a written text which in part was as follows:
The Company has attempted to provide steady jobs, good wages, good working
conditions and greater benefits as we grow. Only through mutual hard work
and cooperation, and not through a union, can this be accomplished.
Should you choose, however, (and we certainly will respect you freedom of
choice) to elect a union as your representative to bargain for you with regard to
wages, hours of work, or working conditions with your management, there are
some other things which I believe you should know.
First, and this I have told you before, the Company will be required by law
to bargain with these union representatives, and we undoubtedly will be faced
with certain demands from the union, and of course, we can only do so much.
If we cannot agree to their demands, then the union may call a strike (and in a
strike, believe me, no one ever really wins). You should know that during a
strike, unemployment insurance benefits cannot be collected; obviously, pay-
checks stop, also, that this type of striker can be permanently replaced. In other
words, you can lose your job-someone else, I am sure, will readily be available
to accept the good wages, benefits and working conditions we have to offer them
at The Armin Company-even though this Plumbers union claims these condi-
tions are "lousy". Ask yourself-Is having a union worth this?
I Werner's speech began at 2.30 and ended at 2 42 p in , 24 hours and 18 minutes
before the scheduled election
THE ANNIN COMPANY, ETC. 1517
Secondly, here is one more point which I wish to make very clear. It has
always been the basic policy, or maybe I should say the philosophy of this Com-
pany, to promote people from within the structure of our own organization,
based entirely upon individual merit. Unions, and this Plumbers union is no
exception, usually base everything upon seniority. We believe in seniority too,
but merit and skill and individual initiative are of primary importance. No
union can give this to you. Only you, through your own hard work and
capabilities can grant this.
Two paragraphs later, the text of the speech was as follows-
Between now and the time of the election tomorrow, I wish you would take
some time to review any newspapers or magazines that you find in your home
and carefully analyze all of the articles in regard to unions. I am sure that if
you read these articles that you will agree with me that there is no advantage
the union can get for you here that you cannot get without them.
If you think I sound strongly against a union getting in here, you are correct.
I don't want to be put in a position of having to waste my time dealing with these
outsiders, when I could best be spending my time on Company projects ....
The speech concluded as follows.
Be assured that no member of management will discriminate against you in
any way whatsoever, regardless of how you vote. All that we ask in this regard
is that you do vote, and vote intelligently-vote "NO".
Thank you for listening to me.
At 10 o'clock on the evening before the election , General Manager Worner posted
on the bulletin board in the plant some 36 newspaper clippings concerning strikes
and threatened strikes by unions and derelictions by unions or union officers. At the
time, Worner also posted on the bulletin board a page from a letter, signed by the
organizing committee of the Union, which had been distributed to the employees as
the left the plant that afternoon, setting forth proposed wage rates. Immediately
above this, Worner posted a handprinted sign which stated: "This unrealistic proposal
entirely subject to negotiations."
On the day of the election, a half hour before the polls opened, pay envelopes were
distributed to the employees. Included in each envelope was a statement "IF THE
UNIONS WIN THIS ELECTION TODAY, YOUR PAY WILL UNDOUBTEDLY
BE AT LEAST $5 A MONTH LESS IN THE FUTURE. DUES AND OTHER
UNION ASSESSMENTS ARE EXPENSIVE." s
The Union lost the election by a vote of 24 to 28 with 1 challenged ballot. On
October 1, 1963, the Union filed objections to conduct of the Respondent affecting the
results of the election .9
2. Concluding findings
a. Allegations of the complaint
The complaint, as amended, alleges that the Respondent violated Section 8(a)(1)
of the Act by the following acts and conduct: distribution of the employees' hand-
book; promulgation of no-solicitation and no-distribution rules; wage increases
granted employees; letter sent to employees; speeches on company time and property;
material posted on the Respondent's bulletin board; the notice enclosed in the
employees' pay envelopes; forbidding employees to wear union badges or insignia;
threats to employees; and interrogation of employees.10
8 Tuesday , September 24, 1963 , was a regular payday and paychecks were normally
distributed at approximately 3 p m On the day of the election , the pay envelopes were
distributed a half hour earlier since the employee responsible for their distribution was
acting as an observer for the Respondent in the election and the polls opened at 3 p in
'As noted above, the proceedings involving the Union ' s objections to the election in
that case ( Case No. 21-RC-8481) were originally consolidated with the present case but
were thereafter severed upon the unopposed motion of the General Counsel following the
close of the hearing.
10-,\o evidence was offered to support the allegation of the complaint that in July 1963
General Manager Worner unlawfully interrogated employees
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Prohibition against employee activity
(1) The employees ' handbook and the no -solicitation and no-distribution rules
The General Counsel contends that the employees ' handbook , which was distrib-
uted by the Respondents on June 5, 1963 , contains unlawful prohibitions on the rights
of the employees to engage in solicitation on behalf of the Union and to distribute
union literature . Under the heading "Solicitations ," on page 37 , the handbook in
question provides as follows:
No solicitations of funds , gifts or contributions are to be made without your
supervisor 's approval . Any general employee subscription endorsed by your
Company for charitable purposes will be announced through Company channels.
