The Bin-Dicator Co.

National Labor Relations Board - Board Decisions

Jul 31, 1963

143 N.L.R.B. 964 (N.L.R.B. 1963)

964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, as authorized in Section 8(a) (3) of the Act, as amended by the Labor-
Management Reporting and Disclosure Act of 1959.
GRANADA MILLS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from 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, 1506
Ponce de Leon, Stop 221/2, Santurce, Puerto Rico, 00910, Telephone No. 723-3200,
if they have any question concerning this notice or compliance with its provisions.
The Bin-Dicator Company and Floyd Hanger
The Bin-Dicator Company and John Masinick . Cases Nos. 7-CA-
3918 and 7-C.4-3918(2). July 31, 1963
DECISION AND ORDER
On May 3, 1963, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the attached Intermediate Report. Thereafter,
the General Counsel and the Respondent filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner except as modified herein.'
We affirm the Trial Examiner's finding that Floyd Hanger was dis-
criminatorily discharged on September 12, 1962, because of his known
activity on behalf of, and membership in, the Union. The Trial Ex-
aminer recommended that Hanger be denied reinstatement and back-
IIn the absence of exceptions thereto, we adopt pro forma the Trial Examiner's state-
ment that the conversation between Foreman Hoenicke and employee Stone, which oc-
curred in a bar 2 or 3 weeks after the election, was noncoercive in character. We note
and hereby correct the Trial Examiner's inadvertent error in referring to the veiled threat
by Grostick on September 12, 1962, as made to Cahoon rather than to Stone
2 The General Counsel excepted to the Trial Examiner's apparently inadvertent failure
to recommend specifically that John Masinick be awarded the general wage increase which
the Trial Examiner found had been discriminatorily withheld from him on September 12,
1962 We find merit in the General Counsel's exception. Accordingly, we shall modify
the Trial Examiner's recommendations by ordering the Respondent to grant to Masinick
the wage increase
143 NLRB No. 94.
THE BIN-DICATOR COMPANY 965
pay because during the discharge interview and shortly thereafter
while preparing to leave, Hanger threatened Assistant General Man-
ager Grostick and General Foreman Sweet with physical injury. The
General Counsel excepted to this recommendation . We find, in agree-
ment with the General Counsel, that the Respondent's unlawful con-
duct provoked Hanger's verbal explosion and caused the loss of
self-control exhibited at that time. In these circumstances, we find
that Hanger's threats did not exceed the bounds of resentment which
would normally be aroused in a moment of " animal exuberance." 3
Such conduct does not warrant denial of reinstatement. Accordingly,
we shall order that Hanger be reinstated with backpay including all
the benefits he would have received but for the discrimination against
him.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications.
1. Section 2(a) and (b) of the Order shall be changed to read as
follows :
(a) Offer Floyd Hanger immediate and full reinstatement to
his former or substantially equivalent position , without prejudice
to his seniority or other rights and privileges, and make him whole
for any loss of earnings , including all general increases in wages,
he may have suffered by reason of the discrimination against him;
and grant to John Masinick the general wage increase effective 'as
of the date it was discriminatorily withheld from him and make
him whole for any loss of earnings suffered by reason of the dis-
crimination against him . The backpay ordered herein shall be
computed in accordance with the other conditions set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the amount of
backpay due, including the wage increase, and the interest thereon,
under the terms of this Order.
2. The eighth indented paragraph in the notice shall be changed to
read as follows :
WE, WILL offer to Floyd Hanger immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges; grant to
John Masinick the general wage increase effective as of the date
it was discriminatorily withheld from him ; and make Floyd
3 Product Engineering and Manufacturing Corp., 133 NLRB 1375, 1392 , footnote 34
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanger and John Masinick whole for any loss of pay, including
the general increase in wages, by reason of the discrimination
against them.
3. The following note shall be inserted below the signature line in
the notice to read as follows :
NOTE.-AVE WILL notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Se-
lective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These cases, Cases Nos. 7-CA-3918 and 7-CA-3918( 2), were brought under
Section 10 (b) of the National Labor Relations Act, as amended ( 61 Stat . 136, 73
Stat . 519), herein called the Act, on charges filed by employees Floyd Hanger, and
John Masinick on September 24, 1962 , and November 19, 1962 , respectively, against
Respondent The Bin -Dicator Company , herein called Respondent . On November 28,
1962, General Counsel consolidated the cases , and issued a complaint alleging that
Respondent since on or about April 24, 1962 , in violation of Section 8(a) (1) of the
Act, has interfered with , restrained , and coerced employees with respect to their
rights under Section 7 of the Act, and on or about September 12, 1962, in violation of
Section 8 (a) (3) and (1 ) of the Act, discriminated against its employees in regard to
their hire or tenure of employment because of union activity and membership
by discharging employee Floyd Hanger, and reprimanding employee John Masinick
and denying him a wage increase , and by refusing to reinstate Hanger and to grant
Masinick the wage increase . Respondent by answer filed December 7, 1962, denied
these allegations.'
A hearing on complaint and answer was held before Trial Examiner James F. Foley
on February 13 and 14, 1962 , in Port Huron , Michigan. General Counsel and
Respondent were represented by counsel . They and the Charging Parties were
afforded an opportunity to be heard, make oral argument , and file briefs . General
Counsel and Respondent waived oral argument , and filed briefs after the close of
the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation , with its principal office and sales depart-
ment in Detroit , Michigan , and its manufacturing plant in Port Sanilac , Michigan, is
engaged in the manufacture , sale, and distribution of bin-measuring devices and re-
lated products . Respondent 's manufacturing plant at Port Sanilac , Michigan, is the
only facility of Respondent involved in this proceeding. During the calendar year
1 Respondent in its answer also contends that the charges filed by Hanger and Masinick
were not prepared by them, and , therefore, the complaint is not based on proper charges
filed within the required 6-month period and should be dismissed ; the allegations in the
charges of Interference with, restraint , and coercion in violation of Section 8(a)(1) are
not broad enough to encompass the allegations of such Illegal conduct in paragraph 9 of
the complaint, and therefore , paragraph 9 of the complaint should be stricken or dis-
missed ; and the allegations in paragraph 9, and in paragraph 10 dealing with the dis-
criminatory discharge of Hanger and discriminatory treatment of Masinick are not prop-
erly pleaded, and, therefore , the complaint should be dismissed , as it does not apprise the
Respondent of the issues in the case.
I find these defenses to be without merit. The charges filed by Hanger and Masinick
are their charges, are adequate and not fatally defective. They need not to be as detailed
as the complaint . They merely initiate the proceedings . The investigation that follows
their filing permits more comprehensive allegations in the complaint . The complaint ade-
quately apprised Respondent of the issues that were raised at the hearing, and enabled it
to present the well-prepared defense that the hearing and the record disclose.
THE BIN -DICATOR COMPANY 967
1961, Respondent purchased sheet steel and copper , wire mesh , iron and aluminum
castings , steel rods , and other materials with a value in excess of $120 ,000, which
were transported and delivered to its plant in Port Sanilac, Michigan , directly from
points located outside the State of Michigan . During the calendar year 1961, Re-
spondent sold products valued in excess of $995,000 , which is manufactured at its
Port Sanilac plant and distributed and transported from this plant directly to points
located outside the State of Michigan . I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act, and that assertion
of jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 339, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background evidence
As previously stated , Respondent 's principal office and sales department are located
in Detroit, Michigan, and its manufacturing plant, herein called Respondent's plant,
is located in Port Sanilac, Michigan . Respondent manufactures bin-measuring de-
vices and controls identified as the Bin-Dicator, Roto Bin-Dicator, Auto Bin-Dicator,
and Roto Guard. Respondent's officers are a president who is also treasurer, and a
secretary who is also the Respondent 's general counsel . George Schemm is the
president and treasurer and also the general manager. He is located at Respondent's
office in Detroit and occasionally visits Respondent 's plant. Norman Grostick is in
charge of Respondent's plant and has the title of assistant general manager . Respond-
ent's plant has an office, a toolroom, a machine shop, and an assembly area. At
Respondent's plant are employed 18 rank-and-file production employees, an office
secretary , an engineer , an assistant to the assistant general manager, a general fore-
man, and a foreman. The general foreman and foreman, like the 18 rank-and-file
employees, are hourly rated. The assistant general manager, the assistant to the
assistant general manager , the engineer, and office secretary receive a salary.
Assistant General Manager Grostick ; Judson Thurston, the assistant to the assistant
general manager; Yee Lee, the engineer ; and the office girl or secretary are located in
the office. In the assembly area are located the machines operated by four rank-
and-file employees for the assembly of Respondent's four products. In a toolroom
are located machines and equipment operated by four employees for the making
of tools to be used in the manufacture of Respondent 's products. The toolroom and
assembly area employees are directly under the supervision of Donald Sweet, who is
the general foreman . In a machine shop are located 10 employees who operate ma-
chines and equipment for the making of parts that are assembled into Respondent's
products in the assembly area. These 10 employees also include those who perform
the related operations of painting and welding. The 10 employees are under the
direct supervision of Foreman George Hoenicke . Hoenicke is under the supervision
of General Foreman Sweet, although as stated later he can make certain recommenda-
tions direct to Assistant Manager Grostick . Sweet is in general charge of all the
production aspects of Respondent 's plant operation.
Prior to September 12, 1962 , a janitor was employed at Respondent 's plant. He
was Floyd Hanger, a Charging Party, who General Counsel contends was discrimina-
torily discharged on that date . Respondent contends he was discharged for cause
on that date. The specific reasons given by Respondent were repeated absences
without calling in or without authorization , and failure to do his work. Respondent
contends that at the time a decision was made to discharge Hanger , it was also its
decision to discontinue the employment of a janitor and to distribute his duties among
other plant employees . On September 12, 1962 , Respondent's rank-and-file em-
ployees, with the exception of Hanger and John Masinick , were given a 10-cent an
hour wage increase . General Counsel contends that Masinick , a Charging Party, was
discriminatorily reprimanded and denied the increase . Respondent, on the other
hand , contends that he was reprimanded and denied the increase because he failed to
follow the instructions of or cooperate with Donald Sweet , his supervisor.
