Detroit Gasket and Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 28, 1964

145 N.L.R.B. 1275 (N.L.R.B. 1964)

DETROIT GASKET & MANUFACTURING CO., PLANT NO. 1 1275
Detroit Gasket and Manufacturing Company, Plant No. 1 and
Jack W . Gregg. Case No. 10-CA-5300. January 08, 196-1p
DECISION AND ORDER
On October 7, 1963, Trial Examiner James F. Foley issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision 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
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings,' conclusions , and recommendations.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
1 The Trial Examiner 's Decision refers to the Respondent ' s conduct with regard to em-
ployee Gregg at times as a discharge and at other times as a layoff. We agree with the
Trial Examiner that the conduct in question was violative of Section 8(a) (3) and (1) of
the Act, but find that it was a layoff.
2 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent , Detroit Gasket and Manufacturing Company, Plant No. 1, its officers,
agents, successors , and assigns , shall:
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This case , Case No . 10-CA-5300, was brought under Section 10(b) of the
National Labor Relations Act, as amended ( 61 Stat . 136, 73 Stat . 519), herein called
the Act, on a charge filed on April 11, 1963, by Jack W. Gregg, an individual , against
Detroit Gasket and Manufacturing Company , Plant No. 1 , herein called Respondent.
On May 21 , 1963 , General Counsel issued a complaint premised on the charge
against Respondent, alleging that Respondent engaged in conduct constituting inter-
ference with, restraint, and coercion in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended , herein called the Act , on or about March 25
and 27, 1963. The complaint also alleges that on or about April 4, 1963, Respond-
ent discriminatorily discharged Jack W . Gregg, the Charging Party, and has failed'
145 NLRB No. 126.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reinstate him, in violation of Section 8(a)(1) and (3) of the Act. Respondent
filed an answer on June 6, 1963, denying the allegations of illegal conduct. By order
of the Regional Director, Respondent was given an extension of time within which
to answer.
A hearing on complaint and answer was held before Trial Examiner James F.
Foley on July 10, 1963, in Newport, Tennessee. General Counsel and Respondent
were represented at the hearing. The parties were afforded an opportunity to be
heard, make oral argument, and file briefs. General Counsel and Respondent filed
briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, with its principal office and place of business
located in Newport, Tennessee, is engaged in the manufacture of soft gaskets using
material such as paper, cork, rubber, and asbestos.' During the calendar year 1962,
Respondent sold and shipped products valued in excess of $50,000, directly from
Newport, Tennessee, to customers located outside the State of Tennessee. I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act, and that assertion of jurisdiction will effectuate the purpose of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No . 192, Sheet Metal Workers International Association , AFI. CIO,
herein called the Union , is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues in this case are whether Respondent's officers Ellis and Caponi, in the
latter part of March 1963, interrogated and threatened employee Lloyd Large and
employee Gregg, the Charging Party, in regard to union activity, and on April 1 or 2,
1963, interrogated employee Dorsey about Gregg's union activities, and threatened
him with reprisals if he engaged in union activity, and whether Respondent dis-
charged Gregg on April 4, 1963, because of his union activity.
B. Background evidence
In March and April 1963, the time during which the conduct under scrutiny was
allegedly engaged in, Respondent had 64 employees. Its peak employment was
about 90 employees. Its employees have never been represented by a union for
collective-bargaining purposes. In the fall of 1961, the Union engaged in an organi-
zational campaign to organize Respondent's employees A Board-conducted election
was held in January 1962 to determine whether a majority of the employees wished
to have the Union represent them for collective-bargaining purposes. Less than a
majority of the employees designated the Union as its collective-bargaining repre-
sentative. Beginning in November and December 1962, Respondent's employees
again evinced an interest in being represented by the Union. At the end of March
1963, this interest had reached a point where authorization cards were secured from
Tommy Brooks, president of the Union, by Jack W. Gregg, the Charging Party.
In January 1962, about the time of the election, Harry Ellis, Respondent's man-
ager, stated to Jake Bible, a leadman in Respondent's press department, that if he
heard anybody say anything about the Union to let him know and he would get rid
of him. When Gregg was hired in April 1960, Manager Fejer, who preceded Ellis,
told Gregg that Respondent was nonunion and wished to stay that way.
C. Interference with, restraint, and coercion
During the latter part of March 1963, Assistant Manager Thomas A. Caponi came
to the press of employee Lloyd Leon Large and said to him, "Jack told me you have
a union card." Large replied, "Jack Gregg just lied." No one else was present.
1 Respondent is one of two plants of the parent company, Detroit Gasket and Manu-
facturing Company, that are located in Newport, Tennessee. The second plant is herein
called Plant No. 2 The principal office of the parent company Is located in Detroit,
Michigan. The parent company also. has plants in Alpena, Belding, and Marine City,
Michigan ; and Petroleum, Ontario, Canada.
DETROIT GASKET & MANUFACTURING CO., PLANT NO. 1 1277
On the date of the hearing, July 10, 1963, Large was employed as a pressfeeder by
Respondent . He had been in Respondent 's employ approximately 15 or 16 months.