In the past we have always subscribed as a group to the local Community
Chest Drive.
Solicitations for purposes of any kind other than approved by the Company
generally create confusion and disrupt working time and are discouraged.
Therefore , there will be no solicitations of any kind by employees during working
hours unless specific approval is granted in advance by the General Manager.
In addition , at pages 43 and 44, the handbook states under the title, "Rules and
Regulation of Personal Conduct ", the following-
The infraction of any of the following rules and regulations will be sufficient
grounds for disciplinary action, ranging from a warning to immediate discharge
12. Posting of notices , printed material , and the distribution of written or
printed literature or articles of any kind on Company property is prohibited
without prior approval.
13. Solicitations of any kind during working hours without specific approval
being granted in advance by management . .
The General Counsel contends that the first sentence of the quoted material appear-
ing at page 37, as well as rules 12 and 13, are unlawful.
I find that the statement in our employees ' handbook that "No solicitations of funds,
gifts or contributions are to be made without your supervisor 's approval" is broad
enough, as the General Counsel contends , to include collection of union moneys,
dues, or fees during nonworking time and that , contrary to the Respondent 's conten-
tion, the employees would not reasonably conclude that the prohibition set forth in
that sentence applied only to charitable contributions . An employee reading the
handbook reasonably would believe that solicitations of funds of any kind either dur-
ing working or nonworking time required his supervisor 's approval To the extent
that solicitations for union purposes during nonworking time are prohibited without
securing the Respondent 's approval , such prohibition is unlawful absent a showing
that it is necessary in order to maintain production and discipline . There was no
such showing in this case . Walton Manufacturing Company , 126 NLRB 697, enfd.
289 F. 2d 117 ( C.A. 5), Harold Miller, et al , Co-Partners, d/b/a Miller Charles and
Company, 148 NLRB 1579.
The Respondent concedes that rule 12 is contrary to the doctrine enunciated in
Stoddard- Quirk Manufacturing Co., 138 NLRB 615. To the extent that this rule
prohibits the distribution of union literature on nonworking time and in nonworking
areas of the plant, it is invalid.
Rule 13, however , restricts solicitations by employees on behalf of the Union only
during working hours. As so limited, the rule is valid Stoddard-Quirk Manufactur-
ing Co., supra . The employees ' handbook was distributed by the Respondent on
June 5, shortly after the union campaign began and its provisions regulating solicita-
tion and distribution of union literature, as above noted , except for rule 13, constituted
unlawful restrictions upon the rights of the employees to organize . The promulgation
of these rules through distribution of the handbook thus constituted a violation of
the Act, whether or not the Respondent was aware of the presence of the Union,
although there is evidence in the record which would support the inference that the
Respondent had such knowledge at the time of distribution.
(2) The wearing of union insignia
As stated previously , on July 29, Manager of Manufacturing Raymer directed sev-
eral employees to remove antiunion signs and figures which had been posted in the
plant and also banned the wearing of union insignia by the employees. It appears
to me that there is a distinction between the wearing of union badges or insignia by
employees and the use of company property for the posting of signs or material of
any kind. An employer is certainly justified in prohibiting the use of its property
THE ANNIN CO-AIPAN I', ETC. 1519
for the posting of signs or other material whether for or against a union But the
wearing of union insignia by employees at work is another matter. Their right to
do so is a protected activity.11 And a rule prohibiting the wearing of such insignia
violates Section 8(a)(1) unless special circumstances show that the rule is necessary
to maintain production and discipline.12 Raymer testified that at the time he spoke
to Morton the Respondent's policy was to prohibit the wearing of union buttons or
insignia during working hours. The Respondent, in its brief, seeks to justify this
policy on the grounds that it was not stated in writing and was not announced to
any employees other than Wolford. The fact that such a policy is announced to only
one employee is not significant, as Raymer himself recognized when he testified that
the employees generally were not informed "except through Barry Wolford." The
union insignia was being worn as part of the Union's efforts to organize the employ-
ees.13 The mere letters "AFL-CIO" appearing on the matchbook cover in question
were not provocative.14 Other than Raymer's conclusionary statement that this inci-
dent was only one in a long series of disputes between both factions, which seemed
to be increasing as time went on, there is no evidence to support the Respondent's
assertion that the prohibition against wearing the union insignia was required in any
way to maintain discipline among the employees. Indeed, Raymer himself testified
that the "policy" he referred to arose, not as a result of any problem of production
or discipline, but because he had informed the Respondent's labor relations consultant
that some of the employees were wearing badges and was in turn advised that it
would be best to stop everybody from wearing buttons. Nor does the evidence fur-
ther support the Respondent's assertion "that Raymer's comments to Morton in this
connection constituted a request-not a directive `forbidding' the wearing of union
insignia-with which Morton indicated freely and voluntarily that he would com-
ply." The reasonable import of what Raymer told Morton on that occasion was that
the employees were not to wear union insignia. The fact that Morton failed to voice
opposition to the prohibition is immaterial , for even if he had agreed to its imposition,
he could not thereby waive a statutory right guaranteed to all of the employees.
