Detroit Molded Plastic Corp.

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETROIT MOLDED PLASTIC CORPORATION and INTERNATIONAL UNION7 UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO. Case No. 7-CA-663. January ,2,1953 Decision and Order On September 15, 1952, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations, with the following modifications : 1. The coercive statements made by Plant Manager Stevens to the employees when they attempted to form a union in the plant are clear, and the Trial Examiner correctly found each of them to constitute violations of Section 8 (a) (1) of the Act. Against the consistent testimony of certain employees that he threatened to close the plant in reprisal, his admission was not worded exactly as reported in the Intermediate Report. More precisely, Stevens testified that he told several of the girls that, ". . . if I couldn't get along with the union, the union or anybody else didn't have strings on me; I could still quit if I couldn't get along and turn the keys over to Mr. Moats [the presi- dent]." In view of the direct and straightforward testimony of the employee witnesses who contradicted Stevens, we deem the wording of his admission of little importance, and, like the Trial Examiner, reject his denials. While the Board might not consider the particular state- ment he admittedly made to be coercive in other circumstances or standing in isolation, the employees, cognizant of his other and un- equivocal threats, would reasonably understand this particular an- nouncement as but another warning to discontinue their union activities. ' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. 102 NLRB No. 41. DETROIT MOLDED PLASTIC CORPORATION 569 2. We agree with the Trial Examiner's conclusion that Erma Wright was discharged because of her union activities and not, as the Respondent asserts, for the various alleged incompetencies charged to her at the hearing. It may well be that on the day of her discharge she incorrectly changed the oil pressure adjustment on the machine to which she was assigned at the moment. Whether the oil leak which then appeared was caused by her method of handling the machine, or whether it resulted from other defects in the machine, of which Plant Manager Stevens was aware and which he had attempted to correct earlier that very morning, the record does not clearly show. In any event, the precipitate manner in which he seized upon the machine breakdown as a reason for her discharge, disregarding, on this oc- casion, the general practice of shifting employees from machine to machine whenever one was idle for a while, strongly points to a motivation other than Wright's alleged inefficiency as an employee. Any doubt as to Stevens' unlawful purpose is fully dispelled by his statement that same morning to employee Bair that he was going to get rid of either Wright or Bair when he found out which 1 of the 2 was responsible for the Union. It is clear on the record that the Re- spondent knew of Wright's outstanding activities among the plant employees on behalf of the Union. In its exceptions, the Respondent contends that the record does not support the Trial Examiner's statement that it was common knowl- edge that Stevens had admitted discharging Wright because of her union activities. We find merit in this contention. However, this error in the Intermediate Report in no way detracts from the affirma- tive and persuasive evidence which proves that Stevens in fact dis- charged her for such reason. Accordingly, for these reasons, and upon the entire record, we find, like the Trial Examiner, that by dis- charging Wright, the Respondent violated Section 8 (a) (3) and (1) of the Act. Order Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Detroit Molded Plastic Corporation, Rochester, Michi- gan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees as to their union affiliation and activities or threatening them with reprisal because of their union membership or activities. (b) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, UAW-CIO, by discharging or discriminating in regard to the hire and tenure of employment of its employees. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, UAW-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain therefrom, except to the extent that such right may be affected by maintenance or membership agree- ment pursuant to Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Erma Wright immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make whole said Erma Wright for any loss of pay she may have suffered by reason of the discrimination practiced against her, in the manner set forth in the Intermediate Report in the section entitled "The Remedy." (b) Upon request make available to the Board or its agents, for examination and copying, all payroll and other records necessary to determine the amount of back pay due under the terms of this Order. (c) Post at its plant in Rochester, Michigan, copies of the notice attached hereto and marked "Appendix." 2 Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in conspicuous places, including all places where notices to employees are customarily posted. 