Union organizational activity was begun by Respondent's plant employees in
April 1962. On June 11 , 1962 , the Union and Respondent consented to the holding
of a Board-conducted election . The Board-conducted election was held at Respond-
ent's plant on June 28, 1962 . Twenty-one ballots were cast . Foreman Hoenicke and
General Foreman Sweet voted, but their votes were challenged by the Union.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Twelve unchallenged votes out of a total of 21 were cast against the Union so the
challenges to Hoenicke's and Sweet's votes were not disposed of, as their disposi-
tion could not affect the outcome of the election. The Union received only seven
votes. The Union filed 10 objections to the conduct of the election. On August 17,
1962, the Regional Director found that each of the objections was lacking in merit,
and failed to raise any substantial or material issues related to the conduct of the
election . On the same date, he certified that on June 28, 1962, a majority of votes
cast were not cast for the Union, and that no union was the exclusive bargaining
representative of Respondent's employees.
In its objections Nos. 3 and 4 to the conduct of the election, the Union charged
the Respondent with threatening in late April or May 1962, to move the plant if the
Union won the election, and that on or about May 1, 1962, Respondent interrogated
each employee with respect to union activities. Evidence was submitted to support
both allegations. Respondent admitted questioning employees, and denied the threat
to move the plant. The merits of the objections were not ruled on as the conduct
alleged occurred prior to the date of the execution on June 11, 1962, of the agreement
for a consent election. It is the Board's policy that conduct that occurs prior to the
agreement cannot be considered as interfering with the election. However, this
Board policy does not preclude the consideration of this conduct in an unfair labor
practice proceeding. The General Counsel alleges that this conduct and other
conduct engaged in by Respondent during the period from April 23 up to and
including June 28, 1962, the date of the election, and on September 12, 1962, con-
stitute an independent violation of Section 8(a)(1) of the Act.2
On June 22, 1962, 6 days before the representation election, Respondent distributed
a letter signed by Assistant General Manager Grostick to its plant employees regard-
ing the forthcoming election. It is stated therein that a number of rumors regarding
a connection it had with the Union had been brought to its attention, and further
that a number of employees were concerned about the truthfulness of the rumors.
Respondent stated the rumors to be that the employees had better vote for the Union
if they expected to keep their jobs; that Respondent planned to discharge the then
employees and hire new people and the way to insure retention in employment was
to vote for the Union; that Assistant General Manager Grostick was neglecting his
duty in not taking action against "parties involved in union activities, some of which
may be questionable and which have taken place at our plant"; and finally that certain
of Respondent's plant employees had been told that they had better vote for the
Union because if it was voted in and they voted against it, they would be in trouble.
Respondent in its letter assured the employees that membership in the Union was
not a condition for employment or retention in employment, that the ballots they
would cast would be secret, and how an employee voted would not be known by
either the Union or by management. The letter then states that Assistant General
Manager Grostick was aware of the union activities, but that the law prohibited
punitive action on his part against individuals engaging in such activity, even though
the activities were questionable.3 In the paragraph in the letter immediately follow-
ing the specific references to the rumors, Respondent stated that he was certain that
a number of employees were not aware of the extent to which "some of their co-
workers had gone in an effort to organize a union at Respondent's plant." It is then
stated that this matter should be given serious thought before the election, and at
the election each employee should vote his own desire, without fear of the pressures
or threats to which he may have been subjected.
Respondent's letter then referred to a closeness prevailing between the employees
and management because the Company was small and located in a small community.
It asked the question whether this relationship would continue if they placed their
problems "in the hands of strangers." 4
2 The complaint was amended at the hearing to include an allegation of a Section
8(a) (1) violation on June 28, 1962
3 No evidence was offered by Respondent of any orgamzationnl activity by the Union or
its employee supporters which it considered "questionable " Nor was any unfair labor
practice charge filed against the Union alleging a violation of Section 8(b) (1) (A) and
8(b) (2) of the Act.
4 The General Counsel does not contend that the contents of the letter are violative of
the Act. The Union in objecting to the conduct of the election charged that the letter
"deliberately misstated material facts where the employees are unable properly to evaluate
these misstatements." The Regional Director in ruling that this abjection was lacking in
merit held that the letter contained "no misstated material facts, threats, promises of
benefits, or other coercive elements which would warrant setting aside the election " He
THE BIN-DICATOR COMPANY 969
B. Interference , restraint, and coercion
About April 1, 1962, employee Hanger wrote a letter to Walter Sacharczyk , presi-
dent of the Union , about organizing the employees of Respondent's plant. Upon
receiving a written reply, Hanger telephoned Sacharczyk and arranged to meet him
in his office in Port Huron, Michigan , on April 27 , 1962. Hanger and employees
Masinick and Stanley Fulsher met Sacharczyk in his office on April 27. Hanger
received union authorization cards from him. Hanger had eight of the cards signed
by employees and Masinick had three or four of them signed . Masinick returned
the signed cards to Hanger , and he in turn gave them and the eight he had had signed
to Sacharczyk around May 1 , 1962. During the first week in May 1962, a union
organizational meeting was held in Hanger 's home. In addition to Hanger , Masinick,
Fulsher, and seven other employees were present.5
When Judson Thurston , assistant to Assistant General Manager Grostick , returned
to the plant on Monday , April 20, 1962 , after a 3-day absence the prior week, he 6
was informed by Foreman Hoenicke that there were rumors of union activity in
the plant The next morning, May 1, Thurston asked each employee individually,
including Hanger and Masinick , if he had been approached concerning a union. In
reply to this inquiry, Masinick answered "No" and then asked the reason for the
question . Thurston replied that he heard the employees were organizing, and he
was going to ask all the employees if they had been approached . Assistant General
Manager Grostick was not in the plant on May 1, 1962. On the afternoon of May 1,
Thurston returned to Masinick 's work location in the assembly area, and said to
Masinick that he had heard something surprising , that he (Masinick ), Floyd Hanger,
Rex Brinker , and Lawrence Smiley were union organizers . He also said to Masinick
in this conversation that President Schemm , did not like unions, and if the union ac-
quoted from the Board ' s decision in The Gummed Products Company, 112 NLRB 1092,
1094, that:
Exaggerations , inaccuracies , partial truths , name-calling , and falsehoods , while not
condoned , may be excused as legitimate propaganda , provided they are not so mis-
leading as to prevent the exercise of a free choice by employees in the election of
their bargaining representative.
The Trial Examiner will consider this letter only with respect to his determination of
the animus of Respondent and its representatives
s Similar meetings were held on June 27 and in the middle of July 1962
9 Thurston is in charge of Respondent ' s plant in the absence of Assistant General Man-
ager Grostick Grostick spends 1 day a week at Respondent 's office in Detroit , and takes
occasional business trips and an annual vacation . Before becoming Grostick's assistant,
Thurston was in charge of the assembly area with the rank of foreman He is Respondent's
plant liaison with Respondent ' s sales department in Detroit . The sales orders are routed
to him by that office He arranges the orders for production and consults with General
Foreman Sweet and Foreman Hoenicke with respect to this scheduling , inventories of
parts used in production , and the making of parts for special orders. No scheduling is
changed by Sweet or Hoenicke without consulting Thurston Thurston also handles the
administrative paperwork of Grostick ' s office, and the personnel records of the employees
are kept under his supervision Oftentimes when Grostick has something for Sweet to do
he will relay it through Thurston Thurston checks with Hoenicke and Sweet regarding
the presence or absence of employees , and when employees are late, he will go to the work
stations of these employees and talk to them . When leave is requested from Hoenicke
and Sweet , they consult Thurston . If he "approves " the leave , then Hoenicke and Sweet
allow the employees to leave the plant with permission Thurston may authorize leave
directly. Thurston testified he made it a policy to walk daily through all the areas where
the employees are working and talk to the employees He asks them how they are getting
along Sweet testified that when Union President Sacharezyk asked him on June 28, 1962,
what status he had in the plant ( that is, supervisor or rank-and-file employee), he
answered that he would prefer to have Grostick or Sweet answer the question Then em-
ployee Cahoon asked Foreman Hoenicke for a raise in February 1962 , and Hoenicke said
he would see what he could do. It was Thurston who announced to Cahoon 3 weeks later
that he would receive it . Thurston said to Cahoon that Hoenicke had talked to him about
it I find that Thurston is a supervisor within the meaning of Section 2 ( 11) of the Act.
He responsibly directs employees , disciplines them, and adjusts their wages , and in doing
so is called upon to exercise independent judgment. At least once a week he is in com-
plete charge of the plant and its employees . See N L R B v . Hamilton Plastic Molding
Co, 312 F. 2d 723, 727 ( C.A. 6).
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivity continued and the employees got a union in there, he might close the plant
down and move out v
Grostick testified that Thurston called him at his home on the evening of May 1
and told him that he had heard rumors that there was an interest in union activity
in the plant, and that he had asked each of the employees whether he had been
approached regarding a union. According to Grostick, Thurston said that he sought
the answer to his question for his own information. Grostick did not testify as
to what he said to Thurston. I can only conclude that he neither admonished Thur-
ston nor asked him to disavow to each of the employees the interest he had displayed
in their union activity by his questioning of May 1.
During the last part of April or the first week in May 1962, Foreman Hoenicke,
who was Floyd Hanger's supervisor, and Hanger walked out the front of Respondent's
plant on to the lawn to see if it needed cutting.8 At this time Hoenicke asked Hanger
if he had heard anything about a Teamsters local organizing the plant. Hanger
answered no, and Hoenicke replied that he had been told by Thurston to ask him.
Hoenicke then said that Thurston was mad, and somebody was going to get hurt,
that the shop would close up and move out, and the guys would be out of a job.9
On May 3 or 4, 1962, Thurston approached Hanger at the close of the workday,
and asked him if he was going to the big union meeting that night. Hanger answered
that he did not know there was a union meeting. Thurston replied with the question,
"What, you didn't know?" and said "Well, there is one ," when Hanger again denied
he knew about a union meeting. A union meeting was held that evening in Union
President Sacharczyk's office. Hanger and employee Fulsher attended.
