McGraw Edison Co.

National Labor Relations Board - Board Decisions

May 27, 1970

182 N.L.R.B. 852 (N.L.R.B. 1970)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McGraw Edison Company , Albion Division and Truck
Drivers Local Union No . 164, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers
of America, Ind.
i
McGraw Edison Company, Albion Division and Loraine
Patrick
Stove, Furnace & Allied Appliance Workers International
Union of North America , AFL-CIO, and its Local
No. 5 and Truck Drivers Local Union No 164, Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , Ind. Cases
7-CA-7373, (2), and (3) and 7-CB-1985
May 27, 1970
DECISION AND ORDER
By CHAIRMAN AND MEMBERS BROWN AND JENKINS
On January 28, 1970, Trial Examiner Lloyd Buchanan
issued his Decision in the above -entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision.
Thereafter , the General Counsel filed exceptions to the
Trial Examiner ' s Decision and a supporting brief. The
Respondent filed a brief in support of the Trial Examin-
er's Decision and cross-exceptions to certain findings
by the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act„as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three -member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed: The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed.
' We do not consider or pass upon the observations of the Trial
Examiner at fn . I of his Decision.
TRIAL EXAMINER'S DECISION'
LLOYD BUCHANAN, Trial Examiner: The amended
consolidated complaint herein (issued August 25, 1969;
I This decision includes several "additions" which I have inserted
although I believe that they are superfluous , diffuse , even redundant;
but inserted to lessen the burden on anyone seeking to insert additions
on review . See F. W Woolworth Company, 179 NLRB No 129,
charges filed June 12 and July 1 and 28, 1%9), as
further amended , alleges that the Company2 has violated
Section 8(a)(2) of the National Labor Relations Act,
as amended , 73 Stat. 519, by recognizing the Respondent
Unions as the exclusive bargaining representatives for
its employees in the Litchfield plant although it knew
that the Unions did not represent an uncoerced majority,
and by unlawfully assisting said Unions in that it directed
its employees to attend a union meeting on company
premises during working hours , permitted the Respond-
ent Unions to conduct a meeting to solicit members,
promised wage and other benefits if the employees signed
cards or joined the Respondent Unions, circulated in
the plant and permitted circulation of a petition to remove
an employee from his position as officer in Local 5,
called meetings of its employees to enable the Respondnt
Unions to take action against said employee because
of his activities on behalf of the Teamsters, deducted
dues and initiation fees from the wages of Litchfield
employees and delivered said moneys to the Respondent
Unions, and discharged Loraine Patrick, Minerva Seag-
raves, Clara Staten, and Myron Youtsey because of
their concerted activities on behalf of the Teamsters;
Section 8(a)(1) of the Act by ,said acts and by executing
and maintaining with the Respondent Unions a collective-
bargaining agreement covering the Litchfield employees
although the Respondent Unions did not represent an
uncoerced majority of said employees , and also by
threatening employees with loss of jobs unless they
signed a petition to oust an employee as steward for
Local 5; and Section 8(a)(3) of the Act by all of the
aforementioned acts and in addition because the collec-
tive -bargaining agreement entered into did not contain
a 30-day grace period. The complaint further alleges
that the Respondent Unions have violated Section 8(b)(2)
and 8(b)(1)(A) of the Act by all of the above acts
and by unlawfully demanding recognition prior to the
execution of the aforementioned collective -bargaining
agreement , by threatening employees with discharge
unless they signed designation cards or became members
of the Respondent Unions , and by coercing employees
to ally themselves with the Respondent Unions rather
than with the Teamsters.
The answers, as amended, place in issue that status
of the Charging Union as a labor organization within
majority opinion. An excursionary footnote may well be in order since,
while those involved in trial may lose sight of basic issues, what
excuse is there when opportunity is afforded for deliberation on review"
There is no limit to what can be added on a given point (even if
error be avoided in the addition ) But surely those who would thus
add must show the necessity therefor ; if not necessity , at least benefit.
And if the addition adds nothing, what then"
"Modifications" so-called can more readily be recognized if not jus-
tified Even if the sequence be irrelevant , BA is a modification of
AB But warranted" This is not to say that additions or modification
are, never necessary and in order. But, like outright reversal, they
must be justified
Having extended this decision although I should have preferred not
to, why this footnote ? Suggestions through channels are not uniformly
even acknowledged And suggestions are in order where there is concern
for the Board's repute.
P As amended at the hearing, McGraw Edison Company, Albion
Division
182 NLRB No. 127
MCGRAW EDISON COMPANY
the meaning of the Act, deny the allegations of specific
and independent interference and assistance , admit the
checkoff while alleging that the moneys are being held
by the employer, and further allege that the four termina-
tions were for cause. The issues were further defined
and limited by agreements which will soon be noted.
The case was tried before me at Jackson and Marshall,
Michigan, on October 1 through 3 and 14 through 16,
1969, all dates inclusive. Briefs have been filed by the
General Counsel and the Company, the time to do
so having been extended.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I. THE COMPANY' S BUSINESS AND THE LABOR
ORGANIZATIONS INVOLVED
The facts concerning the Company's status as a Dela-
ware corporation, the nature and extent of its business,
and its engagement in commerce within the meaning
of the Act are admitted; I find and conclude accordingly.
