Federal Tool Corp.

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Truck Drivers' Local Union No. 807, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Robert Johnson, thereby discouraging membership in Truck Drivers' Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and interfering with, restraining, and coercing Robert Johnson in the exercise of his rights under Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication,] Federal Tool Corporation and Textile Workers Union of America, AFL-CIO. Case No. 13-CA-3510. February 13, 1961 DECISION AND ORDER On July 28, 1060, Trial Examiner Sidney Sherman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. 'In the absence of exceptions, we adopt pro forma the following findings of the Trial Examiner: (a) Respondent violated Section 8(a) (2) of the Act by dominating, assisting, and interfering with the administration of the Committee ; (b) Respondent violated Section 8(a) (1) of the Act by threatening its employees with reprisals for union activities,, including the distribution of union literature during nonworking hours on Respondent's premises other than work areas, and maintaining in effect a rule against such distribu- tion ; and (c) Respondent violated Section 8(a)(3) of the Act by transferring Boesel to more arduous work but did not violate that section by transferring Bloodworth to such work. 2In finding that the Respondent unlawfully dominated and interfered with the admin- istration of the Committee, the Board does not rely upon the Trial Examiner's conclusion that the Respondent's power to unseat an employee committee member by terminating his employment necessarily constitutes evidence of such domination and interference. 130 NLRB No. 25. FEDERAL TOOL CORPORATION ORDER 211 Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, Federal Tool Corporation, Lincolnwood, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of America, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to their hire, tenure, work assignments, or any other terms or conditions of employment. (b) Threatening its employees with reprisals for union activities, including the distribution of union literature during nonworking hours on Respondent's premises other than work areas, and main- taining in effect a rule against such distribution. (c) Dominating and interfering with the administration of the Employees' Committee at Respondent's plant, or any other labor or- ganization of its employees, and assisting or contributing support to such Committee or any other labor organization of its employees. (d) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist a labor organization, including the above Textile Work- ers Union of America, AFL-CIO, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by 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 Edward Webster full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Withdraw and withhold all recognition from the Employees' Committee at the Respondent's plant as the exclusive representative of its employees for the purpose of dealing with the Respondent concern- ing grievances, wages, hours, or other conditions of work, and com- pletely disestablish said organization of its employees. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its plant at Lincolnwood, Illinois, copies of the notice attached to the Intermediate Report marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after having been duly signed by the Re- spondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply therewith. This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , these 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." INTERMEDIATE REPORT This proceeding was heard in Chicago, Illinois, on May 10, 11, and 12, 1960, upon the complaint of the General Counsel and answer of Federal Tool Corporation, here, inafter called the Respondent.' The issues litigated were whether the Respondent violated Section 8 (a)(1), (2), and (3) of the Act by the conduct discussed below. The parties filed briefs with the Trial Examiner.2 Upon the entire record, and from my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation, operates a plant at Lincolnwood, Illinois, where it is engaged in the manufacture of plastic household goods. During the calendar year 1959, Respondent received goods valued in excess of $50,000 from out- of-State points. It is found that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the polices of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATIONS INVOLVED Textile Workers Union of America , AFL-CIO, hereinafter called the Union, and the Employee's Committee at the Respondent's plant, hereinafter sometimes called the Committee, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint, as amended prior to the hearing, alleges that the Respondent vio- lated the Act in the followings respects: (1) Violated Section 8 ( a)(2) and ( 1) of the Act by (a) recognizing the Com- mittee as the representative of its employees without requiring any proof that it represented a majority of such employees ; (b) negotiating with such Committee con- cerning wages , hours, and working conditions ; (c) initiating, attending, and con- ducting the Committee's meetings ; and (d ) controlling, administering, and interfer- ing with the election of members of the Committee. 'Although served with a copy of the amended complaint and notice of the instant hear- ing, the Employees' Committee, discussed hereinafter , was not represented by counsel at the hearing. 