Aircraft Hydro-Forming, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1975

221 N.L.R.B. 581 (N.L.R.B. 1975)

AIRCRAFT HYDRO-FORMING, INC. 581
Aircraft Hydro-Forming, Inc. and International
Union, United Automobile, Aerospace & Agricul-
ture Implement Workers of America-UAW. Case
21-CA-13018
November 21, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On April 2, 1975, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed exceptions and brief in support of
its exceptions and in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Aircraft Hydro-Forming, Inc., Gardena, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified.
L. Substitute for paragraph 1(a) the following:
"(a) Coercively interrogating employees about their
union activities, sympathies, and desires, soliciting
employees to revoke their union authorization cards,
threatening to close its plant if its employees select
the Union as their collective-bargaining representa-
tive, threatening employees with reprisals if they
select the Union as their collective-bargaining repre-
sentative, and threatening employees that it would
not consider on their merits requests for special pay
raises because of union activities in the plant."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 It was alleged that certain comments assertedly made by Henegar, a
supervisor, to an ' employee to the effect that only 35 percent of the
employees had signed union cards and that Respondent would put up a
heck of a fight to keep the Union out violated Sec . 8(a)(1). The
221 NLRB No. 117
Administrative Law Judge credited Henegar's denial that he had made such
statements She further held, however, that even if the statements had been
made they would not in the circumstances have violated the Act as alleged.
In view of the Administrative Law Judge's credibility findings, we find it
unnecessary to pass on whether or not the remarks would violate the Act
and thus do not adopt her determination that they would not_
However, we do find, contrary to the Administrative Law Judge, that
Henegar violated Sec 8(a)(1) of the Act in telling Toles he could not give
her a raise because of union activities in the plant as it might appear he was
trying to buy her vote This statement placing the onus squarely on the
Union for Henegar's refusal even to consider granting a raise was, we find, a
clear threat that union activity would result in economic loss to employees
irrespective of the ments of any claim they might have to a raise, and was
thus unlawful
Whether or not Henegar's warning to Bula, that employees could be
discharged for talking about the Union or soliciting for it, was unlawfully
restrictive, Member Fanning would find that it violated Sec. 8(aXl) because
it was aimed dlscrmunatonly at union activities, and not at talking or
soliciting in general Threats to discharge employees for engaging in
concerted activity which has been singled out that way are coercive.
Chairman Murphy and Member Penello find it unnecessary to consider
whether, as Member Fanning appears to conclude, Henegar's statement
constituted the promulgation of a discriminatory no-solicitation rule, since
the complaint contains no such allegation, and that issue was not litigated
by the parties.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and we intend to carry out the Order
of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these
rights. More specifically,
WE WILL NOT coercively interrogate you re-
garding your union activities, sympathies, or
desires.
WE WILL NOT solicit our employees to cancel
their designation of International Union, United
Automobile, Aerospace & Agricultural Imple-
ment Workers of America-UAW, or any other
labor organization, as their collective-bargaining
representative..
WE WILL NOT threaten to close our plant if our
employees choose to be represented by a union.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with
reprisals if they choose to be represented by a
union.
WE WILL NOT threaten our employees that we
will refuse to consider requests for special pay
raises on their merits if there is union activity in
the plant.
You and all our employees are free to become
members of any labor organization, or to refrain
from doing so.
AIRCRAFT HYDRO-
FORMING, INC.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge:
This case was tried before me in Los Angeles, California,
on December 18 and 19, 1974. The charge was filed by the
Union and served on Respondent on September 20, 1974.
The complaint issued November 11, 1974, alleging that
Respondent had violated Section 8(a)(1) and (3) of the
National Labor Relations Act. Posttrial briefs were filed by
the General Counsel and by the Respondent.
The basic issue herein is whether Respondent discharged
employee James Gambrell, herein called Gambrell, be-
cause he engaged in- union or other protected concerted
activities or whether, as contended by Respondent,
Gambrell was discharged because of his unsatisfactory rate
of production. Also at issue is whether Respondent granted
wage increases, solicited employees to revoke union
authorization cards, made various threats, and interrogated
employees in violation of Section 8(axl) of the Act.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a California, corporation engaged in the
business of manufacturing formed aircraft and machine
parts at its facility in Gardena, California. In the normal
course and conduct of its business operations, Respondent
annually sells and ships goods valued in excess of $50,000
directly to customers located outside the State of Califor-
nia.
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II.. LABOR ORGANIZATION
The parties stipulated, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union's Organizational Campaign
Respondent acquired its business facilities and opera-
tions about June 30, 1973, and retained some of the
employees and management personnel of its predecessor.
On or about August 16, 1974,1 the Union began an
organization campaign among Respondent's production
and maintenance employees. On September 3, Respondent
received a letter from the Union demanding recognition as
the collective-bargaining representative of Respondent's
production and maintenance employees.2 On that same
date, the Union filed a representation petition in Case 21-
RC-13910 seeking a unit of Respondent's production and
maintenance employees, including leadmen. On October 2,
Respondent and the Union entered into a Stipulation for
Certification Upon Consent Election. Pursuant thereto an
election was held on October 24, 1974.
B. Respondent's Antiunion Campaign Letters
When Respondent became aware that some of its
employees were interested in union representation, it sent
all employees the following letter:
August 23, 1974
To Our Employees and Their Families:
During the past few days; several of your fellow
employees have indicated an interest in having a union
represent them at Aircraft Hydro-Forming, Inc. Your
company =does not feel that a union is in the best
interest of you, our employee.
The company prefers to continue to deal directly
and openly ' with its employees rath°er than through
some outside organization. We are not in favor of a
third party, who is neither employer nor employee,
speaking about problems that concern you and not
them. We have worked together in a friendly, coopera-
tive manner in the past, and we do not believe that it is
in your best interest to bring in outsiders, ' pay your
money to them, and at the same time run the risk of
strikes and other associated problems.
We will continue our open door policy of listening to
your' problems, and we invite your comments -concern-
ing this serious matter.
1 All dates hereinafter will be 1974 unless otherwise indicated.
2 This is from the testimony of George Murray, Respondent's vice
president and general manager . In a letter accompanying her posttnal brief,
counsel for the General Counsel concedes that the demand letter was
mailed on August 30. September , 3 was the next work day.
AIRCRAFT HYDRO-FORMING, INC.
Sincerely yours,
/s/ George E. Murray
George E. Murray Vice President and General
Manager
The complaint alleges that by the phrase "we invite your
comments concerning this serious matter ," Respondent
solicited employees' comments on the Union, thereby
interrogating them in violation of Section 8(a)(1) of the
Act. General Counsel argues that Respondent was seeking
to elicit from employees information as to their union
sympathies and their reasons for supporting the Union
which was coercive in view of the antiunion tenor of the
letter. However, I am not persuaded that the letter is
coercive. The contents of the letter are otherwise permissi-
ble under Section 8(c) of the Act. In context, it is apparent
that what Murray was attempting to convey was that
Respondent would continue its open-door policy of
listening to employees' problems and that- discussions
concerning the union activity were no exception. The Act
does not preclude noncoercive discussions relating to
union representation between employer and employees
and I do not think it can be inferred that Respondent
intended that its invitation would culminate in coercive
conversations or that such would be the natural or
foreseeable consequence of the invitation . There is no
contention or evidence that Respondent did not maintain
an open-door policy. Nothing in the letter compels a
response and, contrary to what the situation might be if the
same statement were made in a personal confrontation, no
awkwardness or negative inference flows from a failure to
respond. Accordingly, I conclude that Murray's August 23
letter does not constitute interrogation prohibited 'by
Section 8(a)(1) of the Act.
On August 29, some union literature was distributed at
Respondent's plant. On August 30, Respondent mailed the
following letter to its employees:
August 30, 1974
To Our Employees and Their Families:
We watched with interest while the "strangers at the
gates" handed out propaganda on their respective
unions proclaiming your rights and their promises.
