Shakespeare Co.

National Labor Relations Board - Board Decisions

May 14, 1965

152 N.L.R.B. 609 (N.L.R.B. 1965)

SHAKESPEARE COMPANY, ETC . 609
WE WILL NOT interfere with the efforts of Local Union 1 , American Bakery
and Confectionery Workers International Union, AFL-CIO , to negotiate for,
or represent as exclusive bargaining agent, the employees in the bargaining unit
described above.
SALERNO-MEGOWEN BISCUIT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, United
States Courthouse and Federal Office Building , Room 881 , 219 South Dearborn
Street, Chicago , Illinois, Telephone No. 828-7572 , if they have any question con-
cerning this notice or compliance with its provisions.
Shakespeare Company; Shakespeare Products Company and
Darrell P. Grimm . Case No. 7-CA-4662. Hay 14, 1965
DECISION AND ORDER
On October 19, 1964, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. He
further found that Respondents had not engaged in certain other
unfair labor practices alleged in the complaint and recommended that
such allegations be dismissed. Thereafter, the General Counsel and
the Charging Party filed exceptions to the Decision, together with sup-
porting briefs, and the Respondents filed cross-exceptions together
with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial
1 The Trial Examiner refused the General Counsel 's motion to enlarge the complaint
to allege a violation on the basis of a purported no-solicitation rule which appears
presumptively unlawful. In view of the Trial Examiner ' s ruling, however , the matter
was not litigated and Members Fanning and Brown make no findings in this connection.
Member Jenkins disagrees , and would find, that the Trial Examiner erred in not permit-
ting the complaint to be amended , as the Respondents were apprised of the General
Counsel's intention to do so well in advance of the hearing , and as a result Respondent
could not have been prejudiced , he would remand to the Trial Examiner the issue whether
the rule, plainly invalid on its face , may be supported
152 NLRB No. 63.
789-730-66-vol. 152-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,2 and recom-
mendations of the Trial Examiner, except as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondents Shakespeare Company;
Shakespeare Products Company, Kalamazoo, Michigan, their officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so modified :
Substitute the following for paragraph 1 of the Recommended
Order .8
"1. Cease and desist from :
(a) Threatening to remove their plant to Japan if United Steel-
workers of America, AFL-CIO, succeeds in organizing their
employees.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in Section 7 of
the Act."
Add the following indented paragraph after the indented paragraph
in the Appendix.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2In adopting the Trial Examiner ' s conclusions respecting Grimm, we consider it un-
necessary to speculate concerning Respondent ' s retention of Buyce.
3 The telephone number for the Region 7 Office, as given in the last paragraph at the
bottom of the Appendix , is amended to read : Telephone No. 226-3244.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case is before a Trial Examiner of the National Labor Relations Board upon a
complaint issued on June 2, 1964, by the General Counsel of the Board, through the
Acting Regional Director for Region 7 (Detroit, Michigan). The complaint, based
upon a charge filed by Darrell P. Grimm on April 3, 1964, names Shakespeare Com-
pany and Shakespeare Products Company as Respondents. In substance , the com-
plaint alleges that Respondents have violated Section 8 (a) (1) and (3), and that such
conduct affects commerce within the meaning of Section 2(6) and (7), of the
National Labor Relations Act, as amended. Respondents have filed a joint answer
admitting some facts but putting in issue the commission of the unfair labor practices.
Pursuant to due notice a hearing was held before Trial Examiner James V. Con-
stantine on July 15, 16, and 17, 1964, at Kalamazoo , Michigan . All parties were
represented at and participated in the hearing , and were granted an opportunity to
offer evidence , examine and cross-examine witnesses , to present oral argument, and
to submit briefs . At the hearing I denied a motion to amend the complaint , solely as
matter of discretion , on the ground that the facts sought to be included in the com-
plaint were known to, and had been in the possession of the General Counsel prior
to the issuance of the complaint and, therefore, could not be treated as newly dis-
covered following such issuance . Respondent 's motion to dismiss , made when the
General Counsel rested, was denied.
SHAKESPEARE COMPANY, ETC. 611
Briefs have been received from all parties other than the General Counsel.