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 Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." Appendix NOTICE TO ALL EMPLOYEES Pursuant to a decision and order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT DETROIT MOLDED PLASTIC CORPORATION 571 WORKERS OF AMERICA, UAW-CIO, or in any other labor organiza- tion of our employees, by discharging any of our employees or discriminating in any other manner in regard to their hire qr tenure of employment or any term or condition of their employ- ment. WE WILL NOT interrogate our employees in respect to their af- filiation or activities concerning the above-named union or any other labor organization. WE WILL NOT threaten our employees with reprisal because of their membership and activities in the above-named union or in any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist the above- named union or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Erma Wright immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to any seniority or other rights and privileges suffered as a result of the discrimination. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. DETROIT MOLDED PLASTIC CORPORATION, Employer. Dated -------------- By ------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE This matter arises upon the complaint dated July 15, 1952, by the General Counsel for the National Labor Relations Board, herein called the General ' The complaint is based upon a charge filed October 18, 1951, by International Union, United Automobile , Aircraft and Agricultural Implement Workers of America, UAW- CIO, hereinafter called the Union. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel' and the Board respectively, through the Regional Director for the Seventh Region (Detroit, Michigan), against Detroit Molded Plastic Corporation, herein called the Respondent, which alleged in substance that: (1) Since on or about September 26, 1951, the Respondent had in various enumerated ways interfered with, restrained, and coerced its employees; and (2) that the Re- spondent discharged Erma Wright on September 28, 1951, and Helen Shippey on February 26, 1952, because of their activities on behalf of the Union, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the charge, the complaint, and the notice of hearing thereon were duly served upon the Respondent and the Union. The Respondent filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held in Detroit, Michigan, from August 5 to August 7, 1952, before the undersigned Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel. All parties par- ticipated in the hearing and were given full opportunity to be heard, to examine and to cross-examine witnesses, to introduce evidence bearing upon the issues, and to present oral argument, and to file briefs and proposed findings of fact or conclusions of law or both. At the conclusion of the hearing oral argument was waived. No briefs have been received. Upon the entire record in the case, and from the observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Detroit Molded Plastic Corporation is, and at all times herein mentioned was, a corporation organized under and existing by virtue of the laws of the State of Michigan, having its principal corporate and general office in Detroit, Michigan, and is now, and at all times hereinafter mentioned was, engaged in the manufacture of plastic molding and wall tile at its only plant located at Rochester, Michigan. The principal raw material used by Respondent in its operations is plastic material. Respondent, in the usual course and conduct of its aforementioned business, causes, and has continuously caused over a long period of time to the date of the hearing, substantial quantities of raw material and equipment used in the manufacture of its products to be purchased and transported in interstate commerce from points located in States other than the State of Michigan to its aforementioned place of business in Rochester, Michigan. The Re- spondent also causes, and also has continuously caused over a long period of time, substantial quantities of products produced by it to be sold and trans- ported from its aforementioned plant in Rochester, Michigan, to points located outside the State of Michigan. Raw materials purchased by the Respondent during the year 1951 were valued in excess of $100,000, of which approximately 90 percent in dollar value represented direct shipments to its plant in Rochester, Michigan, from points outside the State of Michigan. During the same period, the Respondent's sales of aforementioned finished products were valued at approximately $100,000, of which 10 percent in dollar value represented direct 2 This term specifically includes the counsel for the General Counsel appearing at the hearing. DETROIT MOLDED PLASTIC CORPORATION 573' shipment by the Respondent to points located outside the State of Michigan. Approximately $70,000 in value of the said sales by the Respondent were made to Alo Tile Company, Detroit, Michigan. The aforesaid Alo Tile Company an- nually ships in excess of $25,000 in value of its products from its place of busi- ness in Michigan to points located outside the State of Michigan. The Respondent admits, and the undersigned finds, that the Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, UAW-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The discharge of Erma Wright In the fall of 1951 the Respondent's plant was operating 3 shifts per day. At that time it employed approximately 27 or 28 persons of whom a large majority worked on the 7 a. in. to 3 p. In. shift. A good proportion of the employees were women operating various machines and doing assembly work. While George Stevens, the Respondent's plant manager, was in full charge at the plant, he did have certain recognized key employees whose services he utilized in order to relieve himself of the lesser supervisory duties such as training new employees, transmitting orders, and generally laying out the work. During the day shift Stevens relied heavily on the Marzion sisters, Blanche and Betty, both of whom had been steady employees during the 7 or 8 years Stevens had been in charge