Millington Mfg. Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1965

153 N.L.R.B. 101 (N.L.R.B. 1965)

MILLINGTON MFG. CORP. 101
APPENDIX
NOTICE TO ALL EMPLOYEES
As Recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of rights guaranteed to them by
the National Labor Relations Act:
WE WILL NOT discharge any of our employees because they engage in activi-
ties on behalf of International Union of District 50, United Mine Workers of
America, or any other labor organization.
WE WILL NOT remove from our bulletin boards notices concerning unions
which have been posted by our employees.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice and to engage in
union activities, or not to join a union and not to engage in such activities.
WE WILL offer Jim Weldon immediate and full reinstatement to his former
job, or an equivalent one, and pay him backpay to cover the earnings which
he lost because we discharged him.
All of you are free to become or remain, or to refrain from becoming or remain-
ing, members of a labor organization, except to the extent that such right shall be
affected by an agreement conforming to the provisions of Section 8(a)(3) of the
National Labor Relations Act.
CHALLENGE COOK BROTHERS OF OHIO, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-If Jim Weldon should currently be serving in the Armed Forces of the
United States we will notify him of his right to full reinstatement upon application
after discharge from the Armed Forces in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No.
Main 1-4465.
Millington Mfg. Corp. and International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of Amer-
ica, AFL-CIO. Case No. 8-CA-3401. June 18, 1965
DECISION AND ORDER
On December 8, 1964, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision.' She also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and rec-
ommended they be dismissed. Thereafter, the Charging Party filed
exceptions and a supporting brief.
'No exceptions were filed to the 8 (a) (1) violations found by the Trial Examiner.
153 NLRB No. 10.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in the case, including the Decision, the exceptions, and brief,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner except as noted hereafter.
The Trial Examiner found and we agree that Respondent violated
Section 8(a) (1) of the Act by: announcing and putting into effect
paid holidays and promising other economic benefits to induce employ-
ees to abandon or refrain from joining the Union; threatening repris-
als should the employees select the Union as their bargaining repre-
sentative; and coercively interrogating employees concerning their
union sympathies and activities.
The complaint also alleged that the Respondent acted discrimina-
torily in demoting and discharging employee Larry Cole on Decem-
ber 23, 1963, and January 13, 1964, respectively. The Respondent con-
tends Cole's discharge was prompted by: (1) repeatedly refusing to
do his work as instructed; (2 )horseplay resulting in damage to com-
pany property and endangering another employee; (3) making false
statements; and (4) attempting to intimidate a fellow employee to
make a false statement in his behalf. The Trial Examiner, while
noting that there was a tendency to exaggerate Cole's shortcomings
and to enumerate all incidents which could possibly have justified a
discharge, concluded that the motivating reason for his discharge
was Cole's denial that he had done things which Respondent's super-
visor had seen him do, and his persistence when his group leader and
supervisors were out of sight in not following Respondent's estab-
lished work procedures.2 The Trial Examiner also was not con-
vinced that Cole's selection for demotion (termed a transfer by the
Employer) was because of his union activities. We do not agree.
The demotion and discharge of Cole cannot be evaluated as sepa-
rate or isolated events nor can they be viewed apart from Respond-
ent's other conduct. In reaching a conclusion opposite to that of the
Trial Examiner, we note Respondent's union animus, as established
by President Nickless' informing employee Fetters in an interview
and informing other employees at a meeting that he did not want a
s Respondent's operating procedure required Cole to take a part off the press, close the
press to start a new cycle, trim the edges of the part with a knife, punch two holes in the
part, hang it through these holes on a rotating cooling rack, holding about 12 parts, and
take the coolest of the parts on the rack off and place it in a large carton. When his
group leader or supervisor was absent, Cole allegedly omitted the use of the cooling rack.
MILLINGTON MFG. CORP. 103
union in the plant and at the same time promising them benefits. In
addition, Respondent demonstrated interest in the identity of the
union supporters as evidenced by Production Manager Hornsberger's
inquiries on several occasions of employee Dummitt as to who was
heading the union movement.
The record establishes that Respondent considered Cole an above-
average employee whose work strangely became unsatisfactory after
he became active on behalf of the Union. Since his initial employ-
ment on September 7, 1962, he had received numerous pay raises and
promotions. On September 26, 1962, Foreman McLane commented
on a progress report with respect to Cole that "this man can run any-
thing you put him on." Approximately a month later he was approved
for a raise with the comment on a report that "he is one of the better
ones." In April 1963 he was appointed as a group leader under Fore-
man Armstrong. In October 1963, Cole received a raise and was told
that Respondent thought his work was "real good." Around Thanks-
giving, and shortly thereafter, he became active on behalf of the
Union, passed out union authorization cards, and successfully signed
up 10 employees on the second shift. Respondent knew of his activi-
ties, as the Trial Examiner specifically credited the testimony of Cole
that, during December, Foreman McLane came to him and said,
"Stan Fetters is passing the cards out on first [shift] and you on
second. Who is doing it on third?" Shortly thereafter, on Decem-
ber 23, 1963, several months after receiving a raise for "real good"
work, and at the height of union organizational activities, Cole was
demoted from group leader to operating a moulding press despite the
fact that Armstrong, his shift foreman, assured Cole that he wanted
him to work for him as a group leader and that he had found noth-
ing wrong with his work. No persuasive legitimate reason has been
assigned for the demotion .-3 In light of all these factors, we con-
clude that Cole's demotion was discriminatorily motivated.
With reference to Cole's discharge on January 13, 1964, we note
that on January 6, 2 days before the scheduled representation elec-
tion, President Nickless addressed the second-shift employees about
the Union and, during the meeting, Cole spoke out in favor of the
Union. On January 8, the evening of the election day, Cole's work
suddenly became the object of lengthy observation and surveillance
by Foreman Sweigard and Production Manager Hornsberger who
testified that Cole was bypassing the cooling rack after extracting
the production item and packing it directly into boxes. Cole was
instructed that he must use the cooling rack. On the night of Janu-
' In view of the fact that his shift foreman found nothing wrong with Cole's work, we
reject Respondent 's explanation that Cole was lax on the job and the quality of his work
was poor, or that his demotion to press operator was prompted by nondiscriminatory
considerations.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 10, Chief Engineer Houdek concealed himself behind some car-
tons and observed Cole's work for half an hour. He later reported
that Cole omitted the use of the cooling rack whenever his super-
visor was absent from the area.
The Respondent decided to discharge Cole and did so on January 13
at which time he was also given a warning slip for his conduct on
January 8. Respondent discharged Cole despite advice of counsel
that, under the circumstances, a discharge appeared too harsh.