2 The General Counsel filed with the Trial Examiner a motion to correct the record. As no opposition was filed thereto , the motion Is granted FEDERAL TOOL CORPORATION 213 (2) Violated Section 8(a)(3) and ( 1) of the Act by discriminatorily transferring James Bloodworth and Transita Boesel to more arduous work and by discharging Lela South and Ed Webster. (3) Violated Section 8(a)(1) of the Act by (a) threatening that certain em- ployees would be discharged if the Union did not become the representative of Re- spondent's employees ; (b) threatening certain employees that they would be dis- charged or otherwise disciplined if they continued to distribute union literature on Respondent's property; and (c) discriminatorily requiring as a condition of continued employment that an employee request in writing a transfer to a less desirable job. A. The violation of Section 8(a)(2) The Respondent originally established the Committee in 1941 for the purpose of organizing civil defense activities in the plant. As presently 3 constituted, the Com- mittee consists of 10 employees who are elected by the other employees, 2 being chosen in each department . The Committee meets with Respondent's president, Bernhardt , once every 4 weeks. Bernhardt calls the meetings and fixes the dates thereof, and he "presides" at all the meetings . The matters discussed at the meetings include, inter alia, requests for individual or general wage increases and improve- ments in working conditions generally. There is no evidence that, apart from these meetings with Bernhardt, the Committee acts or meets as a group. The Committee has no constitution or bylaws and collects no dues. Respondent not only provides the Committee's only meeting place but also furnishes it with clerical and secretarial assistance and Bernhardt personally prepares a report of the results of each meeting which is posted on the plant bulletin board. While the employees are allowed to vote for their representatives on the Committee, they have never had an opportunity to vote for or against the Committee as a plan of employee representation. There is no rule against supervisors voting in the election of committee mem- bers, and it is undisputed that John Carroccio, who is found below to be a supervisor within the meaning of the Act, actually did vote in one such election . Bernhardt fixes the dates on which such elections are held. In an election conducted in December 1959, to select a committee member, Tony Bastyr, an admitted supervisor, assisted in the circulation of the ballots, and the request of Paula Sanchez,4 one of the candidates, to be allowed to observe the count- ing of the ballots was referred to Bastyr. The request was denied . Later the same day Bastyr approached employee Kessler, told her that the election had resulted in a tie vote between Paula Sanchez and another candidate, and asked her to cast the tie-breaking vote. Kessler then wrote Paula's name on a slip of paper and gave it to Bastyr, who, after looking at the writing on the slip , announced that there would be a new election.5 President Bernhardt testified that after the foregoing election he was told by cer- tain employees that a question had arisen as to the regularity of the election pro- cedure and that Bernhardt suggested that a new election be conducted , which was done. This testimony is reconcilable with the findings above that Bastyr's announce- ment to Kessler that a new election would be held was made only after his request for her "tie-breaking" vote elicited a vote for Paula Sanchez . Bastyr had evidently decided not to act on Bernhardt's suggestion of a new election if he could get a tie- breaking vote in favor of Paula's opponent, Ursula Blackwell . Failing that, he adopted Bernhardt's suggestion to hold a new election.6 In view of the foregoing, it is found that the Respondent assisted and contributed support to the Committee, and through participation by Carroccio in a committee election and the control exercised by Bastyr and Bernhardt over election procedure, 8 The findings below as to the composition , procedure , and functions of the Committee and the method of election of its members apply to the period since June 2, 1959, which is the "cut-off" date under Section 10(b) of the Act. The original charge herein was served upon the Respondent on December 2, 1959 A Earlier, on December 1, 1959, Respondent had been advised by the Union that Paula Sanchez was a member of the Union's organizing committee 5 The foregoing findings as to the Bastyr -Kessler incident are based, on the undisputed testimony of Kessler . Bastyr did not testify at the hearing e Bastyr's effort to obtain a tie-breaking vote before voiding the election suggests that the question presented to Bernhardt was not, as he testified , how to correct some irregu- larity in the election procedure, but what to do about the apparent tie between Paula and Blackwell , and that Bernhardt's advice to void the election was based on the existence of such a tie. However, it is not necessary to resolve this point, as it would not affect the result herein. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as related above, and through Bernhardt's control over the conduct of committee meetings, the Respondent interfered with the Committee's administration, thereby violating Section 8(a)(2) and (1) of the Act. The General Counsel contends that the Committee is, in addition, dominated by the Respondent. The Respondent initiated the Committee and imposed it upon the employees in its present form? Moreover, it is clear that as it presently fuctions the Committee is subject to the will of the Respondent as it has never met or held elec- tions of its members without the Respondent's authorization. Since only employees of the Respondent are eligible to serve on the Committee, the Respondent has the power to remove any members of the Committee by terminating his employment. These factors, among others, compel the conclusion that the Respondent has since June 2, 1959, dominated the Committee, thereby violating Section 8(a)(2) and (1) of the Act.8 B. The violations of Section 8(a) (1) 1. The no-distribution rule The complaint, as amended at the hearing, alleges that the Respondent violated Section 8(a)(1) of the Act by threatening employees with disciplinary action or discharge for distribution of union literature on Respondent's property and on pub- lic streets. The record shows, without dispute, that on February 16, 1960, Supervisor Bastyr delivered to employee Miguel Sanchez a written notice signed by Myron Pe- trakis, superintendent of the molding department, to the effect that the Respondent's rules forbade the distribution of union literature "on company premises which in- cludes the company parking lots and driveways," and warning that future violation of this rule would lead to disciplinary action or dismissal. The previous day, after working hours, Sanchez had passed some union literature to another employee on the Respondent's parking lot .9 A similar notice, signed by Respondent's personnel di- rector and treasurer, Fred Sanders, was given to employee Barbara Davis on Febru- ary 26, 1960. The previous