Double A Products Co.

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Does he: Accept instructions good -naturedly?___- Try to improve skill?________ Try new methods willingly?___________ Take an interest in his job?_____ Accept changes cheerfully?___________ Try to learn other jobs?______ Observe safetyrules?________________ Provide own tools?__________ Observe plant rules of conduct ?---------. Make helpful suggestions ?_____. Unsatisfactory . Very unsatisfactory attitude and cooperation . Use this 0 degree for anyone who habitually is late or leaves early. Below Average. Only fair attitude and cooperation. Leaves something to 2 be desired in this respect. Average. Tries to do what is expected and takes normal interest in job. 4 Above Average. Tries to do more than is expected and takes more than 6 average interest in job. Unsatisfactory. Any of the following characteristics : Quarrelsome, surly 0 and hard to get along with.._ . Other employees unwilling to work with him because of disposition or some unpleasant personal characteristic___ . Always causing friction and stirring up other employees. Below Average. Occasionally temperamental and apt to "flareup" or be 2 hard to get along with. - - Satisfactory. Normally obliging and easy to get along with. 4 REMARKS: ---------------------------------- --------------------------------- Total: -------------------------------- ---------------------------- Foreman --------------------------- Superintendent Double A Products Company and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW) AFL-CIO and Manchester Union, Party to the Contract. Cases Nos. 7-CA-2963 and 7-CA-3003. Novem- ber 15, 1961 DECISION AND ORDER On June 29, 1961, Trial Examiner Thomas F. Maher 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other alleged unfair labor practices and he therefore recommended that the complaint be dismissed in that re- gard. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report, :together with a supporting brief, in which he was joined by the Charging Party. The Respondent filed a brief in sup- port of the Intermediate Report. 134 NLRB No.'26. DOUBLE A PRODUCTS COMPANY 223 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions thereto, the brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations with the following modifications: I THE REMEDY Having found, in agreement with the Trial Examiner, that the Respondent has engaged in and is engaging in certain unfair labor practices, we- shall require it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found, in agreement with the .Trial Examiner, that the Respondent unlawfully assisted the Union in, among other things, maintaining and enforcing an illegal contract whereby employees are required to join the Union and pay dues sooner than they may law- fully be required to do under Section 8 (a) (3) of the Act. In such circumstance, we find, contrary to the Trial Examiner, that- it will effectuate the policies of the Act to require the Respondent to'reim- burse employees for dues unlawfully exacted 2 We shall, accordingly, order the Respondent to reimburse the first month's dues to all em- ployees hired during the period beginning 6 months prior to the filing of the charges herein. We shall not order the Respondent to reim- burse such employees for any initiation fees that they may have been required to pay during their first month of employment, as all em- ployees would have had to pay such initiation fees pursuant to a law- ful union-security clause. However, if there be any employees who, during the applicable period, paid these initiation fees but worked less than 30 days, the -Respondent shall reimburse such employees for the initiation fees so deducted. 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 Relations Board hereby orders that the Respondent, Double A Prod- ucts Company, Manchester, Michigan, its officers, agents, successors, and assigns, shall I Member Brown would find, contrary to the Trial Examiner, that the Respondent vio- lated Section 8(a) (3) and (1) of the Act by discharging Rudolph Vacek and laying off Kenneth Waters. z Cadillac Wire Corp , 128 NLRB 1002, enfd..290 F 2d 261 (C A. 2). 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Interfering with the administration of, and rendering support and assistance to, the Manchester Union. (b) Recognizing and contracting with the Manchester Union as the 'bargaining representative of its employees unless and until said labor organization shall have been certified as such representative by the National Labor Relations Board. (c) Giving force and effect to any agreement, or renewal or ex- tension thereof, with the Manchester Union, unless and until it has been certified by the National Labor Relations Board as the majority representative of Respondent's employees. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other -concerted activities for their mutual aid or protection, or to refrain .from any and all such activity, 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) Reimburse all employees for dues illegally exacted from them, in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Withdraw and withhold all recognition from Manchester Union, unless and until it has been certified by the National Labor Relations Board as the majority representative of Respondent's employees. (c) Post at its plant in Manchester, Michigan, the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. -Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from receipt hereof, what steps Respondent has taken to comply herewith. 8 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." DOUBLE A PRODUCTS COMPANY 225 IT IS FURTHER ORDERED that so much of the complaint herein as alleges a violation of the Act with respect to Rudolph Vacek or Ken- neth Waters, and to conduct attributable to Willie Fry, be, and the same is, hereby dismissed. 