Radio Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1952

101 N.L.R.B. 912 (N.L.R.B. 1952)

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certification of Representatives
IT IS HEREBY CERTIFIED that Marine Shop and Shipyard Laborers,.
Local 821, AFL, and Local 1244, Brotherhood of Painters, Decorators
and Paperhangers, AFL, have each been designated and selected
by a majority of the employees in the respective appropriate units
as their representative for the purposes of collective bargaining and
that, pursuant to Section 9 (a) of the Act, each organization is the
exclusive representative of all such employees for the purpose of
collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
MEMBERS STYLES and PETERSON took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
RADIO INDUSTRIES, INC. and LOCAL 1031, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, A. F. L. and EMPLOYEES' COMMITTEE,
RADIO INDUSTRIES, INC., PARTY TO THE CONTRACT
RADIO INDUSTRIES, INC. and LOCAL 1031, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, A. F. L., PETITIONER . Cases Nos. 13-CA-
776 and 13-RC-1339. December 10,1952
Decision and Order
On March 10, 1952, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and had not
engaged in others, and recommending that it cease and desist from the
unfair labor practices found and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also recommended that the representation peti-
tion be dismissed. Thereafter, the Respondent and the Union filed
exceptions to the Intermediate Report and supporting briefs.'
The Board 2 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
' On May 21, 1952, the Respondent requested leave to file a brief In reply to that pre-
viously filed by the Union. The motion was accompanied by the proposed reply brief. As
no objection has been raised to the request, it is hereby granted.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Murdock].
101 NLRB No. 158.
RADIO INDUSTRIES, INC. 913
the case, and hereby adopts the findings,3 conclusions, and recommen-
dations of the Trial Examiner, with the following exceptions and
modifications.
1. In affirming the ruling of the Trial Examiner denying the Re-
spondent's motion to restrict consideration of unfair labor practices
to those occurring after November 15, 1950, the date of the settlement
agreement between the Respondent and the Union, we rely only on
the fact that the agreement was not approved by a Board agent 4
2. We agree with the Trial Examiner that the Respondent rendered
unlawful support to the Committee in violation of Section 8 (a) (2)
of the Act. This finding is based on the following conduct of the
Respondent :
(a) The recognition given to the Committee and the negotiations
with that labor organization while the representation proceeding ini-
tiated by the Union was pending before the Board.'
(b) The aid rendered by various supervisors in securing employee
signatures for the Committee's petition.
We do not rely on Dema's speech delivered over the Respondent's
public address system on October 9, 1950. There is insufficient evi-
dence to justify a finding that the Respondent authorized the speech.
Nor can it be said to have condoned or ratified it, in view of its suspen-
sion of Dema fora 3-day period. The suspension occurred 2 or 3 days
after the unauthorized use of the public address system. Under all
the circumstances, we believe that this was a prompt exercise of its
disciplinary power and effective notice to employees that Dema had
not spoken with the approval of the Respondent. The plant is not a
large one and it is reasonable to infer that the employees were aware
of the suspension and the reasons therefor.6 We believe that the sus-
pension was as effective a repudiation of Dema's talk as a categorical
statement to that effect.
3. We adopt the Trial Examiner's finding that the Respondent
violated Section 8 (a) (1) of the Act. We base our finding on the
violations of Section 8 (a) (2) found above as well as on the following:
3In adopting the Trial Examiner 's findings , we have accepted his resolutions of credi.
bility. Standard Dry Wall Products, Inc, 91 NLRB 144, enfd. 188 F 2d 362 (C. A. 3) ;
N. L R. B. v. Unit ersal Camera Corporation , 190 F. 2d 429 (C. A. 2).
A We note also that the charge which the Union agreed to withdraw alleged only a vio-
lation of Section 8 (a) (1) and ( 5) based on Dema's speech of October 9, 1950. We have
reversed the Trial Examiner's finding that this speech constituted a violation of the Act
5" . . an emplo' er is obliged to remain neutral and cannot recognize or bargain with
one of the two or more unions competing for such recognition during the pendency of a
representation proceeding " Hoover Co v. N. L. R B, 191 F. 2d 380, 386 (C. A. 6). Cf.
William Penn Broadcasting , 93 NLRB 1104.
Shoitly after Dema ' s suspension , the Committee distributed a leaflet to employees set.
ting forth the circumstances connected with that suspension
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) The statements and conduct of Forelady Schultz at the
chicken dinner.'
(b) The taking of pictures of strikers engaged in peaceful picketing
activities.
(c) Personnel Director Keehn's questioning of employee Metzger
as to her union membership and the reasons therefor.8
(d) Foreman Yusba's warning to employees Arker and Byers not
to attend a union meeting that evening and his reproval of them the
next morning for attending.
(e) Supervisor DeVita's inquiry of employee Schwarz in September
1950 about her attitude toward the Union.
(f) Foreman Koenig's warning to employee Metzger on the morning
of the election that she was not to talk union at any time that day.
We do not agree with the Trial Examiner's finding that the de-
livery to employees of 35 insurance certificates on the day of the
election violated Section 8 (a) (1) of the Act. As found by the Trial
Examiner, the Respondent had secured insurance coverage for em-
ployees several months before the election and the employees soon after
had been informed of that fact both by the Respondent and by Dema.
Fifteen or twenty claims by employees had been filed under the in-
surance policy before February 1, 1951, the day of the election, and
payments of "at least a couple of thousand dollars" had been made
thereunder during the same period. As also found by the Trial Ex-
aminer, the certificates of insurance do not appear to have any in-
trinsic value. Of the 332 certificates received by the Respondent
between January 12 and January 22, 1951, 285 were distributed to
employees before the day of election. The Trial Examiner does
not find anything unlawful in this distribution. In view of the
length of time the insurance was in force, the widespread knowledge
of its existence, and the lawful distribution of almost 90 percent of the
certificates before the day of the election, we are unable to agree with
the Trial Examiner that the further distribution of approximately
10 percent of the certificates on the day of the election tended "to con-
vince employees that they did not need a union in order to obtain
improvements in their conditions of employment." Under the circum-
stances, we do not find the distribution of certificates to have been un-
lawful.
4. We do not agree with the Trial Examiner that the layoff of
Emma Solomon , the refusal to reinstate Geraldine Fleck Walter, or
the treatment afforded Angeline Reibel were discriminatory.
' The Respondent has not specifically excepted to this finding of the Trial Examiner.
We therefore adopt it without comment.
8 The Trial Examiner found that this occurred in the early or middle part of September
1950. The employment application form filled out at the time of the questioning is dated
August 24, 1950. We find that the questioning occurred on this date. The Intermediate
Report is corrected accordingly.
RADIO INDUSTRIES, INC. 915
The burden is on the General Counsel to prove by a preponderance
of the evidence that the Respondent's conduct toward these 3 indivi-
duals was motivated by antiunion considerations .9 In our opinion
he has not sustained that burden. The Trial Examiner found no
unlawful motivation in the layoffs of 14 other employees, several of
whom were union leaders. There is no reason suggested why the
Respondent should have singled out for discrimination Solomon,
Walter, and Reibel, who appear to have been no more than rank-
and-file participants in the strike. The alleged unsatisfactory ex-
planations for the treatment of these 3 individuals do not of themselves
spell out discriminatory motivation. An employer may act unfairly
or unreasonably, but by itself that is not sufficient to charge him with
acting illegally under the Act, as the Trial Examiner apparently
has done in this case.10
In the case of Reibel, her fellow workers at first refused to work
with her because they held her responsible for certain unpleasant
conduct toward themselves at the plant and outside their homes dur-
ing the strike.',' In any event, Reibel voluntarily accepted a tem-
porary assignment elsewhere for 2 days and then was reinstated to
her old department at the insistence of the Respondent. When she
returned she was given the identical job that she had had before the
strike. Girls worked interchangeably on 20-place as well as 15-place
and 8-place jigs. Reibel had worked on the 8-place jig before the
strike and apparently worked on it again after her reinstatement
for about 10 days. Girls also sometimes worked alone on a machine,
when work was slow, as Reibel did for a time after her return. We
can perceive no discrimination in this treatment of Reibel?2 We
shall dismiss the complaint insofar as it alleges that the Respondent
discriminated against Emma Solomon, Geraldine Fleck Walter, and
Angeline Reibel.
5. The only one of the Union's objections to the election which has
any validity is Foreman Koenig's warning to employee Metzger
on the morning of the election not to talk union any time that day.
Although we have found this conduct to constitute an unfair labor
practice, we do not believe that it was substantial enough to warrant
W. C. Nabors Company , 89 NLRB 538, enfd . 196 F . 2d 272.
'° The only other unfair labor practices found were committed , with one exception , before
November 15, 1950, months before the alleged discriminatory treatment of Solomon, Wal-
ter, and Relbel . There is no other credited evidence which would supply proof of discrimi-
natory motivation.
11 The girls refused to work with Reibel not only because she had called them scabs dur-
ing the strike , but also because they considered her responsible for some unpleasant occur-
rences in the neighborhood of their homes during the strike.
12 N. L. R . B. v. Wytheville Knitting Mills , 175 F . 2d 238 (C. A. 3).
242305-53---59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setting aside the election 13 Accordingly, we shall dismiss the repre-
sentation petition, as the Union failed to secure a majority of the
valid votes cast in the election.
Order
Upon the entire record in the cases, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondent, Radio Industries,
Inc., Chicago, Illinois, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Contributing support to Employees' Committee, Radio In-
dustries, Inc., or any other labor organization, and from otherwise
interfering with the representation of its employees through a labor
organization of their own choosing.
(b) Recognizing or in any other manner dealing with Employees'
Committee, Radio Industries, Inc., as the collective-bargaining repre-
sentative of any of its employees, unless and until such organization
shall have been certified as such representative by the Board.
(c) Giving effect to its October 7, 1950, agreement with Employees'
Committee, Radio Industries, Inc., or to any modification, extension,
supplement, or renewal thereof, or to any superseding contract with
it, unless and until said organization shall have been certified by
the Board.
(d) Interrogating its employees concerning their union activities,
engaging in surveillance, threatening employees with reprisals for
engaging in union activities, or warning employees against talking
about or engaging in union activities.
(e) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.''
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Employees' Com-
mittee, Radio Industries, Inc., as the collective-bargaining representa-
tive of any of its employees, unless and until it shall have been certi-
fied as such representative by the Board.
' The Trial Examiner recommended that the petition be dismissed in part because more
than 1 year had elapsed since the election and a new election could be secured by filing a
new representation petition. He therefore considered that no practical purpose would be
served by passing on the objections. This disposition , while formerly in accord with
Board precedent , no longer represents Board practice. The American Thread Company,
96 NLRB 956. We have passed on the merits of the Union's objections.
14 In view of our reversal of the Trial Examiner 's 8 (a), (3 ) and other findings, we do
not believe that a broad cease-and-desist order is necessary in order to effectuate the
policies of the Act.
