Zatko Metal Products Co.

National Labor Relations Board - Board Decisions

Sep 27, 1968

173 N.L.R.B. 27 (N.L.R.B. 1968)

ZATKO METAL PRODUCTS CO
Zatko Metal Products Co. and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America , Region 2. Case
8-CA-48011
September 27, 1968
DECISION AND ORDER
On May 9, 1968, Trial Examiner Thomas A. Ricci
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging
Party filed exceptions and supporting briefs to the
Trial Examiner's Decision. The Respondent filed a
brief in support of the Decision.
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 and the entire record in this case,
including the exceptions and briefs, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
1 A related representation proceeding , Case 8-RC-6698, was
consolidated with the instant case for purposes of hearing . Following
issuance of the Trial Examiner 's Decision , the Charging Party filed with
the Regional Director exceptions to the Trial Examiner 's recommenda-
tion that the challenges to the 19 ballots be sustained On August 27,
1968 , the Charging Party withdrew its exceptions Thereafter, on
August 28, 1968, the Regional Director (by virtue of an Agreement for
Consent Election which leaves to him the final determination of
postelection matters) issued a Supplemental Decision, Order, and
Certification of Election adopting the recommendation of the Trial
Examiner in Case 8-RC-6698 The representation case was not
formally severed from the instant case. We hereby sever Case
8-RC-6698 from the instant proceeding . Accordingly, we review here
only those matters raised by the complaint in Case 8-CA -4801, and
are hereby, in effect , adopting , pro forma, the Trial Examiner 's finding
that the laid-off employees had no reasonable expectancy of employ-
ment at the time of the election.
TRIAL EXAMINER'S DECISION AND RECOMMENDATION
ON CHALLENGES AND OBJECTIONS
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner These cases, involving
challenges and objections to the results of an election, and unfair
labor practice charges, were heard before the duly designated
Trial Examiner on February 19 and March 12, 1968, at
173 NLRB No. 6
27
Cleveland, Ohio The complaint (Case 8-CA-4801), against
Zatko Metal Products Co , herein called the Respondent or the
Company, was issued on December 21, 1967, on charges filed
on October 24, 1967. The election, which gave rise to the
challenges and objections, was held on April 25, 1967. A
substantial part of the record here consists of testimony and
exhibits received by a Board Hearing Officer as a supplemental
aspect of the representation proceeding (Case 8-RC-6698), in
the course of a hearing on challenges and objections held on 9
hearing days spanning the period July 25 to December 11,
1967. After the hearing before the Hearing Officer had been
closed, all parties stipulated that the entire supplemental
proceeding be transferred to, and considered by the Trial
Examiner designated for the complaint case, the Regional
Director consolidated the two cases, representation and unfair
labor practice, for single hearing and decision, and the parties
submitted, as evidence now, the testimony and exhibits
received in the representation case 1
The issue raised by the complaint is whether the Respond-
ent unlawfully discharged 19 employees in violation of Section
8(a)(3) of the Act These are the same 19 employees who cast
challenged ballots in the election, and the validity of these
challenges is an issue presented in the representation case.
Briefs were filed by the General Counsel and the Respondent.
Upon the entire record, and from my observation of the
witnesses who appeared before me as Trial Examiner, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Zatko Metal Products Co , an Ohio corporation, has its
principal office and place of business in Cleveland, Ohio, where
it is engaged in the manufacture and sale of automobile
pulleys. In the course of its business operations the Respond-
ent annually ships goods and products valued in excess of
$50,000 from its Ohio place of business directly to points
located outside that State I find that the Respondent is
engaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act to exercise jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America. Region 2, AFL-
CIO, herein called the Union, is a labor organization within the
meaning of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES AND
THE VALIDITY OF THE CHALLENGES
The Case in Perspective
The two questions presented here for decision-(1) the
validity of the 19 challenges and (2) the legality of the alleged
1 At the close of the hearing before the Trial Examiner, the parties
filed a stipulation of fact with respect to a number of statements made
by various counsel on the record in the supplemental representation
proceeding. The stipulation , marked Joint Exhibit 3 , is hereby received
in evidence and made part of the record.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of these same employees-are so intimately inter-
woven that it is not possible separately to report either the
facts concerning each issue or the merits of the two disputes.
The consolidated case as a whole can only be understood upon
an integrated set of facts, with the conflicting contentions
always touching upon virtually all aspects of a developing
situation covering an 8-month period.
= Apart from minor conflicts in testimony relating to only a
few employees' assertions that they sought reemployment,
there is virtually no disagreement as to what happened and
when. The real burden of the prosecution side is that, despite
objective appearances, the employer was driven by an evil
intent The first act which, according to the General Counsel,
set the stage for the eventual commission of a gross unfair
labor practice, came at the April 25 election, when the
Company challenged the ballots of 19 employees, all of whom
had been laid off a month earlier, on the ground they did not
have a reasonable expectancy of recall to work, and were
therefore ineligible to vote. Indeed the complaint literally
alleges that the Respondent that day "terminated the employ-
ment" of each of these persons. These 19, individually named
in the complaint, were among 24 production employees laid
off on March 31. On that day the complement of production
employees, the group involved in the Union's organizational
campaign and which voted a month later, went from about
125 to 100 There is no contention the reduction in force was
based on any considerations other than economic factors. Nor
is there any claim that in selecting the particular 24 to be
released, the Respondent went out of its way to choose
llmoneers 2
The total complement continued to decline through the
spring, and in June the Company had need for more workmen.
It recalled six of the laid off employees, each of whom had
cast challenged ballots. Ten had to be called on the telephone
before the six were found, the remaining four had other
employment and refused to return. The six worked for short
periods, from 1 to 3 or 4 weeks, and were then again laid off.
And again there is no assertion the release was not because
work fell off, or that the separations were inspired by
antiunion animus.
The hearing on the challenges started on July 25 and
continued intermittently until September 20, when it was
closed That evidence all pertains to the question whether on
April 25 the 19 employees in question, in laid off status, had a
reasonable expectancy of recall. By that time, in consequence
of further separations for one reason or another, the number
of production employees had declined to 83. In early October
the Company again had need for more workmen, and,
resorting to newspaper advertisements, hired 25 persons
through October and early November With this, the Union
moved to reopen the record before the Hearing Officer.
2 From the transcript
TRIAL EXAMINER On the 31st, 24 people were sent
home Is it the contention of the General Counsel that the reason
why they were sent home is because of the Union activities and not
economic explanations as the Respondent contends9
MR. FALCONE No, your honor There is no such contention
TRIAL EXAMINER Is it a contention of the General Counsel
that , having met the necessity of sending 24 people home on that
day, the Respondent deliberately selected from among its employees
these 24 in order to get rid of the Union people9
The hearing was reopened, and on November 30 and
December 11 further testimony was taken. This served to
continue the picture of the October hirings. The Company did
not recall any of the 24 employees it had laid off the previous
March. Ten days after the hearing on challenges had been
closed a second time, the complaint in Case 8-CA-4801 was
issued. Finally, at the hearing before the Trial Examiner, in
March, it was shown that in January of 1968, the Respondent
invited 21 of the original 24 laid off employees, and that only
11 accepted and came back to work.