Sometime between June 1 and 15, 1962, General Foreman Sweet approached em-
ployee Cahoon at his machine on two occasions. Each time they began a conversa-
tion and in the course of these conversations, the Union was mentioned. Sweet said
during the first conversation that "he worked at Mueller Brass and when the Union
7 Thurston testified that all he said to Ma'sinick on May 1 was the question whether he
had been approached regarding a union, but that he did have conversations with Masinick
on May 4 and 8 regarding the Union. He testified that Masinick said on May 4 that he
understood Rex Brinker was fired because of his union activities , and he answered that he
was terminated because he failed to perform his job satisfactorily. His testimony as to
the May 8 conversation is that he said to Masinick he understood there had been talk that
he and two others were Instigating a union, and that Masinick laughed and said he did not
know how the rumors started. I have credited Masinick's testimony as I find from con-
sideration of the demeanors of Masinick and Thurston as witnesses that Masinick is the
more credible witness.
9 Hoenicke had been made Hanger's supervisor by Grostick about May 1960. Janitor
Hanger had the duties of seeing that the plant was kept clean This meant keeping the
lawn mowed, the floors swept, the windows and restrooms cleaned, the removal of metal
leavings from around the machines and metal chips from the machines, periodic painting,
and related work. Prior to being placed under one supervisor, Hanger was often required
to do more than one thing at a time, with the result that he did not know what job to
do first
9 General Foreman Sweet is in general charge of the production activity of Respondent's
plant. This authority extends to the toolroom, the assembly area and the machine shop.
He is in direct charge of the employees in the toolroom and assembly area. He is an
experienced toolmaker and designer of tools. He works with his bands to the extent his
expertise in toolmaking and tool designing is required. Foreman Hoenicke is in direct
charge of the machine shop. He is under the supervision of Sweet when the latter exer-
cises his responsibility, as the head of production work, of filling the scheduled orders and
keeping inventories current to meet estimated needs. Hoenicke is in direct charge of the
10 employees who work in the machine shop and in the related duties of painting and
welding He is an expert in setting up, maintaining, and repairing machines, and per-
forms these additional duties when they are required Both Sweet and Hoenicke have
the authority to recommend hiring and firing, pay raises, layoffs and recalls of employees,
and to discipline employees Hoenicke as well as Sweet may make recommendations
direct to Grostick. Both meet periodically with Grostick with respect to production prob-
lems, and also personnel problems , if any arise . Their recommendations are relied on by
Grostick and President and General Manager Schemm . I find that General Foreman Sweet
and Foreman Hoenicke are supervisors within the meaning of Section 2(11) of the Act.
They effectively recommend and responsibly direct , and exercise independent judgment,
within the meaning of this section . Grostick 's authority as a supervisor is apparent. He
is in charge of Respondent 's plant, and hires and fires employees and makes recommenda-
tions to President and General Manager Schemm with respect to all policy matters govern-
ing the plant' s operations.
THE BIN-DICATOR COMPANY 971
got in down there, they lost their bonus." 10 In the second conversation, which was
a couple of days later, Sweet said that the Company, if it wanted to, could lock the
doors and shut the place down if the Union got in the plant.
On the morning of June 21, 1962, when Hanger had just returned from his vaca-
tion, Assistant General Manager Grostick engaged him in a conversation. Hanger
had finished cleaning Grostick's office, and was about to leave. Grostick said that
while he was gone, everything was peaceful and quiet, there were no fights, and the
"guys" did not argue among themselves, he wished it to continue that way, and
wanted him "to stay away from the employees." 11
Hanger and Grostick had a conversation that evening in Port Sanilac. Hanger
ran out and stopped Grostick's automobile. He had to stop. Hanger said he had
to talk to him. When Grostick said that he conducted his business in his office and
Hanger was welcome to come in anytime during the day, Hanger said he could not
talk to him at the plant, that the walls had ears, and he had been accused of instigating
union activity in the plant. Grostick replied that he was not in a position to discuss
the accusation of union activity. Hanger answered that he understood his position,
and went on to say that he would swear on a stack of Bibles he had nothing to do
with starting the union activity in the plant. Hanger also said that Thurston had
threatened to fire him, and had accused him of instigating the union activity in a
conversation he had with Masinick. Grostick then said that he would be glad to
have Hanger, Thurston, and Masinick come into his office in the morning to see
if it could be determined who was telling the truth. Grostick testified that this ended
the conversation.
There was a meeting in Grostick's office the next morning. Grostick, Thurston,
Masinick, and Hanger were present. Grostick asked Hanger to repeat his accusations
of the prior evening. Hanger said Thurston threatened to fire him, and in a con-
versation with Masinick said to Masinick that Brinker was fired for being a union
instigator and a troublemaker, and that Hanger was one of the union instigators.
Thurston denied he threatened Hanger with discharge or said that Rex Brinker was
fired for being a union instigator and troublemaker. Masinick stated what Thurston
had said to him on the afteroon of May 1 that he heard that he (Masinick), Hanger,
Brinker, and Smiley were union organizers. Thurston claimed it was Masinick who
said he understood that Rex Brinker was fired for union activity, and that he replied
that he was terminated for failing to perform his job satisfactorily.
In the June 22 conversation Hanger disclosed that he was very active in the union
activity. I credit Hanger's testimony to this effect. It is corroborated by Thurston's
testimony. I also credit Thurston's testimony that at the time Hanger made this dis-
closure he also said that he had come up the hard way, and anyone that hurt him or
his family would also be hurt. I do not credit Hanger's testimony that Grostick said
to him on the evening of June 21 that the people in the area did not like unions and
that if Hanger and Masinick were engaged in union activity they would have to suffer
the consequences. Hanger testified Grostick made this statement in response to his
inquiry as to what Grostick meant that morning when he said that things were peace-
ful while he was on vacation, and he was to stay away from the employees.12 I credit
the testimony of Schemm that he had instructed Grostick to inform Thurston, Sweet,
and Hoenicke not to discuss union activities with employees, following the receipt of
the Union's telegram of May 15, 1962, in which it stated that it represented a ma-
jority of Respondent's plant employees. It does not appear to the Trial Examiner
that Grostick would make the statement Hanger testified he made in the evening of
June 21 after the warning from Schemm. Moreover, the statement allegedly made
by Grostick is not responsive to the question asked by Hanger.13
10 Respondent's plant employees annually received a Christmas bonus awarded on merit.
"I have credited Hanger's testimony. Grostick testified he said in this conversation
with Hanger "that while he was gone all of the men in the plant pitched in and had done
his work, and I hoped he appreciated it, and I also hoped that he would curtail his ex-
cessive visiting in the plant ; and that was the extent of it "
12 After evaluating the testimony of witnesses in this proceeding especially their de-
meanor testimony, I feel constrained to follow the procedure approved by the second cir-
cuit in N.L R B. v. Universal Camera Corporation, 179 F 2d 749, 755, reversed on other
grounds, 340 U.S. 474. The Court stated that "It is no reason for refusing to accept
everything that a witness says because you do not believe all of It; nothing is more com-
mon in all kinds of judicial decisions than to believe some and not all "
131 found that Thurston on May 1 made certain inquiries about union activity. I
credited Masinick ' s testimony corroborated by Thurston 's and Grostick ' s testimony.
Thurston testified to the disclosure to him by Hoenicke of rumors of union activity I
credited Hanger's testimony as to his conversation with Thurston on May 3 or 4 after
considering Thurston 's denial that he had such a conversation. I credited Hanger's testi-
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 27, 1962, Foreman Hoenicke approached employee Cahoon at his ma-
chine. They engaged in a conversation. Cahoon said at a point in the conversation
that when 4 o'clock came he was "going home and go to bed." Hoenicke said,
"What's the matter? Aren't you going to the big union meeting?" and walked off.
This finding is premised on Cahoon's testimony. It is unrebutted. Hanger testified
that on the morning of the election, June 28, 1962, about 7:30, General Foreman
Sweet was at an entrance to the plant, and he and Union President Sacharczyk ap-
proached the door, and Sweet opened the door, admitted Hanger, and said to
Sacharczyk that he could not come in the plant, that they did not need a union in
the plant, and as he closed the door he said to Hanger that if the Union did not
get in, he and Masinick would be on the outside looking in. Sweet testified that as
he opened the door Sacharczyk asked him what his status in the plant was, and he
answered that he would rather have Grostick or Thurston answer the question. I
credit Sweet's testimony and not Hanger's. Sacharczyk was present in the hearing
room, but was not called as a witness. The question Sweet testified he asked appears
a logical one as the Union on the morning of the election was concerned about Sweet
and Hoenicke voting. They did vote and their votes were challenged
Employee Stone testified that he and Foreman Hoenicke had stopped in a bar
about 2 or 3 weeks after the election on June 28, 1962, and began talking about the
union activity at Respondent's plant. According to Stone, Hoenicke asked him what
the Union was going to do for them, and said that there were seven votes for the
Union and he knew who the seven were who voted for the Union. Hoenicke testified
that Stone came in as he was engaged in a card game, and Stone asked him what he
thought of the Union. Hoenicke replied by asking him what the "guys expect to gain
by it." I do not find any evidence of coercive conduct here irrespective of what
version of the conversation is credited. See N.L.R.B. v. Power Equipment Company,
52 LRRM 2459, 2460 [313 F. 2d 438] (C.A. 6).
On September 12, 1962, each hourly rated rank-and-file employee was called into
Assistant General Manager Grostick's office Grostick told Hanger he was termi-
nated, reprimanded Masinick, and informed each of the others that he was being
given a 10-cent hourly increase. Stone testified that Grostick told him he had to let
Hanger go.
C. The discrimination
1. Undisputed facts
It is undisputed that on September 12, 1962, slightly more than 1 month following
the date (August 17, 1962) the Regional Director found that the Union's objections
to the conduct of the June 28 election were lacking in merit, the Respondent dis-
charged Hanger, reprimanded Masinick, and gave a 10-cent an hour wage increase
to the other hourly rated rank-and-file employees. Hanger and Masinick were the
leaders of the union movement in Respondent's plant. Masinick was the observer
for the Union at the June 28 election. Hanger was seen in Union President Sach-
arczyk's company the morning of the election, was known to Thurston on May 1
as one of the union leaders, and had disclosed his participation in the union move-
ment at the meeting in Grostick's office on June 22, 1962, 6 days before the election.14
Masinick had been employed by Respondent since 1956 and Hanger's employment
began on June 1, 1959.
