Burke Golf Equipment Corp.

BURKE GOLF EQUIPMENT CORPORATION 241 supervisors within the meaning of the Act and include them in the unit.? Dispatcher: This employee determines the flow of goods within the plant pursuant to the production schedule set by the production manager. He transmits instructions as to the priority of work and sees to it that all necessary parts are available at the proper time for assembly. He also does some actual handling of materials. We find that he is a plant clerical employee and include him in the unit.,, Senior time-study engineer: As there is no incumbent in this posi- tion, we shall not make a determination at the present time.9 We find that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's Roanoke, Illinois, plant, including the inventory control clerk, standards-cost clerk, inspectors, dispatcher, the linemen of tool crib, pumps, assembly, lathers, mills, saw and torch cut, and welding line- men, the maintenance leadman, the lead stockman, and the lead inspec- tor, but excluding officer clerical employees, professional employees, the junior methods engineer, guards, and supervisors as defined in the Act. 5. The Employer contends that its employee complement, will sea- sonably increase in April 1960, and at that time reach a peak of 150 to 160 employees in the unit. There are presently 90 to 100 employees in most of the classifications. Inasmuch as the current season will have begun and peak seasonal employment will have been reached within our usual time for holding elections, we shall direct an immedi- ate election in this case.10 [Text of Direction of Election omitted from publication.] 7 Mayfair Industries, Incorporated, supra 0Fairbanhs, Morse & Company, 117 NLRB 1449, 1452 (scheduler). 9 Hamilton Watch Company, 118 NLRB 591, 592, footnote 4 10 Central San Pacente, Inc., 117 NLRB 397, 399 Burke Golf Equipment Corporation and Textile Workers Union of America, AFL-CIO. Case No. 8-CA-1817. April 18, 1960 DECISION AND ORDER On August 18, 1959, Trial Examiner James T. Rasbury issued his Intermediate Report in the above -entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in 127 NLRB No. 32. 560940-61-vol. 127-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report together with a supporting brief. The Re- spondent filed a brief in support of the Intermediate Report in reply to the exceptions of the General Counsel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and finds merit in some of the General Counsel's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order. The complaint alleges in substance that the Respondent violated Section 8(a) (1) and (3) of the Act, respectively, by causing a poll to be taken among its employees for the purpose of determining whether they were in favor of the Textile Workers, by interrogating employees in an unlawful manner, and by the discriminatory discharge of em- ployee Edwards and the discriminatory layoff of employee Dupler. The Respondent defends on the grounds that: (a) It did not cause the poll to be taken; (b) the interrogations of employees were for a lawful purpose; and (c) the discharge of Edwards and the layoff of Dupler were motivated by valid economic reasons. The Trial Ex- aminer found in favor of the Respondent with respect to all complaint allegations. We do not agree with his recommendation that the com- plaint be dismissed in toto, in part because we believe that the Trial Examiner arrived at his conclusions without full consideration and analysis of all the pertinent evidence in the record. The record shows the following facts : l For some time before the fall of 1958, the Respondent had dealt with the Independent Golf Association as the bargaining representative of its employees. Some- time in September or October 1958, the Charging Union, herein called the Textile Workers, commenced a drive to organize the Respondent's employees 2 Schaffner, the Respondent's president, heard of these activities and that they were carried on during meetings of the Inde- pendent. He asked for an explanation from Dodson, president of the Independent Union, who at that time had already signed an authori- zation card for the Textile Workers. Schaffner indicated, according to his testimony, that if in fact a majority of the employees preferred the Textile Workers then the thing to do was to discuss it with "them." 1 The Trial Examiner did not discredit the testimony of the General Counsel's wit- nesses. At one point of the Intermediate Report lie specifically mentions that his findings are based on his "observations of the demeanor and candor of both General Counsel's and Respondent's witnesses." Our factual findings take into account the testimony of all the witnesses in this case. a Official Board records show that the Textile Workers Union filed a representation petition on October 31, 1958. Case No. 8-RC-3319. BURKE GOLF EQUIPMENT CORPORATION 243 0 Dodson expressed his uncertainty as to whether or not the Textile Workers had a majority and said that he would take the matter under advisement. Shortly thereafter, a poll was taken by shop committee- men of the Independent Union, according to Dodson's testimony upon his direction. The poll