We disagree with the Trial Examiner's conclusion that Respond-
ent discharged Cole for not using the cooling rack. In view of Cole's
good employment record, his demotion in the circumstances previ-
ously noted, his announced support for the Union on January 6, and
the unusually close surveillance of Cole's work habits beginning the
evening of the day of an election won by the Union by one vote, we
conclude that Respondent was intent upon building up a case war-
ranting Cole's discharge. Even when initially advised by counsel
that discharge appeared too harsh, Respondent persisted in discharg-
ing him. Whether or not a discharge is warranted for such conduct
is normally a management judgment, but in the circumstances herein
it is an additional factor for concluding that Respondent seized upon
certain matters as a pretext for its action. We conclude that Respond-
ent's discharge of Cole was discriminatorily motivated.
Having found that Respondent has engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having also found that the Respondent unlawfully demoted
Larry Cole on December 23, 1963, and unlawfully discharged him
on January 13, 1964, and thereby violated Section 8(a) (3) and (1)
of the Act, we shall order the Respondent to remedy this unlawful
conduct. We shall require the Respondent to offer to reinstate Larry
Cole to his former position as a group leader and make him whole for
any loss of earnings he may have suffered as a result of the discrimi-
nation against him, by a payment to him of a sum of money equal to
the amount he would have earned from the date of his discriminatory
discharge to the date of offer of reinstatement, less net earnings dur-
ing said periods, to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB
289, and shall include interest at a rate of 6 percent per annum, to be
computed in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716. We shall order that the Respondent preserve and,
upon request, make available to the Board or its agents, for exami-
nation and copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due.
MILLINGTON MFG. CORP. 105
CONCLUSIONS OF LAW
1. The Respondent, Millington Mfg. Corp., 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. International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By announcing and putting into effect paid holidays and prom-
ising other economic benefits to induce employees to abandon or refrain
from joining the Union; by threatening reprisals should the employ-
ees select the Union as their bargaining representative; by coercively
interrogating its employees concerning their union sympathies, mem-
bership, and activities; and by intentionally creating the impression
that it was keeping union meetings under surveillance, Respondent
has interfered with, restrained, and coerced its employees in the exer-
cise of their rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a) (1) of the Act.
4. By unlawfully demoting and unlawfully discharging Larry Cole
on December 23, 1963, and January 13, 1964, respectively, the Respond-
ent engaged in unfair labor practices within the meaning of Section
8(a) (1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Millington Mfg. Corp., Upper
Sandusky, Ohio, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
1. Delete paragraph 1(b) of the Trial Examiner's Recommended
Order and add the following as paragraph 1(b) :
"(b) Discharging, demoting, transferring, or threatening employ-
ees with loss of work or job, or otherwise discriminating against its
employees for having engaged in concerted activities for the purpose
of collective bargaining or other mutual aid or protection."
2. Delete paragraph 1(e) of the Trial Examiner's Recommended
Order and add the following as paragraph 1(e) :
"(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of their rights guaranteed under Section 7
of the Act."
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Add the following as paragraphs 2(a) 2(b), and 2(c) to
the Trial Examiner's Recommended Order, the present paragraphs
2(a) and 2(b) and those subsequent thereto being consecutively
relettered :
"(a) Offer Larry Cole immediate and full reinstatement to a posi-
tion equivalent to the position of group leader without prejudice to
his seniority or other rights and privileges previously enjoyed by him,
and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him by payment to him of a suin
of money equal to that which he would have earned as a group leader
from the time of his discharge,4 to the date of the offer of reinstate-
ment, less his net earnings during such period in accordance with the
Woolworth and Isis Plumbing cC Heating cases." 5
"(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
"(c) 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."
4. Delete the second indented paragraph of the Appendix attached
to the Trial Examiner's Decision and add the following new
paragraph :
WE WILL NOT discharge, demote, or transfer our employees, nor
will we threaten our employees with loss of work or jobs or other-
wise discriminate against our employees for engaging in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
5. Add the following new paragraph after the fifth indented para-
graph of the Appendix attached to the Trial Examiner's Decision :
WE WILL make Larry Cole whole for any loss of earnings suf-
fered by him as a result of the discrimination practiced against
him.
6. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision:
NoTE.-We will notify the above-named empoyee if presently
serving in the Armed Forces of the United States of his right to
4 The record reveals that even though Cole was demoted on December 23, 1963, he did
not receive a reduction in pay prior to his discharge on January 13, 1964.
5 Supra.
MILLINGTON MFG. CORP. 107
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended , after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on January 28 , 1964, and an amended charge filed on March 13,
1964, by International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, herein called the Union, a complaint
was issued on March 13 , 1964, alleging that Respondent , Millington Mfg. Corp.,
had engaged in conduct in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended . Respondent filed an answer denying that it had
engaged in any of the unfair labor practices alleged. A hearing was held before
Trial Examiner Fannie M. Boyls on April 13 and 14, 1964, at Upper Sandusky,
Ohio. The parties waived oral argument at the conclusion of the hearing, but the
Respondent and General Counsel thereafter filed briefs which have been carefully
considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent 's answer admits, and I find that Respondent
is an Ohio corporation , having its principal office and place of business in Upper
Sandusky , Ohio, where it is engaged in the manufacture of thermoplastic parts. In
the course and conduct of its business it annually ships products valued in excess
of $50 ,000 directly to points outside the State of Ohio. Respondent concedes and
I find that it is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act . I further find that it will effectuate the policies of the Act to assert
jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
It was stipulated at the hearing and I find that International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background and issues
In late November or early December 1963 , the Union began an organizational
drive at Respondent 's plant. Respondent 's president , W Harmon Nickless, was
aware of the Union's efforts from the beginning for, as he testified , just before the
organizational campaign began he saw two strange men in a car outside the plant
looking it over; he took down the car license number, had it checked, and ascer-
tained that it belonged to a Mr . Bowman, who , he knew, was a union representative.
At the next regular morning meeting of his supervisors , Nickless told them what
he had learned and asked the supervisors to go out into the plant and ascertain
whether any union activities were in progress . Some of the supervisors reported
back to him on what they saw or learned. Following the organizational campaign,
a representation election was held on January 8, 1964. The Union won by one vote
and was certified as bargaining representative on February 18, 1964.
The complaint alleges that during the preelection period Respondent promised its
employees paid holidays and other economic benefits if they refrained from becom-
ing or remaining members of the Union , interrogated employees concerning their
union membership , activities , or sympathies , threatened employees with reprisals
because of such membership , activities , or sympathies , and created the impression
among the employees that union meetings were being kept under surveillance-all
in violation of Section 8(a)(1) of the Act. The complaint also alleges that on
December 23, 1963, Respondent discriminatorily demoted employee Larry Lee Cole
from group leader to press operator and thereafter , on or about January 10, 1964,
discriminatorily discharged him in violation of Section 8(a) (3) and (I) of the Act.
