Jervis Corp.

National Labor Relations Board - Board DecisionsSep 26, 1962

138 N.L.R.B. 1017 (N.L.R.B. 1962)

WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1017 We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. PETROLANE GAS SERVICE, INC., Employer. Dated------------------- By-------------------------------------------(Representative ) ( Title) 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 application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days fi om the date hereof, and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 327 Logan Building, 500 Union Street , Seattle, Washington , Telephone Number, Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Wilder Finishing Co., Division of Jervis Corporation and Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW), AFL-CIO. Case No. 7-CA-3445. September 26, 1962 DECISION AND ORDER On June 12, 1962, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, counsel for the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Board i has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error has been committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and finds merit in the exceptions as set forth below. Accordingly, the Board adopts the findings and conclusions of the Trial Examiner only to the extent that they are consistent with the decision herein. 1. The Trial Examiner found that Respondent was not responsible for certain statements made by Chief Inspector Hall, on the ground that Hall was not a supervisor. We do not agree. Hall testified generally that he had no authority to hire, to discharge, to affect otherwise the status of employees, or to direct them in a responsible manner. Nevertheless, the record shows that Foreman Flinthof on hiring employee Brimmer told Brimmer that Hall was his supervisor 'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Biown]. 138 NLRB No. 113. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that subsequently Brimmer was told by Plant Manager Wilder to obey Hall, not Wainwright, as Hall was his supervisor. Further, there is evidence that Hall gave orders to employees and authorized leave. In these circumstances, we find that Hall was a supervisor. It is clear, moreover, that Hall was held out by management to be a supervisor,2 and that Respondent hereby placed Hall in a position whereby the employees would reasonably believe that he was acting as an agent on its behalf.' Consequently, we conclude that Respond- ent was responsible for Hall's conduct. 2. The Trial Examiner recommended dismissal of the 8 (a) (1) al- legations of the complaint which involved the following conduct. Foreman Wainwright, an admitted supervisor, told an employee, on one occasion, that he "figured" there would be a relocation of the plant if the Union came in. On another occasion Wainwright told a group of employees that he had heard that the shop possibly would close down if the Union came in. Hall, whom we have found to be a supervisor, stated to two employees that the plant would relocate if the Union came in. The Trial Examiner gave no consideration to Hall's statement, but found that Wainwright's statements consti- tuted an expression of opinion in two isolated instances which did not warrant a conclusion that the Respondent violated Section 8 (a) (1). We disagree. In our opinion, such expressions by supervisors are thinly disguised threats of economic retaliation designed to deter employees from the free exercise of their rights under Section 7 of the Act. They are not to be viewed in isolation nor are they to be regarded as mere ex- pressions of a personal opinion in the nature of predictions.4 These threats go to the very heart of the Act. Brimmer testified without contradiction that Hall interrogated him concerning the union organizational activities of the employees and instructed him to find out who was passing out or signing union cards. The Trial Examiner did not consider this evidence since he found Hall was not a supervisor. In view of our contrary finding of Hall's supervisory status, this interrogation by Hall constitutes inter- ference with the employees' statutory rights.' We find that by the above-described threats and interrogations the Respondent interfered with, restrained, and coerced employees within the meaning of Sec- tion 8 (a) (1) of the Act. 2 We note in addition that Hall, himself , either thought he had been made supervisor or was to hold himself out as one, because when asked to sign a union card be refused to do so because, as he stated , he was a supervisor. 3 , See N.L.R B . v. Tevaa Independent Oil Company, Inc., 232 F. 2d 447 , 450 (C.A. 9) ; Pearson Corporation, 138 NLRB 910. * Alamo Linen Service, 136 NLRB 1127. 5 General Engineering, Inc., 125 NLRB 674, 685; Meier & Frank Company, Inc., 89 NLRB 1016, 1018-1019. WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1019 3. The Trial Examiner recommended dismissal of the Section 8(a) (3) allegations on the ground that the General Counsel had not established by a preponderance of the evidence that the Respondent terminated the employment of Priest, Bettys, and Braden because of their union membership and activity. The Trial Examiner further ruled that the General Counsel made no contention that the three dis- chargees were engaged in protected, concerted activity when they quit their jobs before the end of the shift and indeed that the record would not support such a finding. However, in paragraph 16 of the complaint, the General Counsel sets forth alternative allegations concerning the discharges, including the assertion that they were effected because the men engaged in "concerted activities for the pur- poses of collective bargaining or other mutual aid or protection." Paragraph 17 alleges that the foregoing constituted unfair labor practices within the meaning of Section 8(a) (3) of the Act, while paragraph 18 alleges the same conduct constituted a violation of Section 8 (a) (1) of the Act. It is thus clear that the Trial Examiner misconstrued both the pleadings and contentions of the General Counsel. Further, the issue concerning the alleged concerted activities of the employees here involved was fully litigated at the hearing. Ac- cordingly, we have considered the facts in light of the General Coun- sel's contentions that the Respondent's alleged discharges of Priest, Bettys, and Braden violated Section 8(a) (1) as well as 8(a) (3) of the Act. On the night of June 21 Hall rejected some parts worked on by Priest and Bettys because they were defective. The customary prac- tice in the shop required employees to rework rejected parts