Upon the entire record in this case, including the stipulations of the parties, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Shakespeare Company, a Michigan corporation, is engaged at Kalamazoo, Mich-
igan, in manufacturing and selling fishing, golf, and archery equipment and related
products. Shakespeare Products Company, a Michigan corporation wholly owned by
Shakespeare Company, is engaged at Kalamazoo, Michigan, in manufacturing and
selling automotive parts and related products. During the fiscal year ending July 30,
1963, each Respondent sold and shipped directly to points located outside the State of
Michigan products valued in excess of $50,000. I find that Respondents are engaged
in commerce within the contemplation of Section 2(6) and (7) of the Act, and that
it would effectuate the purpose of the Act to assert jurisdiction over Respondents by
this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, herein called Steelworkers , is a labor
organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
According to the complaint, Respondents are accused of committing two infringe-
ments of the Act: (1) A threat to employees by a foreman on or about November 20,
1963, "with plant removal" if they selected the Steelworkers as their collective-
bargaining representative, and (2) the discharge of Darrel P. Grimm for union and
other concerted activities. Grimm is a stockmover or chaser.
It is desirable at this point to mention that both Respondents perform their oper-
ations in the same building with the same employees, supervisors, and officials, and
that their operations are integrated. I so find. Further I find that both Respondents
constitute a single employer with respect to this proceeding. They are sometimes
jointly referred to as the Company.
A. Darrel P. Grimm's union activities
Beginning November 5, 1963,1 the Steelworkers officially initiated a drive to orga-
nize the Company's employees by distributing handbills. These were given out a few
times each week at the main gate of the factory and also at the warehouse maintained
on the outskirts of Kalamazoo During the second week of the campaign, employee
Darrel P. Grimm visited the Steelworkers office in the city where he "asked many
questions" of Maurice Halstead, its field representative. Within a few days Grimm
joined the Steelworkers. Thereafter Grimm was designated to solicit union members
at the Company's factory. This did not involve distribution of membership applica-
tion cards. Such cards were attached to the handbills given out, and those desirous of
joining mailed such cards, properly executed, to the Steelworkers. As part of his
union activities, Grimm telephoned Halstead "what was transpiring at the plant" and
also personally called on Halstead a couple times or more a week. Grimm also
attended three or four Steelworkers meetings held for the Company's employees at
Southgate Inn.
On November 19 the Steelworkers filed a petition in Case No. 7-RC-6037 for an
election to represent the Company's production and maintenance employees. In con-
nection therewith the Company issued several circulars to employees urging that they
reject the Steelworkers, asserting, among other things, that (a) the Union, in 1948,
engaged in violance during a strike at the Company's plant, and (b) employee wages
and benefits compared favorably with those in other factories in the area.
As noted above, Grimm visited the Steelworkers' office in Kalamazoo a few times
to ask questions. On one of these occasions he was accompanied by employee Dean
Buyce, another stockmover. Soon thereafter Buyce and Grimm began to interest
other employees in the Steelworkers, often entering into discussions with employees
about the Union. No union membership cards were given out by them. Buyce esti-
mates that he solicited or spoke to about 100 employees concerning the Steelworkers
.and Grimm claimed he talked to about 150 employees.
'All events hereafter described occurred in 1963 except as otherwise noted.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In their discussions, Buyce and Grimm spoke to employees during breaks,2 often
in the restrooms and in the basement lunchroom. This latter is located in the base-
ment and is separated from the remainder of the stockroom only by a picket fence
and wire mesh. Supervisors who went to lunch in the company locker room had to
go through the lunchroom on the other side of the fence to reach their destination.
During this time employees discussed with Grimm and Buyce "pros and cons" of the
union organization campaign then being conducted.
Letta Altland, an employee of Shakespeare Company, is a representative and also
chairman of representatives of the employee representation committee. I find that the
representation committee is a labor organization embraced by Section 2(5) of the
Act and that it represents employees of both Respondents. It is recognized by
Respondents and it has a written a collective-bargaining contract with both of them.
At the request of the committee representatives of departments AA and A, Altland
spoke to the employees thereof against the Steelworkers at two meetings held during
working times. These are more fully described below. Prior to holding such meetings
Altland requested permission therefor from Industrial Relations Director Folk, who
granted it after Altland told him that the two departmental foremen had previously
given her such permission subject to his clearance. Grimm championed the cause of
the Steelworkers at both meeting as narrated below. The evidence of both meetings
was admitted solely to show Grimm's union activity. It was striken on all other issues
as I ruled that Respondents were not shown to have instigated or ratified these
meetings.
The first of the meetings mentioned above was held in early December 1963.
