Borden Cabinet Corp.

National Labor Relations Board - Board Decisions

Sep 14, 1964

148 N.L.R.B. 996 (N.L.R.B. 1964)

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union has been at all times since May 22, 1963, the exclusive repre-
sentative of all the employees in said unit for the purposes of collective bargaining
with respect to rates of pay , wages, hours of employment, and other conditions of
employment.
4. By unilaterally laying off and recalling certain employees on and after June 7,
1963 , Respondent refused to bargain with the Union and engaged in unfair labor
practices proscribed by Section 8 (a) (5) and (I).
5. By refusing on or about August 19, 1963, to furnish to the Union informa-
tion relating to employees hired since July 22, 1963 , Respondent refused to bargain
with the Union and engaged in unfair labor practices proscribed by Section 8(a) (5)
and (1).
6. The strike which began on July 22 was caused and prolonged by Respond-
ent's unfair labor practices found as in section H , 3, supra.
7. By refusing to reinstate the strikers upon their application on August 12, and
by refusing to reinstate the additional 13 strikers on and after October 22, Respond-
ent engaged in discrimination to discourage membership in the Union and thereby
engaged in an unfair labor practice proscribed by Section 8(a)(3) and (1).
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Respondent did not engage in discrimination within the meaning of Section
8(a) (3) by discharging Howard Sands.
[Recommended Order omitted from publication.]
Borden Cabinet Corporation and District 50, United Mine Work-
ers of America . Cases Nos. 9-CA-2969 and 9-RC-5577. Sep-
tember 14, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On June 24 , 1964 , Trial Examiner James V. Constantine issued his
Decision in the above -entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action , and recommending further that the election held on
November 20, 1963, in Case No. 9-RC-5577' be set aside and a new
election held, as set forth in the attached Trial Examiner 's Decision.
Thereafter , Respondent filed exceptions to the Trial Examiner's De-
cision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National-Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown] .
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.2 The
rulings are hereby affirmed . The Board has considered the Trial Ex-
1 Pursuant to a Decision and Direction of Election dated October 24, 1963.
2 Respondent contends that the Trial Examiner was biased and prejudiced and that, as
a result, the Respondent was denied the right to a fair hearing We are satisfied, upon
our review of the entire record, that there is no merit in this contention.
148 NLRB No. 97.
BORDEN CABINET CORPORATION 997
aminer's Decision and the entire record in these cases, including the
exceptions and brief, and hereby adopts the findings," conclusions, and
recommendations of the Trial Examiner.
ORDER4
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Borden
'Cabinet Corporation, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order 5
IT IS FURTHER ORDERED that the election held on November 20, 1963,
among Respondent's employees be', and it hereby is, set aside, and that
'Case No. 9-RC-5577 be remanded to the Regional Director for Re-
gion 9 for the purpose of conducting a new election at such time as
he deems that circumstances permit the free' choice of a bargaining
representative.
3 No exceptions were filed to the Trial Examiner ' s failure to find additional violations
of Section 8(a) (1) and ( 3) alleged in the complaint or to his , recommendations that cer-
-tain objections to the election be dismissed In the absence of exceptions , we adopt his
-findings and recommendations pro forma.
4 The following is added to Section 2 ( a) of the Trial Examiner 's Recommended Order:
Notify the above -named employees if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended , after discharge from the Armed Forces
5 The telephone number listed in the notice attached to the Trial Examiner 's Decision
-for the Ninth Regional Office is amended to read. "381-2200."
TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
Upon a charge filed i on September 20, 1963 , in Case No. 9-CA-2969 , by Dis-
trict 50, United Mine Workers of America , the General Counsel of the National
Labor Relations Board, by the Regional Director for Region 9 (Cincinnati , Ohio),
issued his complaint dated January 31, 1964, against Borden Cabinet Corporation,
Respondent herein . In substance said complaint , as amended at the hearing , alleges
the commission of unfair labor practices by Respondent contravening Section 8 (a) (1)
and (3 ), and affecting commerce as defined in Section 2(6) and (7), of the National
Labor Relations Act, herein called the Act. Respondet has answered denying the
alleged unfair labor practices but admitting certain facts.
In Case No. 9-RC-5577, District 50, United Mine Workers of America , herein
called the Union or Petitioner, filed a petition for certification of representatives for
Respondent 's employees in a specified unit at its New Providence , Indiana, plant.
New Providence is also known as Borden . On November 20, 1963, an election was
,conducted among the employees in that unit . The Union lost the election. On
November 29, 1963, the Union seasonably filed objections to the election . The Re-
gional Directer issued a report on objections , dated February 12, 1964 , directing a
hearing, in material part , on objections Nos. 1 , 2, 5, 8, 9, and 10 . Said Regional
Director also ordered that the complaint case be consolidated with the objections in
the representation case for purpose of hearing.
Pursuant to due notice , a hearing was held before Trial Examiner James V. Con-
stantme on the consolidated case at Louisville , Kentucky, on March 16, 17, 18, and 19,
1964 . All parties were represented at and participated in the hearing and were
' This charge was amended on October 7 and November 13, 1963.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted the right to present evidence , to examine and cross -examine witnesses, to file
briefs, and to offer oral argument . At the hearing I denied Respondent 's motion to,
dismiss. Briefs have been received from the General Counsel and the Respondent.
At the beginning of the hearing I granted Respondent 's motion to dismiss para-
graph 6a of the complaint . Upon motion of the General Counsel an amendment
was allowed , however, reinstating this portion of the complaint.
Upon the entire record in the consolidated case, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , an Indiana corporation, is engaged at Borden , Indiana, in manufactur-
ing wood cabinets and furniture. Borden is also called New Providence. During
the 12 months preceding January 31, 1964, it shipped products valued in excess of
$50,000 directly to points outside Indiana, and during the same period received goods
and materials valued in excess of $50,000 directly from points outside the State, of
Indiana. I find that Respondent is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectuate the policies of the Act to
assert jurisdiction over Respondent's operations.
H. THE LABOR ORGANIZATION INVOLVED
District 50, United Mine Workers of America, is a labor organization within •the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION
In the unfair labor practice case (Case No. 9-CA-2969) the issues litigated are
whether Respondent engaged in conduct forbidden by Section 8(a)(1) and (3) of
the Act. The issue in the representation case (Case No 9-RC-5577) is whether
Respondent between September 16 and November 20, 1963, engaged in conduct
which tainted the result of the election, so that the election should be set aside and
a new election held.
A. Background
In the latter part of July 1963,2 Austin Ball, a field representative of the Union,
contacted employee Robert Austin as the first step in organizing Respondent's em-
ployees. As a result a "committee" was formed and thereafter, on August 24, the
first union meeting was scheduled. It was held around some picnic tables at a park
in Speed, Indiana. Twelve people attended, including Robert Austin. All 12 not only
signed union cards but also took additional cards to use in soliciting other employees,
to join the Union.
A week later, on August 31, another union meeting was held at the park in Speed,
Indiana. Among others, employees Dorothy Vick, Wanda Mikel, Catherine Blanton,
and Carol Rockey attended. Lloyd Tompkins attended both this and the'prior meet-
ing. Twenty-six additional employees signed union cards, including those men-
tioned in this paragraph.
On September 5, at a park in Pekin, Indiana, another union meeting was held,
where an undisclosed number of additional employees signed union cards. Carol
Rockey and Dorothy Vick turned in some signed cards. Another meeting was held
on September 10 at Pekin Park and by this time over 100 employees had signed
union cards. Other meetings were held on September 12, 21, and 28. All the dis-
chargees mentioned hereafter attended all the foregoing meetings of the Union men-
tioned in this paragraph. The last union meeting was held on November 16.
Ball also solicited union membership at the entrances to the plant and in the im-
mediate vicinity, including a restaurant across the street, where he passed out hand-
bills. On one occasion Ball saw Respondent's "whole [supervisory?] staff" enter
that restaurant for lunch while he was soliciting union membership. I find that the
evidence is insufficient to conclude that the presence of supervisors for lunch
amounted to surveillance or was otherwise coercive. Hence 1 shall not further refer
to this incident.
By letter dated September 12, the Union wrote to Plant Manager Korff claiming
it was designated by a majority of the production and maintenance employees and
demanding recognition as the bargaining agent of that unit. It was received on
2 Except where otherwise noted all dates refer to the year 1963.
BORDEN CABINET CORPORATION 999
September 14. Receipt thereof was acknowledged by Korff's letter to the Union dated
September 16. In that letter Korff also wrote that the Union 's demand had been
submitted to counsel . On September 18 counsel for Respondent wrote to the Union
denying the demand for recognition on the ground that no evidence would indicate it
represented a majority.
In October , Plant Manager Korff told the employees , whom he had assembled to
address, that the Union was "trying to work out of their field " and also seeking "to
appropriate more money for the benefit they did not have," according to employee
Earl Stewart . Korff also mentioned "unemployment among members of the Union
in the other fields." I credit Stewart ; but I believe these utterances are innocuous
and do not amount to unfair labor practices or objectionable conduct affecting the
election.
B. Interrogation
Korff asked one employee "if Carol Rockey had solicited his union membership
on company time." This occurred "some time " after Rockey's discharge on Septem-
ber 12 , 1963. Korff assured , this employee his answer would not affect his job. I do
not credit Korff 's contrary evidence . This constitutes interrogation proscribed by
8(a) (1) notwithstanding this assurance . S. H. Kress & Co., 137 NLRB 1244, 1249.
Briggs IGA Foodliner, 146 NLRB 443, is distinguishable.
Early in September , employee Willie Goodin, during a conversation, asked
Assistant Foreman Campbell what was wrong .3 Campbell remarked that "they're
trying to get a union in here." When. Goodin asked if the Union would get in
Campbell replied that he did not know, but added that "they" tried it before without
success and that he did not think "they would be able to do anything with it this
time." I find that this is not unlawful interrogation; nor is it otherwise coercive
under the Act.