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 Labor Manage- ment Relations Act, as amended, we hereby notify our employees that. WE WILL NOT interfere with the administration of or render sup- port•or assistance to the Manchester Union. WE WILL NOT recognize or contract with the Manchester Union as the bargaining representative of our employees, unless and, until it shall have been certified as such representative by the Na- tional Labor Relations Board. WE WILL NOT give force or effect to any agreement, or renewal or extension of any agreement, with the Manchester Union unless and until it has been certified as the majority representative of our employees by the National Labor Relations Board after a Board- conducted election. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form, join or assist any labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any and all such activity, 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 author- ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE wu,L. withdraw and withhold all recognition from Man- chester Union as the majority representative of our employees, unless and until it is certified as described above. WE wu.L reimburse our employees for dues illegally exacted from them. All our employees are free to become, remain, or refrain from be- coming members of any labor organization, except to, the extent that this right may be affected by a lawful, agreement requiring member- ship in a labor organization as a condition of employment, as author- 630849-62-vol. 131-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. DOUBLE A PRODUCTS COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must noc be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed on November 3 and December 15, 1960 , by International Union, United Automobile , Aircraft and Agricultural Implement Workers of America (UAW) AFL-CIO, the Regional Director of the National Labor Relations Board for the Seventh Region on January 31 , 1961 , issued an amended complaint against Double A Products Company, herein referred to as the Respondent , alleging violations of Section 8(a)(1), (2 ), and (3 ) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain allegations in the complaint, denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before Thomas F. Maher, the duly desig- nated Trial Examiner, at Jackson, Michigan, on February 16 and 17 and June 1, 1961 . All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Parties waived oral argument and in lieu thereof filed briefs. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Double A Products Company is a Michigan corporation with its plant and principal office located at Manchester , Michigan , where it is engaged in the manufacture, sale, and distribution of hydraulic valves, pumps , and power units. While so engaged Respondent annually transports finished products valued in excess of $250,000 to points outside the State of Michigan. Upon the foregoing facts, admitted by Respondent in its answer, I find that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW) AFL-CIO, referred to herein as the UAW, is a labor organization within the meaning of Section 2(5) of the Act. The Manchester Union, not affiliated with any national or international labor organization, is also a labor organization within the meaning of Section 2(5) of the Act. - III. THE ISSUES 1. The status of the Manchester Union. 2. The absence of credible evidence to establish Respondent's knowledge of the activity of employees Vacek and Waters in behalf of the UAW. 3. The discharge of Vacek was established as being for cause. 1 Unless specifically indicated to the contrary , any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part , upon his de- meanor as I observed it at the time the testimony was given. Cf Bryan Brothers Packing Company, 129 NLRB 285 To the extent that I indicate hereafter that I reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony , as the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115 , 117, footnote 1. DOUBLE A PRODUCTS COMPANY 227 4. The layoff of Waters was established as being in proper order, with his acqui- escence, for economic reasons. IV. THE UNFAIR LABOR PRACTICES A. The Manchester Union For the past 15 or 16 years most, if not all, of Respondent's employees have been members of the Manchester Union and a committee of that organization has met periodically with and bargained with representatives of management on matters affecting the employees' wages and working conditions . On or about January 15, 1960, representatives of both parties met and executed , as they had on previous occasions, a collective agreement covering the employees , which agreement was shown on the record to have been in full force and effect on June 15, 1960, and thereafter.2 Included in this agreement were the following clauses: ARTICLE II Recognition SECTION 1. The Company recognizes the Union as the exclusive collective bargaining agent for the employees of the company, and all eligible employees must be members of the Union. ARTICLE VI Grievances - SEC. 4. The actual number of members of the grievance committee shall be mutually agreed by the general superintendent of the plant and the Union, and in no case shall there be more than two members in any department. If possi- ble, all shifts and departments are to be represented. The members of the grievance committee shall be men who have been employed by the Company a sufficient length of time to have a comprehensive knowledge of the daily operations of their departments. * * * * * * * ARTICLE XIX Insurance Clause The Company and the Union will split fifty-fifty the balance of all hospital and surgical claims of those employees eligible for Prudential Insurance for