Thompson Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1966

161 N.L.R.B. 1548 (N.L.R.B. 1966)

1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding , I make the following conclusions of law:
1. Levinson's Owl Rexall Drugs, Inc., is, and has been at all material times, an
employer within the meaning of Section 2(2) of the Act.
2: Retail Store Employees Union , Local 373, Retail Clerks International Associ-
ation , AFL-CIO, is, and , has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the said Company
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
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.
5. The record does not establish that the discharge of Beverly S. Marsh violated
the Act.
[Recommended Order omitted from publication.]
Thompson Industries , Inc., and Circuit Controls Corporation,
Its Wholly-Owned . Subsidiary and International Union , United
Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO. Case 7-CA-5354. December 7,
1966 -
DECISION AND ORDER
On July 20, 1966 , Trial Examiner Alvin Lieberman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist. therefrom, and take cer-
tain affirmative , action , - as set forth in the attached Trial Examiner's
Decision . He"also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint and recom-
mended dismissal of those allegations . Thereafter, the Respondent
filed exceptions to the Trial Examiner 's Decision and a supporting
brief.-,
Pursuant I to the provisions 'of Section 3(b) of the National Labor
Relations Act, as amended, , the National ' Labor Relations Board
has delegated its 'powers -in connection with this case to a three-
member panel [Chairman McCulloch and Members Brown and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief , and the entire rec-
ord in this case, and hereby adopts the Trial Examiner 's findings,
conclusions, and recommendations only to the extent consistent with
this Decision and Order.
161 NLRB No. 139.
THOMPSON INDUSTRIES, INC. 1549
The Trial Examiner found that the Respondent violated Section
8(a) (3) and (1) of the Act by its discharge of employee Mary
Cronn on October 5, 1965. We do not agree.,
The record adequately supports the Respondent's contention that
Cronn's discharge was for good cause. Thus, it is clear that Cronn
rarely, if ever, met the normal production standards of the Respond-
ent, namely, 240 wiring harnesses a day.2 To be sure, other employ-
ees failed to meet such standards and were not discharged; how-
ever, during the period January 7 to October 5, 1965, the date of
her discharge, Cronn's production was far below that of any of these
other employees, who met or came close to meeting their quotas.
Moreover, as the Trial Examiner noted, Cronn was repeatedly
warned of her low production. She was reprimanded, initially, soon
after her transfer to the day shift in September 1964. These warn-
ings were repeated over a year's period, and on September 9, 1965,
Donald Garringer, the Respondent's plant superintendent, again
warned her that "her production was away down." Cronn was given
a final, written warning notice on September 29, 1965, 5 days before
her discharge, which stated that Cronn was "obviously not attempt-
ing to make a satisfactory performance" and that "a repetition of
this offense will subject [Cronn] to dismissal." But despite such com-
plaints and warnings, Cronn's work did not improve appreciably.
These factors, in our opinion, demonstrate not only that Respondent
had a legitimate reason for discharging Cronn, but also that Cronn
was not subject to disparate treatment.
Nor do we find present in this case other circumstances which
might fairly justify an inference that the assigned reason for the
discharge was but a subterfuge for illegal considerations. Thus, the
Respondent is not shown to have engaged in independent unfair
labor practices, and the only evidence of union animus relied upon
by the Trial Examiner consists of a letter sent by Respondent to its
employees on February 19, 1965. That letter, however, was written
more than 7 months before Cronn's discharge, and in it Respond-
ent did little more than advise employees that the Respondent did
not believe the Union had anything to offer them. We do not regard
this letter as having sufficient probative value to overcome the force
of the record evidence establishing good cause for discharging Cronn.
For similar reason, we attach little significance to the fact, also
relied upon by the Trial Examiner, that some 6 months after Cronn's
The Trial Examiner also found that the Respondent did not violate Section 8(a)(1)
of the Act by engaging in coercive interrogation and surveillance . As no exceptions were
filed to these findings, we adopt them pro forma.
2 The principal product of the Respondent is making wiring harnesses for Mercury and
Mustang automobiles. A wiring harness is basically a preassembly of the entire electrical
wiring system of an automobile.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, Betty Brown, a leadgirl, whom he found to be a super-
visor, remarked to Cronn that the main reason for her termination
was "because of the Union." Brown was but a minor supervisor at
most; she did not attend supervisory meetings, and nothing appears
in the record to show that she otherwise held any position giving her
access to, or had-in fact received, any information supporting her
statement about the,Respondent's reason for discharging Cronn.
In these circumstances, we find that the General Counsel has not
proved by a preponderance of the evidence that the Respondent dis-
charged Mary Cronn because of her activity on behalf of the Union.
Consquently, we shall dismiss the complaint.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard by Trial Examiner Alvin
Lieberman in Petoskey, Michigan, on March 28, 29, and 30, and April 19 and 20,
1966, on complaint' of the General Counsel and Respondents' answer.2 The issues
litigated were whether Respondent violated Section 8(a)(1) and (3) of the Act.