There is something we should tell you about those
cards which were attached. -
The cards, when signed by you, directly authorize these
strangers to represent you during negotiations with the
company. There will be no election. That's right. NO
election. NO chance for you to express your opinion. NO
opportunity for you to vote whether you want a union
or not as guaranteed by the Labor, Management
Relation Act of 1947 (known as the National Labor
Relations Act). That card is as good as a ballot, and
when the National Labor Relations Board is convinced
that the union has enough cards (that's right; the
NLRB decides, not you), you will have a union whether
you wanted one or not. Read it carefully. It says that I
583
your name authorize union name to represent me in
collective bargaining. What could be clearer?
Yes, it is frightening, but you can do something about it
whether you have sent in a card or not. Here is what
you can do:
A. If you have sent in a card, you can send a
certified letter (return receipt requested) to the
union requesting that they return your card. They
must do this . You have that right.
B. If you are still undecided, don't send in your
card. Make these strangers give you your right to
vote.
Either union would like to avoid an election. Not only
do these cards insure them immediate recognition as
the sole bargaining agent for you, but the cards save
them from spending other union member 's dues on a
long costly campaign that may not succeed. No one is
going to spend a lot of money on anything that doesn't
have a profitable return.
Again, we invite your comments and questions con-
cerning this new, very complex problem. Don't let your
rights be negated by a few clever individuals.
Sincerely yours,
/s/ Mark A. Winsberg
Mark A. Winsberg
Personnel Manager
The complaint alleges that by this letter, Respondent
solicited employees to revoke any union authorization
cards, they may have signed and materially misrepresented
to employees the purpose of such cards by stating that the
signing of the cards would negate the possibility of any
Board-conducted election, thereby discouraging said em-
ployees' participation in and support of the Union.
Whether an employer violates Section 8(a)(1) of the Act
by involving itself in employee revocation of union
authorization cards depends upon the degree of employer
participation in the process. Where the idea of revocation
was initiated by employees, the fact that the employer gives
information to employees as to, and actually assists in, the
mechanics-of revocation is not violative of the Act if the
employee has the opportunity to continue or halt the
revocation process without the interference or knowledge
of the employer. Jimmy Richards Co., Inc., 210 NLRB 802
(1974); Cf. Gilbert International, Inc., 213 NLRB 538 (1974).
However , giving assistance where the idea originates with
the employer is violative of the Act. Here Respondent gave
unrequested advice to employees as to the mechanics of
revocation with no attempt to elicit information as to
whether employees availed themselves of this advice and
with no assistance or offer of assistance . In these
circumstances , I conclude that Respondent has not
violated Section 8(axl) of the Act by informing employees
of the procedure for revoking their union authorization
cards. See Hatteras Yachts, AMF Incorporated 207 NLRB
1043 (1973), fn. 2, where the Board found unnecessary, and
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declined to adopt the Judge's conclusion, that a similar
situation would be violative of the Act.
I also find that Respondent did not violate the Act by
informing employees that their authorization cards author-
ized the Union to represent them without an election.
General Counsel contends that Respondent attempted to
frighten employees into revoking their authorization cards
by telling them that a Board-conducted election would be
precluded by the cards. The statement is certainly an over-
simplication which could be so interpreted, and if
Respondent had taken steps to encourage revocation the
letter might in all the circumstances be considered
coercive. However, Respondent took no such steps. The
letter was correct as far as it went . Certainly the Union
attempted to gain recognition without an election. If
Respondent had agreed, an election would have been
precluded. That Respondent did not qualify its statement
with an explanation of the Board's Gissel3 doctrine or that
the word will was used rather than may does not, in my
opinion, make the statement coercive. Furthermore, the
Union had ample opportunity to correct any erroneous
impression left by Respondent's letter
C. The Wage Increase and the Promise of
Increased Insurance Benefits
On August 29, the following memo was distributed to
Respondent's employees-
To: All Employees
DATE: August 29, 1974
FROM: G.E. Murray
SUBJECT: Increase in Wages
We are happy to announce that effective Monday,
September 2, 1974, all hourly, full-time employees who
are on the payroll as of September 1, 1974, will receive
a general increase of twenty cents (20t) per hour added
onto their base rates.
Additionally, all rate ranges have been reviewed, and
where it was necessary, were adjusted upwards to keep
pace with the industry. We sincerely believe that our
rates continue to be as good or better than those being
paid at comparable companies in the area.
Further, our health insurance carrier has informed
us that due to increased medical and hospital costs, our
insurance rates will be raised approximately 20% to
30% this October. We intend to absorb this increase in
order to continue to provide health and life insurance
coverage at no cost to you and continue to offer
dependent coverage at the same low cost. We calculate
this indirect savings to you at an additional fifteen
cents (15¢) to twenty cents (20¢) per hour.
The cooperation that has been shown and the effort
that has been made during the first year of our
operation and during the recent OSHA inspection is
sincerely appreciated by your company's management.
3 N L R.B v Gissel Packing Co, 395 U S 575 (1969)
4 Further complicating the situation , according to Murray and Sherwood
Yoshimoto, Respondent 's controller, was the fact that (I) a loan of $350,000
which Respondent was attempting to negotiate was dependent upon a
/s/ G. E. Murray
G. E. Murray
Vice President and General Manager
The wage increase went into effect as announced.
Respondent denies that the wage increase was granted in
order to discourage its employees from securing union
representation. Rather, Respondent contends, a wage
increase was planned prior to the advent of the Union but
was delayed due to an unexpected financial crisis. Mark
Winsberg testified that when he became personnel manag-
er for Respondent in October 1973, Respondent had no
formal wage structure and no industry wage survey had
been conducted since March 1972. From October 1973
through the first part of February, supervisors were
permitted to grant merit increases to individual employees
to bring Respondent's wage rates in line with industry rates
as shown by a quick, informal survey made by Winsberg.
Around January 1, Winsberg began a full wage and salary
survey which went into effect March 1. The details of this
wage plan are unclear from Winsberg's testimony. Howev-
er, Henegar testified that Respondent's wage policy was to
review every 6 months the work performance of all
employees who were above the midpoint of the wage scale
for a particular job classification and to review every 4
months those at midpoint or below. If performance was
satisfactory, wage increases would be granted.
Winsberg further testified that beginning in May he
began to experience some difficulty in recruiting new
employees. As he interviewed applicants and learned of the
wage increases they had been receiving, he became
convinced that a general spiraling of wages was occurring
in the area. This was confirmed when he attended a
seminar in mid-July on.the "Impact of Inflation" conduct-
ed by Manufacturers and Merchants, herein called M &
M, an employer association of which Respondent is a
member. This seminar, which covered wage trends in the
industry and reviewed a variety of merit and general
increase systems being utilized, convinced Winsberg that
wages were moving faster in southern California than
Respondent's wage structure contemplated. About 2 days
later he recommended a wage increase to Murray. Murray
said he agreed but didn't know if Respondent could meet
the payroll. He said they would discuss it later.
Murray testified that in early June during an interim
audit, the auditors engaged by Respondent discovered a
computer error which could have a significant effect on the
cost assigned to Respondent's inventory and perhaps
completely eliminate Respondent's anticipated profit.4
While this issue was unresolved, Respondent was in no
position to grant a wage increase . On August 16, the
auditors informed Respondent that the problem had been
solved, leaving Respondent in about the same financial
position it was in before the error was discovered.
That same afternoon, Murray instructed Winsberg to go
to M & M, obtain the relevant information, and make a
recommendation as to the amount of wage increase to
grant . On August 19, Winsberg spent the day in the M &
"clean opinion " of Respondent's financial status from'an independent
auditor and (2) it was obligated under the sales-purchase agreement to make
annual payments of $400,000 for the business
AIRCRAFT HYDRO-FORMING, INC.
M library gathering wage data from which he concluded
that Respondent's wages were behind that of the industry.