Buyce was present. Twenty or thirty employees of department AA attended. It was
conducted in one corner of department AA. Employees were gathered around
employee Letta Altland, the chairman of an independent union in the plant which was
called the employees' representation or shop committee. Victor Beauchamp, the
department's foreman and supervisor, stood "over by one of the conveyors," some
distance away, at the beginning of the meeting. Beauchamp was not seen thereafter
by employee Buyce while the meeting went on. The conveyors were in the area where
the meeting took place. Grimm happened to be nearby on the elevator. Pointing
directly at Grimm, Letta Altland remarked "there's another one that thinks they are
going to get thirty cents on the hour." 3 Letta also told the assembled employees
that everyone would have to vote "in this election," and that it would take halt of
those voting to win the election. Grimm disputed this and got into an argument with
Letta over this, over a comparison of the Company's current collective-bargaining
contract (with the shop committee) with that to be proposed by the Steelworkers, and
over the merits of the Steelworkers. No members of management attended.
The meeting of employees, which lasted about an hour, was held after Letta Alt-
land, on behalf of employees, asked Foreman Beauchamp to hold it on company time.
She told him that its purpose was "to discuss shop and union." He granted their
request. He saw Grimm there. Although Beauchamp was in the department during
the entire meeting, and for 10 to 15 percent of that time was situated within hearing
distance of the proceedings, he left the area "off and on." During the times he came
within hearing distance or close to the group, it was only because tasks took him
nearby to obtain "parts or something else." However, Beauchamp did not participate
in the meeting, did not seek to overhear what was said, and did not hear any conver-
sations relating to unions.
The next day a meeting of employees of department A was held in department A.
Its foreman and supervisor is Walter Gregorek. Letta Altland spoke at this meeting
but "another representative", Bill Cowles, also "helped her speak." Approximately 30
employees attended. Foreman Gregorek was seen "at the department" at the begin-
ning of this meeting and "once later on" by employee Buyce. A representative of the
shop committee, employee Bill Cowles, gave his "views and experience" about
unionism. Among other things he mentioned that he had been a union organizer and
that he was now against a union because he did not think the employees would "pull
together for a union." During the course of the meeting Darrel Grimm entered.
2 Buyce testified that he and Grimm were spending an "unusually long time" on the
breaks in the restrooms during the organizing campaign, that he was disciplined there-
for, and that such discipline was fair. This is described more fully elsewhere in this
Decision.
3This Is Buyce's version. Grimm testified that Letta said, "There goes another fellow
that thinks that the union's going to get him 30 cents an hour." I credit Buyce's and
not Grimm's account of this particular incident, if material
SHAKESPEARE COMPANY, ETC. 613
Grimm "at length" made some remarks espousing the Steelworkers while both Letta
Altland and the other "representative ", Cowles, sought to convince the employees
that an outside union would not do the Shakespeare Company any good. Buyce also
advocated the cause of the Steelworkers . No members of management attended.
This meeting lasted about a half hour.
On December 11, 1963, employee Buyce received an oral reprimand from Produc-
tion Superintendent Vanderbrink for taking an excessive number of breaks. This was
made in the presence of Assistant Production Manager Oostveen . With Buyce on
most of these breaks was Darrel Grimm. They often solicited union membership
during the breaks. Buyce did not consider the reprimand unfair.
B. Darrel P. Grimm's work habits
Grimm started to work for Shakespeare Company in June 1962 , at the rate of $1.60
an hour as a stockmover or handler . At that time he was told that raises were not
automatic but were based on merit . Four or five months later he received a merit
raise of 5 cents an hour . Early in 1963 he received a 6-cent-an -hour raise pursuant to
a general increase given to all employees . Shortly before December 11, 1963, his pay
had become $ 1.81 an hour as a result of two additional 5-cent-an-hour raises, which
he requested . His foreman is James Oostveen , who is also assistant production
manager. Oostveen often assured Grimm that if Foreman Weessies got on Grimm's
back, he, Grimm , should tell Weessies that he was not to take orders from him.
Grimm spent more than half his working time on the first floor.
Pursuant to an agreement between the Company and the shop committee , produc-
tion employees are allowed two breaks a day: 15 minutes in the morning and 7
minutes in the afternoon . Grimm observed that the employees on the first floor "took
more [breaks ] than the agreement allotted them," some taking from one to three
additional morning breaks . However, when Grimm was hired he was told to take
only one break in the morning , i.e., at the time when the coffee wagon came around.
Soon he began taking them more often . In March 1963 , however, Supervisor Oost-
veen cautioned Grimm that the latter was smoking too much upstairs and that Grimm
should confine his smoking to the downstairs (i.e., on the first floor or basement) as
desired but within reason . It was left to his judgment as to what was reasonable .4
Grimm replied that he agreed he was spending too much time smoking upstairs with
other employees.
One day in early April 1963, about 4 p.m., Production Manager William Vander-
brink observed Grimm "sprawled out all over the restroom floor" on the third floor.