day, after working hours, she had distributed some union leaflets on a bus operated by Respondent, which transported employees from the plant to the nearest available public conveyance. At the hearing the Respondent conceded that the no-distribution rule referred to above had been in effect since December 1, 1959, and was unlawful. It is, accord- ingly, found that the Respondent since December 1, 1959, has maintained in effect, and threatened to punish violations of, a rule prohibiting the distribution by em- ployees during nonworking time of union literature on Respondent's bus, parking lots, and driveways. By such conduct, the Respondent violated Section 8(a)(1) of the Act.io 2. Threats to discharge union adherents The complaint alleges that in November 1959 two of Respondent's supervisors warned that certain employees would be discharged if the union failed to achieve recognition. One of these warnings was attributed to William Herweg. However, there is insufficient evidence in the record that Herweg was a supervisor within the meaning of the Act. Accordingly, while there was uncontradicted testimony that Herweg had delivered such a warning to employee Boesel, no finding of a violation of the Act is predicated on such testimony. The other warning of this type is attributed by the complaint to John Carroccio. On November 27, 1959, various employees, including James Bloodworth, began to wear union buttons in the plant, and on November 30, employee Lela South began to wear such a button herself. South testified that on that date Carroccio told her: it was wrong for the people that was wearing the buttons to be wearing them. That he said it was a bad thing; they would get in trouble. And I asked 7 While such action of the Respondent occurred more than 6 months before the service of the instant charge upon the Respondent, under the circumstances of this case con- sideration thereof is not precluded by Section 10(b) of the Act. Herbert D. Young, d/b/a Murfreesboro Pure Milk Co., 127 NLRB 1101. B The Carpenter Steel Company, 76 NLRB 670, 687; Cabot Carbon Company and Cabot Shops, Inc, 117 NLRB 1633, enforcement denied 256 F 2d 281 (C.A 5), reversed 360 U.S. 203 Olt was the General Counsel's position that this incident occurred on a public street. However, while Sanchez' testimony was not entirely clear on this point, I find that the incident occurred on the Respondent's parking lot, and not on a public street IORockwell Manufacturing Company (DuBois Division), 121 NLRB 288, and cases there cited. FEDERAL TOOL CORPORATION 215 him why and he was referring to James Bloodworth. . . And he said, "I got my orders from the front office that if the union don't get in they will be fired." While Carroccio denied that he had made such a statement, I do not credit his denial . Carroccio was an argumentative and evasive witness, whose demeanor on the witness stand did not impress me as favorably as did South's. Accordingly, I credit South's testimony as quoted above. There remains the question whether Carroccio was a supervisor within the meaning of the Act, so as to render Respondent responsible for his conduct. Respondent's answer denies that he was a supervisor. However, Carroccio's immediate supervisor, Petrakis, testified that Carroccio directs the work of about 30 employees on the day shift in the molding department; that he reports directly to Petrakis, who is superin- tendent of the entire molding department, which comprises about 150 employees; that Carroccio's title is "leading supervisor"; that his hourly rate is $2.60, which is 20 cents more than that of the next highest paid production employee in the molding department; that, during the 6-month period preceding the hearing, Carroccio had recommended several raises and Petrakis had adopted "about half" of these recom- mendations; that Carroccio daily assigns work to all 30 employees on his shift; that such assignments require that Carrocchio exercise his own discretion in appraising an employee's ability in relation to the type of product being fabricated; that some pro- duction items require more care and dexterity than others; that the Respondent's molding machines are of six or seven different sizes and rather complicated, and it takes a year to train an employee to operate the machines properly; and that Carroccio adjusts minor complaints of employees relating to their working conditions. In view of the foregoing, it is found that Carroccio has authority to assign work to employees and to adjust their grievances, and that the discharge of such authority involves the exercise of independent judgment. Accordingly, it is found that Carro- ccio was at all times here material a supervisor within the meaning of the Act, and that by his warning to South of Bloodworth's termination if the Union did not pre- vail, the Respondent violated Section 8(a)(1) of the Act.ll 3. The Petrakis-Wilson incident The complaint alleges that on or about March 2, 1960, Superintendent Petrakis required as a condition of continued employment that an employee request in writing a transfer to a less desirable job because of the employee 's participation in union activities. In support of this allegation, the General Counsel offered testimony by Shirley Wilson to the effect that on the same day that she started wearing a union button, March 1, 1960, she was relieved of her part-time duties in Respondent's office 12 and reverted to her former status as a full-time machine operator. The next day, Petrakis asked her to sign a written statement as follows: "I want to be transferred to a press." 13 He explained that this was necessary to avoid a charge of unfair labor practices. However, Wilson admitted that Petrakis did not threaten her with dis- charge if she refused to sign the statement. Apparently, it was the General Counsel's theory at the hearing that Respondent anticipated that Wilson would file with the Board a charge that Respondent's termi- nation of her part-time office work, thereby leaving her no alternative but to work full time on her machine, was discriminatory; and that to forestall such a charge Respondent, on pain of discharge, required Wilson to sign a statement falsely imply- ing that the change in her duties was entirely voluntary. It is this alleged coercion of Wilson to sign such a statement that is urged in the complaint 14 as a violation of Section 8(a)(1) of the Act. It might be argued that the signing of such a statement might discourage Wilson from thereafter filing a charge which would be inconsistent 11 Capitol Fish Company, 126 NLRB 980. 