Based on this information, on August 20, Winsberg
recommended to Murray a 20-cent across-the-board wage
increase. He also recommended that Respondent's wage
structure needed to be adjustedfrom 15 to 40 cents an hour
on an individual basis.5 In support of this latter recommen-
dation he explained that Respondent had granted approxi-
mately 8.7 percent in general increases and it appeared that
the rate of inflation was about 13 percent. Winsberg
further stated, "if we don't do it we are going to be in big
trouble." Murray said it was a lot of money and he wanted
to sleep on it.
Both Winsberg and Murray testified that on August 21,
Murray agreed to Winsberg's recommendation. However,
it was not announced to employees until August 29.
Winsberg testified that they delayed announcing-the wage
increase because they anticipated a change in insurance
coverage-either cancellation or a rate increase. According
to Winsberg, he felt that the wage increase and the change
in insurance coverage should "go hand in hand" because
the insurance coverage change was an indirect benefit to
employees since the Company was going to assume the
increased cost and therefore, both the wage increase and
the change in insurance coverage had an effect on the
employees' paycheck. He denied that the amount of the
wage increase was dependent upon, or interrelated with,
the amount of increase in the insurance premium.
Winsberg testified that he first learned of the Union's
organizational effort on the afternoon of September 22. He
states that he is able to recall the exact date because it was
the payday after he went to M & M. Murray says he
cannot recall any knowledge of-union activities on August
16, but` he doesn't recall whether he had knowledge by
August ' 19. According to him, he had decided in mid-July
to give an `across-the-board increase in an unspecified
amount depending upon' favorable resolution of the
accounting problem.
As to the insurance coverage, Respondent had assumed
its predecessor's medical policy and the carrier wanted
Respondent to assume the liability incurred by the
predecessor. The policy was due to expire October 1 and
there had been indications from the carrier that the policy
would either be cancelled or there would be a sizable
increase in premium. Whatever the change, the carrier was
required to give Respondent notice 30 days before the
expiration of the policy. Respondent's insurance policy was
cancelled and its insurance broker indicated that the
premium would be approximately 30 percent higher to
maintain' the same benefits. Winsberg contends that as of
August. 29, when the memo was distributed, Respondent
still anticipated a sizable premium increase. Actually, new
insurance coverage was obtained at a slightly reduced
premium on September 10 to be effective October 1.
It is well-settled that an employer violates Section 8(a)(1)
of, the Act when it, grants benefits to employees in order to
thwart the organizational efforts of a labor organization.
N.L.R.B. v. Exhange Parts Co., 375 U.S.'405 (1963).
However, it is similarly well established that an employer
5 It is not clear from the record but it appears that this referred to
individual classification rather than individual employees.
585
who is already planning a change in employee benefits
when it becomes aware of its employees' union activities
violates the'Act only-if it alters plans already in process,
Stumpf Motor Company, Inc., 209 NLRB 431 (1974) or if a
change, otherwise permissible, is announced in a manner
calculated to discourage union activity. The latter situation
is not present here. The memos announcing the wage and
insurance change make no reference to union activity nor
is there any evidence that the changes were ever presented
to, or discussed with, employees in a, manner from which
an intent to discourage union activity could be inferred.
The record establishes that since October 1973, on an
individual basis, Respondent had granted wage increases,
in an effort to keep apace of industry rates. Winsberg
testified that the difficulty he began, to experience in May
recruiting employees, coupled with the inflation seminar he
attended in mid-July, convinced himt that ' Respondent's
wage structure was not geared to effectively compete in„the
labor market, so he recommended a general, wage increase
which Murray accepted in principal but could not act upon
because of the financial crisis which had developed due to
an accountingerror. The record also establishes that'on the
same day that the financial crisis was resolved, August 16,
Murray. instructed Winsberg to make a wage -survey and
based thereon a recommendation for an increase in a
specific amount. Winsberg made a recommendation on
August 19 which was approved by Murray on August 20.
Although the union activity began, on August l6, the
record does not establish whether activity was open on that
date. Winsberg testified that'he firstlearned of the union
activity on the "afternoon of August 22. Murray does not
recall the exact date he learned, of the union activity. He
testified that he had no knowledge on August 16. He
doesn't recall having knowledge as early=as August 19, but
the date he learned was so close to August 19 that he can't
be absolutely certain., General Counsel adduced no
evidence "to establish knowledge prior to August 23, the
date Respondent-, distributed a memo to employees
concerning the Union. General Counsel argues that illegal,
motivation can be inferred from the fact that no general
increase had been granted since Respondent began
operations on June 30, 1973, and that .the increase was
granted during the Union's organizing drive.
In the circumstances, these contentions are not persua-
sive. There is no evidence to refute' Winsberg's testimony
that Respondent had endeavored to keep its wages in a
competitive position since October 1973,6 and that it was
only in July, in the midst 'of a financial crisis, that it
became fully apparent that this -could only be accom-
plished by a general increase. Immediately upon resolution
of this financial problem, and prior to any knowledge of
union activity, Respondent took steps to ascertain the
amount of increase necessary to-make it competitive in the
labor market and made a definite decision on August 20-
a date prior to any evidence of knowledge. In these
circumstances, although the time lapse between the
decision and the announcement on August 29-when
Respondent did have knowledge of the union activity and
had begun a' campaign in opposition thereto-is suspi-
6 According to Murray, the sales-purchase agreement prevented changes
prior thereto
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cious , absent other evidence to establish,a causal connec-
tion between the wage increase and the union activity, it is
not sufficient to overcome Respondent's, defense. As the
Fifth Circuit, has stated,7• "An unlawful, purpose, is not
lightly to be inferred. In thed choice between lawful and
unlawful motives, the record taken as a whole must present
a substantial basis pointing toward the unlawful one."
Here such a' substantial basis is not present. Accordingly, I
find `that a preponderance of the evidence fails to establish
that Respondent violated the Act by the wage increase.
As td-the insurance benefits, obviously, if Respondent's
coverage was cancelled, it had no alternative but- to secure
new coverage . The rationale for the alleged violation is not
entirely clear, however, it appears from General Counsel's
posttrial brief that the alleged violation- arises from the
manner in 'which the change was' announced. Specifically,
General Counsel contends that"Respondent's failure` to
correct `the error contained' in the A lgust 29 letter
regarding the increased'cost, of'insurance coverage and
Respondent's intent to abs'orb` such additional cost tended
to deceive employees into thinking `;they were gaining an
additional benefit and that Respondent's failure to correct
this impression was intended to convince the employees
that they would be better off without a union. I find no
merit in this argument. There is no evidence to, contradict
the testimony of Respondent's witnesses that at the time of
the August 29 memo it did anticipate, on the advice of its
broker, that insurance costs would increase as set forth in
the memo. Further, contrary ,to General Counsel's conten-
tion, Murray's .September 19 memo does correct the earlier
statement that, insurance, costs would increase by 20 to 30
percent. Accordingly, I, find that Respondent did -not
violate Section 8(aXl) of the Act by, implementing ,a
change in insurance coverage nor by the manner in which
this change was communicated to employees.
The complaint also alleges in paragraph 11(c) that
Respondent violated the Act by its promise of increased
insurance benefits contained in the following memo mailed
to employees on September 19:
To: Our Employees
- DATE: September . 19, 1974
FROM : G.E. Murray, Vice President & General Manag-
er
suB.iEcr: New Insurance Program
Recently the existing carrier for our employee health
and life insurance sent us a cancellation notice. The
Company, believed that a better plan for the same costs
could be, obtained from a different carrier. Our belief
was confirmed by the facts:
Effective October 1, 1974, your new program will be
covered by Blue Cross of , Southern California and
Phoenix,Mutual. All deductible accumulations that you
have earned to date for 1974, will be, honored by the
new carrier.
A. Hospital in-patient services are now covered
100% at 365 days per disability.
B. The start of 100% coverage of major medical
has been lowered-to $2,000.00.
C. The lifetime ,major medical has been raised
to $250,000.00.