I do not credit Grimm's contrary testimony . This lasted 15 to 20 minutes at a time
when the door was opened. At that time Grimm was working overtime , his regular
day having ended at 3:30 p.m. The next day Vanderbrink observed Grimm standing
in the same restroom , the door being again open, for about a half hour from about
3.35 p.m to about 4 : 15 p.m. Again , Grimm was working overtime. Vanderbrink
called this to the attention of Supervisor Oostveen and directed Oostveen to dis-
continue Grimm's overtime and to reprimand Grimm . Oostveen directly supervises
the stockmovers, six in all. Oostveen communicated Vanderbrink 's complaint to
Grimm and, in addition , insisted that Grimm refrain from smoking or taking breaks
on the upper floors. Previously to this, early in 1963, Oostveen had criticized Grimm
for spending too much time on the third floor.
About May 21 , 1963, Vice President Koedner spoke to Oostveen about Grimm. As
a result, Oostveen immediately escorted Grimm to the office of Industrial Relations
Director Folk. A written reprimand 5 was there handed to Grimm. I do not credit
Grimm's contrary testimony that he never received a written warning slip or repri-
mand. At the same time ( 1) Folk warned Grimm that his work habits were poor
because he took excessive time in the restroom and insisted this had to be corrected,
and (2 ) Oostveen deprived Grimm of overtime work for a period of 2 or 3 weeks.
At this meeting Folk, in the presence of Supervisor Oostveen , warned Grimm that
he, Grimm, was spending too much time upstairs , and insisted that Grimm "stay
away from upstairs " because "somebody was going to get hung up there in the third
floor restroom ," Folk also mentioned that the Company had a list of employees
A Grimm testified that Smith , another stockmover or handler , also took as many smok-
ing breaks as he , but that Boyce took "very few" breaks.
5 This slip , dated May 21, 1963 , alleges the "nature of the complaint " to be "poor work
habits This employee was talked to lm [sic] my office about spending too much time
visiting with other employees and spending to [sic] much time in the restroom." It is
signed by C L. Folk
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
using the third floor restroom and how much time each spent in there.° Sometime
later Supervisor Oostveen told Grimm that Production Superintendent Vanderbrink
had observed Grimm smoking the night before (during overtime) in the third floor
restroom and was "teed off over [this] incident."
Grimm once was told by Jonathan Sherman, foreman of the buffing department,
that the Steelworkers would not do any good and it was a waste of time and money to.
talk about it. This occurred in a restroom during a break when other employees
were also present. Grimm, however, stoutly espoused the cause of unionism.
C. The discharge of Darrel P. Grimm
The Company's plant consists of a basement and four floors. Grimm was employed
as a stockchaser or mover, i.e., to move stock from department to department in the
entire building except to second floor.? This requires him to go continually from
department to department. In doing so, Grimm decides as a matter of judgment
when to take a break from his tasks. This varies with the condition of production
schedules. Such breaks are taken about twice a day by production employees; one
for about 15 minutes in the morning, and another for a lesser time in the afternoon.
Stockchasers are allowed to take as many as they want, within reason, as long as they
keep up with their work.
On December 11, 1963, as a result of a complaint by Foreman Weessies, Supervisor
Oostveen again brought Grimm to Industrial Relations Director Folk's office.
Weessies had handed Oostveen a paper reading
8:45 - 9:15
10:15 - 10:30
11:00 - 11:15
11:50 - 12:00
and told Oostveen that he personally observed Grimm during those times absent
from his job on December 11, 1963. Weessies works under Oostveen. Weessies had
prepared this written account as a result of a conversation several weeks before with
Oostveen concerning Grimm's work habits.8 In this earlier conversation Weessies
told Oostveen that Grimm was taking too many breaks and for too long a period in
the basement locker room. Unwilling to accept generalizations, Oostveen told
Weessies that he would consider only documented compilations of Grimm's excessive
breaks "to proceed in the matter further." However, when Production Manager
Vanderbrink and Vice President Koedner complained of Grimm's work habits to
Oostveen, the latter did not ask for a written report thereof because these men were
Oostveen's superiors. Weessies worked under, and not over, Oostveen.
It was about 2:30 p.m., on December 11, when Supervisor Oostveen directed
Grimm to accompany him to Industrial Relations Director Folk's office, as above
noted. Folk read from the above-described sheet of paper on which were recorded
"the times that [Grimm] had spent that morning in the restroom." This slip showed
that Grimm took four breaks a totaling 70 minutes. Continuing, Folk observed that
Grimm spend too much time in the restrooms and suggested that Grimm seek employ-
ment elsewhere. Grimm replied that he admitted taking "those breaks" but defied
Folk and Oostveen to say that he took a break in the afternoon. When Grimm asked
both if they were dissatisfied with his work, they replied in the negative but insisted,
however, that he just was spending too much time away from his job. He was dis-
charged at quitting time, 3:30 p.m.