11 In the office Wilson worked under the direction of Josephine Canfareh, who is alleged by the General Counsel to be a supervisor However, the record contains in- sufficient basis for finding her to be a supervisor. "Wilson testified that, upon being notified that her services were no longer needed in the office, she had told Petrakis that she preferred to remain at her machine on a full- time basis. It is not clear, however, what other alternative was open to Wilson at the time "In the General Counsel's brief filed with the Trial Examiner, the position is taken for the first time that the Respondent violated Section 8(a) (1) of the Act by relieving Wilson of her office duties and transferring her to mare arduous work because she wore a union button. However, this was not alleged in the complaint nor was the issue ade- quately litigated. Accordingly, no finding of a violation is made in that respect. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with her own signed statement, and that any coercion of Wilson to sign such a state- ment would therefore be unlawful as discouraging resort to the Board 's processes. However, the record contains no evidence that Petrakis did anything more than request Wilson to sign the statement. Moreover, the deterrent effect of such a state- ment on Wilson seems too speculative. Under these circumstances, it is found that the procuring of the statement did not violate the Act.15 C. The violations of Section 8(a) (3) 1. Bloodworth It has been found above that on November 27, 1959, Carroccio unlawfully warned South that Bloodworth would be discharged if the Umon failed to organize the plant. The complaint alleges that on or about November 27, 1959, the Re- spondent, in addition, discriminatorily transferred Bloodworth to more arduous work. Bloodworth testified without contradiction that for several weeks prior to November 27, 1959, because of an injury to his hand he had not been performing his normal duties of helping to set dies and relieving press operators , but instead had been assigned to packing work. However, on November 27, which was the day that he began to wear a union button,is he was questioned by his supervisor, Carroccio, about telephone calls made during a work break, and Carroccio became incensed when Bloodworth refused to state whether the calls had been made to union organizers. Later, about 1 p.m. on the same day, Carroccio assigned Bloodworth to the No. 31 press, and he worked on it the rest of the day. There is no evidence as to the relative difficulty of the work done by Bloodworth on that press or as to his assignments after that day. Upon this meager evidence, I am unable to find that the assignments of Bloodworth for a few hours to the operation of a press was discriminatory.17 2. Boesel The complaint alleges that on or about November 28, 1959, Respondent dis- criminatorily transferred employee Boesel to more arduous work. Boesel has worked for Respondent since 1952 as a machine operator in the molding depart- ment. In August 1959 she signed a union card and on November 27, 1959, began to wear a union button in the plant and Respondent was notified by the Union at the same time that she was a member of the Union's organizing committee. On the same day she attended a special meeting of the Employees ' Committee, re- ferred to above, of which she was a member. At this meeting President Bernhardt introduced to the Committee his attorney, Mr. Colmar, who delivered some remarks critical of union organizers . At Bernhardt's solicitation, Boesel then expressed her views concerning the need for a union to improve working conditions in the plant. The same day there was circulated in the plant a petition seeking to unseat Boesel as a member of the Committee. (Although the petition was signed by a number of employees, no action was taken thereon.) The next day, and continuously there- after, Boesel, according to her testimony , was assigned by her supervisor , Carroccio, to work that was more arduous than any she had performed before, either because of the type of machine involved or the nature of the article produced.18 15 As it was not alleged in the complaint , no finding of unlawful interrogation by Petrakis is made , although Wilson testified , without contradiction concerning such inter- rogation . See Retail Clerks International Association, AFL-CIO and Retail Clerks Umon, Local 770, AFL-CIO (Food Employers Council, Inc.), 127 NLRB 1522. ie Respondent had also been advised on that day by the Union that Bloodworth was a member of the Union's organizing committee. 17 As the General Counsel did not allege it as unlawful , no finding is made as to the legality of Carroccio's interrogation of Bloodworth about his telephone calls The General Counsel offered , solely as "background evidence" in support of the discriminatory assign- ment allegation, proof that soon after Carroccio's above-mentioned interrogation Respond- ent, contrary to past practice , warned Bloodworth against making telephone calls during working time , and that more than a month later Bloodworth , again contrary to past practice , was reprimanded for failing to call in for sick leave As the General Counsel specifically disclaimed any contention that by these actions Respondent violated the Act, there is no need to consider that issue. Considered as "background" to show Respondent's animus toward Bloodworth , such evidence does not avail to cure the defect in the General Counsel's proof , namely, the insufficiency of the evidence of more arduous assignments. 