The issue presented is whether a preponderance of the evidence supports these
allegations.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged interference , restraint, and coercion
1. President Nickless' interview with employee Fetters
According to the testimony of Stanley C. Fetters , he was told by Production Man-
ager Honsberger on or about December 2, the Monday following Thanksgiving, to
go to the office of Respondent 's president, Nickless. When Fetters reported there,
Nickless stated that Honsberger had informed him that the employees were getting
a union in the shop and that Fetters was getting them to sign union cards . Fetters
replied that he had signed a card but that he was not getting any cards signed "in
the shop." Nickless stated that he had heard that Fetters was doing so and that he
was the "main one." During the interview Nickless told Fetters that he did not
want a union in the plant . He also stated that the Company was working on a plan
to promote Fetters by offering him a maintenance job or a group leader's job. Fet-
ters replied that he did not want either of those jobs .1 Nickless then stated that
the Company would work on a plan to give Fetters a 20-cent-an -hour raise and let
him remain on his job as press operator.
Nickless gave the following account of the interview : Fetters voluntarily came
to see him and told him there was union activity going on in the plant and that
cards were being passed out Nickless expressed amazement that Fetters should be
telling him that because , as he explained to Fetters , "Everybody says that you are
the guy that is passing out the cards ." Fetters replied that he did not know where
anybody got that idea. The remainder of the conversation on that occasion had to
do with a pony which Fetters was buying and the fact that Fetters had been shot
during the war. Nickless conceded that Production Manager Honsberger , as well as
others, had told him prior to this interview with Fetters that Fetters had been "push-
ing union cards."
A careful analysis of the testimony, considered in the light of the whole record,
convinces me that Fetters' account of his interview with Nickless , insofar as it
relates to union activities and Fetters ' job, is substantially correct and I credit. Prior
to the interview Fetters had openly been distributing union cards and, according to
Production Manager Honsberger , was one of the two employees giving him the most
trouble as union partisans-"always popping questions" at him-and Honsberger
had reported these activities to Nickless . In these circumstances it does not seem
logical that Fetters would , as Nickless testified , voluntarily seek out Nickless for the
purpose of informing him of union activities going on in the plant while trying to
hide from Nickless his own participation in those activities.
2. Nickless' speech to the plant employees and his grant
of paid holiday benefits
Also during the first week in December Nickless called meetings of the plant
employees . He informed them that he knew of the organizational campaign then
in progress. He stated that he did not want a union in the plant and suggested that
if the employees had any problems they could come to him and talk about them.
He said that he "had been checking around" to ascertain what complaints the
employees had and learned that the molders were unhappy because they were work-
ing only 71/a instead of 8 hours a day and that some employees were unhappy about
not getting paid holidays . He informed the employees that he could not then do
anything about the 71/2-hour -day complaint but that he had devised a plan for giv-
ing the employees paid holidays based upon their length of service . Under this
plan, employees would receive one paid holiday after working 2 years and one
additional paid holiday for each year of service thereafter, until they had received
a maximum of five paid holidays. Nickless announced that Thanksgiving, which
had just occurred during the preceding week , would be the first paid holiday. There-
after , those employees who were eligible received pay for the preceding Thursday
in their paycheck.2
1 Fetters had once before tried group leader work, did not like it, and , at his request,
was transferred back to operating a press
2 The above findings are based on the composite , mutually corroborative , and credited
testimony of employees Mervin W. Kennedy , Mary Orwick , Arthur Pratt , Stanley C.
Fetters , and Larry Cole. Nickless , whose recollection on this matter impressed me as less
accurate than that of these other witnesses , testified to the effect that the meeting at
which the 71/2-hour day and paid holidays were discussed occurred before Thanksgiving
and that the Union was not mentioned during the meeting.
MILLINGTON MFG. CORP. 109
3. Interrogation, threats, and promises attributed to
Production Manager Honsberger
The record is replete with evidence that Production Manager Honsberger in vari-
ous ways interfered with, restrained, and coerced employees in their organizational
rights during the preelection period. Thus, employee Dummitt credibly testified
that during the first week in December Honsberger asked him if he was a union
man, and when Dummitt replied that he had not decided, Honsberger said that
there was no reason why a union should be paid for doing what the employees
could do for themselves. He suggested that if Dummitt would get three or four
of his "buddies" to accompany him, Honsberger would take them to Nickless' office
and get them a raise. Honsberger asked Dummitt several times during the con-
versation who was heading the movement to get the Union into the plant and, in
response to Dummitt's refusal to reveal this information, stated that he would find
out before long anyway. Honsberger had earlier inquired of employees Mervin W.
Kennedy and Darrell Cole (a brother of Larry Cole) as to their union sentiments,
and later, in late December or early January, asked employee Pratt why he wanted
a union in the shop.
Also in December, according to the credited testimony of employee Mary Orwick,
Honsberger came to her press and told her that if the Union came in, some of the
employees might lose their jobs and that the workweek might be reduced to 3 or 4
days a week, explaining that Respondent being the sole producer of certain prod-
ucts, it would lose orders for those products because it would be subject to strikes.
He told Orwick that if she was dissatisfied with her wages or had any complaints,
she should come to him and if he could not personally help her, he would take her
to the office. He warned her to think it over very carefully before she voted.
According to the credited testimony of Darrell Cole, Honsberger told him shortly
before the election that if Respondent became organized, the workweek would prob-
ably be cut to 3 days a week because Respondent's customers would not be able to
rely upon Respondent to fill their orders. Honsberger's version of this incident was
to the effect that he told Cole he was afraid that if a strike occurred, Respondent
would lose some of the orders on products of which Respondent was the sole pro-
ducer. He also denied the statements attributed to him by Orwick. Orwick, how-
ever, particularly impressed me as a reliable witness. Cole's version of Honsberger's
statement to him was very similar to the statement which Honsberger made to
Orwick and I find it to be more accurate than the version related by Honsberger.
Employee Tilden Thornsberry, a group leader, credibly testified, and I find, that
Honsberger came to him and, after asking Thornsberry what he thought of the
Union, told Thornsberry that Respondent's predecessor had gone out of business
about 2 years after the Union organized its plant. He asked Thornsberry whether
he had signed a union card but Thornsberry indicated that he did not want to dis-
cuss the matter with Honsberger. About a week later, after Thornsberry had
received a warning slip for permitting a box containing defective parts to leave his
department, Honsberger told him that if the Union was brought in, an employee
would be fired after receiving a third warning slip. On the day after the election,
Thornsberry received another warning slip for failing to stack boxes straight. Upon
this occasion Honsberger told him that before the Union came in, the employees
"didn't know how easy they had it there," but that since the Union was in the plant,
Respondent "was going to start going by the company rules." 3
4. Unlawful conduct attributed to other management representatives
According to the undenied and credited testimony of employee Cox, Plant Engi-
neer Ladd Houdek asked him in December whether anyone had approached him
about signing a union card. Houdek's interrogation of Cox appears to have been
pursuant to instructions from Respondent's president, Nickless, that the supervisors
go out into the plant and ascertain whether any union activities were in progress.