It was also admitted with respect to the Respondent
Unions, and stipulated with respect to the Charging
Union, and I find and conclude, that the three Unions
are severally labor organizations within the meaning
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Accretion and the Validity of the Contract Provisions
At the trial, counsel agreed that with respect to the
allegations of illegality of the June 5, 1969, agreement
referred to in paragraphs 15 and 16 of the complaint
(and presumably the paragraph 14 allegation of unlawful
recognition), our concern first is with the question wheth-
er the Respondent Unions represented an uncoerced
majority on June 5; and second whether the contract
provisions in force at that time were violative. In the
latter connection, counsel agreed to the receipt in evi-
dence of certain documents. Received as General Coun-
sel's Exhibit 2 was an agreement known as the Red
Book, dated October 1, 1966, and expiring September
30, 1969, and specifically article 3, section 1, thereof.
That section, which related to union security, omitted
the necessary 30-day grace period. Also received, as
General Counsel's Exhibit 3, is a Summary of Agree-
ment , dated May 29, 1969, and specifically that portion
which provides for deletion of article 3, section 1 of
General Counsel's Exhibit 2; and the substitution there-
for of a provision which includes the required 30-day
grace period. General Counsel's Exhibits 2 and 3 refer
to the employees at the Albion plant. Also received,
as General Counsel's Exhibit 4, is a one-page document,
dated June 5 which, with appropriate modification
extends the scope of General Counsel's Exhibits 2 and
3 to the Coil Department at the Litchfield plant. Of
853
the three documents thus received only General Coun-
sel's Exhibit 43 is under attack in this case.
It is the Respondents ' position that recognition and
execution of the agreement covering the Litchfield
employees were appropriate because Litchfield consti-
tutes an accretion to the preexisting and'larger Albion
plant unit. The Respondents further claim that the Lit-
chfield agreement and recognition were valid and lawful,
not because of any card majority, but because the
Litchfield employees conducted a self-determination
election on June 4 and by a vote of 20 to 4 designated
Local 5, and that the Company thereupon advised Local
5 that on the basis of the election results it would
recognize the Local as representative of the Litchfield
employees. The issues thus presented in this connection
were dual: Whether Litchfield constitutes an accretion
to the preexisting unit, and whether a majority of the
employees freely designated Local 5. But we shall see
that the decision with respect to accretion is determina-
tive regardless of employee designation by cards or
vote.
Admittedly the agreement of October 1, 1966, which
contained a union membership requirement invalid
because it omitted the 30-day grace period, is not under
attack. Nor, for good reason , does the General Counsel
question the modification of May 29, 1969, which provid-
ed the necessary grace period. Surely then the agreement
of June 5, 1969, which extended the Red Book, as
modified, to the Litchfield plant, is on its face valid;
the General Counsel attacks it only on the issue of
valid majority. The question persists whether the Lit-
chfield plant is an accretion to the Albion unit or whether
it is a separate bargaining unit.
Little, if ° anything, will be gained by detailing here
all of the facts concerning the history of the Litchfield
operation, its relationship with the Albion plant, both
constituting the Albion division, and what may reason-
ably be expected with respect to the continuance of
that operation and relationship. While, as we shall see,
the issue of accretion is of basic importance here, the
uncontradicted facts are spread on the record.
Although it does not itself determine the question
of accretion and development of a functionally integrated
entity, the general ambiance is certainly not hostile
to such,a concept and materialization. Interchange of
employees may indicate a combined function but, as
we shall note , absence of such interchange, because
of special and different skills, may mean only allocation
of different duties as in different departments under
a single roof.
We have here more than common ownership in two
geographically close small communities many of whose
employees reside in the intervening and surrounding
area.4 It is superabundantly clear that the functions
performed at Litchfield and at Albion are complementary
3 This contract is between the Albion division and Local 5; the
International Union is not a party to it. Neither are any of the allegedly
violative acts connected with the International Insofar as it alleges
violation by the latter, the complaint will be dismissed Local 5 will
be referred to hereinafter as such or as the Union.
4 Cf Centac Corp:, 179 NLRB No. 46
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the former operates as and is a small department
of the latter.
To cite a few factors, Albion has a litile more than
500 employees while Litchfield, 18 miles away, has
17 and hopes. to reach a figure of 35 sometime. When
the Company' decided to manufacture its own precision
coils, it looked for additional space in Albion but, unable
to',ind any,,leased space in Litchfield with the possibility
of transferring the new operation to Albion or elsewhere
at the expiration of the Litchfield lease . Another depart-
ment once set up some 20 or 25 miles from Albion,
its employees covered by the same union contract, has
since been transferred to the main plant . Foltz , formerly
at Albion , was transferred and made superintendent
at Litchfield; he reports to Henning, vice president of
the Albion division. When Foltz went to the hospital
in June , Schrader, the division's industrial relations
director, went to Litchfield and took charge with a
supervisor from Albion . Foltz , operates Litchfield as
a department of the Albion plant , a department+ whose
employees with new or different skills manufacture parts
which Albion had previously purchased for inclusion
in its products. All of Litchfield's production is for
Albion only and is tied in with the latter's production
and sales requirements , no Litchfield products being
shipped anywhere except to Albion. Both Albion and
Litchfield have the same working rules. There is no
employee bumping between the two plants, different
operating skills being required , a situation which is under-
standable where employees' training and methods differ.
Except for a few employees who were interviewed
at Litchfield by Schrader, all job interviews and hiring
have taken place in Albion. In this connection we recall
also that the Albion contract terms have been extended
to cover the Litchfield employees.
Whether with 17 or a hoped-for 35 employees, the
Litchfield ' plant is to be recognized as an , accretion
to the preexisting Albion unit , and its employees properly
in that unit . This is so even if company representatives
and counsel , claiming accretion , thought that designation
of the Union by the smaller group was necessary.