RADIO INDUSTRIES, INC. 917
(b) Post at its plant in Chicago, Illinois, copies of the notice at-
tached hereto and marked "Appendix A." 15 Copies of said notice,
to be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Thirteenth Region, Chi-
cago, Illinois, in writing, within ten (10) days from the date of this
Order, of the steps taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent discriminatorily
suspended Mattie E. Haglund and discriminatorily laid off, dis-
charged, or failed to reinstate Anna Muscato, Evelynne McKelvey,
Kathryn K. Gura, Evelyn Kressner, Emma Solomon, Christine Han-
sen, Olga Besbekis, Dorothy Jess, Agnes Fleck, Geraldine Fleck
Walter, Gertrude Hujar, Ellen Bozzelli, Mildred Halvorsen, Angeline
Reibel, Mary Metzger, and Anna Caplinger.
IT IS FURTHER ORDERED that the petition filed in Case No. 13-RC-1339
be, and it hereby is, dismissed.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT contribute support to Employees' Committee,
Radio Industries, Inc., or any other labor organization, or other-
wise interfere with the representation of our employees through
a labor organization of their own choosing.
WE WILL NOT recognize or in any other manner deal with Em-
ployees' Committee, Radio Industries, Inc., as the collective-bar-
gaining representative of any of our employees unless and until
such organization shall have been certified as such representative
by the National Labor Relations Board.
WE WILL NOT give effect to the October 7, 1950, agreement with
Employees' Committee, Radio Industries, Inc., or to any modi-
' In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fication, extension, supplement, or renewal thereof, or to any
superseding contract with it, unless and until said organization
shall have been certified by the National Labor Relations Board.
WE WILL NOT interrogate our employees concerning their union
activities, engage in surveillance, threaten employees with re-
prisals for engaging in union activities, or warn employees
against talking about or engaging in union activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
RADIO INDUSTRIES, INC.,
Employer.
Dated--------------------- By -----------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
The complaint herein, as amended, alleges that the Respondent has violated
Section 8 (a) (2) of the National Labor Relations Act, as amended, 61 Stat. 136,
by sponsoring, dominating, supporting, and negotiating an agreement with the
Employees' Committee, Radio Industries, Inc.,' and performing the provisions
of said agreement; Section 8 (a) (3) by discriminating in various manners in
regard to hire or tenure of employment of 17 employees therein named ; and
Section 8 (a) (1) by said alleged acts and by interfering with employees'
organizational activities since on or about August 1950 and more specifically
with a Board-conducted election on February 1, 1951, by interrogating and
threatening its employees concerning their union membership and activities,
supporting their membership in the Committee, promulgating rules to impede
the Union's activities but permitting the Committee freedom from such rules,
assisting and supporting the distribution of the Committee's literature but
interfering with the distribution of the Union's, permitting a Committee mem-
ber to use the Respondent's public address system to announce an oral agree-
ment with the Respondent and alleged benefits, engaging in surveillance of
employees' organizational activities, permitting and assisting its supervisors
to instruct employees to vote against the Union and not to talk to union ad-
herents, and distributing free insurance policies to its employees on the day
of a representation election; all in violation of Section 2 (6) and (7) of the
Act.
The Union having filed objections 2 to conduct affecting the results of the
election, the Regional Director having issued a report on such objections, and
the Respondent having filed exceptions to said report, the Board by order di-
rected a hearing on the objections. The Regional Director by order thereafter
consolidated the cases for hearing.
The answers of the Respondent and the Committee deny the allegations of
unfair labor practice, and it was agreed at the hearing that such answers be
Correct name, as amended at the hearing.
The objections were similar to the violations alleged in the complaint to have occurred
on or about the day of the election.
RADIO INDUSTRIES, INC. 919
considered also as the respective answers to the objections to the election. The
Respondent's answer , by amendment, also states that all matters alleged which
occurred prior to November 15, 1950, were covered in a charge filed in Case No.
13-CA-663 and later withdrawn, and were settled and adjusted in a strike
settlement agreement between the Union and the Respondent and dated on
that date ; and the Respondent moved in the alternative that such allegations
be stricken or that proof be restricted to matters occurring after November 15,
1950.
A hearing was held before me at Chicago , Illinois, from September 5 to 12
and 26 to 28, and November 5 to 15, 1951, all dates inclusive.
In connection with the Respondent's amendment to its answer, which it
pressed by motion at the commencement of the hearing, I found , on the basis
of two letters dated November 20, 1950, which were read into the record, that
the Regional Director had not approved the settlement agreement of November
15, 1950. The motion was at that time denied for the stated reason that in
the absence of such approval, the Board is not estopped from issuing a com-
plaint covering the matters which were included in the withdrawn charge;
and I ruled that testimony would be received concerning such matters regard-
less of whether the evidence might disclose violation of the settlement
agreement.'
In the exercise of my discretion and considering the number of alleged dis-
criminatees, I granted the Respondent's motion to exclude witnesses permitting
the alleged discriminatees to be present when their interests or acts were being
being directly considered. On General Counsel' s subsequent declaration that the
continued presence and assistance of several were necessary to his conduct of the
hearing, he was permitted to designate two of the alleged discriminatees, who,
over the objection of counsel for the Respondent and the Committee, were allowed
to remain in the hearing room . At counsel's request , the Respondent was granted
a similar privilege of assistance. On appeal taken by General Counsel during
a recess in the hearing, the Board ordered that all of the alleged discriminatees
be, and they were thereafter, permitted to attend the hearing.
General Counsel's motion, at the conclusion of the hearing, to conform the
pleadings to the proof with respect to names , dates, and places was granted with-
out objection. Other preliminary motions ruled upon require neither explana-
tion nor reference at this time.
General Counsel, the Respondent, and the Committee have filed briefs, 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
L THE RESPONDENT ' S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
The Board has recently assumed jurisdiction over the Respondent' It was
stipulated and I find that the Respondent manufactures radio and television parts
at its plant in Chicago, Illinois ; that it annually sells more than $50,000 worth
of such parts to firms outside the State of Illinois ; and that it is engaged in com-
merce within the meaning of the Act.
It was further stipulated and I find that the Committee and the Union are labor
organizations and admit to membership employees of the Respondent.
n This matter is further considered infra.
A 13-RC-1339 , 91 NLRB No. 124.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICER
References hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have been re-
solved ; findings are made herein on the basis of reliable, probative, and substan-
tial evidence on the record considered as a whole and the preponderance of the
evidence taken.
A. Early events and preliminary contentions in connection therewith
The representation petition herein was filed by the Union on June 9, 1950, a
hearing was held on July 14 and August 1 and 2, and the Board's Decision and
Direction of Election was issued on October 4. In the meantime, on or about
September 12, and for about a week thereafter, the Committee obtained 220 sig-
natures to a representation petition. The Committee then notified the Respondent
that it represented a majority of the employees in an appropriate unit, and met
with the Respondent in four meetings between September 29 and October 7. On
the latter date, while the Committee's demands were not all settled, the Respond-
ent and the Committee jointly prepared a statement of the matters agreed upon
between them.
At about 9: 55 a. in. on the next working day, which was October 9, Dema,5
one of the Committee representatives, announced over the public address system,
which covers the third floor, that he would make a statement during the 10 o'clock
rest period. The recess bell rang shortly after, and he proceeded to read the
list of matters agreed upon as benefits obtained by the Committee, closing with
the statement that there were "more benefits to come." Two days later, Dema
was suspended for 3 days.
On October 10, the Union filed with the Board an unfair labor practice
charge, pointing to alleged assistance to and recognition of the Committee.
Thereafter, on October 30, the Union called a strike, which was terminated on
November 15 with a settlement agreement looking to an election and withdrawal
of the charge. This agreement was not made subject to the Board's approval;
the Board's Regional Director did thereafter approve the withdrawal of the
charge without prejudice. On the basis of these facts, the Respondent's counsel
interposed a defense and moved that consideration be restricted to matters
which occurred after the settlement agreement of November 15. I denied the
motion on the stated ground that the Board had not approved the agreement
(as distinguished from withdrawal of the charge) and could therefore not be
estopped from issuing a complaint covering the matters included in the earlier
charge.' Further ground for denying the motion is now to be found in the
subsequent' unfair labor practices committed by the Respondent as noted
infra.
Reference may, in passing, be made to the question whether, because of past
acquiescence by the Union, there may be no warrant for setting the election
aside.' Whether there was acquiescence and the Union "took its chances" when
the charge was withdrawn pursuant to the settlement agreement and when it
proceeded with the election need not be decided. As noted, the Board is not
a In the absence of indication to the contrary, individuals named are nonsupervisory
employees.
6 Cf. The Wallace Corp, 323 U. S. 248. See also Monsanto Chemical Company, 97 NLRB
517, decided since the hearing herein
'+ Squirrel Brand Co., Inc., 96 NLRB 179; Colonial Shirt Corporation, 96 NLRB 711;
Victor Chemical Works, 93 NLRB 1012.
8 Denton Sleeping Garment Mills, Inc., 93 NLRB 329.
RADIO INDUSTRIES, INC. 921
estopped from proceeding; and in the light of the finding of interference in
connection with the election hereinafter made, a striking anomaly would be
created by simultaneous acceptance of the results of that election. (The
Union's objections to the conduct affecting the results of the election are confined
to the period immediately preceding the election ; so that in this connection,
at least, waiver of earlier interfering conduct may appear irrelevant. But
the Board has declared that a postelection investigation is not limited to
the issues raised by the parties,' and the broader aspect is therefore here
mentioned.)
Turning now to consideration of the question of waiver as it concerns unfair
labor practices, the Board has held that there is no waiver where no genuine
question of representation exists," and further that there is no such genuine
question where the Respondent's bad faith is indicated by the commission of
unfair labor practices while the representation proceeding is pending. Such
practices warrant a finding that such doubt was not bona fide but was moti-
vated "by a desire to gain further time in which to undermine [the Union's]
support." "
The Committee interposed as a defense a denial that when it negotiated with
the Respondent it had knowledge of the issuance of the Board's Decision
and Direction of Election. Aside from the fact that the Committee's lack
of knowledge is of no avail to the Respondent," against which the unfair
labor practice is charged, the conclusion to be drawn from various cases 's is
that it is immaterial whether benefit be granted before or after the Decision
and Direction of Election if such benefit constitutes interference in a given
situation. The test is whether or not there was interference, as hereinafter
considered, at a time when "there existed a real question concerning the rep-
resentation of the employees in question.9'14
The Committee maintains that the negotiations were proper since it at that
time represented a majority of the employees. But in the absence of a free
expression of choice by the employees;" there is no proof of such majority.
The Union's earlier claim had not been denied or refuted. In deference to
possible reluctance to refuse to sign, the Board does not compel recognition
on the basis of a petition or card check. Similar deference compels refusal
to honor signatures submitted by one of two rivals.
The Board has held that an employer may continue "exclusively to recognize
and deal with an incumbent bargaining representative . . . unless the petition
has a character and timeliness which create a real question concerning repre-
9 Hobart Manufacturing Company , 92 NLRB 203.
i° Howell Chevrolet Company , 95 NLRB 410 , and cases there cited.
X1 Inter-City Advertising Company of Greensboro, N. C., Inc ., 89 NLRB 1103.
" Keehn , the Respondent 's personnel director , testified that the Respondent 's attorney
during the negotiations told him on the afternoon of October 9 that the Decision and
Direction of Election had come down.