There is also testimony of Cox and of another employee, Orwick, that Foreman
Edward McLane upon separate occasions interrogated them and made statements
to them seeking to give the impression that Respondent was keeping the union
meetings under surveillance. Thus, Cox testified that during the first or second
8 Honsberger denied in general terms all allegations of the complaint relating to un-
lawful conduct charged to him, and in his affidavit given to a Board agent also denied
those allegations , except as otherwise indicated above, but I do not find these broad and
general denials as convincing as the detailed testimony above set forth and credited.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week in December on the day after Cox had attended a Sunday union meeting about
8 or 10 miles from town, McLane approached him and asked where he had been
on the previous day Cox asked why McLane was inquiring and McLane replied,
"Well, I know where you were. I seen you come out of the union hall at Forest as
I went pass there." Similarly, employee Orwick testified that in December on the
morning after she had attended the second union meeting , McLane asked her "how
the meeting went" and she inquired how he knew she was there. He replied, "Well,
your husband got kind of cold sitting in the car waiting for you." Mrs Orwick's
husband had in fact taken her to the meeting.
McLane conceded that he had interrogated and talked to Mary Orwick as she
testified, but stated that he was only joking with her, that he did not see her husband
as he told her he had, that he did not know her husband, and that he had never
been near the union meetings. Orwick testified, however, that she had not been
joking with McLane and that so far as she knew he was not joking. McLane also
conceded that he had interrogated and talked to Cox substantially as related by
Cox, but stated that he did so only to make conversation, that he had not in fact
seen Cox at the union meeting, as he later explained to Cox, and was even outside
the State on that occasion. He testified that on the day following this conver-
sation, Cox came to him and asked whether anyone had told him to make the
statements to Cox wtuch McLane had made on the preceding day When McLane
replied in the negative, Cox then wanted to know whether the Company was check-
ing on him. The record does not show how McLane replied to the latter inquiry.
McLane further testified that he regularly rode to and from work with employees
Kennedy and Adams and that he had been learning from their conversations about
the Union's progress since before Thanksgiving.
McLane appeared to be a frank witness and I am satisfied that he testified truth-
fully when he said that he had not in fact kept any union meetings under surveil-
lance. Moreover, it may be true, as he testified, that he meant only to jest or to
make conversation with Orwick and Cox when indicating to them that he knew
they attended union meetings . I have no doubt that McLane approached these
employees in a good-natured manner and for that reason, as well as because of the
fact that he had not in fact spied on any union meetings , he may have felt warranted
in characterizing his actions as in jest. However, these employees could reasonably
interpret, and clearly did interpret, these remarks as indications that Respondent was
keeping their union activities under surveillance.
There is testimony by Larry Cole that during December, McLane came to him
and said, "Stan Fetters is passing the cards out on first [shift], and you on second.
Who is doing it on third?" Cole replied that he did not know-although he in fact
knew it was Bachwell. McLane thereupon stated, "Well, it is Bachwell" and Cole
responded, "I don't know." McLane denied in general terms the allegations of the
complaint that he had interrogated employees "concerning their union membership,
activities and sympathies," except for his interrogation of Orwick and Cox as above
set forth. He was not asked about his alleged interrogation of Larry Cole as to,
who was passing out cards and did not specifically deny Cole's testimony. Although
Larry Cole, as will hereinafter be shown, was in some respects not a convincing
witness, his testimony in the respects noted above did sound convincing, and I credit it-
5. Conclusions regarding the alleged interference, restraint, and coercion
President Nickless manifestly set the pattern for management's opposition to the
Union when, upon discovering that the Union was interested in organizing Respond-
ent's plant, he informed his supervisory staff of this fact and asked the supervisors
to ascertain whether union activities were in progress. He then called meetings of
the employees, informed them of his opposition to the Union, suggested that they
come to him if they had any problems, and announced and put into effect a paid
holiday schedule, retroactive to the Thanksgiving which had occurred during the
preceding week. The paid holidays announced and awarded in this manner clearly
constituted unlawful inducements to the employees to withdraw from or refrain from
joining the Union. Likewise unlawful was Nickless' veiled attempt to induce
employee Fetters to cease his leadership in the union movement by promising to
try to get him a promotion or raise in pay-after letting Fetters know that Respond-
ent opposed the Union and knew of Fetters' leading role in the union movement.
N.L.R.B. v. Exchange Parts Co., 375 U.S. 405.
Production Manager Honsberger not only emulated Nickless' example by inter-
rogating employees concerning their union sentiments and promising to try to get
MILLINGTON MFG. CORP. 111
raises or other benefits for employees during the preelection period, but also sought
to coerce one employee into dropping his interest in the Union by threatening that
Respondent would make it harder on employees by strictly enforcing its plant rules,
contrary to past practice, if the Union won the election. In the context of Respond-
ent's expressed opposition to the Union and its unlawful conduct outlined above, the
interrogation of employees by Honsberger as well as by Plant Engineer Houdek and
Foreman McLane was coercive and constituted interference, restraint, and coercion
of employees in the exercise of their organizational rights within the meaning of
Section 8(a) (1) of the Act. Similarly unlawful were Foreman McLane's statements
to employees Orwick and Cox designed to give them the impression that he was
keeping the Union's meetings under surveillance. Staub Cleaneis, Inc., 148 NLRB
278; Georgia-Pacific Corporation, 132 NLRB 612.
There remains for consideration the warnings by Honsberger to employees Orwick
and Darrell Cole that the advent of the Union might cause a loss of some employ-
ees' jobs or a reduction in the workweek because Respondent would be subject to
strikes and some customers for whom Respondent was the sole producer would
cancel their orders. Honsberger was thus threatening that the mere fact that
Respondent, if unionized, would be subject to strikes was in itself sufficient to cause
certain of Respondent's customers to cancel their orders and he stated that they
would do so. Honsberger named no such customers and Respondent produced no
evidence that any of its customers had in fact thus threatened to withdraw their
business in the event Respondent's plant became unionized. I am convinced that
none had done so. In a similar situation , it was held in International Union of
Electrical, Radio and Machine Workers, AFL-CIO (NECO Electrical Products
Corp.) v. N.L.R.B., 289 F. 2d 757 (C.A.D.C.), cited with approval by the Board in
The William J. Burns International Detective Agency, Inc., 148 NLRB 1267, that
such predictions constituted unlawful threats not protected under Section 8(c) of
the Act. The court there stated, in language equally appropriate here (289 F. 2d
at 763) :
No evidence was adduced at the hearing to support the assertion or to show
any basis for the supervisor's belief in its truth. Nor does it appear that the
basis was so widely known that the employee may fairly be presumed either
to have known it or to have been able to discover it In these circumstances,
we think the statement in question is not protected by Section 8(c). It seems
clear that Congress did not intend to protect an unqualified assertion of such
importance unless the utterer can show that he had some reasonable basis for
it See remarks of Senator Ellender, 93 Cong. Rec 4137, 80th Cong , 1st less.