without additional compensation. On this occasion, Priest and Bettys, who were on piecework, protested reworking their own rejects and threat- ened to go home before they would do it without additional compen- sation. Acting Foreman Wyman, pursuant to a telephone conversa- tion with Plant Manager Wilder, delivered an ultimatum to them. The Trial Examiner found that the tenor of the ultimatum was that if they "did not correct their work and if they left the plant before the end of the shift they would be considered as having voluntarily left their employment." Thereafter, Priest and Bettys corrected their work but left the plant about 10:30 p.m., although their shift was not scheduled to end until 2 a.m. Braden, who worked at a neighboring machine, left almost simultaneously, though he was not complaining specifically about his own work or pay at this time. The next morning the trio came to the plant and talked with Plant Manager Wilder, who told them that when they walked out, they had quit. He told them to return in the afternoon as he wanted some 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legal advice on the matter. When they returned he confirmed to them "that they had quit ; and that was that ; that was final." The Trial Examiner found that Priest and Bettys walked out be- cause they were not to be paid for reworking material they had al- ready worked; that they left before the end of the shift without per- mission, and that they thereby engaged in an unauthorized walkout and a quitting of their employment rather than in a protected con- certed activity. We agree with the Trial Examiner's finding as to the reason Priest and Bettys walked out and make the additional finding that Braden made common cause with Priest and Bettys by adopting their protest and allying himself with them,6 a finding which requires that the merits of all three cases be considered together. However, we do not agree that the walkout constituted an unpro- tected activity. It is clear from the above that Priest, Bettys, and Braden were acting in concert to protest against their working conditions. It is well settled that such conduct is protected activity within the mean- ing of Section 7 of the Act, and that an employer may not punish its employees therefor unless the Act's protection is removed for some reason.7 No such reason exists here. On the contrary, before leaving, Priest and Bettys completed the very work for which they were not being paid and which was therefore the source of their grievance. The Respondent could not convert a protected stoppage into unprotected activity by prohibiting the very act in question, i.e., walking out without permission.' Nor is the stoppage rendered un- protected by the fact that the three employees selected a time which was inconvenient for their employer. Moreover, Wilder plainly understood that the three had quit early in protest,9 as evidenced by the telephone conversation between Wilder and Wyman on the eve- ning of June 21 and the ultimatum which Wilder directed be deliv- ered to the men, as well as by the conversations between Wilder and the three dischargees on June 22. Under these circumstances, we find that the employees did not quit but were discharged by the Respondent, because they had engaged in conduct which, as we have found, was a protected concerted ac- tivity. Accordingly, we further find that their discharges consti- tuted a violation of Section 8 (a) (1).'o a This is conceded by the Respondent in its brief , and the Trial Examiner proceeded on the same theory. 7 N.L.R B. v. Washington Aluminum Company, Inc., 370 U.S 9; Walls Manu facturing Company, Inc, 137 NLRB 1317 8 N L.R.B. v Washington Aluminum Company, Inc, supra 9 Cf Walls Manufacturing Company, Inc., supra 10 We find it unnecessary to pass on the question of whether the discharges also violated Section 8 (a) (3) of the Act as such a finding would not affect the scope of the remedy herein. WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1021 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with its operations described in the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The unfair labor practices found are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY As we have found that the Respondent has engaged in certain unfair labor practices, we shall order that it shall cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlaw- fully discharged Melvin Priest, Harold Bettys, and Bradley Braden on June 22, 1961, subsequently reinstating Braden on December 28, 1961, we shall order that the Respondent offer Priest and Bettys immediate and full reinstatement 11 to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make whole Priest, Bettys, and Braden for any loss of pay suffered as a result of the discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned from the date of discrimination to the date of an offer of reinstatement, less his net earnings during said period.12 The backpay will be computed on a quarterly basis, in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289.13 We shall also order that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records and reports, and all other records necessary to analyze the amount of backpay due under the terms of the Order. As the unfair labor practices committed by the Respondent are of a type which strike at the very roots of employee rights safeguarded by the Act, we shall order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed its employees in Section 7 of the Act. n Inasmuch as the Respondent has relocated his plant at Middleville, we shall require that the offer of reinstatement be made at that location. 12A.P.W. Products Co., Inc., 137 NLRB 25. v Backpay shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing Co. Inc, 138 NLRB 716. For the reasons set forth in the dissent in Isis Plumbing, Member Leedom would not grant interest on. backpay. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights under the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce with- in the meaning of Section 8(a) (1) and Section 2(6) and (7) of the Act. ORDER 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 the Respondent, Wilder Finish- ing Co., division of Jervis Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discriminating in regard to the hire or tenure of employment, or any term or condition of employment, of any of its employees, because they have engaged in protected concerted activity. (b) Threatening relocation of its plant if the Union becomes the collective-bargaining agent of its employees. (c) Interrogating employees regarding union activity and in- structing them to keep such activity under surveillance. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join , or assist labor organizations , including International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW), AFL-CIO, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment as authorized by Section 8(a) (3) of the Act as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Melvin Priest and Harold Bettys immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make whole the said employees , and Bradley Braden, for any loss of pay they may have suffered as a result of the discrimination against WILDER FINISHING CO., DIVISION OF JERVIS CORP . 1023 them, in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Middleville, Michigan, copies of the notice attached hereto marked "Appendix." 14 Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by an authorized representative of the Re- spondent, be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter in conspic- uous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 14 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing An Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discriminate in regard to the hire or tenure of en1- ployment , or any term or condition of employment , of any of our employees because they have engaged in protected concerted activities. WE WILL NOT threaten relocation of our plant because of union activity. WE WILL NOT interrogate employees regarding union activity or instruct them to keep such activity under surveillance. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form, join, or assist labor organizations , including Inter- national Union , United Automobile , Aircraft and Agricultural Implement Workers of America (UAW), AFL-CIO, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purposes of collective 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Melvin Priest and Harold Bettys immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and we will make whole Melvin Priest, Harold Bettys, and Bradley Braden for any loss of earnings they may have suffered as a result of the discrimination against them. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. WILDER FINISHING COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) 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 application in accordance with the Selective Service Act 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, 501 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Telephone Number, 962-3830, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was held before Trial Examiner W. Gerard Ryan in Grand Rapids, Michigan , on February 12 and 13 , 1962 , on the complaint of General Counsel as amended at the hearing, ' and the answer , as amended at the hearing, of 1 The charge was filed November 13, 1961. The complaint was amended by substituting for paragraph 13 of the complaint the following : Since on or about June 13, 1961 , and continuing to date , at its aforementioned plant in Cedar Springs, Michigan , Respondent has interfered with, restrained and coerced and is interfering with, restraining and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act by the following acts and conduct : (a) Respondent by its supervisors and agents , Forrest Hall and Theodore wainwright on or about June 12, 15 and 16, 1961 , interrogated employees con- cerning their union membership , activities and desires and warned employees that the shop would be closed down or moved if they did not refrain from becoming or remaining members of the Union or giving any assistance or support to it. (b) Respondent by its supervisor and agent , Forrest Hall on or about June 15 and 19, 1961 , instructed employees to inspect the work of other employees more closely and to find fault with their work because of their union activities , member- ship and desires. The answer as amended denied the allegations of the amended complaint. WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1025 Wilder Finishing Co., Division of Jervis Corporation, herein called the Respondent. The issues litigated were whether the Respondent violated Section 8 (a) (1) and (3) of the Act. The parties participated in oral argument and filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The complaint alleged, the answer admitted, and I find that Respondent is and has been at all times material herein, ,a corporation duly organized under and exist- ing by virtue of the laws of the State of Michigan. At all times material herein, Respondent has maintained its principal office at 2900 Wilson Avenue, Grandville, Michigan, and its plant in Cedar Springs, Michigan, and has been at all times material herein continuously engaged at said plant in buffing and polishing automobile and hardware parts. During the calendar year 1960, which period is representative of all times ma- terial herein, Respondent in the course and conduct of its business operations per- formed buffing and polishing services for the Jervis Corporation which is located at 2900 Wilson Avenue, Grandville, Michigan, in an amount in excess of $500,000. Jervis Corporation is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Michigan. At all times material herein, the Jervis Corporation has maintained its principal office and place of business at 2900 Wilson Avenue, Grandville, Michigan, and is and has been at all times material herein continuously engaged at said place of business in the manufacture, sale, and distribution of auto and hardware parts and zinc die castings and related items. During the calendar year 1960, which period is representative of all times material herein, Jervis Corporation in the course and conduct of its business operations, manufactured, sold, and distributed at its place of business in Grandville, Michigan, products valued in excess of $1,000,000, of which products valued in excess of $500,000 were shipped from such principal office and place of business directly to States of the United States other than the State of Michigan. During the calendar year 1960, which period is representative of all times ma- terial herein, the Jervis Corporation in the course and conduct of its business operations purchased, transferred, and delivered to its principal office and place of business in Grandville, Michigan, zinc pigs, plating material, and related supplies valued in excess of $1,000,000, of which goods and materials valued in excess of $500,000 were transported to said principal office and place of business in Grand- ville, Michigan, directly from States of the United States other than the State of