In what appears to me to be the unlikely event that
it be held on review that Litchfield is not an accretion
to the Albion unit , I shall proceed to consideration
of the various allegations as if it were indeed not an
accretion . Such consideration may be and may be
declared to be "unnecessary "; but it shall be set forth
the more readily since I analyzed and weighed most
of the testimony concerning the allegations as it was
received and before accretion was shown . Were these
separate units, the tally of 20 to 4, of which more
below, would indicate Local 5 majority but for the
question of coercion and assistance , which we shall
now consider only to determine whether there was viola-
tion of Section 8(a)(1) and (2) as alleged.
B. The Alleged Unlawful Assistance
Like other ' issues , the allegations of unlawful assist-
ance can quickly be disposed of by reference to the
accretion an the automatic inclusion of the Litchfield
employees within the coverage of the preexisting con-
tract . Thus any assistance to Local 5 in obtaining cards
or in stressing the terms of the collective -bargaining
agreement would be redundant . There is no claim of
unlawful refusal to bargain even if it could be urged
that refusal to modify the contract or benefits thereunder
at the request of individual employees in violative. As
for any tendency to interfere with protected concerted
activities, it is not claimed that the Company at any
time acted contrary to the wishes or interests of Local
5; and employee activity vis-a-vis the Company separate
and apart from Local 5 could not come into formal
play until the contract expired 3 years later. We shall
nevertheless consider these items lest a peremptory dis-
missal be not satisfactory on review and because they
were gone into in such detail at the trial before the
issue of accretion could be determined.
One could not further endorse the General Counsel's
case than to accept as proved his allegations that during
working hours on June 4 the Company ordered its Lit-
chfield employees to attend a meeting conducted by
Local 5 in the plant and that it at that time permitted
the Union to solicit memberships . In the absence of
union representatives , Schrader opened the meeting by
telling the employees that Local 5 wanted to get into
the shop . He described the existing contract and various
new or additional benefits , and told them that he thought
it was a pretty good deal. Some of the employees
asked whether they could have the same benefits without
paying dues to any union ; I credit the testimony of
several employees who told us that Schrader did not
tell the employees that it would have to be "all or
nothing" with respect to joining the Union and getting
increased benefits. But whether Schrader's reply was,
as he told us , that he couldn't take a position at that
time ("I can't tell you now"), or that he did not have
the say-so, and whether it be called an implied promise
of benefit as further alleged in the complaint or a threat
to deny benefits, his admitted reply would be violative
under other circumstances.5
After the Company's representatives withdrew, the
employees voted by 20 to 4 in favor of Local 5. The
Company was informed and, under a prior understand-
ing" that it would recognize ' the Litchfield employees
as in the unit if they so agreed , it notified at the Albion
plant Local 5's president and secretary, Hackworth and
Jordan. These two came to Litchfield and addressed
the employees, who were now summoned to this meeting.
While some question was raised at the trial concerning
this , I am satisfied that Schrader explained to the employ-
ees that they had a 30-day grace period for joining
the Union. The circumstances surrounding these two
meetings and the permission given to the Union as
bargaining representative to address the employees indi-
cate no more than lawful cooperation between manage-
ment and labor and that these did not "join hands
at the expense of employee rights. "7
Steve Alo: Ford, Inc., 179 NLRB No 43.
Such an understanding , like the vote taken , was unnecessary if
this was an accretion.
' Department Store Food Corporation of Pennsylvania v. N.L.R.B.,
MCGRAW EDISON COMPANY
Because it was several times referred to at the trial
and fully litigated even though not alleged, we 'should
note testimony given in one form or another to the
effect that Schrader told the assembled employees that
they would be fired if they did not vote for the Union.
Modifying this, a witness called by the General Counsel
testified that Schrader 'had said that anyone who did
not sign a card ' "if it was passed " would be fired.
After confusing a vote for the Union with the signing
of a card, the witness finally made it clear that the
reference was to sign a' union card if the majority
voted for the Union. Another witness made it clear
that 'Schrader spoke of an opportunity to join the Union
rather than any compulsion to do so. There would
indeed be a requirement to join if the ' Union were
designated by a majority and a union-shop 'contract
was or had been entered into. As we have already
seen, such a contract was then in effect and covered
the Litchfield employees by accretion thus etiolating
violation which 'might be found under other, circum-
stances.
Employees called. by the General Counsel testified
variously that they 'did not recall whether Schrader
mentioned a 30-day grace period, although he did say
that dues would not be deducted until sometime in
July; and that after Schrader left the,me'eting Hackworth
confirmed an employee 's' jstatement of understanding
that he had 30 or 31 days before joining . Schrader
had signed the May 29 agreement which corrected the
earlier one at Albion by adding a grace period. Although
this does not prove that he mentioned a grace period
on June 4, certainly it was fresh in his mind and he
testified that he did. From all of the'evidence, I find
that he did speak of this to the employees when. he
called'them together prior to the vote on June 4.
Another item which should be considered because
it was fully litigated even though not alleged is employee
Barnett's discussion, with Litchfield Supervisor Foltz
on June 5. Foltz and another employee had been away
during the meeting on June 4. The two were called
into Foltz ' office the following morning with Hollstein,
an active supporter of Local 5, whom he had brought
in as a witness . Foltz described the meetings of the
day before and explained the various benefits under
the contract. Hollstein testified that it was he who asked
the two whether they wanted to sign; but this does
not lessen Foltz' responsibility for any untoward acts
or statements at this time . Hollstein told us also that
there was no discussion concerning whether the two
had to belong to the Union or concerning a union
shop: and he denied that Foltz told Barnett that he
would not get an ' increase if he , were not a member
of Local 5.