Accordingly, I find that there are no special circumstances in this case which justi-
fied the prohibition against wearing union insignia by the employees. Fabri-Tek
Incorporated, 148 NLRB 1623.
c. The wage increases
As noted above, during the period from July 1 through September 9, the Respond-
ent granted wage increases to 28 of the 57 persons then employed in the bargaining
unit.15 By comparison, using the 3-month figure from July 1 through September 30,
the Respondent in prior years granted the following wage increases In 1960, 13; in
1961, 7; in 1962, 14.16
ii Rcpnblic Aviation Corporation v N T R B , 324 U S 793
12 Floridan Hotel of Tampa, inc . 137 NLRB 1484
13 Al L It B v Harrah's Club, 337 F 2d 177 (C A 9).
14Cf United Aircraft Corporation, Pratt 6 Witney di, ci aft Division, 134 NLRB 1532
Caterpillar Tr actor Company, a Cot poration N. Al L R B., 230 F 2d 357 (CA 7) . Boeing
Ait plane Company v.NLRB,217F 2d 369 (C A 9)
151n July 58 persons were employed in the bargainine unit and 57 in August and
September 1903
The employment figures for each of the 3 months in question in prior years were as
follow,
July
1960---- ------------------------------------
1961-------------------------------------------------
1962-- ----------------------
58
50
49
August
58
49
57
September
56
49
59
Though the record shows the date upon which each wage increase was granted, the em-
ployment figures are on a monthly rather than a daily basis so that an exact comparison
of the period from July 1 through September 9 is not possible Howevei, even without
the benefit of the daily employment figures, it is apparent that including the entire month
of September for the years prior to 1953 as a basis for comparison, rather than through
September 9 only, as is the case in 1903, leads to results which are weighted in favor
of the Respondent's position. The number of wage increases granted only through
September 9 in 1960 would be 11 (rather than 13), in 1961 the figure would be 2 (rather
than 7), and in 1962 would be 10 (rather than 14)
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, the Respondent granted wage increases during the 3-month period from the
beginning of July to the end of September to 48 percent of the persons employed in
the bargaining unit in 1963 17 as compared with 25 percent in 1962, 14 percent in
1961, and 22 percent in 1960.18
Gilbert Fairhurst , an employee within the unit , had received a wage increase on
January 1 each year in 1960, in 1961 , and in 1962 , as well as in 1963 . Fairhurst
received another wage increase effective August 5, 1963. He testified , without con-
tradiction , that his foreman , Troy Fondren , informed him that he would be receiving
the wage increase and stated that the Respondent wanted to bring up its wage
average.19
Walter Ekelund was hired by the Respondent on June 25 , 1963. At the time he
was hired he was told by his foreman , Louis Lopez, that he would receive a wage
increase after his 90-day probationary period had ended. When Ekelund later spoke
to Lopez about the matter , Lopez told him there was a possibility that the Respondent
could not give him a wage increase at that time because of the union activities.
Thereafter , however, on August 5, Ekelund was granted a wage increase of 15 cents
per hour. Although the Respondent 's records note this as a merit increase , Ekelund
himself was never so informed and the increase was given to him before a review
of his proficiency on the job was made by his foreman.
I find that during the months of July, August , and September, 1963, the Respond-
ent granted 28 wage increases to employees who would be eligible to vote in the
election on September 24, that it granted these wage increases because, as Foreman
Fondren had stated , the Respondent wanted to bring up its wage average and that it
granted such wage increases to its employees as a means of convincing them, as the
Respondent had stated in its letters to them and in Worrier 's speech on the eve of the
election that they would receive greater benefits without a labor organization and as
an inducement to vote against the Union.20
1, .As noted above, the period considered during 1963 ends on September 9 rather than
September 30.