In addition to the exact allegation that the Respondent
"terminated" the employment of the 19 challenged voters on
April 25, the complaint sets out two further charges. These are
(1) that the Company refused to "recall or reinstate" all 19 of
them since April 25, and (2) that it "refused to reemploy"
them after April 25, and "more particularly since on or about
September 1, 1967." In the light of the clear facts, the
reasoning advanced in support of all three of these allegations
appears to be circuitous
There is no persuasive evidence that there was any
work-between March 31 and the month of October-that any
of the 24 laid off employees could have performed but which
was denied them There was short work for six in June and
July, and they were called to do it. It follows there was no
"discrimination in regard to hire or term of employment" [see
Section 8(a)(3) of the Act] before the month of October. In
October the Respondent hired 25 workmen, but did not
bother to communicate with the old March employees to
inquire whether they wished to return. If it was obligated to
communicate with them, and if the reason for not doing so
was to curb their union activities, or because 19 of them had
voted in the April election, this was unlawful refusal to hire, or
discrimination in employment violative of the statute
While it is true management was opposed to having a union
in the plant, and had even campaigned for "no" votes in April,
there is no evidence of any improper conduct in its dealings
with the employees in this respect, no charge, much less proof,
of coercive conduct violative of Section 8(a)(1). For the
subsidiary finding that the particular 19 persons listed in the
complaint were the Respondent's employees in October, or
that the Company was duty bound to call them instead of
others at that late date, the predicate assertion must be that
when the larger group of 24 was separated in March each of
them retained some sort of employee status. That status is
described, under the challenge aspect of the case, as a
"reasonable expectancy of recall " Resting upon the affirma-
tive assertion that the 24 had such a reasonable expectancy,
the argument then becomes that the Respondent challenged 19
in April in order to be in a position 6 months later to ignore
them, all with malice aforethought. This is why it is charged
the act of challenging was a form of discharge. Clearly,
MR. FALCONE: No Sir That is not our contention.
This statement of position by the General Counsel, made on the
record, is set out here because again and again throughout his
post -hearing brief the contention is repeated that the reason why the
Respondent challenged the laid off employees, and the reason why it
ignored them in October, is because it knew they were prounion, and
therefore believed their votes would swing the election in favor of the
Union These factual assertions are pure argument , and have no
evidentary basis on the record.
ZATKO METAL PRODUCTS CO. 29
therefore, before the failure to recall people towards the end
of the year can be faulted, there must be agreement that those
persons ought not have been challenged at the election, that
they were simply waiting to return to their jobs.
The difficulty with this position is that the claimed original
eligibility of the 19 employees, in turn, is said to be proved
largely by the fact the Company increased its employee
complement in October. No one was hired in the interval,
instead the complement dwindled, and even after the now
criticized hinngs, total employment stood at 104 in November,
just about the same number of jobs left after the March
layoffs. Had there been no hiring after the hearing on
objections was completed on September 20, it would have
been practically impossible to hold that the laid off group of
24, only 6 of whom had done any work in the intervening 6
months-and very little at that-had ever enjoyed a reasonable
expectancy of further employment. And it was for the very
purpose of relying upon the October hirings to attack the
validity of the original challenges that the hearing on chal-
lenges was reopened and further testimony taken on November
30 and December 11.
In the ordinary case questions of eligibility are determined
at the time of, or before the balloting, and the probabilities
that any laid off employees will later be recalled are appraised
in the light of their past experience with the particular
employer. In this case there is no evidence at all of laid off
employees ever having been returned to work. Without
question, the major proof now said to show a bright outlook in
March for these people is the fact employees were lured in
October. But this is a form of circuitous reasoning. April is bad
because of October, October is bad because of April.
The Case in Support of the Complaint
If the slippery revolving theory of unlawful discrimination
violative of Section 8(a)(3) has any handle that can be gripped,
it must be the Respondent's decision late in September not to
search out its old employees but to advertise for new ones
instead. At one point the General Counsel argues that there
was illegal discharge in April, and that a complete unfair labor
practice is proved by acts and words occurring that month,
even if later events be ignored entirely. The contention is
immediately followed by a disclaimer of any request for
backpay reaching so far back. As the logic proceeds, the April
events are then repetitiously merged into the October hiring of
strangers, and the old story becomes illuminating proof of
hidden purpose 6 months later. In the end comes the flat
contention that even assuming all that happened at the spring
election be ignored, it was simply unlawful for the Company
to hire anybody else in October. What this amounts to is a
straight principle of law that any employer is obligated to hire
its old employees-no matter how or when they worked, and
no matter the circumstances under which they left-before
taking on new workmen. No case precedent in support was
cited.
In response to such reasoning I can only state the pertinent
and undisputed facts, and consider them in the light of the
General Counsel's brief. The Union did not submit any written
statement of position Therefore, particularly with respect to
the challenges, its contentions must be gleaned from sugges-
tions, most of them oblique, voiced throughout the long
hearing on challenges.
Alleged Violation of Section 8(a)(3)
on April 25
Having decided to lay off employees, on March 28, 1967,
the Respondent posted the following notice on the plant
bulletin boards
Due to a drastic reduction in our business and the general
decline of the auto industry, it has become necessary for us
to lay-off approximately 25 to 30 employees Those
employees who are to be laid off will be notified im-
mediately. We will do everything possible to make the
layoff a short one and to avoid additional layoffs, but,
unfortunately, all automotive projections are poor and we
are not optimistic.
Three days later, Friday, March 31, the 24 employees found
the following notes in their pay envelopes
Due to the severe cutback in automotive schedules, we are
forced to lay you off until further notice.
The Union's petition for an election was filed on March 14
and on the 30th there was a hearing and conference in the
Labor Board office. The parties that day agreed to hold a
consent election, and fixed the payroll period March 26 for
voting eligibility. With the Union entitled to a list of
employees in advance of the election for purposes of home
communication, Excelsior Underwear, Inc., 156 NLRB 1236,
the Respondent submitted such a list on April 6, and on it
appear all the employees who had been at work in March,
including the 24 later laid off.
During the month of April both the Union and the
Company distributed written literature to the employees in an
effort to influence their votes The Company mailed four
documents to each of the employees at their homes, two of
these letters, dated April 5 and April 22, were also mailed to
the homes of the laid off employees. These particular letters
compared working conditions in this plant with those of other
plants owned by the same parent company (Purolator), and set
out earning figures of the individual employees of this
Company compared to the earnings at other Purolator plants.
Charles Lowe and John Allar, international representatives
of the UAW, and John Ober, its lawyer, testified that at the
March 30 conference when the consent election was planned,
Robert Duvin, attorney for the Company, spoke of the
proposed layoffs; according to them the eligibility of whoever
might be released was conceded that day The evidence is not
quite that clear. According to Lowe, Duvin said "there would
be no problem with the laid-off people voting " Quoting Allar-
11. he [Duvin] said there would be no problem in this area."
Similarly, from Ober's testimony " . . a question was specifi-
cally asked of Mr. Duvin as to the effect of any layoffs on the
voter eligibility of the people named in the list submitted, and
Mr Duvin replied there would be no problem in that
connection."