More particularly, the questions for decision are as follows:
1. Are leadgirls in Respondent's employ supervisors within the meaning of the Act?
2. Did Respondent independently violate Section 8(a)(1) of the Act by interro-
gating employees and by engaging in surveillance of its employees ' union desires
and inclinations?
3. Did Respondent violate Section 8(a)(3) and (1) of the Act by discharging
Mary Cronn.
Upon the entire record, upon observation of the witnesses and their demeanor
while testifying, and upon careful consideration of the arguments made and briefs
submitted by the General Counsel and Respondent I make the following:
FINDINGS OF FACT 3
1. RESPONDENT 'S BUSINESS
Respondent is engaged at Petoskey, Michigan, in the manufacture,. sale, and dis-
tribution of automotive electrical wiring assemblies 4 and related products. During
i The complaint was issued upon a charge filed by International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO
( herein called the Union) During the tiial the complaint was amended in several respects.
Paragraph 9 was enlarged' by adding an allegation that Betty Brown, a leadgirl in the
employ of Respondent Circuit Controls Corporation is a supervisor within the meaning of
the National Labor Relations Act, as amended (herein called the Act). Paragraph 10 was
amended by being renumbered.10(a) and, by changing the date of discharge set,forth therein
to October 5, 1905 Finally, a new paragraph, numbered 10(b), was added alleging that
Respondents violated Section 8(a)(1) of the Act by engaging in coercive interrogation of
its employees and in surveillance,of its employees' union ,desires and inclinations.
3 At the conclusion of his case in chief the General Counsel consented to a motion to
dismiss the complaint as to Respondent `Thompson Industries, Inc, In view of this, all
subsequent references in this ipecision, to Respondent will relate to Circuit Controls
Corporation unless otherwise indicated.
3'After the close.df the hearing Respondent moved, to strike and remove from the record
of this proceeding General Counsel's Exhibits 4, 7, 7(a), 7(b), 7(c), and 8, all of which
were received in evidence, on,the ground, that copies of those exhibits were not furnished to
Respondent by the General Counsel. Inasmuch as the General Counsel, in response to
Respondent 's motion, furnished copies of the exhibits in question to Respondent the motion
to, strike will be, and it hereby is, denied.
* During the trial the electrical wiring assemblies manufactured by Respondent were
referred to as harnesses and will be so referred to in this Decision
THOMPSON INDUSTRIES , INC. 1551
Respondent's fiscal year ending on April 30, 1965, a representative period, Respond-
ent received goods and materials valued at in excess of $50,000 from suppliers
located outside the State of Michigan. Accordingly, I find that Respondent is engaged
in commerce within the meaning of the Act and that the Board's assertion of juris-
diction herein is warranted .5
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with Respondent's discharge of an employee, Mary
Cronn, and the subsequent conduct of Betty Brown, a leadgirl employed by
Respondent. The General Counsel contends that Cronn was discharged because of
her union activities in violation of Section 8(a)(3) of the Act; that Respondent's
leadgirls are supervisors within the meaning of the Act; and that Respondent,
through Brown , engaged in interrogation of its employees and in surveillance of
their union activities in violation of Section 8(a)(1) of the Act. Taking direct issue
with the General Counsel on all three points Respondent submits that it discharged
Cronn for cause; namely, her failure to meet its production quota; that it did not
engage in interrogation or surveillance, as urged by the General Counsel; and,
finally, that its leadgirls were not, at any material time, supervisors.
B. Facts concerning the supervisory status of Respondent's lead girls
Of substantial significance to the other issues in this case is the question of
whether leadgirls in Respondent's employ are supervisors within the meaning of the
Act. Accordingly, this subject will be considered first.
Respondent 's Petoskey plant 6 is departmentalized to an extent and operates on
two shifts. In each department and on each shift there are a number of leadgirls,
each overseeing the work of from 12 to 22 rank-and-file employees. The remainder
of Respondent's hierarchy, in ascending order, are foremen, one to a shift, plant
production supervisor , plant superintendent , and general manager.
It is undisputed that leadgirls, who receive 10 cents more per hour than rank-
and-file employees, have no authority to hire or discharge employees and have never
done so . It is likewise undisputed that their general function is to see to it that the
rate of production is maintained in accordance with plans laid down by the produc-
tion supervisor. To this end, they make daily reports to the production supervisor
concerning absences among employees and fill in for absentees; perform production
work where employees in their crews are falling behind or have to leave their work
for any substantial period of time; train new employees ; receive complaints from
employees and discuss them with the production supervisor; see to it that rank-and-
file employees have enough material to work on, and that machines are in proper
repair; and, from time to time, meet with the foreman and other leadgirls for the
purpose of discussing production and personnel problems to which they may sug-
gest solutions.