"The General Counsel contends not only that the total number of wage increases
granted during this period of time was disproportionate but that the number of them
which represented the second time during the course of the year that an employee had
recened an increase was also disproportionate Twelve of the twenty -eight wage increases
in question in 1963 were the second received during the course of that year by the re-
spective employees An examination of the records furnished by the Respondent shows,
however , that during the year 1960 , 24, during 1961, 10, and during 1962, 8 employees
in the unit received more than 1 wage increase during those years I do not believe
there is sufficient disparity between the figures for 1963 and those of prior years to
justify the assertion advanced by the General Counsel . The General Counsel contends
that the Respondent granted an abnormally large number of individual wage increases
between July 29 and September 8, 1963 I have, however, used the period from July 1
through September 30 for comparativ e purposes because these 3 months seem to me
to be more representative and significant in relation to the beginning of union activity in
May and the election on September 24 All of the wage increases considered during this
period in 1963 were granted before September 24 Because I consider this 3-month pe-
riod to be significant , I have compared it with this same period in prior years and have
not made comparisons based upon the wage increases granted in any single month, as the
Respondent has done in its brief However , even if July were to be omitted and the wage
increases granted only in August and September were to be considered , my conclusion
would be the same Thus , during the month of August and September , the Respondent
granted wage increases in 1963 to 19, in 1962 to 7, in 1961 to 5, and in 1960 to 9
employees in the unit The average number of employees in the unit during this period
in 1963 was 57, in 1962, 58. in 1961 , 49 ; and in 1960 , 57. Thus, during this period
the Respondent granted wage increases to 33 percent in 1963 , 12 percent in 1962,
10 percent in 1961 , and 15 percent in 1960 of the employees in the unit On the basis
of these figures, I would arrive at the same conclusions, namely , that the wage increases
granted during August and September 1963 were disproportionate as compared to prior
years
19 171 ondren was not called as a witness by the Respondent
The complaint also alleges that about August 11 , 1963 , the Respondent granted wage
increaases to employees who had openly demonstrated their opposition to the Union As
noted above, Streitenberger , Wolford , Gussler , and Loera had posted various antiunion
signs and symbols in the plant which Raymer had ordered removed on July 29 Of these
four employees , Streltenberger and Wolford received wage increases effective on July 29
and August 5, respectively Thus, Streitenberger received a wage increase effective the
very (lay upon which Raymer became aware of the antiunion sign at Streitenberger ' s place
THE ANNIN COMPANY, ETC. 1521
d. Letters, speeches, notice to employees , and bulletin board postings
The Respondent , in Worrier's letters of July 17 and August 16 , told its employees
that they did not need a union since a union could secure nothing for them; in the
letter of August 9 it stated that unions were an "economic waste" requiring "endless
meetings , letter writing , negotiations and possible work stoppages "; in the letter of
September 12 it declared that the Union , "above many others," was "unrealistic" in its
demands and had caught the industry in a stranglehold from which it could never free
itself but that the Respondent did not intend ever to let this happen ; in the letter of
September 20 it asserted that there was serious doubt whether the Respondent could
continue to grow if it had to deal with the Union ; that the Union would "require
enforcement of rigid work rules," would eliminate overtime , and would require
employees to be laid off, contrary to the Respondent 's policy in the past; and that a
strike and consequent loss to the employees of wages and possibly their jobs was
inevitable since the "real issue in considering strikes or work stoppages is not whether
it can happen , but rather when it will happen."
Thus, in its letters and in Worrier 's speech on the day of the election the Respondent
told its employees not only that a union would cost them money for which they
would receive nothing in return and that it would hamper the continued growth of
the Respondent but that selection of the Union would result in less favorable and
more onerous working conditions , would eliminate overtime , would require institu-
tion of a layoff policy, and would inevitably lead to a strike . The notice included in
the employees ' pay envelopes on the day of the election extended the threat of loss
to the employees in the event they selected the Union by the statement that their pay
would "undoubtedly be at least $5.00 a month less in the future." 21 This statement
was susceptible to the reasonable interpretation by the employees that choice of a
union by them would in and of itself result in a reduction in their wages of $5 each
month. This was a misstatement of fact for only those employees who chose to join
the Union if it were selected as their bargaining representative would be liable for the
payment of dues unless , in the course of bargaining , the Respondent and the Union
would agree upon a union-shop clause in their contract which would require member-
ship on the part of all employees within the unit. The warning of a reduction in net
wages should the Union win the election was in sharp contrast to the wage increases
the Respondent had granted 48 percent of the employees in the unit during the height
of the Union's organizing drive in the 3-month period preceding the election, because,
as Foreman Fondren told employee Fairhurst , the Respondent wanted to bring up its
wage average.
The possibility of a strike , stated in the letter of August 9 and reiterated in the
letters of September 12 and 20, was elsewhere in the latter letter stated as an inevitable
fact, for, in the words of that letter , the "real issue in considering strikes or work
stoppages is not whether it can happen, but rather when it will happen." The same
theme, stressing the inevitability of a strike should the Union be chosen, was implicit
in the statement that this Union particularly was unreasonable in its demands and had
caught the industry in a stranglehold but the Respondent did not ever intend to let
this happen . The Respondent was thus telling its employees that the Union would
make unreasonable demands, that the Respondent would resist those demands, and
that the result would be a strike. This theme was repreated by Worner in his speech
to the employees on the day before the election when he told them that if the Union
were selected it would undoubtedly make certain demands upon the Respondent,
that the Respondent could only do so much, and that if it could not agree to the
Union 's demands then the Union might call a strike.
of work. Normally , one would expect that a wage increase would be initiated before
the date upon which it became effective , although this need not necessarily be true How-
ever , the record does not show when the wage increase for Streitenberger was initiated
I do not believe that the record , therefore , justifies the inference that the Respondent
was unlawfully motivated in granting the wage increase to Streitenberger at that time.