of the plant and who, in addition, had experience on all the operations and machines in the plant. These employees along with Josephine Kubitz, another similar old-time key employee who also did the office work in- cluding confidential secretarial work, gave instructions to the other employees as well as doing other supervisory duties. On the other and smaller second and third shifts Frank Garnett and Harold Schwark were the keymen with similar restricted supervisory duties. Each of the above-named employees re- ceived the highest rate of pay, approximately one-third higher than the hiring- in rate. Their positions were such that if they gave an employee an order, the employee would obey it.' Sometime in September 1951, an attempt was made to organize the employees of the Respondent into the Union.' As Kubitz, the office girl who did every- thing needed in the plant from confidential typing to truck driving, testified everybody knew that the employees were trying to organize. When Stevens interviewed Dorothy Bair as an applicant for employment in August 1951, he told her "we don't have a union and we don't want one." Stevens testified that some 5 years previously he had received instructions from Respondent's president, Moats, not to interfere if the employees wanted a union. Although he stated that he had followed these instructions to the letter, Stevens admitted that in October he had told an employee who inquired 8 The Respondent's employee witnesses admitted taking orders from the above-named individuals although, without exception and in most instances without proof, they all testified that the orders they received were all relayed to them from Stevens. However, they obeyed such instructions whether relayed or not. 4 From interrogation of various employees Stevens knew as early as July 1951 that the employees were interested in unionization. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what he thought about the Union, that there was nothing he could do to stop a union from coming in the plant but, if he could not get along with the Union, he could still quit and turn the keys over to Mr. Moats. Stevens acknowledged making this same statement to several employees. The threat to close the plant is so patent that it is clearly coercive and, therefore, a violation of Section 8 (a) (1) of the Act. This is no such statement of opinion as would be pro- tected under Section 8 (c) of the Act. On the afternoon of September 26, 1951, various employees were surrepti- tiously given slips of paper inviting them to a meeting at the home of employee Erma Wright who had first been employed by the Respondent on July 2, 1951. The meeting was attended by 7 employees as well as Union Representative Ted Chilson whose attendance had been arranged for by Wright. All 7 of the em- ployees including Wright executed cards applying for membership in the Union. At this time Wright used her automobile for a car pool to transport employees to and from the plant. Among other riders in this pool were the Marzion sisters, Blanche and Betty. As Wright dropped the Marzion sisters at their home on the evening of September 27, she gave each of them a union-application card and asked them to sign. Both sisters accepted the cards but neither signed nor returned the cards to Wright. The following day, September 28, Wright returned to work as usual but early that morning, Harold Schwark took occasion to pass by her machine and to whisper to her that Stevens knew about the Union and knew that 1 of the 2 girls who started it was working in the tile room 5 When Wright returned from her morning rest period, she found Stevens standing by her machine. Stevens told her that her machine was not working well, that he was going to transfer the work of that machine to another machine and let her machine stand idle, and that when a machine was down, the operator was automatically laid off. He also stated that Wright had never "put out production" since she had been employed and that in the "last half hour" she had not done much, and therefore she was laid off and should check out. During this discussion Stevens added: "I won't have a god-damned union in there, I'll close the doors first." With that he ordered Wright to check out. Wright thereupon left the plant and has never been reemployed since. Shortly after the morning recess that same day employee Dorothy Bair, one of the employees who had received an invitaton to the meeting at the Wright home and who had executed a union-application card there, was sent to Stevens' office by Betty Marzion. When Bair arrived at the office, Stevens first told her that once the Respondent had paid for its machines, it had great things in store for the employees: bonuses, vacations with pay, and paid holidays. Then he inquired if Bair had attended the union meeting and if she had signed a union card. To both Bair answered in the affirmative. He asked if Erma (Wright) had said anything to her about the Union and then stated that it was either Wright or Bair who had started the Union, that he was going to have to let Erma go, and that if he found that Bair was in it too, he would have to let her go also. He added that if the employees did not get ther union-application cards back, he would fire all the employees and that if the Union got into the plant, he would just close the doors as he did not want any part of it.' s Although working for the Respondent, Schwark was not called as a witness. 