showed an overwhelming majority in favor of the Textile Workers. Nevertheless, Dodson expressed the opinion that the Textile Workers should not be recognized by the Respondent without a Board-conducted election because he felt that the few re- maining loyal members of the Independent should have an opportu- nity to express their desires in an official election. Schaffner, although at that time he had already had an expression of the employees' de- sires through the poll, and although he knew that a Board-conducted' election was imminent, circulated in the plant and interrogated 30 out of the 60 employees, some of them repeatedly, as to their union allegiance, union activities, and happenings at union meetings. In the course of the interrogation of employee Pickrel, Schaffner stated that she and employee Grace Dupler "were two of the biggest banner carriers of the CIO." The Board-conducted election took place on December 9, 1958. By that time the overwhelming majority for the Textile Workers shown in the poll conducted by the Independent had substantially decreased. The Textile Workers obtained 24 votes, the Independent, 20 votes; 13 votes were cast against representation by labor organizations, and 3 votes were challenged. This development required a runoff election which, however, has not as yet been held, pending the disposition of the unfair labor practice charges against the Respondent. Five days after the election on December 16, 1958, employee Edwards was told by her foreman, Dush, that she was being discharged as of the same day. He stated that he did not know the reason for the action. Edwards went to the office of the vice president, Frankenbery, who explained that she had not been doing her work well, had been wandering around the plant, and had been guilty of excessive talking. President Schaffner gave her substantially the same reasons for her discharge. After her discharge Edwards was for some time a patient in a hospital. Foreman Dush visited her and told her that he was very sorry that he had to let her go and that he never had any com- plaints against her work. Edwards pressed for an explanation and said "You know and I know that I got let out because of the Union." Dush replied, according to Edwards' uncontroverted testimony : "Yes, I know that Jerry. I am sorry there is nothing I can do." 3 The record is clear and the Trial Examiner found that Edwards was a knowledgeable competent inspector of wood head golf clubs during the 51/2 years of her employment. During the last 3 years of her 8 Foreman Dush appeared as a witness at the hearing. He did not deny Edwards' testimony. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment she had been warned three times about unnecessarily talking to other employees. However, she was not told at these occa- sions, or on any other occasion, that disciplinary action would be taken against her if she continued to talk excessively.4 On the day of her discharge Vice President Frankenbery observed her for a period of about 5 minutes during which time she was away from her work area talking to employee Pickrel. An investigation, which Frankenbery did not undertake, would have shown that Edwards was away from her work area on company business and talking to Pickrel about work on a golf club that had to be performed by Pickrel's section. On January 7, 1959, employee Dupler was laid off by her foreman, Wright, on the ground that the Respondent wanted to replace her by a man. Dupler went to Frankenbery who told her that she was being laid off because two fellow employees, Harris and Bowman, objected to her filling a man's job. President Schaffner explained on the wit- ness stand that after the inconclusive election of December 9 he had approached Harris and Bowman with the following statement: Fellows, it is obvious there is some dissatisfaction in this plant with working conditions. Otherwise there would not have been 24 people going to the polls and voting for the Textile Workers. Now what is the problem in your department? Harris and Bowman, both polishers, complained, inter alia, that Dupler, as a woman, could not under State law make certain minor repairs on the golf clubs which she had inspected and that such defec- tive golf clubs had to be returned to the polishers thereby reducing their piece-rate wages. Although Schaffner on previous occasions, prior to the election, had rejected similar demands for the replacement of Dupler, he now complied. Approximately 2 months later, after the first charge herein, Dupler was rehired by the Respondent for a different job. We agree with the Trial Examiner that the evidence is not sufficient to ascribe the taking of the poll conducted by the Independent's shop committeemen to the Respondent, although it seems clear that the impetus for the poll was given by President Schaffner's discussion of the employees' union sympathies with Dodson. Moreover, there is no evidence to support a finding that at the time of Schaffner's dis- cussion with Dodson, Schaffner had any other purpose in mind than to establish whether or not the Textile Workers had a majority which would permit Schaffner to recognize it as the bargaining representa- tive of the Respondent's employees .5 Accordingly, we shall, in 4 Other employees, male and female, also engaged in extended conversations, in some instances up to 45 minutes, without being warned or disciplined. 