(1947), 2 Legislative History 1066.
Union Carbide Corp. v. N.L R.B., 310 F. 2d 844 (C.A. 6), is distinguishable, for
there the Trial Examiner found and the court agreed that the employer's statements
correctly and accurately reported the gist of what one customer had stated. It is
concluded that Honsberger's statements, insofar as they constituted threats that
some of Respondent's customers would withdraw their orders if Respondent became
unionized, constituted unlawful coercion and were a violation of Section 8(a)(1) of
the Act.
C. The transfer and discharge of Larry Cole
Larry Cole was hired by Respondent as a press operator on September 7, 1962.
His foreman, Edward C. McLane, on September 26, 1962, made out a progress
report on Cole, rating his overall work as above average and commenting on the
report- "This man can run anything you put him on." At that time he was approved
for a 10-cent raise in pay. On Octobei 26, 1962, McLane made out another prog-
ress report, again rating Cole as above average and commenting- "This man should
jump on up to $1.65 as he is one of the better ones." At that time Cole was
approved for a 20-cent raise.
In April 1963, Cole was promoted to the position of group leader and worked on
the second shift under Foreman Gene Armstrong most of the time but for about 2
months worked on the day shift under Foreman Carl Woods. At the time of his
discharge in January, however, he was working under Foreman Donald Sweigard.4
In the latter part of July 1963, Cole received a raise in pay which brought his rate
up to $1 85 an hour. In September he received two written reprimands from his
then foreman, Gene Armstrong, but despite that received a 5-cent increase in pay
4 Group leaders normally rotated shifts about every 2 months
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in October, with the explanation from Production Manager Honsberger that Respond-
ent thought his work was "real good." 5
Cole was one of the Union's most active supporters. He attended the union
meetings and even before Thanksgiving had started passing out cards to other employ-
ees. He signed up 10 of the operators on the second shift. The signatures were
obtained in the plant.6 In view of Respondent's already demonstrated interest in
the identity of the union supporters, I am satisfied that Respondent knew Cole was
prominent in the union movement.
On December 23, 1963, Cole was transferred from his position as group leader
back to operating a molding press. It is the contention of the General Counsel that
this transfer was a demotion caused by Cole's activities on behalf of the Union.
Respondent denies that the transfer was a demotion. It contends that the transfer
was a demotion. It contends that the transfer was only temporary in nature and in
accordance with Respondent's normal procedures.
Cole's version of his transfer is as follows: On Monday, December 23, he was
summoned to Production Manager Honsberger's office and told that he was being
put back on work as a press operator. Cole asked what he had done wrong and
Honsberger replied, "Well, I can't tell you every little thing you did wrong " Cole
then asked whether he would be cut in pay and Honsberger replied, "Yes, probably
down to $1.80 an hour, but I have to check with the office first." Cole thereupon
asked for permission to see Vice President Smith, who was in charge of personnel.
At a meeting with Smith on the same day, Cole asked him why he, Cole, was being
put back on a press and Smith replied, "We are going to break in three new group
leaders." Cole asked the names of those three and Smith replied that they were
Dunlap, Lawrence, and Bewer. Cole remarked that none of those three worked
on his shift and asked Smith what he had done wrong. Smith replied, "Well, we
don't tell every little thing you do wrong." He added that he had heard Cole
thought he was being put back on the press because of his union activities and told
Cole that was not the reason. Smith promised to check Cole's work that week and
call Cole back on Friday, but he did not call Cole back as he had promised. On the
same day that he talked to Honsberger and Smith, Cole also talked to his shift fore-
man, Gene Armstrong. Armstrong told Cole that he did not know that Cole was
going to be put back on the press. In response to a question by Cole as to whether
Armstrong wanted Cole to work for him as a group leader, Armstrong assured him
that he did and that he had found nothing wrong with Cole's work. Armstrong
then told Cole about a conversation he had with Honsberger in which the latter
stated the reason Cole was being transferred was that "the big boss wanted it that
way." Armstrong also told Cole that Smith had explained that Cole was being put
back on the press because he needed more practice in operating a press. Except for
one day, January 6, when he again worked as a group leader, Cole continued to
operate a press until his discharge on January 13, 1964.
Honsberger's version of the transfer is as follows: During the week before Christ-
mas, Honsberger reviewed Cole's work record with Vice President Smith. Hons-
berger told Smith that Cole "was very lax on his job, and quality was very lax" and
recommended that another group leader be tried out in Cole's place. Smith agreed
with this recommendation and another employee, Kenneth Edler, who was already
a group leader, was put on Cole's work. At that time there was one extra group
leader on the second shift where Cole worked. Honsberger had to decide which
one was to be transferred back to work on the press and he selected Cole as the
r A group leader, in addition to working as a relief operator for about 3 out of his 8 hours
of work, is responsible for filling the hoppers and for making cartons for, observing, and
instructing three operators working under him. As President Nickless and Vice President
Smith conceded, the group leader may receive a reprimand for defective work produced
by one of his operators even though it is not known whether be was in a position to detect
the faulty work. Vice President Smith testified that he does not consider the two rep-
rimands given Cole any more serious than those given other group leaders at the time.
Cole testified that the reprimands be received in September were because of faulty work
of his operators , not for his own work. Respondent has not ' disputed his testimony and
I accept Cole 's testimony in this regard as accurate.
9 The above findings are based upon the credited testimony of Cole and employee Sam
Bunion.
MILLINGTON MFG. CORP. 113
one at the bottom of his list.7 When Cole asked Honsberger what he had done
wrong, Honsberger replied that Cole was lax in his work and in his quality control.
Cole did not give Honsberger an opportunity to explain further.
Smith gave the following version of the transfer: Prior to December 23, in a
conference with Honsberger, they decided, in accordance with "common practice in
[Respondent's] business, to take a group leader and make him a molder from day to
day or week to week," and in following this common practice, they selected Cole
for transfer. Smith granted Cole an interview at the latter's request on December 23.
He explained to Cole that he was being put back on work as a molder only
temporarily, that he would work the same hours as before and that his wage was
not being cut. He promised Cole that he would check with Cole's foreman and
other personnel about Cole's work and ascertain whether he should be put back as
a group leader. He told Cole, "It looks like I have to do some more investigating,
and give me a little time to talk to some of the other people and in the meantime
go ahead and do your job as instructed." Smith thereafter did make an investiga-
tion and received, through Honsberger, a report from Third-Shift Foreman Sweigard
and another from First-Shift Foreman McLane on forms, dated December 25 and
26, respectively, normally used for making progress reports on new employees.
Sweigard rated Cole overall as an "average" employee and commented on the report,
"He does not miss work but if there is any overtime, he thinks he should have it."