2. Evidence in controversy dealing with the discharge of Hanger
a. The contentions of the parties
In support of the contention that Hanger was discriminatorily discharged there is
the additional evidence by the General Counsel of the notice of discharge on Septem-
ber 12, and alleged disclosures by Respondent in August and November 1962, of the
discriminatory purpose of the discharge. In defense, Respondent offered evidence
of its version of the September 12, 1962, notice, Hanger's threats of physical harm
mony of his conversation with Hoenicke in the first week of May or last part of April
It is unrebutted by Hoenicke. I credited Cahoon's versions of his conversations with
General Foreman Sweet after considering the latter's testimony regarding these conversa-
tions The findings as to the supervisory status of Thurston, Sweet, and Hoenicke are
premised on the testimony of Schemm, Grostick, Thurston, Sweet, Hoenicke, Cahoon,
and Masinick
141 have found that Grostick ordered him to stay away from the other employees on
June 21, 1962, the day Hanger returned from his vacation Under the small-plant rule,
Respondent was aware of Hanger's organizational activity. Angivell Curtain Company,
Inc v N LRB , 192 F 2d899,903 (CA. 7)
THE BIN-DICATOR COMPANY 973
made to Grostick and Sweet when informed of the discharge , unexcused absences in
violation of a company rule, numerous failures to do his work properly, misappro-
priation of Respondent 's property , threats to do Sweet physical harm in February
1961 and June 5, 1962, talking to salesmen on company time , and Hanger 's refusal
to take advantage of a promotional opportunity Respondent had offered him. Then
there is rebuttal evidence dealing with Hanger's absences , his failures to do his
work properly , and Respondent 's condonation of Hanger 's misappropriation of
Respondent 's property, and the threats made by Hanger in February 1961, as well
as on June 5, 1962.
b. The notice on September 12, 1962
On September 12, 1962, Assistant Manager Grostick called Hanger into his office
and informed him he was discharged . He handed him two checks and a notice
addressed "TO FLOYD HANGER" captioned "NOTICE OF DISCHARGE" and
containing the reasons for discharge of "Repeated absence from work without notice
after warnings and posted notice , and other failure to perform jobs as assigned."
The notice was signed "THE BIN-DICATOR COMPANY by Norman L . Grostick,
Ass't General Manager."
Hanger testified that he said to Grostick , "You mean I am fired?" and Grostick
replied, "Yes , I am afraid so." He then asked the real reason he was fired, and
Thurston , who was present , answered that he was "absent without calling in on
June 16th and September the 10th." 15 Hanger, spontaneously , asked them to "wait
a minute," went out into the assembly area , and brought back employee Cahoon
with him, and asked Cahoon if he had not told Thurston that he was going to be off
on September 10 to take his daughter back to college. Hanger kept talking, and
Cahoon did not have a chance to say anything . After a few minutes Cahoon received
permission from Thurston to return to the assembly area. He had not said anything.
According to Hanger , he asked Grostick again for the real reason he was fired,
and Grostick replied by asking him if he did not make a statement to the Union that
he was threatened "to be fired ," and reached into a drawer of his desk and pulled
out a copy of the letter Union President Sacharczyk sent to the Regional Director on
July 3, 1962 , requesting the election be set aside . There is a statement on the first
page of the letter that Grostick threatened Hanger with discharge if he continued
to engage in union activity . Hanger testified that Grostick referred to the letter as
a signed affidavit , and pointing to the statement in it regarding the threat of discharge
made by Grostick to Hanger, said he was fired because he told the Union such a threat
was made. Hanger testified that he and Grostick had further discussion about the
statement in the discharge notice about his failure to do his work , and that Grostick
then said that if he "would forget about this union business ," he would let him go
back to his job, and he replied that the Union lost the election and he forgot about
it, but Grostick and his foreman did not let it drop . Hanger further testified that
General Foreman Sweet came into the office at this point, and he asked him what
he meant by saying he had failed to perform his work, and Sweet replied that there
was a drill press in the corner he did not wipe down , and he answered that he had
wiped it down the prior Thursday , but Sweet did not reply . According to Hanger,
the conversation ended when Grostick offered to give him a reference when he sought
other employment , and he left to return a pair of pliers to Masinick.
Grostick testified he gave Hanger the written notice of discharge in his office on
September 12. He denied that in this September 12 conversation he said to Hanger
that he would be in the plant working but for his union activities or made any state-
ment to the effect that his termination was related to union activities . He also denied
that he said he would give Hanger a letter of recommendation . He testified that Yee
Lee, the engineer , who was present , said to Hanger that he ( Grostick ), would give him
a recommendation when Hanger had become emotionally aroused and Lee tried to
calm him down . 1e Grostick corroborated Hanger's testimony that he handed him
the notice of discharge and two checks , that Hanger said the reasons in the discharge
were not the reasons for his discharge , that there was a discussion about his September
10 absence and failure to do his work. He testified that Hanger said he told Thurston
at a date prior to September 10 that he would not be at work on that date as he had
to take his daughter to college, but that Thurston may not have heard him, and that
Hanger left the office and returned with employee Cahoon to have him corroborate
the notice he gave to Thurston about the September 10 absence . Grostick also
"June 16 was a Saturday , a nonworkday Hanger testified that he was absent with-
out permission on June 26 Thurston apparently intended to refer to June 26
"There 1's testimony by Grostick , Sweet , and Thurston , and admissions by Hanger that
Hanger threatened Grostick in this September 12 conversation and threatened Sweet at
the same time and immediately following it. This evidence is discussed infra.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Thurston denied he heard Hanger give him any notice that he would
be absent on September 10, and that employee Cahoon did not say whether or not
he heard Hanger notify Thurston about being absent on September 10. Sweet tes-
tified regarding Hanger's discharge on September 12, 1962. As previously stated,
Sweet was present for a brief part of the time. His testimony, however, is confined
to threats made to him by Hanger. He was silent as to Hanger's inquiry to him
on September 12 as to how Hanger failed to do his work, and his reply.
Thurston corroborated the denials Grostick made regarding his making any state-
ments to Hanger referring to union activity, or any involvement with the Union, or
his willingness to put him back to work if he dropped his union activity. He testified
that Grostick referred to three unexcused absences in his conversation with Hanger
on September 12. They were September 10, June 26, and July 24, 1962. He also
testified that Grostick told Hanger that his "termination was solely upon the un-
excused-upon his absence record, frequent tardiness, and his apparent inability to
get along with the foreman and perform his job in the shop in a satisfactory manner."
On cross-examination, Hanger denied Grostick made this statement to him. He
testified Grostick gave him the notice of discharge which he read, and that Thurston
referred to the two dates of June 16 and September 10 as dates he was absent without
permission.
From an evaluation of the testimony of Hanger, Grostick, and Thurston, I find
that Grostick informed Hanger of his discharge by handing him the notice, and did
not give him the oral notice Thurston testified Grostick gave Hanger and which
Hanger denied. Grostick's testimony corroborates Hanger. I find that Thurston
referred to absences by Hanger on June 16 and September 10, 1962. This is Hanger's
testimony. It is corroborated by Grostick's testimony. Grostick testified that he
recalled reference being made to a September 10 absence. He did not say who
referred to it, or that he mentioned any dates. I do not credit Thurston's testimony
that Grostick referred to unexcused absences on June 26, July 24, and September 10,
1962, in view of Hanger's denial and Grostick's testimony. I also conclude and
find that the only instance given by Respondent on September 12 of Hanger's failure
to do work properly was the failure of Hanger to wipe down a drill press. Hanger
testified that this instance was given by Sweet when he appeared in the office at the
time Hanger and Grostick were discussing this matter. Grostick testified that he had
no knowledge as to Hanger's failure to do his work properly, that Sweet and Hoenicke
had this knowledge. Sweet was silent as to what he said on September 12 in regard
to Hanger's failure to do his work properly.
I do not credit Hanger's testimony that Grostick said he was being discharged
because he had informed the president of the Union that he was threatened with
discharge for engaging in union activity or that Grostick said he would put him back
to work if he would forget about union activity. In view of the warning not to discuss
the Union or union activity, Schemm gave to Grostick upon receipt of the May 15,
1962, telegram from the Union, Grostick's reluctance to discuss the Union with
Hanger in June, and the denials by both Grostick and Thurston that Grostick made
these statements, I cannot reasonably credit Hanger's uncorroborated testimony. I
credit Hanger's testimony in all other respects as it is corroborated by Grostick's
testimony.
c. The other evidence relating to Hanger's discharge
I credit Hanger's testimony that on September 5 or 6, 1962, he said to Thurston
in the presence of employee Cahoon that he would not be in on September 10 as he
had to take his daughter to college on September 10, 1962. Testimony by Cahoon
corroborates Hanger's. Cahoon gave testimony that he overheard Hanger so telling
Thurston. I credit this testimony. Grostick testified that "Well, I believe Mr. Hanger
probably can verify the fact that he had obtained permission from management for
that day off." He was referring to September 10.
Austin Philpot, engaged in a small business of trucking bakery goods, testified that
he called the office of Respondent 's plant in the first part of November 1962, and said
to the office clerk who answered the telephone that he would like to speak to the
manager . She informed him that the manager was absent, but he could talk to the
person who "was taking the manager's place while the manager was absent." Philpot
could not recall the name given by the clerk. He talked to the person in charge, and
asked him if he would recommend Floyd Hanger for a job.17 According to Philpot,
17 Philpot said he was looking for someone to handle his business while he went hunting
for a week. He had come across Hanger in the course of business . Hanger had a truck,
and moved and sold used furniture in addition to his employment by Respondent. He had
asked Philpot for a job when discharged by Respondent.
THE BIN-DICATOR COMPANY 975
the person at the other end of the wire said he would not give Hanger a favorable
recommendation, that Respondent "had let Floyd Hanger go due to the fact he was
trying to get a union in the shop and they didn't want no part of it."