Grimm testified that he had a premonition that his visits to the restroom would be
observed and recorded because Foreman Weessies, who disliked him, threatened to
"burn [Grimm's] ass," during an argument in early December 1963. Weessies also
said "If you don't think I can, well watch me." In early July 1963, Grimm worked
a few days under Foreman Weessies taking inventory. On several occasions prior to
this, Weessies had made known to Grimm that Grimm's work habits were not good.
O Grimm testified that about 2 months later Oostveen told Grimm that Grimm's work
had improved and he should "keep it up." I credit this testimony.
7 The second floor houses Shakespeare Products Company All other floors and the
basement are used by Shakespeare Company.
8 Weessles had developed a dislike for Grimm because Weessies believed that Grimm
"rode a gravy train" both before and during the summer inventory in July 1963, in that
Grimm, in the opinion of Weessies, took excessive time on breaks Grimm worked briefly
under Weessies on that inventory
9 Grimm testified that he talked union with employees in the restroom on these four
occasions.
SHAKESPEARE COMPANY, ETC. 615
On this inventory job Grimm did not always appear for work promptly at 7 a.m., the
starting time, a practice which irritated Weessies.
Charles Lay, a stockman, spends two-thirds of his working time in the stockroom,
which is located in the basement. According to him, at no time was he informed
whether the Company had any regulations concerning smoking breaks. Nevertheless
he testified that "you are allowed to smoke" only on the dock and in the locker room
and restrooms. It was his practice, and that of the other smoker in the stockroom,
however, to take breaks at will to smoke. Yet neither he nor the other smoker was
ever reprimanded for this. However, the evidence does not disclose an abuse of this
privilege by these two stockmen. An employee in his department who does not
smoke, he noticed, takes fewer breaks.
Grimm once told employee Biiyce that he, Grimm, was directed to take his breaks
downstairs in the basement rather than on the third floor, and that Grimm was orally
reprimanded therefor. Grimm also told Buyce that this discipline which he, Grimm,
received was fair or "all right."
Shortly after Grimm was discharged, the Company assembled its employees at the
Kalamazoo Holiday Inn. In addition to employees, all foremen and assistant fore-
men attended. Vice President Balz and one Willis, a management official, were
present. The Company's labor relations expert also attended and spoke. He is not
otherwise identified in the record. During the meeting Balz asked whether any
foreman had any questions as to how to handle employees. Foreman Walter
Gregorek then asked Balz what a foreman could do about agitators in his deparment.lo
Balz, Willis, and the labor relations expert also discussed the organizing by the
Steelworkers, and spoke against that Union. In his remarks the labor relations expert
advised those present "not to antagonize or threaten employees over the union."
D. The threat to move the plant
On one occasion in late November while an employee was discussing unionism with
Grimm in the locker room with other employees present, the foreman of the plating
group, Julius, happened to be present. Apparently Julius was invited to join in the
discussion," and did. Grimm upheld and Julius argued against the Steelworkers.
Soon Foreman Corstrange "got into this discussion" and took Julius' side. Among
other things, Corstrange referred to past violence of the Steelworkers at the plant at
a time when it was recognized there and predicated it would happen again if they
came in. In a short while Stock Department Foreman Weessies entered the room.
After listening for about a minute, Weessies volunteered the statement that Balz
would put a padlock on the door and would move the plant to Japan if the Union
came in, or that the Company can make reels cheaper in Japan if the Union comes in.
Asserting that Balz was a little smarter than some people believed, Grimm replied
that he doubted that the plant would be moved to Japan if the Steelworkers organized
it. Employee Earl, who was present, remarked that he did not think Balz would
move the plant.12 At this point Weessies left after reminding Earl and Grimm "your
butt's out a mile." 13 I do not credit Weessies' version of this incident. In this con-
nection I have not overlooked the contradictions in the General Counsel's evidence
as to which employees were present. This latter affects credibility, I realize, but I
have relied heavily on (1) their consistency in narrating and recalling the content
of the language used by Weessies, and (2) the fact that Weessies admittedly men-
tioned Japan as a place where reels are made cheaper and told Grimm his butt was
out a mile 14 Moreover, I have taken into consideration the failure of Foremen
Julius and Corstrange to testify confirming Weessies.
E. Concluding findings and discussion as td the discharge of Grimm
In my opinion the evidence points to the conclusion, and I find, that Grimm was
not discharged for union or other protected activity. Further, I find that Grimm was
released from his employment for cause as envisioned in Section 10(c) of the Act.