With a union-shop clause in the contract, a suggestion
or request even by the employer that cards be signed
is not violative. Nor would such cards be necessary
for a majority already indicated. If made pursuant to
a union-shop clause in the contract with Local 5, the
request that Barnett sign should, however, have included
415 F 2d 74 (C A 3).
855
reference to the 30-day grace period. Although the testi-
mony pro and con was directed to the issue whether
Foltz threatened to withhold the increase if cards were
not signed , no one was asked and nothing was said
concerning any reference to the grace period, except
that it was brought out in response to a specific question
on cross-examination of Barnett that Foltz did` not say
anything concerning a 30-day period. Whether Barnett
in fact' recalled that Foltz had omitted reference to
a grace period (this would not be significant to Barnett
at the time), I will not ' find violations here on the
basis of such an'alleged claim in the face of the testimony
that Barnett and his fellow employee were merely asked
whether they wanted to join and since it appeared clearly
but only with difficulty that the grace period had been
mentioned the day before. Finally, any violation in
this connection would be de minimis in the light of
the overall situation. .
In support of the allegation with respect to circulation
of a petition to remove Youtsey from his position as
a union officer, and presumably to support the allegation
that he was discriminatorily discharged, he testified that,
although steward at Litchfield for Local 5, he sought
to obtain support for the Teamsters. This was brought
to the attention of Hackworth, who on June 16 urged
the removal of Youtsey as steward. Hollstein, whose
presence we have noted at the June 5 discussion with
Barnett, vigorously supported Youtsey.
Connection with the Company, was shown at, the
point where Schrader stopped Youtsey and some of
the other employees as they were leaving on June 16
and told them that Hackworth and another union repre-
sentative wanted to speak with them regarding some
union business ; and again at lunchtime the following
day, when, Schrader told the assembled employees at
Litchfield that he was tired of union meetings in the
shop, "he would like to get it ironed out once and
for all," and left, turning the meeting over to Hackworth.
This 'could properly be accomplished' in discussions
between the union leaders and the employees, and it
was quite proper for Schrader to arrange such discus-
sions. Such a proper objective and proper approach
would be undermined were an 'employer to be held
responsible for whatever is thereafter said at such discus-
sions. Unlike other cases, there is no proof or even
suggestion here that Schrader attempted to remove Yout-
sey as steward or to persuade employees to take such
action, or that he unlawfully' called meetings with such
a purpose in mind. I
Hackworth referred to Youtsey's dual union activities
and at both discussions with the employees spoke of
his removal. The employees resisted this, and some
wanted to strike. The two union representatives and
Youtsey thereupon met with Schrader and other compa-
ny representatives. Youtsey asked for certain changes
in the contract with Local 5 and told Schrader that
the men would not return to work unless changes were
made. Schrader did not know that the men were not
working at the time, and they returned at Youtsey's
direction after Schrader told Youtsey to present in writ-
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing what he wanted and that two or three changes
could probably be made.
Later that day and despite his earlier support of
Youtsey, Hollstein presented to Barnett a petition for
a meeting that afternoon to replace Youtsey as union
steward: Barnett refused' to sign, and a few minutes
later Foltz approached him and, referring to Hollstein's
petition, allegedly told him to think of the money his
family would be missing if he were not working. Foltz
now allegedly added to this warning of possible discharge
that Barnett was to work 24 hours as a brazer before
receiving the $3.02 brazer's rate, but that he had not
worked that many hours. This is quite confusing as
it appears that up to that time and through June 17
Barnett had brazed for a total of 6 hours and there
is no evidence of any question having been raised con-
cerning his rate. Despite his refusal to sign the petition,
Barnett apparently suffered no reprisal as he continued
as a brazer. Further confusion was added when despite
his testimony that the meeting petitioned for was to
replace Youtsey as steward, his description of what
occurred at the meeting was limited to talk concerning
the number of hours required before an employee could
be paid a brazer's rate. Finally in this connection, while
I would not regard as serious an error with respect
to date or day of the week, Barnett later told us that
the meeting sought was to be held the following day
not that same afternoon.
I credit the testimony by Foltz, who declared that
he was not aware that any petition was being circulated
to remove Youtsey as steward, and denied that he
spoke to Barnett about any such petition or that he
warned him to think of his family with respect to his
job. Foltz sensibly explained a discussion which he
had on June 16 with Barnett and another employee
concerning the brazer job. It may be noted that, if
Foltz was as concerned with Youtsey as union steward
as Barnett has suggested, Foltz, exhibited no untoward
attitude toward Youtsey as late as July 3, when as
we shall see he accepted Youtsey's report of illness
and told him to get a doctor's excuse through
July 7.
C. The Alleged Violations by the Contract Extension of
June 5, 1969
We have noted that the agreement of June 5, 1969,
is valid on its face. As in other respects, the element
of accretion determines or makes irrelevant the issue
whether Local 5 represented an uncoerced majority
at Litchfield. But accretion aside, the finding that Schrad-
er promised benefits to the employees on June 4 would
impair the contract.
Were the Litchfield employees- a separate unit and
their own vote determinative, the extension of the con-
tract to include them would have to be set aside. With
benefits promised immediately before the vote was taken,
one cannot guess at what the tally would have been
had there not been such interference. Wide as the 20
to 4 margin was, it is neither impossible nor unlikely
that the vote disparity resulted from the persuasiveness
of benefits made dependent on a favorable vote.