19 Boesel testified further that in February 1960 she inadvertently took her timecard home on a Saturday , and that , when she returned to the plant the following Tuesday without the card, Personnel Director Sanders reprimanded her, and warned her of dis- FEDERAL TOOL CORPORATION 217 Boesel's charge of discrimination against her by change in her work assignments is supported by the testimony of employee Wilson that, about a week after Boesel began wearing a union button in the plant, Carroccio remarked to Wilson that he "should pick out the hard jobs" and give them to Boesel. Carroccio's version of this incident was that he stated, in the molding department office, that ". . . maybe I should have gave [ Boesel] harder work," that he then asked Petrakis what he should do "with this," he he had "never had anything like that where" he worked before, and that Petrakis instructed him to "treat everybody alike." It is evident from the foregoing that Carroccio's query of Petrakis was prompted by Boesel's union activity, Petrakis testified that Carroccio came into his office and said, "What do we do? Do we give l3oesel harder work?" According to Petrakis, he retorted, "We treat them all alike," and he admonished Carroccio not to "discriminate against people who are in the Union." However, Barbara Davis, previously referred to herein, testified that in December 1959 Carroccio told her he was giving Boesel "all of the hard jobs to get even with her." This was denied by Carroccio. Roberta Roberts testified for the Respondent that since November 1959 she had to her knowledge worked on jobs or machines of the same type as those assigned to Boesel, and that she did not know of any occasion when she and Boesel were treated differently with respect to work assignments. Roberts' testimony was pre- sumably deemed by Respondent especially significant in view of certain intimations in Boesel's testimony that her work assignments since November 28 were more arduous because she was not tall enough to work on one or more of the machines involved in these assignments,19 and the assignments were not of the type ordinarily given to women. Carroccio denied that he had given Boesel a more arduous assignment on Novem- ber 28, 1959, but did not testify unequivocally that her subsequent assignments were of the same order of difficulty as those which she had received prior to November 28. It is clear from the foregoing that the instant issue presents a number of credibility problems. First and foremost is the question of Boesel's own candor as a witness. Two factors militate against her credibility. First, her testimony as to what ma- chines she worked on since November 28, and whether they were the type of machine to which female operators were ordinarily assigned, was confused and contradictory, In addition, in evaluating Boesel's testimony it is impossible to ignore an incident that occurred on the second day of the hearing. As noted above, Respondent called Roberts to rebut Boesel's testimony concerning the onerous nature of her work assignments. While Roberts and Boesel were seated in the hearing room, and before Roberts had taken the stand, Boesel approached her and in vulgar language threatened her with bodily harm20 In view of the context in which this threat was made, I find that it was intended to deter Roberts from testifying adversely to Boesel's claim of discrimination in work assignments. Such conduct by Boesel not only is reprehensible because it jeopardized the integrity of the Board's ad- judicatory processes, but it also casts serious doubt on Boesel's credibility. In view of this incident, I have decided not to credit Boesel's testimony on any issue in this case except when it is uncontradicted, or is corroborated by a credible witness. However, Boesel's testimony that Carroccio gave her more onerous work on and after November 28, 1959, is in fact corroborated by the testimony of Davis, whom I deem to be a credible witness, that Carroccio told her he was giving Boesel "hard jobs to get even with her." This admission by Carroccio is of a piece with his ciplinary action, saying, "You will see what will happen to people that wear the union buttons." When she reported for work the next day with her timecard, Sanders sus- pended her for 2 days, although, according to Boesel, she had taken her timecard home ,before without any penalty being imposed However, the record is silent as to the circum- stances of these prior offenses. Disclaiming any contention that Boesel's suspension or Sanders' warning of reprisals against union adherents should be found to have violated the Act, the General Counsel stated at the hearing that the evidence as to these matters was offered only to show Respondent's union animus in support of the allegations in the complaint relating to the discrimination against Beesel and others Accordingly, that evidence has been considered only in that light As Sanders denied the threat attributed to him by Boesel, and her testimony as to the threat is not corroborated, I credit Sanders' denial for reasons stated below ; and I find the other evidence as to this incident insufficient to establish that Boesel's suspension was discriminatory. 'e Boesel was only 4 feet 11 inches high ; Roberts was even shorter. 20The foregoing findings are based on Roberts' uncontradicted testimony. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggestion to Petrakis that Boesel be given harder work because of her union activity. While I credit Petrakis' testimony that he rejected this suggestion and admonished Carroccio to treat everyone alike, it appears from Carroccio's statement to Davis that this admonition made little impression on Carroccio. This conclusion is buttressed by the fact that Carroccio's denial of the charge of discrimination against Boesel is, as noted above, incomplete.21 Accordingly, upon the entire record, I find that the Respondent violated Section 8(a)(3) and (1) of the Act by assigning Boesel more onerous work on and after November 28, 1959, because of her union activity. 