As for Wolford , the record shows that his last wage increase had been granted to him
on September 10, 1962, and he had not thereafter been granted a wage increase , although
in April 1963 he had been promoted fioni assistant leadnian to shipping leadman. Neither
Loera nor Gussler was granted a wage increase on or after July 29 and before the elec-
tion. Upon the basis of the foregoing , I find that the allegation of the complaint to the
effect that on or about August 11 , 1963 , the Respondent granted wage increases to em-
ployees who had openly demonstrated their opposition to the Union has not been sustained
by a preponderance of the evidence
21 The Trane Company ( Clarksville Mfannfactur ing Davision ), 137 NLRB 1506 ; cf. The
Mosier Safe Company, 129 NLRB 747.
753-133-66-vol 151-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the employees held any hope that the Respondent's attitude toward the Union's
demands would change when actually confronted with them, it was dashed on the
day of the election when they saw on the bulletin board, in full view of the polling
place, the wage proposal contained in the union leaflet distributed the night before
beneath Worner's hand-lettered comment: "This unrealistic proposal entirely sub-
ject to negotiations." The fact that in this speech Worner spoke of the possibility of
a strike being called by the Union did not eradicate from the minds of the employees
the statement which had appeared in his letter to them 3 days before in which he had
talked of the inevitability of a strike in terms of when it would happen nor did it wipe
out the repeated statements in his letters to the employees that a strike was a normal
consequence of selecting a union as a bargaining representative. This impression was
hammered home by the newspaper clippings placed on the bulletin board in the plant
by Worner the night before the election. Of the 36 newspaper articles appearing on
the bulletin board, 22 dealt with actual or threatened strikes and the remainder with
various derelictions by unions or union officials. In his speech to the employees on
September 23, Worner warned them that they could lose their jobs if they struck to
enforce the demands of the Union. This constantly reiterated theme was designed to
fill the employees with fear and futility. Under these circumstances, it was reason-
able for the employees to conclude that if they selected the Union as their bargaining
agent the result would be that their working conditions would be less favorable, that
the Union would make unreasonable demands to which the Respondent would not
submit, and that as a consequence the Union would call a strike which would imperil
their jobs.
I therefore find that by the foregoing statements contained in Worner's letters,22
his speech 23 delivered to the employees on the day before the election, the notice
enclosed in the pay envelopes of the employees on election day, and the material
posted on the bulletin board on the eve of the election together constituted a threat
to the employees of economic loss and of less favorable working conditions if they
selected the Union as their bargaining representative.24
e. Summary and conclusions as to the allegations
of interference, restraint, and coercion
Upon the basis of the foregoing and upon the record as a whole, I find that by
distributing the employees' handbook on June 5, which contained the unlawful restric-
tions, above noted, regarding the rights of the employees to engage in union solicita-
tion and the distribution of union literature and by prohibiting the employees on
July 29 from wearing union insignia during working hours; by granting wage increases
from July 1 through September 9 to 48 percent of the employees in the unit in which
the Union was seeking to represent the employees; and by threatening 25 the employees
with economic loss and less favorable working conditions in the statements contained
za I do not agree with the contention, advanced by the General Counsel in his brief,
that the statements in Worner's letters that changes in wages and working conditions
could be discussed without intervention from any "union outsiders" and that the "union
can provide you nothing" when considered together reasonably may be construed as "a
threat that Respondent would not negotiate benefits or working conditions with the
Union and would provoke a strike as a means of replacing the employees because they
had chosen the Union "
23 1 do not iegard Raymer's speech on June 26, either in its context or its timing, to
have exceeded the bounds of permissible expression.
ii Texas Industries, Inc, et at., 139 NLRB 365, 368. See also Harold Miller, et at.,
Co-Partners, d/b/a Miller-Chailes and Company, 146 NLRB 405 Cf. Texas Industries,
Inc, et at., 139 NLRB 365
s I do not believe that the statements made by Worner to employee Donald Morton in
approximately the middle of July fall in this category. Worner on that occasion stated
his opposition to a union and further stated that unions were an economic waste, that
they could lead to strikes, and that strikes had occurred at two other plants of the Re-
spondent where the employees were represented by a union. Morton also testified, and
Worner denied, that Worner also said that if the Union got in he would probably be
replaced by a general manager who would be tough and mean to the employees and
would enforce the contract in a rigid and harsh manner. Even if it were to be assumed
that the remark was made as testified to by Morton, I do not believe that Worner's
statement of a probable result in this context can be considered as a threat I also
consider of the same character, and therefore permissible, a statement made before the
election by Worner to employee Ernest Gafiin that if the Union proved too costly there
was a possibility that the Respondent would be forced to close down.
THE ANNIN COMPANY, ETC. 1523
in the letters of July 17, August 9 and 16, and September 12 and 20, in Worrier's
speech to the employees the day before the election, in the material posted on the
bulletin board on the eve of the election, and in the notice enclosed in the pay
envelopes of the employees immediately preceding the election, the Respondent inter-
fered with, restrained, and coerced the employees in the exercise of the rights guaran-
teed them in Section 7 of the Act, thereby violating Section 8(a) (1) of the Act.