The new plan incorporates all the fine features of our
present coverage and includes, these changes:
So that no one will lose benefits that they are currently
entitled to, we urge you to send all your current
physician, hospital, and prescription bills into the
present insurance carrier. If you are presently under
physician's care, the present carrier will continue to
honor your claims -for that medical care until' October
1, 1974.
We are attaching a brief description of your new
coverage, and during., the next week, we will be
conducting enrollment meetings for the new insurance.
In the meantime, should you have any questions
concerning this change, please contact Mark Winsberg,
Personnel Manager. He will be happy to assist you.
We are happy to be able to provide you with this fine
coverage at no additional cost to you.
/s/ G.E. Murray
In the circumstance of the carrier's cancellation of
insurance coverage, I fail to perceive a violation of the Act
by Respondent's obtaining slightly better coverage at a
slightly reduced premium or by Respondent notifying its
employees as to the changes in the coverage, Accordingly,
I find that Respondent, did not violate Section 8(a)(1) of
the Act as alleged in paragraph 11(c) of the complaint.
D. The Suggestion Box
On ,October 2, Respondent put up a suggestion box with,
the following notice: ,
TO: NOTICE TO ALL EMPLOYEES
DATE: October 2, 1974
FROM: G.E. Murray
As the COMPANY has previously advised you, there will
be an election among our employees to determine
whether of'not-they desire an outside organization to
represent them. This election will be held on October
24, 1974.
The fact that an election is to be held may have raised
some questions in, the minds of our employees. In order
that all, of our employees may be informed as to the
facts so that they may intelligently cast their ballot in
the upcoming election, we have decided 'to conduct an
answering service for all employees.
7 N L.R.B v. McGahey et at., d/b/a Columbus Marble Works, 233 F.2d
406,413(1956)
AIRCRAFT HYDRO-FORMING, INC.
Between now and October 11, 1974, the COMPANY will
answer publically [sic] and in writing within 48 hours
all written questions submitted by any of our employ-
ees.
If you have a question concerning the election, the
COMPANY, the UNION, or any related matter, please drop
it in the box set up near the time clock.
You should not sign the question because we are not
interested in identifying the questioner. We are only
interested in making all the facts concerning this
important matter known to our employees. We will
check the box for questions each morning and within
48 hours give the COMPANY's answer to the question(s)
in writing on the BULLETIN BOARD.
/s/ G.E. Murray
G, E. Murray
The only evidence adduced by General Counsel as to the
posted questions and answers is from employee Ronald
Capps,-who testified:
A. Well, one of the questions was, "Some of the
union people tell us that the 20 cents raise was to buy
our vote." Is this true?
And the company's answer was, "No, it wasn't. We
had made a wage review of the area and decided 20
cents was needed at this time and it was done before
the company had any knowledge of the union."
Another question was:
"What about parties?"
And the company's answer was, "We don't know
what is meant , by this question, but we said we would
answer all questions."
"There has been a lot of talk' of union parties and we
want you to know that unions don't give; they take."
"See another letter for how much."
And another question was:
How much are union dues?
And the company's answer was that it was generally
two hours' pay a ,month and that their base rate was
$9.50 an employee times the number of employees was
18,000 a year, and that went on like that.
I don't remember all of it.
That is about all I can remember of the letters.
Q. Do you recall any questions and answers on
employer-employee relations?
A. Yes.
There was some question about why doesn't the
company give parties, or something and the company's
answer was that they admitted there was a lack of
communication, but they didn't know if parties was the
answer for it; if you really wanted, you could take your
union dues and have your own parties.
Respondent put into. evidence several questions and
answers that were posted on the bulletin board that it
contends are the ones to which Capps referred:
587
October 7, 1974
QUESTION:
WHAT WILL THE UNION COST ME OUT OF MY PAY?
ANSWER:
UAW CONTRACTS, IN THE PAST, HAVE PROVIDED FOR
DUES FROM THEIR MEMBERS TO BE AS FOLLOWS:
MONTHLY DUES EQUAL TWO (2) HOURS PAY PER
MONTH. THIS MEANS IN OUR COMPANY THE
AVERAGE AMOUNT OF DUES WILL BE $8.50/PER
EMPLOYEE PER MONTH OR $102.00/PER YEAR.
BASED ON THE NUMBER OF EMPLOYEES , AT YOUR
COMPANY, THIS MEANS THAT THE UNION WILL
COLLECT' $ 18,360.00 PER YEAR IN DUES FROM ALL
OF OUR EMPLOYEES. AN INITIATION FEE-IF CHARGED
WILL BE $20.00 PER EMPLOYEE ($3,600.00 PER
YEAR).
THE COMPANY BELIEVES THAT THIS IS A HIGH PRICE TO
PAY FOR YOUR RIGHT TO WORK.
QUESTION:
/S/ G.E. MURRAY
G.E. MURRAY, VICE PRESIDENT
AND GENERAL MANAGER
OCTOBER 8, 1974
I HAVE HEARD IT RUMORED THAT IF THE UNION IS NOT
VOTED IN, 'THEY HAVE THREATENED TO TAKE THE
COMPANY TO COURT FOR "BRIBING" US WITH A 200 PAY
INCREASE AND BETTER MEDICAL INSURANCE. IS THIS
TRUE? IF SO, ISN'T THIS -BLACKMAIL ON' BEHALF OF THE
UNION TO MAKE SUCH A THREAT?
ANSWER:
WE DO NOT KNOW WHAT THE UNION INTENTIONS ARE.
WE DO KNOW THAT THE USE OF THREATS IS AN OFTEN
USED DEVICE OF THIS UNION.
/S/ G.E. MURRAY
G. E. MURRAY, VICE PRESIDENT
AND GENERAL MANAGER
OCTOBER 8, 1974
QUESTION:
WHY CAN'T THE COMPANY HAVE SOME SORT OF PARTIES
SO THAT THE PEOPLE CAN GET TO KNOW THE
MANAGEMENT BETTER? IT IS TAX DEDUCTIBLE.
ANSWER:
PARTIES ARE A MEANS OF INCREASING EMPLOYEE
COMMUNICATIONS. THE COMPANY HAS NOT BEEN AS
,COMMUNICATIVE IN THE PAST AS WE SHOULD HAVE BEEN.
THIS IS DUE IN PART TO THE TREMENDOUS PROBLEMS
CONFRONTING US. WE - INTEND TO IMPROVE OUR
COMMUNICATIONS IN THE- FUTURE. WHETHER OR NOT A
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PARTY IS THE BEST WAY TO DO SO REMAINS TO BE SEEN.
/S/ G.E. MURRAY
G.E. MURRAY, VICE PRESIDENT
AND GENERAL MANAGER
OCTOBER 8, 1974
IN A UNION SHOP, IF YOU ARE CLASSIFIED INTO JOB
DEPARTMENTS, PLASTER, DIE, ETC.,, AND THERE IS NO
WORK FOR THAT DEPARTMENT, CAN YOU BE ASSIGNED TO
WORK IN ANOTHER DEPARTMENT OR MUST YOU GO
HOME?
ANSWER:
THE FLEXIBILITY FOR THE USE OF EMPLOYEES VARIES
FROM CONTRACT TO CONTRACT. UNIONS TEND TO
RESTRICT THE USE OF EMPLOYEES IN DIFFERENT
CLASSIFICATIONS.
IT IS TO BE SUPPOSED THAT IF THE UNION HAS ITS WAY,
THE EMPLOYEE WOULD NOT BE PERMITTED TO WORK IN
ANY CLASSIFICATION BUT HIS OWN. THE UNION OF
COURSE WOULD WANT THE EMPLOYEE TO DO NOTHING IF
THERE WERE NO WORK AVAILABLE TO HIM, BUT NO
COMPANY WOULD EXIST LONG HAVING EMPLOYEES
SITTING AROUND DOING NOTHING. SO THAT THE
NATURAL RESULT WOULD BE THAT THE EMPLOYEE
WOULD, FIND HIMSELF WITHOUT WORK AND BE
'PERMITTED TO CHECK OUT. YOU MUST UNDERSTAND THAT
NO EMPLOYER WANTS SUCH A SITUATION TO EXIST IN HIS
COMPANY.