But the extension of the contract to the Litchfield
employees does not depend on and is therefore not
affected by the interference or assistance. Since the
Litchfield group is an accretion to the preexisting unit,
the ballot taken was irrelevant and the contract was
properly to be extended without consideration of the
Litchfield employees' preference. Thus in this connection
we need not weigh the effect of the interference and
assistance or the significance of the 20 to 4 tally. In
short, since the Litchfield employees properly accreted
to the existing unit, the contract could properly be
extended to them regardless of any taint which might
otherwise have attached to their cards and the vote
taken on June 4. Neither cards nor votes were necessary
or determinative if there was an accretion and extension
of the preexisting unit." With this falls the allegation
of violation because of deduction of union dues and
initiation fees."
D. The Alleged Discriminatory Discharges
1. Youtsey
Although steward for Local 5, Youtsey engaged in
activity on behalf of the Teamsters beginning early
in June. It has found above that in turning employees
over to Hackworth on June 16 and 17, Schrader did
not himself attempt to remove Youtsey as steward or
otherwise violate the Act. But Youtsey' s dual union
activity was clear and the Company had direct knowledge
that he was spokesman for employees who were demand-
ing changes in the contract with Local 5. There can
be little question but that the Company had knowledge
that Youtsey was supporting the Teamsters; and there
is at least some basis for inferring that the Company
was displeased by that activity and by his leadership
of the dissidents. (The original charges herein had by
that time been filed by the Teamsters against the Compa-
ny and the Union.)
Employed at Litchfield for 7 or 8 months, Youtsey
was involved in an automobile accident on Sunday,
June 1, 1969. His mother notified the Company, and
he returned for work on June 9 or 10. From June
2 on, thus injured, he had been at home; he lived
approximately 50 feet from the plant. Youtsey knew
of the plant rule that employees would be terminated
for unexcused absence of more than 3 days. He worked
steadily thereafter until June 3010 when, with Foltz'
9 Cf. General Extrusion Company, Inc., 121 NLRB 1165, 1167; Mera-
mec Mining Company 134 NLRB 1675, 1679-801general Electric Compa-
ny, 81 NLRB 654, 655-656; Sunset House, 167 NLRB 870.
9 It appears that the discussion centered on signing of membership
cards, not on the checkoff authorizations which were also signed.
10 Company records show that he worked all day on June 27, 2.7
hours on June 30, and not at all thereafter . In reconstructing his
work record, Youtsey appears to have erred as he testified that it
was after working for some 3 hours on the morning of June 27 that
he left to see the doctor The difference is not here significant beyond
the indication that Youtsey's recollection as to when he worked (and
some other matters ) is not reliable
MCGRAW EDISON COMPANY 857
permission, he left the plant after a few hours to keep,
he explained , an appointment for an eye examination
by a Doctor Foster. The doctor told him that he thought
there was glass in the eye and possible damage to
the eye and the skull around it; and advised him to
see his family physician.
Youtsey went to both of his family physicians, Doctor
Growt and Doctor Riegel . It was on June 30 that Growt
gave him a statement that he was not to return to
work before July 7. About July 2, Youtsey saw Doctor
Valderrama, an eye specialist, with whom Youtsey now
made an appointment for July 8 . On July 3, Youtsey
told Foltz over the telephone that he had the appointment
with Doctor Valderrama and that he "had an excuse
from Doctor Growt up until the 7th." Foltz told him
to bring the excuse in.
There follows a series of contradictory statements
by Youtsey. He testified first that he gave Growt's
certificate to Foltz' secretary, John, on July 9, 10, or
11. Shown his affidavit, he maintained that, as he had
there stated, it was 'on July 11 that he gave the certificate
to John, and that he telephoned her on July 14, not
on July 9, 10, or 11. The affidavit and this later testimony
were incorrect: John was on vacation the week of July
7, including July 11. Youtsey further maintained that
his affidavit, not his prior testimony on the stand, was
correct: His telephone conversation on July 14 was
with John, not with Foltz. In this respect his affidavit
was correct: Foltz left for vacation on July 11.
We return to Youtsey's misadventures with his doctors
and his subsequent contacts or lack of contact, with
the Company. We recall his testimony that Foltz on
July 3 told him to bring in Growt's certificate as an
excuse until July 7. Foltz denied that Youtsey spoke
of an appointment with Valderrama. Youtsey testified
that on July 4, the date he first mentioned as having
given Growt's certificate to John (this rather than July
11, is the more reasonable date, aside from John's
absence on July 11, since the certificate had been given
him on June 30, and it was effective until July 7) he
told Foltz again that he had an appointment to see
Valderrama on July 8.
That Youtsey realized, aside from his knowlege of
the rule, that absence beyond July 7 had to be excused
is evident from his testimony, contrary to the Company's
records, that after he had worked for about 3 hours
on July 8, Supervisor Hinkle gave him permission to
leave to see Doctor Valderrama.