Duvin denied there was any specific mention of the plan to
lay off employees. According to him. "John Allar asked me if
all of the employees on the payroll on the eligibility date
which we had determined to be March 26, 1967, would be
eligible to vote in the election, and I immediately interpreted
that to be a question about the layoff people, and I answered
they would, unless there was a material change in their
eligibility circumstances."
Hazel Ortiz testified that 2 weeks after March 31, in
preparation for seeking work elsewhere, she telephoned Zatko
to inquire if she would be recalled, and that Zatko replied
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"definitely, we would be called back. He didn't know
when ...." Doris Barden returned for a corrected paycheck
shortly after the layoff, and, as she related, Spirakus, then a
foreman, told her "he hoped to have us back to work in a few
weeks." Edward Lipscomb also spoke to Foreman Spirakus
"right after I got laid off," to ask when he might return. He
testified Spirakus answered " . . he didn't have no idea when
they would be calling back." Nancy Miller testified that in May
she called "one of the girls in the office," who told her she
would be called back "eventually." And finally, Lucille
Edwards also testified that at the time of layoff in March her
foreman said she would be off "maybe about 2 weeks." As she
continued to relate, the witness' memory changed; now she
quoted the foreman as having said "a few weeks," "he said it's
going to be as short as possible "
Mr. Zatko, president of the Company, denied having told
these employees, or any others, that the layoffs were to be for
very short periods, or that the employees were about to be
recalled. Zatko said he told Ortiz on the telephone it did not
look good, and that she should "go look for another job." To
others who inquired his answer was "they would be better off
going to get other jobs and not looking for a call-back."
Spirakus is no longer with the Company and did not testify,
it is clear he had no idea in April when the employees would
be called back, for this is what he told Lipscomb, and all other
facts of record lead to the conclusion he could not have had
any other well founded opinion. If he said to Doris Barden
that he "hoped" to have her back soon, the phrase, from a
production supervisor, can hardly offset the weight of the
documentary evidence As to Ortiz' testimony, I credit Zatko's
version of what he told her. After working 9 days in the
temporary June recall, Ortiz did not show up one day. She had
been paid I week vacation in cash, to be enjoyed after
clearance with the supervisor and the payroll clerk, Mrs Pearl
Penrod. Ortiz testified she had obtained Penrod's "Okay," and
went off for 2 weeks on vacation, she added that a week later
Zatko telephoned to say she was laid off. Penrod was sure
Ortiz did not check with her about the vacation, and Torok,
her supervisor, said the same at the hearing. Their testimony is
corroborated by company records, regularly maintained to
show whose vacation is approved and when it is taken.
Moreover, with the recall itself occasioned by an extreme
production emergency, I doubt the Company would have
approved Ortiz' departure so soon after her recall, especially
for 2 weeks instead of 1 I do not credit Ortiz on this record.
At the April 25 election, 19 of the laid off employees were
challenged by the Company The record indicates one or two
others who had been laid off voted without challenge,
apparently there was an oversight, for the Company instructed
its observer to challenge all the 24. As stated above, in late
June there was need for workmen, and the Company called 10
laid off employees before it could find six who were willing to
come These worked for just a few weeks, and were again laid
off. This is how matters stood, so far as the laid off employees
were concerned, until the October hirings.
It is argued that all this evidence shows the Respondent
believed, before March 30, that the employees would be called
back, and soon, that they really retained employee status, in
short, that they did have a reasonable expectancy of return.
When in fact the Company challenged the employees, it revised
its position, it had a change of heart toward them, and its
purpose must have been something other than a true considera-
tion of their likelihood of coming back. From all of this, as
stated in the General Counsel's brief-
It is the contention of the General Counsel that on April
25, 1967, the date of the election, Respondent converted
the status of 19 of the laid-off employees from that of
being temporarily laid off with a reasonable expectancy of
recall to that of a permanent layoff. It is further contended
that this was done in order to provide Respondent with an
opportunity to exclude from voting those laid off em-
ployees it believed favorable to the Union.
Alleged Violations of Section 8(a)(3)
Starting in October
The objective facts, apart from argument, upon which this
complaint allegation rests, are simple and undisputed. Lester
Zatko, the president, testified that he discussed with his
supervisors the need for additional employees late in Septem-
ber, and that their reasons for choosing the course then
pursued was that the laid off group had not been in contact
with the Company for so many months, that "we surmised a
lot of them were working elsewhere," and that a number of
them were not any good anyway. Advertisements were then
placed in the newspapers and as applicants applied they were
hired Twenty-five production employees were put to work, of
whom 8 were told they would be part-timers to be released at
an unspecified date. The failure to attempt to recruit the old
group of 24 laid off in March was a conscious determination.
Again, from the General Counsel's brief•
It is the contention of General Counsel that Respondent
violated Section 8(a)(3) of the Act by failing to recall the
laid off employees when work became available because
Respondent believed that to do so would result in a
determination that the challenged ballots should be
counted, thus risking a chance that the Union would win
the election and/or because Respondent believed they had
joined, favored, or assisted the Union.
Irrespective of whether the Trial Examiner finds that the
employees were temporarily laid off with a reasonable
expectancy of recall in the foreseeable future as contended
in issue A above, and irrespective of whether the Trial
Examiner finds that the Respondent violated Section
8(a)(3) of the Act by converting the status of the laid off
employees on April 25, 1967, there can be no question that
Respondent violated Section 8(a)(3) of the Act by failing
and refusing to recall the laid off employees when work
became available.
The contention here is not that the Respondent failed to
recall these employees because it knew they were prounion
and as a reprisal for their union activity, unless one would
construe voting in an NLRB election as union activity. The
contention is that Respondent failed to recall them in order
to avoid the risk that such a recall would weigh on the
Regional Director's Decision respecting the eligibility of the
laid off employees and/or because Respondent believed
they were active union supporters and this was a good
opportunity to rid itself of a possible source of trouble.
A confusing argument is more difficult to evaluate than a
coherent, comprehensible one. It is at this point of the case
ZATKO METAL PRODUCTS CO. 31
that the elusive unfair labor practice theory, articulated
together with factual assertions at variance with admitted facts
and statements of position made elsewhere on the record, must
be divined. In almost every paragraph in a 15-page brief, the
thought-whatever it was meant to be-is spiced, and therefore
obscured, by constant repetition that the Company from first
to last discriminated against, and picked on these 19 people
because they were unioneers.
The Defense
The ultimate argument in defense against the charge of
unlawful discrimination in employment is, of course, that
there is not substantial evidence, on the record in its entirety,
to prove the wrongdoing affirmatively. Because illegal intent is
said to have been revealed initially in the challenging, the
Respondent offered evidence to prove that economic con-
siderations were such that the laid off employees had no
reasonable expectancy of recall, and therefore its act of
challenging was in good faith. It does not, by this affirmative
offer, retreat from the defense that the burden of proving
illegality rests always upon the General Counsel and has not
been carried successfully in this case.
This Company is almost exclusively a manufacturer and
supplier of parts for the three major automobile companies.