In addition to the foregoing undisputed functions of leadgirls , Cronn, who was a
leadgirl on the night shift from September 1962 , until September 1964 ,7 credibly
testified that as a leadgirl she, on her own initiative and without consulting with
anyone, assigned work to employees ; transferred them from machine to machine
and from task to task when, in her judgement, she felt such action was needed;
reprimanded employees when they were not working fast enough or when they were
not doing a good job; and disciplined employees when their production was not
high enough by "put[ting] them on a job they didn't like." Cronn also testified that
5 The complaint having been dismissed as to Respondent Thompson Industries , Inc., and
the interstate inflow of Respondent Circuit Controls Corporation being sufficient to enable
the Board to assert jurisdiction in this case (Siemens Mailing Service, 122 NLRB 81, 85),
no jurisdictional findings will be made concerning Respondent Thompson Industries, Inc.
6 Respondent has four other plants in the State of Michigan. The facts in this case, how-
ever, relate only to the Petoskey plant.
In a memorandum submitted to the Michigan Employment Security Commission in
connection with Croun ' s application for unemployment compensation , Respondent stated
that while employed as a leadgirl Cronn was "rated excellent in all aspects of her work."
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a leadgirl she recommended that two probationary employees be discharged for
low production and that a third probationary employee whose production was low
be either transferred to other work or discharged .8 Respondent 's records with respect
to these employees show that Cronn's recommendations were effectuated.9
Upon her transfer to the day shift in September 1964 , Cronn lost her status as a
leadgirl.1e She continued to work in Respondent 's plant for more than a year there-
after , her discharge having occurred on October 5, 1965 . Following her testimony
as to the duties and functions of leadgirls in Respondent 's employ , Cronn stated in
response to a question which I put to her that the duties of leadgirls did not change
in any way since she relinquished that position.
C. Concluding findings concerning the supervisory status of leadgirls
in Respondent's employ
In determining whether a person,is a supervisor, account must be taken of the
definition appearing in Section 2(11) of the Act as well as the gloss put on that defi-
nition by the Board and courts. Section 2(11) provides, in pertinent part, that an
individual is a supervisor if he has authority "to hire, transfer . . . discharge .. .
or discipline other employees, or responsibly to direct them, . . . or effectively to
recommend such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires the use of inde-
pendent judgement." With regard to this definition, two principles are well settled.
The first is that it "is to be interpreted in the disjunctive . . . and the possession of
any one of the authorities listed in Section 2(11) places the employee invested with
this authority in the supervisory class." Ohio Power Co. v. N.L.R.B., 176 F.2d 385,
387 (C.A. 6), cert. denied 338 U.S. 899. The second is that Section 2(11) "does
not require the exercise of the power described for all or any definite part of the
employee's time. It is' the existence of the power which determines the classifica-
tion." Ohio Power Co. v. N.L.R B., supra at p. 38. See also The Eavey Company,
,115 NLRB 1779, 1781, footnote 3.
In its -brief Respondent argues that leadgirls in its employ possess no supervisory
authority, and that they are persons who know their job, help instruct the employ-
ees whom they lead, and merely pass on orders from Respondent's production super-
visor. Were this argument borne out by the facts I would agree with it.
Leadgirls have, however, more authority than suggested by Respondent. As Cronn
credibly testified, and as I find, leadgirls, in the exercise of their independent judg-
ment, assign work to rank-and-file employees, and transfer them from task to task
and from machine to machine when necessary. Leadgirls also reprimand and disci-,
pline employees and effectively recommend discharges. While the latter function
appears to have been infrequently exercised, Ohio Power teaches that the touch-
stone is not the frequency of the power's use. It is, rather, "the existence of the
power which determines the classification."
O Respondent's policy with respect to new employees, as set forth in its "Manual of In-
formation for Employees," is that the "first three months [of their employment] is a
probationary period
6 Cronn's-testimony as to the duties of leadgirls Was, in the main, denied by Donald
Garringer, Respondent's plant superintendent, and by Brown, a leadgirl in Respondent's
employ. Garringer testified that leadgirls do not tell employees on what machine to work.
However In the next breath he said that leadgirls "can assign [employees] from machine
to machine." In view of these self-contradictory statements I have not credited Garringer's
testimony on the issue under discussion unless It has been corroborated by other credible
evidence Brown was present in the hearing room for substantial periods of time from the
second day of the trial until its completion and she testified on the last day. She seemed
to me to be aware of the issues in the case and appeared to be overly anxious to conform
her, testimony to that previously given by her supervisors and to testify In a manner which
would benefit Respondent . Because of this and her general demeanor while testifying, I
have likewise, not credited her. On the other hand, although Cronn is far from being a
distinterested witness, she impressed me as being a sincere and truthful one Furthermore
as noted above (footnote 8) Respondent, itself, rated her as being an "excellent.' leadgirl
and her testimony with regard to her recommendations as to the discharge of three em-
ployees was corroborated by Respondent's records. Accordingly, I believe her in this and
in all other respects. .
io It is not contended that Cronn's demotion to a rank-and -file employee upon her trans-
fer to the day shift was violative of the Act •
THOMPSON INDUSTRIES, INC. 1553
Accordingly, I conclude that leadgirls employed by Respondent, including Betty
Brown, are supervisors within the meaning of the Act.