B. Discrimination
1. Abolition of the shipping coordinator's job and termination of Donald Morton
a. The facts
Donald W. Morton was first employed by the Respondent in March 1956 as a clerk
in the order writeup department. In October 1957 he was made a leadman in the
shipping department where he was given a substantial increase in pay and greater
responsibility. In this position he supervised the activities of five or six employees
and in turn reported to Plant Services Supervisor Louis Lopez, and John Haymer,
manager of manufacturing.
On several occasions during the first half of 1962, both Raymer and Lopez expressed
their dissatisfaction to Morton with the way in which he was doing his work.
On April 11, Lopez told Morton that he was not satisfied with the manner in which
Morton was performing his job, that a new job of shipping coordinator had been
created, and that Morton had the choice of accepting the new job or leaving the
company.26 Morton accepted the job which carried the same rate of pay as shipping
leadman.27 Some of the duties that had belonged to the shipping leadman were given
to the shipping coordinator and other duties were added. Among the duties assigned
to the job was the function of inspection which Raymer added because he felt that
the other duties were not sufficient to fill out an employee's time. Raymer testified
that he was skeptical of the newly created position and did not feel it was necessary.28
As noted above, the Union began its organizing drive at the Respondent's plant in
approximately the first week of May 1963. On May 14, 1963, Morton signed a union
authorization card. In a letter dated July 24, 1963, the Union notified the Respondent
that Morton and two other employees, Lowell Fincher and Ronald Walls, were
"official volunteer organizers" and were working on behalf of the Union at the
Respondent's plant. Sometime before this, however, John Raymer, manager of
manufacturing, who had become aware of the Union's organizing drive by the last
week in May or the first week in June, heard that Morton was a member of the
Union's organizing committee. From early June until the election, which was held
on September 24, union meetings were held nearly every week in one of two coffee
shops in the vicinity of the Respondent's plant. Morton attended all of these meet-
ings with the exception of the time he was on vacation during August.
In June or July, Morton had a discussion with General Manager Worner regarding
complaints Morton had about the shipping coordinator's job. Among other matters,
Morton objected to the inspection functions of the job which he told Worrier he felt
that he was not qualified to perform and also that they occupied an inordinate amount
of his working time, and he also complained that he did not have certain equipment
which he felt he needed for the job. A further meeting attended by Morton, Worner,
Raymer, and Lopez was held on August 4 at which time Morton expressed these,
D' Raymer testified that at this time he considered three alternatives with respect to
Morton. One was to discharge him, the other was to give him the position of a shipping
clerk, and the third was to transfer him to another location. He further testified that
he decided against making Morton a shipping clerk because this would mean that he
would be working under Barry Wolford who succeeded Morton as shipping leadman and
who formerly had been one of the employees responsible to him and that a demotion under
such circumstances would not work out ; and that consideration had been given to trans-
ferring Morton to a job similar to the one he had originally held in the sales department
but that this was not done because the sales manager was not in favor of it.
"'After Morton became shipping leadman he received several wage increases, the last
two of which were granted on October 17, 1960, and January 29, 1962. On each of these
occasions he received a wage increase of 15 cents per hour. After the last of these
increases, Morton received $2 75 per hour until the time he last worked for the Respond-
ent on November 1, 1963, as noted hereafter
Is The idea of creating the shipping coordinator's job was that of Lopez and Its pur-
pose was to accomplish a closer coordination between the sales department and the
shipping department in relation to returned material and "show equipment" which con-
sisted of demonstration model- exhibited by the Respondent in various trade shows.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among other, complaints he had.29 Lopez previously had agreed with Morton that
the inspection duties should be eliminated . Raymer had not agreed because he felt
it had not been given a fair trial . At this meeting , however, Raymer stated that
inspection had been his idea and he thought it had been a good one but since everyone
was against it and the sales department was complaining about orders being slowed up
that he would go along with Morton 's suggestion . On August 12, the inspection
functions were eliminated from the shipping coordinator 's job. Morton had estimated
that these functions had occupied 95 percent , while Raymer estimated that they
required 80 to 90 percent , of Morton 's time.
From August 19 to September 2, Morton was absent from the plant . About the
first of October, Raymer concluded that the job of shipping coordinator had not
developed in a satisfactory manner, and that it was not necessary . He told Lopez
that he was considering the abolition of the job and asked him for his recommenda-
tions for elimination or redistribution of the duties connected with the position.
Lopez gave such recommendations to Raymer about the middle of October but
stated that he was opposed to abolishing the job and felt that it provided a useful
function.
About October 29 , Raymer came to the conclusion that a sufficient trial period had
been given the job, that Morton had not shown sufficient imagination and initiative
to develop the position , and that some of the duties connected with the job could
be eliminated while the remaining ones could be performed by other employees.