Anticipating an increase in business, it hired four or five
additional employees in late December of 1966 and early
January. During the period January 1 through March, there
appeared in several authoritative specialized publications of the
industry, such as Automotive News, as well as in the Wall
Street Journal, many articles drawing a bleak picture of the
outlook for automobile production in the coming months or
year. A great number of these were placed in evidence,
unquestionably predicting a drastic reduction of automobile
production in the ensuing year No purpose would be served
by detailing their contents here, for there is no contention the
Respondent was obligated to ignore them, or that in reacting
to them as it did, by reducing its personnel, it acted
unreasonably. It suffices to say that in total, the various
publications did predict a sharp and continuing decline in the
volume of automobiles to be produced. As it developed, the
forecast was borne out by the progressive reduction in the
number of employees on this Company's payroll in the
following months. It fell from the 100 who remained after the
March layoffs to 83 on September 20. Whether the probabil-
ities of recall be viewed retroactively-in terms of what one
could have predicted before the layoffs, or prospectively-
looking at what happened after they left, it would have to be
said that their chances-on the day of the election-were very
poor.
The more significant facts determinative of expectancy of
recall in laid off employees must always, in fairness, be their
past experience with the employer involved. And this is
particularly true here, where the Company is charged with an
ulterior motive on the very day of the election Looking back,
these employees could point to nothing justifying their
participation in the balloting. There had been no layoffs of any
kind for 7 years, and no one could recall with precision what
had happened to any laid off employees before that old date.
When laid off employees are in fact recalled later, it cannot
be denied that fact is some indication, albeit after the event,
that some expectancy of recall may have existed initially. With
the Union relying heavily upon the recall of six employees in
June, the Respondent produced evidence intended to show
that what work there was for those six could not have been
anticipated, was of short duration, and in fact ended quickly
The record amply proves these conclusionary assertions, and,
in view of the General Counsel's concessions in this respect, no
useful purpose would be served by detailing the evidence here.
A strike at the Goodrich Rubber Company, a supplier of parts
to the Respondent, an eventuality necessarily unpredictable,
occasioned the work, and the General Counsel agrees, in his
brief, that this was "a production emergency."
Thus, the mere fact of such employment in June is not
persuasive towards either view, it points neither to a reasonable
expectancy in April, nor to permanent separation The devious
reasoning that pervades the theory of complaint emerges with
singular clarity in the General Counsel's argument that the
temporary recall of these six employees proves both the
Respondent's desire to disfranchise them and its intent to
discriminate against them in their employment To give
employment negates discrimination or denial of work, to recall
strengthens the claim of reasonable expectancy But, as the
General Counsel would have it, the real reason for the June
hiring was to avoid the charge of discrimination This is a logic
of presumptive guilt regardless of which way the facts turn As
to its effect upon the pending challenges, the General Counsel
blandly accuses company counsel of scheming a later defense
that postchallenge events are unrelated to their initial validity
Analysis and Conclusions
The Alleged Discharges
Unless it can be found that all 19 employees named in the
complaint suffered illegal discrimination in violation of Section
8(a)(3), the complaint must be dismissed in its entirety This is
a mass action allegation, there is no contention that the
Respondent may have refused employment to one or several of
the 19 persons in the complaint, but not as to others Indeed,
if illegal motivation in the Section 8(a)(3) sense is proved, it
would have to follow that the five persons laid off on March
31 whose names are not in the complaint, also suffered
prohibited discrimination. The absence of these five names,
which should logically fit into the case, remains unexplained.
The General Counsel placed Evelyn Gilchrist, one of the 19, on
the witness stand to say her second layoff in July was because
she had been told not to vote in the election, and that she was
ordered to clean out her locker then and there. The complaint
does not allege, nor is it claimed, this was antiunion animus
directed to Gilchrist individually, her testimony was offered to
prove that all 24 laid off employees were subjected to one
sweeping unfair labor practice
Other pertinent questions arise and remain equally un-
answered Only seven, all challenged voters, of the group of 24,
appeared at the hearing as witnesses, and there is no evidence
revealing the activities of any of the other 17 after March 31
Did all of these, like the four who refused to return when
invited back in June, take the Respondent's layoff notice
literally-"automatic projections are poor and we are not
optimstic"-find jobs elsewhere and forget about this com-
pany? The help wanted ads in October stated the Respondent's
name clearly enough. Total silence from all these people points
strongly to acceptance with finality-or at least a very low
probability of recall, in the layoffs.
The main thrust of the argument in favor of the complaint
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is that Zatko, company president, changed his mind, first
thinking, in early April, that the 24 would be recalled, and
then, because of the election, saying they probably would not
and challenging them It is said that Zatko's mental operation
must determine this case, and never mind the fact that 17 out
of 24 employees never even tried to return, or that the
employee complement never-even after the October hiring
when the total climbed to 104-returned to the level of March
31, when it stood at 125 But if it is a matter of what people
thought, is not the outlook of the employees themselves also
relevant9
Of the seven employees who appeared at the hearing, five
had been recalled in June, as regulars, and even been paid
vacation money. The complaint says that by questioning the
voting eligibility of each of these 2 months earlier the
Respondent proved its intent to fire them, to exclude them
from the plant forever. One of these, Ortiz, even quit of her
own accord in July. This patent inconsistency between fact
and argument is not explained
I find the evidence insufficient to prove the unfair labor
practice alleged in the complaint The challenge procedure set
out in the Board's Rules and Regulations recognizes the fact of
industrial life that there will be instances when the eligibility
of voters is questionable. To hold that the Respondent in this
case challenged for the purpose of defeating the Union, and
with a planned intent of later hiring others in place of the laid
off employees, virtually requires a preliminary finding that all
19 voters were conclusively eligible that day and that the
Respondent had no doubt on that score Conceivably there
could be a finding that the challenges were invalid, that the
employees did have a reasonable expectancy of recall, that the
Respondent's decision to challenge was not based upon an
honest doubt as to eligibility, and the unfair labor practice
complaint still be dismissed Malicious challenging, even where
found, does not of itself necessarily demand a further finding
of illegal discharge at a later date But to hold that on April 25
the Company intended to, 'and in fact used the technique of
challenging to dismiss its employees, while at the same time
ruling that they were in fact ineligible, and that the Respond-
ent therefore had a right to challenge them, is not rationally
possible 3 And therein lies the heart of this case
What the unfair labor practice allegation rests upon, solely,
is the act of challenging. No collateral supporting evidence to
prove the asserted, and necessary illegal ulterior motive was
offered, indeed the entire theory of this first step aspect of the
case rests on what is said to be proof positive that the
employees were eligible to participate in the election. The
General Counsel also concedes in his brief "Admittedly there
is little direct evidence bearing on the question of the motives
in the actions of Respondent in challenging the voters." But it
is now well established that where unlawful discrimination in
employment is charged "the improper motivation of the
employer must be established by independent evidence";
indeed this is a case "where actual subjective intent is
determinative," and of which the Supreme Court has said "the
Board must find from evidence independent of the mere
conduct involved that the conduct was primarily motivated by
an antiunion animus "NL.R.B. v Brown, 380 U S. 278
Repeated statements in the General Counsel's brief to the
contrary, there is no record support for any thought that the
Respondent knew, or had reason to suspect, which way the
laid off employees would vote It is conceded the selection of
the 24 was a random choice unrelated to union activities or
sentiment All the record shows is that in March some
employees wore union buttons at work. And now, as the
Respondent continues to urge the validity of the challenges, it
cannot know what the ballots, if opened, would show. The
101 valid votes cast could not have divided more evenly-51
against and 50 in favor of the Union.