Nancy Wright worked as a laborer at the plant under Foreman Walter Hunt. At
some time she was "loaned" or directed to work in Foreman Herman Seger 's finish-
ing room. I find that Seger is a supervisor under the Act. About September 5,
while working in the cabinet room , Seger talked to Wright. During the conversation,
Wright asked Seger if he knew a union was trying to get into the plant. Seger an-
swered that he knew this but contended that "they would never get in because they
had tried once before and that they did not make it that time, and that the Company
had worked for many years without a union, and would do so for many more." I do
not credit Seger 's contrary testimony . But I find no unlawful interrogation here,
especially since Seger was answering Wright's question . Nor do I find this statement
to be coercive otherwise.
In September , Supervisor Walter Hunt came to employee Al Smith Jacobi on the
line and asked if Jacobi knew "who is passing out those little union cards that you
sign ." Jacobi refused to give this information , although he did know the answer, in
order, as he told Hunt, to "save the girl giving them out from probably getting fired"
therefor . I find that Hunt is a supervisor under the Act. After Carol Rockey was
fired on September 12, Hunt told employee Jacobi that if anyone spoke to him about
the Union to report it to Hunt. On another occasion , Hunt asked Jacobi if he knew
who was passing out union cards . When Jacobi professed ignorance , Hunt volun-
teered that Carol Rockey was the one doing it. I do not credit Hunt's contrary evi-
dence. I find that Hunt 's foregoing statements constitute coercive interrogation for-
bidden by Section 8(a)(1).
On September 9, Foreman McDonald, whom I find to be a supervisor under the
Act, asked employee Dorothy Vick, "How was the Union meeting?" This also con-
stitutes unlawful interrogation , and I so find.
A day or two after employee Blanton was fired on September 18, Production
Manager Fromme spoke to employee Minnie Walls on the line in the finish depart-
ment. Fromme accused Walls of knowing "enough on all the bosses to get them all
fired." (Fromme denied making this statement . I do not credit him.) Walls denied.
this. Fromme also said he had enough on Walls to fire her. Then Fromme asked
Walls if she was going to the Union's beer party at the Hamburg Inn and whether
she had been invited to it.4 Continuing , Fromme asked her how she would vote "if
3 Goodin stated that he was working at the time Hence this conversation could not
have occurred in October because he was discharged on September 18. In his cross,
Goodin said this occurred in "September or October , along in there somewhere "
4 Fromme testified that he was invited to this party by some employees . Impliedly Re-
spondent would consequently justify the question But I find that even if Fromme had
been invited to go by some employees lie was not thereby invested with a right to ask
these questions of Walls because the party was in connection with a union meeting.
1000 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
they had a union come in." Shortly before the hearing in this case Fromme asked
Walls if she was going to the hearing. On another occasion Fromme told Walls
about some things contained in an affidavit given by Walls to the Board in its investi-
gation of this case, stating that these matters were in the affidavit and that he knew
part of what was in it .5 Walls had not previously mentioned these matters to
Fromme after giving her affidavit in October. I do not credit Fromme's denial of
the foregoing. I find the foregoing conduct by Fromme is prohibited by Section
8(a)(1) of the Act.
In October or November, Assistant Plant Manager Strange told employee Jacque-
line Staser that he understood she had told the Union that Respondent had raised
the piece rates on the cabinets . Admitting this, Staser replied that she did not say it
to hurt Respondent and that "I wouldn't care if you saw my affidavit" to the Board.
I do not credit Strange 's denial thereof . But I find nothing illegal in the remarks of
Strange during this conversation; nor is it coercive so as to affect the result of the
election.
On September 12, about 3:30 p.m., Trim Department Foreman Luther McDonald
asked employee Larry Sears if Sears attended any union meetings. When Sears re-
plied that he had not, McDonald insisted that he once saw Sears' car there. Mc-
Donald also asked Sears how many employees had signed union cards. When Sears
asked McDonald whether the latter knew the number, McDonald replied "all but
three". but would not identify the nonsigners . This interrogation is coercive and I
so find. I do not credit McDonald's denial that this conversation occurred.
A week or two before the election Foreman Woodrow Richards talked to em-
ployee Earl Stewart about "the Union activities that had been going on" and then
asked Stewart if he had any gripes which he desired to discuss with Richards. The
foregoing date was brought out on cross-examination. In this direct, Stewart placed
the occasion early in September. I find that the conversation occurred a week or
two before the election in November, since Stewart so mentioned in his affidavit
to the Board, when his recollection was fresher. But I credit Stewart otherwise
as I believe he was not seeking fo prevaricate or exaggerate. I find that this con-
stitutes unlawful interrogation.
Shortly before the second union meeting of August 31, Personnel Manager
Maudlin telephoned employee Pauline Tye at her home and asked Tye if she knew
anything about the Union. Maudlin also asked' Tye if she would try to obtain and
sign a union card so as to be eligible to attend the forthcoming union meeting and
to tell Maudlin who was present thereat . Tye promised to do so and did obtain
such card from Robert Austin, which she signed and returned to Austin. Maudlin's
contrary testimony is not credited . I find that Maudlin 's words are patently
coercive and contravene Section 8(a) (1) of the Act.
A day or two after September 12, Mauldin again telephoned Tye at home and,
stating that he heard that Carol Rockey, Robert Austin, Dorothy Vick, and Cathy
Blanton had started the union movement, asked Tye if this was true. Tye answered
that it was. In another telephone conversation a few days before, about Septem-
ber 9, Maudlin "explained" the Union to Tye and said that Respondent could
always find a way to get rid of employees behind the union movement. Maudlin's
denials of the above are not credited. These utterances by Maudlin definitely
contravene Section 8 (a) (1) and I so find.
Concluding Findings as to Interrogation
As noted above, some of the conduct described under the heading entitled "In-
terrogation" has been found to be lawful. This is so because it has not been
found to be coercive and also because Section 8(c) of the Act permits the use of
noncoercive language in dealing with employees.' On the other hand, other con-
duct under the same heading has been found to be coercive because the inquiries
were not shown to be (a) for the purpose of determining the extent of the Union's
representation for any legitimate purpose, or (b) necessary to the investigation of
facts concerning issues raised in the complaint Orkin Exterminating Company of
South Florida, Inc., 136 NLRB 399; Johnnie's Poultry Co., 146 NLRB 770. This
result does not clash with Briggs IGA Foodliner, 146 NLRB 443, where the inter-
rogation was found to be lawful as part of a proper investigation.
8 The statement of Fromme as to the affidavit does not constitute interrogation, but it
nevertheless is not sanctioned by the Act. It is narrated here only because it is desirable
to set out the entire conversation.
BORDEN CABINET CORPORATION 1001
C. Surveillance of union activities
Union Field Representative Ball talked to some employees, including Lloyd
Tompkins and Willie Goodin, while enjoying some beers in the Wheel Cafe in
Sellersburg, Indiana, on August 24, immediately following the union meeting held
that day. While so engaged, Production Manager Fromme happened to come into
the cafe and looked in the direction of the employees. This does not amount to
surveillance, and I so find.
On September 28 a union meeting was held at the Hamburg Inn. As employee
Jacqueline Staser waited in the gas station in front of the Inn while her car was
fueled she observed Production Manager Fromme go by in his black Falcon car.
However, Fromme was driving in the direction of his home when she saw him.
Delbert Vick, who was standing at the station and also saw Fromme drive by, fixed
the duration of the meeting from 7:30 to 10:30 p.m. Vick testified that Fromme
drove by slowly four times 6 about 10 miles an hour while looking in the direction
of the Hamburg Inn on three of the times. Fromme on one of these occasions
was traveling away from home but toward some property he owned nearby. Other
employees also testified they saw Fromme drive by in his black Falcon.
Employee Earl Stewart attended the union meeting at Pekin Park on September 10.
While there he observed Foreman Woodrow Richards, accompanied by his wife,
drive by slowly on an "off street joining the highway." This "off street" had to be
traversed because there was "no street which [Richards] would ordinarily take to
his [parents'] place" in Pekin. Employee Blanton testified that she saw Foreman
Woodrow Richards drive by 7 to 10 times on September 10.
Paul Rockey testified that he saw Cleo Calhaum pass by the Hamburg Inn in a
car while a meeting was held there. But Calhaum, although employed by Respond-
ent, is also a town constable who was on duty at the time. This is not surveillance.
In any event, Calhaum is not shown to be Respondent's agent for whose actions it
is accountable.
In the first 2 weeks of September employee Carol Rockey noticed that Supervisors
Fromme and Maudlin watched her as she passed out union cards on the Respondent's
parking lot.
Concluding Findings as to Surveillance
Fromme's driving by the Hamburg Inn does not constitute surveillance, as I accept
his explanation that he had to pass the Inn on his way home from an out-of-town
trip; then from home to the plant; and from the plant to inspect property of his in
the vicinity. Moreover, it is questionable whether in the later trips Fromme's fea-
tures could be discerned at night 7 from a distance of more than 100 feet, as testified
by some witnesses. Merely identifying a black Falcon hardly proves Fromme was
in it. .
Nor does the driving of Foreman Richards by the park at Pekin constitute sur-
veillance. Admittedly the side road which he traversed was the only one leading to
the home of his parents. I accept his explanation that he was driving with his wife
to call on his parents. Merely because he looked in the direction of the park while
driving by is not opprobrious-in fact, drivers on the road often turn their heads.
Finally, there is nothing wrong in the conduct of Supervisors Fromme and Maudlin
in observing Carol Rockey passing out union cards on Respondent's parking lot.
This is so because an employer may notice and look at what is taking place on his
property regardless of what prompted him to look. N.L.R.B. v. Davidson Rubber
Co., 305 F. 2d 166, 169-170 (C:A. 1). Salant & Salant, Incorporated, 92 NLRB
417, 446-447.
