Dit-Mco, Inc.

DIT-MCO, INC. 269 ing a period when a union was conducting a campaign to unionize management's employees . Under all of the circumstances of this case , the interrogation indulged in reasonably tends to restrain and interfere with the rights guaranteed by Section 7 of the Act. I agree and subscribe to the rationale explicated by Trial Examiner A. Norman Somers dealing with interrogation in his Intermediate Report of General Industries, Inc. (121 NLRB 1608 ), and the rationale of Trial Examiner John F. Funke in his Intermediate Report of Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB 1031. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondent , set forth in section III, above, occurring in con- nection with the operations of the Respondent , described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action which will effectuate the purposes of the Act. Upon the basis of the above findings of fact, and upon the entire record in this 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. Retail Clerks International Association, AFL-CIO, Local No. 1549, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. [Recommendations omitted from publication.] Dit-Mco , Inc. and District Lodge 71, International Association of Machinists, AFL-CIO. Case No. 17-CA-1441. April 19,1960 DECISION AND ORDER On November 25, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation 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 Intermediate Report attached hereto. Thereafter, Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 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 Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with the following decision and order. 127 NLRB No. 44. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We agree with the Trial Examiner's conclusion that Respondent, through its production manager, Howard Beardsley, engaged in cer- tain unlawful acts of interrogation and threats, and created the impression of surveillance, as described more fully in the Intermediate Report. Accordingly, we find that Respondent independently vio- lated Section 8(a) (1), as alleged.' _ 2. We do not agree with the Trial Examiner's conclusion that Respondent violated Section 8(a) (3) by its discharge of employee Verle Jordison on April 30, 1959. Jordison was referred to Respondent by an employment agency in February 1959 for the position of shipping clerk. At his initial inter- view with Production Manager Beardsley, Jordison expressed re- luctance to accept the position at less than $2 an hour. However, Respondent offered only $1.65 an hour, and Jordison hesitated accept- ing until Saturday evening, February 28, when the employment agency advised him it was planning to refer another applicant for the job. Jordison reported to work the following Monday, March 2, and was hired by Beardsley subject to "a probationary period prior to the final acceptance." Thereafter, on April 30, 1959, the end of Jordison's probationary period, Beardsley asked Respondent's vice president, William Garmon, for permission to discharge Jordison. Beardsley informed Garmon that Jordison was dissatisfied with his rate of pay, and that he, Beardsley, was dissatisfied with Jordison's work. Garmon gave Beardsley permission to discharge Jordison. One of Beardsley's assistants, Bible, informed Jordison of his discharge on April 30, citing Jordison's unsatisfactory work record, and his dissatisfaction with his wages.2 On the basis of his analysis of the record, the Trial Examiner refused to accept Respondent's alleged reasons for discharging Jordison, and found, instead, that Jordison was discriminatorily dis- charged by Respondent to discourage his activities on behalf of District Lodge 71, International Association of Machinists, AFL-CIO. The Trial Examiner cited specifically Beardsley's coercive remarks to employees, including Jordison, hereinabove found to constitute vio- lations of Section 8(a) (1), and found Respondent's reasons offered in support of the discharge to be "vague, general, and unsupported by any documentary evidence." We disagree with the Trial Examiner's analysis of the record evidence. As stated in the Intermediate Report, Jordison was ques- tioned by Beardsley on April 28, 1959, about his union sympathies. 1In regard to Beardsley's remarks to the leadladies on May 1, overheard by employee Lilico, see Ford Radio d Mica Corporation, 115 NLRB 1046, 1047 2 Unlike the Trial Examiner, we find nothing unusual or "summary" about Bible's dis- charge of Jordison. According to Jordison's own testimony, Bible stated he was cus- tomaiily given the job of informing employees of their discharge. DIT-MCO, INC. 271 The previous day Jordison had attended a meeting of the Charging Party, along with several other employees of the Respondent.3 However, Jordison denied on this occasion Beardsley's allegation that lie had been talking extensively to other employees about the Union, and the record discloses that Jordison's union activities were, in fact, modest. During this conversation with Beardsley on April 28, Jordison reiterated his contention that he should be paid $2 per hour. The Respondent introduced testimony of three witnesses in support of its contention that Jordison was discharged for reasons not related to his union activities.4 Beardsley, whose employment with Re- spondent had terminated prior to the hearing, testified that Jordison