As it now appears, after the exhaustive hearing on chal-
lenges, these employees did not at the time have a reasonable
expectancy of recall and their ballots may not be counted.
They had been laid off "until further notice," with no
promise, express or implied, of any fixed return date. It might
even be said they were presumptively in an ineligible category
They had been told their chances of return were "poor " They
could not look to any precedent of laid off employees having
ever been recalled, and the business forecasts upon which the
Company could reasonably rely drew a dreary picture for the
future, certainly with no timetable against which restaffing
might be planned
In further support of its challenges the Respondent offered
evidence of improved production techniques which lessened
the probabilities of recall for the laid off employees as a group
There is extended and complex evidence showing that in late
1966 and throughout the year 1967, but particularly during
the early months, there was considerable change in its methods
of production, in the form of replacement of old machines
with new, more efficient apparatus, and improvement of
existing machinery by adoption of automated processes The
purpose of all this evidence was also to offset what seemed to
be a running argument throughout the hearing on challenges
that the Company really had need for more employees after
the layoff but purposely delayed recalling the 24 in question.
Much of the testimony is difficult to comprehend and in
conclusionary language. In any event, it stands uncontradicted
and there is no reason for rejecting it In its entirety, it is
persuasive For the least, there is no basis for finding any
calculated plan to permit production to lag, or to keep the
employee complement below requirements The general con-
tention of the Respondent based upon all this evidence seems
to be borne out by the clear fact that during August,
September and October of 1967, with fewer employees than
the year before, its total sales exceeded those for the
comparable period in 1966.
There are no objective facts from which it might be argued
that an increase in the employee complement, in the near or
foreseeable future, could reasonably have been anticipated at
the time of the challenging. Counsel for the Respondent
correctly argues that subsequent events, foreseeable or unfore-
seeable, are not truly pertinent to any inquiry into anterior
expectancy. But with the Union relying so heavily upon the
3 From the Government brief.
Although an affirmative finding of this issue [ reasonable expec-
tancy of recall ] standing alone, does not establish a violation,
such a finding is a prerequisite . to a finding of conversion
[ from layoff to discharged status]
4 Although no particular case precedent in this area can be
determinative here because no two sets of facts are ever squarely on all
fours, the eligibility test for employees in laid off status has consistently
been phrased as- "Reasonable expectation of employment in the near
future." The Marley Company, 131 NLRB 866.
ZATKO METAL PRODUCTS CO.
June and October hirings, in fairness the overall picture of
employment must also be stated. In the payroll week ending
March 26, the eligibility date set in the consent election
agreement , there were 128 production employees Twenty-
four were laid off and by April 25, election day, four others
had left, leaving a total complement of 100 The real question
upon which eligibility of the 24 turns is whether there was
then a reasonable expectancy that in the near future that
number 100 would again rise to 124, or at least move a
substantial distance in that direction Expectancy of employ-
ment as used here does not concern itself with the chances of
normal, or even extraordinary attrition, which might decimate
the remaining group and fortuitously create openings that old
workmen could fill Gerber Plastics Co , 110 NLRB 269 By
June 25 the employees were reduced to 86 The six temporary
hires of June and July came and went, and by mid-September
the total had shrunk further to 83, at the end of the month it
was 80 In October and November 25 employees were hired,
but some did not stay By November 30 the total number of
jobs stood at just about 100 It had changed very little by the
close of the hearing on the complaint in March.s If, in an
investigation into the validity of challenges, later developments
have any pertinence, this unfolding story diminishes, rather
than augments the expectancy of recall, and hurts, rather than
,helps the unfair labor practice allegation
There is much stress on the intent of the Respondent to
recall the employees, and it is argued strongly that Mr Zatko
did intend to recall them when first he sent them home It is
perhaps true that the employer's state of mind in such cases is
a factor to be considered in determining what expectancy of
recall there may have been At the same time the best intent in
the world could not justify a reasonable expectancy if the facts
of available work, if the logical basis for prediction, if the
realities of an economic situation are such that no amount of
hope or goodwill could offset them. The posted notice of
March 28 did say, among other things, that the Company
would do "everything possible to make the layoff a short
one." If anything is clear on this unduly long record, it is that
major changes in the ebb and flow of work into this plant are
determined by economic forces far beyond the power of Mr
Zatko personally to control Compare, Thermoid Co , 123
NLRB 57
And it is also possible he, as well as his lawyer, may have
changed their minds on what position to take about the
eligibility of the group of 24. More likely, on March 30, before
the employees had even been released, the Respondent had not
decided at all what its attitude would be a month later on this
question. Duvin, the lawyer, admitted he was asked at the
preelection conference, whether the employees to be laid off
would be eligible. He equivocated. According to the union
representatives , he said "there would be no problem", as he
recalled he said "they would, unless there was a material
change in their circumstances." Allar, for the Union, virtually
admitted the question was not answered clearly and directly,
for he also testified "From that statement , I took it that those
5 The parties stipulated that in January of 1968, 11 of the old group
of 24 were back at work , that they were invited to return by the
Respondent , and that 10 others of the original group were recalled but
refused the offer. A few who returned in January came after they had
themselves requested work that month or during December
The charge , was filed on October 24, and the complaint was issued
on December 21. Reinstatement of employees said to have been
unlawfully discharged , after issuance of the complaint , cannot fairly be
33
people that were going to be laid off would be eligible to
vote ... "
A week later, after the mass layoff, Duvin prepared the
Excelsior list, as required, for the Regional Director. The
payroll eligibility date was March 26, and he sent along the
names and addresses of all laid off employees, for they had
worked that day The Company then sent four letters to the
homes of the employees, explaining why they should vote
against the Union Two of these went to the laid off employees
as well It does not follow from all of this that perfect
eligibility of the 24 was a sure thing in Duvin's mind before the
election. To omit the names of the 24 from the Excelsior list
he would have had to make a unilateral determination that
they were ineligible With one of the eligibility dates March 26,
it is doubtful the Regional Director would have deemed the list
adequate to satisfy the now legal requirement The same
reasoning must apply to the Respondent's attempt to assure
"no" votes by the laid off employees Maybe as of that date
Duvin had not yet decided to challenge them But his
explanation of the literature to these persons is no less
credible It is equally possible that he did intend to challenge
but was taking no chances, and therefore directed his
propaganda campaign to them also, to guard against the event
that any challenged ballots might later be opened.