Youtsey now testified that Valderrama told him that
it would be 2 or 3 months, if then, before vision returned
to his eye; that he telephoned Foltz the following day
and told him what Valderrama had said and also that
he was on his way to see a specialist in Ann Arbor,
and would not be in the rest of the week, Foltz allegedly
replying that it was all right and that he should bring
a doctor's slip when he came in. From this. it would
appear that Youtsey was to return to work the following
Monday. Even if Foltz said that, there was no indication
that Youtsey would be away beyond that week, and
we are left without any reasonable explanation for his
failure to come to work the following week. We recall
the telephone call which Youtsey !allegedly made to
John on July 9, 10, 11, or 14. He allegedly told her
that he could not return until he received the doctor's
okay. Nothing had intervened since he indicated to
Foltz that he would return. But he now allegedly told
John: "[A]s far as I was concerned as long as my
doctor was on vacation that I was still under his care
until he examined me to go back to work:"
There was no waiver or extension here with respect
to the rule concerning excuse for absence. Nor did
John have the authority to grant an extension . Further,
supported by company records, John testified that Yout-
sey telephoned on only one occasion, on the morning
of July 9, to say that he was going to the medical
center in Ann Arbor.. Youtsey's sole contacts with the
Company after June 30 were on July 1 and 2, when
he reported sick; on July 3, when he spoke with Foltz
on the telephone; and on the morning of July 9, when
he called to say that he was on his way to see a
doctor in Ann Arbor. Whatever his problems with doc-
tors, not only did Youtsey not get a further medical
certificate, but he did not thereafter get an excuse from
the Company or even seek one.
Youtsey was not responsible for Doctor Valderrama's
prognosis if it was in fact made. (He was capable
of and did considerable driving.) But although as he
testified, he did pass that prognosis on to Foltz, he
failed to submit a certificate which was now allegedly
requested by Foltz to cover the immediate future.
The fact that he went to work elsewhere about a
month later confirms the impression that, whatever else
he was going, Youtsey, living so close to the plant,
did not want to work and purposely refrained from
appearing there in person. Although he allegedly wanted
,and expected to return, he did not go in and, after
receipt of the discharge letter on July 16, he thought
it useless to talk to his immediate supervisor (or anyone
else?) in Foltz' absence; or later, to talk to Foltz.
The' recognized rule here was not merely to notify
the Company, but to be excused. Told to obtain a
doctor's certificate on the basis of which he would
be excused, Youtsey failed to do so, and indeed did
not further communicate with the Company, with or
without a certificate, for several times 3 days thereafter.
We need not speculate concerning the reason why he
did not approach the plant. I find that he neither reported
for work nor communicated with the Company while
he continued, as he told us, to drive to other areas
in search of medical assistance or a certificate.
Whatever Youtsey's condition (he was given a physical
examination when he went to work elsewhere in August),
the issue here revolves around his failure to report
for work or to be excused. Granted company knowledge,
of his concerted activities, the Company had ample
justification for this discharge . While he could not be'
lawfully discharged even if and because his union activi-
ties constituted a thorn,in the Company's 'side, such
activities did not immunize him against discharge.
With a certificate which carried him to July 7 (there
is no claim that it was sufficient or effective beyond
that date, and the defense is that he sought another
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter), Youtse}) offers the explanation that, because
he needed another certificate and was unable-to obtain
one, he continued to remain away! Violation of the
company rule warranted the discharge, Beyond that,
lest one be misled by the complication of facts, including
references to company failure to pay medical bills, it
does not appear that Youtsey was or claimed to be
unable to work on July '7 or thereafter or that he was
not fully competent to, perform his job on June 30.
If he left to obtain treatment, there 'is no evidence
of treatment thereafter, which kept him from work-
although the issue is still his failure to comply with
the requirements to be excused. Absent for a week
after the accident; Youtsey had then worked for about
3 weeks, and now, up and about and active, had absented
himself during the next 2 weeks.
We cannot say that the Company would not have
discharged Youtsey but for his activity on behalf of
the Teamsters, or that the Company did not act solely
because of his failure to report for work or comply
with the rule concerning excuse for absence. I find
and conclude that he was lawfully discharged. The con-
cern and deliberation given to all of the testimony herein
reflect, not any merit in Youtsey' s claim , but the assidu-
ousness with which it was prosecuted.
2. Patrick, Staten, and Seagraves
Patrick and Staten, each employed at Albion for about
2 years, had for some time been working together on
a steel cutting job. Their production was generally good
although they had been warned about it on several
occasions. Having finished that job, they were assigned
on the afternoon of June 26 to cutting a heavier and
larger piece of, steel. A third employee, Seagraves, was
assigned to work with them on the latter job. There
being no rate for production standard on the larger
piece, a timestudy man observed the three and assigned
a rate of 599 hits per hour. The rate on the smaller
job, which Patrick and Staten performed, was 420 hits
per hour. Although three girls worked on the larger
piece, it appears that it was a slower job and, whatever,
the standards on -each of them, it, appears that the
rate on the larger should be smaller than that on the
lighter piece. But no claim that the larger was incorrect
was made to the Company.
On the afternoon of the following day, June 27,
while they were still on the larger job, their foreman,
Wireman, charged them' with loafing and "putting it
to" him. Patrick replied that the' rate was bad, and
Wireman's rejoinder was that it was not that bad.
According to Wireman, Patrick remarked, `.`It doesn't
look very good for us, does it?" The three finished
that job early on the morning of Monday, June 30,
and Patrick and Staten returned to the shear oni which
they had run the smaller piece.
Their production on the larger piece for the 8 hours
on Friday was equivalent to less than 11/2 hours at
the rated 599 hits per hour. Shortly before 11 o'clock
on Monday the three were called to the office and
told that they were discharged for loafing on the job.