D. Facts concerning the alleged violation of Section 8(a) (3) of the Act
Cronn was hired by Respondent on November 8, 1961. She was discharged on
October 5, 1965.11
Much evidence was adduced by the General Counsel for the purpose of establish-
ing Respondent's union animus and to show that Cronn's discharge was motivated
by Respondent's hostility to the Union and not based on her low production, as
Respondent stoutly maintains. Thus witnesses for the General Counsel testified,12
that Respondent's plant superintendent stated to employees that a union was not
needed in Respondent's plant; that if the Union became bargaining agent for the
employees, Respondent would not increase wages and would close its plant; that
Respondent's officials confiscated union literature, and prohibited its distribution in
the plant; that Respondent's plant superintendent physically removed a union button
being worn by an employee; that a leadgirl employed by Respondent referred to a
union button as "garbage" and told an employee that a union was not needed; and
that to counter the wearing of union buttons by employees a leadgirl distributed
"C.C.C." buttons.13
I do not consider it necessary to make any findings with respect to this testimony.
First, it was not offered to establish independent unfair labor practices by Respond-
ent. Secondly, and even more important, Respondent's opposition to the Union was
well known and openly set forth in a letter sent to its employees about Feb-
ruary 15.
Cronn's Union Activities
Immediately upon her transfer to the day shift in September 1964, Cronn began
to talk to Respondent's employees about joining the Union and, after noting a
favorable reaction in this regard, interested the Union in organizing them. Cronn
then became, and remained, the Union's prime mover in Respondent's plant.
In November 1964, at the very outset of the Union's organizing campaign, Cronn
signed a union authorization card and distributed others to Respondent's employees
both in the plant and elsewhere. Upon being signed, the cards were returned to
Cronn who personally delivered some, and mailed others, to representatives of the
Union. In December 1964, the Union sent Cronn literature, and rainbonnets and
nail files bearing the Union's emblem which Cronn passed on to employees.
In February, Cronn received buttons from the Union. These she distributed to
many employees in the plant lunchroom. Although the record is cloudy concerning
the length of time the employees displayed the buttons, it is clear that a substantial
number of them did so at least through March. Cronn, herself, continued to wear
her button until her discharge.
Cronn was the first employee in the plant to exhibit a union button. On the day
after she began to wear her button, Garringer, Respondent's plant superintendent,
saw it. Because it was the first union button seen in the plant , Garringer asked
Cronn to give it to him . Cronn complied with this request and Garringer showed
the button to Respondent's industrial relations manager. Later that day, while
Cronn was in the plant lunchroom distributing buttons and cards to employees,
Garringer returned the button to her. Although Garringer made no comment about
the button when he returned it to Cronn, he told Cronn, the next day, that he did
not want buttons lying around . on machines and directed her to tell "[her ] girls"
not to leave buttons on machines.
During February and March, representatives of the Union and Cronn, assisted by
other employees, distributed union literature at the plant parking lot and in the
plant lunchroom. Also during these months Cronn continued to solicit union cards
from employees.
From February, through about the middle of May, Cronn and other employees
attended weekly meetings with a representative of the Union . At these meetings,
11 Unless otherwise indicated all dates hereafter referred to are in 1965.
12 Much, if not all , of this testimony was denied by witnesses for Respondent.
11 The Initials "C.C.C." on these buttons constituted a shortened form of Respondent's
corporate title, Circuit Controls Corporation.
264-188-67-vol. 161-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among other things, matters relating to the Union's organizational campaign were
discussed and Cronn replenished her supply of organizational material , which she
continued openly to distribute to employees.
There was a lull in organizing activity at Respondent 's plant during the latter part
of May, June, and the first part of July. During this period , however, although
there were no formal union meetings attended by employees , Cronn met with a
representative of the Union about once a week. Also during this period, Cronn
continued to receive a few signed authorization cards from employees which she
turned over to the union representative.
Union activity at Respondent's plant picked up again during the latter part of
July. Employees began to sign cards at a greater rate than in the late spring and
early summer and Cronn on one occasion distributed literature at the plant
entrance.
On August 2, Respondent announced a general wage increase , and posted the
new rates on its bulletin board . Employees in some departments , including the
press and cutter departments , received smaller increases than employees in other
departments . On the day that the wage increase was announced the employees in
the press and cutter departments , in apparent dissatisfaction over the small wage
increase which they received , engaged in a brief work stoppage . The next day,
Cronn and another employee walked through the area of the plant in which those
departments are located . There they met Al Goethals , Respondent 's production
supervisor , who said to Cronn "I know what you are up to. I don 't want you to
try to start anything back here."