Michigan. Respondent is a wholly owned subsidiary of Jervis Corporation. Respondent and Jervis are and at all times material herein have been affiliated businesses with common officers, directors, and operators, and constitute a single integrated business enterprise; the said directors and officers formulate and administer a common labor policy for the aforementioned companies affecting the employees of said companies Respondent and Jervis Corporation are now and have been at all times material herein each individually and all collectively an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union , United Automobile , Aircraft and Agricultural Implement Workers of America (UAW), AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The alleged violation of Section 8(a)(1) The complaint as amended alleged and the answer denied that in violation of Section 8 (a) (1) of the Act, the Respondent by its supervisors and agents, Forrest Hall and Theodore Wainwright, on or about June 12, 15, and 16, 1961,2 interrogated employees concerning their union membership, activities, and desires, and warned them the shop would be closed down or moved if they did not refrain from be- coming or remaining members of the Union or giving any assistance or support to it; and that Forrest Hall on or about June 15 and 19, 1961, instructed employees 2 All dates herein refer to 19111 unless otherwise stated. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to inspect the work of other employees more closely and to find fault with their work because of their union activities, membership, and desires. The first issue to be decided is whether Chief Inspector Forrest Hall was a super- visor within the meaning of the Act. Forrest Hall testified that he holds the title of chief inspector and is responsible directly to the quality control department at the Middleville plant for the quality of parts leaving the Cedar Springs plant . Robert Brimmer, a night-shift inspector, testified that he was informed when hired by Mr. Flinthof, the day-shift foreman, that Hall was to be his supervisor. About 3 weeks prior to the discharge on June 22, a dispute arose between Wainwright, the night-shift foreman, and Hall as to whom Brimmer should obey in rejecting certain parts. The next morning Brimmer went to Wilder, the plant manager, and asked him whom he was to obey. Wilder replied that he should obey Hall and that Hall was his supervisor. Brimmer testified without contradiction that in addition to giving him orders Hall taught him his job duties and authorized his leave. Hall himself stated, according to Brimmer, that he could not sign a union card because he was a supervisor. Hall testified that while he was chief inspector in the Cedar Springs plant he never hired anyone and had no authority to hire anyone nor authority to transfer, suspend, or lay off anyone; nor did he have the authority to recall employees or promote them and had no authority to discharge or assign work to anyone. He testified that he did not have the authority to assign any of the four inspectors who were in the plant to do specific jobs as that was done by the foreman of the shift. Hall testified further that he had no authority to reward or discipline any employee nor to adjust any employee's grievance and that he had never recommended that any of the foregoing acts be done. He wore a regular work uniform and was paid on an hourly rate, punched a timeclock every day, and was paid for overtime. Hall testified further that he did not report to the foreman of the plant nor to Robert Wilder, the plant manager, but reported only to Ed Kincaid of Middleville Engineering Company who was in charge of the quality control. The record further contains uncontradicted testimony from Hall that after operations were transferred to Middleville, Hall continued in the same job as chief inspector in which work he continued to check the parts on final inspection before they went to the plating room. He testified that this job was the same in Cedar Springs as it was in Middle- ville and that after Respondent's operation was organized in Middleville, Hall be- came a dues-paying member of the Wilder Finishing branch of a local of the UAW. He was given a withdrawal card from that union showing that his dues were paid through January 1962, when he was promoted to a supervisory job as foreman by the Respondent. Upon consideration of all the evidence, I find and conclude that Chief Inspector Forrest Hall was not a supervisor within the meaning of the Act but was an hourly rated rank-and-file employee. I therefore find that the Respond- ent did not violate Section 8(a) (1) of the Act by the acts of Forrest Hall as alleged in the amended complaint and the amended complaint to that extent should be dismissed. There remains for consideration whether or not the Respondent violated Section 8(a)(1) of the Act as alleged in the complaint by its foreman, Theodore Wain- wright. Employee Harold Bettys testified that on or about June 15 or 16, 1961, during a discussion of the Union at Bettys' machine, Wainwright asked what good he thought the Union would do and after Bettys replied they might be paid for some of the work they were doing, Wainwright said, "Well, he figured they would relocate the plant if they got the Union in here." Employee Robert Brimmer testified that either on June 11 or ,12, or June 16 or 17, Wainwright said to Brimmer and also to David Newton and Norman Kilts, employees who were present, that he had heard that the shop possibly would close down if the Union came in. The record contains testimony concerning a certain conversation between Plant Man- ager Wilder and Melvin Priest. Priest testified that he invited Wilder to have a cup of coffee with him in the Red Flannel Restaurant at which time Priest brought up the question of the Union by informing Wilder that Priest had heard that he was being referred to as the sole instigator for the Union and he wanted to correct that impression with Wilder and stated that he was not the sole instigator. At that point Wilder replied that he had no objection to the Union coming in . Thus the only evidence of anything even approaching a threat to close the plant is Wainwright's remark to Bettys that he figured the plant would be relocated if the Union got in and Wainwright's statement to Brimmer, Newton, and Kilts that he had heard that it possibly would close down. The record does not contain any basis for Wain- wright's personal opinion as expressed above nor was there any evidence that the Respondent had decided to do this or was even considering relocating the plant. It thus