Thurston denied he ever received such a telephone call. The clerk was not called
as a witness by the General Counsel. Thurston also testified that General Foreman
Sweet was in charge when he and Grostick were away from the plant, but that he
did not have authority to handle a request of the type Philpot said he made. Grostick
testified that the Monday morning following Wednesday, September 12, when
Hanger was discharged, Hanger appeared at the plant and asked for a general letter
of recommendation. Grostick testified he refused to give such a letter to Hanger,
but said to him that he would be glad to talk to a prospective employer, and put in a
good word for him.
After considering the demeanors of Philpot, Thurston, and Grostick and the related
evidence in the case, I do not credit Philpot's testimony. Schemm on receipt of the
Union's telegram of May 15, 1962, claiming representation of a majority of Respond-
ent's employees, had instructed Grostick to warn Thurston, Sweet, and Hoenicke
not to discuss the Union or union activity. Grostick conveyed the warning to them.
From my appraisal of Thurston as a witness, I am convinced that he is not a naive
person, and in no event is or was so naive as to make such an admission against
interest. In any event, Philpot's testimony lacks the minimum identification required
by the rules of evidence for crediting evidence of a telephone conversation. Another
factor that has persuaded me against crediting the testimony is that it has the same
too-pat aspect as Hanger's discredited testimony of what Grostick said about Hanger's
union activity on the evening of June 21 and on September 12.
Hanger also testified that he overheard Grostick talking to Schemm on the tele-
phone in the middle of August 1962. Hanger said that he was working in the restroom
close to Grostick's office. According to Hanger, the telephone rang, the clerk
answered, said, "Mr. Grostick, for you," Grostick answered and said, "Hello. Oh,
yes, Mr. Schemm. What can I do for you?" Grostick listened to Schemm, and
then said, "No, I haven't fired Hanger yet, but I will take care of that when I come
back off my vacation in September." Hanger then walked out of the restroom to the
office and left. Grostick's back was to him. Hanger also testified that when he
entered Grostick's office to go to the restroom he saw only the clerk. He did not
look to his right, where there were files behind which was Grostick's desk, as he
had to turn to the left to enter the restroom. Schemm and Grostick denied having
such a telephone conversation. I do not credit this uncorroborated testimony of
Hanger. It is of the same nature as Philpot's discredited testimony, and Hanger's
discredited testimony regarding purported admissions by Grostick on June 21 dis-
closing union animus. An inference that flows from Hanger's testimony is that
Grostick may have been in the office when Hanger entered it on his way to the wash-
room, and may have known that Hanger was within hearing when he had the purported
conversation with Schemm. I could not attribute such naivete to Grostick after
observing his demeanor on the witness stand. Also considered were the probabilities,
pro and con, that Hanger would appear on the scene, or be within earshot, when
Grostick received a call from Schemm regarding the termination of Hanger for union
activity.
d. Respondent's defenses
Grostick testified that Hanger was discharged for disobeying a company rule is-
three unexcused absences and failure to perform duties in a satisfactory manner.
Grostick left the task of explaining the absences to Thurston and the task of explain-
ing the work failures to Sweet. He did concede that Hanger could probably obtain
vertification that he gave Thurston notice prior to September 10 that he would not be
at work on that date. He also testified that Hanger appeared to be doing satisfactorily
the work he would ordinarily observe such as keeping the floor clean, and that he was
not familiar with Hanger 's work failures except insofar as he relied on reports from
Sweet and Hoenicke. He testified that Hanger took 4 hours to mow the lawn
compared with 2 hours taken by the person who mowed it after Hanger was
terminated.10 Grostick testified that he became disenchanted with Hanger starting
19 The company rule was incorporated in a notice posted on April 4, 1962, to the effect
that an employee not reporting for work on account of illness or other reason was expected
to notify Respondent or have someone call in for him. It was also stated in the notice
that failure to comply with this requirement and another one dealing with extended illness,
also included in the notice, would result in "possible dismissal."
19 The conclusion that Hanger was slow in this respect premised as it was on the above
comparison could not have been reached until after Hanger was discharged
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in October 1961 because of reports from Sweet and Hoenicke. Schemm testified
that Grostick reported to him in March or April 1962 that Hanger was not following
instructions and was insubordinate. However, Hanger, Cahoon, and Masinick testified
that Grostick told Hanger at an employee meeting on April 6, 1962, that his work was
satisfactory, and if it had not been, he would have told him so, as he had agreed
he would do. Grostick admitted making this statement to Hanger on April 6
in the presence of the other employees.
While Thurston on September 12 answered Hanger's question to Grostick as to
why he was fired by stating that he had unexcused absences on June 16 (a Saturday
and nonworkday) and September 10, 1962, at the hearing he offered in Respondent's
behalf the evidence that Hanger was tardy a number of times and was absent without
authorization on June 26, July 24, and September 10, and in addition was absent a
number of times with authorization.20 None of this tardiness had been brought to
Hanger's attention. Moreover, it was not given as a reason for the termination either
on September 12 or at the hearing. I therefore consider this evidence as immaterial
and irrevelant and give it no weight.
Hanger admitted being absent on June 26 and July 24 without giving the required
notice. The July 24 absence followed an excused absence on July 23. Like Hanger's
tardiness, these absences had not been brought to his attention. I have found that
Hanger in good faith told Thurston in the shipping room in Cahoon's presence on
September 5 or 6 that he would not be at work on September 10. Thurston denied
hearing Hanger make this statement although he admitted he could have been in the
shipping room or stockroom when Hanger said he made the statement to him.21
While Sweet could give only one instance on September 12, 1962, of a failure by
Hanger to do his work properly-failure to wipe down a machine-he testified as to
several instances at the hearing of such failures by Hanger.22 He testified that while
Hoenicke was on vacation he asked Hanger to wipe down this machine as well as
five machines in the toolroom.23 Hanger denied he made the requests. According
to Sweet the first machine was down for 3 days, but it was not until 2 days had
elapsed and Sweet insisted that it be cleaned that Hanger cleaned it. Hanger cleaned
the five machines in the toolroom after Sweet asked him three times to clean them,
and the third time he said to Hanger that if the toolmakers continued to clean their
machines Respondent would not need a janitor. Sweet also claimed that he had
to see that Hanger cleaned Cahoon's machine on three different occasions in August
20 Thurston's testimony showed Hanger to be late for work 14 times Three of the times
late were substantial , one was 32 minutes ; another 24 minute's, and the other 15 minutes.
But two of them occurred in January and the other in February, the cold winter months.
The other times late were those of 1 minute on four occasions, 2 minutes on two occa-
sions, 3 minutes on one occasion , 4 minutes on two occasions, 5 minutes on one occasion,
and 6 minutes on one occasion.
21 It is apparent that both Grostick and Thurston remained adamant on September 12
and thereafter in claiming Hanger was discharged for an unexcused absence on Septem-
ber 10 even though it had been brought to Grostick's and Thurston's attention on Septem-
ber 12, before Hanger threatened Grostick or Sweet, that Hanger may have given proper
notice to Thurston that he would not be at work on September 10.
22 Like Grostick, Sweet claimed that Hanger took 4 hours to mow the lawn as against
2 hours taken by the person who did this work after Hanger was discharged. Since this
comparison could not have been drawn until after the discharge I give this evidence no
weight in my determination as to the motive of the discharge Sweet also testified that
Hanger misappropriated property in November 1960, and threatened to kill him and called
him an "s o.b." about 2 years before the hearing when he discovered Hanger punching in
timecards of six employees who were late, and on June 5, 1962, he again called him an
"s.o b " and threatened to kill him when he accused him of saying that he would be fired
for union activity and Sweet told him to forget it, following Hanger's refusal to disclose
the name of the two employee who Hanger said informed him of Sweet's statement. There
is also testimony that Hanger would chat with salesmen who came on business to the
plant. He had been doing this for some time. I give this testimony no, weight as it is
not claimed by Respondent as the cause of the discharge In any event, this conduct was
clearly condoned by Respondent. Nor do I give any weight to Respondent's testimony that
Hanger in February 1962 turned down an offer of a job as a machine operator. Sweet
considered the offer a promotional opportunity. Hanger refused it because a raise did not
go with the offer. Respondent clearly did not consider Hanger's refusal as a cause for
discharge.
23 Grostick appointed Hanger's supervisor 2 years before when Hanger was being given
assignments by a number of persons, and Hanger did not know what assignment he was
to do first. The record does not show when Hoenicke was on vacation but it can be
assumed that it was in July or August 1962.
THE BIN-DICATOR COMPANY 977
1962. According to Sweet, there was a standing order to Hanger to clean any ma-
chine that was down without waiting for any instruction to do so by him or Hoenicke.
Sweet also testified that Hanger stopped to talk to each machine operator when he
picked up trash in the morning , losing 1 to 2 hours consisting of his working time and
the working time of the machine operators. Sweet did disclose that the machines
would be running while Hanger and the machine operator talked. He pointed to
one instance where the machine had run through, and should have been shut off.
Cahoon testified that he cleaned his own machine except when Sweet told him
Hanger was to do the cleaning.24 Hoenicke testified that Cahoon's machine was an
automatic operation that had to be cleaned six times daily. He also testified that
when the machines required cleaning Hanger was occupied with one or more of his
many other duties.25 It is clear from Hoenicke's testimony that he would tell
Hanger when to clean down the machines, irrespective of any order that Hanger had
to clean the machines without an order from Hoenicke or Sweet. Grostick made
Hoenicke Hanger's supervisor in May 1960 to solve the problem attendant on Hanger
having to do many things at one time without knowing what to do first. Hoenicke's
supervision solved this problem.26
Although Hoenicke was Hanger's supervisor for 2 years, he did not cite one spe-
cific instance of a work failure by Hanger. On direct and cross-examination, he
testified that Hanger had not been cooperating since February 1961, but he readily
changed this testimony to testimony that Hanger never failed to cooperate, when
counsel for the General Counsel on cross-examination referred him to a signed state-
ment he gave to a Regional Office representative when the case was under investiga-
tion. The statement contained the admission that "Hanger always has done every-
thing that I have told him to do. He might gripe about it but he never refused to do
anything I told him to do." 27
Grostick and Thurston testified that when Hanger was notified of his discharge on
September 12, 1962, Hanger said to Grostick that the matter was a personal feud
between them, that someday they would meet, and when they did, he would get him,
and Grostick could expect to spend some time in a wheelchair. Also, that Grostick
had a witness to what he said and could call the police. They and Sweet also testified
that when Sweet came into the office on September 12 as Grostick and Hanger
were talking, Hanger advanced toward Sweet, calling him an s.o.b., pulling foundry
mitts with metal staples on his hands , closing his hands into fists, and moving them
close to Sweet 's face in a manner giving the appearance he was about to assault him.