/S/ G.E. MURRAY
G.E. MURRAY , VICE PRESIDENT
AND GENERAL MANAGER
OCTOBER 14, 1974
QUESTION:
YOU STATED THAT EMPLOYEES THAT ARE IN THIS UNION
WOULD HAVE TO PAY DUES. CAN YOU SHOW IN A
HANDBOOK WHERE THEY WOULD HAVE TO PAY THIS AND
OTHER THINGS THAT THEY MIGHT NOT OF TOLD THEM?
ANSWER:
MOST UNION CONTRACTS HAVE A UNION SECURITY
CLAUSE. TYPICAL OF SUCH A CLAUSE IS' THE CLAUSE
CONTAINED IN THE DOUGLAS CONTRACT; IT PROVIDES AS
FOLLOWS:
REFER TO ATTACHMENT EXHIBIT "A"
THIS MEANS THAT AN EMPLOYEE IS REQUIRED TO PAY
UNION DUES IF HE WANTS TO WORK FOR DOUGLAS.
CURRENTLY UAW DUES ARE TWO HOURS OF BASE PAY PER
MONTH THAT MEANS THAT EMPLOYEES AT AIRCRAFT
HYDRO-FORMING, INC. WOULD PAY ON THE AVERAGE OF
$8.00 TO $9.00 PER MONTH. SOME EMPLOYEES WOULD
PAY AS HIGH AS $12.60 PER MONTH.
/S/ G.E. MURRAY
G.E. MURRAY, VICE PRESIDENT
AND GENERAL MANAGER
General Counsel contends that the suggestion box was
intended to solicit grievances in violation of the Act. The
evidence does not'support this contention. The accompa-
nying notice clearly indicates that Respondent contemplat-
ed use of the suggestion box as a vehicle for campaign
propaganda. Nothing in the notice or in the evidence
adduced in support of this allegation indicate that
Respondent was soliciting grievances with an, implied
promise to adjust same. See -.L. Meyer Company, Inc., 177
NLRB 565 (1969), Sports Coach Corporation of America,
203 NLRB 145 (1973). Nor do I find, as contended by
General Counsel, that an answer which stated that "unions
do not give, but take" constitutes disparagement of, the
Union in violation of the Act. In these circumstances, I
conclude that Respondent's utilization of a suggestion box
during the Union's organization campaign is not violative
of Section 8(a)(1) of the Act.
E. The Alleged Interference, Threats, and Coercion
by Henegar
On August 29, Leadman Ronald Bula told employee
James Gambrell that Machine Shop Supervisor Larry
Henegar had accused him of padding his rates. On August
30, Gambrell went to Henegar and discussed with him
what Bula had said. According to Gambrell, Henegar said
he did not accuse him of cheating on his rate, that all he
said was that more parts were coming out than he could
account for. During this conversation, after the discussion
as to the production rate, Gambrell said, "By the way,
what do you think of this union mess?" Henegar replied,
"Well, I don't think the Union is going to_ get in because
they only have something like 35 percent of the employees
signed up." Gambrell asked, ",Who is feeding you your
information?" Henegar replied, "I have my ways of finding
out." Gambrell responded, "I doubt it very seriously-I
doubt very seriously if your information is right because I
know for a fact that we have well over 50 percent of the
employees signed up." Henegar said he had been a union
steward once for over a year, that,the Union would make
his job much easier because whenever employees ran out of
work, he would not have to worry about what to do with
them, he would merely send them home. Gambrell said he
thought the Union would be very good for the Company
because 75 percent of the employees were minorities and
the Company was giving them a rough time and depriving
them of a lot of things they shouldbe getting. Henegar said
that Respondent's attorney, Potts, was quite familiar with
union cases and that Respondent was going to "put up a
heck of a fight" to keep the Union out. To which Gambrell
replied, "We are going to put up a heck of a fight, also to
get the Union in" and proceeded to explain -why he
thought the Union would be very beneficial for the
Company.
Henegar'testified that Gambrell came into his office and
asked why Henegar had accused him of padding his
production. Henegar replied that he hadn't accused
Gambrell, that he had merely asked Bula if there was some
problem because the parts counts were not coming out
right, that he asked Bula and the night foreman to' begin
verifying all counts. Henegar states that he doesn't recall
how the subject of the Union arose but he believes
Gambrell asked his opinion regarding the Union and said
he felt that 75 percent or more of the employees had signed
union authorization cards. At which point, Henegar
mentioned that 30 to 35 percent was needed for an
election. He denies mentioning an attorney named Potts
and states that at the time he did not know that the name
AIRCRAFT HYDRO-FORMING, INC.
of the Company counsel was Potts. He admits that he said
something to the effect that a union would make his work
easier. He denies that Gambrell expressed any personal
feeling as to the Union and further denies that he made
any estimate to Gambrell as to the strength of the Union in
the plant.
Subparagraph 10(a) of the complaint alleges that
Respondent violated the Act by saying that only 35 percent
of the employees had signed union authorization cards and
that Respondent would put up "a heck of a fight" to keep
the Union out. I credit Henegar's denial that he made these
statements. Henegar impressed me as an honest and
reliable witness. He testified as to several conversations
with various employee witnesses, none of whom contradic-
ted him in any substantial respect. Gambrell, on the other
hand, showed a tendency to slant testimony. In this regard,
as indicated below, he testified that he was not demoted,
yet the personnel advice form clearly states that he was. He
said the reason Henegar gave for reclassifying him to B
operator was that he had not had an opportunity to do
setups and read blueprints. The personnel advice form
clearly states "not able to do setups"-a statement he did
not protest. Henegar testified that he had assigned
Gambrell to do setups and his performance was unsatisfac-
tory. Although Gambrell subsequently testified on rebuttal,
he did not deny this. Furthermore, Gambrell was very
emphatic that the conversation occurred prior to Labor
Day and that Henegar referred to Respondent's counsel
Potts. Yet, Henegar testified that he had never met or
heard of Potts prior to Labor Day and Murray testified
that Potts was not retained until after the Union's demand
was received on September 3. Moreover, in the context of
the entire conversation, I would not consider the alleged
statements as violative of the Act.
Accordingly, I find that, Respondent did not violate
Section 8 (a)(1) of the Act as alleged in subparagraph 10(a)
of the complaint.
Capps testified that in mid-September Henegar told him
that unions didn't like to work overtime and if they had a
union it was more than likely that they would work only 40
hours a weeks I find that this statement does not constitute
interference, restraint, or coercion within the meaning of
Section 8(a)(1) of the Act.
According to Ronald Bula, leadman in the drill shop,9
during the early or middle part of September Henegar told
him that if any of "his people" were caught soliciting or
talking about the Union on company time they would all
have their checks ready for them. Bula replied that his
people knew better than to do it on company time, they
would do it on breaks and after work. Henegar's version is
that he told Bula he did not want to see anyone in Bula's
area talking about the Union and distributing literature
during work time, that they could be terminated. Bula
replied, "none of my people would do that; they know
better." Even if Bula's version is credited, Henegar's
statement is not violative of the Act. It is true that the term
8 According to Henegar, Capps said he had been working too many
hours, that he would like to see less overtime. Henegar said he didn't see any
way the hours could be decreased because' of contract backlogs, that the
hours might have to be increased. Henegar further related that he had
worked at North American for a year without overtime and was glad for the
overtime at Respondent Capps said he had worked in a plant with a union
589
"company time" is overly broad, Ohio Masonic Home, 205
NLRB 357; Florida Steel,Corporatiox, 215 NLRB No.
23, but Bula's statement made it clear that he understood
Henegar to be referring to working time and Henegar did
not contradict his assumption. Accordingly, I find that
Respondent did not violate Section 8(a)(l) of the Act as
alleged in subparagraph 10(e) of the complaint.