appears .to be an expression of Wainwright's own personal view and not a WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1027 threat or even a flat statement that the plant would in fact be relocated if the Union came in. In Wainwright 's statement to Brimmer he was not quoted as saying the plant would close but only that it "possibly" would close . There was no identification of the source of the rumor or any indication of how real or remote a possibility this might be. The Board has distinguished between an illegal threat ,to close the plant if it were organized on the one hand and an expression of opinion or a prediction of closing on the other . So long as the statement does not indicate the employer would use its economic power to carry out the prediction to shut down the plant , statements of opinion or predictions along these lines do not constitute interference within the meaning of Section 8(a)(1). In Chicopee Manufacturing Corporation, 107 NLRB 106, the Board stated, "A prophecy that unionization might ultimately lead to loss of employment is not coercive where there was no threat that the Respondent would use its economic power to make its prophecy come true." There is no showing in this record that these casual statements were inspired by management or part of a program calculated to cause employees to reject the Union as referred to above. The testimony was that the highest local management officer, Wilder, personally told Priest, the employee who admittedly began the organizational activity, that Wilder had no objection to the Union coming in. Upon the basis of all the evidence and upon the entire record, I find that Wain- wright 's expression of opinion in two isolated instances does not afford the basis for finding that the Respondent interfered with, restrained, or coerced employees within the meaning of Section 8(a)(1) of the Act. The complaint to that extent should therefore be dismissed. B. The alleged violation of Section 8(a) (3) The complaint further alleged and the answer denied that the Respondent on or about June 22, 1961, discharged and since then has failed and refused to reinstate to their former positions Melvin Priest, Harold Bettys, and Bradley Braden in violation of Section 8(a) (3) of the Act because they joined or assisted the Union or engaged in other union activity or concerted activities for the purpose of collective bargaining or other mutual aid or protection. The answer further averred that Priest, Bettys, and Braden voluntarily quit their jobs by walking off their jobs and quitting the plant before the end of their shift although they had been informed if they left their work before regular quitting time they would be considered as having voluntarily quit their employment. Respondent, the Wilder Finishing Co., was incorporated in 1955 and operated a polishing and buffing plant in Cedar Springs, Michigan. Since the merger in 1958, the Respondent has been a wholly owned subsidiary of the Jervis Corporation. Robert Wilder, one of the principal stockholders at incorporation, has remained the Cedar Springs factory manager and also has responsibility for operation of various other subsidiaries. Since 1958 the principal customers of the Respondent have been other Jervis subsidiaries, principally the Middleville Engineering Company. The operations of these various subsidiaries are integrated, with one company manufacturing castings, Respondent polishing and buffing them, and the Middleville Engineering Company plating the castings. Cedar Springs is approximately 20 miles north of Grand Rapids and 40 miles north of Middleville and castings were transported among the various plants by motortruck. Operations at the Cedar Springs plant of the Respondent were discontinued in late July 1961. At that time the Middleville Engineering Company had been organ- ized by the UAW. Respondent's equipment was transferred to a part of the same building as the Middleville Engineering Company and shortly after the transfer Respondent recognized the UAW as bargaining agent for its production employees and a collective-bargaining contract was entered into. Respondent's operations have been substantially the same after the move as they were before, it remaining a polishing and buffing operation for Middleville Engineering Company. During the week of June 21, 1961, 84 people were working in the Cedar Springs plant. No one was on layoff and the Respondent had recently hired approximately 30 new employees and had installed some new equipment in order to handle its increased business. The plant was operating two shifts, each shift working 9 hours. There was one foreman for each shift, Richard Flinthof on the day shift and Theodore Wainwright on the night shift. During the week of June 21 Wainwright was on vacation and Richard Wyman was the acting night-shift foreman. Wyman normally worked as a production buffer. 662353-63-vol. 138-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Parts were regularly shipped from Cedar Springs by truck twice each day. One truck left about 4:30 a.m. each day in order to have parts in Middleville by 6 a.m. in time for Middleville 's first plating cycle . The truck then returned to Cedar Springs, was loaded , and again left in the afternoon. Prior to the transfer of the operations to Middleville , Respondent was unorgan- ized . Organizational activity began in Cedar Springs on or about June 9, 1961. Melvin Priest testified that on that date he contacted a UAW representative and began circulating authorization cards. Meetings were thereafter held in the Cedar Springs area and the Respondent received a letter dated June 14, 1961, requesting recognition. During the course of the night shift on June 21, 1961, nine employees left the plant prior to the scheduled end of the shift and the employment of Melvin Priest, Harold Bettys, and Bradley Braden was terminated the next day. The foregoing background facts are not disputed. Melvin Priest and Harold Bettys were buffers. On the night of June 21 they worked together as a team buffing refrigerator handles. They were on the night shift which started at 4:30 p.m. and ended at 2 a.m. By 9 o'clock they had buffed about 250 refrigerator handles. About 9 p.m. Chief Inspector Forrest Hall rejected 70 refrigerator handles which required 11/2 hours for Priest and Bettys to correct the bad spots. They inquired if they were to be paid for redoing their work and were told by Foreman Wyman that they would not be paid for reworking the defective parts. It was company practice that a buffer was paid for reworking defective work done by another buffer but was