"Salant cE Salant, Incorporated , 92 NLRB 343; Deena Products Company, 93 NLRB
549; Cen-Tennial Cotton Gin Company, 90 NLRB 305; Jamestown Veneer if Plywood
Corp., 93 NLRB 101; Atlanta Metallic Casket Company, 91 NLRB 1225 ; Spengler-Loomis
Mfg. Co ., 95 NLRB 243; Mallinkrodt Chemical Works, 79 NLRB 1399; Wilson if Co.,
95 NLRB 882.
14 Midwest Piping and Supply Co ., Inc., 63 NLRB 1060 . See also International Harvester
Co, 87 NLRB 1123 ; Sun Oil Company, 89 NLRB 833
Cf. the following statement in Seneca Knitting Mills, Inc., 59 NLRB 754:
The Board has no yardstick by which it can determine the precise effect of the
AFL announcement of the RWLB ruling or of the counteracting effect, if any, of the
CIO circular on the votes cast by the employees . We cannot probe the minds of
those who voted and say definitely that the outcome of the election would have been
the same if the AFL had not publicized the RWLB ruling on the eve of the election.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentation." 1° It cannot be disputed that the representation petition herein
created a real question concerning representation ; in fact, the Board so held
in its Decision and Direction of Election. If, as may reasonably be concluded
from the statement quoted immediately above, an employer may not under
such circumstances bargain with an incumbent representative (regardless of
whether or not it actually represents a majority), a fortiori, where no question
exists of preserving the continuity of a bargaining relationship, it may not
bargain with one of two aspirants even if that one claims to represent a ma-
jority. In the latter instance, formal recognition has not yet been attained, and
the Board's machinery has been called for and made available to determine the
issue between the rival unions : to bridge the gap between claim and recognized
fact. "For an employer is obliged to remain neutral and can not recognize or
bargain with one of the two or more unions competing for such recognition
during the pendency of a representation proceeding." "
Here, with the proceeding well under way, a prompt showing of only a portion
of the majority claimed would have earned for the Committee an opportunity
to have itself formally certified. The Respondent, by refusing to recognize the
majority claim as it had earlier withheld recognition of the Union's when the
Committee was yet a-borning, could have pointed the way to such a formal
certification. Negotiation with the Committee and grant of benefits while the
representation proceeding was pending constituted illegal support's
B. The alleged violation of Section 8 (a) (2)
1. Recognition of the Committee
As has been noted immediately above, by negotiating with the Committee
and entering into an agreement with it while the Union's representation pro-
ceeding was pending, the Respondent afforded support to the Committee.
At this point, the grant of insurance (and the announcement thereof and of
other benefits) favored the Committee against the Union. As will later be
noted, that insurance was thereafter utilized to suggest voting against the Union.
2. The Committee petition
Consideration must be given to the manner in which signatures to the Com-
mittee's petition were obtained prior to the Committee's meetings with the Re-
spondent and also after such meetings, when 77 additional signatures were
obtained. The testimony of both General Counsel's and the Respondent's
witnesses indicates that Dema got most of the signatures during rest periods,
lunch time, and after working hours, although in a few isolated cases signatures
were obtained during working time and in a supervisor's presence.
More seriously, and clearly a violation of the Act, was the support afforded
by supervisors directly. Forelady Schultz openly and repeatedly called on em-
ployees to sign both the original and the supplementary petitions ; Supervisors
Blake, Mary DeVita, Yusba, and Osberg 1° assisted to a lesser extent.
10 William Penn Broadcasting Company, 93 NLRB 1104.
as Hoover Company v. N. L. R. B., 191 F. 2d 380 (C. A. 6).
Is In disposing at this time of the Committee 's defense of majority , which was strenu-
ously urged at the commencement of the hearing, I have found it convenient to continue
to a formal finding. This will be included in the next subsection.
" whether or not Osberg ( the transcript is hereby corrected to show this correct spell-
ing) is in fact a supervisor within the meaning of the Act need not be now determined.
He explained work requirements to supervisors ( he also taught Jess how to test tuners),
appeared to employees to be cloaked with authority , and certainly was "in a strategic
position to translate to subordinate employees the policies and desires of management."
(Sioux City Brewing Company, 82 NLRB 1061 ). More important , Osberg spoke to Reibel
at her supervisor 's request or direction.
RADIO INDUSTRIES, INC. 923
The conversation between Dema and Gallagher, received when General Counsel
was urging the former's authority to bind the Respondent, is not relied upon
for any finding herein. Nor do I make any finding of support on the basis of the
testimony concerning a conversation in the office of Keehn, the personnel direc-
tor, about the beginning of October, in which Halvorsen, Angie DeVita, Dema,
and Schultz participated, and which included the latter's cryptic statement,
"These two are company girls, and this is what happens when you think you
have things pretty well lined up, something like this turns up."
3. Dema's speech
Another charge of support arises from Dema's speech over the public address
system on the third floor. By counsel for the Committee, the speech is presented
as an example of brash exuberance ; the Respondent allegedly regarded it as
impertinent. There is no need to reflect on the attendant circumstances or
to consider whether, despite their testimony to the contrary, Dema was the
Respondent's spokesman. Even if it had not commissioned him, the Respondent,
with knowledge 20 of his activities while he was engaged therein, made no effort
to deter him. Furthermore, in view of its rule 21 against use 22 of the public
address system, and since it maintained that facility where Dema could use it,
the Respondent was under obligation to notify its employees that Dema's re-
marks were not authorized, and so dispel the otherwise natural conclusion that
It had granted him permission to speak."
Having made it possible for Dema to issue what it claims was an unauthorized
announcement under circumstances which suggested its own lack of proper
neutrality," it might well have used similar means promptly to undo or limit
the effect of the wrong. It is convicted by the delay in taking the action which
it admittedly found proper. Postponement of Dema's suspension is to be con-
trasted with the speed with which the Respondent acted against Haglund, whose
action was less startling and less widespread in effect and, although it included
an element of resistance to a proper restriction, was nevertheless not
consummated.
The testimony by the Respondent's representatives and by Dema concerning
events immediately after Dema's speech, the inquiry made, and the action taken
is contradictory and hopelessly confused. Keehn explained that he did not
hear of the speech until approximately 1 p. in., and, despite the strict rule
against unauthorized use of the microphone, called for a report only on whether
Dema had "committed the act," withheld action until he received the report
(that wasn't until the following day although the question was thus limited),
then spoke with Dema, and told him he would be laid off for 3 days. Keehn
also testified that, upon receipt of the report, he told Dema's immediate supe-
rior , Kaufmann, that the suspension was to take effect at the end of that day.
The suspension was in fact delayed : it is not clear whether it commenced on the
afternoon of the 11th or on Thursday, October 12. The account by Grunby, who
b Various supervisors were present during his speech.
u The Respondent maintained the rule and based on it the disciplinary action later
taken against Dema. As noted in its campaign literature, the Union recognized such
a rule and Dema's violation of it.
w The allegation that the employees "were at work" during Dema's announcement of
benefits is unnecessary and immaterial . Furthermore, such announcement may be said
to have been "incorporated by reference" in Dema's preliminary announcement made
while they were at work.
23 No such responsibility rested on the Respondent to deny the claim of "over-all senior-
ity" asserted in a leaflet distributed by the Committee.
34 Support of the Committee was further claimed in Dema 's recital of benefits granted.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Is assistant to the superintendent and assigned to the third floor , differs from
Keehn 's and is no more enlightening.
Dema testified that he was called into Keehn's office on Monday, October 9,
a few hours after the speech, and that Keehn told him that he should not have
used the public address system ; that he would be laid off ; and that he should
finish his work by Wednesday afternoon preparatory to being laid off. Dema
later testified that he could not recall whether it was on Monday or Wednesday
that he was told he would be laid off on Wednesday afternoon ; nor could he
recall whether Keehn or Kaufmann said it. In either case, there was a delay,
insufficiently explained, between the violation and the punishment.
Some light may be found in Metzger's uncontradicted testimony that on Wed-
nesday afternoon Dema angrily charged that he was laid off because the Union
put pressure on the Respondent through the Board. It does in fact appear that
a charge u of unfair labor practice based on Dema's speech was served on the
Respondent on Wednesday, October 11. Whether or not the filing and service
of the charge were the moving factor in Dema's suspension, as claimed by Gen-
eral Counsel, and whether the Respondent permitted Dema to make the speech
or condoned it by failure to take prompt action to discipline him, I find that its
action or failure to act in the situation constitutes support of the Committee.
The support found herein did not extend to domination." It appears that an
early reluctance to deal with the Committee was quickened into action by the
threat of a strike and by the Union's representation claim. But the preference
for the Committee, which events indicate, was prompted only by greater reluc-
tance to recognize the Union 27 Beyond the support as found, the Respondent
and the Committee dealt at arm's length. For example, the favorable treatment
did not include crediting the Committee with having obtained the hospitalization
program. Regardless whether preparation of the letter informing the employees
that hospitalization had been secured was in fact begun on October 6 Z" (Keehn's
testimony in this connection was uncertain), its distribution as of that date
ignored the Committee's desire and certainly did not bolster its position and
claim, as the Committee members complained. (A similar situation developed in
connection with the vacation rule.) Nor is there evidence that the Respondent
sponsored the Committee.
C. The alleged "independent" 20 violation of Section 8 (a) (1)
1. The chicken dinner
At the request of Schultz, who said that Keehn had told her she could spend
some money for it, Metzger made her home available about the beginning of
September 1950 for a chicken dinner. This was attended by 14 in all, most of
"This is the charge which was subsequently withdrawn by agreement between the
Respondent and the Union.
se Duggan 's testimony that he told Opsahl, his foreman, and Dema that he didn't want
his name on the Committee 's petition and that Opsahl later told him that his name had
been removed, together with related testimony of doubtful probative value ( Duggan did
not appear to be a reliable witness ), does not establish domination by the Respondent.
27 Translated : The Respondent didn't want the Committee ; but it wanted the Union less.
Is General Counsel argues that the statement , "This plan will be for all who were actively
employed as of October 7, 1950," ( emphasis supplied ) Indicates that the letter was in fact
prepared after October 7. He urges that the future tense ("will be employed") or the
present tense ("are employed") would otherwise have been used . Perhaps, if we credit
Keehn's testimony , it should have read "will have been employed ." The niceties of lan-
guage cannot here be relied upon, and I will not base any finding on such grammatical
construction.
29 As distinguished from "derivative" violation.
RADIO INDUSTRIES, INC. 925
them group leaders, a few supervisors, and a few rank-and-file employees.
Schultz named the women who were to attend, undertook to pay for the food,
and gave Metzger, for liquor, $5 which she said she had received from Keehn for
that purpose. After dinner, Schultz declared that Keehn asked her to find out
what it would take to make the girls happy, and, telling them that if the Union
came in the Company would go broke (she had previously made the latter state-
ment to Metzger, and repeated it to Haglund in the washroom later that
month), she proceeded to inquire. Requests and possible benefits were then
discussed. As distinguished from the support which Schultz elsewhere ren-
dered to the Committee, she here proceeded to show the interest of the Respond-
ent, qua the Respondent, in organizational activities.
Whatever the effect of an explanation elsewhere offered that the Respondent
lacked funds to meet increased demands, there was no such explanation at the
dinner, and Schultz' remark constituted a threat and interference with union
activities.
Keehn denied sponsorship of the party, testifying that he learned of it from a
union pamphlet which ridiculed it. The question of sponsorship need not be
determined : the Respondent is responsible for Schultz' actions and statements
in that connection (as with respect to the Committee petitions). It is guilty
of interference as alleged in the complaint by the acts of its forelady in threat-
ening employees.