5 We do not adopt the Trial Examiner's statement to the effect that a poll taken or caused to be taken by a company is ipso facto a ground for finding a violation of the Act. BURKE GOLF EQUIPMENT CORPORATION 245 agreement with the Trial Examiner, dismiss the complaint insofar as it alleges that the Respondent violated Section 8 (a) (1) in connection with the taking of the poll. We do not agree with the Trial Examiner that the interrogations conducted by President Schaffner after the poll was taken and before the Board election was held were lawful. Schaffner knew that the poll had shown an overwhelming majority for the Textile Workers. He also knew that a secret election was scheduled by the Board in which any doubts he might have had about the reliability of the poll would be effectively resolved. There was, therefore, no legitimate reason for him to engage in questioning 30 out of 60 employees as to which of the two competing unions they favored. This questioning, which was repeated as to some employees and which contained no assurance to the employees that no reprisals against them would be taken for their sympathies for the Textile Workers, tended to create the impression that the Respondent, who obviously was on close terms with the president of the Independent Union, favored the latter and wanted to find out which of the employees opposed the favored Union. The rule of the Blue Flash Express, Inc. case,6 on which the Trial Examiner relies, does not apply to the situation herein. In Blue Flash the Board merely rejected the doctrine that interrogation is per se un- lawful. The Board held that where it is clear from the record that the only purpose was to ascertain whether a union demanding recogni- tion actually represented a majority, interrogations could be legiti- mate, provided that they were communicated to the employees with assurances against reprisals and provided that the questioning oc- curred in a background free from hostilities to unions. Here no such assurances were given, and during the interrogation of employee Pickrel the Respondent's President Schaffner clearly demonstrated his attitude towards supporters of the Textile Workers by referring to Pickrel and Grace Dupler as "two of the biggest banner carriers of the CIO." The Respondent's hostility towards the Textile Work- ers and his desire to reduce its voting strength were further demon- strated by the actions taken against Edwards and Dupler after the conclusive election and during the pendency of the runoff election. Under those circumstances, we find that Schaffner's interrogations tended to undermine the Textile Workers' organizational drive in favor of the Independent, which is borne out by the result of the De- cember election in which the overwhelming majority of the Textile Workers dropped to a mere plurality. We conclude that Schaffner's interrogations interfered with the concerted activities of Respond- ent's employees and that the Respondent thereby violated Section 8(a)(1) of the Act.' e 109 NLRB 591. 7 American Furniture Company, Inc., 118 NLRB 1139; anion Furniture Company, Inc., 118 NLRB 1148 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As mentioned heretofore, employee Edwards was a competent and efficient employee. During the 51/2 years of her employment there were not more than three or four instances where the Respondent had objected to her talking to other employees. She was discharged with- out an investigation. An inquiry would have shown that on Decem- ber 16 she engaged in a conversation on legitimate company business. The Respondent's officers told her that one of the reasons for her discharge was inefficiency. This they were unable to maintain on the witness stand. Moreover, Foreman Dush, a supervisor and agent of the Respondent, admitted to Edwards that her discharge was moti- vated by her union activities. This admission against interest clearly indicates that the alleged excessive talking of Edwards was a mere pretext veiling the true purpose of the Respondent of eliminating from the electorate in the pending runoff election an adherent of the Textile Workers. On the basis of- the record as a whole we find that Edwards was discharged for her union activities and that the Re- spondent thereby violated Section 8(a) (3) and (1) of the Act. As to employee Dupler, the undisputed facts show that Schaffner in a desire to find the causes of employee dissatisfaction which led to the plurality of the Textile Workers in the December election approached at least two employees to ascertain the causes for the dissatisfaction of the employees with plant working conditions. Such solicitation of grievances timed and designed to influence the outcome of a pending Board election to the detriment of one of two competing !unions constitutes an interference with the employees' concerted activities and a violation of Section 8(a) (1) of the Act.' Schaffner admitted that he laid off Dupler, who was a satisfactory employee for many years, so