Employee Estelle Toles testified that on September 17
Henegar called her into his office for an appraisal
interview. He said he couldn't give her a raise because of
her low production, and even if he wanted to give her a
raise he couldn't because the Union was trying to come in
and the Government had a wage freeze on and he couldn't
give out any moneys. On September 18, Henegar again
told her that the Union was trying to come in and he could
not grant any raises because the Government had a wage
freeze on.
Henegar denies that his discussion with Toles occurred
in the context of a regularly scheduled review or that he
said all raises were frozen. Rather, he testified that during
the first week or two of September, Toles requested to be
transferred from the burr bench to the drill press
department with an increase in pay. Thereafter, he
reviewed her production and attendance records and called
her into his office for an interview on September 15 or 17.
At that time, he told her her production was too low, issued
her a warning notice regarding her production and
informed her that she could not receive a special increase
at that time. He further told her that he did not want to
give any special increases-those given outside the regular
4 or 6 months review period-because of the union
activities, that it might appear that he was trying to buy her
vote or show unfair partiality and he didn't want to do
anything out of the ordinary. He admits'that he used the
term "frozen" with regard to special merit increases but
denies ever saying that general merit increases were frozen.
The next day Toles told Henegar that she thought he was
discriminating against her. Henegar said if she felt that way
he would set up an appointment for her to talk to his
immediate superior if she wished. She requested such an
appointment, which was arranged with Program Manager
Carl Nelson.
I credit Henegar's account which does not conflict with
that of Toles but does give more detail, thereby placing the
statement in context. When considered in context, it is
obvious that Henegar was referring to wage increases
which did not result from regularly scheduled performance
reviews. Accordingly, I find that Henegar's statement that
he could not give Toles an increase because there was a
freeze on wages due to the union campaign did not
constitute interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act.
Employee Rene Entzminger testified that on September
3, Henegar came to his work station and asked him if he
had gotten a letter in the mail stating that the Union was
trying to get in the shop. Entzminger replied yes and
contract but had quit after a few months because he couldn't get promoted
faster than the contract required.
9 There is no contention that Bula is a supervisor . Leadmen are
specifically included in the description of the appropriate unit and he voted
unchallenged in the election
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henegar asked what he thought about it. Entzminger said
as far as he was concerned , a union would be the best way
for the employees to better themselves . Later in the
conversation Henegar said even if Entzminger had signed a
union authorization card, he could send a registered letter
to the Government stating that he wished to withdraw
from the Union.
Henegar's version is slightly different . According to him,
he asked Entzminger if he had received a letter from the
Company regarding the union organizing campaign.
Entzminger said he had . Henegar said , "Well, you know
you can call the union card back in if you want to send a
registered letter to the National Labor Relations Board."
Entzminger said, "Yes, I read the letter." Henegar also said
that when he worked at North American Aviation, he had
once worked for an entire year without any overtime.
Henegar further said that in his experience, unions
preferred hiring more employees instead of keeping the
number of employees low and working longer hours.
Entzminger said he had once worked in a plant where the
union had been a good deal for him. He said , he had to
consider ' his family and if he could make more money
through the Umon , he was for it. Henegar replied, "Well,
you have to watch out for your family, that is what you are
working for, to support your family."
The two versions are not actually conflicting . Henegar's
version , though more detailed , corroborates Entzminger's
except that his account does not include asking.Entzminger
what he, thought about Respondent's August 30 letter.
However , he does not deny asking this question. Both
Henegar and Entzminger impressed me as honest and
forthright witnesses and I find that a composite of their
testimony more accurately reflects what was said . I further
find that Henegar's inquiry as to what Entzminger thought
of the letter was an attempt to elicit information as to his
union sympathies . Since the inquiry was unaccompanied
by, assurances against reprisals or any indication - that the
information was sought for legitimate purposes, it was
inherently coercive and violative of Section 8(a)(1) of the
Act. In the context of this interrogation and Entzminger's
response indicating a preference for the Union, I further
find coercive and violative of Section 8 (a)(1) Henegar's
statement that if Entzminger had signed a union authoriza-
tion card; he could send a letter withdrawing his card.
F. ''Alleged Threats and Coercion by Reibsome
Employee Estelle Toles testified that sometime in August
as she , and fellow employee Claudia Davis were talking at
Toles' machine , they were approached by William Reib-
some, night shift supervisor in the machine shop . After an
exchange of a few words Toles resumed operating her
machine and Davis and Reibsome continued talking. Toles
thought they were discussing the -Union so she told Davis
not to say anything about the Union because Reibsome
was the , foreman . Reibsome asked why they wanted a
union . Toles replied , "to better our conditions." Reibsome
said if the Union came in Ralph Williams 10 would close
the shop down . Toles said, "he can't do that" and
Reibsome responded, "if you all leave the things' the way
they are eventually you will get what you want."
Reibsome admits that he said , before the Union got in or
if the Union got in, he believed Mr. Williams would close
the gates. However ; he denies saying, "if you all leave the
things the way they are eventually you will get what you
want." Davis testified that Reibsome said if the Union got
in they would close the shop , however, she does not recall
him making the remark that they would eventually get
what they wanted . Since Davis' testimony tends to
corroborate Reibsome , and he admits without hesitation
making the other remarks ascribed to him , I credit his
denial that he made such a statement . Accordingly, I find
that Respondent did not violate Section 8(a)(1) of the Act
as alleged in subparagraph 13(b) of the complaint. I further
find that Reibsome threatened , that Respondent would
close down if the employees chose the Umon as their
collective-bargaining representative. Even if Reibsome is
credited that he qualified - the statement by saying "I
believe," the "coercive effect of the remark is not lessened.
A threat of plant closure made in the context of union
organization has long been recognized as one of the most
potent weapons of employer interference with the rights
guaranteed to employees by Section 7 of the Act . N.L.R.B.
v. Gissel Packing Co., supra at 617-619; Chemvet Laborator-
ies, Inc. v. N.L.R.B., 497 F.2d 445 (C.A. 8, 1974); Altman
Camera Co., 'Inc., 207 NLRB 940 (1974). Accordingly,' I
find that Respondent violated Section 8(a)(1) of the Act as
alleged in subparagraph 12(a) of the complaint.
Employee Dana Dillman testified that on October 7
Reibsome approached' him and they started talking.
Reibsome said he didn't know how Dillman felt about the
Union, but if the Union got in and there wasn't any work
on the particular type of job that Dillinan was doing, that
instead of giving him other work as was the current
practice, they would send him home . Reibsome said he
knew this for a fact because he had seen it happen in his
prior experiences and sometimes employees were off for 3
or 4 days. Although he places it during the first week in
September, Reibsome admits that he had such a conversa-
tion with Dillman in which he said, "if this was a union
shop and in your classification if you ran out of work in the
mill department you would be sent home ; you could not go
to another department and perform work." Dillman ', said,
"Is this the truth?" and Reibsome replied, "Yes; in my past
experience , I have seen it . If has happened to me several
times."
Since Respondent's practice was to reassign employees
to other work when work in their area was low, I find that
Reibsome's statement constituted a threat of reprisal in
violation of Section 8(a)(1) of the Act.
G. Alleged Promise of Benefit by Winsberg
Around the end of September Respondent held a
meeting of machine shop and assembly area employees
with Winsberg as the principal spokesman . According to
employee Ronald Capps, Winsberg explained that Respon-
dent had obtained new insurance coverage because the old
coverage had been cancelled . Then someone inquired
10 Respondent 's president
AIRCRAFT HYDRO-FORMING, INC.
about dental coverage. Winsberg replied that due to the
troubles Respondent was having with UAW, they could
not add anything to the benefits the employees already
had, that if the Union were voted in, that would become a
negotiable item; if the Union weren't voted in he couldn't
make any promises, but maybe they could improve on the
insurance they had,ii In substantial agreement, Winsberg
testified that about September 10, he spoke to employees
regarding the new insurance coverage. He was accompa-
nied by a representative from the new carrier and by
Respondent's insurance broker. An employee asked if the
new plan included dental coverage and, if not, were they
going to get such coverage. Winsberg replied, that
"because, of the current problem that we were having
outside the gates, namely, the UAW, we were not able to
increase benefits at this time if it would mean an increased
cost to the Company. I indicated to them that if the UAW
got in, well, then that would be a negotiable item. If the
UAW didn't get in, well, I can't make any promises and I
don't know whether we will have it in the future or we
won't. There is always that possibility."