D. Raise in rates
Employee Walls said her pay was more during the Union's campaign, and em-
ployee Dalton testified that probably early in September rates were raised. Dalton
did not identify the beneficiaries of those raises or the circumstances thereof.
Early in September employee Goodin asked Jim Hudson what the rate was on a
certain piece he was working on. After checking the rate sheet, Hudson replied that
the rate was 16 cents but raised it to 35 cents.
In early September, Supervisor Strange raised the rate of a job Lloyd Tompkins
was working on although not previously requested by Tompkins. About the same
time Paul Rockey received a raise in his rate. A few days before September 12
Strange raised the rate of a job which Robert Austin was operating.
6 The second time was about 30 minutes after the first. Vick was in the inn attending
the meeting when he saw Fromme's car pass this time.
7 The parties informed me that this part of the country operated on standard time
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In early September, Personnel Manager Maudlin spoke to a group of employees
working on cabinets, including Jacqueline Staser, telling them that, because they were
not making the day rates, their piece rates were raised so that they could make the
hourly rate. Staser's rate per cabinet was increased 9 cents from 21 cents to 30
cents. Her day rate is $1.40 an hour. In the past, Respondent had also adjusted
rates, either upward or downward, if employees were making too little or too much
on their incentive production standards.
Employee Sears testified that his piece rates were raised in early September, but
gave no specific figures.
About 2 months before the election of November 20, employee Earl Stewart asked
for an upward adjustment in the rates on the cabinet jobs which he was performing.
This was denied at the time. However, another employee sought a similar raise
2 to 4 weeks before the election, and succeeded in obtaining it.
Concluding Findings as to Raises in Rates
Although I credit the General Counsel's witnesses that their rates were increased
at the times mentioned, I do not find that such increases were illegally instituted.
Respondent maintains that the increases in piece-work rates were not motivated by
antiunion considerations but were adopted as part of its regular program to adjust
rates upward or downward whenever necessary. Maudlin, whom I credit in this re-
spect, testified that rates were changed every day. I accept this explanation and so
find. The fact that these rates were increased at a time when the Union appeared on
the scene may be significant; but it is outweighed by the fact that such increases had
been made in the past, before the advent of the Union, as a regular and normal prac-
tice. Nothing in the record persuades me that Respondent departed during the
union campaign from its usual practice of adjusting piece-work rates when necessary.
Accordingly, I shall recommend dismissal of this aspect of the complaint.
E. Threats
In late August or early September, Supervisor Fromme told Cabinet Assembler
Charles Dalton 8 that "they were trying to get a union in, trying to get cards signed,"
that it was best not to mess with it or have any part of it; that jobs might be in
jeopardy; that Respondent still signed the paychecks; and that the Union did not have
anything to do with paychecks."
At sometime during the Union's organizing drive, but after September 18, Assist-
ant Plant Manager Strange spoke to employee Jacqueline Staser. Strange told her
that the Union was trying to get in and that he could not talk against it, but men-
tioned that Respondent offered employees "a pretty good program." There is noth-
ing unlawful or coercive in Strange's statement, and I so find.
In November, Plant Manager Korff said in a speech to employees that the Com-
pany had more benefits to give than the Union, mentioning that the Company paid
for hospitalization, gave $2 bills on birthdays, and "other small benefits." Then he
added that if the Union came into the plant the Company could not continue the
benefits and the hospitalization plan then in force. I do not credit Korff's denial
thereof.
About a week before the election of November 20 Supervisor Fromme told em-
ployee Earl Stewart that the Union could not guarantee anything, because Respond-
ent had to agree to union demands; that all the Union could do was to make
promises; and that he did not believe that individual employees could afford the
insurance policy which the Respondent provided at its expense. I do not credit
Fromme's denial thereof.
About a week before September 18, Foreman Seger in a conversation with
Wanda Mikel said to her that all he needed now was for Mikel to become pregnant
or for her "to get mixed up in this union." When Mikel asked for clarification,
Seger replied, "You know what I mean," and walked off. I find nothing illegal or
coercive in Seger's words, although I do not credit his denial that he uttered them.
Some time in September, before the 18th, Production Manager Fromme asked
employee John Bolden if he heard about the Union coming in. When Bolden
replied that he did, Fromme remarked that there "might probably" be a -layoff if it
did get in. I do not credit Fromme's contrary testimony.
8In assessing Dalton's testimony, I have taken into consideration his conviction for
grand larceny in the State of Arkansas. Nevertheless, I have credited his testimony and
-I have not credited Fromme's contradiction thereof.
BORDEN CABINET CORPORATION 1003
Concluding Findings as to Threats
Fromme's statement to Dalton, as recounted above, is a thinly disguised hint
that those who joined the Union would lose their jobs, and I so find. I also find
that Korff's speech of November constitutes an illegal threat to withdraw the hos-
pitalization and other benefits. I find that Fromme's statement to employee
Stewart that he doubted whether individual employees could afford to pay for the
insurance provided without expense by the Company amounts to a transparent hint
that such free insurance would be abolished if the Union won the election.
Finally, I find that Fromme's statement to employee Bolden that the success of
the Union in organizing the plant "might probably" result in layoff amounts to more
than an opinion immunized by Section 8(c) of the Act . I find that it is coercive
even though not expressed in categorical terms.
F. Change in working conditions
About 2 days before September 28 Supervisor Fromme told employee Walls it
was a possibility that employees would not have hospitalization if the Union got
in. In this same conversation Fromme assured Walls there was nothing to keep
her from joining the Union and voting for it . However, he also added that if the
Union got in the employees would lose their piece rates and "probably 10 cents
on the hour would be all that we could make," and that it would take 200 hours at
this 10-cent rate to pay the Union 's $20 dues. Fromme's denial of these statements
is not credited.
Prior to 1963, employees were paid for Christmas day as a holiday. However,
in 1963, 3 additional days were declared by Respondent as paid holidays, namely,
December 23, 24 , and 26. This was announced by notices posted on bulletin
boards in late October 1963, but this much advance notice of the paid Christmas
holiday had not been made in previous years. It was also orally announced by
Plant Manager Korff at the usual Christmas party given by Respondent in Novem-
ber: Korff told them that since all other plants of Respondent 's parent corpora-
tion were giving 4 paid holidays during Christmas week the employees at the
Borden plant also were entitled to similar treatment . Said Christmas party was
given in late November before Thanksgiving . I find that this party was held at the
usual time of year and was not prematurely called.
Concluding Findings as to the Increase in Paid Holidays at Christmas
Respondent contends that the increase in the number of paid Christmas holidays
affected all employees of Jasper Corporation , Respondent 's parent corporation, and
that , therefore , they were given Borden employees pursuant to a general plan to
benefit all Jasper 's employees . I credit this explanation , especially since it has not
been contradicted by the General Counsel 's evidence . Further I find that this
increase at Respondent 's plant was not motivated by'hostility to the Union absent
evidence that (a) Jasper's other plants were nonunion and (b ) similar increases
at such other plants likewise were granted with the advent of a union there. More-
over , I expressly find, that the timing of the announcement of the increase was
governed by factors other than the pendency of the election , i.e., the grant of in-
creases at other plants of Jasper Corporation . This is particularly supported by
the fact that the increase was not announced during the period immediately preced-
ing the election , but, rather , almost a month before. See United Screw & Bolt
Corporation , 91 NLRB 916 , 919. In fact , if the Respondent had denied such
benefits to its -Borden employees it may well have been found to have engaged in
conduct interfering with the election , The Great Atlantic and Pacific Tea Company,
101 NLRB 1118.
Hence I shall recommend dismissal of this branch of the case.
G. Visits to employee homes
About a week before the election of November 20, Production Manager Fromme
visited the home of employee Minnie Walls. Fromme said he would appreciate
it if Walls voted for Respondent . Also, before the election , Fomme called on
employee Bolden at his home and asked Bolden to vote as he wished . Fromme
had never visited Bolden 's home before this.
About November 10 or 12 Fromme called on employee Louis Cavanaugh at
his home. Fromme said that he was "out campaigning just like an election. It's
just like a political race ." Then Fromme started off by adverting to Respondent's
benefits, referring particularly to free company insurance and that this benefaction
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might be lost if the Union got in . He continued by enumerating the disadvantages
of having a union , among other things mentioning that because a union protected
the shiftless worker, the "good workers would have to carry them along." Fromme
also invited Cavanaugh to state any grievances he entertained , and Cavanaugh did
so. When Fromme stated that he understood the Union sent out "some letters,"
Cavanaugh replied that he had received one. After discussing the recent increase
in rates and the reason therefor ,9 Fromme asked Cavanaugh to come to him with
any grievances . Finally, Fromme referred to one of Respondent 's plants where
a union won the election 3 years before but Respondent had not , and did not have
to, sign a contract with it.10 I do not credit Fromme insofar as he contradicts the
foregoing testimony of Cavanaugh.
Concluding Findings as to Visits to Employee Homes
It is proper election procedure for an employer to conduct a campaign against a
union so long as he does not transgress boundaries delineated by Section 8 (c) of the
Act.ii It is my opinion, and I find, that this campaign may be carried to the homes
of employees . It is not objectionable for supervisors to visit the homes of employees
and there appeal to them in -a noncoercive manner not to vote for the Union. In
such appeal the supervisor may lawfully refer to company benefits, so long as he
does not imply that prounion employees will be deprived of them or that such bene-
fits will be withdrawn if the Union wins the election.
Hence I find that the visits to the homes are not in themselves repugnant to the
Act. However, a statement made by Production Manager Fromme to employee
Cavanaugh transcends protected limits and violate Section 8(a)(1) of the Act.
This is Fromme 's remark that free company insurance might be lost if the Union
got in . All other statements made by him at homes are found not to be coercive.