made frequent errors, most of which were referred back to him for correction. Beardsley cited one instance, in particular, wherein Jordison had permitted the wrong expressman to pick up a shipment, but indicated that most of Jordison's mistakes were of the smaller, recurring variety. Beardsley also stated that Jordison had been observed wandering around the plant, rather than assisting in the storeroom as instructed. Albert Kerns, the former shipping clerk, had continued in Re- spondent's employ in another capacity, and was instructed to assist Jordison in learning his position. Kerns was thus able to observe the manner in which Jordison performed his duties. Kerns testified that Jordison made errors in paperwork, and confirmed Beardsley's testimony that Jordison had not assisted in the storeroom as directed. Donald Cairns, Respondent's supervisor in charge of test-out and quality control, testified that Jordison's work was such that Respond- ent's inspectors were required to spend more time in the shipping department than formerly, helping Jordison pack crates properly. Cairns stated he reported this fact to Beardsley on two occasions. Cairns also told Beardsley that Jordison had been observed standing around when he could have been assisting in the storeroom. A week or so prior to Jordison's discharge, Cairns was asked by Beardsley for a report on Jordison's work, and the aforementioned matters were discussed. As heretofore related, Jordison was discharged on April 30, at the end of his probationary period. In view of the evidence substantiat- ing the Respondent's ground for terminating Jordison as a proba- tionary employee, i.e., that his work was not satisfactory, and he was in addition dissatisfied with his pay, we are unable to agree with the Trial Examiner's conclusion that Jordison was discharged for dis- criminatory reasons. In our opinion, the General Counsel has not sustained the burden of proving discriminatory motivation for Jordi- 3 Respondent's employees were not represented by any labor organization for collective- bargaining purposes 4 Much of this evidence, as related herein, is not mentioned in the Intermediate Report. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son's discharge.' We shall, accordingly, dismiss this allegation of the complaint. ORDER Upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dit-Mco, Inc., Kansas City, Missouri, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees as to their membership in, or activities on behalf of, District Lodge 71, International Association of Machinists, AFL-CIO, or any other labor organization in a manner constituting interference, restraint, or coercion in violation of Sec- tion 8(a) (1). (b) Threatening reprisals against its employees because of their union sympathies and activities. (c) Creating the impression among employees that their union activities are under surveillance. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Kansas City, Missouri, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent's representatives, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places where notices to its 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. (b) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondent discriminatorily dis- charged employee Verle Jordison on April 30, 1959, in violation of Section 8(a) (3) of the Act. MEMBERS BEAN and FANNING took no part in the consideration of the above Decision and Order. 5 See Howard Aero, Inc, 119 NLRB 1531, 1534-1537. ° In the event that this Oider is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Ordei" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." DIT-MCO, INC. APPENDIX NOTICE TO ALL EMPLOYEES 273 Pursuant to it 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 interrogate our employees as to their membership -in or activities on behalf of District Lodge 71, International Association of Machinists, AFL-CIO, or any other labor or- ganization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (L) WE WILL NOT threaten reprisals against our employees because of their union sympathies and activities. WE WILL NOT create the impression among our employees that their union activities are under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. DIT-Mco., INC., 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 A charge having been filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Rela- tions Board, and an answer having been filed by the above-named Respondent, a hearing involving allegations of unfair labor practices in violation of Section 8(a) (1) and (3 ) of the National Labor Relations Act, as amended (61 Stat. 136), was held in Kansas City, Missouri, on October 19, 1959, before the duly designated Trial Examiner. All parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence pertinent to the issues, to argue orally, and to file briefs . Oral argument was waived. Briefs have been received from the Respondent and General Counsel. In accordance with a stipulation of the parties, dated November 2, 1959, herewith made a part of the record, the transcript is hereby ordered corrected. Upon the entire record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dit-Mco, Inc., is a Missouri corporation with its principal office and place of business in Kansas City, Missouri , where it engages in the manufacture and assembly of electronic equipment. It annually sells, ships , and installs electronic equipment valued at more than $50,000 outside the State of Missouri The Respondent is engaged in commerce within the meaning of the Act. 560940-61-vol . 