This threatening conduct went on for some time. Hanger asked Sweet to step
outside and Sweet refused. Yee Lee, the engineer, who was present in the office,
calmed him down, and then Grostick asked him to leave. Sweet also testified that
shortly after the incident in Grostick's office, he was in the assembly area, and
Hanger was there. Hanger picked up an aluminum casting, pulled his arm back
as though to strike Sweet with the casting, and said he ought to hit him with it.
He also cursed him. Masinick succeeded in taking the casting from him. Hanger
testified that on September 12 he could have said to Grostick that someday he and
Grostick were going to meet, and when they did Grostick was going to get it, and
that Grostick had a witness to what he said and could call the police. Hanger
admitted that he told Sweet in the assembly area on September 12 that he ought
to hit him with the casting. He admitted wearing the foundry mitts when talking to
Sweet on September 12, but did not recall the circumstances giving rise to his
wearing the gloves. He tesitfied he did not believe he threatened Sweet in Grostick's
office on September 12.
24 Cahoon also testified that Hanger talked to him 1 or 2 minutes in the morning, but
that no time was lost as his machine was running while they talked.
25 Hanger's responsibility was to keep the plant in a condition of cleanliness This
included sweeping the floors , cleaning the windows , emptying trash , cleaning around the
machines, cleaning down the machines , cleaning the restrooms , mowing the lawn, and
doing some periodic painting . I assume his duties also included cleaning the walks in the
winter months.
2e It appears to the Trial Examiner that Hanger could not be expected to be Johnny-
on-the-spot when a machine was down and needed cleaning , and at the same time take
care of the many duties he had to perform.
27 Hoenicke testified that he did not recommend the hiring of Hanger and three other
named employees but merely recommended that they come to the plant and make applica-
tion for employment . However, he readily changed this testimony to testimony that he
recommended their hire to Grolstlck and Sweet when reference was made to the part of
his signed statement stating that "I have recommended the hiring of Floyd Hanger,
Herman Mielke , Loren Coulter and Clair Dailey, and they were all hired."
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit the testimony of Grostick and Thurston that Hanger threatened Grostick
with physical injury in their conversation on September 12. I credit the testimony of
Grostick, Sweet, and Thurston that Hanger threatened Sweet with physical injury
when Sweet came into Grostick's office on September 12. I credit Sweet's testimony
that Hanger threatened him again with physical injury shortly afterward in the
assembly area. These threats appear to the Trial Examiner to be more than idle ones
made at a time when Hanger had lost his self-control.
Grostick and Schemm testified that at the time the decision to terminate Hanger
was reached, a decision was also made to discontinue employing a janitor, and to
revert to the practice in effect prior to the employment of Hanger of having each
employee help clean the area of his work location and of having the office clerk
keep the office clean. It is undisputed that no one has been hired in Hanger's place.
3. The discrimination against Masinick
a. The September 12, 1962, warning
As previously stated, supra, Respondent gave a 10-cent an hour increase to all
hourly rated rank-and-file plant employees on September 12, 1962, with the exception
of Hanger and Masinick. The employees including Hanger and Masinick were called
into Grostick's office. Those receiving the increase were so informed. Hanger was
informed he was terminated. Masinick 28 was handed a notice addressed to him and
signed by Grostick on behalf of Respondent, stating that "Our attention has been
directed to failure on your part to follow directions of Supervisor or cooperate on
work assignments. A continuance in this direction will be grounds for termination of
employment." 29 Grostick asked Masinick to read the notice. He said it would ex-
plain things to him. He also said that Masinick was not cooperating and had too much
of a relaxed attitude about his work. According to Masinick that is all that was said.
He left the office. Grostick testified that Masinick remarked when he read the notice
that he did not realize it was getting so bad.30
The next morning Masinick received permission from Grostick to talk to General
Foreman Sweet. He asked Sweet for an explanation of the charge that he had
failed to follow the directions of his supervisor and to cooperate on work assign-
ments.31 Sweet replied by citing an instance where Sweet had asked him one afternoon
to get ready for his final processing of the roto-bindicators the following morning,
by getting together the covers to be bolted on them and the shipping containers, but
he failed to do this get-ready work that afternoon, and left it until the following
morning. Masinick acknowledged that he had failed to do this work,32 and said he
was sorry. He also said he had not taken the request on that day as a hard and fast
rule as to something to be done. Sweet replied that he would then make it one.
Masinick answered that his doing so was fine, but he wished they could talk things
28 From an appraisal of the demeanors of all the witnesses as they testified, I consider
Masinick to be a more credible witness than any of the other witnesses. The findings
regarding his discharge are premised on his testimony except when otherwise indicated.
° The notice handed to Masinick as well as Hanger contained the information that a
carbon copy had been forwarded to President Schemm and to Paul Franseth, the attorney
for Respondent in this proceeding. Grostick and Schemm testified they had discussed the
action taken with respect to Masinick, Hanger, and the other employees prior to Septem-
ber 12. Schemm also testified that when the Union claimed a representation of a majority
of the plant employees on May 15, 1962, he referred the matter to the secretary of Re-
spondent who was also its general counsel. The secretary referred the matter to Franseth,
a partner in the same law firm. Schemm testified that Franseth was more conversant
with labor relations matters.
80 As previously found, Masinick had been engaged in the union organizational activity
since its beginning in April 1962, and was the observer for the Union at the election on
June 28, 1962. He had been employed by Respondent since 1956. He was one of the
oldest employees.
81 Sweet testified that he had not been consulted regarding the reprimand given
Masinick on September 12.
1 After the roto-bindicators are assembled, adjusted, and put on the test rack by
Lawrence Smiley to run overnight, it is Masinick's job to check them the following morn-
ing to see if they are operating , bolt covers on them , and place them in cardboard cartons
for shipping by the shipping department . Respondent has no inspection system, and
Masinick 's check determines whether the roto -bindicators are ready for shipment. Sweet
testified that the roto-bindicator is Respondent's "most required" product. When
Masinick has no work to do, Sweet, at his discretion , lays out work for him.
THE BIN-DICATOR COMPANY 979
over and know what each meant . Sweet also told Masinick that he did not like him
checking the work of other employees.
b. The other evidence regarding the discrimination against Masinick
Grostick testified that the notice was given to Masinick for failure to cooperate
with his supervisor, that each time he was contacted about it he said would change
and for a short period he would straighten out, and that finally his failure to follow
instructions of Sweet had built up to a point that a verbal warning was no longer
any good. Although Sweet testified he was not consulted in regard to the reprimand
given Masinick, he gave detailed testimony that on several occasions he asked
Masinick to get ready in the afternoon the covers to be bolted on the roto-bindicators
the next morning, and also the containers in which they were to be shipped. He
claimed that Masinick was even brought into the office and told to do this advance
work . Masinick failed to follow these instructions until the warning of September 12.
Sweet also testified that contrary to instructions Masinick would consult directly
with employees who made roto-bindicator parts that Masinick found had erorrs or
defects in them when he checked the assembled units, and would have the employees
take down a machine set up to rerun the part or make the correction. He would
also intervene when Sweet gave instructions to the employees as to how the roto-
bindicator parts should be made, and even change the instructions.
From Grostick's and Sweet 's testimony it is clear that the only complaint registered
against Masinick on September 12 and 13, and at the hearing, in support of the
reprimand, was that Masinick ignored Sweet's instructions and his supervisory status
by refusing to comply with Sweet 's instructions that he change certain of the work
procedures he had followed prior to the time Sweet became his supervisor.33
Grostick, Thurston, and Hoenicke testified that Masinick was a good employee.
His hourly rate had been increased from the $ 1.50 given him when he began employ-
ment in 1956, to $1.90. His last raise was in 1961. He received a merit bonus
every Christmas from the time he began employment, including the Christmas fol-
lowing the reprimand. Grostick, Schemm, and Sweet testified that he had corrected
his faults following the reprimand. In the spring of 1962, he and Ron Sweet, another
employee, were complimented for meeting production schedules when other em-
ployees were out on extended absences.
Sweet became Masinick's supervisor about 2 years before the reprimand. Thurston
who had been Masinick's supervisor was made Grostick's assistant. Under Thurston's
supervision , Masinick kept a close eye on the complete fabrication of the roto-
bindicator, Respondent 's "most required" product. He checked the completed units
in the morning after they had been run the previous night on the test rack, and placed
them in the cartons for shipment. He looked in on the making of parts for inventory,
and gave instructions to the parts-making employees. Pursuant to instructions from
Grostick, he assisted Smiley, an elderly employee, in the assembling of the roto-
bindicator units. He had made the parts and assembled the units in the course of
his employment since 1956. When he checked the units after they were run on the
test rack, and found errors, he went directly to the parts-making employees re-
sponsible for the errors, and had them correct them. Masinick continued with the
work practices he followed under Thurston, even to the extent of participating in the
giving of instructions by Grostick to employees making parts. About a year prior
to the reprimand, Sweet told Masinick to come to him if he had any problems. This
was all Sweet said to him in connection with his work, until the afternoon of a date
prior to September 12, 1962.
On the afternoon of a date in August or September 1962, Sweet asked Masinick to
get the roto-bindicator covers and the shipping containers ready. Masinick was help-
33 At the hearing Respondent's case also included the defense that the increase in the
hourly rate of the other employees was to correct an imbalance between Masinick's rate
and the rates of the other employees in the assembly area, namely Smiley, Upper, and
Hinski. Apparently, in an effort to explain why in correcting this alleged imbalance the
rates of the toolroom and machine shop employees were also raised, Grostick and Sweet
responded to the questions of Respondent's counsel as to the comparison of Masinick's
skill with those of the toolroom and machine shop employees with the replies that the
skills required of the toolroom employees were higher than the skill required of Masinick,
and the skills required of the machine shop employees were equal to the skill required of
Masinick. Masinick denied that any reference was made by Grostick on September 12 or
by Sweet on September 13 to correcting the difference between his rate and those of the
other three assembly area employees. He testified that their skills were equal to his.