as to meet the desires of the employees whose griev- ances he had solicited. He also admitted that on prior occasions, be- fore the Textile Workers appeared on the scene, he had refused to lay off Dupler as requested by the polishers. It is clear to us that Dupler would not have been laid off had it not been for the desire of Schaffner to influence the votes of her fellow employees. Accordingly, we find that in laying off employee Dupler the Respondent violated Section 8 (a) (1) of the Act.' THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, in violation of Section 8(a) (1) and (3) of the Act, we shall order it to cease and desist therefrom, and take certain affirm- ative action designed to effectuate the policies of the Act. We have found that the Respondent discriminatorily discharged Geraldine Edwards on December 16, 1958, and discriminatorily laid 8 American Furniture Company, Inc., 118 NLRB 1139, 1140. 0 We find it unnecessary to decide whether or not the layoff of Dupler was also in viola- tion of Section 8(a) (3) of the Act, because the remedy necessary to effectuate the policies of the Act is identical in either case. Tex-Toga, Inc, 112 NLRB 968. BURKE GOLF EQUIPMENT CORPORATION 247 off Grace Dupler on January '1, 1959. Accordingly, we shall order the Respondent to offer these employees immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. We shall also direct the Respondent to reimburse the foregoing employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by paying to each of these employees a sum equal to the amount they normally would have earned as wages from the date of their discharge to the date of offer of reinstatement, less their net earnings, to be computed on a quarterly basis in the man- ner established by the Board in F. W. Woolworth Company, 90 NLRB 289, at 291-294. Earnings in one quarter shall have no effect upon the backpay liability for any other such period. It will also be recom- mended that the Respondent make available to the Board, upon request, payroll and other records to facilitate checking the backpay due. F. W. Woolworth Company, supra. Because the Trial Exam- iner recommended dismissal of the complaint, and in accordance with Board practice, we exclude from the above period the time from the date of the Intermediate Report to the date of the Order herein in computing the amount of backpay to which each employee is entitled.10 In view of our findings concerning the Respondent's discrimination against employees Edwards and Dupler, a potential threat of future violations exists which requires the inclusion of a broad cease-and- desist provision in our Order." CONCLUSIONS OF LAW 1. The Respondent, Burke Golf Equipment Corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their membership in, sympathies for, and activities on behalf of, the Textile Workers Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in respect to the hire and tenure of employ- ment of Geraldine Edwards and Grace Dupler, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act with respect to Edwards and Section 8 (a) (1) of the Act as to Dupler. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 10 Lewin-Mathes Company, Division of Cerro de Pasco Corporation, 126 NLRB 936. nN.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondent, Burke Golf Equipment Corporation, Newark, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, AFL-CIO, or any other labor organization, by discriminatorily discharging or laying off any of its employees because of their union membership or activities, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condi- tion of employment, except to the extent permitted by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. (b) Interrogating its employees as to their membership in, sympa- thies for, or activities on behalf of, the Textile Workers Union of America, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist Textile Workers Union of America, AFL-CIO, or any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, 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 organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Geraldine Edwards and Grace Dupler immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them by reason of the discrimination against them in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. (c) Post at its plant in Newark, Ohio, copies of the- notice attached hereto marked "Appendix." 12 Copies of said notice, to be furnished "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." BURKE GOLF EQUIPMENT CORPORATION 249 by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's representative, be posted by the Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT Is YURTIIER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent conducted or caused to be conducted a poll amongst its employees in violation of Section 8(a) (1) of the Act. MEMBERS RODGERS and JENKINS took no part in the consideration of the above Decision and 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 or activities on behalf of Textile Workers Union of America, AFL-CIO, or any other labor organization of our employees, by discriminatorily discharg- ing or laying off any of our employees because of their union membership or activities, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL NOT interrogate our employees as to their membership in, sympathies for, or activities on behalf of, Textile Workers Union of America, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self -organiza- tion, to form, join, or assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Geraldine Edwards and Grace Dupler immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make the above-named individuals whole for loss of pay suffered by them by reason of the discrimination against them. All our employees are free to become or remain members, or to refrain from becoming or remaining members, of any labor organiza- tion. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in, or activity on behalf of, any such labor organization. BURTiE GOLF EQUIPMENT 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 proceeding, with all parties represented, was heard in Newark , Ohio, on May 25 and 26, 1959, before the duly designated Trial Examiner on complaint of the General Counsel alleging violations by the Respondent of Section 8(a)(1) and (3) of the Labor Management Relations Act, hereinafter called the Act, and the answer of Respondent . The Respondent and the General Counsel submitted briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation duly organized and existing by the laws of the State of Ohio, having its place of business in Newark, Ohio. It is engaged in the manu- facturing and sale of golfing equipment . The complaint alleges and the answer admits that Respondent annually ships finished products outside the State of Ohio valued in excess of $50,000. 1 find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that the Textile Workers Union of America , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act in that it (1) caused a poll of the employees to be taken to determine if the BURKE GOLF EQUIPMENT CORPORATION 251 employees desired the Union; (2) by its officers interrogated, threatened, and promised benefits to the employees; (3) discriminatively discharged Geraldine Ed- wards, nee Danlee; and (4) discriminatively laid off Grace Dupler from January 7, 1959, until March 16, 1959, all in violation of the Act. The Respondent denies each of the allegations . I shall discuss seriatim each allegation and the proof relating thereto. A. Taking of a poll Respondent for a number of years had recognized and negotiated with an in- dependent union, known as the Independent Golf Workers. The latter part of 1958 the employees became interested in affiliating with the Textile Workers Union and on December 9, 1958, an inconclusive election was conducted by the National Labor Relations Board.' It is undisputed, however, that prior to the Board-conducted elec- tion and at a time during which company officers had knowledge of the asserted interest of the Textile Workers Union, a poll of the employees as to their union preference was taken. Under well-settled Board law this Trial Examiner must hold the taking of the poll to be violative of the Act if the poll was taken by the Re- spondent or the Respondent caused the poll to be taken. According to Ernest Dodson, president of the Independent Union at the time the Textile Workers Union officials were invited to appear at a meeting of the Independent Union, and an em- ployee who, like many others, had signed a Textile Workers' authorization card, the poll was taken at his direction by the Independent Union shop committeemen. Dodson testified that Schaffner, the Respondent's president, had not suggested the taking of the poll, but that the idea "was all mine, every bit of it." In spite of this direct and candid testimony by the party that caused the poll to be taken, the General Counsel seeks to attribute the poll taking to Schaffner because of certain hearsay testimony by employees Betty Pickrel, Geraldine Edwards, and Grace Dupler which the Trial Examiner felt was admissible under the particular circumstances and for a limited purpose. In view of the direct credited denial by Schaffner, the admis- sion by Dodson that the poll taking was his idea alone and that Schaffner had not caused him to take the poll, this aspect of the General Counsel's complaint must fail. I find, contrary to the allegations of the complaint, that Respondent did not take the employee poll or cause the poll to be taken. I shall recommend dismissal of this portion of the complaint. B. Interrogation, threats, and promises There is no question but that Schaffner , president of the Respondent , talked to a number of the employees concerning their feelings and attitude toward the Union. Schaffner's own testimony candidly admits discussions with rank-and-file employees concerning the Union . If such conversation, standing alone, regardless of the effect on the employees, is violative of Section 8(a)(1) of the Act, then this Respondent is guilty of violating the Act. However, such is not this Trial Examiner's understand- ing of the law. As the Board stated in Blue Flash Express, Inc., 109 NLRB 591, "In our view, the test is whether, under all the circumstances, the interrogation