The most the conference colloquy, as well as the late
distribution of literature, can prove is that Duvin deceived the
Union as to his intention. If this was his purpose, lie succeeded
in deferring inquiry into eligibility to after the election Had he
been unequivocal, the determination might have been made by
the Board in advance, and the election thereby deferred. In all
likelihood the Board, without the benefit of full investigation,
would have permitted the laid off employees to vote subject to
challenge, and the challenge issue would be in the same posture
today
In the total circumstances-no history of recall of laid off
employees, convincing evidence that the outlook for the
industry was bleak and that available indications prormsed no
need for increasing the production staff in the near or
foreseeable future, the written advice to the employees that
chances of recall were poor, with no date for return arranged,
plus the concession that the Respondent had no reason to
believe these particular employees to be prounion, I deem the
change of position respecting their eligibility, even assuming
the company representative did have a change of heart
between March 30 and April 25, to be of little weight on the
question of the validity of the challenges I conclude that the
24 employees laid off on March 31 did not as of April 25, have
a reasonable expectancy of recall in the foreseeable future, and
were therefore ineligible to vote. I shall recommend that the
19 challenges to their ballots be sustained.
On the record in its entirety I find no merit in the
contention that by the act of challenging them the Respondent
discharged all 19 employees There remains the allegation that
even if the Company did nothing wrong in April, it violated
the statute when it did not recall the entire group of 24 in
deemed an admission against interest by a respondent employer
Similarly , refusal by laid off employees to return on request so long
after their original separation, and after the validity of the challenges to
their ballots has been exhaustively litigated , bears no substantial
relationship to the question of the challenges . I have therefore ignored
the month of January 1968 in my consideration of both the unfair
labor practices alleged and the challenges.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October This is the alternative argument which the General
Counsel makes, but does not make. If everything that
happened before the fall of the year be blanked out of the
record, there would be no basis whatever for saying the
Respondent was obligated to search out the old employees, or
that they held any kind of employee status The vast majority
had lost all contact with the Company and there is no evidence
worthy of note that antiunion animus existed in the mind of
management in October. It is for this reason that the very
assertion of independent 8(a)(3) violation at the end is always
intertwined with the earlier events. If there is any support for
this last contention, it must be the testimony of a few
challenged employees that they asked for work after the July
layoff of the temporary rehires, and were refused. I do not
believe the evidence warrants a broadside conclusion that the
Respondent then illegally discriminated against 19 persons, as
precisely alleged in the complaint.
Edward Lipscomb testified that in the "first part of
September," he went to the plant door one night and spoke to
a foreman he only knew as "Slim," who told him "no
employee what got laid off was allowed to come to the job
unless they're called back " Lipscomb continued to say that he
then asked when would the laid off people be recalled, and
that Slim said "they'd be calling some back that following
Monday." No person called Slim testified, there were no jobs
available at the beginning of September, no one was added to
the payroll until the following month, and the night foreman
was hardly the voice of the Company
Evelyn Gilchrist is one of the six recalled in June She took
sick after a week and a half, and in July came to the plant with
a medical statement that she must recuperate 2 more weeks,
but was told there was no more work for her She asked to talk
to Mr. Zatko, and, according to her testimony, Penrod, the
payroll clerk, said to her "you was advised not to come out
and vote " She waited and then asked Torok, the superinten-
dent, when could she work He answered "I don't know,
Evelyn. I'm advised to tell you to clear your locker out."
Torok recalled this visit to the plant by Gilchrist, but
according to him it was the employee who asked permission to
remove her personal belongings from the premises Penrod's
testimony is that Gilchrist never spoke to her at the plant after
going to the hospital, but only telephoned to report her illness
to Mr. Zatko Penrod denied having said the woman had been
told not to vote I credit Penrod on this point It simply is not
true anyone was told by management not to vote, Gilchrist
herself was urged by the Company to cast a negative ballot,
and the evidence relating to the objections filed shows clearly
this was the Respondent's approach to the election. If Torok
told her to empty her locker, it was another way of saying
recall prospects were worse than before.
Inez Garr, challenged and recalled, also became ill on July
13. She testified she telephoned in on August 16 to talk about
returning, and that Torok said he would consult with Mr
Zatko and call her back, but never did Garr also said that in
the next several months she spoke to Torok perhaps three
times. She also said that in early October she saw the
Company's newspaper want ads and telephoned Penrod to ask
for work According to her, Penrod answered she did not know
when work would be available " . . I told her that I had saw
the ad that came out in the paper and l just wondered if I
would be able to get back to work, and she said she was sorry,
that she couldn't help me, that when Mr Zatko was ready I
would be called back I thought she might speak with Mr
Zatko or Mr Torok and they could have her call me or
something." Penrod, in defense, said Garr called her only once
and that was in December, when she transferred the call to
Zatko who had Garr return to work in January Torok testified
Garr called only in July to say she was still in the hospital, and
that the only other time he spoke to her was when he called
her later to advise she had been laid off again
I have no reason for not believing Mrs Garr. However the
overall record of this proceeding may now show that her
chances of being recalled soon were not good, the fact is she
was never told in so many words she was "discharged." Paid a
regular vacation in the summer although she worked only a
few weeks, it was not unreasonable for her to believe the
Company would be well disposed toward her if ever there
should be more work And work there was in October. She
needed work and the Company's newspaper ads were intended
to produce exactly what she said she did, apply for a job.
Penrod looks after the payroll, she must have known people
were being hired The inherent probabilities of the moment
make Garr's testimony more credible than that of Penrod in
this instance I also believe she spoke to Torok before October,
Penrod said she never told Zatko of any calls by the laid off
employees seeking work, and Zatko agreed she never did Why
did she not pass on Garr's application to the boss, if it is true
she did not9 Why did not some one in the plant call this lady,
who had worked for 3 years, and while others were being
hired9 I can find nothing wrong with Torok not calling her
back in August or September, for no one was being hired then
On November 6, Maria Knezvic, who had also been laid off in
March, was hired at the request of her husband, a toolroom
employee That fact does not suffice to destroy Garr's
credibility in my eyes.
Lastly, there is the testimony of Lucille Edwards, also
recalled in June. She said that through, and into the month of
September, in order to satisfy the requirements for continued
enjoyment of unemployment benefits, she telephoned the girl
in "personnel" to inquire when she would be recalled, and
"she [the girl in personnel] said she had no idea " Edwards
said that she once spoke also to Spirakus, the foreman, "after
July," only to be told "he didn't know exactly when we would
be called back "
The Respondent was not obligated either to seek out the
people laid off in March or to hire them at all in October. Mrs
Garr's testimony warrants a finding the Company simply did
not want her back then, and that this amounts to a refusal to
hire There is nothing to show its reason was because of her
union activity It may well be that the Company wanted to
avoid strengthening the attack upon the challenges 6 months
before. But to view the refusal to hire in this light is to fall
back into the bootstrap argument that October was bad
because of April, and April was bad because of October
It will not do to say that because the Company did not
recall the 24, and because 19 of these were challenged, it must
have been motivated by a desire to punish them for having
voted, to weed out individual unioneers, or to avoid collective
bargaining with the Union These are all unlawful purposes in
any discrimination in employment, but any one of them must
be proved by evidence over and above the fact of the
discrimination American Ship Building Company v NL R B,
380 U S 300 There simply is no such support or independent
evidence in this case Nor is the lack of affirmative evidence
necessary to carry the burden of proof which falls upon the
complaint, overcome by saying, with perhaps some truth, that
ZATKO METAL PRODUCTS CO 35
the Company was unfair in not recalling these people in
October, or even stupid in preferring inexperienced to expe-
rienced employees The question is one of illegality, not
business acumen.