At the time Caponi approached him and talked to him , he was feeding his press.
Large testified that Caponi appeared to be half joking when he asked about the
card. Large did not consider it a joke. This testimony by Large is unrebutted,
except to the extent that Caponi testified that he was in the habit of joking with
the employees, and followed the practice of associating with them on a friendly
basis.
About the same time as his conversation with Large , Caponi had a conversation
with Gregg . Gregg was also a pressfeeder , and had been in Respondent 's employ
about 3 years. He was the observer for the Union at the Board election in January
1962. He had also actively participated in the Union 's organizational campaign
leading up to the January 1962 election . On or about March 27, 1963, he secured
authorization cards from Tommy Brooks, president of the Union . Over 50 cards
were signed . He was responsible for obtaining signatures on approximately 40 of
them.
Caponi came to the press where Gregg was working and said , "Jack, say, when is
the election going to be?" Gregg asked him if he was referring to the 1964 presi-
dential election . Caponi said that he was referring to the 1963 union election.
Gregg then answered that he did not know when there would be a union election,
that it would be up to Caponi and some of the employees to set the date for the
election. Caponi then asked him if he was going to give him a union card to sign.
Gregg stated that he did not know what he was talking about . Caponi then said
that he always took Gregg to be a truthful fellow, and Gregg replied that he was.
Caponi shrugged his shoulders and walked off. Caponi corroborated Gregg's testi-
mony of this conversation . He testified that he was only joking when he questioned
Gregg about an election , and asked him if he was going to give him a union card to
sign. He also said that he often joked with Gregg, and played baseball with him.
On the Monday or Tuesday prior to the Thursday dated April 4, 1963, on which
employee Gregg was terminated , Manager Ellis approached employee Harry J.
Dorsey and other employees in the cork department at the back of the plant where
they were preparing a place for the installation of a new Thompson press. The
employees were talking about the Union . Gregg's name was mentioned by someone
in the group , and Ellis said that if he thought that Gregg had anything to do with
organizing for the Union that he would get rid of him. Dorsey replied that he did
not believe that Gregg had anything to do with the Union at that time . Ellis then
said he did not think so either , that he did not believe anyone in the plant was be-
hind the organizational activity , and that he thought it was somebody from the out-
side. I have credited Dorsey's testimony of this conversation . It is unrebutted by
Ellis or by any other evidence of Respondent.
D. Gregg 's discharge
On Thursday, April 4, 1963, Respondent terminated six employees . One was a
general worker, three had been employed in the cork department , one was a sweeper,
and the other was a pressfeeder . The pressfeeder terminated was Jack W. Gregg,
the Charging Party. Respondent contends that the six employees were laid off for
economic reasons? General Counsel contends that Respondent selected Gregg for
inclusion in the group to be laid off because of his union activities.
Gregg testified that on April 4 Manager Ellis came to his press and asked him to
come into his office . When they were in the office , and Ellis had closed the door,
he said to Gregg that he was laying off six employees that day, "and by God, you
are one of them." He also said , "There's just been too many union activities and
rumors going on," that he was not going to have it , and that he was getting rid of him.
He said further that there had been too many people stopping at his press while he
was working , and talking about the Union . Gregg asked Ellis if he was going to
fire him, and Ellis replied that he was not going to fire him, he was going to lay
him off. Gregg also said to Ellis that he could not help the fact that employees
2 There were seven pressfeeders at the time of the April 4 layoff. Five including Gregg
were in the group of class III employees . Next to the class IV group , class III included
the employees with the best work performance records The other two pressteeders were
in class II, the regular employee group. Manager Ellis testified that these two employee's,
who had the same rate as general helpers in class I, had to be retained as they could be
assigned general helpers work General Counsel does not seriously contest Respondent's
position that a pressfeeder had to be included in the layoff or that the selection had to be
from the class III group.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stopped by his press, that he did not have any power over them. At the close of
the conversation, Gregg asked Ellis for his layoff slip, but Ellis replied that he would
get it the following day when he picked up his check. Gregg then said that he did
not want to come back to work the following day, and asked Ellis to mail his check
to him. According to Gregg, when Ellis began the conversation he was excited and
practically shouting. Ellis testified that on April 4, 1963, while Gregg was working
at his machine, he asked him to come into his office. When they were in the office,
Ellis told Gregg that he was laying off six people, that one had to be a pressfeeder,
and he had decided to select Gregg because of his poor record. Ellis also testified
that at the time his face was flushed, that he had come down with a dose of influenza,
and was sick practically all day. Upon consideration of the demeanor testimony of
both Gregg and Ellis, as well as relevant testimony discussed previously, and also
discussed hereafter, I credit the testimony of employee Gregg.
In July 1962, Plant Manager Ellis called employee Gregg into his office and
they had a conversation.3 The following is Gregg's testimony of the conversation.
Ellis began the conversation by patting Gregg on the back, and saying that he
wanted to congratulate him on the type of work he had been doing. He said that
he had been doing real good work and was the best pressfeeder he had in the depart-
ment, and that he was glad his attitude had changed. He then said that although
Gregg had a black mark on his record because of his union activities, he was going
to grade him in the upper bracket, and he would get a raise.4 Gregg said to Ellis
that he did not understand what Ellis meant by his reference to the black mark.