McLane did not purport to rate Cole, explaining on the report: "This man has only
worked for me once or twice on the floor as a group leader, I never had no trouble
with him taking orders but like I say I never had him long enough to tell as he has
always been with Armstrong."
No report from Second-Shift Foreman Armstrong, under whom Cole had worked
most of the time as group leader, or from First-Shift Foreman Carl Woods, under
whom Cole had worked for about 2 months, were introduced in evidence; nor did
either of those foremen testify at the hearing. It is a reasonable inference, and I
find, that if reports from those foremen had been introduced or if they had testified,
their testimony would not have supported Honsberger's testimony that Cole's work
as a group leader was lax. I credit Cole's testimony that his then foreman, Arm-
strong, told him he found nothing wrong with Cole's work and would like to have
Cole continue working under him as a group leader. Moreover, I have no reason
to believe that Armstrong was not speaking truthfully to Cole.
Upon all the evidence I am convinced, and find, that Honsberger and Smith had
originally intended to demote Cole from his position as a group leader back to the
job as molding press operator. This is evident not only from Cole's version of what
Honsbergcr and Smith said to him, which I find to be generally accurate, but also
from Smith's testimony that he promised Cole to check his work record to ascer-
tain whether he should be put back on his job as group leader. I am convinced
also that it was only as a result of Cole's challenge of this action, his demand that
he be informed of what was wrong with his work, Respondent's inability to find
support from Cole's immediate supervisors for such demotion, and its realization
that it might encounter legal difficulties in the nature of charges of discrimination
against Cole for union reasons if it demoted Cole, that Respondent decided to treat
the personnel action regarding Cole as a mere temporary transfer rather than a
demotion.8
Nevertheless, in view of Honsberger's explanation that at the time of Cole's trans-
fer, he had an extra group leader on the second shift and that it was necessary to
transfer one of the group leaders back to operating a press, the fact that the person
transferred and tried out as group leader in Cole's place was already a group leader,
and the lack of any evidence that Cole was superior to any of the other group leaders
who continued to work as group leaders, I am not convinced that Cole was selected
for transfer because of his union activities.
On January 6, 1964, 2 days before the scheduled representation election, Presi-
dent Nickless addressed the second-shift employees, and during the meeting Cole
7 President Nickless explained that Respondent maintains a ratio of one group leader to
three operators and that a group leader is sometimes temporarily transferred back to
operating a press either when there is a layoff of operators or when it needs to train or
try out operators as group leaders in anticipation of an increase in the number of molders.
8 Soon thereafter, as hereinafter shown, Respondent concededly consulted counsel in con-
nection with deciding whether to discharge Cole.
796-027-66-vol. 153-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spoke out in favor of the Union . Following the meeting , Cole had a long talk with
Nickless and with one of the Respondent's vice presidents, Howard Schnepp, about
unions. During this interview , Cole's attempt to get a college education also came
up for discussion . Normally Respondent requires its group leaders to rotate shifts
about every 2 months and it was then time for Cole to be transferred back to the
day shift. When Nickless and Schnepp realized, however, that Cole's transfer back
to the day shift would interfere with his college education, they agreed to permit him
to remain on the second shift. The entire conversation appeared to have been an
amiable one.
The election took place on January 8. That night and on the night of January 10,
there occurred the incidents precipitating Cole's discharge on January 13. These
incidents concerned the manner in which Cole was operating his press which was
producing No. 38 shroud plastic parts. The press operated on a 30-second cycle for
each part. Normal procedure was for the operator to take part off the press, close
the press to start a new cycle, trim the edges of the part with a knife, punch two
holes in the part, hang it through those holes on a rotating cooling rack which holds
about 12 parts, and take the coolest of the parts on the rack off and place it in a
large carton. By this time the press is about ready to open again and the work cycle
is repeated.
Cole's testimony was to the effect that on the night of January 8, Production Man-
ager Honsberger walked over to Cole and asked why he was not using the cooling
rack. Cole did not reply. Honsberger walked out the door, then returned and
asked, "Now, why aren't you?" Again Cole did not answer. Honsberger there-
upon said, "Now I want you to start using it" and left the building. Cole testified
that he had not in fact been using the cooling fixture that night because he found
it empty and leaning against the press when he reported for work and that he
assumed from this fact that the press operator on the shift preceding his had not
been using it and that its use was not considered necessary.9 He stated, however,
that after being told by Honsberger to start using the rack, he did so.
Cole further testified that on the night of January 10, his then foreman, Donald
Sweigard, and Chief Engineer Houdek came to his machine; that after standing
there for a few seconds, Sweigard asked Cole for an explanation as to why a box 8
or 10 feet away had some holes in it; and that Cole replied that he did not know.
Sweigard then asked if Cole was using the cooling rack. Cole replied in the affirma-
tive. Thereupon, at Houdek's request, Sweigard turned off the press. Sweigard told
Cole that he was sending him home for throwing his knife into the nearby box,
for letting the press stand open, and for not using the cooling rack. Sweigard told
Cole to return to the plant the next morning which was a Saturday. Cole replied
that he could not come on Saturday but would return on Monday. As Cole left the
plant, he asked employee Sheets who worked nearby whether he had seen Cole
throw a knife and Sheets replied that he had not. When Cole returned to the
plant on Monday, January 13, he was discharged.
The account by Respondent's representatives of the events leading to Cole's dis-
charge are substantially different. According to Foreman Sweigard, on the night
of January 8 while working on a press at the opposite end of the building from Cole,
he saw Cole bypass the cooling rack and place a part directly in the carton without
first permitting it to cool. Sweigard report what he saw to Production Manager
Honsberger and both of them stood in a doorway for a few minutes observing Cole
as he continued to place parts in a carton without first placing them on the cooling
fixture. When Sweigard and Honsberger came through the doorway and were in a
position where Cole could see them, however, Cole then started using the cooling
fixture. Sweigard and Honsberger said nothing to Cole at that time and proceeded
to the other end of the building to work on the press with which Sweigard had been
having trouble. While at that location they again observed that Cole was failing
to use the rack. As they approached him, however, he again started using it.
When they reached Cole's machine, Honsberger asked him if he had been using
the rack and Cole said that he had. Honsberger and Sweigard told him that they
seen him fail to use it. Cole insisted that he had been using it. Honsberger then
told Cole that he must use it. As Honsberger and Sweigard left, Honsberger
instructed Sweigard to write up a warning slip for Cole and Sweigard did so, leav-
ing the slip on Honsberger's desk that night.'°
O Jerry Austin, the operator on the preceding shift, testified that he had been using the
rack but had cleared it of all its parts at the end of his shift-a procedure not normally
followed-in order to completely fill the carton in which he had been placing the parts.