6 Stevens denied that any such conversation as the above had ever occurred although he did recall a conference with Bair in his office at which he showed her how products should be packaged. Stevens also denied having had any conversation with the employees in regard to the Union until he finally admitted telling several employees that he would close the doors of the plant if he could not get along with the Union. In this and other regards Stevens proved to be a somewhat forgetful witness on matters pertaining to the Union. The undersigned, therefore , accepts the testimony of Bair as found above. DETROIT MOLDED PLASTIC CORPORATION 575 The Respondent's defense was that Stevens had discharged Erma Wright because her production was very poor and, apparently, because on September 28, 1951, the day of her discharge, the machine on which she had been working sprang an oil leak. Stevens further testified that he had transferred Wright from one job to another mainly trying to find a job she could do. But he also testified, as did all the women employees who testified at the hearing, that the women were per- petually being shifted around from one job to another ; in fact, that the women employees on their own and without orders from the Respondent shifted them- selves from one job to another as they desired . And what is more Stevens later testified that an employee "had to learn to operate several jobs before she is valuable" to him because of these frequent transfers from job to job. Therefore it becomes obvious that changing from machine to machine and from job to job is standard policy for Stevens so that Wright's frequent changes of job can be attributed to something other than her poor workmanship. The Respondent also introduced the production records for Wright for the following periods : September 4-7 inclusive ; September 10-14 inclusive ; and the separate dates of September 17, 20, 25, 26 together with one undated production card. Why these specific production cards were selected for introduction into evidence was not specified. However, it is a fair assumption that her other production cards were at least no worse than the ones produced. Nor did the Respondent chose to compare Wright's production with that of any other em- ployee It did, however, have Stevens testify as to what "normal production" should be on the various jobs upon which Wright worked. Although Stevens supposedly was testifying to "normal production," it is clear from his testimony that he was in fact testifying to "top production" because in one instance where his own counsel indicated skepticism, Stevens cited the fact that one particular girl was able to make the production figure which he named as "normal." While testifying as to what production should have been on a machine known as the "Little Lester," a machine having a baking time of 2 minutes for the product and requiring the operator thereafter to clean and fill the molds as well as to set certain pegs therein, Stevens ascertained "normal production" by dividing the 60 minutes in an hour by 3, the time he estimated it would require the operator to perform her operation including the baking time, and then multiplying the resultant 20 by the number of pieces held by the mold (6 in this case) in each baking period. Thus it is obvious that what Stevens was actually figuring was "top production" and not "normal production" for he made no allowances for down time on the machines or other interruptions in production which are bound to occur. By this method Stevens arrived at what he called a normal production figure of 960 pieces per 8-hour day for the "Little Lester" machine. However, the record shows that Wright took 4 minutes per heat (instead of the 3 minutes which Stevens said was possible) which by Stevens' method of arriving at nor- mal production would give us a figure of 720 pieces as "normal production." On September 20, 25, and 26, the only days Wright appears to have worked upon the "Little Lester" machine in her last week of employment, Wright produced 820, 732, and 824 pieces, respectively. Thus in the last week of Wright's employment it would appear that Wright was producing at least at a normal rate. It is noteworthy that the Respondent chose not to compare Wright's production with that of any of the operators on the other 2 shifts or, indeed, with any other em- ployee in the plant. It is well known that production which utilizes the human element never equals the maximum production possibility of a machine. It cannot, for humans are not machines. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing the Respondent also criticized Wright 's work because of the excessive scrap produced. Again, Stevens testified that 5 percent would be the maximum allowance for scrap. But again the Respondent produced no proof beyond Stevens' word that 5 percent scrap was the maximum . Wright's record on scrap was not compared to that of any other operators on the same machines although that machine apparently operated during all 3 shifts so that comparison was possible. Wright's scrap record ran beyond Stevens' theoretical 5 percent maximum, sometimes far beyond it as on September 13 and 14 when it ran close to 40 percent according to the record . On some days, therefore, the scrap record appears to have been excessive . On the other hand Wright admittedly had had trouble in operating that particular machine in the past and had complained on numerous occasions to Stevens that the machine was not operating properly so that it is possible that the machine may have had something to do with the amount of scrap produced. While the Respondent criticized Wright at the hearing for the amount of scrap she allegedly produced , it is notable that, even when Wright acknowledged that she was having trouble with the machines, the Respondent never criticized her for it during her employment. The