Industrial Relations Director Schrader 'testified that
Hoag, supervisor of timestudy and methods, had told
him several times early in the month that some of
the people, particularly some of the girls in the shear
room area, appeared to be operating in slow motion
and were below the required standard. Schrader told
Wireman to speak to the union steward to warn the
people. To this point Schrader dries not appear to have
identified any of the employees; he was concerned with
the work and shortcomings of "the people," there being
some 30 in the department. Told on the 30th that Patrick,
Staten, and Seagraves hadbeen loafing and had turned
out less than 2 hours' production in the 8 hours on
Friday, Schrader allegedly checked the rate with Hoag
and directed that the three be discharged. While the
requirement for a trial period was not met, that point
is not argued; presumably in deference to the testimony
concerning loafing.
Wireman had told Schrader, Vice President Henning,
and Plant Superintendent Fox, that the three had been
loafing, on the job and that he had previously issued
warnings to them. Schrader did not mention these warn-
ings in his,testimony concerning the discharges although
he' did refer to Wireman's report that the three had
been sitting on buckets, leaning on the machine, and
going to the restroom.
It will serve little, if any, purpose to detail here,
the involvement indicated on the record to explain and
compare the production standard of 42011 for the smaller
piece,and the 599 per hour standard for the larger
piece, which was based on the judgment of the timestudy
man (who did not appear before us), and the omission
in the comparison attempted at the hearing of two factors
permitted under the, union contract. Those two factors
were described as minimum time and average time,
and 'are specifically included in, the union contract. Nor
could we permit a witness to testify with respect to
a conclusion that other jobs were similar or comparable.
It should not be overlooked that Patrick and Staten
did very good work on the morning of the 26th before
they ^ entered upon the, larger, job, and for the short
time that they worked after completing it on June 30.12
(We shall also refer to poor work on several prior
dates which Hoag cited but which were not specifically
cited by Schrader when he explained the discharges.)
From the first it was clear that imposition of a much
higher. production rate or, standard on the larger job
than on the'smaller called for explanation. Hardly satis-
factory was, Hoag's explanation that the rate on the
smaller was erroneous. This developed only after careful
and difficult inquiry in an attempt to follow involved
computations which, as we have seen , included subjec-
tive 'considerations by a timestudy man at least with
respect to the larger sheet on June 27. The reference
to such considerations was no more satisfactory than
)1
" This was the standard testified to by Patrick. Hoag testified that
it was 450
12 There was also a very marked increase in their production during
the brief period on the larger piece on the morning of June 30 over
their rate on June 27, when they were apparently loafing
MCGRAW EDISON COMPANY 1 8591
was the belated claim of error with respect to the
timestudy on the smaller sheets.
Hoag does not appear to have checked to the extent
of noting the allegedly incorrect rate on the smaller
job, although he did, with Henning, check the rate
on the larger piece and found that it was fair. Clouding
the picture from the other side is the failure of these
employees to voice even an informal protest when they
were given the 599 rate. Only when criticized the next
afternoon on their low production did Patrick say that
the rate was "no good." It may indeed be that the
standard on the smaller piece was too low; even that
the employees recognized that as their production far
exceeded it. But' the onus there is the Company's,
and our question remains whether the discharges were,
discriminatory.
Hoag testified that, aside from the poor work on
the large piece on June 26, 27, and 30, Patrick and
Staten ran in the red to a considerable and varying
extent throughout the week of June 16 and on June
23.13 During those 6 days they worked on two job
types. While shortcomings in their work have been
shown, the unsatisfactory or inadequately explained rea-
son for these discharges, as we consider the production
standards which have been emphasized, provides some
basis for finding that they were discriminatory. But
we come now to the question whether they were effected
in order to discourage' union activity.
About May 13, some 50 Albion employees 'met at
a club outside the city with a Teamsters steward of
another company. They discussed steps for decertifica-
tion of Local 5, and Teamsters contracts and procedures.
The next morning Foreman Holmes asked Staten whether
there had been trouble at the meeting the night before
and, when she answered in the negative, added that
he had heard there was a fight; this she also denied.
While Holmes knew of the meeting , it does not appear
that Patrick, Staten,'or Seagraves played any leading
role, that Holmes thought they had, or that this provided
any discriminatory basis for selecting these three for
discharge. To connect: these discharges with attendance
at the meeting would be tantamount to granting immunity
from discharge to all who attended.
On the afternoon of June 3, Local 5 called a special
meeting to ratify or reject the May 29 agreement covering
the Albion employees. During this meeting, which was
attended by approximately 300 employees as they came
and went, Patrick asked Local President Hackworth
why it would not be better to wait14 some 6 months
until the old contract expired inasmuch as the Company
was or would be in a bind as it sought to bid on
various job contracts. We can speculate and it would
not be surprising if Hackworth, disturbed by this attempt
to delay ratification of the new agreement, informed
1
13 Were they connected in the Company's mind with Teamsters activity
on June 2, mfrs, such earlier failures to meet production rates provided
an opportunity or excuse for discharge at those times.
11 Another employee, Harrison, appears to have been more active
in this respect as he "was going around talking to people about voting
down the new contract which would be coming in, and to hold off
until [they] found out what the Teamsters could offer" them
the Company. But an inference to that effect would
not be warranted since that would equate the union
representative with a company supervisor insofar as
inference and imputation of company knowledge are
concerned. Certainly Hackworth was not a company
supervisor or agent, and his knowledge is not imputable
to it.