Ellis replied that the black mark was for his union activities. As Gregg was leaving
Ellis' office, the latter asked him if his attitude had changed. Gregg replied that he
supposed that he was referring to his union activity. Ellis said that he was. Gregg
then said to him that his union activities were over as far as he was concerned, that
he would never sit in on a union again, as he was fed up with unions , that they had
done nothing but cause trouble for him. He also stated that if anyone else started
a union, he would vote for it. Ellis laughed and said "O.K." Gregg received the
wage increase on August 7, 1962. At that time, he was upgraded to the status of a
class III employee.
s It was Gregg 's recollection that this conversation took place in September or October
1962, and that the raise that followed took place shortly thereafter . On cross-examination,
Gregg testified that the raise could have been given in August 1962, and that other em-
ployees received a raise at the same time . The evidence shows that this raise was received
by Gregg on August 7, 1962. Plant Manager Ellis testified that he talked to Gregg in
July 1962 about his work performance, and a proposed wage increase which was given him
in August . I find that the conversation took place in July 1962 , and not in September or
October 1962.
4In October 1961, the main offce of Detroit Gasket and Manufacturing Company, in
Detroit, Michigan , placed in effect at Respondent's plant and Plant No. 2 , a point system
for grading the work performance of employees. The employees were first placed in four
classes. Class I includes new hires, probationary employees, and certain regular employees
who handle very routine work. Class II includes regular employees having a minimum of
6 months' employment who have satisfactorily progressed in efficiency to be upgraded to a
class II rating. The employees In class I who performed routine work are not eligible
for upgrading to class II. Class III includes employees who by personal efforts and
work performance maintain top production and meet quality standards 95 percent or
better for a period of at least 3 consecutive months while in class II. Class IV Includes
outstanding employees , that is , those who have demonstrated leadership qualifications and
have maintained a record of 100 percent efficiency or better for a period of 6 consecutive
months in the preceding class III . Each employee in each of the four classes is graded
monthly on the standards of quality of work, quantity of work, job interests, job skill
attendance , initiative , and attitude . On each of these standards , he is graded " Superior,"
"Excellent," "Good," or "Fair." The mark of "Superior" is worth four points, that of
"Excellent ," three points , that of "Good," two points , and that of "Fair," one point An
employee is considered a "Superior" employee when be receives 26 to 28 points, an "Ex-
cellent" employee when he receives 19 to 25 points , a "Good" employee when he receives
13 to 18 points, and a "Fair" employee when he receives 7 to 12 points. Attached as
Appendix A is a summary of the grades Gregg received for the period from October 1961
through March 1963. They were offered in evidence by Respondent . Neither Manager
Ellis nor Foreman Kaczperski ever discussed the grades with Gregg . Neither did they
apprise him of the grading system.
DETROIT GASKET & MANUFACTURING CO., PLANT NO. 1 1279
Ellis testified that he said to Gregg in the July 1962 conversation that he was more
cooperative , seemed to be more pleasant , and was doing more work. He denied
he said he gave him a black mark for his union activities . He denied he made any
mention of union activities . He also told Gregg that his attitude and production
had been improving since February 1962 , and he had shown he was up to the higher
grade, and that he was putting him in for an increase as he was coming to be as good
a feeder as he hoped he would be. He denied he said he was the best pressfeeder
he had.
The testimony of both Gregg and Ellis is reconcilable except to the extent that
Gregg testified Ellis made reference to union activities and related the mark of
attitude to the presence or absence of union activity, and that Ellis told him he
was the best pressfeeder he had. Ellis denied that he made any reference to union
activity, or related the mark for attitude to the presence or absence of union activity,
or that he said Gregg was the best pressfeeder . I credit Gregg with respect to the
testimony he gave regarding Ellis' statements about union activity , and the mark
for attitude being dependent on the presence or absence of union activity . I credit
Ellis' denial that he said Gregg was the best pressfeeder . There were three press-
feeders in class III who had had superior work performance records, and received
higher hourly rates.
In November or December 1962 , Plant Manager Ellis had a conversation with
Acting Foreman Jake Bible regarding employee Gregg .5 Ellis instructed Bible to
watch Gregg, and if he happened to be talking too much with other employees to find
out what he was talking about . Ellis then said to Bible that if Gregg was talking
about the Union, he would lay him off . Bible said , "O.K." 6
When Kaczperski returned from Plant No. 2 to his job with Respondent as fore-
man of the pressfeeders, he had a conversation with Bible . Kaczperski asked Bible
if he had heard anybody talking about the Union , and Bible said no. Kaczperski
also said that if the Union was to come into the plant , Respondent would move out of
Newport 1
Bible talked to Kaczperski on many occasions about a raise for Gregg. These
conversations Bible had with Kaczperski were prompted by Gregg's request of
Bible that he try to do something about getting a raise for him . In each case, Bible
went to Kaczperski and asked him to do something . In the latter part of March
1963, about a week prior to Gregg 's discharge on April 4 , Gregg approached Bible
again about a raise. Bible again said he would talk to Kaczperski . He talked to
Kaczperski , and Kaczperski said that he had talked to Ellis about a raise for
Gregg, but Ellis said he was not going to give him a raise because he thought Gregg
still had something to do with the Union. This is Bible's testimony . Kaczperski
Ordinarily . Bible was a leadman for the approximately seven pressfeeders . Edward
Iiaczperski , the foreman for the pressfeeders, had been assigned temporarily to Plant No 2
Bible was placed in charge of the pressfeeders until such time as Kaczperskn returned to
his usual assignment . Bible had been employed by Respondent since May 17, 1960 On
July 1 , 10 days before the bearing, Bible had notified Respondent he intended to resign his
employment effective Friday, July 12. Kaczperski had been employed by Detroit Gasket
and Manufacturing Company for approximately 25 years. He had been foreman for
Respondent since November 1960.