Many other arguments are made in support of the com-
plaint, none of them, individually or collectively, sufficient
Least persuasive is that based upon the fact Mr. Zatko
consulted his lawyer at virtually every turn of events, from the
initial conference to arrange the consent election in March
through the decision to advertise for help in October
Repeatedly the argument is made that the use of expert labor
law advice helps prove ulterior or illegal purpose in what might
otherwise appear perfectly innocuous Justice is better served
if judgment rests upon facts, rather than unsupported in-
nunendo
I find the evidence as a whole insufficient to support the
unfair labor practice allegations, and shall therefore recom-
mend dismissal of the complaint.
The Objection to the Election
This Respondent, Zatko Metal Products Co., is wholly
owned by the Purolator Company, which, to the extent shown
on this record, also owns and operates four other plants in
nearby States All five of the plants produce parts for the auto
industry, and comparable jobs exist in more than one plant
The UAW is the contract collective-bargaining agent at the
other four locations, and it started an organizational campaign
here on February 24, 1967 Between that date and the time of
election on April 25 the Union held several employee meetings
and distributed a number of leaflets explaining the advantages
of representation by this Union The Company in turn
counteracted by itself distributing antiunion literature, some
of it in the form of personal letters to the employees' homes.
Among the arguments made by the Union were varied and
repeated assertions that the employees at the other Purolator
plants, with this Union to speak for them, were enjoying better
conditions of employment, and in many respects the Union
made specific comparisons. One of the job classifications at
this plant is punch press operator, the same classification exists
at Wayne, Michigan, and another plant of the four Purolator
locations where the UAW bargains.
The election was held Tuesday afternoon, April 25 On the
previous Sunday, at 3 p m , the Union held a last meeting-
attended by perhaps 65 or 70 employees-at a restaurant Four
or five union representatives appeared to discuss, among other
things, how conditions were better at the other plants. One of
the UAW agents was Philip Maggio, who services particularly
the Wayne plant He had with him, and offered to show the
employees present, the Wayne plant UAW contract
The Respondent filed several objections to the results of the
election, of which the Regional Director overruled all but one.
That last, on which a hearing was held, charges that the Union
made material misrepresentations at the April 23 meeting,
sufficient to require setting the election aside, in the event the
Union should prevail. As now clarified by the evidence, the
objection rests upon testimony by several employees that in
the course of the hour-long meeting Maggio made the
statement that at the Wayne plant punch press operators earn
$4 per hour, and that they are paid this even when they are
not actually working, as when their presses are idle for one
reason or another. The Respondent claims this was a false
statement and that it was too late then for it to look into the
truth of the statement and disabuse the employees of the
wrongful impression created by the Union.
All testimony respecting this objection was taken during the
first 2 days of hearing before the Hearing Officer, who heard
this as well as most of the testimony relating to the 19
challenges. As that record was later received in evidence at the
consolidated hearing on challenges and complaint, I did not
observe most of these witnesses. On careful analysis of what
was said, and of pertinent documents also received in evidence,
I am of the opinion that the objection is without merit and
should be overruled
Six employee witnesses testified in support of the objec-
tion Albina Zgonc said that after telling how employees of
other plants earned more, Maggio said "out there they got paid
$4 an hour for being a punch press operator " With a little
prodding by company counsel, Zgonc then added that Maggio
also said " . . they will pay you $4 an hour regardless of what
you do. You could stand by your machine all day long and
you will still get paid $4 an hour " Joanne Zavrl also quoted
Maggio concerning punch press operators, "He said that they
make $4 an hour." Again with some encouragement by leading
questions*
Q. Did he say anything else about the punch press?
A. Well, there was quite a commotion when that was
said Everybody started talking about going on a punch
press and somebody got up and asked some questions
about, "Does that mean that that's when the presses are
down, or do you have to make a certain amount," and he
said that that's settled, that $4 an hour is what they get
regardless of-
Q. Regardless of whether the press is operating or
whether it is shut down?
A. Right.
As she continued to testify, Zavrl added that Maggio said
even when they [the punch presses] are being set up or if
they are run down or whatever it is, they are still getting their
$4 an hour "
Frances Arko said Maggio was reading from a book-"sort
of like a Purolator handbook"-and "claimed that our wages
were much lower than any of the Purolator plants," and then
"he brought up the part about the punch press operators
making $4 an hour ...." She then added "The way I
understood it, he claimed that they would still be making
$4 an hour if they just stood there next to their press "
According to Anne Hopkins, another employee " ... they
were making $4 an hour and just like the other girl says, that
they asked if, when the machine breaks down if they got the
same, and he said yes "
Mary Svaboda was also a witness on this subject Her total
testimony reveals extreme antagonism towards the UAW In
the course of the meandering story, she stated "They said $4
an hour for running a press and they also said anyone could
run a press .. they stand around getting their $4 an hour
doing it . " In response to the question Q Did he say that
they get the $4 even when the press is down? A That is right.
The last employee witness was Joseph Horvat, a toolmaker.
He too heard Maggio- "Well, he quoted that women made $4
an hour . . running a punch press " Asked had Maggio used
the word "incentive," he replied "no."
Against the foregoing, Charles Lowe, UAW international
representative, said four UAW officials besides himself were at
the meeting. He testified Maggio spoke about wages and other
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions at the Wayne plant, and read from the
contract in effect there and compared the two locations
According to Lowe, Maggio, in his talk about diverse employee
benefits throughout the Purolator plants "said the women at
the Wayne plant make as much as $4 an hour on incentive "
John Allar, another UAW representative, also testified that
Maggio was reading from the Wayne plant contract, and had
occasion to say "that in the Wayne, Michigan plant there were
punch press operators, including females, who made up to as
much as $4 an hour while on incentive "
Maggio said he was specifically invited to the meeting to
speak about conditions at the Wayne plant, where he is
responsible to look after the UAW's interest and to handle all
grievances. With the Wayne plant contract in his hands, he
reviewed the many benefits detailed there, seniority, holidays,
vacations, and such things. He said he read off the hourly rates
listed in the contract, although he did not know which of the
jobs existing at Wayne were also precisely duplicated at Zatko.
According to Maggio, in reading off the rates, he also told
these employees what the rates were for incentive workers, and
explained that those base rates are guaranteed for time,
regardless of how much work a person actually performs. He
testified that at this point he also said there were employees,
including women, who under the incentive system earned as
much as $3 25 to $4 per hour When a women questioned him
and doubted his word, he offered to take her to Wayne to see
for herself. Maggio denied having said employees on incentive
could earn $4 per hour whether the press operated or not.