I find no violation of the Act in this statement. Rather,
Winsberg correctly stated what the law requires - that
dental coverage could be negotiable if the Union became
their bargaining representative and that no promises could
be made as to what would happen if the employees rejected
the Union. In the context of the purpose of the meeting
and the question raised, my conclusion is not changed by
the fact that Winsberg said something to the effect of a
possibility of some future improvement. Accordingly, I
find that Respondent did not violate Section 8(a)(1) of the
Act as alleged in subparagraph 12(c) of the complaint.
H. Gambrell's Discharge
James Gambrell worked for Respondent from March 5,
1974, until he was discharged on September 17. He was
hired by Personnel Director Mark Winsberg and Machine
Shop Foreman Bud Nosch as a drill press operator A at the
rate of $3.50 an hour. At the time of hire, he was told that if
he received a good evaluation at the end of a 90-day
probationary period, he would be granted a 25-cent raise.
On June 4, he inquired of Machine Shop Foreman Larry
Henegar 12 regarding his evaluation and promised raise.
Later that same day, Henegar told Gambrell he was being
reclassified to drill press operator B, because in Henegar's
opinion he was not an A operator, he had trouble doing
setups and had trouble on the machine. However, Henegar
continued, he thought Gambrell's attitude was quite good
and it would be fairer to demote him so he would be
reviewed as a B operator rather than being required to
meet the standards of an A operator. ' At the same time,
Henegar gave Gambrels a personnel advice form dated
11 Bula's account , though sketchier, is essentially corroborative of
Capps'.
12 Henegar replaced Nosch in May.
is This is from the testimony of Henegar, whom I credit. Gambrel]
testified that the reason cited for the reclassification was that he had not had
the opportunity to read blueprints and do setups. all functions of an A
operator. I find Henegar's version more consistent with the notation on the
personnel advice form. There is no evidence that Gambrell protested this
notation on the grounds that he had not had the opportunity to do setups.
14 Respondent has established an estimated time required for the
591
June 3, 1974, which states, "Demoted to B operator. Not
able to do setups." 13 Another employee was also demoted
at this time for similar reasons.
Gambrell was given written reprimands for low prod-
uctivity on two separate occasions, July 19 and September
6. On the first occasion, according to Gambrell, Henegar
told him that he had noticed a drop in his [Gambrell's]
productivity.14 Gambrell explained that the reason for this
drop was that he had been working on a hazardous
machine and also that the production rate on some of the
jobs was too high. Henegar said Respondent was going to
retime some jobs, but at present there was nothing he could
do about it. He said Gambrell should just try and do the
best he could, that he understood and knew Gambrell
could do the work. Henegar did not say that Gambrell
might be discharged in the future. Rather, he said the
written reprimand was to acknowledge that Gambrell had
been spoken to regarding his performance and that it
would not be held against him. However, the reprimand
states:
PROBLEM
Production for last 65 days is 60.6%. Production for last
3 wks. is 48%. Tardy or early outs is 18 times in last 65
days
SOLUTION
Employee must improve his production and attendance
Henegar's account, though not as detailed, is not in
substantial conflict with Gambrell's. Thus, Henegar testi-
fied that basically he told Gambrell there was a problem
with his production and attendance which would-have to
improve. He further told Gambrell not to get too upset,
that this was his first warning notice and it was given as
such to warn him to try to improve his production and
attendance.
During the period between the first and second, warning
notice, the union organizing campaign began on August
16. Gambrell was the chief employee for the Union. As
such, he was responsible for the distribution of all the
union authorization cards and for securing the aid of other
employees to solicit signatures on the cards. He attended
all union meetings held for employees and also attended all
of the meetings of the union organizing committee of
which he was a member. He signed a union authorization
card himself and personally secured approximately 55
signatures on authorization cards.15
Respondent contends that it had no knowledge of
Gambrell's union activity. However, Capps' credited
testimony is that during the first part of 'September,
Henegar told him that the whole idea of the union was
performance of various job operations. An employee's productivity
percentage is computed by dividing the actual time an employee spent on a
job into the standard time established by Respondent.
15 Respondent adduced evidence from employee Charles Crowder
purporting to establish that Gambrell was not the chief union organizer
However, Crowder admits that out of the approximately 150 cards signed,
he had some knowledge concerning the distribution of only about 35 cards.
Aside from the distribution of cards he offered no evidence to support his
contention that Gambreli was not the chief union organizer . Furthermore,
he admits that Gambrell was one of the three most active union adherents.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
originated and pushed from the drill section which was 100
percent for the Union.16 Gambrell testified that on August
23 during the morning break at the catering truck, where
employees were gathered, he called in a loud voice, "Sign
up for your union cards here, and any information you
might have pertaining to the union, see me at my lunch
hour. Among the persons around the truck were Henegar,
Nelson, and Richard Baldwin, a test engineer employed by
Respondent. Gambrell states that the three were about 6 or
7 feet from him and looking at him when he made the
statement and that Baldwin, who was standing next to him
said in a very low voice, "You are a brave one." Baldwin
was not questioned regarding this remark allegedly made
by him, however, he denies hearing the remark by
Gambrell. Henegar and Nelson also deny hearing the
remark. Bula also testified that Gainbrell shouted if anyone
hadn't signed an authorization card, they could get one
from him. However, when he was questioned as to how he
knew Henegar, Nelson, and Baldwin heard the remark, he
said when Gambrell shouted they all turned in his
direction. On the other hand, Gambrell testified that they
were looking at him when he made the remark and that the
only response of Henegar and Nelson was, "just bowed-
head-type reactions." In view of this difference in evidence
and Henegar's general credibility in other regards, I find
that the evidence is insufficient to overcome the denial of
Henegar and Nelson that they heard the remark and there
is no evidence that Baldwin is a supervisor. Gambrell
testified as to a similar incident on September 3 near the
catering truck when he looked directly at Henegar as he
inquired if , anyone needed to sign authorization cards.
Henegar denies hearing this remark.
Gambrell was given another written reprimand on
September 6 which stated:
PROBLEM
Production for last 90 days is 63.8% and employee has
had 20 early outs or tardiness in same time.
SOLUTION
The employee must improve his production and
attendance.
According to Gambrell, Henegar said the overall shop
percentage for the past 30 to 90 days was 70 percent but
Gambrell's percentage had dropped considerably to 63
percent. He further said that Gambrell had 20 early outs
and tardies.17 Gambrell replied that during this period, he
was having dental work performed and had brought in
letters from the dentist. Henegar said he wanted Gambrell
to work harder at increasing his output and that he felt
Gambrell was attentive, reliable, and capable of perform-
ing satisfactorily. According to Henegar, he gave Gambrell
the notice, told him the problem had gotten worse rather
than improving. Henegar said this second notice was
serious because over a substantial period of time there had
been no improvement. He told Gambrell what his
percentage was, explained how it was computed and
showed him the production record that he maintains.
16 Henegar admits that during the first week in September, he told Capps
that he had heard rumors that most of the Union's strength was in the drill
press section.
Gambrell was discharged on Tuesday, September 17.