not paid for correcting his own work. They had informed Wyman that before they would rework the handles without extra pay they would leave the plant. About this time, Plant Manager Wilder telephoned to Wyman to inquire how things were going at the plant. (As set forth above, Wyman on that night was acting foreman in the absence of the regular foreman , Theodore Wainwright.) When Wyman informed Wilder of the discussion he was having with Priest and Bettys, Wilder directed Wyman to inform them that if they did not correct their work and if they left the plant before the end of the shift they would be considered as having voluntarily left their employment. Wyman so advised Priest and Bettys. I credit Wyman's testimony. Priest and Bettys then reworked the rejected handles for the next 11/2 hours, the time needed to do the job, and at approximately 10:30 p in. left the plant about 31/2 hours before the end of the shift. At the time they left there was still work to be done as the Respondent had to supply 1,600 items for the truck which was to take them to Middleville. At no time did Bettys or Priest object to the fact that 70 pieces had to be reworked; their only objection was that they were not to be paid extra for bringing them up to standard. Bettys testified. Q. Well, I am asking you why you left that night? A. Well, just because we wasn't making any money on the parts. We had to run so many and we wouldn't make any money if we had to rerun them. Why, we was working for nothing half the night. . . Q. What I mean is you did not object to the classification or rejection rather by the inspector? A. Well, they were rejected. There wasn't nothing we could do about it. Q. So you didn't protest that, right? A. Just to get more money. Priest, Bettys, and Braden left the plant together at approximately 10:30 p.m., and they agreed to meet together in the morning to see Plant Manager Wilder at the plant. The next morning Priest, Bettys, and Braden saw Wilder in his office about 9 o'clock. Wilder testified: Q. What was said and done at that time? A. Well, as I recall, the boys came in to see me; and Mr. Priest came around the corner and he said, "I suppose we are fired." And I said , "No, Mel, you're not fired." I said, "When you quit me last night and walked out that door and I needed those parts, that was it." I said, "You boys know what position you put me in." Wilder continued to testify that after discussing the financial affairs of the cor- poration and the bad parts they had to do over he told them he would have to check with the personnel manager or the lawyer as to whether Wilder was within his rights in letting them go Wilder told them to return later. When they returned Wilder testified as follows: WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1029 Q. What was the conversation at that time? A. They asked me if they were through; and I told them no, they had quit; and that was it; that was final. Q. During any of this second conversation did Mr. Braden say anything about being sick that night, the night before? A. I don't remember Mr. Braden saying a word. Priest, Bettys, and Braden then asked for their paychecks and were told to return on the next day. The next day they received their paychecks. Priest and Bettys have not returned to work for the Respondent. Braden was rehired as a polisher on December 28, 1961, at the Middleville plant. The General Counsel contends that Priest, Bettys, and Braden were discharged by the Respondent on June 22 in violation of Section 8(a) (3) because of their union activities. He contends in that regard that Chief Inspector Hall gave Inspector Brimmer directions to give closer scrutiny to the work of Priest and Bettys because of their union activities and that finally on the evening of June 21, Chief Inspector Mall rejected an entire skid (250 pieces) on the basis of 8 pieces claimed to be defective. The entire record shows, however, that Priest and Bettys did not have to rework 250 rejected handles. The skid of 250 was sorted out because the Respondent needed all the items it could use and Bettys and Priest reworked the bad spots in 70 handles out of 250 in the skid. In this respect Bettys testified: Q. I see. How long did it take you to rerun these 250 parts? A. Well, we just had to touch up the parts and the places they were bad. I'd say it was approximately an hour and a half. Q. An hour and a half to run 250 parts? A. Just touched them up where they were bad. We didn't rerun the whole piece. We reworked the parts that were bad on them. Although Betys testified that he and Priest had to rerun the entire lot of 250, I credit the testimony of Chief Inspector Forrest Hall who testified: Q. Now, Mr. Hall, referring to this exhibit No. 1, if in a lot of, say, 2 to 300 you find 3 bad pieces or defective pieces in it, what happens to the balance of the pieces in that lot. A. They're supposed to be all rejected. But we needed the parts bad that night so we sorted them out. Q. In other words, you sorted out the skid of some 15 or 16 racks? A. Yes. Q. And required that only seven of them be done over? A. Yes. TRIAL EXAMINER: Seven racks you mean? (By Mr. ALKEMA.) Is that right, seven racks? A. Yes. TRIAL EXAMINER: How many pieces in a rack? A. Ten. Priest testified that when he told Wyman he was leaving, Wyman said he did not blame him for having the work knocked down and not feeling like working any more that evening. I do not credit that part of Priest's testimony. The evidence is that Priest and Bettys left their jobs early because they were not to be paid for reworking the bad spots present in the handles they had already worked. In other words, the rejections were warranted and it is incredible to me that Wyman would sympathize with Priest and tell him he did not blame him for having the work knocked down and not feeling like working any more that evening when the work that was rejected was Priest's and Bettys' own work and they nowhere claimed that the rejec- tions were unwarranted. They admitted it took them 11/2 hours to correct the bad spots. Wyman denied be made that statement to Priest and I credit his denial. Bettys testified that he told Wyman he was going home and would see Wilder in the morning, and that Wyman said nothing to him. The General Counsel also produced testimony that other employees left their jobs before the end of the shift and would have it inferred as indicating discrimination that only Priest, Bettys, and Braden were discharged. The General Counsel introduced uncontradicted evidence that Bettys, Priest, and Braden were active in the union effort toward organization and that the Respondent was aware of their union activities The Respondent introduced evidence from Wyman, whose testimony I credit, that all of the others except one employee were excused by him. As to the other employee, no one knows anything about the circumstances of his leaving. 