Beginning in August and continuing through October 5, the date on which she
was discharged , Cronn obtained new union authorization cards from employees who
had previously signed cards early in the Union 's campaign . Cronn, who also signed
a new authorization card during this period , thought that this was necessary because
she had "heard that after six months . . . we had to sign over again." 14
Respondent was aware of the Union 's organizing activity in its plant . 15 Respond-
ent was also aware that Cronn played a large role in this and that she actively sup-
ported the Union from the inception of its campaign until her discharge.16
Cronn's Discharge
As noted above, Cronn was hired by Respondent in November 1961 . Her first
position with Respondent was that of hand taper 17 on the night shift. While
employed as a hand taper, Cronn taught herself to operate a taping machine and
thereafter , from time to time , she did some machine taping . 18 About 6 months after
being hired Cronn was promoted ' to the position of leadgirl on the night shift. In
September 1964, at her own request, Cronn was transferred to the day shift where
she was assigned to work as a' taping machine operator.19
Respondent has always maintained a production standard for machine tapers of
240 harnesses a day. Prior to August 5, this quota was unofficial . On that day, how-
11 The findings as to the union activity in Respondent ' s plant and Cronn's participation
therein are based, in the main, on 'the credible and uncontradicted testimony of Cronn and
William Treadgold , an International representative of the Union.
1c This finding is based on the testimony of James Esterhne , Respondent ' s general man-
ager, and Robert Guisinger, who was, at all material - times , Respondent 's industrial rela-
tions manager
10 These findings are based on Cronn 's distribution of union literature and paraphernalia
and solicitation of employees to sign union cards, all of which was done overtly , Tier
persistence in wearing :a union button until her discharge , which was long after other
employees had ceased wearing theirs ; the conversation between Cronn and Goethals, Re-
spondent 's production supervisor , on the day after ' the work stoppage in Respondent's cut-
ter and press departments ; and the conversation between Cronn and Goethals at the time
of Cronn 's discharge.
17 The harnesses produced by Respondent are both hand taped and machine taped. The
purpose of the taping is to keep the various components of the electrical wiring assemblies
which Respondent manufactures from separating
18 Cronn lacks one finger on her right hand and three on her left hand. She testified that
she was put to work as a hand taper because it was thought that her missing fingers
would prevent her from efficiently operating a taping machine . However, I make no findings
in this respect
10 Cronn asked to be transferred to the day shift so that she could attend school at night.
Cronn knew that she would not be a leadgirl on the day shift.
THOMPSON INDUSTRIES, INC . 1555
ever, Respondent raised the wage rate for machine tapers by 15 cents per hour and
expressly informed them that they were expected to produce a daily quota of 240
harnesses.
Except for a period during January, or February, when Cronn was working on
harnesses which had already been partially taped, Cronn never met the quota. On
the first day of her employment as a machine taper in September 1964 she pro-
duced 160 harnesses. Although Cronn's production steadily increased thereafter, the
closest she came to meeting the quota was on October 5, the day she was dis-
charged, when she taped 208 harnesses.20
Cronn was repeatedly reprimanded for her low production. The first reprimand
came soon after her transfer to the day shift. At that time Goethals, Respondent's
production supervisor, told Cronn that she had been a good worker on the night
shift and that he could not understand why she could not be a good machine taper.
Shortly thereafter, on November 11, 1964, Garringer, Respondent's plant superin-
tendent, spoke to Cronn about her low production.21
Garringer and Goethals, as well as Cronn's leadgirl, continued to reprimand and
warn her about her low production through the spring of 1965. As Cronn testified
in this regard under cross-examination by Respondent's counsel, "the warnings were
real heavy through February, March and April."
No representative of Respondent appears to have warned or reprimanded Cronn
concerning her work during the months of May, June, and July. In August Goethals
and Garringer again began to reprimand Cronn for low production. About
August 5, she was called into the office and there warned about her production.
On other occasions during August, she was warned both at her machine and in
the office.
On September 9, Garringer called Cronn into his office and again told her that
"her production was away down." 22 On September 29, Cronn received a written
warning notice with respect to her production.23 The notice stated that Cronn was
"obviously not attempting to make a satisfactory performance" and that "a repeti-
tion of this offense will subject [Cronn] to dismissal." 24
Six days later, on October 5, Cronn was discharged by Goethals, Respondent's
production supervisor. Upon being told by Goethals that her employment was being
terminated for low production Cronn said, "Al, you know that is not the reason."
To this Goethals replied, "Mary, your activities had nothing to do with it." 25
Events Following Cronn's Discharge
On March 15, 1966, about 5 months after her discharge, Cronn met, and spoke
with, Ethel Dodge, an employee of Respondent, in a food market in Petoskey,
Michigan. Dodge testified that during their conversation about the forthcoming trial
in this case, which was scheduled to open on March 28, 1966, she asked Cronn
"how she thought she would do" and that Cronn replied "she didn't know, and
that she really didn't care, that she pulled every trick in the book to get fired and
she had the Union behind her, and she thought if she did not win she might get
back to Circuit Controls [Respondent] and work."