which the Prudential Group Insurance Policy covers a specified amount. In other words, the Union and Company will pay only the balance of such hospital or surgical claims for which Prudential Insurance Company is liable for a part. We are operating under the same rules as are in force under the Pru- dential group policy. The reinsurance by the Company and Union becomes effective sixty days after employment. All employees eligible for the Prudential Group Insurance may be assessed for amounts necessary to cover the Union's yearly share of this joint insurance coverage. Each eligible employee whether a member of the Union or not, will be assessed $1.50 per month to cover the Union's share of this Insurance with a further assessment if necessary. Any of our employees or their de- pendents that are eligible for either the Prudential or Double A and Union Group benefits that contract Tuberculosis may be covered by the Prudential Group policy but will not be covered by the Double A Products Co. and Union coverage. The same will hold true for our employees or their dependents that use the Veteran's Hospital and facilities. Any person leaving the employ of Double A will not be covered by the joint Union and Company coverage unless they have a written leave of absence agree- ment, with a specified termination date. Herbert H. Upton, president of Respondent, testified that during the period fol- lowing June 15, 1960, he and his son, Herbert Upton, Jr., general manager, hired new employees and in doing so brought to their attention the requirement of the fore- 9 The date of June 15, 1960, has significance only as the extreme of the 6-month period preceding the filing and service of charges In this matter See Section 10(b) of the Act 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going agreement that they must join the Manchester Union. Union dues for such employees were, according to President Upton, automatically deducted from the employees' pay without further notification or request for authorization. In this re- spect Upton identified for the record the payroll account of three employees hired during the period in question, Cox, Hyder; and Philo, each of whose union dues were deducted within 3 weeks of their employment in July 1960? President Upton, in describing the relationship that existed between the Company and the Manchester Union, conceded that, completely unaware of any possible wrongdoing, the Company made a practice of paying the union committeemen for the time spent at union meetings when such meetings coincided with the shift on which the employee would normally have been working. He also testified that they permitted union officials to be absent from work on union business without loss of pay. The Company likewise provided the Union with space throughout the plant for the installation and maintenance of food, cigarette, and soft drink vending machines, the proceeds from which were collected by the Union and the profits allocated by it to the payment of its share of the reinsurance fund, referred to herein supra, as article XIX of the collective agreement. With respect to the matter of insurance benefits it appears from Upton's testimony that the basic group insurance plan for which the Company paid the full cost was, deemed by both company and union officials to be inadequate to meet the medical, surgical, and hospitalization requirements of the employees. Consequently, and as previously noted in the contract provision quoted herein (supra), the Company and Union agreed to purchase additional insurance coverage and divide the additional cost between them. Each employee, whether a member of the Union or not, was required by the agreement to pay a mouthy assessment of $1.50. In actual practice, however, the individual employee's assessment was paid in substantial part out of union funds derived from vending machine profits .4 - In addition to the foregoing the Company has in the past made available to the Union and its officials its clerical and duplicating facilities for the purpose of prepar- ing copy and reproducing ballot forms used in the Union's elections It is Respondent's contention that the foregoing conduct does not constitute domination or unlawful interference or assistance with the administration of the Manchester Union for the reason that it was done in complete good faith without any knowledge of its unlawful connotations and with no intent to dominate, inter- fere, or assist the organization of its employees. It further contends that what un- lawful defects attach to the collective agreement which it administered and main- tained during the period following July 15, 1960, have been cured by the execution of a new agreement in January 1961; which agreement contains none of the pro- visions of the earlier agreement alleged to be unlawful. In response to Respondent's effort to excuse itself by reliance upon its manifest good faith and its lack of intent to violate the statute, it is sufficient to note that neither good faith nor lack of intent to violate the Act are.of significance to any finding in that respect, for it is the effect, and not the motivation of an action, which determines whether the Act has been violated.5 I am not unmindful of the fact, as will be considered in detail hereafter, that the Respondent has engaged in no other unfair labor practice. Moreover, I am con- vinced that Respondent, and particularly President Upton, was motivated by a sincere desire to deal fairly with the employees when engaged in the aforementioned conduct, especially in its effort to accomplish a correction by refunds of dues, revision of the contract, and otherwise. Nevertheless, Respondent by its conduct invaded a field of activity that is exclusively reserved for its employees, and the Board under such, circumstances has nevertheless held that such conduct as described above is violative of the Act .6 "Upton testified credibly that dues thus collected from these three individuals were thereafter refunded, but neither he nor anyone else testifying to the matter gave any reason for such action being taken . In one case the refund was made in August 1960 and in both other instances the refund was made a week prior to the hearing in this case As will be noted In detail hereafter (infra), this action has no significance to a factual determination that dues were deducted without notice or authorization 'The credited testimony of Manchester Union Treasurer Homer F. Dennis. 