production records produced by the Respondent are also notable for another fact: Both Wright's production and her scrap were steadily improving throughout this period, this being particularly noticeable during the week following September 20. It is also noticeable that until Wright became active on behalf of the Union, her scrap record did not bother the Respondent. Also Respondent's method of determining the amount of scrap appears to have been somewhat haphazard and casual. Stevens cited an instance of a shipment of parts to a customer in the north- western part of the United States which was rejected by that customer for im- perfections which the Respondent claimed had been performed by Wright. As this shipment should have passed inspection in the Respondent's plant, it would appear that the shipment was rejected by the customer for reasons beyond Wright's control and contrary to Respondent's own inspection requirements. As this shipment was rejected early in August 1951 and as Wright was not dis- charged for allegedly causing the Company this loss of $350, it would appear that the Respondent itself did not consider the matter too serious, at least as it affected Wright's continued employment. In addition to the above the Respondent's records prove not to be too reliable because the records for September 6, 1951, produced by the Respondent at the hearing prove Wright to have spent the same 8 hours from 7 a. in. to 3: 30 p. in. working on 2 separate and distinct jobs for the full day. In other words, the Respondent produced 2 complete and different sets of production records for Wright for September 6, 1951, showing her to have been working on 2 different jobs during the same 8-hour period. Stevens also appeared to blame Wright for an oil leak which developed in the "Little Lester" while she was working on it on September 28 because of the fact, as Stevens testified, that he found the pressure on her machine to have been regulated to 2,500 pounds at the time he came to repair the machine. There is no evidence in this case that an employee was forbidden to regulate the pressure on a machine. In addition, if the pressure on a machine can be regu- lated to 2,500 pounds as the "Little Lester" could be, according to Stevens' testimony, then apparently the manufacturer has built his machine to accommo- date such pressure. It is therefore difficult to understand why Wright should be criticized because the machine sprang an oil leak at that pressure assuming that she did regulate the pressure. DETROIT MOLDED PLASTIC CORPORATION 577 Thus the evidence is quite convincing that Stevens did not discharge Wright because of any production defects, especially as he testified that employees were on probation for approximately 1 month during which time he was usually able to tell whether the operator was competent or not. In fact Stevens' only doubt about this 30-day probation period was whether the employee would be able to learn to operate a sufficient number of the Respondent's machines during that period. The fact that Wright had successfully passed the probationary period would indicate that the Respondent considered her to be a competent employee. The Respondent here obviously did not want a union in the plant. It also, clearly knew of the union meeting held at the Wright home 2 days before her discharge. It also knew that Wright was one of the instigators of the uniom movement. It was common knowledge at the plant that Stevens had stated that he discharged Wright for her activities for the Union. The whole record of this case indicates that the Respondent took violent exception to Wright's activities on behalf of the Union by discharging her for those activities on September 28, 1951, and the undersigned so finds. As the discharge was clearly for the purpose of eliminating Wright's union activities and in order to dis- courage membership in the Union, it was in violation of Section 8 (a) (3) of the Act. B. Interference, restraint , and coercion As noted heretofore, Stevens admitted having told several employees during the time the Union was attempting to organize the employees that it was up to the employees if they wanted a union, but if he could not get along with the Union he could always close the doors and give the keys of the shop back to Moats. The so-called condition attached to this remark does not eliminate the patent threat contained therein and thus the statement is not protected under Section 8 (c) of the Act. In addition there is competent testimony in the record that Stevens made the remark to other employees without the alleged condition. The undersigned credits the testimony that Stevens threatened to close the plant if the Union came into the plant. In either event the statements amounted to interference, restraint, and coercion of the Respondent's employees in the exercise of the rights guaranteed to them in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. About October 23, 1951, or earlier, Josephine Kubitz, Respondent's office girl and etc., typed up a schedule on Respondent's stationery headed : "Do we, the employees of Detroit Molded Plastic Company, want a Union?" Following this heading all the employees were listed by name with space designated so that each could check either "yes" or "no" to signify their individual choice. This petition, as it was called during the hearing, was passed among the em- ployees during working hours in the plant and each was requested to record his or her choice. In most instances the solicitation was done by Kubitz but Stevens himself called certain employees to the office and requested them to record their choice or, in one instance, sent