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel suggests in his brief that Priest , Bettys, Braden , and Merriman appeared in Wilder 's office in concert to protest the rejection rate. He does not, however , contend that Bettys, Priest, and Braden were engaged in a protected, con- certed activity when they quit their jobs before the end of the shift or when they appeared in Wilder 's office the next morning, for the record would fail to support such finding. The Respondent contends that the employment of Priest and Bettys (and also Braden ) was terminated because of the admitted fact that they left their work some 31/2 hours before the end of the shift. The Respondent introduced uncontroverted testimony by Wyman , Hall, and Wilder that it was obligated to supply a minimum of 1,600 refrigerator handles on the night in question to the Middleville plant in time for its plating cycle, which began at 6 a.m. Wilder also testified that 700 additional parts were supposed to be shipped to the Jervis plant in Grandville , Michigan , the next morning. Richard Wyman , called by the Respondent , testified that he thought some six to eight employees were working on the handle job besides Bettys and Priest. All employees on layoff had been recalled , about 30 new employees had recently been hired, and some new machines had been put into the plant to turn out the work. Each shift was working an hour overtime so that production was actually being carried on 18 hours per day and there was enough work in the plant for everyone that night. Uncontroverted testimony in the record is that there were two in-plant inspectors on each shift . These inspectors made rounds during the shift to check work as it was turned out by the individual operators . They did not inspect every piece produced but spot checked each man's work . Inspector Brimmer testified that if it appeared from the spot check that any man was having trouble or making an excessive number of bad parts , the inspector would spend some time with him but otherwise would spend little time with him , and that it was estimated that it took between 45 and 60 minutes for the inspector to make his rounds. In addition to the in-plant inspection , parts were also given a final inspection before they were shipped . This final inspection normally was Hall's function and he regular- ly came in during the day and frequently returned at night for several hours when parts produced at night were to be shipped at 4:30 a.m . Inspector Brimmer testified that on occasions when Hall was not in at night, parts were shipped after final inspection by the other inspectors . Final inspection , like in -plant inspection, is done on a spot-check basis and does not involve the detailed inspection of every piece. However, on final inspection , as contrasted to in-plant inspection , certain statistical standards must be met and if the number of defective pieces exceeds certain tolerances , the entire lot is rejected (or "knocked down") and must be reworked by the operator responsible. Bettys testified that on final inspection Hall made ,a spot check of a "percentage" of the parts and would make further inspection if some bad parts were found. Forrest Hall testified to the same effect namely , that his final inspection was a spot check or quality audit based on a chart which is in evidence , containing a quality control standard prepared by Ed Kincaid and followed throughout the entire Jervis organization . The procedure involved in the quality audit is to check individually each piece in a representative sample selected from the large lot being inspected . The number of pieces in ^a representative sample depends on the num- ber of pieces in the entire lot. If the number of defective pieces in the first sample is less than the number specified in the chart for a lot of that size , the entire lot passes inspection and is shipped . If, on the other hand , the number of defective pieces in the sample exceeds the permitted number, the lot may be rejected or a second and larger sample may be inspected. If the first or second sample lots con- tain more than the number of defective pieces allowed on the chart, the entire lot (even those which have not been individually inspected ) is rejected and the entire lot must be reworked by the operator responsible . This quality audit system permits large lots to be inspected without requiring that every piece in the lot be individually inspected. With respect to the work of Priest and Bettys on June 21 , Hall testified he found bad work in a skid and tagged it. Normal procedure was to have all of the pieces on the skid rerun . However, Hall testified that instead of rejecting the entire skid, he went through the 15 racks rejecting 7 and passing 8 racks. He said he went to the work of sorting out the good from the bad racks because "we needed the parts bad that night so we sorted them out." Bettys corroborated the fact that Hall sorted through the racks on the skid. Richard Wyman testified that after he learned Hall had rejected some of the work of Bettys and Priest , he first told Priest and Bettys they had to rerun the WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1031 parts. He testified they then said they would go home first. During the discus- sion which followed, Wyman testified that Wilder called the plant, was told by Wyman of the problem, and that Wilder instructed Wyman to tell Priest and Bettys that if they went home "they would be walking off the job the same as quitting." Wyman testified he told Priest and Bettys this and Hall testified he heard Wyman tell them that "if they left the plant they'd be walking off the job because we had to have the parts." Wyman testified he then left the area and did not see Priest and Bettys later that evening. At the meeting on June 22 in Wilder's office, Priest testified that Wilder told him he should not have gone home the night before because he needed to get the parts out.3 Bettys on cross-examination confirmed the fact that Wilder told them they should not have gone home and said that Wilder "was rather disturbed because we had left that night and wanted to know why." On the basis of the entire record I find that the General Counsel has failed to prove by the required preponderance of evidence that the Respondent discharged Priest and Bettys