127--19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED District Lodge 71, International Association of Machinists, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. HI. THE UNFAIR LABOR PRACTICES A. Setting and issues The nub of this case is the discharge of shipping clerk Verle E. Jordison on April 30, 1959. General Counsel alleges that he was dismissed in order to discourage membership in the Charging Union which, as undisputed evidence shows, had begun organizing the Respondent's employees shortly before the dismissal. The Respondent denies this allegation of motive, and through certain witnesses claims that Jordison was discharged for cause. Other contemporaneous events, as to which the evidence adduced by General Counsel is uncontradicted, are urged by him as not only establishing circumstances revealing the true motive causing Jordison's dismissal but also providing a basis for his claims of separate and independent acts of interference, restraint, and coercion. Such events include interrogation, threats of reprisal, and implied if not actual surveillance. Since such events are relevant to both the 8(a) (3) and 8(a) (1) allegations, they will be discussed together in the section next below. B. The discharge of Jordison Jordison was both hired and fired by Production Manager Howard L. Beardsley, apparently the Respondent's top management official in its operating division. Beardsley was subordinate only to one of the executives, Vice President William Garmon. His own testimony establishes that he alone was responsible for the discharge at issue. The following facts, based upon undisputed evidence, plainly reveal Beardsley's antiunion hostility, both before and after his discharge of Jordison. (a) Although it does not appear from the record that any specific labor organiza- tion was seeking to organize the Respondent's employees at that time, in December 1958 Beardsley called three leadgirls (who, counsel for the Respondent contends, were representatives of management) and instructed them to let him know if they heard anything about a union in the plant. (b) At least one of the leadgirls, Eleanore L. Butcher, attended what appears to have been the first organizational meeting held by the Charging Union, near the plant, on April 27. The next day Beardsley asked Butcher and others, according to Butcher's testimony, "how many was there, and if we'd signed any union cards." He further asked Butcher as to whether or not a specific female employee, Fentiman, had signed, stating that he had heard from other sources that she had. Butcher reported Beardsley's remarks to Fentiman. Later the same day Beardsley approached and asked her "to find out for him who all had signed union cards and tell him who had signed them." He added that if he found out "they wouldn't be working for the company a year from then." (c) Jordison, who had been newly hired as shipping clerk early in March 1959, also attended the first union meeting. The next day, April 28, Beardsley called him aside and asked him how he felt about the "union getting in there." Jordison told him candidly that he was "for it," and that he had been a "union man" most of his life. The manager declared that the Union could do the employees no good. Jordison countered by saying that he thought the employees were underpaid, below the average pay in Kansas City Beardsley said that "If you think the union could come in here and get you $2 an hour, you're badly mistaken We'd close down first." Jordison then asked the manager why he had "picked" him out of the employees to query. Beardsley replied that he had heard he was a "strong union man" and had been "talking around," adding that he "knew what a strong union man could do in the place." Jordison then asked him if he wanted him to quit, or if he was going to be fired. Beardsley replied in the negative to both questions. (d) Two days later, on April 30, Jordison was summarily discharged He was informed of his discharge by Beardsley's assistant, one Bible, who called the employee to Beardsley's office at the end of the day's work and told him, according to Jordison's undisputed testimony, that he was "the hatchet man around Dit-Mco" and had the job of letting him go. Jordison asked why. Bible replied that he had make a mis- take a month or so before and also that he was "unhappy" in not getting $2 an hour. (e) On May 1, the day after Jordison's discharge, Beardsley asked the three lead- girls, in the presence and hearing of employees on the nearby assembly line, if they had found out "who signed union cards," and told them that anyone who had DIT-MCO, INC. 275 signed a card "wouldn't be working there a year from then." He further told them that "wages would be lowered" if the Union got in. The Respondent offered no testimony or other evidence to rebut the testimony of Jordison, the leadgirls, and an employee, upon which the foregoing findings are based. The Respondent apparently relies upon the testimony of Beardsley and the vice president as to their claimed reasons for dismissing Jordison. The Trial Examiner is of the opinion that their testimony, which on certain points is not only mutually inconsistent but vague, general, and unsupported by any documentary