employee Werth to his office to get the petition off Stevens' desk and to record his vote. On another occasion Kubitz brought the petition to a number of the women employees in the rest- room and, after requesting them to vote whichever way they wanted to, pro- ceeded to state that she did not want a union because the first thing a union would do would be to go on strike and then "we'd lose our cars." This state- ment was explainediily employ-Madeline Long-who heard and repeated it. to mean that, without a job, those buying automobiles on the installment plan would be unable to keep up the payments so that their automobiles would be 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repossessed. Each and every employee of the Respondent voted "no" on the petition. Such interrogation by an employer of employees as to their union membership, affiliation, or sympathy, has always been held to be an interference with the rights of the employees to form, join, and assist unions of their own choosing and therefore a violation of Section 8 (a) (1) of the Act! The Respondent here, however, contended that it was not responsible for this petition. The evidence proved at least that Respondent gave permission to Kubitz to type up the petition on Respondent's stationery and to circulate it among all the employees in the plant during working hours. Without more the employees were thus led to believe that the petition was official business of the Respondent. However, the evidence further proved that, over and beyond the above, Stevens himself instructed employees to record their preferences thus making the petition official business of the Respondent beyond the peradventure of a doubt. Also Stevens acknowledged that he knew where the petition was and the facts show that he was sufficiently interested therein to peruse it. Obviously the petition was in fact the act of the Respondent. In view of this, the evidence produced by the Respondent that some, if not all, of the employees testified that they voted "voluntarily" is immaterial. The Respondent was interfering in a matter in which it had no interest and, in fact, was forbidden by statute to interfere. If and when the time had ever come for the employees of the Respondent to express their opinion as to whether or not they desired the Union to represent them in collective bargaining, the Board has a procedure whereby that opinion may be expressed freely and without fear of reprisals from an employer. Accordingly, the undersigned finds that by permitting the circulation of the petition on company time and property and by requiring the employees to record their union sympathies for the Respondent's information, the Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. Furthermore, the Respondent's own witnesses convicted the Respondent of illegal interrogation of its employees concerning union matters, if not of actual espionage, when, as Jo Kubitz testified, Stevens asked her if she had heard anything about union activities. This interrogation also is a violation of Section 8 (a) (1) of the Act and is so found. Employee Margaret Deneen joined the Union at the request of Erma Wright at her (Deneen's) home sometime prior to October 5, 1951. On that last date Deneen appeared in Stevens' office in the afternoon to pick up her check which was given to her by Stevens. After giving her the check, Stevens asked if she had ever seen a union card and showed her one. After Deneen denied having seen one, Stevens said : "If you girls join the Union, [he'd] shut the doors, lock the doors." About October 12, when Deneen again reported at the office for her weekly check, Stevens handed Deneen the aforementioned petition, asked her to read it over and sign it. Deneen answered the question "no." In accordance with the conclusions above expressed, the undersigned finds that the acts and statements of Stevens to Deneen constitute an invasion of the rights guaranteed to the employees and, thus , a violation of Section 8 (a) (1) of the Act. C. The alleged discharge of Helen Shippey Helen Shippey began working for the Reslibndent on July 11, 1951, on the 11 p. in. to 7 a. in. "graveyard"-shift. Admittedly she was a good worker, as 'Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; Meier and Frank Co., Inc., 89 NLRB 1016. DETROIT MOLDED PLASTIC CORPORATION 579 Stevens expressed a desire that she return to work as soon as it was physically possible for her to do so. Shippey signed a union-application card and became a member of the Union. About the time of the Wright discharge, Harold Schwark, who had been intro- duced to Shippey as her "foreman," notified Shippey in casual conversation that Stevens had discharged Erma "on account of joining the union." During the epurse of this conversation, Schwark also said : "George [Stevens] said he would lock the doors within 24 hours if the union came in." On October 2 as Shippey was checking out at 7 a. m., Schwark told her that Stevens wanted to talk to her about the Union. Later that morning when Shippey saw Stevens, Shippey opened the conversation by saying: "Mr. Stevens, I want this union talk straightened out . . . I wasn't going to get blamed for something which I didn't have anything to do with." Stevens informed Shippey that he had "Harold and the foremen" checking up on the girls on their shift to see who had been doing any talking about the Union and that Schwark had said that Shippey was talking about the Union.' After Shippey assured Stevens that she didn't "have anything to do with it," Stevens said : "Helen, I believe you." On or about October 12, payday, Shippey reported at Stevens' office for her check. At this time Stevens