On November 1, at the end of the working day, Raymer called Morton to his office,
told him that he had decided to abolish the job of shipping coordinator , and since
there was no other opening at the time that Morton was therefore laid off. Raymer
further stated that this had nothing to do with union activity , that he would be glad
to recommend Morton for a job, and would be glad to consider him for rehire in the
event that a job opening came up in the future . As Morton left Raymer 's office, he
saw Lopez and told him what had occurred . Lopez stated that he did not know this
was going to happen and said he would speak to Raymer and ask him to reconsider.
While Morton waited, Lopez went into Raymer's office . He returned a few minutes
later and stated that he had been unable to make Raymer change his mind.
b. Co'zcluding findings as to the allegations of discrimination
The General Counsel contends that the action of the Respondent in abolishing
Morton's job was discriminatory . The record in this case shows that the Respondent
was opposed to the Union , that it knew that Morton was the leading proponent of the
Union in the plant , and that it terminated his employment after the Union had filed
objections to the election , without prior warning and without discussing the matter
with Morton 's immediate supervisor who had previously expressed his opposition to
abolishing the job Morton held. The General Counsel has thus made a strong prima
facie showing of discrimination.
The Respondent , however, contends that the shipping coordinator 's job was
abolished only after it had been given a fair trial and had shown itself to be unnec-
cessary and that Morton 's termination was a matter of business judgment unconnected
with any consideration of union activities.
The General Counsel asserts that, although a significant change was made in the
shipping coordinator 's job with the elimination of the inspection functions on Au-
gust 12, the fact that Morton was absent from work from August 19 to September 2,
and Raymer began considering abolition of the job a little over a month later wsa un-
reasonable as compared to the approximately 4 months' trial period given to the in-
spection functions before they were deleted . The inspection functions , which were
eliminated at Morton 's request , occupied from 80 to 95 percent of his time. I am
unable to say that the period from August 12, when these functions were abolished, to
October 1 , when Raymer began to consider whether the job should be eliminated,
was so unreasonably short that it did not constitute a fair trial. This was over 5 weeks,
not considering the time Morton was absent from work . Moreover , the final decision
to abolish the job did not occur until almost a month later. Although it is true that
Raymer acted against the recommendation of Lopez , the foreman immediately in
charge of and most familiar with the job, he explained that he felt that Lopez's position
At this time, Morton requested that he be assigned a chair, a larger stamp pad, a
stapler, marking devices, dividers for his worktable, a locked drawer for his inspection
stamp , and a telephone After the meeting, Raymer instructed Lopez to provide Morton
with all of the equipment he requested except the table dividers and the telephone
THE ANNIN COMPANY, ETC . 1525
was affected by the fact that this job had been his pet project. Raymer testified that
he felt that Morton had failed to develop the shipping coordinator's job with sufficient
imagination and initiative. While it is true that he had not made this express state-
ment to Morton, he had written to Morton on October 29, in reply to a report sub-
mitted by Morton some time earlier, stating that Morton's suggestions appeared to be
merely a repetition of the manner in which the operations of the job were supposed to
be performed at that time.30
The General Counsel contends that, even if the abolition of the shipping coordi-
nator's job was motivated solely by economic considerations, the Respondent discrimi-
nated against Morton, whom Raymer admitted was an experienced, talented, and well
educated employee, by failing to place him in another job. The Respondent contends
that it could not place Morton in another job because there were no vacancies and
because it has a policy against "bumping." 31 Raymer testified that he had considered
returning Morton to a job in the shipping department but he felt that this would not
work out as Morton would be working under Wolford who was then in charge.
Previously Wolford had been an employee whom Morton had supervised when he
had been leadman in the shipping department. He further explained that he had not
asked Morton whether or not he wanted a job in the shipping department because he
believed that Morton's pride had been considerably hurt when he was removed as
leadman in the shipping department and he felt that offering Morton a minor job in
the same department would be insulting. In like manner, the position as clerk in the
sales department was not available since the supervisor of that department had
objected to the suggested return of Morton at the time the shipping coordinator's job
was created in April. Raymer further testified that he regarded Morton as under-
qualified for certain skilled jobs in the machine shop and over-qualified for any of
the lesser-rated jobs.
These considerations do not appear to me to be so unreasonable as to be unworthy
of credence 32
In summary, the position of shipping coordinator was created and Morton was
transferred to the job before he joined the Union or became active on its behalf.
Thereafter, the inspection functions of the job were eliminated at Morton's request.
These functions admittedly occupied from 80 to 95 percent of his working time. It is
difficult for me to see how the remaining duties could be expected to occupy an
employee full time 33 It is equally difficult to regard a reassignment of those duties to
other employees as unreasonable.
30 The General Counsel contends that this position of the Respondent Is refuted by the
fact that Morton on his own initiative was working on a project tabulating airfreight rates
to different points in the United States to which the Respondent often made shipments
and also a project to better systematize the records on returned materials . I cannot con-
clude from this that Morton was displaying that degree of initiative and imagination
which the Respondent felt was necessary in the performance of the job.