Dodge further testified that during her conversation with Cronn , and in response
to a question as to whether Cronn was working, Cronn stated that she was not
working and "she wasn't going to look for a job." Finally, Dodge testified that on
the day following her meeting with Cronn she discussed her conversation with
several of Respondent's employees, including Hazel LaRue, and that ultimately
she reported it to Garringer, Respondent's plant superintendent.
Cronn admitted meeting Dodge in a Petoskey food market about March 15,
1966, and admitted talking to Dodge at that time. Cronn expressly denied, however,
The findings with respect to Cronn's production are based on her testimony and Re-
spondent's records which were received in evidence.
21 On this occasion Garringer placed a memorandum of his conversation with Cronn In
her personnel file.
22 Garringer also placed a memorandum of his conference with Cronn on this date in her
personnel file.
zs All of Cronn's previous warnings and reprimands had been oral.
2a The findings concerning Cronn's warnings and reprimands are based on a synthesis
of the testimony of •Garringer, Goethals, and Cronn, and Respondent's records which were
received in evidence.
25 The findings with respect to the conversation between Croun and Goethals on Octo-
ber 5, are based on a synthesis of their testimony.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she told Dodge that she had engaged in any "dirty tricks," or that she was
not looking for a job. In this connection, Cronn testified that she had looked for a
job and that she wanted "to be put back to work" because she could not "get a
job very easy." 26
Cronn's version of her conversation with Dodge, insofar as it related to the
forthcoming trial of this case, is that she told Dodge that she "hoped [she] was
going to win because [she] had to get back to work"; that she "was getting behind
on [her] bills"; that if she didn't get back to work pretty soon, [she] didn't know
what [she] was going to do"; and that she "just didn't know how [the trial], was
going to turn out."
Hazel LaRue, one of the employees to whom Dodge testified she reported her
conversation with Cronn, was called by Respondent directly after Dodge testified.
If Dodge were telling the truth about her encounter with Cronn, it would be
expected, at the very least, in view of the damaging nature of Cronn's purported
admissions that Respondent's counsel, whose extreme thoroughness was apparent
throughout the trial, would have asked LaRue to testify as to whether Dodge had
in fact discussed with LaRue her meeting with Cronn. He did not, however, do this.
He did not ask LaRue any questions with respect to Dodge's testimony. And,
although LaRue appeared to be most eager to further Respondent's cause, and
although she testified to many peccadilloes concerning Croon's performance as a
machine taper, all of which were credibly denied by Cronn,27 and several times
offered information, seemingly favorable to Respondent, which was not sought by
a question, she did not volunteer anything which would corroborate Dodge's testi-
mony concerning her conversation with Cronn or that Dodge told her about it.
Because of the absence of corroborative evidence, which, if Dodge's testimony
is to be believed, was readily available, and the utter implausibility, in my opinion,
of Cronn's telling anyone that she had contrived her discharge in view of her
inability, as she,put it, to "get a job easy," I do not credit Dodge's version of her
conversation with Cronn. Rather, I believe Cronn's account.
The second postdischarge incident appearing in the record occurred about
March 21, 1966. On that day, Betty Brown, a leadgirl employed by Respondent
who, I have concluded, was a supervisor, and a group of employees were talking
about Cronn's discharge. In the course of the discussion Brown stated "Well, they
said [Cronn's] production wasn't high enough that's why they let her go, but the
main reason was because of the Union." 28
Respondent's Practice With Respect to Discharging Employees
for Low Production
As noted above Respondent's production standard for machine tapers was 240
harnesses a day. With the exception of Cronn, the reason for whose discharge is
the main issue in this case, Respondent has not discharged anyone for failing to
meet its quota since March 1964, although a number of machine tapers subsequent
to that date and during Cronn's employment as a machine taper did not regularly
produce 240 harnesses a day.29
29 This, undoubtedly, was a reference to the physical condition of her bands.
n In view of LaRue's demeanor while testifying, as set forth, I do not credit any of her
testimony which was denied by Cronn, who, I have already stated, impressed me as being
a sincere and truthful witness.
2B Brown, admitting the discussion, denied making the statement in question. She at-
tributed it to an employee in the group. I have already concluded that Brown was not a
credible witness (footnote 10) and I do not believe her denial in this instance. Mary Lou
Clear, who attributed the statement to Brown, was still employed by Respondent at the
time of the trial and therefore was, in a sense, testifying under peril of reprisal. Because
of this, and because of Clear's demeanor while under examination both by the General
Counsel and by counsel for Respondent I credit her testimony.