Sweet testified that he was not consulted regarding the giving of the increase.
717-672-64-vol. 143-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Smiley at the time in assembling the roto-bindicator units pursuant to Grostick's
instructions . He did not get the covers or containers ready as Sweet instructed. He
had always waited until the morning to get the covers and shipping containers ready
unless there was a large number of orders for the units that had to be shipped by the
noon deadline 34
I do not credit Grostick 's testimony or Sweet's testimony that Sweet reprimanded
Masmick a number of times orally in regard to his work practices and asked him to
change them , or that Masmick was offered an opportunity to learn how to assemble
other units Respondent manufactured , which he turned down . When Thurston was
his supervisor , Masinick was assigned to do some work on the roto-guard , but when
the assignment was finished he was given no further assignments on it . I credit
Masinick 's testimony that he would have welcomed an opportunity to learn this
assembly work . Masinick testified that he was offered the jobs of shipping clerk and
parts maker in the machine shop . He turned both of them down . He already had
experience as a parts maker . Masinick admitted that prior to September 12, he
participated in the conversations Sweet had with parts-making employees in regard
to the making of roto -bindicator parts, checked the making of parts for this unit,
especially a panel, and went directly to the employees who made mistakes in fabricat-
ing parts . He denied he ever required an employee to take down a set up in order to
correct the error. He left it for the employee to decide. Sometimes the employee
would say he had the jig for the part right there, and would insert it in the machine
and correct the mistake while Masinick waited. This procedure helped Masinick to
meet Respondent 's policy that orders had to be shipped by noon. Questioning of
Masinick by Respondent 's counsel failed to develop evidence that he wasted time by
going to the dock where cargo was shipped or received . Masinick said it was 2 years
since he had helped to load or unload cargo. At that time he did so only when re-
quested to help or the shipping clerk was absent . He admitted that he occasionally
went to the place where the delivery truck unloaded when he was expetcing a ship-
ment of materials that he needed.
D. Analysis and concluding findings
I make the following analysis and findings and conclusions.
Thurston 's questioning of employees on May 1, 1962 (supra ), is illegal interroga-
tion and violative of Section 8(a)(1) of the Act. Organizational activity had just
begun , but no demands had been made on Respondent . Thurston 's questioning had
the obvious effect of interfering with the right the employees had of freely deciding
whether to join or not join the Union , or select the Union as their bargaining repre-
sentative . Thurston 's questioning of Hanger on May 3 or 4, 1962, regarding a
union meeting that evening is also illegal interrogation violative of Section 8(a) (1).
Thurston 's statement to Hanger at the same time as the questioning on May 3 or 4
that there would be a union meeting as well as his statement to Masinick on the
afternoon of May 1 that he heard that Masinick , Hanger, Brinker, and Smiley were
union organizers constitute conduct giving the appearance of surveillance by Re-
spondent of the lawful union activities of its employees, and is violative of Section
8(a)(1).
Sweet's statement to Cahoon sometime between June 1 and 15, 1962, that he
worked at Mueller Brass, and when the Union got in there they lost their Christmas
bonus, was a veiled threat that the employees would lose their Christmas bonus if
they joined the Union or selected it to represent them, and is violative of Section
8(a)(1). Sweet 's statement in a second conversation with Cahoon during the same
period that the Respondent, if it wanted to, could lock the doors and shut the place
down if the Union got in the plant is also a threat of reprisal if the employees em-
braced union membership or selected the Union to represent them, and violative of
Section 8(a)(1).
Hoenicke 's questioning of Hanger in the last week of April or first week of May
1962 regarding the organizational activity of the Union is illegal interrogation, and
violative of Section 8(a)(1). The statement he made to Hanger, at the same time,
34 Grostick began reprimanding him for tardiness for the first time in August 1962, al-
though he had been tardy off and on for years On cross-examination , Masinick also testi-
fied that in August 1962 he informed some other employees that in connection with a
blood donor program , they would be allowed time off to go to the blood bank to donate the
blood, if a sufficient number volunteered He said this was the understanding he had
from a conversation with a friend who had talked to Grostick about the program Grostick
had instructed the employees to come to his office for information regarding the program
The information Masinick gave the employees was incorrect, and he was reprimanded for
giving it
THE BIN-DICATOR COMPANY 981
that Thurston was mad, somebody was going to get hurt, that the shop would close
up and the employees would be out of a job, is clearly a threat of reprisal that inter-
fered with union activity and membership, and violative of Section 8(a)(1). His
question to Cahoon on June 27, 1962, whether he intended to attend the union meet-
ing that evening gave the impression that Respondent engaged in surveillance of
union activities and is also violative of Section 8 (a) (I).
Grostick's order to Hanger on June 21, 1962, when the latter returned from his
vacation, to stay away from the other employees is an invalid no-solicitation rule-
Hanger was known to Respondent to be one of the union organizers, and June 21
was just 7 days before the date of the Board election. Grostick was obviously stating
that he was not to engage in union activity during nonworking as well as working
time.35
Grostick's statement to Cahoon on September 12, 1962, when he was informed
of a wage increase, that Hanger was terminated is violative of Section 8(a)(1) as it
was a veiled threat that he would also be discharged if he engaged in union activity.
I have found, infra, that on September 12 Hanger was discriminatorily discharged,
and Masinick discriminatorily reprimanded and denied a wage increase.
I also find to be violative of Section 8(a)(1) the wage increases granted to all
hourly rated rank-and-file employees except Hanger and Masinick on September 12,
1962, the same date Hanger was fired and Masinick was reprimanded. They were
benefits granted to defeat membership in the Union, activity on its behalf, and the
selection of it by the employees as their collective-bargaining representative. While
the employees may have been due an increase, the timing of the grant of it in relation
to the disposition by the Regional Director on August 17, 1962, of the objections to
the election, and the discharge of Hanger and the reprimand of Mastinick on
September 12, 1962, is obviously more than a coincidence or happenstance. The
imbalance between Masinick's hourly rate and that of the other three assembly area
employees had existed for 2 years, and Respondent offered no evidence of any
economic circumstances impelling it to grant the overdue increases on September 12,
1962.
Masinick was given the reprimand of September 12, 1962, and denied the increase
because of his activity on behalf of the Union and to defeat the Union's organiza-
tional efforts. Masinick is a person of obviously high intelligence and ability, and
takes pride in his work. He had felt responsible for the complete production of
the roto-bindicator, although his specific duties were those of checking the assembled
units and placing them in containers. Until Masinick's efforts on behalf of the
Union, Grostick and Thurston appreciated Masinick's concern and competence, and
let him give expression to them as the Respondent profited by it. Although the work
program followed by Masinick was unorthodox for a rank-and-file employee and
reflected on Sweet's supervisory status, Sweet left him alone until Respondent's man-
agement soured on him because of his union activity. General Manager Sweet re-
marked to Foreman Hoenicke that Masinick was adept at catching mistakes made
by other employees.
In August 1962, Grostick reprimanded Masinick for tardiness,36 for the first time
although he had been tardy occasionally for years. Sweet then told Masinick during
an afternoon when he was helping Smiley to assemble the roto-bindicator units to
perform the routine operation of getting the roto-bindicator covers and shipping
containers ready that afternoon. Masinick had always performed this routine oper-
ation at his own discretion in the morning unless the quantity of orders to be
shipped that morning required that this get-ready work be done the prior afternoon.
He continued to help Smiley as he had been instructed to do by Grostick. He did
not understand that Sweet was giving him a standing order about a detail that had
been left in the past to his discretion, or that he should change the routine of assist-
ing Smiley which he had been following pursuant to the instructions and approval
of Grostick.
In its efforts to thwart the union organizational activity, Respondent set out to
reduce Masinick's stature in the eyes of the other employees, and to restrict his
hitherto unrestricted freedom to move among the employees. The pressure on
Masinick reached effective proportions on the issuance of the reprimand and the
withholding of the increase on September 12. Sweet let him know on September 13
that from then on he was only to do the work of checking and packing, and leave
to him the watching of the making of the parts for inventory, the assignment of as-
8' Walton Manufacturing Company , 126 NLRB 697 , enfd 289 F . 2d 177 (CA. 5). A
no-solicitation rule may be promulgated orally as well as in writing N L.R B. v. Avondale
Mills, 357 U.S 357; NLRB. v W. T. Grant Co, 315 F . 2d 83 (C A. 9).
11 He would occasionally be a minute or two late on arrival at his work station He
was scheduled to be there at 7:30 a.m.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistance to Smiley if he determined Smiley should have it, the consulting with arts-
making employees regarding corrections and reruns, and the instructing of employees
in making roto-bindicator parts. Masinick has followed the instructions of Sweet
since September 13, 1962, and management is satisfied.
It is obvious from the record that except for his efforts on behalf of the Union,
Masinick would have participated in any wage increase granted to the hourly rated
rank-and-file employees. In informing Masinick of the reprimand on September 12,
Grostick made no mention of the increase given to the other employees. He did
not make any reference to the adjusting of the rates of the other assembly area
employees to the same level as Masinick's. The reprimand and denial of the increase
of September 12, 1962, discriminated against him with respect to his employment in
order to discourage membership in the Union, and the selection of it as bargaining
representative, and is violative of Section 8(a)(3) and (1) of the Act.
I find that Respondent discharged Hanger on September 12, 1962, because of his
activity on behalf of the Union, and thereby discriminated against him in violation
of Section 8(a) (3) and (1) of the Act. In support of the charge of unexcused ab-
sences in the termination notice Grostick handed to Hanger on September 12, Thur-
ston told Hanger at the time Grostick handed the notice to him that he had un-
,excused absences on June 16 and September 10, 1962. The June 16 date was in
error, it should have been June 26. On September 5 or 6, Hanger had told Thurston
that he would not be in on September 10 as he had to take his daughter to college.