H. As to company knowledge of the union movement
Plant Manager Korff testified that he first learned of the Union 's organizing efforts
about 11 a .m. on September 14, 1963, when Respondent received "that letter."
Production Manager Fromme and Foreman Seger also testified that they first learned
of the Union on September 14. Korff testified he first discussed this situation with,
his supervisors shortly after 11 a .m. on September 14, when he assembled for the
purpose , and more than once thereafter . He "told them some do's and don'ts."
Included in his remarks to supervisors were assurances that they could tell employees
"their rights and benefits of our organization ," that "we didn 't want any surveillance"
of union activities , and that no employee was to be asked "directly" whether he was
for or against the Union.
Korff also briefly discussed with Respondent 's president the Union's drive and a
prospective company campaign , including letters to be written, to defeat the Union.
In this conversation Korff "covered all of the letters which [he was] going to write
during the campaign ." Thereafter Korff sent out circulars and letters to the em-
ployees in an effort to defeat the Union . Some of these letters and circulars
answered the Union 's literature and leaflets.
Korff met with the plant's assembled employees "several times" 12 to counteract the
Union 's membership drive. Generally he stressed Respondent 's benefits ,' such as its
insurance program and "our work records ." Korff also knew that foremen visited
the homes of employees to resist the union movement by telling them about company
benefits, and he approved this conduct.
Concluding Findings as to Company Knowledge of the Union Movement
Although the foregoing evidence discloses no company knowledge prior to Septem-
ber 14 , I find that Respondent had knowledge of the union movement by late August
s Fromme contended they were "cut back" in summer to avoid layoffs ; but Cavanaugh
retorted the plant was just as busy in the summer as when he was hired
10 Cavanaugh testified that during the conversation , which lasted about 15 minutes on
his porch, he was clad in an undershirt and was unshod, and that it started to snow.
This may imply that he could not have withstood the elements that long without shiver-
ing, and therefore , his testimony is suspect Nevertheless I credit him , not only from his
demeanor , but also from, a failure by Respondent to contradict the foregoing aspect of
Cavanaugh's testimony
11 The Board has held, however , that such campaign may be shown as evidence of union
animus
12 This was during working hours without loss of pay . I find nothing illegal in this.
BORDEN CABINET CORPORATION 1005
or early September. This finding is based on the testimony of employee Dalton,
which I credit, that Fromme, told him in late August or early September that it was
best not to mess with the Union. I do not credit Fromme',s contrary testimony. In
addition, I find company knowledge of union activity before September 12 in the
testimony of Carol Rockey that Fromme and Maudlin observed her passing out
union cards in the first 2 weeks of September. I credit Rockey on this aspect of the
case. The following facts also show company knowledge of the union movement
before September 12.
(a) Personnel Manager Mauldin knew of the movement by September 9 at the
latest.
(b) Foreman Seger mentioned the Union on September 4 to employee Wright.
(c) Foreman Hunt knew that Carol Rockey was passing out union cards.
(d) Foreman McDonald on September 9 asked employee Vick "how the Union
was going."
1. The discharge of Robert Austin
Austin was hired by Respondent on June '16, 1963, as a router operator in the
millroom under Foreman Woodrow Hunt. Prior to that he had been employed at
American Radiator and Standard Sanitary at Louisville, Kentucky. He also worked
at Haas Cabinet Company in Selersburg, Indiana.
At sometime in 1963 Field Representative Austin Ball of the Union came to see
Austin at home for information about organizing Haas Cabinet Company. The
conversation then turned to organizing Respondent's employees. When Austin told
him that he thought Borden would be easier than Haas to organize, Ball requested
Austin to sound out Respondent employees' sentiments toward a union. Thereafter,
Austin did so and succeeded in inducing about a dozen to attend the Union's first
meeting on August 24. Austin himself signed a union card at that meeting.
Thereafter Austin obtained signatures to several union cards and gave cards to em-
ployees to pass out. In addition he passed out union literature and attended all the
union meetings.
When he reported for work on September 12'Austin discovered that his machine
was not operating properly, because it needed a She-inch pin. After awhile Assistant
Plant Manager Strange spoke-to Austin. Strange said that he had observed Austin
for 45 minutes, that Austin had not performed a lick of work in that time, and he
wanted to see Austin do something. Austin then told Strange that the machine
was not operating properly, that when he reported this to Foreman Woodrow Hunt,
the latter suggested he "fix the form where you can use it," and that Austin was then
engaged in trying to rebuild the form. Austin also told Strange that he did not
know much about fixing forms as it was not a machine operator's job to do this.
Strange retorted that he had been watching Austin for about 2 days and accused
Austin of running around all over the plant bothering people for the last 2 days
and also commented that Austin's work was not satisfactory. Austin had not previ-
ously been warned about his work, 13 but admitted on the ,stand . that he asked
employee Goodin for a %6-inch router pin that morning . Strange then directed
Austin to forget rebuilding the form and assigned him to other work. Strange
followed Austin as the latter went for a dolly in connection with his new job
and insisted that Austin "do something ." At the close of the conversation Strange
handed Austin a warning slip dated September 11.
About 10:45 a.m. on the same day, September 12, Personnel Manager Maudlin
came to Austin and ordered him to the office. • Austin described the place where
he went as more of a conference room . He found Supervisors Fromme, Strange,
and Maudlin there. Production Manager Fromme , who had Austin's employment
application before him, asked him why he had not listed Haas Cabinet Company
as a former employer. Austin replied that it was a part-time job which he omitted
because of lack of space on the application form, and added that he listed his last
four employers "of any length of time ," including a statement as to one employer
that he was "discharged for labor trouble ." Strange also mentioned this discharge
for "labor trouble." Fromme then discharged Austin "for false application,"
Although Austin requested permission to return to the plant to pick up a few personal
things, he was not allowed to go alone . Maudlin and Strange accompanied him,
and they forbade him from talking to any employee in the plant . After obtaining
his personal belongings, Austin was escorted out of the plant by Strange.
Strange had been assigned full time to the millroom shortly after the Union
commenced its organizing campaign . I attach no significance to this.-
i8 However , Strange once showed Austin how to run a shaper faster when Austin was
unaccustomed to that work . This was about 4 or 5 days before September 12.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Korff testified that he "doesn't know exactly" why Robert Austin
was fired, although he discussed the discharge a day or two later at a management
meeting usually held every afternoon. Nevertheless he concurred in the discharge
because he had confidence in the supervisor who discharged Austin and he went along
with the decision. Korff also approved other discharges solely upon faith in the judg-
ment of the person effecting it, without knowing the actual cause for the discharge.
Production Manager Fromme testified that on September 10 or 11 he overheard
some employees say that Austin had worked at Haas Cabinet. Because of Austin's
talking too much on the job, Fromme checked his application to learn more of
him from former employers. When Fromme failed to discern Haas Cabinet
listed as a former employer, Fromme considered this as dishonesty on Austin's
part. Fromme also testified that Austin was fired for unsatisfactory work. How-
ever, this testimony was the first time this reason was mentioned to anyone, includ-
ing Austin.
Concluding Findings as to the Discharge of Robert Austin
Although I find that lawful cause existed for the discharge of Austin, in that
he (a) unnecessarily delayed efforts to obtain a proper pin and sought such a pin
from a fellow employee rather than from a supervisor, and (b) falsified his employ-
ment record, I find that he was actually discharged for union activity. "The mere
existence of valid grounds for a discharge is no defense to a charge that the dis-
charge was unlawful . . N.L.R.B. v. Symons Manufacturing Co., 328 F. 2d
835, 837 (C.A. 7). I further find that the incident about the pin and the falsification
of the application card were seized upon as pretexts to cloak the true reason for his
discharge. These ultimate conclusions are based on the entire record and the
following subsidiary findings:
1. Austin had been the prime mover in the union movement.
2. Respondent was aware of the union movement by late August or early
September.
3. A reason given for the first time at the hearing as to why Austin was discharged
seems to be an afterthought. This reason is the so-called unsatisfactory work per-
formed by Austin. But Austin had never been told of this before.
4. Austin had not been warned that he talked too much on the job until the
morning of September 12.
5. Respondent knew from Austin's application that he had been discharged for
"labor trouble" by a previous employer, thus confirming the fact that Austin was
potentially a strong union sympathizer.
6.' Respondent entertained a strong union animus and conducted a vigorous
campaign to defeat the Union. Park Edge Sheridan Meats, Inc., et al., 146
NLRB 289.
7. Austin was precipitately discharged during the workday. He was not even given
an opportunity to reform, for he was given a warning slip by Strange and then almost
immediately thereafter was discharged by Fromme.
8. Production Manager Maudlin knew that Austin was one of the four employees
behind the Union and said that the Company could find ways of getting rid of em-
ployees behind the union movement.
J. The discharge of Carol Rockey
This employee began working for Respondent on August 18, 1961, in the millroom.
She-attended all but the first union meeting in 1963 and signed a union card in
August 1963. She also signed up some employees on Respondent's parking lot where
she solicited union membership every morning. Frbmme and Maudlin observed her
doing this.
Beginning September 3 Rockey "was never on the same job," but was taken from
her job frequently for an hour or two. On September 10 or 11 Rockey was assigned
to the finish department where she did sealing work, a dirty type of work requiring
an apron. However, although she requested an apron, her foreman replied Re-
s•-ondent had none to supply. When Rockey suggested the work ought not to be
done without an apron, the foreman ordered her to do it. That same day Rockey
also was directed to dip baffles, another type of dirty work.14 She was also asked
if she would do heavy lift work, but requested to be excused therefrom because of
her pregnancy and "her shoulder."
14 Rockey performed this work alone in a place she called the "punishment room."
BORDEN CABINET CORPORATION 1007
Rockey also testified that after the Union started its drive Respondent restricted
her right to talk to fellow employees. But she did not further amplify this remark
by comparing this situation before and after the advent of the Union. Hence I find
no unfair labor practice on this particular testimony and shall not again allude to it.