10 Cole testified that S seigard was not even present when Honsberger talked to him
that night
14TILLINGTON MFG. CORP. 115
Sweigard's account of the above events was corroborated in substantial part by the
testimony of Honsberger . I find the accounts of Honsberger and Sweigard more
credible than that of Cole. Cole 's story does not have the ring of truth . It does not
seem likely that Cole would have remained silent and said nothing , as he testified,
when being questioned by Honsberger . Nor does it appear convincing that, as
Cole testified , he failed to use the cooling rack on the occasion in question because
he found it empty and believed the day operator had not been using it for, as he
later conceded, he had operated that particular type of press before and had never
used the cooling rack while operating it.
On January 9 at the regular morning supervisors ' meeting, Honsberger reported
the incident involving Cole." He appeared particularly concerned about the fact
that Cole had lied about having failed to use Respondent's prescribed procedures
and suggested that Cole be discharged. President Nickless, however, told the group,
"You know about everything that is going on right now, with just an election yester-
day and everything else, we'd better do something else in the way of a reprimand,
so let's settle down and relax a bit and wait a day or two and figure out what we
are going to do." He stated that he would "get a little counseling" on how severe
a reprimand should be given and that the supervisors should decide later on what
should be done. The others present agreed that it would be better to defer a deci-
sion. The matter was again discussed at the supervisors' meeting on the morning
of January 10, and some of those present then expressed the view that Cole should
be discharged. Nickless insisted, however, that in view of the fact that feelings were
running high because of the election , which the Union had won, he wanted to con-
sult counsel. He did consult his counsel of record in this case who advised against
discharge as being too severe. He later also consulted an out-of-town labor expert.12
One of those who attended the supervisors' meetings was Chief Engineer Houdek.
He testified that thereafter, on the night of January 10, while he was temporarily in
building No. 2 where Cole was working, he thought he saw Cole bypass the cooling
rack again. He sought out Foreman Sweigard in an adjoining building and told him
about this, then decided to return and watch Cole, since Houdek had completed his
work and normally would be off duty. He concealed himself behind some card-
board cartons 30 or 40 feet from Cole and watched Cole for about a half hour.
For about the first 15 minutes-during which period Cole's group leader was in the
area-Cole's performance was perfect. Then the group leader left the area and
Cole thereafter changed his procedure. After trimming a part, he would lay it
down, throw his knife into a nearby carton, retrieve the knife, take out another
part from the press, trim it , punch holes in two or three parts at a time, and place
all of them in the carton without attempting to use the cooling rack. On one occa-
sion while Houdek was thus watching, Cole's knife bounced off the box at which he
was throwing it and the press stood open while Cole retrieved the knife. Houdek
then informed Foreman Sweigard of what he had observed and both of them
approached Cole. Sweigard asked Cole why he had been throwing the knife and
Cole denied that he had done so. Sweigard also asked Cole how many parts he
had put in the carton without first placing them on the cooling rack. Cole denied
that he had failed to use the rack. Houdek then instructed Sweigard to shut off the
press. Sweigard did so and sent Cole home. As Houdek was leaving the building,
he looked back and saw Cole talking to employee Sheets who worked near Cole's
machine. After Cole left, Houdek asked Sheets what Cole had said. Sheets replied
that he had seen nothing. Houdek then asked, "Well, you saw him throwing the
knife didn't you?", and Sheets replied that he had not. Thereupon, Houdek told
Sheets, "Well, look, don't get yourself into trouble. You have been a good employee.
You do good work. If you are asked about this again, just tell the truth." 13 Fore-
man Sweigard's account of his part in the January 10 events accords with that of
Houdek. He further testified, as had Cole, that upon sending Cole home he asked
Cole to report back the next morning which was on Saturday and that Cole replied
that he would report on Monday instead. I credit the account of Sweigard and
Houdek.
On January 13 when Cole reported to the plant, he was sent to President Nickless'
office and discharged by Nickless and Smith. During the interview they handed
"Foreman Sweigard was not present . He and other foremen apparently do not attend
the supervisors ' meetings.
12The above findings are based upon the credited testimony of Nickless , corroborated in
part by the testimony of Honsberger and Houdek.
is Sheets , called as a witness by the General Counsel, testified in substantial corrobora-
tion of both Cole and Houdek as to what each said to him and as to what be replied. He
further testified that he had not in fact seen Cole throw his knife.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cole a warning slip which Honsberger had made out on January 8, Nickless explain-
ing that he had not had an opportunity to give it to Cole sooner.14 Nickless and
Smith then reviewed the events of January 8 and January 10, charged Cole with
failing to follow prescribed operating procedure, with throwing his knife at a box
of pellets and with lying about doing those-things when accused by his supervisors.
Cole denied that he had lied and denied that he had done the things he was accused
,of doing.
After a charge had been filed alleging that Cole's discharge was discriminatorily
motivated, Respondent sent a letter to the Board's Regional Office listing the fol-
lowing four reasons for Cole's discharge. (1) Repeatedly refusing to do his work
as instructed; (2) horseplay resulting in damage to company property and endan-
gering another employee; (3) making false statements; and (4) attempting to intimi-
date fellow employee into making a false statement in his behalf. At the hearing
Nickless explained that (1) referred to Cole's failure to use the cooling fixture as
directed; (2) referred to his throwing the knife at a box containing pellets in the
proximity of employee Sheets who would have been injured if the knife had been
carelessly aimed; 15 (3) referred to Cole's denials that he had done the things his
supervisors observed him doing; and (4) referred to Cole's questioning of employee
Sheets on January 10 as to whether Sheets had seen him throwing his knife.16
Despite Nickless' tendency to exaggerate Cole's shortcomings and to enumerate all
incidents which could possibly have justified a discharge-thereby confusing the
issue as to what actually motivated the decision to discharge Cole17-I am convinced
from all the evidence that the motivating reason was Cole's denial that he had done
the things which Respondent's supervisors saw him do and his persistence, when his
group leader and supervisors were out of sight, in failing to follow Respondent's
established procedures as he had been expressly instructed to do. Thus, Nickless
testified that at the January 10 meeting of management representatives, while Cole's
conduct was being discussed, "So many people were so incensed about the fact that
he stood there and lied to them [Honsberger and Sweigard] about something they had
seen with their own eyes." Vice President Smith even insisted at the hearing that
Cole was discharged for lying. And Cole, himself, in testifying about his discharge
interview, stated that Nickless "stressed the point" that Cole had lied.
I have no doubt, as Respondent contends, that it considered the use of its cooling
fixture important. As was explained, its use had a twofold purpose. In the first
place, hanging each part on the rack by inserting the two holes in each part on two
prongs of the rack helped insure against a failure of the operator to properly punch
the holes; and, in the second place, permitting each part to be cooled before being
14 Under "Remarks" on the warning notice was written, "Violations for not following
correct operating procedure on #38 shroud. 1 Not following instructions 2 Knowing
correct procedure 3 Lied "
Two other warning slips, made out and signed by Sweigard on January 8 and 10,
respectively, were introduced in evidence but they were apparently not shown to Cole at
this interview or prior to his discharge.