2. Surveillance
The Respondent's representatives, as employees readily observed, took pic-
tures of union leaflet distribution and picketing activities in front of the plant
during the October 30-November 15 strike. To justify these actions, the Re-
spondent cited injunction proceedings which it had brought in the local courts
and its need for evidence in connection therewith. It appears that the issue
there was whether or not the picketing was peaceful; and the Respondent, ac-
cording to Beusman, its vice president, instructed supervisors to be prepared to
take pictures of situations "that might be considered not peaceful." Under the
circumstances, there was justification for having cameras and taking pictures
of actual "incidents." But pictures were taken and appeared 80 to be taken of
situations which were not, and cannot be claimed to have been, anything but
peaceful, and which could not therefore be justified by the court proceedings.
Such actions, as testified to, which indicated the taking of pictures, and the
actual taking of pictures constituted surveillance" in violation of the Act.
I find no surveillance in the directions to janitors to sit at the door to keep
out anyone who should not come in, and not to let anyone come in with circulars.
Whether or not Anderson, who issued such directions, was a supervisor at the
time need therefore not be determined.
The surveillance claimed in reliance on the conversation between Carlson,
plant superintendent, and Wilson, a guard , is not included in the amendment
to the complaint which alleges surveillance, despite the addition of a catch-all
phrase.
3. The distribution of insurance certificates
It is quite clear that the insurance benefits were in fact granted and that the
employees were so advised several months before . It does not appear that the
80 The record indicates that on some occasions there may have been only a pointing of
cameras and a "making as if " pictures were being taken . The effect on employees and
the interference with organizational activities is not less because a shutter isn't snapped
or because a magazine is empty. See Roxboro Cotton Mills, 97 NLRB 1359; Tennessee
Egg Company, 93 NLRB 846.
" May Department Stores Company, 59 NLRB 976.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certificates evidencing such insurance have any intrinsic value ; but they are
regarded by the employees as valuable , a fact which supported the reference to
them as orchids by Koenig, foreman of the tuner winding department on the
first floor. The certificates have been consistently referred to as "policies," and
they are esteemed as such.
Interference depends, not on actual value of the benefit granted , but on the
tendency of such benefit to interfere with the employees' selection of a repre-
sentative or with other organizational activities. We need not speculate on
which of several exquisite reactions will mark individual employees : it is suffi-
cient to find that the tendency to interfere exists . Even a certificate , as in this
case , can so interfere.
The question to be determined, then, is whether the distribution was made in
normal course or whether it was timed and dictated by a purpose to influence
the voting. Such purpose can be found ° in the timing of the action"
Keehn's testimony concerning the reason for delay in obtaining individual
certificates is fanciful. He testified that he was "in a quandary as to who was
still working . . . and who wasn't." Several thousand pages of testimony fail
to indicate confusion on that score. Thereafter, about January 12 or 16, he re-
ceived 321 certificates ; 11 more came in on January 21 or 22. The certificates,
he further testified, were checked and sorted by departments and distributed
each day as they worked on them. Only 10 or 15 were distributed each day, a
rate which would continue the process through February 1, the day of the elec-
tion . One might accept Keehn's explanation, "I couldn't confine all my time to
working on these policies. I did it in my spare moments." But that very expla-
nation points the finger at the leap to 34 or 35 certificates on the morning
of February 1, prior to the election. He strained to distribute so many on the
latter date, or earlier delayed the distribution ; either constitutes interference
with the election and employees' rights. I do not credit" his explanations for
the variance, elicited on cross-examination ; he himself told employees, in answer
to a rumor that they would never get their policies, that the "number al-
ready . . . given out . . . should be sufficient proof that they would get them."
Assuming an inability and reluctance to make full distribution earlier, the 2
additional inquiries on February 1 were not so compelling but that further dis-
tribution could and should have been withheld until after the election that
afternoon.
Without stressing the suggestion of a gift in Koenig's remark as he distributed
the certificates, I cannot regard as coincidental the number of certificates which
remained, the fact that so many were designated for the group which numbered
the most active supporters of the Union, and the distribution on the very morn-
ing of the election. The Respondent campaigned with these indicia of benefit."
The natural effect of the distribution "was to convince the employees that they
did not need a union in order to obtain . . . improvements in their conditions of
employment" ; 98 or at least that they did not need the Union herein since the
Committee had announced that it had negotiated for the group hospitalization
policy.
sa Lake Superior District Power Company , 88 NLRB 1496.
sa We thus distinguish between proven interference and the reasonable tendency to inter-
fere ; also, between a declaration of intent in an answer or at a hearing and intent as found
in the light of attendant circumstances.
" Keehn was less than frank in his attempt to explain the issuance of a letter to the
employees under date of October 6, 1950 , and in several other connections.
se Hudson Hosiery Company , 72 NLRB 1434.
96 Bonwit Teller, Inc., 96 NLRB 608.
RADIO INDUSTRIES, INC. 927
4. The Haglund incident of February 1
As the lunch period started on February 1, 1951, the day of the election,
Haglund left the plant, got three, four, or "possibly six" union leaflets from a
union representative, and brought them into the plant. ("Quite a few of the
girls did likewise," so that it may be inferred that the presence of the leaflets
in the plant came to the attention of various representatives of the Respondent.)
Denying that she distributed any in the plant, Haglund testified that she left
the leaflets on the table, where some of the girls picked them up.
After she finished her lunch, she went out and got approximately 150 more.
As she was coming in, she met Carlson, who told her that she was "not supposed"
to bring them in and that she see Keehn for permission." When Haglund re-
plied that she didn't "care to see" Keehn, Carlson took her by the arm and,
although she resisted, led her to Keehn's office. (Haglund had participated a
few days earlier in a conference with the Respondent in which eligibility to vote
in the election was considered. I find that she was known to the Respondent to
be one of the leaders in the Union's activities.)
Keehn then told Haglund that she was not allowed to distribute " the
leaflets in the plant, but, denying that she had distributed any to that point, she
declared nevertheless that she would "do as [she] wanted to on [her] lunch
time." No fault can be found with her selection of the time ; not so with respect
to either the activity, if it was properly proscribed by the Respondent, or her
stated refusal to accept the limitation imposed. "
The question posed is whether the refusal to permit Haglund to distribute
leaflets inside the plant was discriminatory. If it was not, the Respondent was
within its rights in barring such distribution 10 and in restraining Haglund
when she indicated her intent to ignore the directions to refrain. To enforce
that restraint, the Respondent threatened but did not find it necessary to ac-
complish physical removal beyond Carlson' s act in taking her to Keehn's office. "
8' The suspicion that Haglund intended to distribute the leaflets was reasonable . So, far
from dispelling it, she confirmed it.
88 Distinction is noted between leaflets and petitions or union cards, the latter being col-
lected. The difference is that between distribution and solicitation . Monolith Portland
Cement Company, 94 NLRB 1358.
" The Respondent 's witnesses contradicted each other on many details of that day's
events. There is likewise basis for doubting Haglund's reliability as a witness . ,But the
facts on which the finding of Haglund 's refusal to obey is based are clear and as herein
recited appear in her testimony.
40 Monolith Portland Cement Company , supra . I am not Impressed by the testimony that
the floor was generally messy so that the stated object of "keeping the plant clean and
orderly," as in the case cited, would not be available to support the rule against distribu-
tion. The testimony of many of General Counsel's witnesses that they saw leaflets on
tables and put others Into their purse Indicates that whatever working materials or
remnants fell on the floor , it was not considered the proper repository for leaflets and
other papers . One of these witnesses testified that she did not see any literature on the
floor . Further, leaflets were seen on tables to a limited extent only . ( Without attempt-
ing to detail all of the testimony in this connection , I do not accept Love's testimony that
leaflets lay wadded up on the floor , her reference being to the day before the election and
thus quite limited In comparison with General Counsel 's position concerning a general
condition . Her testimony elsewhere too conveniently conformed with counsel 's sugges-
tion that Denis, stated that benefits had already been obtained. Nor can I accept her
testimony that he spoke from In front of , not in , the quality control room .) Grunby's
direction to the janitor to clean up the department on the day of the election does not
indicate distribution In violation of the rule or that the floors were on previous days in
that condition.
43 If it was otherwise justified , the Respondent was not guilty of Interference when it
called the police on Haglund's refusal to leave. Cf. Newport News Children 's Dress Co.,
Inc., 91 NLRB 1521 ; Cathey Lumber Company , 86 NLRB 157 . This is not a case of
aggravation of unfair labor practices previously committed . ( W. T. Carter and Brother,
90 NLRB 2020.)
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the necessity to cite any preexisting company rule,° we may well consider
whether, in the absence of contrary prior action or other evidence that the rule
was discriminatorily adopted or applied, the Respondent could and did properly
declare the rule to employees for the first time when the occasion therefor first
arose. The penalty imposed was for the declared intent to violate the rule after
it was so declared, not for any prior distribution. The Respondent had full
right to maintain or recover its authority from a recalcitrant employee. (There
is no evidence that the occasion had previously arisen except immediately before
in the single instance of distribution by Martin). Whether supervisors did not see
Martin distribute leaflets, as they testified, or did see him, as employees testified,
Carlson called him to his office, heard his denial that he had more than four or
five leaflets, and warned him against such activity. I do not credit the testimony
that supervisors stood by smiling while Martin distributed literature" The
Respondent had not previously permitted the distribution of antiunion leaflets
in the plant." I find that the stated restriction against distribution of leaflets on
the Respondent's property was lawful.
As for the effect on employees and consequent alleged interference because
the incident occurred just before the election, Haglund's violation of a lawful
restraint could not extend the employees' privileges or the Respondent's liability.
42 It appears in fact from the testimony of several witnesses that such a rule was in
effect although not posted. (The rule is spelled out not only from a copy as noted but
from a welter of conflicting testimony and from the employees' apparent recognition of it
as herein indicated. I accord greater weight to the latter factor than to such uncertain
testimony as Koenig's ; his later testimony, on cross-examination, broadened his statement
of the rule to include nonworking hours.) The rule had been previously prepared and
was issued in writing to supervisors on October 9, 1950. Employees' knowledge is sug-
gested by the fact that, as brought out by the Union and except for the instances involving
Haglund and Martin (Supervisor Stanbaugh also mentioned distribution by Kreminsky,
who stopped after she and Grunby told him it was against the rules), all literature dis-
tribution which came to the Respondent's attention took place outside the plant ; General
Counsel's witnesses and the Respondent's testified that they went outside or to the door to
get copies. (Reibel, whose testimony in this connection, supra, I have not credited, is the
only discriminates who worked on the second floor at that time. She testified that she
was sent outside to get a copy.) If an employee returned with more than one copy, it
would be an exaggeration to say that literature was in fact "distributed." That term
is not properly applicable to the presence of 2 (there were pink leaflets and blue ones)
leaflets at a work station, whether they had been discarded or intentionally left for
another employee. 'Ihe testimony that Asimakis brought in and distributed literature to
the 12 or 15 girls eating lunch near her, even if credited, can at most indicate another
violation which did not come to the Respondent's attention ; her supervisor denied that
there was any such distribution, and I do not credit the testimony that she received and
read (she can't read) a pamphlet while others were being distributed or that she distrib-
uted them herself. It does not appear that any supervisor saw leaflets distributed by Bux-
ton ; it is claimed only that Schultz was present, not that she saw such distribution-
and Schultz had left the Respondent 's employ 2% months before ! To repeat, distribution
was made outside the plant : it is unlikely that the Union and its other representatives (and
the Committee) were less aware than was Haglund of the advantage of distribution inside
the plant ; self-imposed limitation is equally unlikely.