rea- sonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." In Blue Flash Express the Board specifically overruled and repudiated Standard-Coosa-Thatcher, 85 NLRB 1358, the Board case that had enunciated interrogation as unlawful per se. Not a single witness testified to any threats or promises of benefit by the Respondent either directly or veiled. Respond- ent is a small corporation employing approximately 60 people and the evidence in- dicated that Schaffner frequently wandered through the plant and talked with the employees. Most of the employees referred to Schaffner by his first name. There is no evidence of union animus by any member of management . What then was the reason behind Schaffner's union discussions with the employees? As previously indicated, Schaffner was an extremely frank, candid, and honest witness whose testimony I credit fully. If Respondent were guilty it could best be found in Schaffner's own admissions of his conversations with the employees . It does not seem unreasonable then to look at Schaffner's explanation of why he talked to the employees. The following testimony-which is corroborated by Dodson to the :'At the bearing the parties stipulated that in Case No. 8-RC-3319, the tally of ballots showed the following results : Votes cast for the Textile Workers Union of America, AFL- CIO, 24 ; votes cast for the Independent Golf Workers , 20; votes cast against the partici- pating labor organizations, 13; valid votes counted, 57 ; challenged ballots, 3 ; valid votes counted plus challenged ballots, 60. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent of his participation-provides what I find to be a reasonable explanation by Respondent. Q. Now, in order to be specific, did you on the occasion in early November, which you have spoken of, when you and Mr. Dodson were discussing the CIO and the independent union, did you suggest or cause to be taken a poll of the employees that Mr. Dodson took, or was that his idea? Whose idea was that? A. The poll was Mr. Dodson's idea. Q. As a result of the information from that poll to the effect that the majority of the members of the independent favored the Textile Workers Union, what did you advise Mr. Dodson? A. I told Mr. Dodson it seemed to me the Textile Workers had made a sale, and there remained only for them to come in and pick up the order. Q. And what did he at that time tell you? A. He told me at that time that he held an opposing view, that so long as there was one loyal member of the Independent Golf Workers-and he indi- cated that he himself could be that man-we should have an election. Q. Had you at that time discussed with any of the employees, individ- ually, whether or not they favored the Textile Workers or the CIO? A. I did immediately following that. Q. Now, after Mr. Dodson expressed the view to you that there should be an election, what did you tell him and what steps did the company take? A. I told him I would again take the matter under advisement, and I did. In the interim I spoke with several of our people and, frankly, I couldn't make up my mind whether the majority favored the Textile Workers or not. It seemed that they did. And when Mr. Reger [a Textile Workers' official who had earlier contacted Schaffner to arrange for a conference to discuss the Union's interest] phoned me, I was almost sure they favored it, and I was receptive to meeting him. However, the next two or three days later, two or three of our people made it very emphatic to me they felt in all fairness they should have a right to express an opinion in an election. Consequently, I phoned Mr. Reger and he was out of his office. I left the message with the secretary that it would not be possible for me to take lunch with him. I further felt that if Mr. Dodson and others felt as strongly as he did, I was reaching outside my power really to show favoritism to one union over another. As I understood the law, it was perfectly possible for me to talk about one union in favor of another, but not actually show favoritism, if I am making myself clear. After careful analysis of the record and from my observations of the demeanor and candor of both General Counsel and Respondent witnesses, I am convinced that nothing was done or said by Respondent that could reasonably tend to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. I shall recommend dismissal of that portion of the General Counsel's complaint dealing with interrogation, threats, and promises. C. Alleged discriminatory discharge of Geraldine Edwards, nee Danlee Geraldine Danlee Edwards had worked for the Respondent approximately 5'/z years. All but 6 weeks of that time had been spent as an inspector in the wood head department. There is no serious dispute as to the basic and relevant facts surrounding her discharge. Edwards was a knowledgeable and competent inspector of the wood head golf clubs when she stayed at the job. She was not known as an ardent union supporter and according to her own testimony did nothing more on behalf of the Union than sign an authorization card. On December 16, 1958, Edwards was discharged on order of John Frankenbery, vice president in charge of production, because, as he stated, on that morning he