6 This is the testimony of Bible Ellis admitted having the conversation with Bible,
but his testimony of what was said in the conversation differs from Bible's. Ellis testified
that he told Bible that he would have the responsibility of leading the pressroom while
Iiaczperski was in Plant No 2. He told him to watch production , keep the feeders supply-
ing material, watch for spoilage, and make sure that the feeders stayed at their presses.
He admitted he referred to Gregg. He said to Bible that he had to censure Gregg about
being away from his press, and talking too much, and if he found he was away from his
piess too much and talking too much, to let him know. From an evaluation of demeanor
testimony of the two witnesses , as well as the contexts of their other testimony, 1 have
credited the testimony of Bible.
' This is Bible 's testimony Kaczperski admitted having the conversation with Bible
He testified that Bible asked him if he had heard any rumors about union activity, and he
replied not particularly, that he had been at Plant No. 2 and did not know much about
what was happening at Respondent's plant. Iiaczperski then testified that Bible said that
there were rumors of a union, and that he said to Bible that in his opinion Respondent
might close down if the Union came in the plant.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recalled Gregg talking to him about a raise in March 1963. He told Gregg he
would talk to Ellis about it. He talked to Ellis. Ellis said to him that Gregg
did not have it in the record. Kaczperski recalled that he spoke to Bible in January
and February 1963 about a request by Gregg for a raise. On each occasion, he
said he would talk to Ellis about- it. From consideration of the testimony of Bible
and Kaczperski, as well as Gregg's I credit Bible's testimony. I have considered
the demeanor testimony of the witnesses as well as their other testimony.
E. Respondent defense of Gregg's discharge
As previously stated, Respondent contends that the layoff of six employees on
April 4, 1963, was for economic reasons, that a pressfeeder had to be included in the
group of six, and employee Gregg was selected because his record was the worst of
the pressfeeders whom the Respondent could lay off consistent with good business
operations.
Plant Manager Ellis admitted that David Proffit, a class III pressfeeder, had the
same number of points under the point grading system as Gregg, and that Gregg
had greater seniority. He contended, however, that Proffit was a more cooperative
employee, had a better attitude, and was more amenable to receiving instructions
from his supervisor. Ellis testified that for these reasons Gregg was the worse
employee of the two, and, therefore, was selected to be in the group laid off. Re-
spondent's position is that while seniority usually means that an employee is in
the upper classes of III and IV because of his experience, it does not provide a
preference for an employee if his record is not as good as a less senior employee.
There is no evidence to rebut this position. While Respondent offered in evidence
the monthly grading sheets for Gregg, it did not offer the grading sheets for em-
ployee Proffit. Counsel for Respondent was asked if he intended to do so, and he
replied that he did not.
Gregg's grading sheets summarized in Appendix A disclose that Gregg was con-
sistently an excellent employee from April 1962, up to and including February 1963.
During this period he consistently received at least the mark of "Excellent" for quality
of work. For the months of June and November 1962, he received the mark of
"Superior," a higher mark than "Excellent." He received the mark of "Excellent"
for quantity of work for each of the 11 months, and for job interest for 9 of the
11 months. For job interest for May 1962, he received the higher mark of
"Superior," and for June the mark of "Good," one point lower than "Excellent."
For 10 of the 11 months, he received the mark of "Excellent" for job skill. For the
month of May, he received the higher mark of "Superior." For 8 of the 11 months,
he received the mark of "Excellent" for initiative, and the higher mark of "Superior"
for the other 3 months of May, July, and September 1962. For the standard of
attitude, Gregg received the mark of "Excellent" for April and May 1962, "Good"
for June 1962, "Superior" for July, August, and September 1962, "Excellent" for
October and November 1962, "Fair" for December 1962, and "Excellent" for
January and February 1963. Kaczperski gave Gregg "Excellent" for December
1962, but it was reduced by Ellis.