On September 12 Foreman Seger informed Rockey that she was wanted in the
office. Seger accompanied her there, where she found Supervisors Strange, Fromme,
and Maudlin awaiting her. Production Manager Fromme said that Rockey had
been "complaining since [she] had been there," mentioning the events described in
the preceding paragraph. Personnel Manager Maudlin also contended she com-
plained about rates, which Rockey admitted, and that she was too slow. Thereupon
Fromme fired her "for insubordination." Rockey had never been given any warning
notices or told that her work was unsatisfactory. Fromme had once commended
her work.
Although Rockey was told not to reenter the plant after her discharge she some-
how managed to get in momentarily. However, one Callum, who detected her,
ordered her out. Since Callum has not otherwise been identified it is not necessary
to describe this incident further.
Rockey further testified that when she was assigned to the dirty work two persons
performing it had very recently died. She also objected on the same day to do
heavy lifting work "because of [my] shoulder" and her pregnancy. She also
admitted that about 11 a.m. on September 11 she complained to Fromme that she
did not think she had been treated right. At this time she referred to Strange as
being just as bad as the rest about trying to upset her and make her sick.
Concluding Findings as to the Discharge of Carol Rockey
Respondent contends that Rockey was fired by her foreman, Herman Seger, be-
cause of "misconduct in connection with her work and more, particularly, for in-
subordination." Plant Manager Korff "thought" Rockey's "attitude" led to her
discharge. Respondent's testimony, which I credit, shows that Rockey had a chip
on her shoulder when she was transferred to certain unclean work in the finish de-
partment, that she characterized this as a "dirty deal" and "getting the raw• end of
the thing," and that she once referred to Personnel Manager Maudlin as "Oh, hell,
he's as lousy as all the rest of them. This place is for the birds." I find that this
misconduct, including profanity and insubordination,15 constitutes lawful cause for
discharge. But I further find that Rockey was not discharged for profanity, mis-
conduct, or insubordination, but, rather, for union membership or activity, and that
the profanity, misconduct, and insubordination were asserted to, conceal the real
reason. This ultimate conclusion is based on the entire record and the following
subsidiary findings:
1. Respondent had knowledge of the Unions organizing campaign by late August
or early September. I do not credit Respondent's evidence that it first acquired
knowledge of this on September 14, when the Union's letter demanding recognition
was received.
2. Respondent was strongly antiunion. Although this was not openly manifested
until after September 14, it is reasonable to infer-and I do so-that this antipathy
to unions also existed in late August or early September.
3. Since Rockey's undesirability continued over an appreciable length of time, it
would be reasonable to deduce that Respondent would have terminated Rockey long
before September 12, especially since Foreman Segar testified that he, verbally
warned Rockey on more than one occasion in the past. Yet no disciplinary action
was taken in connection with these warnings.
4. Rockey was abruptly discharged in the middle of a workday notwithstanding
that she had not that day engaged in any dereliction of duty. This precipitate• action
by Respondent is significant.
5. Rockey was an early active participant in the union movement; and Super-
visors Maudlin and Hunt knew this. In addition, circumstantial evidence 16 in my
opinion warrants the inference-and I draw it-that Respondent was aware _ of
Rockey's union activity.
15 I find the insubordination consisted only in refusing to work without an apron and in
the disparaging remark about Maudlin. I do not find that she refused to do heavy lift
work for she was not directed to do so ; and I find no insubordination in connection with
the dipping of baffles.
11 "Circumstantial evidence , of course , must be weighed with caution ." N.L.R.B. V.
Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4).
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K. The discharge of-Dorothy Vick
Vick was hired by Respondent on August 15, 1962, to touch up cabinets. Her
supervisor was Walter Hunt. The latter part of August 1963 she signed a union
card, and she also attended all but the first union meeting of August 24. In addi-
tion she personally solicited employees at the plant (on her -own time) to join the
Union and succeeded in getting about 15 17 to sign cards before September 12 and
another 10 or 15 thereafter. She held one meeting at her home in early September
for that purpose. At one of the union meetings Vick stated to those present that
"Fromme's day was coming."
On or about September 14, Production Manager Fromme accused Vick of
talking too much and added that Vick's attitude and personality had changed so
that Vick had become an altogether different person. Vick then inquired if her
work was unsatisfactory and what she could do to change her personality. Fromme
replied that he was not referring to Vick's work but to the change in her personality
during the past 2 weeks. About September 12 Fromme had'told Vick that he was
"not afraid of you, union, or nobody."
On September 18 about 10 a.m. Foreman Luther McDonald told Vick she was
wanted at the office. He instructed her to pickup her belongings and to accompany.
him. She found Supervisors Fromme, Strange, and Maudlin waiting there for her.
Fromme then told Vick that he was letting her go "because we're cutting back in
production but, most of all, because you're the most undesirable on the line, and
I have to let you go." He said this undesirability resulted from her talking too
much and her "threatening." However, I find she had never received any warning
slips. She was not thereafter permitted to return to the plant but had to leave
by the main front door.
The above "threat" apparently refers to a statement by Vick, admittedly uttered
on several occasions, that Fromme's time was coming and that Fromme had to
answer for the things he was doing when he died.
About August 28 or 29, 1963, Vick invited employee, Nancy Wright to a union
meeting. On September 18 Wright observed Vick, with her belongings, being
escorted "out" during the morning by a person she took to be the personnel man-
ager. Wright considered Vick "an excellent worker."
About a week after she was discharged, a new employee was hired to do Vick's
work. Respondent had been having trouble with edging on cabinets sent to Arvin
Company. Employees Sears and Vick worked on edging.
Plant Manager Korff testified that he did not know why Carol Rockey was
discharged, although he discussed the discharge a day or two later at a management
meeting usually held every afternoon. However, he approved the.discbarge because
he had confidence in the ability of the person who fired her, and he went along, with
the decision.
Concluding Findings as to the Discharge of Dorothy Vick.
Respondent submits that Vick was discharged in a reduction in force, and that
she was selected because she was the least desirable employee on her line since
she griped about working overtime, talked too much, was insubordinate, and
demonstrated a poor attitude toward her supervisors . These shortcomings constitute
well-grounded reasons for discharge, and I so find. Nevertheless I find that Vick
was not discharged for these reasons, but, rather, for her union membership and
activity, and that -the above-professed reasons have been asserted as a pretext to
conceal the true reason. These ultimate findings are based on the entire record
and the following subsidiary facts:
1. Respondent was decidedly hostile to the Union and engaged in a vigorous
campaign to undermine it.i8
2. Vick was active in the union movement and Respondent had actual knowledge
thereof. Among other evidence disclosing such knowledge, Production Manager
Fromme testified that he observed her passing out union leaflets, and Personnel Man-
ager Maudlin referred to Vick as one of four employees behind the union movement.
3. Although lawful cause existed for Vick's discharge, nothing was done about it.
For example, Production Manager Fromme complained that Vick's excessive talk-
ing to employees interfered with their work. But he gave her no warning slip
17 Included in this count are seven out of the eight persons on her line.
18 This, without more, will not supply an unlawful motive to the discharge. Beaver
Valley Canning Company v. N.L R.B., 332 F. 2d 429 (C.A. 8).
BORDEN CABINET CORPORATION 1009
therefor. And since her attitude and work were bad in Foreman McDonald's
eyes, it is incomprehensible that he did nothing about it. Finally, although Fromme
accused Vick of a changed personality, he allowed her to continue to work for
about 2 weeks notwithstanding this.
4. Vick was precipitately discharged during the workday although her conduct
on September 18 is not shown to be objectionable. This is significant.
L. The discharge of Lloyd Tompkins -
Respondent hired Tompkins on September 28, 1962, to work in the millroom.
He signed a union card given to him by Field Representative Ball at the Union's
first meeting on August 24. He also attended the next two union meetings, solicited
membership on behalf of the Union, and obtained an undisclosed number of
signatures to union cards before September 18.
About a week before September 18, Production Manager Fromme asked Tompkins
if he had shaped certain cabinet tops which were consistently chipped. When
Tompkins replied that he had, Fromme asked him if he would buy something like
that, pointing to the tops. Tompkins answered that he would not. Tompkins
testified that he assumed there was nothing wrong with the tops because Assistant
Plant Manager Strange, who checked them had not found fault with them. Tompkins
was neither reprimanded nor given d warning 'slip 19 for-this work.
About 1:30 p.m. on September 18 Strange asked Tompkins to come to the office
and escorted him there. He found Persohiiel'Manager-Maudlin already there.
When Strange asked him if he, knew why he was there, Tompkins replied that he
did not know. Then Maudlin discharged Tompkins for defective work, mentioning a
warning slip of January "where you messed up," and adding that Tompkins had.
been "messing up every day since." Strange then mentioned that he "was in pretty
bad shape" because Tompkins had damaged "them tops."
Tompkins admits that two loads of tops, involving about 1150 pieces, were affected
by the chipping resulting from his machining them within a week of his discharge.
In an application for employment at Smith Cabinet Company made on September
26, 1963, Tompkins gave "voluntarily quitting" as the reason for termination of his
employment at Respondent.