^ The Respondent, as proof of this policy, relies on the statement in the employees'
handbook that an "employee's length of service is applied on a job classification
basis . . ." which is followed two paragraphs later by a statement that length of service
ranks second in importance to merit and ability in the layoff of employees . I do not agree
that the statement so relied upon constitutes such proof but in view of the findings made
hereafter, I regard the matter as irrelevant
12 Morton's termination was designated a layoff rather than a discharge , even though
Raymer testified that he had no expectation of recalling Morton in the foreseeable future.
An employee laid off retains his seniority for a year , after which it is lost if he is not
recalled within that time. While this seems a strange term to use in ending an employ-
ment which to all intents and purposes amounted to a discharge , it does not warrant a
different conclusion as to the Respondent 's motivation
3s Morton testified that, after the election, he was ignored and given no assistance by
his superiors which would enable him to develop the job following its revision on August 12
and that as a result he could see that the job was going to die out . In this connection, he
testified that in the middle of October he saw Worner and said he had not seen much of him
lately and that Worner replied, "That's right and you are not going to " Worner denied
that this conversation had occurred. I regard it as immaterial, however, because even if it
had, I do not believe that the statement attributed to Worner would warrant the inference
that Morton's termination was unlawful. Though he apparently made no protest to the
Respondent, Morton may have been correct in his belief that he was being ignored and not
given assistance in the job. But the inference that this may have been due to the difference
of opinion which had always existed between Raymer and Lopez as to the necessity of
having the job at all is as equally consistent with the facts as is the inference that it
was due to Respondent 's antagonism toward Morton.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the timing of Morton's termination and the circumstances surrounding it, as
noted above, raise grave doubts as to the validity of the Respondent's motivation, I
do not believe they are sufficiently strong to overcome the plausibility of the explana-
tion offered by the Respondent for the abolition of the job and the termination of
Morton's services. Accordingly, I shall recommend that so much of the complaint
as alleges that Morton was discriminatorily terminated be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, as 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, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act
and is 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 interfering with, restraining, and coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. It has not been established by a preponderance of the evidence that the Respond-
ent, in terminating the employment of Donald W. Morton, engaged in unfair labor
practices within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that The Annin Company, Division of
Worthington Corporation, Montebello, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, or enforcing a rule prohibiting employees during
nonworking time from engaging in union solicitation on the Respondent's property.
(b) Promulgating, maintaining, or enforcing a rule prohibiting employees during
nonworking time from distributing union literature in nonworking areas of the
Respondent's plant.
(c) Promulgating, maintaining, or enforcing a rule prohibiting its employees from
wearing union insignia.
(d) Threatening employees with economic loss or less favorable working condi-
tions if they designated a collective-bargaining representative.
(e) Granting wage increases to employees for the purpose of inducing them not
to join, assist, or designate United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, or
any other labor organization (provided, however, that nothing in this Recommended
Order shall be construed as requiring the Respondent to vary or abandon any wage
increases when it has heretofore granted its employees).
(f) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of their right to self-organization, to form labor organizations, to
join or assist the aforenamed Union or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the Act.
THE ANNIN COMPANY, ETC. 1527
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its plant at Montebello , California , copies of the attached notice 34
marked "Appendix ." 35 Copies of said notice , to be furnished by the Regional
Director for Region 21, shall, after having been duly signed by Respondent 's repre-
sentative , be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 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 such notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 21, in writing , within 20 days of the
date of the receipt of this Decision , what steps the Respondent has taken to comply
herewith.36
I further recommend that, unless within said period of 20 days, the Respondent
notify said Regional Director that it will comply with the foregoing Recommended
Order, the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
84 Since notices are customarily framed in the language of the statute and because their
technical nature are often difficult for employees to understand, I am recommending that
the notice in this case embody the simplified form which appears in the Appendix.
as In the event that this Recommended Order be adopted by the Board, the words "As
Ordered by" shall be substituted for the words "As Recommended by a Trial Examiner of"
in the notice In the further event that the Board's Order be enforced by a decree of
a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order of" shall be substituted for the words "As Ordered by."
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act.
WE WILL NOT adopt on enforce a rule prohibiting our employees during their
nonworking time from engaging in union solicitation.
WE WILL NOT adopt or enforce a rule prohibiting our employees during their
nonworking time from distributing union literature in nonworking areas of the
plant.
WE WILL NOT adopt or maintain a rule prohibiting our employees from wear-
ing union buttons or insignia.
WE WILL NOT threaten our employees with economic loss or with less favorable
working conditions if they choose a union to represent them.
WE WILL NOT interfere with the rights of our employees under the law by
granting them wage increases for the purpose of inducing them not to join or
assist a union. However, the law does not require us to withdraw any wage
increases which have been granted.
Our employees have the right to join or assist , or to refrain from joining or
assisting , any union.
THE ANNIN COMPANY, DIVISION OF WORTHINGTON 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.
Information regarding the provisions of this notice or compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board, 840
South Broadway, Los Angeles, California, Telephone No. 688-5204.