3. Lela South The complaint alleges the discriminatory discharge of Lela South on or about March 12, 1960. Prior to her discharge on that date, she had been employed by Respondent intermittently for about 9 years She began to wear a union button in the plant on November 30, 1959. About the same date, her supervisor, Carroccio, as related above, stated that those wearing union buttons would "get in trouble," and would be "fired." Early in February 1960, a creditor of South's served on the Respondent a "wage demand in garnishment" requiring Respondent to withhold from South's wages any amount due her in excess of the sum of $45.22 Subsequently, on February 12, South's supervisor handed her a notice signed by Personnel Director Sanders, reading as follows: You know it is Company policy if you receive a wage assignment or garnish- ment and do not take care of it yourself and the office has to void your check and make out a check to you and the garnisher, you are subject to dismissal. You have just received a garnishment and we have had to make payment to the St. Elizabeth's hospital. If you receive another wage assignment or garnish- ment that you do not take care of personally, you will be discharged. South's testimony with regard to what action she took to satisfy the foregoing garnishment is not clear. She stated that upon receiving the notice of February 12 she called the collection agency handling the garnishment and "had them release" her paycheck, and that it was released "after that one week." Construed most favorably to South, this would seem to imply that she induced the collection agency to withdraw the garnishment, thereby permitting Respondent to deliver to South her original paycheck, and obviating any need for Respondent to void that check and issue two checks-one to South for the amount of her exemption and one to the creditor for the balance of South's pay. However, the Respondent's notice, quoted above, recites that the Respondent had already made payment to the creditor pur- suant to the garnishment. Moreover, Sanders testified that the February 12 notice was given to South after she was given an opportunity to satisfy the garnishment demand personally and failed to do so. For the reasons related below, I find that Respondent did in fact, as a result of the foregoing garnishment, issue two checks. I credit Sanders' uncontradicted testimony that a garnishment demand was served on Respondent early in February. Respondent was thereby precluded by State law from paying South her full weekly wage without the consent of South's creditor for a period of at least I week, and for an even longer period if within that week the creditor filed a court action to enforce the garnishment. February 12 was a Friday, which is the Respondent's payday. Accordingly, it appears that on February 12 the Respondent had to make a decision whether (1) to pay over to South the full amount of her paycheck or (2) to pay her only the amount 21 While Roberts appeared to be a credible witness, her testimony was only to the effect that "to her knowledge" Boesel's assignments had been no different from Roberts' and that she knew of no occasion when she and Boesel were treated differently However, Roberts admitted on cross-examination that she was not always in a position to observe Boesel's work In any event. Roberts ' testimony could not avail to neutralize Carroccio's own ndmission that he was giving Boesel more onerous jobs In view of that admission, I cannot give controlling weight to Petrakis ' testimony , supported by Respondent's records, that Boesel, on and after November 28, was assigned to the same machines as other female operators Moreover, Boesel's complaint was not only about the machines but also about the nature of the work performed by her on the machines. Respondent 's own witnesses admitted that the difficulty of a job depended not only on the size of the machine but on the nature of the article being produced. 22 Under Illinois law only the amount of a debtor's weekly compensation above $45 Is subject to garnishment FEDERAL TOOL CORPORATION 219 of her exemption, retaining the balance to satisfy the garnishment. As South, by her own testimony, had not prior to that date taken any action to satisfy her creditor, the Respondent had no alternative under State law but to withhold payment on February 12 of the excess above South's legal exemption. Any action taken by South, as she claimed, after February 12 could not have obviated the need for this withholding action on February 12, and the resultant splitting of her paycheck. In view of the foregoing, I do not credit South's testimony that she obtained release of her pay- check, from the February garnishment, but find that the Respondent did, in fact, issue two checks as a result of the garnishment. Thereafter, on March 9, South's wages were subjected to another garnishment demand served by a Mr. Collins of the Illinois Collection Service, and on March 10, South promised Sanders that she would "take care" of it. In response to a call by South, Collins telephoned Sanders and suggested to him a procedure whereby the issuance by Respondent of separate checks to South and the creditor would allegedly be obviated. This involved indoisement by Respondent on South's check of the name of the collection agency and having South bring the check to the agency, which would then give South in cash the amount of her exemption in exchange for the check with her endorsement thereon. However, Sanders would not agree to this procedure, and understandably so, as it is not clear what legal effect would attach to Respondent's indorsement to the collection agency of a check payable on its face to South alone. On March 12, no arrangement having been made by South to satisfy the garnishment, Sanders issued a check to South in the amount of her ex- emption and another to her creditor in the amount of the balance of the wages due her. At the same time, South was given the following notice, signed by Sanders: Your employment is terminated today March 12, 1960, per the notice given you February 12, 1960, concerning wage assignment and garnishment. Sanders testified that the foregoing notice was pursuant to Respondent's policy of discharging an employee if the Respondent is twice required to "split" his pay- check due to garnishment. While conceding that no employee other than South had been discharged for this reason, Sanders testified that other employees had re- signed to avoid such discharge. The General Counsel sought to show that South was subjected to disparate treat- ment. In this connection, Boesel testified that at the special meeting of the Em- ployees' Committee on November 27, 1959, Bernhardt, in discussing those employees who supported the Union referred to Respondent's lenient treatment of Bloodworth in the past with regard to garnishments, and indicated that in the future a more stringent policy would be applied to Bloodworth. On direct examination Bernhardt denied, but on cross-examination admitted in effect, that Bloodworth's garnishments were discussed at the foregoing meeting. However, he insisted that the only change in Respondent's policy with regard