For March 1963, Kaczperski downgraded Gregg from "Excellent" to "Good" for
job quality, gave him the same mark of "Excellent" for job quantity, downgraded
him for job interest from "Excellent" to "Good," raised his mark for job skill from
"Excellent" to "Superior," gave him the same mark of "Excellent" for job interest,
and reduced his mark for attitude from "Excellent" to "Good." Ellis reduced this
mark further to "Fair." 8
I have credited Gregg's testimony that in his conversation with Ellis in July 1962,
Ellis told him that his attitude was improving and that he would receive a higher
mark for this job standard. It is significant that consistent with Ellis' statement to
Gregg that he would receive a higher mark for attitude because he appeared to have
lost interest in the Union, Gregg was marked "Superior," the highest mark, for
attitude for the months of July, August, and September 1962. It is also significant
that the mark of "Excellent" which Kaczperski gave Gregg for attitude for the
month of December 1962, was reduced to "Fair" by Ellis. This is the month in
which Ellis instructed Acting Foreman Bible to watch Gregg to see whether he
was engaging in union activities. It is also significant that for March 1963, the
month in which Gregg obtained signed union authorization cards, Kaczperski re-
duced the mark of "Excellent" given to Gregg for attitude, and Ellis further reduced
it to "Fair."
8I have not referred to the marks for attendance as Ellis' conversation with Gregg in
July 1962 discloses that his marks for that factor, which run from fair to excellent, do
not affect his standing as a high performance employee.
DETROIT GASKET & MANUFACTURING CO., PLANT NO. 1 1281
Respondent represented that the monthly grading system disclosed a downward
curve in Gregg's work performance starting in October 1962 .9 However, as dis-
closed by Appendix A, the monthly grading sheets show that the marks for each
of the job standards remained constant or were higher from October 1962 through
February 1963, except the mark for attitude which was lowered in December 1962,
when Ellis feared Gregg was engaging in union activity . Significantly, the grades
were reduced for March 1963, when Gregg was busy obtaining signed authorization
cards. His mark for job quality which had been consistently "Excellent" or higher
was reduced to "Good," and his work for job interests which had been consistently
"Excellent" was reduced to "Good." This downgrading together with the down-
grading of the mark for attitude from "Excellent" to "Good" by Kaczperski and
from "Good" to "Fair" by Ellis reduced Gregg's points, for March 1963, to 18, one
point below the minimum for a class III employee.
Kaczperski testified on direct examination that he talked to Gregg about his atti-
tude in September, October, and November, 1962, and two times in the spring of
1963. These talks took place when he discussed with Gregg spoilage of certain jobs.
Kaczperski referred to spoilage that occurred in September 1962. He talked to Gregg
about it, and told him that he was supposed to be checking the jobs, especially the
larger ones, to make sure that they were cut clean. He testified that Gregg replied
that he would watch the job closer. Gregg appeared to be offended by his criticisms.
He said to Gregg that there was nothing to get peeved about, and Gregg replied
that he was peeved. Kaczperski testified that Gregg had spoilage in either October
or November 1962. He talked to Gregg about it in November 1962. According to
Kaczperski, Gregg again replied that he would watch the job closer.10 Kaczperski
also testified that he spoke to Gregg about spoilage that occurred on March 29, 1963.
According to Kaczperski, of the 2,100 sheets Gregg ran off the press, 1,600 were not
cut properly, and 1,250 of them had to be scrapped. He told Gregg on the same
day that he should have watched the job to prevent the cutting of so many defective
gaskets Gregg replied that he guessed he did slip up.
Kaczperski's testimony is silent as to any thing that Gregg may have said in
November 1962, or March 1963, other than he would watch the job more closely
and that he guessed he slipped up. Kaczperski testified on cross-examination that
he informed Ellis about the March 29 spoilage on that same date, and that Ellis
felt very upset about it, and told him it was quite a mess.
Ellis testified that the spoilage in March 1963 was not discovered by the investigator
until after Gregg had been laid off on April 4, 1963, and had already left the employ
of Respondent. Ellis also testified that the only two jobs of Gregg's he was aware
of on which there was spoilage was one run in October 1962, and the one in March
1963. He said that he had been aware of the spoilage in March 1963, before Gregg
was terminated, he would have written it up and have sent the report into the main
office in Detroit , as the spoilage involved a substantial loss.ii He did not do so, as
Gregg had already been terminated. He also testified that the spoilage in October
1962 (costing about $90) was not substantial enough to bring to the attention of the
Detroit office
Kaczperski also testified that he criticized Gregg for his attitude in the spring of
1963. One occasion was when Gregg stayed too long in the die room. According to
Kaczperski, he sent Gregg there to get a die, and Gregg stayed there longer than 5
9 Respondent's manuals containing policies and regulations for hourly rated employees
provide that any employee will be subject to disciplinary action, up to and including dis-
charge, for failure to maintain established minimum standards of production, or who falls
to maintain quality of production, or who falls to cooperate with Respondent in the intro-
duction or operation of new equipment or production methods They also provide that a
class III employee shall maintain the production and efficiency required for that class of
employee, and if he does not do so, he shall be apprised at once of his subnormal per-
formance, and every effort made to ascertain the reason for the drop in the level of
performance At the time the employee receives the oral warning, a written notice is to
be given to him, notifying him of his production deficiency, and a copy filed in his per-
sonnel jacket. After this warning, a review of his record shall be made for the next
30 days. If, after the review, the subnormal performance continues, the employee shall
be notified that his work performance is not up to the requirements, and he shall be de-
classified to class II. In no event shall a subnormal performance extend beyond 60 days
without declassification to class II.