Concluding Findings as to the Discharge of Tompkins
I find that Tompkins was discharged for cause and not for being a union adherent
or engaging in union activity. This cause resulted from his ruining two loads of
cabinet tops totaling about 150 in all. While it is true that Strange passed a few
of these tops, I find that Strange engaged in no more than a casual check and did not
examine the entire lot or a substantial portion of it. ' I further find that such cause
was not seized upon as a pretext to discharge Tompkins because (a) he had pre-
viously been given a warning slip for defective workmanship, (b) Tompkins, who
was shown the defective cabinets by Production Manager Fromme, said he guessed
he would not buy cabinets like those, (c) Tompkins had previously irritated Strange
by propping a foot on a load of finished stock while operating a sander, and (d)
Tompkins did not consider himself discharged for union activity when he applied
for work at Smith Cabinet 20
In this connection I have not disregarded the fact that Tompkins did engage in
union activity, that he was abruptly discharged during the workday, and that other
union adherents were discharged on the same day. Nevertheless, upon a balancing
of all factors involved-1 am of'the'opinion, and find, that the General Counsel has
failed to persuade me that Tompkins has'been unlawfully discharged.21 Hence the'
fact that all dischargees belonged to -the -Union; while -significant, is not conclusive.,
See N.L.R.B. v. Chicago Steel Foundry Company, 142 F. 2d 306, 308 (C.A. 7);
Syracuse Tank & Manufacturing Company, Inc., 133 NLRB'513, 525.
19He had been given a warning slip in-January 1963 for defective workmanship. I
find that Strange inspected a few tops on a spot check, as he testified, and that he did
not check a substantial number of tops. Hence there was no occasion to give a warning'
slip since Strange found no defects.
=° I realize that this last reason is a weak form of admission, and I have not placed
major reliance on it It is weak because an employee generally is unaware of what com-
ponents comprise a pretext
m Being a union sympathizer is not a guarantee against discharge for cause. N L.R B
v ' Birni.ingham Publishing Company, 262 F. 2d 2, 8-9 (C.A 5).
760-57 7-6 5-vol 148-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. The discharge of Willie Goodin
Goodin was first employed by Respondent as a drill operator in the millroom.
He signed a union card at the first union meeting on August 24, 1963. He also "got
some cards signed," but never passed out union leaflets.
On September 12 and again on September 18 he was given warning slips that he
had been wandering around all over the plant and talking to other workers during
working hours. When Assistant Plant Manager Strange handed Goodin the slip
on September 12, Strange warned him orally, "The next time I catch you talking to
anybody, you've had it."
At lunchtime on September 18, Goodin was called to the conference room by
Supervisor Jim Hudson. The two there met Strange and Personnel Manager Maudlin
who were awaiting them. Mauldin reminded Goodin that he had been previously
warned about "running all over the plant talking to other workers." Then Strange
asked Hudson to "read off your charges." Hudson replied, "I've been warning him
about not watching his work close enough." Goodin responded by saying that one
excuse was as good as another "when you want to get rid of a man." Strange then
directed Maudlin to "take him out of here." Thereupon Goodin was given his pay-
check and was escorted out of the plant.
In his cross-examination Goodin conceded that he had a little trouble with his
work.
Concluding Findings as to the Discharge of Willie Goodin
I find that Goodin was discharged for cause, i .e., for leaving his work station,
wandering about the plant, and talking to other employees. In this connection I
find that Goodin had been previously warned in writing about this misconduct and, in
addition, had been orally put on notice on September 12 by Strange 'that he would
be discharged the next time he talked to employees during working hours. Further,
I find that Goodin was not discharged for poor workmanship although I find that
he had a little trouble in performing work tasks. Finally, I find no pretext as an
excuse to discharge Goodin for his union membership or activity.
The foregoing ultimate findings are based on the entire record. In arriving at
them I have not disregarded the fact that Goodin engaged in union activity, that he
was discharged abruptly during a workday, nand that all others discharged on Septem-
ber 18 were union members. These ingredients often lead to the conclusion that a
purported reason for a discharge actually serves as a mask to conceal the real reason
of union membership or activity. But on the record unfolded here, I am unable to
find pretext. Hence I have found that the evidence falls short of sustaining the
General Counsel's burden of proof that Goodin was discriminatorily discharged.
N. The discharge of Paul Rockey
Rockey was hired on September 3, 1962, as a drill operator in the millroom. In
early January 1963, he was transferred to the cabinet room as a laborer. On or
about September 1, 1963, he signed a union card upon the solicitation of employee
Sonny Cavanaugh. He also attended four union meetings, got some union cards
signed himself, passed out union leaflets, and sought to interest employees in the
Union by talking to them in their homes and at the plant.
About September 11, Albert Hunt, Rockeyh foreman, warned Rockey that the
glass cleats he was machining were off one-fourth of an inch. Rockey replied that
Gideon, the quality control man, had inspected and approved these pieces. Never-
theless, Hunt insisted that Rockey "watch them a little bit closer." But Rockey con-
tinued to run them -as he had been doing. This was approved by Gideon, Hunt, and
Production Manager Fromme, all of whom checked his work without criticism.
In June 1963, Foreman Jim Sparks gave Rockey a warning slip to the effect that
he was improperly routing pieces on the router. On March 29, 1963, Assistant
Plant Manager Strange told Rockey that his production would have to improve.
On September 18 Production Manager Fromme called Rockey to the conference
room. Shortly thereafter Personnel Manager Maudlin joined them. Adverting to
the fact that Rockey had been warned before about his work, Fromme remarked
that he "could not have that kind of work around here." Maudlin five times asked
Fromme if he was going to fire Rockey In a few minutes Maudlin handed Rockey
a paycheck and told him that he was fired.
On October 7, 1963, Rockey applied in writing for employment at Smith Cabinet
Company. In his application Rockey stated that he quit his job at Respondent.
He explained at the hearing that he did so because he needed a job to feed his
BORDEN CABINET CORPORATION 1011
family 22 Rockey also admitted that he pleaded guilty to a charge of contributing
to the delinquency of a minor in the city court of Jeffersonville, Indiana, a fact
which I have taken into consideration in appraising his credibility.
Concluding Findings as to the Discharge of Paul Rockey
Rockey had a long record of poor work , as testified by Production Manager
Fromme, and admittedly had been warned both orally and in writing about it.
Respondent contends that Rockey was discharged for defective work, and, further,
that "he voluntarily left the employ of the Respondent." (Respondent's brief,
p. 30.) But I find that, although cause existed for his discharge, this cause was
seized upon as a cloak to cover up the real reason for his discharge , and that he
was discharged for union membership and activity. I expressly find, contrary to
Respondent's contention, that Rockey did not voluntarily quit, although his asser-
tion to that effect on an application for employment at Smith Cabinet Company,
is a form of admission which I have not overlooked. Nor have I overlooked the
ambiguous statement on objection No. 9 by the Regional Director as to the discharges
of September 12.23
In finding that Rockey was discharged for union membership or activity, I have
relied on the entire record and the ensuing factors which I find as facts:
1. Respondent was hostile to the union movement and Rockey took part in that
movement.
2. Although Rockey had performed in a borderline manner and was warned
therefor, it was overlooked or condoned. Thus, although he machined some glass
cleats one-fourth inch off on September 11, and was criticized for it by his foreman,
he was not later reprimanded for the same performance when the foreman, the
inspector , and the production manager ( Fromme) expressly observed him continue
to turn out the work one-fourth inch off. Moreover, he was not discharged or
disciplined on this occasion.
3 Nothing occurred on September 18 requiring disciplinary action. Hence no
plausible reason has been advanced why Rockey should be suddenly terminated in
the middle of a workday.
4. I find that although Rockey lawfully could have been discharged before
September 18, he was not. Cf. N.L.R.B. v. Economy Food Center, Inc., 333 F. 2d
468 (C.A. 7). "The mere existence of valid grounds for a discharge is no defense
to a charge that the discharge was unlawful .. . N.L.R.B. v. Symons Manu-
facturing Co., 328 F. 2d 835 (C.A. 7). I am not bound to accept Respondent's
professed explanation for the discharge. N.L.R.B. v. Texas Bolt Company, 313 F.
2d 761, 763 (C.A. 5).
5. Finally, I find that Respondent had knowledge of the union movement and
of Rockey 's connection therewith . While no demonstrative or direct evidence of
such knowledge of Rockey 's activity is discernible in the record , I infer 24 such
knowledge from the record as a whole and (a) the fact that Respondent was aware
of the advent of the Union , (b) the pretextual aspect of the discharge , i.e., Respond-
ent's defense fails to withstand critical analysis, and (c) the commission of other
unfair labor practices in endeavoring to suppress success of the Union 's drive.
0. The discharge of Wanda Mikel
This employee was hired on August 22, 1962, to work in the finishing depart-
ment. On August 24, 1963, she signed a union card at the first union meeting
She also attended union meetings thereafter , both before and after September 18,
and obtained signatures to some union cards by talking to employees at the plant
and their homes. She also passed out leaflets.
About a week before September 18, Foreman Seger made a cryptic remark about
a union to Mikel. On the same day, he transferred Mikel to another job because he
felt she could not do the motor boards she was working on. Mikel replied that
23 Prevarication cannot be justified by family needs. But I credit Rockey because of his
demeanor
2 That statement fails to discuss the discharges of September 12 probably because they
occurred before the filing of the petition and, therefore, could not affect the election The
Idcal Electric and Manufacturing Company, 134 NLRB 1275, 1278.
='' V L R B v Entwistle Mfg Co , 120 F. 2d 532, 535-536 (C A. 4). See N.L R.R. v.
Luil,-Belt Co , 311 U.S 584, 602.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was a new operation, that other employees had not done them yet, and that she
had not had the chance to do them. According to Mikel "there was something
wrong" with this operation. Later she was assigned to scuff sanding.
About September 16 Assistant Foreman Hadabaugh asked Mikel how she liked
steel-toed shoes. When Mikel asked to what he referred. Hadabaugh replied.
"You know what I mean." The next day Hadabaugh told Mikel that she would
be finding out about cave-ins in coal mines and asked her if she did not fear them.
Mikel also testified that her last pay envelope was $10 higher than average. but
she also stated that it did not result from "any rates being changed." Hence I
shall ignore this evidence on any of the issues in the case. I find that the evidence
is insufficient to warrant a finding that this $10 increase constituted an unfair labor
practice or that it may be used as a basis for setting aside the election.