Thurston inadequately explained the charge of unexcused absences contained in the
termination notice. He was in charge of leave and should have had an adequate
explanation if the charge was a valid one. Moreover, his and Grostick's refusal
to drop the alleged September 10 absence as a cause for discharge after Hanger
furnished persuasive evidence he had given Thurston proper notice shows that Re-
spondent was concealing the true motive for the discharge. Hanger admitted being
absent on June 26 and July 24, 1962, without an excuse. The Respondent's rule that
absences were to be reported had been posted since April 4, 1962. But the rule only
said that dismissal was possible for a violation of the rule. The July 24 absence
followed an excused absence on July 23. No representative of Respondent discussed
with Hanger the unexecused leave on June 26 and July 24. Respondent had told
Hanger on April 6, 1962, that when he did anything wrong he would discuss it with
him.
On the day of the termination notice, Sweet could recall only one instance where
Hanger failed to perform his work assignments. He did not wipe down a drill press.
Hanger said to him on September 12, 1962, that he had wiped it down a week before.
Grostick testified that Hanger appeared to be doing adequately the things he would
ordinarily observe, and that he relied on Sweet for Hanger's work failures. It is
true that Sweet had marshaled for the hearing in February 1963 a number of duties
that Hanger failed to perform and a number of things that Hanger had done that
violated the minimum requirements for plant discipline. However, except for failure
to clean machines promptly, these work failures and the misconduct were clearly
not relied on, or in any event had been condoned by Respondent. I find from Hoe-
nicke's testimony that Hoenicke went along with Hanger's practice of waiting to
clean the machines until he was told to clean them by Hoenicke, and that Hanger
was to clean them as soon as reasonable, in light of the many other duties he had
to perform. Hoenicke testified that Hanger was 100 percent cooperative in the case
of every request he made of him. Although Hoenicke was Hanger's supervisor he
did not furnish one instance of Hanger's failure to clean the machines. Sweet on
the other hand contends in his testimony that Hanger ran the risk of being charged
with a work failure if he was not Johnny-on-the-spot when a machine needed clean-
ing. If Hoenicke had been present when Sweet testified the work failures took place,
and Hanger's union activity had not caused a change in his supervision of Hanger,
the procedure would have been that of giving Hanger notice when it was time to
clean a machine, with the understanding that Hanger would get to the cleaning job
as soon as he could. Then there would be no work failure charged to Hanger because
he waited to be notified, or because he did the cleaning as soon as he could in view
of the many other duties he had. Hoenicke had been made Hanger's supervisor 2
years before to prevent the harassing of Hanger to do jobs when he had others to do.
Sweet claims in his testimony that Hanger failed in his work because he did not revert
to the old confused effort of trying to help everyone at once, the very thing that
Hoenicke's supervision of Hanger was intended to prevent. Sweet's and Grostick's
testimony that Hanger took too long in mowing the lawn is obviously a reason
trumped up after the discharge to lend weight to Respondent's position, and per-
suasive only to the extent of casting suspicion on the merits of Respondent's case.
Although I find and conclude that Respondent discriminated against Hanger in
violation of Section 8(a)(3) and (1) of the Act, I shall not recommend that he be
THE BIN-DICATOR COMPANY 983
reinstated or given backpay. Hanger's threats on September 12, 1963, disqualified
him for these remedies 37
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relationship 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
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that Respondent be required to cease and desist from such unfair labor
practices and take such affirmative action as appears necessary to effectuate the
policies of the Act. In view of my finding that Respondent not only engaged in
several acts of interference, restraint, and coercion, but also discriminatorily dis-
charged employee Hanger, and discriminatorily reprimanded employee Masinick
and withheld from him a general increase granted to other employees, in reprisal
for their efforts on behalf of the Union, I shall recommend a broad cease-and-desist
order against any interference with, coercion, or restraint of employees in the exercise
of their protected activities. Although I have found that Respondent violated the
Act by giving the wage increase on September 12 but withholding it from Masinick,
this recommendation does not recommend that the increase be in any way rescinded
or withdrawn.
I find Respondent's position that it should not be required to reinstate Hanger
as it has abolished the position of janitor to be an attempt to escape the consequences
of illegal conduct. However, as stated, I shall recommend to the Board that employee
Hanger be denied reinstatement as well as backpay for the threats he made to As-
sistant General Manager Grostick and General Foreman Sweet on September 12,
1962, when he was discriminatorily discharged. In this instance, such remedies would
not be in the public interest or effectuate the purposes of the Act.
I shall recommend that Respondent make employee Masinick whole for any loss
of earnings caused by its discriminatory withholding of the general wage increase
given to other rank-and-file hourly rated employees on September 12, 1962, by the
payment to him of an amount which is a cumulation of each of the increases that
should have been included in the wage payment he received for the pay period for
which he was paid on or about September 12, 1962, and in the wage payment he
received for each succeeding pay period, together with interest at 6 percent per
annum. See Isis Plumbing & Heating Co., 138 NLRB 716, and J. J. Hagerty, Inc.,
139 NLRB 633.
CONCLUSIONS OF LAW
1. Respondent, The Bin-Dicator Company, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and Local 339, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent, is a labor organization within the meaning of Section 2(5) of the Act.
2. By interrogating employees with respect to union activity and membership,
threatening them with loss of employment, their Christmas bonus, and with the
closing down of Respondent's plant if they selected the above Union to represent
them or if they engaged in union activity; granting them wage increases to interfere
with their freedom in the exercise of their right to engage in or refrain from engaging
in union activity; engaging in surveillance, or giving the appearance of engaging in
surveillance, of their union activities; and announcing an invalid no-solicitation rule,
Respondent engaged in conduct that interferes with, coerces, and restrains employees
in the exercise of rights guaranteed them in Section 7 of the Act, in violation of
Section 8 (a) (1) of the Act.
3. By discharging employee Floyd Hanger, and reprimanding and withholding a
wage increase from employee John Masinick, because of their union activity and
membership in the Union, Respondent discriminated against employees in regard to
the hire or tenure of employment and a term or condition of employment, to dis-
courage membership in the Union, in violation of Section 8 (a) (3) and (1) of the
Act.
87 Renfro Hosiery Mills, Inc., 122 NLRB 929 ; Stein-Way Clothing Co., Inc., 131 NLRB
132; The Philip Carey Manufacturing Company, 140 NLRB 1103 ; N.L.R.B . v. National
Furniture Manufacturing Co., 315 F . 2d 280 (C A. 7).
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of law, and pursuant to Sec-
tion 10(c) of the Act, the Trial Examiner hereby issues the following:
RECOMMENDED ORDER
The Bin-Dicator Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 339, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other
labor organization of its employees, by discriminatorily discharging its employees,
reprimanding them, withholding a wage increase from them, or in any other manner
discriminating against them in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Interrogating employees with respect to union activity, other concerted ac-
tivity, or union membership in a manner constituting interference with, coercion,
or restraint of employees in violation of Section 8 (a) (1) of the Act.
(c) Threatening employes with loss of employment and their Christmas bonus, the
closing down of Respondent's plant, or other reprisals, if they engage in union
activity, become members of the Union or any other labor organization, or select
it as their collective-bargaining representative.
(d) Promising or granting employees wage increases or other benefits to induce
them not to engage in union activity, embrace membership in the Union, or any other
labor organization, or select the Union, or any other labor organization, as their
collective-bargaining representative; but this provision does not require the with-
drawal or revocation of any wage increase presently in effect.
(e) Engaging in, or giving the appearance of engaging in, the surveillance of
employees' union activities, or other concerted activities.
(f) Promulgating an invalid no-solicitation rule.
(g) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to join or assist the Union or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, as guaranteed in Section 7 of
the Act, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the purposes
of the Act:
(a) Make John Masinick whole for any loss of earnings suffered by reason of
the discrimination against him in the manner set forth in the section of the Interme-
diate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, payroll records and other data necessary for a computa-
tion of the amount of the wage increase withheld from Masinick, and the interest
thereon under the terms of this Order.
(c) Post in conspicuous places at its plant in Port Sanilac, Michigan, where
notices to employees are customarily posted, copies of the attached notice marked
"Appendix." 38 Copies of said notice, to be furnished by the Regional Director for
the Seventh Region of the National Labor Relations Board, shall, after being signed
by a duly authorized representative of Respondent, be posted by it immediately upon
receipt thereof, and maintained by it for 60 consecutive days from the date of posting
in such conspicuous places. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps Respondent has
taken to comply therewith.39
Is In the event this Recommended Order is adopted by the Board, the words "A Decision
and Order" shall he 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 he substituted for the words "A Decision
and Order."
11 In the event that this Recommended Order is adopted by the Board, paragraph 2(d)
thereof shall be modified to read: "Notify said Regional Director, in writing, within 10
days from the date of this Order, what steps Respondent has taken to comply herewith,"
THE BIN-DICATOR COMPANY 985
It is further recommended that unless on or before 20 days from the date of the
receipt of this Intermediate Report and Recommended Order the Respondent notifies
the said Regional Director, in writing, that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the Re-
spondent to take the action aforesaid.
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
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 339, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, or any other labor organization of our employees, by discharging
employees, reprimanding them, withholding a wage increase from them, or
in any other manner discriminating against them in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT question employees with respect to union activity, other
concerted activity, or union membership in a manner constituting interference
with, coercion, or restraint of employees in violation of Section 8(a) (1) of the
National Labor Relations Act, as amended.
WE WILL NOT threaten employees with loss of employment, their Christmas
bonus, or the closing down of our plant, or other reprisals, if they engage
in union activity, become members of the Union or any other labor organiza-
tion, or select it as their collective-bargaining representative.
WE WILL NOT promise or grant employees wage increases or other benefits
to induce them not to engage in union activity, embrace membership in the
Union or any other labor organization, or select the Union, or any other
labor organization, as their collective-bargaining representative; but this provi-
sion does not require the withdrawal or revocation of any wage increase
presently in effect.
WE WILL NOT engage in, to give the appearance of engaging in, the surveillance
of employees' union activities, or other concerted activities.
WE WILL NOT promulgate an invalid no-solicitation rule.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their rights to self-organization, to join or assist
the Union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the National Labor Relations Act, as
amended, or to refrain from any or all such activities
WE WILL make employee John Masinick whole for any loss of earnings
suffered by reason of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of Local 339, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Independent, or any other labor
organization.
THE BIN-DICATOR COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must be 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, 48226, Telephone No.
963-9330, if they have any questions concerning this notice or compliance with its
provisions.