"On this testimony, Gregg answered the criticism in both instances with the same
words, "I will watch the job closer "
"It was $225
734-070-64-vol. 145-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minutes. Kaczperski testified that he told Gregg that if it were necessary for him to
stay longer than 5 minutes in the dieroom , that he should come back and Kaczperski
would send somebody else. Kaczperski said Gregg resented the criticism . He also
testified that he criticized Gregg for talking too much at his machine with other
employees . Gregg said that it was not his fault that the employees were stopping at
his machine, that he had no control over them.
Gregg resumed the stand following the testimony of Kaczperski and Ellis, and
expressly denied that, at any time during a period of 16 or 15 months prior to his
termination , anything at all was said to him by either Ellis or Kaczperski regarding
spoilage or regarding his attitude. He readily admitted the spoilage that he was
responsible for in March 1963. He specifically denied that Kaczperski said anything
to him about staying too long in the dieroom at any time.
From an evaluation of the testimony of Ellis, Kaczperski, and Gregg, including the
demeanor testimony of each witness, along with the grades Gregg received for his
work performance, I credit the testimony of Gregg. I find that on the record Gregg
was not criticized by either Ellis or Kaczperski regarding his attitude either with
respect to spoilage or any other matter during the 15-month period immediately
preceding his termination on April 4, 1963. Respondent has a form entitled Em-
ployee Warning Notice which is to be issued to an employee for a number of faults
including lateness and absence. Gregg never received a warning notice for lateness
or absence or for any other of the faults listed on the Employee Warning Notice.
Faults listed on this notice are defective work, safety, conduct, lateness , absence,
attitude , housekeeping , disobedience , and carelessness.
F. Analysis and concluding findings
I make the following analysis and findings and conclusions.
I find and conclude that Assistant Manager Caponi 's statement to employee Large
in the latter part of March 1963, to the effect that Gregg had told him that Large
had a union card , was in the nature of a question , and therefore , illegal interrogation,
and a threat to the security of Large's job, and conduct that gave the impression that
Respondent was engaging in surveillance of his union activities . This conduct is
violative of Section 8(a) (1) of the Act.
I find and conclude that Assistant Manager Caponi's questions to Gregg in the
latter part of March 1963 , as to when a union election was going to be held and
whether Gregg was going to give him a union card , were illegal interrogation , a threat
to Gregg's job security , and gave the impression Caponi was engaging in surveillance
of Gregg's umon activities . This conduct is violative of Section 8(a) (1) of the Act.
I find and conclude that Ellis' statement to employee Dorsey a few days before
Gregg was terminated on April 4, 1963, that if he knew that Jack Gregg had any-
thing to do with organizing the Union that he would get rid of him, to be a statement
in the nature of a question , and, therefore , illegal interrogation , and a threat to Gregg
and Dorsey , as well as the other employees , that if they were engaging in union
activity they would lose their jobs. I find this conduct violative of Section 8(a)(1)
of the Act.
I find and conclude that on the record Respondent discriminatorily discharged
Jack Gregg on April 4 , 1963, because of his union activity . There is no evidence
that would disclose that the layoff of the six employees was other than for economic
reasons. However, the evidence does show that Gregg was included in this group
of six because of his union activity.
There is no question but that Respondent was aware of the union activity going on
in the plant in the fall of 1962 and in the spring of 1963. This is obvious from
Caponi's conversation with employees Large and Gregg in March 1963 , and Ellis'
conversation with Acting Foreman Bible in November or December 1962, and his
conversation with employee Dorsey a few days before Gregg was terminated on
April 4, 1963. Kaczperski 's conversation with Bible in January 1963 also discloses
this awareness.
I have credited the testimony of Respondent 's witnesses that it was consistent with
good business operations to retain the three pressfeeders in class III who had higher
ratings than either Gregg or Proffit , and to retain the two pressfeeders in class II
because they had the same rating as general helpers and could be assigned to general
helper work . However, in view of the credited testimony of Gregg of his conversa-
tion with Ellis in July 1962 , and on the day he was terminated , April 4, 1963, and
the grades he received for his work performance , I find significant that Respondent
deliberately withheld from the record the grades given to employee Proffit whom
Manager Ellis contended had the same grades as Gregg. I can only find and con-
DETROIT GASKET & MANUFACTURING CO., PLANT NO. 1 1283
elude that if these grades were offered by Respondent that they would be evidence
adverse to it.12
I also find and conclude that the evidence presented by Respondent of the points
which were given to Gregg for his work performance for the period October 1961,
up through and including March 1963, rather than presenting a defense in favor of
Respondent belies Respondent 's position that the discharge of Gregg was nondis-
criminatory . I do not give any weight to any reduction in points disclosed in the
point total for March 1963, in view of Respondent 's awareness at that time of
Gregg's union activity. Manager Ellis and Respondent were hostile to union
activity, and wished the plant to remain nonunion . This is obvious from the state-
ments made by Ellis to Gregg, Dorsey, and Bible, the statement made by Kaczperski
to Bible in January 1963, and the interrogation of Gregg and Large by Caponi in
March 1963, as well as the threats conveyed by that interrogation . The points
given to Gregg for his work performance during the year immediately prior to his
discharge do not show any downward curve in his work performance that merited
either reclassification downward or discharge . Considered with Ellis' statement to
Gregg that the latter's mark for attitude would be upgraded since he had ceased his
union activity, the grades show that Ellis deliberately manipulated the marks for
attitude to prejudice Gregg's work performance record when he was of the opinion
that Gregg was engaging in union activities . Appendix A discloses clearly that
during the period when there was no union activity in the plant, the points Gregg
received each month consistently showed excellent work performance . In July 1962,
Ellis did not believe that Gregg's mark of only "Fair" for attendance precluded him,
in view of his grades for the other factors, from being considered an excellent em-
ployee and meriting a raise and reclassification into class III, a group of employees
doing excellent work.