In the latter connection, I note that the Union's objections to conduct affecting the
results of the election include the statement that immediately after the alleged distribu-
tion of antiunion leaflets on January 31, "a similar privilege" was requested on behalf of
the Union, but that "permission was withheld." This indicates both knowledge of the
existence of the rule and reference to it before the Haglund incident ( in fact, that very
morning-report on objections).
'la Of the employees allegedly present at the time , Gura, the first to testify, did not see
literature distributed in the plant at any time. Thereafter the pattern was established :
Martin made distribution in the presence of the named supervisors.
44I credit Starkweather' s denial that she sent Reibel to get leaflets from Dema, later
asked whether she had seen them, and then gave leaflets to a group of girls in the next
room.
RADIO INDUSTRIES, INC . 929
(I have not overlooked the suggestion of unlawful motive in Haglund's testi-
mony that Beusman told her she "had caused him more trouble than [she]
knew about.")
Nor, in this connection, need we consider the Dema situation ; the latter does
not disprove the existence of a rule against distribution or the Respondent's
action to punish violators. In Dema's case, the procedure followed has been
found to be exceptional and proof of unlawful support.
5. Miscellaneous
In the early or middle part of September 1950, Metzger was called to Keehn's
office to fill out a new employment application form. Keehn at that time ques-
tioned her about her union membership and the reasons therefor, and told her
that if the Union came in the Respondent would have to close. Such interro-
gation and threat were violative of the Act.
Hansen testified that on October 26 Yusba told Arker and Byers not to attend
the union meeting that evening, and that he reproved them the next morning for
attending. Yusba's remarks constituted unlawful interference. I do not credit
his denials in the light of unlikely aspects of his testimony concerning Reibel.
Besbekis testified that on October 28 Keehn told her and seven or eight other
girls that the strike would be called on Monday, 2 days later, and that the Re-
spondent when it got "stronger" would pay whatever the Union promised the
employees. In the face of Keehn's denial, I do not credit this testimony or
Reibel's that Keehn told another group that the Respondent would go bankrupt
if the Union got in. Reibel could name only two others in the group, and
although one of these, Hansen, testified, the story was not corroborated.
Concerning alleged questioning of Besbekis by her forelady, Quinlan, with
respect to signing of a union card, I accept the latter's denial made to General
Counsel. I further credit Grunby's and Quinlan's denials that Besbekis was
asked to vote against the Union and was told to crease the corner of her ballot.
The latter idea was more likely Besbekis' own ; she was admittedly willing to
sell her vote, and did put a distinguishing mark on her ballot.
Yusba's reference on October 19 to Reibel's support of the Union does not
appear to have been questioning as claimed by General Counsel. He was not seek-
ing information but rather attempting to persuade her.
On the other hand, DeVita's inquiry of Schwarz in September 1950 about her
attitude toward the Union constituted interference, as did Koenig's direction to
Metzger on February 1, 1951, that she not talk union at any time that day. I
do not credit Koenig's reference to a "working hours" limitation, and note his
later uncertainty.
Several employees testified that, as a group entered the plant on the morning
of November 16, the strike having been settled, Grunby called them dirty yellow
bastards and threatened to make it hot for them and to give them the works.
Contrariwise, Grunby testified that Skiles applied the epithet to him. While it
is difficult to believe that Grunby would have permitted this without disciplining
Skiles, it must be remembered that such language was but a repetition of what
had been used on the picket line. Having observed Grunby, I credit his state-
ment that he sought to lessen animosity, and I find that he did not make the
statements attributed to him as hereinabove noted.
I find no violation in "admissions" allegedly made to Reibel by Starkweatber
in September 1950, when the latter was not a supervisor.
The Respondent's letter of January 29, shortly before the election, to the extent
that it undertakes to summarize the Respondent's attitude and action, usurps
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a function which is mine in the first place. With respect to that portion which is
prospective, subsequent action belied its fair words."
D. The alleged violation of Section 8 (a) (3)
From an original allegation of a single discriminatee, the complaint was
amended to include 17. Thereafter, there were variances and amendments in
connection with dates of layoff and return. In some cases there has been no
formal amendment although the record indicates reinstatement. The uncer-
tainties noted are heightened by the question of seniority and relationship
of various types of work, all of which must be considered when pertinent in
determining the existence of violations and the remedy required.
That layoffs generally were warranted in May and June is conceded ; the
issue is whether there was antiunion discrimination in the manner in which
layoffs, transfers, and recalls were effected. No discrimination is charged in
connection with layoffs in March 1951.
General Counsel undertook to show various degrees of experience and compe-
tence on the part of the alleged discriminatees. Relative seniority among some
employees performing the same work also appears in the record. Whether,
to the extent that it ignored such factors, the Respondent was guilty of unlawful
discrimination needs to be determined. A further guide in this connection
has been sought in testimony concerning a general rule or practice concerning
seniority ; such a rule, if any, can be exhumed only with difficulty from the varied
and conflicting testimony received.
The only testimony by General Counsel's witnesses concerning declaration
of a seniority rule is to the effect that after he had concluded his speech on
October 9, Dema returned to the microphone and added, in the words of one
witness, that "seniority counts." An earlier witness had declared that Dema
announced that there would be seniority according to groups. Later witnesses
testified that Dema referred to "plantwide seniority," " the first testimony in
this connection being that he said that the Committee would get it, and then
later that it had gotten such seniority.
Dema testified that he read the list of items agreed upon between the Com-
mittee and the Respondent, that seniority was not settled, and that he did not
mention it. Keehn testified that in fact there had been no agreement on seniority,
and further that seniority was not followed in the plant, employees being trans-
ferred to different jobs as orders were completed.
I do not credit the testimony that Dema announced that plant-wide seniority
had been granted. But in any event, any such announcement by him would
not establish the rule." The Respondent's responsibility for Dema's use of the
public address system, noted above, does not extend to assent to all that he
said especially since any alleged reference to seniority would admittedly indi-
cate an innovation, and the list of items actually agreed upon was posted on
the bulletin board and apparently did not include reference to seniority.
Plant Superintendent Carlson testified that most production is on a line basis :
entire lines are set up and rearranged as orders are received. The determining
factors in the layout of work and assignment to jobs is the presence of orders and
their nature. As removals are necessary with curtailment of production, seniority
45 Chicopee Manufacturing Corporation of Georgia, 85 IILRB 1439.
' Union members on several occasions expressed their desire for plant-wide seniority as
a protection for themselves against layoff . But as late as 1 week prior to the election the
Union in a handbill indicated the need for "real seniority rights."
47 In fact , General Counsel refers to Dema 's declaration as proof of a policy already
established, not to establish the policy.
RADIO INDUSTRIES, INC. 931
Is considered on individual jobs. But skill and versatility are determinative.
Further, as layoffs became serious in May and June, an attempt was made to shift
employees from departments which were more seriously affected although it was
found that all departments were affected proportionately 49 Layoffs were accom-
plished by forecasting the needs of work on hand.
Koenig testified that in making layoffs he consulted the personnel department,
submitting a list of employees and his needs, and that personnel asked for and
accepted his recommendations 98 although "There were some cases where the mat-
ter of seniority entered into it, and there were cases where [he] was overruled" ; w
further, that the personnel department took a weighted average of efficiency and
seniority. Although Koenig could not say what weight was given each factor,
neither Keehn nor his secretary (they constitute the personnel department) was
asked to explain deviations from strict seniority. That there could be such
deviations even where employees worked together and did the same work is seen,
for example, in Caplinger's case, infra. At Koenig's request, Sondergard,°' a
supervisor under him, recommended the fastest workers, and he accepted her
recommendations. This evidence does not indicate discrimination.
The record shows that as testers were needed after the layoffs of May 10,
Hujar was the first to be recalled, then Bozzelli, and then Jess. As among these
three, all of them union supporters, seniority was followed in inverse order.
There is no claim or suggestion of discrimination in this connection, and the im-
pression is left that seniority was lightly regarded, if at all. Nor is there any
question of difference of ability here: Koenig testified that "they are all pretty
good." Similarly, Hoefler and Jess, who ranked in that order on the basis of
seniority, were laid off on June 25, while Bozzelli was retained. And Jess was
later recalled before Hoefler. (Discrimination is not charged in these instances.)
Yet, when Koenig was asked why Hoefler, rather than Jess, was retained on May
10, he "guessed" that it was "because of seniority." It is difficult to identify a
seniority rule in Koenig's department.
Supervisor Stanbaugh, who served under Forelady Quinlan, who in turn was
responsible to Grunby, testified that employees under Quinlan were selected for
layoff "according to seniority first and by efficiency next." It appears from Stan-
baugh's testimony that, on layoffs, seniority is considered on the same type of job,
not to effect displacement on other jobs. Stanbaugh also indicated the possibility
of transfer to another department, but there is no instance of such transfer of
either prounion or antiunion supporters at the time that layoffs were made.
Grunby testified that the practice is broader than that described by Stan-
baugh as actually in effect. He testified to seniority throughout the third floor,
combined with consideration of skill and versatility, and actual displacement 02
of employees if necessary ; he maintains his "own seniority list." He testified
further that his recommendations on layoffs were followed by Keehn. But Stan-
baugh testified credibly that Grunby's indicated application of seniority was
limited as layoffs became more general. The practice as she described it and as
is set forth infra in connection with Solomon's layoff may be contrasted with that
later in the month when Fleck was laid off.
48 There is no basis in the record for comparison of layoffs in all departments.
w That Keehn relied on Koenig is indicated in connection with Gura 's discharge , infra.
E° Such cases were not identified . ( See footnote 55, infra.) The analysis of individual
layoffs, infra, will include the evidence of discriminatory action.
' The transcript is hereby corrected to show the correct spelling.
'x As we weigh the cases of employees under Grunby , infra, consideration will therefore
be given not only to the closing down of their jobs but also to their transferability and
right to replace other employees.
242305-53-6O
-932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two employees who had not joined the strike, LaMarr (Faller) and Kullander,
were transferred to Yusba's department a week or two before May 9, and
at a time when the layoff was expected. But one can as readily speculate
that since they were the only primary oscillating coil winders, the need for
such work on their line was earlier terminated (a common occurrence as
noted)-there is no evidence that they were replaced-as that their transfer
was intended to favor them for their antiunion activity and therefore was
discriminatory within the meaning of the Act. Nor do these two cases indicate
a plant-wide seniority system or a practice of transferring employees when such
transfers would result in displacement and discharge of others. It is to be
noted also that when LaMarr and Kullander were retained on May 9, among
those laid off were employees who had struck and others who had not, the latter
including some who had greater seniority than LaMarr and Kullander. Here
is clear indication that seniority was not the determining factor even within
Grunby's department.
The testimony that employees were changed back and forth from one line
to another refers to periods of need for additional help on the latter line. Such
evidence does not indicate a policy of displacement of employees, according to
seniority or on any other basis, when layoffs were necessary.