"The General Counsel contends "agitators" alludes to Grimm. I do not so find.
11 Julius had, on other occasions before this, discussed the advent of the Steelworkers
with Grimm.
12 On cross Earl testified that he personally did not think Balz would transfer opera-
tions to Japan because such a rumor often was heard in the plant and he did not take it
seriously.
13 Earl also testified that Weessies occasionally was in the stockroom while Grimm
discussed the Union with him and the other employee there, and that Weessies "must have
heard" these discussions I do not find that Weessies overheard these. H C. Ladd and
Son, Inc, 148 NLRB 30, is distinguishable.
1s To this extent Weessies corroborates the General Counsel's witnesses
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such cause principally centered around Grimm's abuse of the break privilege accorded
to him by his employer. A contributing cause was the intense dislike of Grimm by
Foreman Weessies. I am persuaded, and find, that this dislike of Weessies was
based upon Grimm's work habits and neither flowed from nor was motivated by any
union or other protected activities in which Grimm engaged. If material, I further
find that the Company had actual knowledge of Grimm's actions on behalf of the
Steelworkers, and that the defense that management was unaware of Grimm's pro-
Steelworkers sympathies and activities is not well taken.
The foregoing ultimate finding of discharge for lawful cause is based upon the
entire record and the following elements which I find as facts:
1. Admittedly, Grimm's work habits, in regard to breaks, caused concern to
Respondents long before the advent of the Steelworkers. Grimm acknowledged that
he had been criticized for his break practices, prior to the union's organizing cam-
paign, to employee Buyce, and that such criticism was deserved and fair. He also
told management their reprimand of him was fair. While I find, as contended by the
General Counsel and Grimm, that Grimm improved his ways and his conduct became
above reproach for awhile thereafter,15 I further find that he lapsed into his former
objectionable habits in late October or early November 1963, and that he persisted
in them thereafter until he was discharged December 11. It is not necessary to
enumerate the times when Grimm took an exceptional number of breaks; it is suffi-
cient to mention those in the morning of December It. As noted above, four were
indulged in for a total of 70 minutes on that morning. In fact, Grimm testified that
during the Steelworkers campaign he took "quite a few more" breaks than had been
his custom. It is therefore not surprising that Weessies, who developed an aversion
for Grimm, commenced to observe this relapse in Grimm's work habits after October
1963.
2. Weessies was out to "get" Grimm, and I so find. It is unnecessary to determine
whether Weessies was warranted in disliking Grimm or whether such antipathy was
unjustified. The fact is that Weessies abhorred Grimm and Weessies would not be
content until he succeeded in banishing Grimm from the plant. However, I find
that Grimm's union activities did not play any part in the animosity of Weessies
toward Grimm, and that only Grimm's work habits generated such animosity. If
material, I find that Weessies asked for the discharge of Grimm and that Respondents,
on December 11, granted that request. Since the request was neither predicated upon
an unlawful discriminatory intent nor prompted by antiunion motives, I find that it
is not proscribed by the Act. It is significant also that Grimm did not protest that he
was being fired for his union activity, but rather acquiesced in the reason assigned for
his dismissal. Hence I do not find that the asserted reason for Grimm's discharge,
i.e., his work habits, served as a pretext to cloak a discharge for union activities.
3. In making the foregoing findings, I have not overlooked the so-called union
animus of the Company, but I find that such animus is not casually connected 16
with the discharge of Grimm because no antiunion considerations contributed to the
decision leading to the discharge. Cf. Majestic Weaving Co., Inc., of New York, 147
NLRB 859. In other words, it is not enough that an employer opposes unions; it
must additionally be shown that such dislike is connected proximately with the unfair
labor practice sought to be proved. N L R B. v. The Citizen-News Company, 134
F. 2d 970, 974 (C.A. 9); Lasko Metal Products, Inc., 148 NLRB 976. "An employer's
conduct is not unlawful, however, merely because it results in the termination of
the employment of a union member." Pioneer Photo Engraving, Inc., 142 NLRB
1099, 1101. I find that neither Weessies nor any other supervisor of Respondents
disliked Grimm because he belonged to, sympathized with, or engaged in activities for,
any union. Park Edge Sheridan Meats, Inc., et al., 146 NLRB 289, is distinguishable.
4. Nor have I disregarded the fact that employee Buyce was merely reprimanded
for identical conduct for which Grimm was expelled. But this disparity of treatment
does not compel the conclusion that Grimm was discharged for his union activities.
11 Grimm testified that he became very careful about his work because he was afraid
be might be discharged.