I have rejected Respondent 's testimony that Gregg was criticized for his attitude
or for spoilage either in 1962 or in the spring of 1963. His grades for job quality,
quantity of production, job interest, job skill, and initiative belie this contention in
any event. He received no written warning notices for lapses in job quality , quantity,
or skill or other factors affecting production , although Respondent 's policy manuals
clearly provided for the issuance of a written warning notice to employees with
lapses in phases of work affecting production . Moreover , Gregg was not warned
about absences , tardiness , or attitude by written notice, although Respondent had a
form specifically for that purpose. There is no evidence that he received an oral
warning.
On the other hand , Ellis gave Gregg the raise in August 1962 he merited because
he had ceased the union activity he had been engaging in. He had been the union
observer at the January 1962 Board election which the Union lost. He had been
active in the union organizational activity that took place in the fall of 1962. Ellis
instructed Acting Foreman Bible in November or December 1962, to watch Gregg
to see if he was engaging in union activity, and told Bible that if he was he would
lay him off. He told Kaczperski in the last of March 1963 that Gregg would not
be given a raise because he was still engaged in union activity. A few days before he
discharged Gregg, he told employee Dorsey that if Gregg was engaged in union
activity he would get rid of him . Ellis told Gregg on April 4, 1963, the day he
terminated him, that there were too many union activities and rumors going on,
he was not going to have it, and was getting rid of him.
There is no evidence in this record that Respondent has made any attempt to
reemploy or reinstate employee Gregg.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate , and substantial relationship to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that Respondent be required to cease and desist from such unfair labor
practices and take such affirmative action as appears necessary to effectuate the
"See Interstate Circuit, Inc. v. United States, 306 U.S. 208, 225-226; Wigmore,
Evidence ( 3d ed. 1940 ), §§ 285, 290.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policies of the Act. In view of my finding that Respondent not only engaged in
several acts of interference , restraint , and coercion , but also discriminatorily dis-
charged employee Jack W. Gregg because of his union activity , I shall recommend a
broad cease -and-desist order against any interference with, coercion , or restraint of
employees in the exercise of their protected activities . I shall recommend that Re-
spondent offer Jack W. Gregg immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority and other rights
and privileges , and make him whole for any loss of pay he suffered by reason of the
discrimination against him, as provided in F. W. Woollvoith Company, 90 NLRB
289, with interest at 6 percent per annum , as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent , Detroit Gasket and Manufacturing Company, Plant No. 1, is en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and
Local Union No. 192, Sheet Metal Workers International Association , AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
2. By interrogating employees with respect to union activity , threatening them with
loss of employment if they engaged in it, or selected the above Union, or any other
labor organization , to represent them, and engaging in surveillance or giving the
appearance of engaging in surveillance of employees' union activities , Respondent
engaged in conduct that interferes with, coerces , and restrains employees in the exer-
cise of rights guaranteed them in Section 7 of the Act , in violation of Section 8(a) (1)
of the Act.
3. By discharging employee Jack W. Gregg and failing to reinstate him because of
his union activity , Respondent discriminated against employees in regard to hire or
tenure of employment and terms or conditions of employment , to discourage mem-
bership in the above Union , or in any labor organization , and the selection of the
above Union , or any labor organization , as collective-bargaining representative, in
violation of Section 8(a)(3) and ( 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and pursuant to Sec-
tion 10(c) of the Act, I hereby recommend that the Respondent, Detroit Gasket
and Manufacturing Company, Plant No. 1, its officers , agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local Union No. 192, Sheet Metal Workers
International Association , AFL-CIO, or any other labor organization , by discrimina-
torily discharging its employees , or in any other manner discriminating against
them in regard to their hire or tenure of employment or any term or condition of
employment.
(b) Interrogating employees with respect to union activity or other concerted
activity , in a manner constituting interference with, coercion , or restrain of em-
ployees in violation of Section 8(a)(1) of the Act.
(c) Threatening employees with loss of employment if they engage in union
activity, or other concerted activity , or select the Union or any other labor organiza-
tion as their collective-bargaining representative.