We, cannot adopt protean standards to impute or
infer company knowledge through Hackworth. There
is no warrant for extending the doctrine of imputation
to cover his knowledge of Patrick's sentiments to the
extent that she disclosed them, and ascribing such knowl-
edge to the Company. Hackworth's authority and agency
with respect to the Company have not been shown15
and we cannot assume that he transmitted his impress-
sions or beliefs to the Company.
A different evaluation could be placed on distribution
by Patrick's husband and another man, both employed
elsewhere, on June 2 of notice of a' Teamsters meeting
next day. Wireman himself received a copy from them
as he drove through the plant gate. It is understandable
that the Company, which had a longstanding relationship
with Local 5 and which was in the process of extending
that relationship to the Litchfield plant, might be as
displeased by evidence of dual unionism or a campaign
for another union as an employer which opposed any
union activity would react to such activity. Displeased
by Mr. Patrick's Teamsters support thus displayed at
the Albion plant, the Company would react against
his wife, its employee. '5
Wireman testified that he did receive a leaflet which
two men were passing out at the gate; but he testified
without contradiction that he did not know either of
them. An earlier attempt by the General Counsel to
show Mr. Patrick's distribution of Teamsters circulars
was barred because it was not connected. Indeed the
General Counsel declared at that time that he had no
proof of company knowledge thereof.The missing ele-
ment appeared to be provided during our recess of
a week and a half with employee Estep's testimony
that Wireman received a circular while Mr. Patrick
was distributing them-until Wireman thereafter testified
that he did not know or recognize Mr. Patrick as Patrick's
husband. Insofar as this case is concerned, the husband's
distribution of Teamsters leaflets' was an adventitious
circumstance without bearing on the issues before us.
Without basis for imputing to the Company a knowledge
of what Patrick said to. Hackworth, we are no more
warranted in inferring and concluding that the Company
knew of the leaflet distribution and attributed it to Patrick
or her husband.
The entire history of events with the poorly explained
higher quota on the larger shear job might well warrant
a finding of unlawful discrimination were there a modi-
cum, slight yet of substance, of evidence of company
11 Carpenters , Local 517 (Gil Wyner Construction Company), 112
NLRB 714, 715, 721
'" There is no intent here to degrade the distaff : The title is prefixed
in reference to the husband to distinguish him from "Patrick," his
wife and the alleged dlscriminatee
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge. But with complete, absence of even a sugges-
tion of company knowledge, which can reasonably be
relied on for a finding of `discrimination, we cannot
base on a question or statement by Patrick not made
in the presence of a company representative, and on
activity by Patrick's husband, the identity of the hus-
band-distributor apparently unknown to the Company
(and these are the only bases for an inference of company
knowledge), an inference that these insufficiently or
poorly explained discharges were discriminatory.
Were there no reference at all, to union sympathy
or activity by these alleged discriminatees or members
of their family, one would have almost as much reason
as here to conclude on the basis of the unsatisfactory
quota determinations that the discharges were discrimina-
tory. But such reason would be as insubstantial and
insufficient to prove antiunion discrimination as the
attempt to attribute to the Company a knowledge of
pertinent union activity.
Even where an explanation for discharge appears
to be inadequate and conceivably pretextuous, some
basis must exist for an inference of company knowledge
of concerted activities. For,such a case, for example,
the small plant rule) has been adopted. But it would
far transcend any recognized rule to infer pretext and
from that to infer further that there, was company knowl-
edge in this case. There is greater reason for an inference
of good-faith error in analyses of the output and determi-
nation of production standards. If, my own finding, indi-
cated on the record, of unreasonableness to the point
of contradiction in higher quota on a more difficult
job than the earlier low quota on a simpler be accepted,
we can nevertheless recognize the subjective aspects
and the involved computation in the final timestudy
and analysis even to a well meant but erroneous produc-
tion quota. Whatever is, to be made of this, it, does
not add up to discrimination for concerted activities.
might. lead to different findings, I do not recognize
a different and valid analysis.
E. The Alleged Violations by Local 5
To the extent that violations by the Union are alleged
for acting in concert with the Company, the Union
was no more guilty than was the Company. We need
not now repeat the analysis of remarks made at the
various meetings. Employee Stenger told us that Schrad-
er informed the employees that they could discuss and
vote whether to bring Local 5 into the plant at Litchfield,
and that if they voted yes, the contract would cover
them. The various versions have been considered. If,
as found, this was a case of accretion, there was no
need to vote: The allegation is that employees were
threatened with discharge unless they signed designation
cards and became members of Local 5. They were
required to do this although we bear in mind the grace
period noted above. The various discussions centered
on a vote for or against the Union and then on union
procedures; the signing of cards was casual or almost
incidental after the prounion tally. Most significant is
employee Stenger's testimony, on direct examination
by the General Counsel, that Hackworth told him at
the meeting that he had 30 or 31 days before joining.
As for 'the reference to "captive meetings," the per-
mission given Local 5 to hold such meetings constituted
neither unlawful assistance by the Company nor unlawful
interference by the Union. Clearly the voting employees
on June 4 were interested in but had no knowledge
of Local 5 rules and regulations. They asked questions
and were informed of the need to elect a union steward.
(One witness also testified to discussion concerning elec-
tion of a president.)
Nor does it appear that Local 5' attempted to cause
the discharge of Youtsey, Patrick, Staten, or Seagraves.
RECOMMENDED ORDER
If this conclusion appears to be stated with confidence,
I would add that the suspicious elements contribute
to a feeling of uncertainty. But while a different analysis
Upon the basis of 'the foregoing findings of fact and
conclusions of law, and upon the entire record in the
case , I recommend that the complaint be dismissed
in its entirety.