Mikel also testified that Foreman Seger. who "frequently" spoke to her during
working hours prior to September 11, 1963, suddenly stopped this practice beginning
September 11 and "just quit even coming around to me." This failure to socialize
is innocuous and amounts to neither an unfair labor practice nor conduct warrant-
ing the setting aside of the election. It will be ignored in making findings herein.
About 11:30 on September 18 Foreman Segar directed Mikel to accompany him
with all her personal belongings to Personnel Manager Maudlin's office. Maudlin
there told her she was fired because she was undesirable in that she talked "to damn
much." He also added that her job was being eliminated because there was not
enough work for "all the people." When Maudlin asked Seger for comments, Seger
observed that Mikel "would not make too good of a silkscreener ... . Although
Maudlin offered Mikel an opportunity to defend herself, she said she had "nothing to
say." Twenty minutes later Maudlin handed Mikel a paycheck and escorted her out
the front door.
Concluding Findings as to the Discharge of Wanda Mikel
Respondent contends that Mikel was discharged because a reduction in force was
necessary and she was selected for release because she was an undesirable worker.
I find that Respondent decided to lay off some employees. I find that a reduction
in force and a nondiscriminatory selection of an employee for layoff in connection
therewith are lawful grounds for terminating employment. But I find that Mikel
was actually discharged for union membership or activity and that the above-men-
tioned lawful ground was advanced as a cloak to cover up the actual reason for her
discharge. This ultimate finding that Mikel was discriminatorily selected for layoff
is based upon the entire record and the following subsidiary findings:
1. Respondent was aware of the union movement and conducted a vigorous cam-
paign to defeat the Union. Part of that campaign involved unfair labor practices,
and part was lawful under Section 8 (c) of the Act. But even the lawful part may be
utilized to show union hostility. Citation of authority would be supererogatory on
this aspect of the case.
2. Although lawful cause existed for Mikel's discharge or layoff, she was retained
for employment over an appreciable period of time despite her shortcomings.
3. No satisfactory reason has been advanced for Mikel's abrupt discharge or lay-
off in the middle of the day, since Mikel is not shown to have misbehaved on
September 18.
4. While no specific evidence in the record directly attributes knowledge to Re-
spondent of Mikel's union membership and activity, I am of the opinion that a
reasonable inference can be drawn on the whole record-and I draw it-that Re-
spondent was aware of Mikel's union membership and activity. N.L.R.B v. Entwistle
Mfg. Co., 120 F. 2d 532, 536 (C.A. 4). This inference is warranted for the same
reasons mentioned in discussing the discharge of Paul Rockey.
P. The discharge of Catherine Blanton
Blanton was hired by Respondent on January 15, 1963. During lunchtime on
August 26 she signed a union card at the request of Wanda Mikel. Blanton also
attended all but one of the union' s meetings , and also succeeded in inducing other
employees in signing union cards.
On Friday, September 13, employee Johnson left his work and came to Blanton's
area during working hours to ask about a union meeting. While they were engaged
in this conversation, 'Production Manager Fromme, who apparently was nearby
and overhead them, instructed both not to talk to each other "any more about the
Union." But this warning is not unlawful. Manifestly Blanton and Johnson were
BORDEN CABINET CORPORATION 1013
talking Union 25 at Blanton's work station during working hours. Hence Fromme
was warranted in prohibiting this conduct and warning against its repetition, since
"working time is for work." Republic Aviation Corporation v. N.L.R.B., 324 U.S.
793, 803, footnote 10. Since Fromme's action is lawful, I have disregarded it in
deciding the issues in this case. Nor can Fromme's conduct be construed as repre-
hensible because he came upon Blanton and Johnson unnoticed and without warning.
Nothing in the record suggests that Fromme stole up on them or that his conduct
was clandestine ; in fact Blanton was not aware of Fromme 's presence only because
she was occupied by her talk with Johnson.
On September 15 Foreman Seger assigned Blanton to dip baffles in the "punish-
ment room." She had never done this before. I find nothing unlawful in this.
On September 18 Foreman Seger commanded Blanton to accompany him with
her personal belongings to the conference room. The two found Supervisors
Fromme and Maudlin awaiting them there. When Production Manager Fromme
asked Blanton if she knew why she was there, Blanton replied that she did not.
Fromme then directed Seger to tell her. Seger informed Blanton that she was"
being let go for too much talking, tardiness, and absenteeism. Blanton had not pre-
viously been warned in writing about this. Fromme confirmed Seger with the
observation that Blanton gabbed too much, that he had observed this, and that talk-
ing prevents proper performance of a job. As Blanton started to leave, Fromme
told her that he had 10 or 12 undesirable people in the plant he had to get rid of.
Prior to her discharge Blanton had been absent about 1 day a month. Sometime
in September, Personnel Manager Maudlin told Blanton, on the day following her
absence from work, that she needed to produce an excuse. Nevertheless he waived
it after some discussion. This was the first time Blanton had been asked to explain
any of her absences. On Saturday, September 114, Production Manager Fromme told
Blanton that she failed to bring Maudlin an excuse for the foregoing absence.
Blanton replied that she had so.stated, that she had tried to get one from the doctor
but his office was closed, and that she would have one the next working day.
Blanton brought it in on Monday, September 16, and gave it to Fromme.
Concluding Findings as to the Discharge of Catherine Blanton
Respondent contends that Blanton was discharged as "the least desirable
employee in her area, her absentee rate was high, 26 and she had engaged in excess
talking." These constitute valid grounds for discharge, and I so find. But I find
that they were used as a cloak to conceal the true reason for her discharge, and
that such true reason is Blanton's union membership and activity. This ultimate
conclusion is based on the whole record and the following subsidiary facts:
1. Respondent was decidedly opposed to the Union and conducted a strenuous
campaign to defeat it.
2. Blanton was active in the union movement and Respondent had knowledge
thereof. Production Manager Fromme testified that he observed Blanton passing
out union leaflets outside the plant; and Personnel Manager Maudlin referred to her
as one of four employees actively working for the Union.
3. Although cause existed for Blanton's discharge, she was not discharged on
prior occasions warranting her termination. For example, although Blanton's mis-
behavior had been known for some time she was not discharged on September 13
when Production Manager Fromme caught her in a conversation with employee
Johnson. Not only did this occur during working hours but Johnson had left his
work to visit with Blanton. Manifestly the reprimand given by Fromme at that
time is inconsistent with a present contention that excessive talking necessarily
resulted in Blanton's discharge 5 days later.
4. Nothing occurred after September 13 to warrant a discharge on Septem-
ber 18. Even if the misbehavior of September 13 be treated as the last of a series
25 Blanton's affidavit to the Board, she testified on cross, does not mention "union," but
only "talking" I need not make a credibility finding since Fromme could reprimand em-
ployees conversing for union talk or any talk during production time
"Blanton admits she was absent 1 day a month Whether this is excessive is doubtful,
but if Respondent thinks so, that ends the matter. For the question is not whether Re-
spondent's belief is reasonable but, rather, whether such belief warrants the discharge.
N.L.R.B. v. Prince Macaroni Manufacturing Company, 329 F. 2d 803, 809 (C.A. 1). I find
that such belief did not motivate the discharge ; if it had , then the discharge would have
been unassailable.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,of objectionable conduct, no reason appears in the record as to why it was over-
looked on September 13 and suddenly revived on September 18. The record is
barren of evidence of misconduct from September 14 to 18.
5. The precipitate nature of the discharge is significant . Blanton was terminated
in .the middle of a workday and for no apparent immediate dereliction. It becomes
more significant when evaluated along with Blanton's testimony, which I credit,
that she had not received any warning slips putting her on notice that she risked
discharge by failing to improve her ways.
Report on Objections
Objection No. 1: There is no question, and I find, that Respondent's supervisors
visited the homes of employees where they sought to induce employees to vote
against the Union in the coming election. Plant Manager Korff knew of and
approved such visits. But I find that only one incident occurred in which a super-
visor used coercive language, i.e., when Production Manager Fromme told employee
Cavanaugh that free company insurance then provided by Respondent might be lost
if the Union got in. Hence I recommend that this objection be sustained as to
this one incident, and that it be overruled in all other respects.
Objection No. 2: I find that Production Manager Fromme on two occasions told
employees in effect they would pay for their own insurance if Petitioner won the
election. One occasion is that mentioned above in connection with objection No. 1.
The other is the finding, above in section III, that Fromme in November told
employee Stewart that Fromme did not believe that individual employees could
afford the insurance policy which Respondent provided at its -own expense.
Accordingly, I recommend that this objection be sustained.
Objection No. 5: I find that this objection is not well taken (except as noted
herein as to one incident) on the ground that the evidence fails to uphold Petition-
er's contention that supervisors told employees that they (the supervisors) had
read the affidavits of employees given to the National Labor Relations Board. On
one occasion, however, Production Manager Fromme told employee Walls about
some of the contents of the affidavit given by Walls to the Board. This statement
by Fromme is coercive; hence I recommend objection No. 5 be sustained in this
respect only. Otherwise, I recommend that objection No. 5 be overruled.
Objection No. 8: As found above in the complaint case, Respondent made some
upward adjustment of wage rates, but these were executed as part of its regular
wage procedures and were not motivated by antiunion considerations. Further, I
find no blanket or general increases in wages were adopted during the period
between the filing of the petition and the holding of the election It follows and
I find, that the timing of the increases under review has been governed by factors
other than the pendency of the election, and the occurrence thereof prior to the
election is coincidental. Bata Shoe Company, Inc., 116 NLRB 1239, and Ambox,
Incorporated, 146 NLRB 1520, are therefore not applicable because there, unlike
here, the increases were calculated to influence employees in their choice of a
bargaining representative.