General Counsel argues that Grunby's resentment was proved when he allegedly
vilified returning strikers ; and that, if on the contrary he was the recipient of the
abuse, he was equally resentful. In either case, goes the argument, Grunby's
attitude was proven, and the discharges were therefore discriminatory. While
evidence of differences is material, however serious and whatever their duration,
and even if somewhat remote in point of time, this evidence lacks the impressive-
ness of the more specific testimony which is relied upon herein.
Further, I note that while claims were made in general terms that similar
jobs were continued on other floors and in other departments, General Counsel's
witnesses ' who had been employed on the third floor referred to the same or
adjoining lines when they were at all specific.
There is no conflict between Grunby's consideration of seniority and Keehn's
testimony that he had himself followed "no type of seniority," no situation in-
volving it having arisen in Grunby's department prior to May 1951 and it not
having been followed on the first floor in March.` To the extent that he ac-
cepted Grunby's recommendations, there is no such correlation with seniority
as would indicate that Keehn recognized it and that it would be applicable else-
where.0 In short, whatever the extent of department-wide seniority on the
third floor, there is no suggestion of a similar rule elsewhere. If there is other
evidence of a seniority rule, General Counsel does not even urge it.°e
Some of the alleged discriminatees had experience in similar employment
elsewhere, but it appears that, when the layoffs were made, this was neither
referred to nor considered beyond the greater skill and versatility which might
reflect such experience. The failure to check details of experience in former
r3 E. g, Caplinger , Kressner, and McKelvey.
' No complete comparison can be made from the evidence adduced, but examination of
the record submitted for the tuner assembly line indicates that at the layoffs in March
1951, Schwarz , Gura, and Nehmzow , all of whom had struck , were retained while employees
senior to them were laid off.
ss While Keehn 's failure to explain possible discrimination ( see footnote 50, supra) may
lead to a finding against the Respondent, such explanation was offered by other witnesses,
as hereinafter noted.
56 This extended discussion makes it clear that I do not agree with General Counsel's
claim that the existence of a seniority rule is immaterial in view of the other evidence in
the case.
RADIO INDUSTRIES, INC. 933
'employment is not per se discriminatory. To hold otherwise would be to main-
tain a more far-reaching seniority rule.
There is testimony on the one hand that employees have each done various
types of work, are readily transferable, and have been assigned to other jobs
as they caught up with their own work, some operations requiring more time
than others, or as and when material was brought in "all at once" ; on the
other hand, that there is a delay of a few days to 2 weeks in acquiring speed
even where special training is not required. Such testimony does not prove
or refer to replacement of employees when layoffs were made.
Bearing in mind the limited extent to which seniority was in fact recog-
nized, and the average of about a week before employees acquired skill and
speed after transfer to another job, I do not find discrimination in those cases
where the Respondent retained employees who were experienced on their jobs
or were best qualified for various operations, and failed, in a period of de-
clining orders, to follow a policy of strict seniority.
Where no seniority policy exists, or beyond the provisions of an existing
seniority policy, layoffs may be made on any other nondiscriminatory basis'?
On the other hand, where satisfactory explanation for selecting particular em-
ployees for layoff is not given, I find that such employees' union activity was
the determining factor." As will be seen infra, discrimination has been shown
in only a few cases.
General Counsel stresses the Respondent's antiunion attitude. But such an
attitude granted, it does not follow that layoffs were necessarily discriminatory.
It is clear that even on the third floor, where the competitive area for seniority
comparison was broader, the seniority principle was limited in application. In
those cases where the Respondent pointed to lesser skill or adaptability, General
Counsel, despite all of his attention to detail, did not meet such proof. To
deprecate the comparative ability of an employee is not to say that she is
unqualified in the face of her employment record ; rather, that she is less
,qualified than other employees.
Thus each case, while considered in the general setting, depends on proof
of specific discrimination or the absence thereof. There were other employees
whose connection or lack of connection with the Union has not been shown.
There is no proof of such disproportionate selection of union and nonunion
employees or supporters 60 as to give rise to an inference of over-all discrimination.
Of course, "a complete housecleaning of union members and supporters is
not essential to a finding that some employees have been discriminated against." B0
But on the other hand, General Counsel has not shown that there is such a
correlation between the layoffs 81 and the known union activity as to warrant
a finding of a discriminatory policy which prompted those actions not other-
wise found, by specific proof referrable to such cases, to be discriminatory.
Further on the issue of such over-all discrimination as would support a find-
ing in favor of all of the alleged discrminatees, as distinguished from discrimi-
nation found in specific cases, it may also be noted that the information avail-
able in connection with the layoffs in March 1951 indicates that only one of the
alleged discriminatees herein appears to have been laid off at that time while
sr Cf . Waterman Industries, Inc., 91 NLRB 1041.
sa W. C . Nabors Company , 89 NLRB 538.
sa It appears only that there were layoffs and retentions among both groups . Of some
50 or 60 pickets , about 20 were identified at the hearing. Layoffs , it is clear, were
extensive.
40 Stewart Warner Corporation, 55 NLRB 593. See also Inter-City Advertising Com-
pany of Greensboro , N. C., Inc., 89 NLRB 1103; Pennwoven, Inc., 94 NLRB 175.
si There is no correlation with failure or refusal to sign the Committee petition.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at least one employee who crossed the picket line and one hired during the
strike were likewise laid off. The activities during the strike of some who were
laid off in March were not described.
I find that General Counsel and the charging union have not shown any
such seniority rule as they urge to support all of the allegations of discrimination.
In addition to the general claim of seniority, General Counsel did cite various
instances of discrimination in favor of other specified employees. Such in-
stances and the employees cited in each case will now be considered.
Mattie E. Haglund
For the reasons stated in the preceding subsection in connection with the
question of interference with Haglund's activities, I find that she was law-
fully suspended on February 1 for refusal to abide by the directions not to dis-
tribute leaflets inside the plant.
Haglund had performed various line operations on the third floor. With
the opening of the tuner assembly department on the first floor, she was de-
tailed to testing there. Of five testers listed as such by the Respondent, she
was the junior. Neither she nor any other tester was laid off in March 1951,
when some employees who had greater seniority but had different jobs in the
department were laid off.
Haglund and all but one of the other testers were laid off on May 10" Pointed
to as evidence of discrimination is the retention of Kinsolving, who had less
seniority than Haglund or the other testers and who, it is claimed, was also a
tester. Her listing on the Respondent's records is as an analyst on rejects.
While Koenig testified that he selected Kinsolving for special testing, and
later gave her employment when other testers were laid off, because she was
the most intelligent, various employees were obviously "discreet" in hinting at
other reasons for Koenig's choice of Kinsolving in preference to the others.
Whatever the reason 88 as General Counsel's witnesses indicated it, it does not
appear to have been connected with union activities as commonly understood.
Koenig testified that about the end of February or the beginning of March
he started to give Kinsolving specialized training so that she alone learned to
do analysis on rejects. On the other hand, each of the listed testers except
Bozzelli testified in rebuttal that Kinsolving did the same type of work that
they did, analyzing cores." Their reliability was clearly impaired when, called
to bolster their testimony, McKelvey testified that Koenig and Kinsolving for
several months would be trying "all day long" to get core combinations on the
rejected tuners, something which none of the other testers could do.
I find that Haglund's layoff, Kinsolving being retained, was not discriminatory
within the meaning of the Act.
Haglund also noted that a day or two or a few weeks before her discharge,
Clark, who was hired during the strike, was transferred to Yusba's assembly
on the second floor to do work similar to, but not the same as, what Haglund
had done. Koenig placed Clark's transfer at about mid-February, when layoffs
do not seem to have been contemplated. She was subsequently laid off in
Yusba's department. The evidence in this connection does not warrant a finding
of discrimination against Haglund.
52 She was recalled on October 2. In various cases, discrepancies in dates as set forth
in the amended complaint and in the testimony of witnesses are resolved by reference to
employment records received in evidence.
e8 This differs from the situation where the Respondent submits a reason different from
that previously urged, the later one being considered an afterthought and specious. Here
it is submitted by General Counsel and , if accepted , leaves for determination whether such
reason was discriminatory within the meaning of the Act.
" Hujar was unable to state whether Koenig gave Kinsolving special instructions.
RADIO INDUSTRIES, INC.
Anna Muscato
935
Muscato, an antenna coil winder, was laid off on May 9, 1951, recalled on
May 28, laid off again on June 22, and recalled on September 18. She had at
various times performed other operations on the tuner line ; she picketed during
the strike.
To support her claim of discrimination on May 9, Muscato pointed to the
retention of LaMarr and Kullander, hereinabove considered. She also charged
that Yek and Boutasa, who were hired just before the termination of the
strike," and Travis and Lawson, who had refused to strike, were favored by
earlier recall in May although each of them had less seniority than she.
Sondergard testified that she had recommended Yek to Koenig as one who
could well perform all of the operations on the line and should therefore be
preferred to others ; Yek was not laid off at all in May. Boutasa was recalled,
like Muscato, on May 28. While Travis and Lawson were recalled 10 days
earlier, on May 18, and all08 of these were recalled on August 23, 3% weeks
before Muscato's later recall, the difference in work actually performed, com-
bined with the apparent expectation that employees on other assignments would
soon be recalled, appears to have been sufficient warrant for the earlier recalls.
Under the circumstances, and remembering that there is no evidence that re-
placement of employees was the rule under Koenig, even to the extent that it
was applied under Grunby, I am reluctant to base a finding of discrimination
on the slight delay in recalling Muscato.
Evelynne 87 McKelvey
After several months as a line employee and then group leader, McKelvey
was made a supervisor under Schultz in August 1950. She refused to cross
the picket line during the strike but was called back and returned after the
settlement. The work had expanded, and she now shared with Sondergard
authority over the work which she alone had previously supervised." There
followed some disputes over her authority with Koenig, who had replaced
Schultz as foreman during the strike. When McKelvey appealed to Keehn,
she was told to "use [her] own imagination" in exercising authority and to
"get together" with Koenig. Keehn also promised to straighten out the ques-
tion of her authority but this was apparently never done, and Koenig there-
after told her that he was "confused." She too was confused and from that
time on referred all questions to Koenig except when he was absent.
Before the strike, McKelvey had voluntarily undertaken to do some repair
work. She was later told by Koenig to include it on her time sheet, and was
then directed to do such work to a greater extent. It is not charged that as-
signment of repair work to her was a discriminatory act.
While Koenig more closely supervised her activities, I find that McKelvey
remained a supervisor. But whether she was a supervisor or had been reduced
to rank-and-file status, her rate of pay was higher than that of line employees
and group leaders. There is no evidence that she was reduced in pay when
she did repair work; nor that her suggestion that she be retained on the line
indicated a willingness to accept a lower rate. Rank-and-file employees were
laid off the following week ; in any event, she was not in the same area of com-
Her testimony is that they were hired after the strike.
ea The notation "Term. ( Marriage )" appears after LaMarr's name; she was not reem-
ployed after June 22.
67 The transcript is hereby amended to show the correct spelling.
49 The number of employees under a forelady or supervisor varied with business needs
and prospects.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition. She testified that Koenig explained that business was falling oft:
The latter attempted to connect McKelvey's termination with some bad work
which was returned. I find that McKelvey's discharge or "severance" on May 4
was not discriminatory within the meaning of the Act.