to garnishments after November 27, 1959, was that warnings of dismissal were given in writing rather than orally, as theretofore 23 As Bernhardt admitted discussing Bloodworth's garnishments at the meeting of the Committee, I credit Boesel's testimony that Bernhardt threatened to adopt a more stringent garnishment policy with respect to Bloodworth. However, this falls far short of establishing that South was discharged as a result of a tightening of Respondent's policy on garnishments. Respondent's leniency toward Bloodworth consisted merely in advancing money to him, at his request, to enable him to effect the release of garnishments, thereby obviating the need for Re- spondent to issue separate checks to Bloodworth's creditors. There is no evidence that South sought to obtain such an advance on the occasions when her wages were garnished or that one would have been denied her if requested. Accordingly, there is no basis for inferring that South was treated less favorably in this regard after the advent of the Union than Bloodworth had been before such advent. Employee Bernice Sullivan, called by the General Counsel, testified that her wages had been garnisheed several times and that she had on those occasions ob- tained a release of the garnishment from her creditor and shown the release to Sanders, whereupon he gave her her paycheck in full. However, she admitted that on an occasion in the summer of 1959, when she was unable to obtain such a release and the Respondent had to issue a separate check to her creditor, Sanders warned her of discharge if it happened again.24 23 According to Sanders, the written notice procedure was adopted on advice of counsel. It was stipulated at the hearing that upon the advent of the Union, Respondent's counsel advised that any warnings of disciplinary action be given in writing 24 Sanders testified without contradiction to a similar written warning to Delbert Treadway in April 1960. Margaret Dean testified that she received no warning when her 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sullivan's testimony tends, if anything , to substantiate the Respondent's position that, even prior to the advent of the Union , its policy was to warn an employee on the first occasion that it was required by garnishment proceedings to issue a sep- arate check to a creditor of the employee, and to discharge him on the second such occasion. It is true that there is no evidence that any employee other than South was actually discharged pursuant to this policy, but it is also true that there is no evidence that any employee other than South required Respondent to issue a sep- arate check to a creditor on two occasions. Upon the entire record, I find that the Respondent prior to the advent of the Union had a policy with respect to garnishments as follows: if the employee in- volved did not obtain a release of the garnishment and Respondent had to pay the creditor by separate check, the employee would be warned of discharge on the first such occasion and would be discharged on the second such occasion . I find further that there was no change in this policy with the advent of the Union, except that the warnings were given in writing instead of orally, and that South was discharged pursuant to such policy, and not in reprisal for her union activity. Accordingly, I find no violation of the Act in her discharge 25 4. Edward Webster The amended complaint alleges the discriminatory discharge of Edward Webster on or about March 12, 1960. He was hired as a diesetter in July 1959, and in March 1960 was working on the day shift . On November 27 he refused to sign the petition circulated among the employees to displace Boesel as a member of the Employees' Committee. When his supervisor, Carroccio, asked him why he did not sign the petition, Webster replied that he was not interested in signing any petition. Car- roccio then remarked , "Who in the hell 's side are you on any way?" 26 About December 1, 1959, Webster signed a union card at the request of Blood- worth. Shortly thereafter Carroccio, according to Webster's uncontroverted testi- mony, imposed more onerous working conditions on Webster . When Webster, in February, complained to him, Carroccio stated, "Well , we have ways of finding out who our friends are." On March 11, Carroccio handed Webster a notice signed by Sanders to the effect that he was being laid off for lack of work. When Webster questioned the reason given in the notice for his layoff, Carroccio observed, "Well, you got mixed up in that union, so what do you want me to do?" 27 Respondent contends that Webster was laid off for economic reasons. Petrakis testified credibly that he determined early in March 1960 that the Respondent had too many diesetters and, after considering the relative seniority and ability of the diesetters on the day shift , Petrakis determined to lay Webster off. While Webster had slightly more seniority than Ferguson, another diesetter on the day shift, Petrakis stated that he regarded Webster as less able than Ferguson . Petrakis fur- ther testified credibly that at the time he laid Webster off he did not know that he was a union adherent and that shortly after the advent of the Union Webster volun- teered the information to Petrakis that he was not interested in unions . However, Petrakis acknowledged that, in evaluating an employee 's ability, he necessarily re- lies on the judgment of the supervisor-in this case Carroccio-as he works, more closely with the employee than does Petrakis . It is evident therefore that Petrakis' selection of Webster for layoff was based on Carroccio's advice that Webster whas less able than Ferguson ; and it was Carroccio who, as is found above, in effect ad- wages were garnisheed in 1954 However , she could not recall whether or not Respondent was required to make payment to her creditor . Bloodworth testified that on one occasion, Respondent was required to make payment to a creditor of his as a result of a garnish- ment, but the record is silent as to whether he was warned of discharge if it happened again. 