handed Shippey the petition and asked her to sign whether she wanted the Union or not. After looking at the document Shippey said, "I'm going to sign 'no."' She did so. Helen Shippey's work and attendance record for the last 22 weeks of her employment by the Respondent indicates that she was in actual attendance at work for 7093/4 hours out of a total of 880 hours. The record shows that Shippey was absent from the plant at least 1 out of the 5 working days in 13 of those 22 weeks. This record also shows that Shippey worked 1 day in each of her last 2 weeks of employment. Sometime about the early part of February 1952 Stevens called Shippey to his office and, showing her a copy of her attendance record, objected that her absentee record was excessive and requested her to do better. On February 11, 1952, Shippey came down with a cold and was unable to work that week except for 1 day. When Shippey telephoned Stevens on February 17 to tell him that she was ready to return to work, Stevens stated that that would be all right but there were to be no more layoffs. On February 18, Shippey returned to work wearing 3 union buttons, 1 each on her coat, dress, and sweater. These buttons were noted by Stevens but he said nothing. Shippey was sick again from February 19 to February 25, when she again telephoned Stevens that she was ready to return to work. On this occasion Stevens was agreeable but told her that she had to have a physical examination by one Doctor Woodruff, who happened to be both the plant doctor as well as Shippey's own personal physician. On February 25 Doctor Woodruff made his medical report on Shippey to the Respondent and ended the report with the following: "This patient's activities should be restricted. We would advise against severe efforts at all times, Steady work not advisable." On February 26 when Shippey reported to Stevens at the plant, Stevens told her of the medical report and that it required that Shippey be given part-time work but that the Respondent did not have any ,such part-time work. Since that time Shippey has never been employed by the Respondent. This threat of supervisory surveillance also constitutes an independent violation of Section 8 (a) (1) of the Act. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, on February 29, Shippey telephoned to Stevens asking if there were some work for her and Stevens answered : "No, Helen, not right now . . . you had no business wearing a union button in a nonunion shop." Since that time Shippey has been unemployed. Under the almost undisputed facts of the Shippey layoff, the undersigned can only find that the Respondent laid off Shippey because of her record of excessive absenteeism caused by her own unfortunate physical condition. The undersigned cannot see that this layoff was motivated in any manner by Shippey's activities for and on behalf of the Union which had remained in a quiescent state from October until the display of a plethora of union buttons on February 18, some- time after the Respondent had started to complain about Shippey's absenteeism. In addition, the medical report of the doctor shows that Shippey was in no physical condition for strenuous steady employment such as appears to be the only type of employment which the Respondent had available. Therefore, the undersigned will recommend that the complaint be dismissed as to Helen Shippey. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent on September 28, 1951, discharged Erma Wright in order to discourage membership in the Union. The undersigned will, therefore, recommend that the Respondent immediately reinstate Erma Wright to her former or substantially equivalent position without any loss of seniority or other rights and privileges and that it make her whole for any loss of pay which she may have suffered by reason of the Respondent's discrimi- nation against her by payment to her of a sum of money equal to the amount she normally would have earned as wages from the date of her discharge to the date of her reinstatement less her net earnings during said period to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the back pay due. Upon a consideration of the record as a whole, the undersigned is convinced that the Respondent's conduct in employing the many techniques it did in order to try to prevent the unionization of its employees, indicates an attitude of oppo- sition to the purposes of the Act generally In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs commerce, and thus effectuates the policies of the Act, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed the employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following : F. W. WOOLWORTH COMPANY 581 CONCLUSIONS OF LAW . 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, UAW-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discharging Erma Wright on September 28, 1951, in order to discourage membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. By laying off Helen Shippey on February 25, 1952, the Respondent did not commit an unfair labor practice. [Recommendations omitted from publication in this volume.] F. W. WOOLWORTH COMPANY and RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL. Case No. 9-CA-195. January 27, 1953 Decision and Order On November 13, 1952, Trial Examiner A. Bruce Hunt issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in .and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board I has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board , has delegated Its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. 2 Bonwit-Teller, Inc. v. N. L. R. B., 197 F. 2d 640, enforcing 96 NLRB 608. 102 NLRB No. 55. 250983-vol.102--53 38