Kathryn K. Gura
Gura, employed by the Respondent since October 18, 1948, on various jobs on
the line and as group leader, was included in the layoffs of May 10. She had
picketed during the strike.
She mentioned Schnabl, Nehmzow, and Kinsolving as junior employees who
were at that time retained. Kinsolving's case has been considered, supra. As.
for Schnabl and Nehmzow, the two employees who worked on soldering and
wiring on their line, Koenig testified that they were the best all-around workers.
The latter of these had also struck.
The week after her layoff, not having been recalled when other employees.
were, Gura came in to see Keehn, who sent for Koenig. The latter explained
that Gura had been assigned to packing at her own request, and had packed a
shipment of bad work. In detail, he explained that she had failed to solder
loose leads before the units in question were packed ; the packer is "supposed
to dip them in the soldering pot." While it appeared for a time at the hearing
that Gura may have been blamed for items packed by someone else, further
questioning brought out that a specific lot of 300 tuners previously rejected were
traceable to Gura by the purchaser's material inspection report number. Gura
denied that she had been careless, but she admitted to Koenig that she had
packed the tuners.
There appears to have been reasonable basis for the Respondent's belief, and
the evidence so indicates, that Gura had repacked the defective tuners. I find
that her discharge was not discriminatory.
Evelyn Kressner
Kressner, a former striker, was included in the layoffs of May 9, 1951. She
testified that four employees with less seniority were at that time retained on
her line: Lawson, Saalfrank, Travis, and Chaskas (or Chakos). The last named
Is otherwise unidentified and does not appear on the payroll list received. The
other three were in fact laid off on May 9; they were recalled on May 18, 10
days before Kressner. All were laid off on June 22. When she testified, on
September 10, Kressner stated that the others had already been recalled. Ac-
tually, only Lawson was back at that time, having been recalled on August 23;
the payroll sheet carries the notation in this connection that she was a solderer
who could also test. It appears that Kressner had also done soldering, but not
as recently. The remarks in connection with Muscato, supra, concerning ex-
pectation of an early recall, are likewise applicable here. Also to be considered
is Sondergard's testimony that Kressner is a slow worker.
Kressner and Saalfrank were recalled on September 17; Travis does not ap-
pear to have been recalled at all since the June layoff. I do not find discrimina-
tion against Kressner.
Emma Solomon
Apparently an early supporter of the Committee, Solomon joined in the strike.
She was employed as a solderer on the third floor, and was laid off on June 8.
She named three employees on her line who had less seniority and were retained :
Underschuitte and Bobson, who had gone through the picket line, and Valberg
Anderson, who was hired during the strike. Later testimony shows that Bobson
RADIO INDUSTRIES, INC. 937
did testing and lacing, and was under a different supervisor at the time of
the layoffs ; Solomon never tested. Underschuitte and Anderson were solderers,
the former doing pot tinning, which "basically" is soldering.
Stanbaugh, Solomon's supervisor, thought that she had referred Solomon to.
Grunby for transfer elsewhere : he knew Solomon's work. Solomon, in turn,
testified that Grunby praised her work the day before she was laid off.
Solomon appears to have been a capable employee who, in spite of the practice
in her department, was not transferred to another line when hers was shut down
although two other solderers, one of whom worked through the strike and the
other was hired during the strike, were retained. Solomon having been selected-
by her supervisor for retention, I find in the absence of explanation that her lay-
off was contrary to the standard set up by the Respondent °B and discriminatory.
How long the other two employees were retained does not appear. I will direct
that Solomon's loss be computed from June 8, 1951, until both Underschuitte and
Anderson were laid off, if at all, and if either has subsequently been recalled,
during the period of her reemployment while Solomon remained unemployed ;
but in no event beyond the date of an offer to Solomon of reinstatement to her
former or substantially equivalent position.
Christine Hansen
Hansen, a striker, was laid off on May 10, returned on May 18, and again laid
off on June 22. Testifying that she had herself done soldering "in between"
other jobs and on previous assignments, she pointed to Schnabl's retention as
indicating discrimination. Koenig's estimate of the latter's ability has already
been noted. (That Hansen was recalled in May a few days before Ida Johnson,
who had greater seniority, suggests one of the considerations followed in making
recalls : the latter's services as a packer were apparently needed later.)
A belated comparison by McKelvey between Hansen and Metzger on one hand
and two other employees, Stahl and Jefferies, did not meet the point that the
jobs held by them were different ; further, both Stahl and Jefferies were per-
manently laid off a month before the June layoff of Hansen and Metzger. (Both
of the latter have since been recalled.) I find no discrimination against Hansen.
Olga Besbekis
Besbekis worked during the strike. She joined the Union, but indicated to
her supervisor that she would vote against the Union, and marked her ballot
so that it could be recognized?° She had apparently complained only because
she had not received a bonus.
Although employees who were hired during the strike were retained when
Besbekis was laid off, there is no indication here of discrimination on account
of union activities.
Dorothy Jess
Jess was made a supervisor in July or August 1950. She struck, and after the
strike was made a tester. This was not a demotion : she agreed to become a
tester without loss of pay. The claim of discrimination against Jess appears to
be based on her layoff from May 10 to May 21 and thereafter on June 25; she
testified that at the time of her layoff she was capable of filling jobs in any
department, and employees with less seniority and whom she had taught were
retained in other departments.
^B H & H Manufacturing Company, Inc., 87 NLRB 1373.
TO These matters have been considered , supra, in connection with the alleged interference.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She named Kinsolving, Hoefler, and Nehmzow as employees with less seniority
who were retained when she was laid off. Kinsolving's case has already been
considered ; Hoefler and Nehmzow both struck and were senior to Jess. Nor,
as found above, was the Respondent obliged to displace employees in other
departments. I find no discrimination against Jess.
Agnes Fleck
Fleck signed the Committee petition but thereafter joined in the strike. She
testified that when she was laid off, during the week of June 20, 1951, several
employees in her department with less seniority were retained : Gionaras and
Asimakis, who crossed the picket line, and Byers, who did not, but got a job
elsewhere during the strike. The latter two, she testified, did work that she
had previously done.
Stanbaugh, her supervisor, testified that Fleck could not lace, complained
about soldering and that testing made her nervous, and that she could do only
wax impregnation work ; but that as the order was finished and the line shut
down, there was no need for wax impregnation. Further, Byers worked well
on various jobs. Asimakis was doing collar assembly, which could not be
slowed down. Fleck had been tried on this work, but was not satisfactory ; in
fact, only her waxing was satisfactory. She helped on other work when her
waxing was caught up, as Fleck also testified.
Gionaras, it appears, did various jobs, and was laid off when or shortly after
Fleck was laid off. Stanbaugh explained that as jobs on the line were finished,
employees were laid off. Byers was about the last on the line to run out of
work. Fleck was not discriminated against, and I so find.
Geraldine Fleck Walter
Walter signed the Committee petition but thereafter joined in the strike.
After the strike , when she applied for reinstatement , she was told that she could
not be taken back because she was 3 months pregnant . This refusal was not in
accordance with Respondent 's own practice , as will be noted ; the reason assigned
was specious . I find that Walter was refused reinstatement because she had
joined in the strike and picketing.
Another employee, Darrera , was permitted to work until December 29, 1950,
when she was terminated for pregnancy ; her baby was born 102 days later, on
April 10, 1951 . Using this period as a gauge , although recognizing variability
in such cases, I find that Walter would reasonably P1 have expected to leave her
work 102 days before July 7, 1951, when her baby was born, or on March 27,
1951.
In the face of the alleged 3-month rule, the Respondent 's plea that "Perhaps
her (Darrera ' s) condition was overlooked in the turmoil and confusion at the
time" is weak indeed . But the record shows further that Fleck , Walter's
mother , spoke to Grunby about Darrera's continued presence in the plant in
contrast to his exclusion of Walter ; the matter was not overlooked.
It appears , however, that on November 16, 1950, Walter had been pregnant
for only 1 month , so that her acceptance of the statement about a 3-month
pregnancy and her mother 's reference to a couple of months must have taken
place some time later . In fact, the latter did not recall just when her daughter
did want to return ; illness due to pregnancy prevented her return immediately
after the strike, and she was refused reinstatement sometime thereafter.
Fleck 's reference on the latter occasion to Darrera 's pregnancy having reached
11 Cf. Empire Woolen Mills, Inc., 53 NLRB 883.
RADIO INDUSTRIES, INC. 939
the 6-month stage indicates (although her estimates varied and were uncer-
tain) that the application on Walter's behalf was made about the early part of
January. Such a date harmonizes with the reference to Walter's 3-month
pregnancy. It would appear, then, that Walter was refused reinstatement on
or about January 8, 1951. Back pay will be recommended for her from that
date until March 27, 1951.
Gertrude Hujar
Hujar, a tester under Koenig, was laid off on May 10. She had signed a Com-
mittee petition and later struck. She pointed to the retention of Kinsolving,
Hoefler , and Nehmzow as indicating unlawful discrimination against herself.
What has been noted supra with respect to these employees in connection with
Jess' layoff applies here also, with the additional fact thet Hujar was junior
to Jess.
On May 16, Hujar received a telegram to report for work the following day.
She called Keehn on May 18 and told him that she had been unable to report
because her mother had been ill. Keehn told her that her job had been filled,
but that he would call her when girls were hired again. She was taken off the
company records at the beginning of August.
Who took Hujar's place on May 17 does not appear although it is noted that
Bozzelli returned on that day. Neither does it appear that any testers were
thereafter hired until October 2, when Haglund was recalled. There is no proof
of discrimination against Hujar 72
Ellen Bozzelli
Bozzelli , a tester, had joined the strike . She was included in the May 10 lay-
offs, and returned to work on the 17th. She pointed to the retention of Kinsolving
and Hoefler, considered in connection with Jess' layoff, supra. Bozzelli was
junior to Jess . She was not discriminated against, and I so find.
Mildred Halvorsen
Halvorsen , a secondary oscillating coil winder , and a union supporter , was laid
off on May 9, recalled on May 28, and then again laid off and recalled on June 22
and August 23 respectively. She cited Kullander , LaMarr, Yek, and Lawson,
all of whom were mentioned by Muscato, Supra. (Like Muscato, Halvorsen per-
formed various other operations on the line from time to time .) In this connec-
tion, Halvorsen's claim of discrimination is apparently limited to the 10-day
period from May 18 to May 28 ; unlike Muscato, she was among those recalled
in August.
That Kullander worked on Halvorsen's machine for awhile between May 9
and May 28 does not indicate that there was special need for the latter's work
during her layoff. That their jobs were normally different appears from Hal-
vorsen's testimony that Kullander later told her, "I worked on your machine,
Millie, and I didn't do bad."
Halvorsen mentioned Chakos, who was referred to by Kressner, supra. She
also testified uncertainly about Henne, who had not gone on strike, and Nealie,
who had, both of them with less seniority. They worked on different lines, and
were allegedly retained on June 22 . The evidence is not sufficiently clear to
show discrimination against Halvorsen . Her recollection of seniority was not
n As with Bozzelli, infra, Hujar was recalled before Hoefler and Jess (and Bozzelli), who
had greater seniority. (Nor was Bozzelli laid off when Hoefler and Jess were on June 25.)