2i As the complaint does not allege that Bernhardt 's threat to adopt a more stringent garnishment policy with respect to Bloodworth violated the Act, no finding of such viola- tion is made However, I have considered that threat as part of the entire picture in determining the reason for South 's discharge 2s After first denying that he discussed the petition with any employees , Carroccio ad- mitted asking Webster why he did not sign the petition , but denied uttering the question last quoted in the text. Webster, unlike Carroccio , impressed me as an honest, straight- forward witness . Accordingly, I do not credit Carroccio 's dental. The findings in this paragraph of the text are based on Webster 's testimony, which I credit notwithstanding Carroccio's denials that he made the above -quoted remarks attributed to him. FEDERAL TOOL CORPORATION 221 mitted to Webster that he was pushing him harder because of his union activity, and, indeed, attributed Webster's layoff to such activity. It is true that there is no evidence that Carroccio knew that Webster had signed a union card,28 and, apart from his refusal to sign the anti-Boesel petition, Webster did not engage in any overt act that might be interpreted as activity on behalf of the Union. However, it is clear from Carroccio's comment that he regarded Webster's refusal to sign the petition against Boesel as aligning Webster with the prounion faction among the employees, the petition having been precipitated by Boesel's out- spoken stand for the Union at the meeting of the Employees' Committee on Novem- ber 27. It is equally clear from his later remarks to Webster that, whatever his reason therefor, Carroccio continued to regard Webster as a union adherent. In view of all the foregoing evidence, I find that Petrakis' selection of Webster for layoff was based on the advice of Carroccio that Webster was not as com- petent as Ferguson, but that this advice was not in turn based solely on an objective appraisal of the relative ability of Ferguson and Webster but was influenced instead by Carroccio's belief that Webster was a union adherent. It follows, and I find, that Webster's layoff on March 11 was discriminatory, and in violation of Section 8(a)(3) and (1) of 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 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Thus, having found that the Respondent violated Section 8(a)( 1) of the Act by certain conduct, as found in section III, B, 1 and 2, above, I will recommend that the Respondent be required to cease and desist from such conduct. Having also found that the Respondent discriminated with regard to the hire and tenure of employment of Edward Webster on March 11, 1960, I will recommend that the Respondent be required to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him by payment to him of a sum of money equal to the amount he would have earned from the date of the discrimination to the date of the offer of reinstatement, less net earnings to be computed on a quarterly basis in a manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Actual earnings in any particular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and, upon request, make available to the Board payroll and other records to facilitate the computation of the backpay due. It having been found that the Respondent also discriminated against Boesel because of her union activity by giving her more difficult work, I will recommend that the Respondent be required to cease and desist from such discrimination. It having been found that the Respondent interfered with the administration of, assisted, and dominated the Employees' Committee, I will recommend that the Respondent be required to cease and desist from such conduct and to withhold recognition from, and to disestablish, such Committee. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, it will be recom- mended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. 28 The record shows that no other persons were present when Webster signed the unior. card handed him by Bloodworth, and that neither Bloodworth nor Webster told anyone in the plant about the incident. Indeed, Webster admitted that he told Carrocclo several times, in response to his Inquiries, that Webster was not a member of the Union (The General Counsel does not allege, and I therefore do not find, that such interrogation by Carroccio was unlawful.) 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, AFL-CIO, and the Employees' Committee at Respondent's plant are labor organizations within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Edward Webster, and by discriminating in regard to the work assignments of Transita Boesel, 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. 3. By threatening reprisals for union activities, including the distribution of union literature by employees in nonwork areas during nonworking time and by maintaining in effect a rule against such distribution, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By interfering with the administration of, assisting, contributing support to, and dominating, the Employees' Committee, the Respondent has violated Section 8(a)(2) and (I) of the Act. 5. 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.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Textile Workers Union of America, AFL-CIO, or any other labor organization, by discriminating in regard to hire, tenure of employment, work assignments, or any other term or condition of employment of any of our employees. WE WILL NOT threaten our employees with reprisals because of their union activities, including their distribution of union literature during nonworking time on our premises other than work areas, and we will not maintain a rule against such distribution. WE WILL NOT assist, dominate, or interfere with the administration of the Employees' Committee at our plant or any other labor organization of our employees. WE hereby withdraw all recognition from and completely disestablish the Employees' Committee at our plant as the representative of our employees for the purpose of dealing with us concerning grievances, wages, hours, or other conditions of work. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form a labor organization, to join Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be limited by the proviso in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL offer Edward Webster immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suf- fered as a result of the discrimination against him. FEDERAL TOOL CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.