16 Merely because an employer expresses an opinion against unions should not brand
him as a violator of the Act Cf. N L R.B. v. Audio Industries, Inc, 313 F. 2d 858
(C.A. 7). Otherwise Section 8(c) and the constitutional guarantee of free speech
would become meaningless. Union Carbide Corp v. N.L.R.B., 310 F. 2d 844, 845 (C.A. 6).
Nevertheless, the Board has held that expressions of hostility against unions may be used
as a link in the chain of finding violations of the Act. Contra: N L.R.B. v. Beaver
-Valley Canning Company, 332 F. 2d 429, 432 (C A. 8), I am bound to follow Board
precedents. Iowa Beef Packers, Inc., 144 NLRB 615; Insurance Agents' International
Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773.
SHAKESPEARE COMPANY, ETC. 617
This is so for at least two reasons: (a) Buyce was substantially as active as Grimm in
promoting and espousing the organizing movement of the Steelworkers at the plant
and, besides Grimm, was the only other employee so engaged. If the Company
intended to crush that movement by getting rid of the leaders thereof, it would have
fired Buyce also. Notwithstanding this, Buyce was retained. (b) Buyce had not
abused the break privilege until December 11, when he and Grimm together took four
breaks totaling 70 minutes before noon. Hence Buyce was not encumbered with a
history of taking excessive breaks. In fact, Buyce had in the past taken very few
breaks, so that he became regarded as a hard worker and was promoted thereafter.
Accordingly, it is reasonable to expect-and I find-that he deserved more lenient
treatment for this single dereliction in duty, which was his first offense.
5. The fact that other employees than Grimm and Buyce who took excessive breaks
were not reprimanded or disciplined does not detract from the above conclusion.
The evidence fails to show that Respondents were aware that such employees misused
their break privileges, assuming this to be a fact. Hence it has not been established
that Grimm has been the victim of intentionally disparate treatment because of his
union activities.
6. Nor have I overlooked the raises in pay given to Grimm in November 1963.
Although employees who are given merit increases generally are not shortly thereafter
fired, it does not follow that a merit increase guarantees continued employment. I
find that Grimm was discharged for misconduct occurring after the above increases
took effect.
7. It seems desirable to keep in mind that the burden of proof rests upon the
General Counsel to establish that Grimm's employment was unlawfully terminated
(Rubin Bros. Footwear, Inc., etc., 99 NLRB 610, 611), and that being a union member
or sympathizer neither insulates an employee against discharge for cause nor insures
retention of employment. N.L.R.B. v. Birmingham Publishing Company, 262 F. 2d
2, 8-9 (C.A. 5). In this connection I have not overlooked the familiar principle
that "the mere existence of valid grounds for a discharge is no defense to a charge
that the discharge was unlawful...:. N.L.R.B. v. Symons Manufacturing Co., 328
F. 2d 835, 837 (C.A. 7). But it is not operative on the facts found herein.
F. Concluding findings and discussion as to the threat to remove the plant
As narrated above in section III D, I have accepted the General Counsel's account
of the remarks uttered by Foreman Weessies to employees in late November in the
locker room and have rejected Respondents' version. Hence I find that Weessies
told employees that Balz would put a padlock on the door if the Steelworkers came
in, or that the Company could make reels cheaper in Japan if the Steelworkers came
in. Either statement, in my opinion, constitutes a threat to move the plant to Japan
if the Steelworkers succeeded in organizing the employees, and I so find. It follows,
and I find, that this threat transgresses Section 8(a) (1) of the Act which makes it an
unfair labor practice to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in Section 7 of the Act.
This result is not affected by the fact that the employees present did not believe
that Balz would fulfill this threat, or that they did not take Weessies too seriously.
For the vice of the language used springs from the tendency to inhibit or deter
employees from exercising statutory rights regardless of its ultimate realization or
fruition. Conduct which discourages union activity need not be successful to con-
stitute restraint or coercion. Murray Envelope Corporation of Mississippi, 130
NLRB 1574, 1576; Local 636 of the United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (Detroit Assn. of Plumbing Contractors) v. N.L.R.B., 287 F. 2d 354, 360
(C.A.D.C.); N.L.R.B. v. Wilbur H. Ford, d/b/a Ford Brothers, 170 F. 2d 735, 738
(C.A. 6). Accordingly, the failure of employees to cease their union activities is not
fatal in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activity of Respondents found to constitute an unfair labor practice, as set forth
in section III, above, occurring in connection with their operations described in sec-
tion I, above, has a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tends to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondents have engaged in a certain unfair labor prac-
tice prohibited by Section 8 (a) (1) of the Act, it will be recommended that they cease
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and desist therefrom and that they take specific affirmative action, as set forth below,
designed to effectuate the policies of the Act. Such violation, however, is isolated
and does not demonstrate an intent by Respondents to disregard the legislative will
embodied in the Act. Hence neither justification nor necessity exists for extending
the scope of the order to cover (a) either like or related conduct or (b) other prohibi-
tions enjoined by the Act. Cf. Communication Workers of America, AFL-CIO and
Local No. 4372, Communications Workers of America, AFL-CIO (Ohio Consoli-
dated Tile Co.) v. N.L.R.B., 362 U.S. 479.