In the several cases referred to at the hearing in which preference was given to a union
supporter over another with greater seniority, there is no showing of antiunion motivation.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impressive. As for Nealie, who had also picketed, her retention cannot tend
to prove the discrimination alleged. As in Muscato's case, the expectation
of early recall may here be noted. (I do not find it necessary to cite the prin-
ciple of de minimis.)
Angeline Reibel
Reibel was a silk screener on the second floor under Yusba. She joined the
strike after the first day, and picketed ; she was the only screener to strike.
When she returned on November 16, Yusba 78 told her that she could not go back
to screening as the other screeners would walk out, and she was assigned to
machine work. She was returned to screening 2 days later but on 8's, a different
type of jig.74 I find from the conflicting testimony on this point that the new
assignment was more tiring and tended to lessen output so that the bonus received
would be substantially lessened.
The Respondent "is under a duty to insure that its right to hire, discharge,
or transfer is not delegated to any antiunion or prounion group of employees." 7s
But an employee's conduct may warrant both hostility of fellow employees and
discharge by the employer. In considering the reason for the hostility of fellow
employees, the Board has recognized a distinction between protected union
activities, however obnoxious to other employees, and personal acts not so pro-
tected.78 There is no suggestion that Reibel's language?' was more offensive to
her fellow employees than was the language of others on the picket line ; it was
substantially that attributed variously to other employees and to Grunby, with-
out consequent refusal to work or reemploy, or any reaction other than distaste.
Specifically disclaiming expertise in this respect, I rate the language allegedly
used no higher (or lower) in the scale of opprobrium than that used elsewhere
and found by the Board not to affect the right to reinstatement.'8 On that
authority, such epithets may be regarded "as within the legitimate ambit of
strike activity" without consideration of their status as expressions of opinion
and without proof of the factual bases for such opinion. ( Consideration of such
bases would call for extreme reference to so-called personal "background.")
Assuming, alternatively, that such name-calling justifies an employer's refusal
to reinstate, the Respondent waived its right in this regard by agreeing to and
actually reinstating the strikers. Only after Reibel returned and regained her
status on the payroll was she notified of a change in her working conditions.
Such change was discriminatory within the meaning of the Act, and the Re-
spondent will be directed to make her whole for any loss which she suffered
as a result thereof between November 16, 1950, and the date when she was
reassigned to work on the 20's,79 but in no event beyond February 1, 195180
In computing loss of pay, comparison should be made between Reibel 's average
earnings (to reflect time, if any, spent on 8's) during the 4 weeks immediately
7s Yusba's testimony appears to differ here, but Keehn' s and Beusman 's to support Reibel's,
as do Miller 's and Albertson 's, coworkers on screens.
74 Relbel testified that her job was on the 20's. Contrariwise , she declared that in June
1950 Yusba was "putting [her] always on 8's." Miller testified that Relbel had worked
on 8's just before as well as after the strike. Yusba nevertheless recognized her machine
and her job as being on the 20's, and transferred another employee to her machine after
Reibel went on strike. The remedy proposed will reflect occasional work which Relbel
may have done on the 8's prior to the strike.
7e Majestic Metal Specialities , Inc., 92 NLRB 1854.
76 Ibid.
77 Cf. N. L. R. B. v. Wytheville Knitting Mills, 175 F. 2d 238 (C. A. 8).
78 Deena Artware, Inc., 86 NLRB 732.
76 For loss of bonus as compensable , see Majestic Metal Specialties, Inc., supra.
30 The latter date was alleged by way of limitation in General Counsel 's amendment to
the complaint.
RADIO INDUSTRIES, INC. 941
preceding the strike, and her average earnings between November 16, 1950, and
the cutoff date.
Mary Metzger
Metzger, the oldest employee in her department in point of seniority, was
notoriously active in union affairs ; she testified in the representation proceed-
ing and was active in the strike. She had done various kinds of work and been
a group leader. Laid off on June 25, she apparently claims discrimination
because she was not recalled until September 16.'
She named Kinsolving, Schnabl, Captain, and Bromilow as employees in her
department, each of whom had crossed the picket line, who were recalled before
her. Kinsolving's special work has been discussed, supra, as has Schnabl's rating
as one of the two best all around workers. Captain, who worked in a different
department and was laid off before Metzger, on June 22, was recalled on July 25
to a newly opened department. (Comparison here would truly call for plant-
wide seniority.) Bromilow was also laid off before Metzger, on June 22, but she
was recalled on the 27th.
Koenig testified that Metzger was less efficient and less versatile than those
who were retained or recalled during her layoff, and that those qualities were
especially necessary when work was running below capacity. The explanation
is plausible and, in the absence of a pattern of discrimination;' no discrimination
is found in this case.
Anna Caplinger
Caplinger had greater seniority than any other rank-and-file employee con-
sidered in this case. She was laid off on May 9, and was not recalled until
October 1. Her category was lacer, although at various times she had performed
the other jobs on the line except testing, winding, and soldering.
On May 9 her supervisor, Sondergard, assigned Caplinger to a lacing job
which, as the latter complained, proved too fine for her eyes. Rebecca Johnson,
who was also a lacer on her line, was thereupon assigned to the job ; she
was not laid off. Of the various employees who were recalled before she was,
Caplinger specifically mentioned Boutasa, who was described by Sondergard as
being a fast worker any place on the line.
Under the circumstances, I do not find that Caplinger's layoff or the failure
to recall her until October was discriminatory even though a few employees
on other jobs were retained on May 9 and others were thereafter recalled. It
appears that Caplinger was less active in union affairs than other employees
who were recalled earlier. (She picketed for only 2 days.) Nor was any other
lacer-assembler hired to replace her.
III. THE CONDUCT OF THE ELECTION
It appears from the foregoing analysis and findings that of the Union's ob-
jections to conduct affecting results of the election 83 only the first, which refers
to the distribution of insurance certificates on the morning of the election,
n She did refer to Roth, a group leader in another department , who signed the Committee
petition , did not strike, and was transferred to a different type of work when her work
ran out-at some unspecified time.
"' Metzger had not been included in the earlier layoffs. (One may speculate and wonder
whether her earlier retention contradicts Koenig's testimony concerning the need for the
most versatile .) But those layoffs were short and, speculating further, one notes that a
few-day delay , as occurred in June, in laying Metzger off on the earlier occasions would
have brought it around to approximately the date when the laid off employees were
recalled.)
e' With 290 eligible voters, 90 votes were cast for the Union, 171 against, and 18 ballots
were challenged.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Is valid. In any event, it is now more than 1 year since the election was held;
the Union, if it desires, is free to file a petition for a new election. No practical
purpose would be served by passing at this time on the merits of the Union's
objections, and it will therefore be recommended that the petition filed be dis-
missed without prejudice.'
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
connection with the operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
v. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, I shall recommend that it
cease and desist therefrom and take certain affirmative action in order to ef-
fectuate the policies of the Act.
It has been found that the Respondent's activities in connection with the
Committee constituted support of that labor organization in violation of Sec-
tion 8 (a) (2) of the Act. I shall therefore recommend that the Respondent
withhold all recognition from the Committee as the representative of any of its
employees for the purpose of dealing with it concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions of em-
ployment ; and cease giving effect to its agreement of October 7, 1950, or to any
other contract, or to any modification, extension, supplement, or renewal thereof,
entered into with the Committee or any successor thereto.'
It is has been further found that the Respondent, by laying off, failing to re-
instate, or transferring Solomon, Walter, and Reibel, discriminated against them
in regard to their hire and tenure of employment in violation of Section 8 (a)
(3) of the Act. I shall therefore recommend that the Respondent offer to
Solomon' immediate reinstatement to her former or substantially equivalent
position 87 without prejudice to her seniority and other rights and privileges,
and make Solomon, Walter, and Reibel whole for any loss of pay they may
have suffered by reason of the discriminatory action afore-mentioned by pay-
ment to each of them of a sum of money equal to that which she would normally
have earned less her net earnings B8 which sum shall be computed" on a quarterly
basis during the respective periods fixed in the subsection entitled "The alleged
violation of Section 8 (a) (3)." It is also recommended that the Board order
the Respondent to make available to the Board upon request payroll and other
records to facilitate the checking of the amount of back pay due.'
"W. C. Nabors Company, 89 NLRB 538.
85 This is not intended to require that the Respondent vary or abandon the substantive
features of its relations with its employees, established in the performance of the agree-
ment , or to prejudice the assertion by the employees of any rights they may have thereunder.
(Balant & Balant, Inc., 88 NLRB 816.) At the hearing, the Committee maintained that the
agreement is still in effect , and that the Respondent 's withdrawal of recognition in the
strike settlement agreement with the Union on November 15, 1950, was irregular , illegal,
and unwarranted.
Ie Reibel has been reinstated ; Walter disclaimed reinstatement.
87 The Chase National Bank o f the City of New York, Has Juan, Puerto Rico, Branch,
65 NLRB 827.
88 Crossett Lumber Company, 8 NLRB 440. See also Republic Steel Corporation V.
N. L. R. B., 811 U. S. 7.
a F. W. Woolworth Company, 90 NLRB 289.
1/ Ibid.
RADIO INDUSTRIES, INC. 943
It has been further found that the Respondent, by threats, presentation of
benefits, surveillance, interrogation, and directions to employees against en-
gaging in union activities, interfered with, restrained, and coerced its employees
in violation of Section 8 (a) (1) of the Act. I shall therefore further recom-
mend that the Respondent cease and desist therefrom.
The unfair labor practices found herein indicate a purpose to limit the
lawful concerted activities of the Respondent's employees. Such purpose is
related to other unfair labor practices, and it is found that the danger of their
commission is reasonably to be apprehended. I shall therefore recommend a
broad cease and desist order, prohibiting infringement in any manner upon
the rights guaranteed in Section 7 of the Act.
For the reason stated in section III, above, I shall recommend that the
petition filed in Case No. 13-RC-1339 be dismissed without ruling on the objec-
tions and without prejudice to the filing of a new petition.
For the reasons stated in the subsection entitled "The alleged violation of
Section 8 (a) (3)," I shall recommend that the complaint be dismissed insofar
as it alleges the discriminatory suspension of Haglund and the discriminatory
layoff, discharge, or failure to reinstate Haglund, Muscato, McKelvey, Gura,
Kressner , Hansen, Besbekis , Jess, Fleck , Hujar, Bozzelli, Halvorsen, Metzger,
and Caplinger.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 1031, International Brotherhood of Electrical Workers, A. F. L.,
and Employees' Committee, Radio Industries, Inc., are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By contributing support to the Committee, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (2) of the Act.
3. By discriminating in regard to the hire and tenure, and terms and condi-
tions of employment of Emma Solomon, Geraldine Fleck Walter, and Angeline
Reibel, thereby discouraging membership in the Union, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By such support and discrimination, and by threats, presentation of bene-
fits, surveillance, interrogation, and directions to employees against engaging in
union activities, thereby interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices within the mean-
ing of the Act by suspending, laying off, discharging, or failing to reinstate
Mattie E. Haglund, Anna Muscato, Evelynne McKelvey, Katherine K. Gura,
Evelyn Kressner, Christine Hansen, Olga Besbekis, Dorothy Jess, Agnes Fleck,
Gertrude Hujar, Ellen Bozzelli, Mildred Halvorsen, Mary Metzger, and Anna
Caplinger.
[Recommendations omitted from publication in this volume.]