had observed her for a period of at least 5 minutes during which time she was away from her work area and was visiting with other employees. Edwards' own testimony admits of twice that she had been spoken to by manage- ment because of excessive visiting with other employees. Former officers of the Independent Golf Workers Union told of two or more occasions on which they had discussed Edwards' excessive talking problem because they had been told by Re- spondent that she must correct her ways. The evidence is overwhelming to the effect that Edwards had been warned about her excessive talking and visiting with other employees. I am likewise convinced from the record that Edwards' discharge was precipitated solely by her conduct on the morning of December 16, 1958, that was observed by Frankenbury. In order to establish an 8(a)(3) violation of the Act, there must be some evidence showing discrimination in tenure of employment BURKE GOLF EQUIPMENT CORPORATION 253 tending to encourage or discourage membership in any labor organization , or such must be a reasonable inference under all the circumstances . No such inference or evidence can be found in this record . I find that Mrs. Geraldine Danlee Edwards was discharged by Respondent because she was guilty , or believed by management to be guilty, of excessive talking with her fellow employees following adequate warnings. Respondent's conduct was not so unreasonable under all the circum- stances as to raise any suspicion or inference that Edwards ' discharge was in any manner connected with union activity or violative of Section 8(a)(3) of the Act. I shall recommend dismissal of that portion of the complaint alleging the discharge of Geraldine Danlee Edwards as violative of the Act. D. Alleged discriminatory layoff of Grace Dupler Again the basic facts surrounding the layoff of Grace Dupler from January 7, 1959, until March 16, 1959, were not in dispute . Similar to the allegation con- cerning Edwards, this is a problem of discerning motive. Grace Dupler was an- inspector in the iron head department . The quality of her work was satisfactory' to management and she was regarded as a good worker. She was not a vigorous protagonist for the Union , nor had she been instrumental in promoting their interest at the plant of Respondent , although she did sign a union authorization card and when nominated and elected to serve as an observer in the election conducted by the Board she accepted and did so serve. According to the testimony of Ralph Bowman,2 several employees in the polishing department were disgruntled because the Respondent had a woman inspector on the iron heads. Respondent had a bonus or incentive piece-rate plan and the income of the employees in the polishing depart- ment was affected by their individual production . Wnen iron heads that had minor defects were returned by the woman inspector to the individuals for reworking it naturally slowed down their piece-rate production and affected their pay . By State law a woman was not permitted to perform any work at the buffing or polishing machines . Immediately prior to Grace Dupler working as an inspector in the iron head department , a man had occupied the position and he customarily made some minor imperfection repairs in the course of his regular duties as an inspector. Be- cause a man inspector could and had in the past made such minor repairs, it allowed greater time for the regular polishers to increase their piece-rate production. Such a situation then created a real complaint or grievance by the employees in the polishing department and it was communicated to management . Respondent reluc- tantly acceded to the grievance of the complaining polishers and replaced Grace Dupler with a man. Dupler was laid off in January 7, 1959. She was recalled on March 16 , 1959, due to an increase in the production and sales of iron golf clubs, and given a job involving the painting of wood golf club heads at which she should regularly earn more money than she had as an inspector 3 The record is clear and it is difficult to understand how even the most imaginative individual could infer an illegal reason for the layoff of Grace Dupler . I find that Grace Dupler was laid off by the Respondent in the course of settling an employee grievance or complaint that was wholly unrelated to union activity or interest and Respondents action in this regard was not violative of any section of the Act. i shall recommend dismissal of the General Counsel's allegation of an unlawful layoff of Gi ace Dupler. Upon the above findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent 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 The Respondent has not violated Section 8 (a) (1) of the Act as alleged in the complaint 4 The Respondent has not engaged in conduct violative of Section 8(a)(3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] 2 A rank-and-file employee who had been president of the Independent Union and one of the individuals who had aided the Textile Workers in their organizational efforts at Respondent's plant 3 Dupler' s pay as an inspector averaged $71 45 per week for a representative period and $79 15 per week in her new job.