16 None of the pellets in the box were shown to have been damaged and Respondent does
not contend that the box had any substantial value. Moreover, it was shown at the hear-
ing that employee Austin who worked on the shift preceding Cole's had thrown his knife
into the box a number of times Ile confessed to this after hearing that Cole had been
discharged and that one of the reasons assigned was Cole's knife-throwing. Austin was
merely scolded for this offense and was not even given a written reprimand Respondent's
representatives conceded at the hearing that the knife-throwing was not an important
consideration in the decision to discharge Cole.
16 Although Houdek may well have believed that Cole was attempting to solicit Sheets'
aid by inducing him to deny that he had seen Cole throw his knife, I find no basis for
concluding that Cole was attempting to intimidate Sheets.
17 In addition to the reasons enumerated above, Nickless testified that in discussing what
was to be done about Cole, Cole's entire record was considered, including the fact that Cole
had threatened one employee that "he would break his neck if he didn't get the card
back " The employee, Bunion, testified that in November 1963, after returning to Cole
.an unsigned union card which Cole had given to him, Cole threatened to break his neck
if be went "to the office" about the matter. Bunion, testified, however, that he did not
inform Respondent about this incident until he and other employees were called into
Nickless' office after Cole's discharge and questioned about whether they had had any dis-
agreements with Cole Accordingly, this incident, while forming the basis for an objection
which Respondent filed to the election, could not have contributed to Respondent's decision
to discharge Cole
MILLINGTON MFG. CORP. 117
placed in the packing box reduced the chance of residual heat building up in the box
and shrinking the parts. Although no evidence was adduced that any of the parts
placed in the packing box by Cole on January 8 or January 10 were in fact defective,
and it may be that non. were, Respondent had a right to expect Cole to follow its
prescribed procedures. Because Cole normally worked as a group leader, with the
responsibility of seeing that other operators followed proper procedures, it is under-
standable that Respondent would take seriously Cole's failure to follow those proce-
dures himself. It is likewise understandable that Respondent would expect and
demand honesty and, frankness of an employee holding as responsible a position as
that held by Cole, and that his denial that he had engaged in the conduct observed
by management representatives would be considered unforgivable. The fact that
Respondent knew of Cole's prominence in the union movement, that it strongly dis-
approved of the Union, and that it had used unlawfully coercive means to combat
the Union, should not, under the circumstances, be regarded as warranting an infer-
ence that Cole's discharge was discriminatorily motivated. If anything, these factors
appeared to have prevented Respondent from acting precipitately, as some of its
management representatives recommended, after Cole's first offense on January 8.
It was only after Cole on January 10 repeated the offense for which he had been
orally reprimanded on January 8 and again denied doing what a representative of
management had seen him do that Respondent took the disciplinary step which it
had contemplated taking as a result of Cole's January 8 conduct. I am not convinced
that Respondent's discharge of Cole on January 13 was motivated by his union mem-
bership or activities.
IV. THE REMEDY
It having been found that Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the Act, my Recommended Order will require it to
cease and desist therefrom and to take the conventional type of affirmative action
designed to effectuate the policies of the Act. Among other things, Respondent will
be required to cease and desist from announcing, putting into effect or promising
economic benefits to its employees to induce them to abandon or refrain from joining
the Union. However, nothing herein shall be construed as requiring Respondent to
vary or abandon any economic benefit or teim or condition of employment which
it has heretofore established.
CONCLUSIONS OF LAW
1. By announcing and putting into effect paid holidays and promising other eco-
nomic benefits to induce employees to abandon or refrain from joining the Union,
by threatening reprisals should the employees select the Union as their bargaining
representative, by coercively interrogating its employees concerning their union sym-
pathies, membership, and activities, and by intentionally creating the impression that
it was keeping union meetings under surveillance, Respondent has interfered with,
restrained, and coerced its employees in the exercise of their rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1).
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
3. The General Counsel has failed to establish by a preponderance of the credible
evidence that Respondent discriminatorily demoted or discharged employee Larry
Cole in violation of Section 8 (a) (3) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby ordered that Respondent, Millington
Mfg. Corp., its officers, agents, successors , and assigns , shall:
1. Cease and desist from
(a) Announcing, putting into effect, or promising economic benefits to discourage
employees from joining or supporting International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any
other labor organization; provided, however, that nothing herein shall be construed
as requiring Respondent to vary or abandon any economic benefit or any term or
condition of employment which it has heretofore established.
(b) Threatening employees with loss of jobs or work or with other reprisals
because of their selection of the Union as their bargaining representative.
(c) Coercively interrogating employees in regard to their union membership,
sympathies, or activities.
(d) Engaging in conduct designed to create the impression that it is keeping union
meetings under surveillance.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any like or related manner interfering with , restraining , or coercing employ-
ees in the exercise of their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its plant in Upper Sandusky , Ohio, copies of the attached notice
marked "Appendix ." 18 Copies of such notice , to be furnished by the Regional Direc-
tor for Region 8, shall , after being duly signed by an authorized representative of
Respondent , be posted immediately upon receipt thereof , and be maintained by it
for a period of 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced , or covered
by any other material.
(b) Notify the Regional Director for Region 8, in writing , within 20 days from
the date of the receipt of this Recommended Order, what steps the Respondent has
taken to comply herewith.19
The complaint , insofar as it alleges that Respondent violated Section 8(a)(3) of
the Act , is hereby dismissed.
18In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
19 If this Recommended Order Is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 8, in writing , within 10 days from the
date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT announce , put into effect , or promise economic benefits to dis-
courage our employees from selecting International Union , United Automobile,
Aerospace and Agricultural Implement Workers of America , AFL-CIO, or any
other union to represent them; provided , however , that nothing herein requires
us to vary or abandon any economic benefit or any term or condition of employ-
ment which has heretofore been established.
WE WILL NOT threaten our employees with loss of jobs or work because of
their selection of the Union as their bargaining representative.
WE WILL NOT interrogate our employees regarding their union membership,
sympathies , or activities in a manner violative of Section 8(a)(1) of the Act.
WE WILL NOT engage in conduct designed to create the impression that we
are keeping unioh meetings under surveillance.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their rights guaranteed under Section 7 of the
Act.
All our employees are free to become or remain , or refrain from becoming or
remaining, members of International Union , United Automobile , Aerospace and
Agricultural Implement Workers of America , AFL-CIO, or any other labor organi-
zation , except to the extent that this right may be affected by an agreement author-
ized by Section 8(a) (3) of the Act.
MILLINOTON MFG. CORP.,
Employer.
Dated - ------------------ By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and m»st not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720 Bulk-
ley Building , 1501 Euclid Avenue , Cleveland , Ohio , Telephone No. Main 1-4465,
if they have any questions concerning this notice or compliance with its provisions.