in violation of Section 8(a)(3) because of their union member- ship and activities. While the record shows they took part in union activities of which the Respond- ent was aware, it is clear that their employment was terminated because they left the plant on June 21 before the end of the shift. When they were informed by Wyman that they would not be paid for reworking the defective parts, they decided to quit when the work was rerun and they did leave before the end of the shift without permission. In N.L.R.B. v. Jamestown Veneer d Plywood Corporation, 194 F. 2d 192 (C.A. 2), the court held that four employees who walked off the job 21/2 hours before the end of the shift in protest of the short notice of layoffs voluntarily quit their employment without cause and therefore the employer was justified in its refusal to reinstate them. The court said (p. 194): "Quitting the job without cause is ground for refusal to reinstate the quitters," citing N.L.R.B. v. Scullin Steel Company, 161 F. 2d 143, 150-151 (C.A. 8). I find no merit to the General Counsel's contention that Priest and Bettys (and also Braden, discussed infra) were accorded disparate treatment in that they were discharged while others who had also left early were not disciplined. The others, the record shows except for one, left with the foreman's permission. In Gulf Coast Oil Company, 97 NLRB 1513, the Board rejected the contention of General Counsel that the employer violated the Act by refusing to reinstate three employees when it had reinstated eight employees all of whom were engaged in an unprotected con- certed activity. The record further shows that Chief Inspector Hall did not instruct Inspector Brimmer to scrutinize carefully the work of Priest and Bettys because of their union membership and activities. Hall directed Brimmer to watch closely the work of Priest and Bettys but only because of the quality of their work. That such direction was well founded is borne out by the record? I shall therefore recommend that the complaint insofar as it alleged that Priest and Bettys were discharged in violation of the act be dismissed. Bradley Braden, who worked a few feet away from Priest and Bettys, testified that he knew Priest and Bettys were going to leave the plant early because of their rejected parts, because they had mentioned to him that they were going. Priest testified that some of Braden's work had been rejected also on June 21. Braden testified that he left the plant at approximately 10:30 p.m., at the same time that Priest and Bettys left; that he had a cup of coffee with them at the restaurant and he agreed to come in with them to talk to Wilder on the next morning. When Wyman saw Braden blowing the dust off his clothese with an airhose just prior to leaving, Wyman asked where he was going and Braden replied that he was going home because he was sick. Wyman replied "they" would not like it if they (Braden and 3 When Wilder asked Priest why they had left early, Priest's reply was not that Wyman had told them they could go but was that he could not afford to work for 9 or 10 dollars a night. Priest testified : Q. What was your answer when he told you that you shouldn't have walked out the night before? A. I think all I said to him was that I couldn't afford to work for nine or ten dollars a night when we had been used to making around twenty-four dollars for nine hours and twenty-one for eight. * Contrary to the testimony of Priest and Bettys, Brimmer testified that on June 21 be had rejected some other pieces run by Priest and Bettys, showed them what was wrong, and they reran them. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Merriman ) went home . Wyman testified that he did not give permission to Braden to leave early and I credit such testimony . Merriman had told Wyman earlier that he probably would be going home early because he did not feel well . Braden testified that he had mentioned his back was bothering him in a general conversation in the Red Flannel Restaurant earlier in the evening but did not know if Wyman heard it. Wyman testified he had not heard it and did not think he (Wyman ) had been in the restaurant all night. The next morning Braden went to Wilder's office with Priest and Bettys. While there Braden never informed Wilder that he had left early because of illness. Wilder was never informed that Braden 's reason for going home was different from Priest's and Bettys ' and for all Wilder knew Braden had walked off the job for the same reasons they had left . Thus Wilder had no reaosn to believe that Braden's case was different or that he should be treated differently from Priest and Bettys. The General Counsel contends in his brief that since Priest, Bettys, and Braden had been leaders for the Union it was quite natural for the Respondent to assume that Braden had allied himself with Priest and Bettys in the walkout . The Respond- ent also contends that Wilder assumed that Braden had allied himself with Priest and Bettys in the walkout but not because of their union activities. On the basis of the entire record, I find that Braden was discharged because Wilder believed he had allied himself with Priest and Bettys in the unauthorized walkout on June 21 and in so doing the Respondent was not motivated by any unlawful discriminatory motives. The complaint with respect to Braden should therefore be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceedings , I make the following: CONCLUSIONS OF LAW 1. The Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 3. The record does not establish that the Respondent committed the unfair labor practices alleged in the amended complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, I recommend that the Board enter an order dismissing the amended complaint. Sav-On Drugs , Inc. and Retail Clerks Union , Local 1262 , affili- ated with Retail Clerks International , AFL-CIO. Case No. 22-RC-1342. September 26, 1962 DECISION ON REVIEW AND DIRECTION OF ELECTION On November 14, 1961, John J. Cuneo, the Regional Director for the Twenty-second Region, issued a Decision and Order in the above- entitled proceeding dismissing the petition on the ground of inappro- priateness of the proposed units. Thereafter the Petitioner, in ac- cordance with Section 102.67 of the Board's Rules and Regulations, as amended, filed with the Board a request for review of such Deci- sion and Order. The Employer filed a statement in opposition to the request for review. The Board by telegraphic order dated December 15, 1961, granted the request for review because of the factual and policy issues raised. 138 NLRB No. 61.