2D This finding is based in part upon a synthesis of the testimony of Alice Vermilya,
Shirley Reckwald, both of whom, at material times, were employed as machine tapers by
Respondent, Goethals, Respondent's production supervisor, Garringer, Respondent's plant
superintendent, and Cronn, and in part upon Respondent's records which were received in
evidence. In this connection, Vermilya, who had been employed by Respondent as a machine
taper from October 1964, until her resignation June 1905, testified credibly that although
she met the quota only on one day during her employment with Respondent she was not
even warned or reprimanded for this reason after the completion of her 90-day probationary
period.
THOMPSON INDUSTRIES, INC. 1557
In this regard, Garringer testified that he "went through the dead file of employ-
ees" and that "all [he] came up with" were records of four who had been dis-
charged for low production. Of these, three were probationary employees, and one
had been employed only 6 months. It further appears that the discharge of the
only nonprobationary employee for this reason occurred on December 6, 1963.30
E. Concluding findings concerning the alleged violation
of Section 8(a)(3) of the Act
Respondent strongly maintains that the sole reason for Cronn's discharge was
her failure to meet its prodution quota and that, therefore, the termination of her
employment was not violative of Section 8(a)(3) of the Act. At first blush this
contention appears to be supported by the record. Crone admittedly did not tape
her daily quota of harnesses. She was repeatedly warned and reprimanded for this
by Respondent. On September 29, she received her last warning, this time in writ-
ing, and was notified that she was subject to dismissal. Finally, on October 5, as she
still was not producing in accordance with the quota, she was discharged.
There are, however, several factors in this case which when considered in the
light of Respondent's admitted opposition to the Union as expressed in the letter to
its employees dated February 19, militate against Respondent's contention and
require me to conclude that Crone was in fact discharged because of her member-
ship in, and activities on behalf of, the Union. The warnings, themselves, consti-
tute the first factor. An analysis of the timing of Cronn's warnings and reprimands
shows that they coincided with the union activity in Respondent's plant. Thus, in
October and November 1964, Cronn distributed union authorization cards to
employees and she began to be warned about her low production. In the succeed-
ing months of February, March, and April, Cronn attended union meetings, distrib-
uted union- literature both inside and outside the plant, passed out buttons and other
union paraphernalia and solicited employees to sign union cards. And, during this
period, in which the union activity seemed to have reached its height, the warnings,
as Cronn testified, "were real heavy."
During May, June, and July, there was a lull in union activity and Cronn
received no warnings or reprimands about her low production, even though, as at
all other times, her production during this period did not meet Respondent's
standard.
In the latter part of July, employees again began to sign union cards and Cronn
again distributed union literature. On August 3, Cronn was in that area of the
plant in which employees, the previous day, had staged a brief work stoppage,
apparently in protest against having received a wage increase which they considered
inadequate. Goethals, Respondent's production supervisor saw Cronn in this sec-
tion of Respondent's building and, although she told him she was "just walking
around," Goethals obviously thought Cronn's presence there was related to the
earlier work stoppage, for Goethals told Cronn that he knew what she was "up to"
and admonished her not "to start anything back here." Two days later Cronn was
called into the office and for the first time since the spring of the year warned
about her low production.
Also later on in August, and continuing through September, Cronn began, again,
to solicit union cards from employees, and on several occasions during August and
September she was again reprimanded for low production. Her final warning osten-
sibly for "not attempting to make a satisfactory performance" was in writing and
delivered to her on September 29. Five days later she was discharged.
The relationship of Cronn's warnings to her union activity, over a period of
more than a year, coming as they did when she was so engaged, or when it was
thought that she was, and slacking off when there was a lull in such conduct, is not,
in my opinion, a mere coincidence. Rather, I feel that the reprimands, although
professedly for low production, were engendered by Cronn's union activity.
The second factor tending to establish that Cronn's employment was not termi-
nated for low production is that the last time Respondent discharged a non-
probationary employee for this reason was in 1963, although since that time and
during Cronn's tenure as a machine taper a number of employees in addition to
Cronn failed to meet Respondent's quota.
Where, as in this case, a union adherent is discharged for a stated reason it is
appropriate to consider, in testing whether the discharge is actually for the reason
30 The discharge dates of the three probationers in question are November 13, 1963,
February 21, 1964, and March 9, 1964.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given, whether other employees have been similarly treated. See e.g. Southwire
Company, 159 NLRB 394; Ewell Engineering & Contracting Co., Inc., 134 NLRB
540, 542; John McAuliffe Ford, Inc., 134 NLRB 340, 341. In Southwire the Board
aptly stated in this regard, that "disparity of treatment [of an employee active on
behalf of a union] . . . in contrast with that accorded other employees similarly
situated, indicates that [the employee concerned] was treated in such a manner
because of his union activities."