This objection also attacks the grant of three additional paid Christmas holidays
in 1963 "in contrast to Respondent's normal policy of granting a paid holiday on
December 25 only." In the companion unfair labor practice case I have found
that these additional holidays were given to Respondent's employees solely to
equalize their benefits with those of all other employees in other plants of the
Jasper Corporation, Respondent's parent. Further, I accept Respondent's explana-
tion that the announcement thereof was made on October 25 to enable employees
to make early plans for a fairly long Christmas vacation. In fact, if Respondent
had postponed such declaration until the middle of November it may have engaged
in conduct warranting the setting aside of the election. See Bata Shoe Company,
Inc, 116 NLRB 1239, 1241=1242. Hence I find nothing objectionable either with
the increase in the number of paid Christmas holidays in 1963 or in the timing
of the announcement thereof.
Accordingly, I recommend that this objection be overruled.
Objection No. 9: This objection seeks to invalidate the election because the two
discharges of September 12 and the six discharges of September 18 are alleged to
have been illegal. In my opinion, the discharges of Robert Austin and Carol
Rockey on September 12 must be disregarded (irrespective of the reasons therefor)
since they antedate the filing of the petition herein on September 16, 1963. The
Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278.
BORDEN CABINET CORPORATION 1015
As found above, some of the discharges of September 18 were made on account
of membership in and activity for the Union, i.e., those concerning Paul Rockey,
Dorothy Vick, Catherine Blanton, and Wanda Mikel. Accordingly, I recommend
that this objection be sustained to the extent indicated in this paragraph and that
it be overruled insofar as it is based on the discharges of Robert Austin, Carol
Rockey, Willie Goodin, and Lloyd E. Tompkins. The last two have been found
not to have been discriminatorily discharged.
Objection No. 10: The issue here is whether the employer engaged in surveillance.
Insofar as such conduct is alleged to have occurred on September 10 when Foreman
Woodrow Richards drove by Perkin Park, it must be ignored. This is so because
events preceding the filing of the petition on September 16 may not be examined.
The Ideal Electric and Manufacturing Company, supra.
Although some activities occurred on September 28, and may be considered, they
do not constitute surveillance. As noted in the complaint case, I have found that
Production Manager Fromme's conduct in driving by the Hamburg Inn on Septem-
ber 28 was for the purposes of going home as well as to the plant, and also of
visiting property in the vicinity. Hence such conduct was found not to amount
to surveillance. It therefore does not affect the validity of the election.
Accordingly, I recommend that this objection be overruled.
Since some of the objections have been well taken, I find that Respondent has to
that extent engaged in conduct interfering with the freedom of choice of employees
in voting for a bargaining representative and that such interference warrants set-
ting aside the election. Accordingly, it will be recommended that the election
held on November 20, 1963, be set aside and that the representation proceeding
(Case No. 9-RC-5577) be further processed by conducting another election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of the Respondent found to constitute unfair labor practices
as set forth in section III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices prohibited by Section 8(a)(1) and (3) of the Act, it will be recommended
that Respondent cease and desist therefrom and also take specific affirmative
action designed to effectuate the policies of the Act.
Having further found that Respondent discriminated with respect to the tenure
of employment of Robert Austin, Carol Rockey, Paul Rockey, Dorothy Vick,
Catherine Blanton, and Wanda Mikel, it will be recommended that Respondent be
ordered to offer each of them immediate and full reinstatement to his of her former
or substantially equivalent position, without prejudice to his or her seniority and
other rights and privileges, and to make each whole for any loss of earnings suffered
by reason of the discrimination. In making such employees whole Respondent
shall pay to each of them a sum of money equal to that which he or she would
have earned as wages from the date of such discrimination to the date of rein-
statement or a proper offer of reinstatement, as the case may be, less his or her
net earnings during such period. Such backpay, if any, is to be computed on a
quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent as ascertained by the formula described in
Isis Plumbing d Heating Co., 138 NLRB 716. It will also be recommended that
Respondent preserve and, upon request, make available to the Board or its agents,
all pertinent records and data necessary to aid in analyzing and calculating what-
ever backpay may be due.
Since the discriminatory discharges go "to the very heart of the Act" (N.L.R.B. v.
Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4) ), it will be recommended that
the order issued safeguard employees against infringement in any manner of their
Section 7 rights.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. District 50 is a labor organization within the scope of Section 2(5) of the Act.
2. Respondent is an employer engaged in commerce within the contemplation of
Section 2(6) and (7) of the Act.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the tenure of employment of Robert Austin,
Carol Rockey, Paul Rockey, Dorothy Vick, Catherine Blanton, and Wanda Mikel,
thereby discouraging membership in a labor organization, Respondent has engaged
in unfair labor practices embraced by Section 8 (a) (3) and (1) of the Act.
4. By (a) coercively interrogating employees regarding their and other employees'
union sympathies, desires, and activities, (b) threatening to discontinue employer-
contributed insurance benefits if employees selected the Union as their bargaining
representative, (c) stating to an employee it knew the contents of an affidavit given
by said employee to the National Labor Relation Board, (d) threatening to refuse
to sign a collective-bargaining contract if the Union succeeded in organizing its plant,
(e) threatening to reduce piece rates if the Union came in the plant, and (f) threaten-
ing to discharge employees who joined the Union or if the Union organized the plant,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the purview of Section 2(6) and (7) of the Act.
6. Between September 18 and November 20 Respondent engaged in conduct
interfering with its employees' freedom of choice in selecting a bargaining represent-
ative, and such conduct warrants setting aside the election.
` ' 7. Respondent has not committed any other unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Respondent, Borden Cabinet
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District 50, United Mine Workers of America,
or any other labor organization, by discharging employees or otherwise discrimi-
nating in any manner in respect to their tenure of employment or any term or con-
dition of employment.
(b) Coercively -interrogating its employees as to their and other employees' union
activities, sympathies, and membership.
(c) Coercively stating to employees that it knows the contents of their affidavits
given to the National Labor Relations Board.
(d) Threatening to discontinue employer-paid insurance benefits if they selected
the Union as their bargaining representative.
(e) Threatening not to sign a collective-bargaining contract if the Union succeeded
in organizing in the plant.
(f), Threatening to reduce piece rates, and to discharge employees if the Union
gets in the plant.
.(g) Threatening to discharge employees who join the Union.
(h) In any other manner interferring with, restraining, or coercing its employees
in the exercise of rights vouchsafed to them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
ct:
(a), Offer Robert Austin, Carol Rockey, Paul Rockey, Dorothy Vick, Catherine
Manton, and Wanda Mikel immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their individual seniority or other
rights and privileges previously enjoyed, and make them individually whole for any
loss of pay each may have suffered, with interest at the rate of 6 percent, by reason
9f Respondent's discrimination against them, as provided in the section above entitled
ft he Remedy."
(b) Preserve and, upon reasonable request, make available to the Board or its
agents, for examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records necessary
to analyze and ascertain the amount of backpay due under the terms of this Rec-
ommended Order.
Post at its plant at Borden, Indiana, copies of the attached notice marked "Ap-
pendix." 27 Copies of said notice, to be furnished by the Regional Director for.
21 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order."
BORDEN CABINET CORPORATION 1017
Region 9, shall, after being signed by a duly authorized representative of Respond-
ent, be posted by it immediately upon receipt thereof, and the maintained by it ford a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily affixed. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 9, in-writing,- within 20 days from
the receipt of this Decision, what steps Respondent has takeh'to `comply herewith.28
It is further recommended that the complaint be dismissed lini all other respect`s.
It is further recommended that unless Respondent shall within the- prescribed
period notify the said Regional Director that it will comply, the Board issue an
order requiring Respondent to take the aforesaid action.
RECOMMENDED ORDER IN THE REPRESENTATION PROCEEDING
Upon the basis of the applicable findings of fact and conclusions of law, and upon
that part of the entire record pertinent to the disposition of the objections in Case
No. 9-RC-5577, it is recommended that the election held on November 20, 1963, be
set aside and that another election be conducted.
2s If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of receipt
of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that: '
WE WILL NOT coercively question employees concerning their and other em-
ployees' union sympathies, desires, and activities.
WE WILL NOT discourage membership in District 50, United Mine Workers
of America, or any other labor organization, by discharging or otherwise 'dis-
criminating against employees in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT threaten to withdraw or discontinue company-paid insurance
benefits if our employees select the above-named District 50,as their bargaining
representative.
WE WILL NOT coercively state to employees that we know the contents of
affidavits they have given to the National Labor Relations Board.
WE WILL NOT threaten to refuse to sign a collective-bargaining contract with
the above-named District 50 if it succeeds in organizing our plant.
WE WILL NOT threaten to reduce piece rates and to discharge employees if the
above-named Union gets in our plant.
WE WILL NOT threaten to discharge employees who join the above-named
Union
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
the above-named District 50, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL offer to Robert Austin, Carol Rockey, Paul Rockey, Dorothy
Vick, Catherine Blanton, and Wanda Mikel, immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any losses of
pay they may have suffered as a result of the discrimination against them. -
All our employees are free to become or remain, and to refrain from becoming or
remaining, members of the above-named District 50 or any other labor organization.
BORDEN CABINET CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Federal
Office Building, Room 2023, '550 Main Street, Cincinnati , Ohio, Telephone No.
Dunbar 1-1420 , if they have any question concerning this notice or compliance
with its provisions.
The Triple AAA Water Co. and Chauffeurs, Sales Drivers &
Helpers Local 572, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America . Case No.
21-CA-5901,p. September 14, 1964
DECISION AND ORDER
On June 19, 1964, Trial Examiner James R. Hemingway issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
violative of Section 8 (a) (1) and (5) of the National Labor Relations
Act and recommending that it cease and desist therefrom and take
certain affirmative action, as recommended in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and the General Counsel filed a motion to
strike the Respondent's exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial Examiner's Decision
and the entire record in this case, including the exceptions and the
General Counsel's motion, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, The
1 In view of our determination herein we find it unnecessary to pass upon the General
Counsel 's motion to strike Respondent 's exceptions.
148 NLRB No. 103.