(d) Engaging in surveillance , or giving the appearance of engaging in the sur-
veillance, of employees ' union activities , or other concerted activities.
(e) In any other manner interfering with, restraining , or coercing employees in
the exercise of their rights to self-organization , to join or assist the Union, 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 , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the purposes
of the Act:
(a) Offer Jack W. Gregg immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of earnings he may have suffered by
reason of the discrimination against him , together with interest at the rate of 6 per-
cent per annum , in the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board and its agents, for
examination and copying, all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
DETROIT GASKET & MANUFACTURING CO., PLANT NO. 1 1285
determine the amount of backpay and interest under the terms of this Recommended
Order.
(c) Post at its plant in Newport , Tennessee, copies of the attached notice marked
"Appendix B." 13 Copies of said notice , to be furnished by the Regional Director
for the Tenth Region , shall, after being duly signed by the Respondent 's representa-
tive, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notice is not altered, de-
faced , or covered by any other material.
(d) Notify the said Regional Director , in writing, within 20 days from the receipt
of this Trial Examiner 's Decision and Recommended Order, what steps Respondent
has taken to comply therewith.14
It is further recommended that unless on or before 20 days from the date of the
receipt of this Trial Examiner 's Decision and Recommended Order the Respondent
notifies the said Regional Director , in writing , that it will comply with the fore-
going Recommended Order, the National Labor Relations Board issue an order
requiring the Respondent to take the action aforesaid.
i" If this Recommended Order be 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 be enforced by a decree of a
TJnited 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"
iiIn the event that this Recommended Order is adopted by the Board , paragraph 2(d)
thereof shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX A
SUMMARY OF GRADES GIVEN EMPLOYEE JACK W. GREGG FOR PER10D OF
OCTOBER 1961 THROUGH MARCH 1963
1961 1962 1963
Factors
o
o c a a a
m
p A a
o
0 a
C) Z A ti
-
d
--
ti
-
ti
-
C
-
m
-
o
-
z
---
w
--
Quality_______________
-
G
-
G
-
G
-
E
--
E E E E S E E E E S E E R G
Quantity_____________ F F F F G G E E E E E E E E E E E E
Job Interest----------- G G G G G G E S G E E E E E E E E G
Job skill______________ G G G G G E E S E E E E E E E E E S
Attendance ----------- G G G S E E E G G F G G E G E E F E
Initiative_____________ F G G G G E E S E S E S E E E E E E
Attitude______________ F F P F F G E
-
E
-
G S S
-
S E E
-
F
-
E
-
E
-
F
-Total points---- 11- 12- 12- 15- 15- 18- 21 23 19- 21- 21 22- 21- 21 19 21 19 18
NOTES
Abbreviations S for superior , E for excellent, G for good, F for fair.
Point value 4 for superior , 3 for excellent , 2 for good, 1 for fair
Plant Manager Ellis reduced the mark of "Excellent " Foreman Kaczperski gave Gregg for attitude for
December 1962 , to "Fair " He reduced the mark of "Good " Kaczperski gave Gregg for attitude for March
1963, to "Fair "
An employee receiving 26 to 28 points is a superior employee , 19 to 25 points an excellent employee, 13
to 18 points a good employee, and 7 to 12 points a fair employee
APPENDIX B
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 , as amended , we hereby notify our employees that:
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Local Union No. 192, Sheet Metal
Workers International Association, AFL-CIO, or any other labor organization
of our employees, by discharging employees or refusing to reinstate them, or in
any other manner discriminating against them in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT question employees with respect to union activity or other
concerted activity, in a manner constituting interference with, coercion, or
restraint of employees in violation of Section 8(a)(1) of the National Labor
Relations Act, as amended.
WE WILL NOT threaten employees with loss of employment, or other reprisals,
if they engage in union activity, or other concerted activity, or select the
above Union, or any other labor organization , as their collective-bargaining
representative.
WE WILL NOT engage in, or give the appearance of engaging in, the surveil-
lance of employees' union activities, or other concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their rights to self-organization, to join or assist the
above Union, 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, as
guaranteed in Section 7 of the National Labor Relations Act, as amended.
WE WILL offer Jack W. Gregg immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay, including in-
terest, which he has suffered by reasons of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or
remaining members of Local Union No. 192, Sheet Metal Workers International
Association, AFL-CIO, or any other labor organization.
DETROIT GASKET AND MANUFACTURING
COMPANY, PLANT No. 1,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must be 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, 528
Peachtree-Seventh Building , SO Seventh Street NE., Atlanta, Georgia, Telephone
No. 876-3311, Extension 5357, if they have any questions concerning this notice
or compliance with its provisions.
The Little Rock Downtowner , Inc. and Hospital -Hotel-Motel &
Restaurant Employees Union , Local 200, affiliated with Hotel,
Restaurant & Bartenders International Union , AFL-CIO.
Cases Nos. 96-CA-1459, 26-CA-1489d, f6-CA-1482-2, and 26-C-4-
1482-3. January 28, 1964
DECISION AND ORDER
On October 2, 1963, Trial Examiner Samuel M. Singer issued his
Decision in the above-mentioned proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
145 NLRB No. 132.