According to him, Henegar called him into his office and
told him he was being terminated because of his low
performance. Henegar said he felt that Gambrell had been
a very good employee, that he was attentive, had a very
good attitude and his only fault was his low output. He told
Gambrell to feel free to call upon him if he needed a
reference but not to call the front office because they
wouldn't give him a reference. Gambrell said, "This isn't
the real reason I am being fired now, is it?" Henegar
replied, "No, not -" and cut it off at that. Henegar said he
felt that Gambrell was a little tensed up because of his
impending wedding. Gambrell further testified that Hene-
gar said it was not his decision to terminate Gambrell, that
the decision came from the front office and he just more or
less had to follow orders.
Henegar testified that he called Gambrell in and said,
"Jimmy, 1 have some bad news. At this time I hate to do it.
I know you are just getting married and everything else
and it is a bad time for you, but I just can't justify this low
productivity anymore. I am going to have to let you go."
Henegar further said that if there were any problems on
recommendations and if he needed a personal reference
that persons could call him direct and he would testify as
to Gambrell's attitude and work quality being good.
Henegar denies saying that low productivity was not the
reason for Gambrell's discharge or that someone higher
than him made the decision to discharge Gambrell. About
10 minutes later in the drill press section, according to
Henegar, "Mr. Gambrell came up to me and started
shouting. I won't use the exact language. That Mr. George
Murray and Mark Winsberg would not get away with this;
that he was not a dumb - a few other choice words and at
that point Mr. Ron Bula came up and said, 'OK, Jimmy.
Don't say any more.' and then he left." For reasons set
forth above in section E, I credit Henegar's account of the
discharge interview.
As' to this latter conversation, Gambrell denies that he
was shouting but does state that because of the machines,
the area where the conversation occurred is very noisy and
above normal tones are required. According to Gambrell,
he approached Henegar and said he felt that he had been
terminated unjustly and he felt the real reason for his
termination was not his performance but his union activity.
Gambrell further said he could relay a message to Murray
and Winsberg that he was going to do everything in, his
power "to see to it that some justification be brought about
for this mishap." He denied using any profanity but admits
using terms that he certainly did not relate in his account
of what was said. Similarly, Henegar did,not even attempt
to give an accurate account of the statement. However,
they agree, and I find that Gambrell indicated that he
thought his discharge was not for cause and that Murray
and Winsberg were responsible.
General Counsel contends that Gambrell was discharged
because of his union activity. In support of this contention,
counsel for General Counsel argues that Gambrell was
never warned of the possibility of discharge and was
17 Gambrell had been 15 to 30 minutes late 10 times and had left about I
hour early 10 times. It is undented that he always secured prior approval
before leaving early.
AIRCRAFT HYDRO-FORMING, INC.
discharged only 9 days after the second reprimand.
Apparently, the contention is that if the discharge was
legitimate , he would have been allowed something closer to
the 41 days between-the first and-the second reprimand or
at least 12 or 13 working days after his second reprimand
since Henegar testified that his individual employee
production records are based upon 12-working day
periods. General Counsel also contends that the fact that
Gambrell was discharged in the middle of a pay period is
further indicia of a discriminatory motive. I fmd absolutely
no merit in the contention that Respondent's failure to
accord Gambrell as much time after the second warning
notice as it did after the first is indicative of a discriminato-
ry motive. However, the remaining two prongs of General
Counsel's timely argument might command considerable
weight if the evidence established that Gambrell was
discharged immediately upon Respondent gaining knowl-
edge of his union activities for the timing might tend to
supply the most logical explanation for a discharge of a
precipitous nature. But, such is not the case here.18 In all
the circumstances, I fmd that the evidence supporting an
inference of discriminatory motivation from the timing of
Gambrell's discharge is insufficient to overcome Henegar's
explanation - that he was watching production closely
because of his concern over a slight general drop in
production. He specifically computed the percentages for
two employees who had received warning notices to
ascertain whether the notices had any salutary effect.
Gambrell had shown no improvement after a second
warning notice, so he was discharged.
Respondent's contention that Gambrell's productivity
was the sole motivating factor in his discharge is supported
by the production records which show that Gambrell's
production was considerably lower than the average for
other operators. The record further shows that other
employees with a similar low average were also discharged,
one on September 6 and one on September 25. General
Counsel finds suspect the fact that the other employees
were discharged during their probationary period 'and
Gambrell was retained. I credit Henegar's explanation that
Gambrell's productivity was not extremely low at the end
of his probationary period and his rate was figured on the
basis of "A" operator standards which are higher than "B"
operator standards. The production records show that his
percentage at that time was 79.1 as compared with an
average for other "A" operators of 91.2 percent. There-
after, for the period up to his first warning, his percentage
was 64.2 as compared with an average of other "B"
operators of 92.6 percent. During the period between the
two warning notices, his percentage was 64.9 as compared
with 82.3 percent. For the period between his second
warning notice and his discharge, his percentage was
65.419 as compared with 81.7 percent.
18
Even if Gambrell's testimony was credited, which I do not, Henegar
had knowledge of the extent of Gambrell's union activity at least by August
23, the date of the catering truck incident, yet Gambrell did not receive his
second warning until September 6 and was not discharged until September
17.
593
In sum, I find that Respondent's contention that
Gambrell was discharged for cause is supported by the fact
that his production was low, the issuance of a warning
notice regarding his low production about a month before'
the inception of the union activity, his failure to improve
his production, his relatively short period of employment,
the lack of creditable evidence of knowledge of his union
involvement, the lack of creditable evidence of animus
directed toward Gambrell or any other employee because
of their union activity, the fact" 'that other employees with
similar production averages were discharged and _ the
absence of evidence of a campaign of deliberate illegal
activity. In these circumstances, I find that General
Counsel failed to carry the burden of showing that
Gambrell was discharged because of his union activities.
Accordingly, I find that Respondent has not violated
Section 8(a)(1) and (3) as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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 coercively interrogating an employee regarding
his union activities and sympathies, by soliciting an
employee to revoke his union authorization card, by
threatening employees with reprisals if they select the
Union as their collective-bargaining representative, and by
threatening to close its plant if employees select the Union
as their collective-bargaining representative, Respondent
has interfered with, restrained, and coerced its employees
in the exercise of their rights under Section 7 of the Act
and has thereby engaged in unfair labor practices within
the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
4. Respondent has not violated Section 8(a)(1) and (3)
of the Act as alleged in paragraph 9 of the complaint
herein.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(axl)
of the Act, I shall recommend that the Respondent be
ordered to cease and desist therefrom and from infringing
in any like or related manner upon its employees' Section 7
rights, and that it take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby recommend the
following:
19 Henegar testified that the slight improvement in Gambrell's average
for this period came from his last day's work during which he achieved
almost 100 percent on one job. This figure was not available to Henegar
when he computed Gambrell's average.
594 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
ORDER20
Respondent, Aircraft Hydro-Forming, Inc, its officers,
agents, successors, and assigns, shall:
1. Cease'arid' desist from:
(a) Coercively"interrogating employees about their.union
activities, sympathies, and desires; so`ticiting employeesF to
revoke _ their union authorization 'cards; threatening to
close its plant if its employees select the Union as their
collective-bargaining representative; and threatening em-
ployees with reprisals if they select the Union as their
collective-bargaining representative:'
(b) In any -like or related `'manner interfering with,
restraining, or -coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2: Take` the following affirmative action designed to
effectuate the policies ofthe Act:'
20 In the eveni no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations , the findings, conclusions, recommenda-
tions, and Recommended Order hereiri'shall, as provided in Sec. 102.48 of
the Rules and Regulations, be adopted by the Board and_ become its
findings, conclusions; and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Post at its plant in Gardena, California, copies of the
notice marked "Appendix." 21 Copies of said notice, on
forms provided by the Regional Director for Region 21,
after being, duly signed by Respondent, shall be posted 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 said notices are
not altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of the receipt of, this
Decision, what steps have- been taken to,comply herewith.
IT is FURTHER, ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act other
than those found above.
21 In the event that the Board's Order is enforced by a Judgment of a
United States Nationalof Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment- of the United States Court of Appeals Enforcing an YOrder of
the National Labor Relations,Board."