I credit Maggio and find he did not say punch press
operators at the Wayne plant earned $4 per hour regardless of
how much work they do He is the man who handles
grievances at the Wayne plant and therefore in a position to
know what incentive workers earn there. He had the contract
in his hand, it sets out exactly what the dollar rates are for
hourly rated employees and what the guaranteed minimum, or
downtime, is for incentive workers He offered to show it to
one man who questioned the toolmaker rate, as compared to
the comparable rate at Zatko. It is highly unlikely the visiting
international representative, at the very moment he was
inviting the confidence of the group, would tell them the
punch press operators had a guaranteed regular $4 hourly rate
and risk showing them in writing that it simply was not so The
fact punch press operators at Wayne work on incentive appears
clearly in the contract
A far more compelling reason for believing Maggio's version
of what he told the employees that day is the fact that his
testimony conforms with the truth as shown by the Com-
pany's own records. For months-the record does not show
how many, but surely for the months of April and May of
1967-from Purolator's main office in Rahway, New Jersey, a
form sheet goes to the Wayne plant detailing every instance
when an incentive employee is paid in excess of $4 an hour
Maggio testified, without contradiction, that there came a time
when the Purolator Company asked the UAW at Wayne to
agree to a wage cut because there were employees earning over
$4 per hour, and, when Maggio wanted "to see some figures,"
the Company gave him the very payroll records which were
received in evidence to prove the point. For a single week in
April alone-the week ending April 23-there appear upwards
of 140 separate incentive operations for which employees were
paid-for work periods up to 8 hours-at a rate in excess of $4
per hour, some of them over $5 per hour There are like
records for two separate payroll weeks in the month of May.
Maggio, again without contradiction, clearly explained the
exhibits
There was marked antagonism among the employees at that
meeting, the division of sentiment was shown in the results of
the balloting-51 to 50-as well as in the character of the
employee testimony generally. Clearly, some of the women
came expressly to disrupt the meeting and exaggerated in their
testimony Zgonc had Maggio saying employees at Wayne are
paid $4 per hour even standing by their machines "all day
long " She also testified "I wanted to know what comparison
they had with this plant that they were talking about
compared to us when we were working all year round and we
never had any strikes or layoffs, in comparison to the plants
that he was talking about, how many layoffs they had up
there, but I did not get a satisfactory answer " She was not
sure who brought up the question of how much punch press
operators earned "I wouldn't know who started it " Could she
recall what Maggio said "word for word?" "I wouldn't say it
was word for word but that is what the statement meant."
Zavrl also was not sure who first mentioned the subject. Arko
quoted Maggio as saying the $4 was paid "even if the girls just
stood around." Recalled later, she was confronted with her
earlier affidavit dated May 16, which reads " . he [Maggio]
said, `Some of the punch press operators at other Purolator
plants were getting $4 per hour."' She then admitted that
Maggio had in fact qualified whatever his statement was with
the phrase "some of the punch press operators " Svaboda was
sure Maggio did not speak of "some" operators earning $4, and
that he did say it was paid "even when the press is down." She
then took off on a long harangue on the injuries the Union had
done her in the past There would be no purpose in repeating it
in detail here, but it reveals beyond question a high-strung
person on the subject. She also admitted picking a quarrel with
UAW Representative Allar at the meeting, and closed with
admitting she left the meeting "with two women of my way of
thinking." These were Joanne Zavrl and Frances Arko
The meeting was very much confused, from the start, with
people constantly raising their voices, quarreling, and again and
again being called to order. Zgonc. "They were all talking all at
once " Zavrl "This meeting was, everybody was talking so
much at the same time that you couldn't get anything across
People were talking. I bet there were six different subjects
going on at six different times " Arko " . . he brought up the
part about the punch press operators making $4 an hour, and
that caused a big commotion and after that it was pretty hard
to keep order and exactly hear who was saying what " Horvat
"Everybody started to scream in the audience and up front "
Testimony purporting to repeat the exact words of any
speaker in such a bedlam could hardly be reliable
The fact of the matter is that Maggio told the employees
some punch press operators at Wayne were earning $4 per hour
when on incentive. The Company records show that this in
truth happens often, as always under incentive systems, the
rate does not hold over long periods It varies with the item
rated and produced, and may not hold for many hours or
entire days But this is in the nature of any incentive pay
method. The Company brought out the fact many of the
instances shown on the exhibits involved men, and not women,
and that many items on the exhibit covered assembly
employees and not punch press operators But this is not
significant, for Maggio spoke of both men and women, and
said only some operators earned the higher amounts What is
probably equally true is that there were no incentive workers
ZATKO METAL PRODUCTS CO. 37
who earned $160 for a continuous 40-hour period But this
fact, of which the Purolator labor relations director, Wenner,
testified, does not serve to make Maggio a liar Wenner said the
average earnings of the punch press operators were well below
$4 per hour, and I have no reason to doubt him. But averages
necessarily include the extremes, and therefore beg the
question here He said average earnings at Wayne were $3 37
per hour This is not proof there were not some who earned
over $4 at times
There is an implication that the Union was not being honest
in speaking so selectively of the higher occasional earnings at
the other Purolator plants This is not a good basis for
complaint The electioneering on both sides stressed the
comparison of present benefits here to the situation at the
other four locations Zatko admitted at the hearing that while
stressing in the company literature the lower benefits at certain
other plants-with special details on yearly earnings, overtime,
cash bonus, gifts, and layoffs-he deliberately said nothing
about the Wayne plant because the rates there were substan-
tially higher than in his own The lawyer, Duvin, testified for
the Company on several points Among other things he said he
learned about wage rates at the other four plants and "I
already knew, in preparation of the April 22 letter, that the
Wayne plant's gross earnings were substantially higher than the
Zatko plant's gross earnings, and that was why we omitted
Wayne from the statement . " I would not blame either
party for putting his best foot forward.
On Monday, April 24, Mr Zatko held a series of final
meetings with the employees in groups, starting at about noon.
He spoke about 20 minutes to each of four gatherings, reading
a statement and answering some questions, finishing before 2
o'clock in order not to run afoul of the iule prohibiting
in-plant meetings within 24 hours of the balloting He learned
during the morning of what Maggio said the day before, at I 1
a.m. according to him, earlier according to one or two of the
employees. He said he telephoned the lawyer to check on the
story, and Duvin testified he was unable to do so quickly
because of the time element An argument is that because the
Company had no reasonable opportunity to investigate and
dispel the erroneous impression created at so late a moment by
the Union, the election must be set aside. Now that it has been
found there was no misrepresentation, the asserted ground for
objecting to the election falls in any event Had Maggio really
been wrong in his statement as to the employees, and were it
necessary to decide this question now, I would recommend
overruling the objection anyway Zatko already knew much
about the earnings of employees at the other plants; this is one
company-Purolator-owning all five of the plants He had
utilized the very special knowledge of wages elsewhere to
further his own antiunion campaign, even comparing individual
earnings with those of other locations in his letter to these
employees I find most unconvincing the lawyer's testimony
that the Purolator Company did not care what happened to
the Zatko Company, on this matter of the Union's attempt to
organize the plant Compare, NL R.B. v Luxarre, Inc., 393
F 2d 661 (C A.D C ), March 19, 1968.
RECOMMENDED ORDER
Case 8-RC-6698
I recommend that the challenges to the 19 ballots in
question be sustained.
I recommend that the Respondent's objection to the
election be overruled.
Case 8 -CA-4801
It is hereby recommended that the complaint against Zatko
Metal Products Co. be, and it hereby is, dismissed.