evidence clearly within the Company's possession if it existed , is insufficient to meet and overweigh the strong and, in effect, unchallenged prima facie case established by General Counsel. Scant reliance can be placed by the Trial Examiner upon the Respondent's claims as to Jordison's dismissal for the following reasons: (a) Beardsley testified that the vice president "made the decision" to fire Jordison and instructed him: "'Discharge that man.' " Garmon, however, testified: "Mr. Beardsley requested from me permission to discharge Mr. Jordison." (b) After a great deal of general and unspecific testimony Beardsley was finally asked by his counsel to state "what the reasons were for terminating Mr. Jordison, if any." Beardsley replied: Mr. Jordison was not satisfied or happy with his wages . He was very dis- satisfied with them. He was not learning his job and the other jobs associated with his job as fast as I thought he should or as others had learned them. He was spending his time in other departments and talking with other people instead of his own department . Those were the three basic reasons for which he was discharged. (c) Even if an employee's "unhappiness" with the pay were to be considered a justifiable cause for discharge , Beardsley was plainly aware of such "unhappiness" at the time he hired Jordison. Jordison had asked for $2 an hour when the manager offered him the job, but had been persuaded to accept a much lower figure on the promise of "chance for advancement." (d) In expansion of his general claim that Jordison did not learn to perform his job properly, Beardsley further contended that the employee made many errors. According to his obviously exaggerated and extravagant testimony, Jordison had made mistakes at least every other day since his employment and sometimes several times a day Yet when questioned for specific matters, Beardsley admitted that he could recall but a single error , and he could not remember when that one occurred. The manager also claimed that Jordison needed more supervision than necessary, yet he could offer no single instance of such requirement. (e) Not only were Beardsley's broad claims unsupported by specificity, but they also lacked even the proffered corroboration of company records-yet were there any merit to his further claim that such errors were costly to the Company it appears plain that supporting records would have been available. (f) Finally, Beardsley admitted that at no time, and on no occasion, was Jordison warned about any dereliction on his part. And by his own admission it was not until April 30, after he had queried Jordison at considerable length concerning his union sympathies, that he sought approval of the vice president for the dismissal. In short, the Trial Examiner concludes and finds that the preponderance of cred- ible evidence sustains the allegations of the complaint that Jordison was discrimi- natorily discharged to discourage membership in and activity on behalf of the Charging Union, and that by thus discharging an employee, by Beardsley's interroga- tion of Jordison on April 28, by Beardsley's openly voiced threats of economic reprisal to the leadgirls on May 1, and on the same occasion his interrogating the same leadgirls as to whether or not they had "found out" who had signed cards, thereby creating the impression among employees that he wished such supervisors to engage in illegal surveillance , the Respondent interfered with , restrained, and coerced employees in the exercise of rights guaranteed by the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the Respondent , described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the I See Guernseij-Matskingum Electric Cooperative, Inc., 124 NLRB 618; Raser Tanning Company, 122 NLRB 640, William L. Law, et al, d/b/a Law Tanning Company, 123 NLRB 1748 ; and Carolina Mirror Corporation, 123 NLRB 1712. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take. certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer Jordison immediate and full reinstatement to his former or substantially equivalent position, without loss of seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement, less his net earnings during said period, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440. Since the violations of the Act which the Respondent committed are related to other unfair labor practices proscribed by the Act, and the danger of their commis- sion in the future is reasonably to be anticipated from its past conduct, the preven- tive purposes of the Act may be thwarted unless the recommendations are coex- tensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. District Lodge 71, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of employee Verle E. Jordison, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a)'(3) of the Act. 3. By interfering with, restraining, and coercing 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)( I) 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. [Recommendations omitted from publication.] Feed and Supply Center, Inc. and General Teamsters, Ware- housemen & Helpers Union, Local No. 483. Case No. 19-CA- 1803. April 19, 1960 DECISION AND ORDER On October 27, 1959, Trial Examiner William E. Spencer 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. 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 Leedom and Members Bean and Jenkins]. 127 NLRB No. 43.