Finally, there is the postdischarge announcement by Brown, a leadgirl and, as
I have found, a supervisor, that the "main reason [for the termination of Cronn's
employment] was because of the Union." This statement cannot lightly be disre-
garded 31 and must be taken into account in determining the real reason for Cronn's
discharge 32 When so considered, it sheds much light in this direction. It is, I feel,
another indicator showing that Cronn was not discharged for low production, but
because of her union activities on behalf of the Union.
In sum, when viewed in connection with Respondent's admitted opposition to
the Union the foregoing factors consisting of the relationship of the warnings and
reprimands issued to Cronn to her conduct on behalf of the Union and the union
activity in Respondent's plant, the disparate treatment accorded Cronin, and Brown's
statement as to the reason for Cronn's discharge convince me, and I so conclude,
that by discharging Cronn, Respondent violated Section 8(a)(3) and (1) of the Act.
F. Respondent's alleged independent violations of Section 8(a) (1) of the Act
As set forth above, at the trial the complaint was amended by adding a new para-
graph, 10(b), in which it was alleged that on March 15, 1966, Respondent "through
its supervisor and agent, Betty Brown, engaged in coercive interrogation of its
employees and in surveillance of its employees, with respect to their union desires
and inclinations" in violation of Section 8(a)(1) of the Act.
In support of this allegation the General Counsel called only one witness, Mary
Lou Clear, an employee of Respondent. She testified that sometime during the week
of March 21, 1966, Betty Brown, one of Respondent's leadgirls, told her and sev-
eral other employees that an unidentified person in Respondent's "main office" asked
her to obtain "the names of all the girls that belonged to the Union and give them
to [him]." Clear further testified that Brown told the same employees during the
course of this discussion that she would "not be a stool pigeon," and that "who is
for the union and who is not for the union" was none of her business.
Brown admitted talking to the employee as Clear testified. Brown stated, how-
ever, that she was recounting an incident which occurred in 1964, when Tex Retter,
then employed as a safety engineer by Respondent, asked her to "get names" of
employees who favored the union but that she refused to do so.
Even if Brown made the statement attributed to her by Clear, I cannot find that
such a statement in and of itself constituted coercive interrogation of employees or
surveillance of employees' union desires or inclinations. This statement merely
establishes that an unidentified man who was in Respondent's office asked a super-
visor to obtain names of union adherents and that the supervisor told the employees
that she would refuse to do so. This falls far short of the interference, restraint,
or coercion required to be shown before a violation of Section 8 (a)( I) of the Act
can be said to have taken place.
Inasmuch as the allegation of the complaint here under consideration is not other-
wise supported, I conclude that the General Counsel has not sustained his burden
of proving by a preponderance of the evidence that Respondent violated Section
3' Although Respondent denies Brown's supervisory status, it contends in its brief that
even if she should be found to be a supervisor and that she did in fact make the remark
in question it was an "isolated statement" and "not the type of interrogation that the . . .
Board has determined to be objectionable conduct." Respondent, however, seems to mis-
conceive the import of Brown's statement and the reason for which it was offered and
received in evidence The General Counsel does not allege it to be an "interrogation" viola-
tion of Section 8(a) (1) of the Act If it were so alleged, I would agree with Respondent.
Brown's statement was offered, it seems to me, as evidence of Respondent's motive in
discharging Cronn and was so received.
ii The Board has frequently relied on postdischarge statements of supervisors in deter-
mining the reason for discharge See e g, Rowe Furniture Corporation, 145 NLRB 1175,
1179, 1180 , Ewell Engineering d Contracting Co., Inc , 134 NLRB 540, 542 ; John
McAuliffe Ford, Inc, 134 NLRB 340, 341.
PARK SHERMAN CO . 1559
8(a)(1) of the Act in this regard. Accordingly, I will recommend that paragraph
10(b) of the complaint, as amended at the trial, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above, relating to Cronn's dis-
charge occurring in connection with its operations as set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in the unfair labor practices set forth
above, the Recommended Order will direct Respondent to cease and desist there-
from and to take the affirmative action normally required in such cases to effectu-
ate the policies of the Act. Any backpay found to be due to Cronn shall be com-
puted in accordance with the formula set forth in F. W. Woolworth Company, 90
NLRB 289, and shall include interest in the amount and manner provided for in
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Mary Cronn because of her membership in, and activities on
behalf of, the Union, thereby discouraging membership in, and activities on behalf
of, the Union, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent did not coercively interrogate its employees or engage in surveil-
lance of their union activities in violation of Section 8(a)(1) of the Act.
[Recommended Order omitted from publication.]
Park Sherman Company and Teamsters , Chauffeurs , Helpers
and Taxicab Drivers Local Union 327, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America . Cases 26-CA-2220, 2053, and 2253-2.
December 7, 1966
DECISION AND ORDER
On July 14, 1966, Trial Examiner Sidney J. Barban issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner further found that the Respond-
ent had not engaged in certain other unfair labor practices alleged
in the complaint and recommended the dismissal of these allegations.
161 NLRB No. 140.