Upon the basis of the foregoing findings of fact and of the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. Respondents are employers engaged in commerce as defined in Section 2(6) and
(7) of the Act.
3. By threatening to remove its plant to Japan if the Steelworkers succeeded in
organizing their employees, Respondent has engaged in an unfair labor. practice
within the meaning of Section 8 (a) (1) of the Act.
4. Said unfair labor practice affects commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondents have not committed any other unfair labor practices ascribed to
them in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Respondents, Shakespeare Com-
pany; Shakespeare Products Company, Kalamazoo, Michigan, their officers, agents,
successors , and assigns , shall:
1. Cease and desist from threatening to remove their plant to Japan if United
Steelworkers of America, AFL-CIO, succeeds in organizing their employees.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its plant in Kalamazoo, Michigan, copies of the attached notice marked
"Appendix." 17 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall, after being signed by a duly authorized representative of Respondents,
be posted by them immediately upon receipt thereof, and be maintained by them for
a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily affixed. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 7, in writing, within 20 days from the
date of receipt of this Decision,ls what steps Respondents have taken to comply
herewith.
It is further recommended that the complaint be dismissed in all other respects.
It is finally recommended that, unless Respondents shall within the prescribed
period notify the said Regional Director that they will comply, the Board should
issue an Order requiring Respondents to take the foresaid action.
17If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of
receipt of this Order, of the steps which Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT threaten to move our plant to Japan if United Steelworkers of
America, AFL-CIO, succeeds in becoming the exclusive bargaining agent of our
employees.
ROYAL PLATING AND POLISHING CO., INC. 619
All our employees are free to become or remain, and to refrain from becoming or
remaining, members of United Steelworkers of America, AFL-CIO, or any other
labor organization, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8(a) (3) of the Act.
SHAKESPEARE COMPANY; SHAKESPEARE PRODUCTS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
.and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330,
if they have any question concerning this notice or compliance with its provisions.
Royal Plating and Polishing Co., Inc. and Metal Polishers,
Buffers, Platers and Helpers International Union , Local 44,
AFL-CIO. Case No. 02-CA-1640. May 14, 1965
SUPPLEMENTAL DECISION AND ORDER
AMENDING ORDER
On August 27, 1964, the National Labor Relations Board issued its
Decision and Order in this case.' In its Decision the Board concluded,
on the basis of the findings of fact set forth in its Decision and more
fully set forth in the Trial Examiner's Decision, that Respondent vio-
lated Section 8(a) (5) and (1) of the National Labor Relations Act,
as amended, "by failing to disclose to the Union, while it and the Union
were engaged in contract negotiations, its intention to shut down opera-
tions at its Bleeker Street plant, and by unilaterally, and without notice
to the Union, closing down the plant." The Board's Order required
Respondent to cease and desist from the unfair labor practices found
and to take certain affirmative action designed to remedy the unfair
labor practices.2 On April 21, 1965, the United States Court of
Appeals for the Third Circuit, acting upon a motion of the Board to
remand the case for reconsideration, ordered that the case be remanded
to the Board for the limited purpose of considering whether, and to
what extent, the decision by the Supreme Court of the United States in
N.L.R.B. v. Darlington Mfg. Co., 380 U.S. 263, affects this case. On
1148 NLRB 545.
2 Affirmatively, the Board's Order required Respondent to create a preferential hiring
list for use in the event the Respondent voluntarily resumed operations containing the
names of all employees laid off between April 30 and July 1, 1963, i.e., the Bleeker plant
employees, to bargain with the Union upon request in the event Respondent resumed
operations, and to make Bleeker plant employees whole for any loss of pay they may
have suffered by reason of the unfair labor practices by paying to each of them a sum
of money equal to the amount he would have earned as wages from the date of his
termination of employment on or after April 30, 1963, to the time he secured equivalent
employment elsewhere, but in no event past the date of December 4, 1963, the date
Respondent was required to vacate the Bleeker Street premises under its agreements
concerning the sale of such premises.
152 NLRB No. 76.