5 N L R.B. v. J. E. SfcCatron, et al., d/b/a Price Valley Lumber Co , et al, 216 F 2d 212, 215 (CA. 9). See also Old King Cole, Inc. v. N.L.R.B, 260 F. 2d 530 (C.A. 6) N.L.R.B. v. Bell Aircraft Corporation, 206 F. 2a 235, 237 (C.A. 2). Ed Taussig, Inc, 108 NLRB 470, 476. DOUBLE A PRODUCTS COMPANY 229 Here Respondent, under the contract currently in force, relied upon it (article II) in hiring employees Cox, Hyder, and Philo, instructing them that they "must be members of the Union." By thus "maintaining in force a collective bargaining agreement which embraces a union-security clause granting employees less than thirty days in which to join the contracting union" the Respondent is clearly in vio- lation of Section 8(a) (2)? Article VI, section 4, of the contract (supra), dealing with the constituted mem- bership of the grievance committee, requires, in final effect, mutual agreement as to who will be a member of that committee. To the extent that the Company's agree- ment is necessary it thereby has a right to veto over any selection with whom it does not agree. To this extent, therefore, the employer thereby intrudes into the in- ternal administration of the Manchester Union and clearly exercises a degree of control not consistent with the neutrality expected of it and thus constitutes further evidence of a violation of Section 8(a) (2).8 I do not, however, view the contractual requirement of full employee participation in the reinsurance program, as outlined in article XIX (supra) and as described in its current operation by employee Dennis, to constitute independent evidence of domination, support, or assistance. Indeed were nonmembers of the Manchester Union excluded from the coverage of this added insurance there would be every reason for complaint that discrimination was being visited upon them by depriving them of valuable insurance coverage. I would recommend, therefore, that so much of the complaint as alleges that the contract is independently violative of Section 8(a)(2) or (3) of the Act by virtue of the insurance clause be dismissed. In addition to the foregoing instances of unlawful conduct deriving from the enforcement and maintenance of the contract, the Repondent has been shown by its own admission to have engaged in other conduct which is equally unlawful. Thus it has permitted union officers and committeemen time off with pay for the attendance at union meetings and for the prosecution of union business; 9 it has deducted union dues from employees' pay without prior authorization or notice; 10 it has provided the Manchester Union with space throughout the plant for the installation and maintenance of vending machines, thereby foregoing for itself the profits which inure to the Union; 11 and it permits the use of its clerical force and equipment for the printing of ballots used by the Manchester Union for its election-.12 Having concluded as I do that the conduct enumerated above constitutes a viola- tion of Section 8(a) (2) of the Act there remains to be determined the extent of this violation. That is, whether it be a form of domination or of unlawful assistance, support, and interference. A review of the cases indicates that the criteria for estab- lishing the extent of employer control "is not an objective one but rather sub- jective from the standpoint of the employees." N.L.R.B. v. Sharples Chemicals, Inc., 209 F. 2d 645, 652 (C.A. 6). Thus to find domination, the more arrant of the types of conduct violative of Section 8(a)(2), an employer's conduct must be of a grosser variety, insensitive to the rights of his employees as well as to the requirement of neutrality imposed upon him by the statute.13 Respondent here, in my evaluation of his conduct, has not indulged in what has come to be recognized as the grosser forms of employer intrusion. On the contrary, its contractual relations, however misguided, appear to have been of mutual ad- vantage to both it and its employees. The same applies to the benefits it provided the Manchester Union over the years., Moreover, it is to be noted that these activities have consistently occurred in an atmosphere free of interunion competition and, so far as the record discloses, free of any attempt to impede the introduction of an "outside" union. Under such circumstances, and in view of Respondent's frankness as to its actions and its efforts to rectify the irregularities in the collective agreement, I would hesitate to characterize the Manchester Union as a company-dominated union, with all of the connotations of malfeasance attaching to it. Rather, I would N.L R B v Associated Machines, Inc , 239 F 2d 858 (C A. 6). s Cf. Pacemaker Corporation, an Indiana Corporation v. N L R B , 260 F. 2d 880 (C A 7). 9 Mt Clemens Metal Products Company, 126 NLRB 1297, 1310, enfd. 287 F. 2d 790 (CA 6) i°Illinois Malleable Iron Company and Appleton Electric Company, 120 NLRB 451. 11 N.L.R B v. Shedd-Brown Mfg Co., 213 F. 2d 163, 168 (C.A. 7). 12 Mt Clemens Metal Products Company, supra 13 N L R B v. Sharples Chemicals, Inc, 209 F. 2d 645 (C A. 6) ; N L ,R B. v. Polynesian Arts. Inc., 209 F. 2d 846, 847 (C A 6) ; N.L R.B v. Edwin D. Wemyss, d/b/a Coca-Cola Bottling Company of Stockton, 212 F. 2d 465, 471 (C A. 9) ; N L R B. v. The Summers Fertsltzer Company, Inc, et at, 251 F. 2d 514, 518 (C.A. 1). See also Mt. Clemens Metal Products Company, supra. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD limit my findings to those of company interference with the Manchester Union's ad- ministration and to the contribution of financial and other support to it. In these respects I find that Respondent has violated Section 8 (a) (2) of the Act. With respect to the further allegation in the complaint that by maintenance of the contract during the period following June 15, 1960, Respondent also violated Section 8(a)(3) of the Act, it is sufficient to note that it is a legal precept of long standing that a union-security provision in a contract which fails to provide new employees with the statutory 30 days within which to join the union constitutes a discrimination against them.14 Accordingly, I find the Respondent to have further violated the Act by discriminating against its employees in violation of Section 8(a) (3). B. The alleged discriminations 1. Rudolph Vacek Rudolph Vacek, employed by the Company for a period of 1i/2 years , was dis- charged from his job as OD grinder operator on October 20, 1960. When termi- nating Vacek, Respondent assigned as its reason his propensity for wandering about the plant visiting with his fellow employees and the causing of excessive scrap on the work assigned him.15 General Counsel, on the other hand, contends that no such justification existed for Vacek's discharge, and that actually the reasons supplied were but a pretext for eliminating him because of his activities in behalf of the UAW. In this regard, and contrary to General Counsel 's contention, I am persuaded upon the credible evidence submitted that Vacek did indulge in wandering about the plant, did create an excessive amount of scrap, and that he was, in fact, discharged for these reasons. But this does not dispose of the issue if it should appear that his activities in behalf of the UAW were known to Respondent's officials directly or through its supervisors, and that his discharge was for this added reason. There is nothing in the testimony of any credited witness to suggest, however, that Respondent did know of Vacek's activity in behalf of the UAW. In so concluding, I do not credit the testimony of either Vacek , Kenneth C. Waters, or Supervisor James F. Heslip, the only witnesses whose testimony would suggest company knowledge of the UAW's interest in organizing the employees in the fall of 1960. Upon my observation of Vacek and also in view of his hedging testimony, fre- quently contradictory and equivocal , I reject him as a credible witness.16 As to Kenneth Waters his demeanor on the witness stand and the equivocal and hedging manner in which he answered questions put to him persuade me that he is not a reliable witness.17 Supervisor Heslip's testimony is equally incredible . In addition to my general ob- servation of him as a witness, his testimony clearly establishes his unreliability in that respect. Thus he testified both affirmatively and negatively when questioned 14 N L R B v . Associated Machines , Inc, supra ; NLRB v Cadillac Wire Corp, at al, 290 F 2d 261 (C.A. 2) ; Chun King Sales, Inc, 126 NLRB 851, 853 >s These findings are based upon the credited testimony of President Upton , employee Yarckow, Chief Engineer Dorff, Chief Inspector Bauer, Franz Hayes, chief of the gerotor department, and the production records introduced by Respondent at the hearing Testi- mony to the contrary is accordingly not credited 16 Illustrative of Vacek's unreliability were his evasive answers when asked on cross- examination if lie had signed up Supervisor Heslip in the UAW ; and his contradictory testimony when asked if, following his discharge , a meeting had been arranged between the grievance committee and management concerning his discharge In this instance, after testifying that he did not know whether such a meeting had been arranged , he then testified that he told a committeeman he could not stay for the meeting that had been arranged because of a previous engagement 17 Illustrative of this is his testimony concerning a pretrial affidavit given by him. He contradicted statements made in the affidavit , he was evasive concerning contents shown him in the affidavit , and he was reluctant to supply information from the affidavit itself when questioned concerning it by me. The sentences in Waters' affidavit to which he showed particular reluctance was "Franz Hayes never said anything to me about the union None of the supervisors or foremen ever said anything to me about a union, and I never mentioned my activities to them " He claimed he could not read the handwritten words "none of," as they appeared in the statement As I stated on the record, I per- sonally inspected the document in question and found the words "none of" to be as clear as any of the other words which Waters readily read I draw particular significance from Waters' difficulty to read this sentence from the fact that he had already testified to the contrary, and to the effect that he had discussed the UAW with Supervisor Heslip. DOUBLE A PRODUCTS COMPANY 231 whether Supervisor Hayes had spoken to him about Vacek trying to bring in the UAW; a conversation which Hayes thereafter credibly denied. Similarly, Heslip testified that he never had reprimanded Vacek, and yet thereafter in his testimony con- ceded that at Hayes' suggestion he spoke to Vacek about this excessive scrap. Upon his general demeanor and because of contradictions and equivocations as illustrated above, I cannot credit Heslip's testimony except as it relates to technical or operational matters not in issue here, or as corroborated by the testimony of credited witnesses. But apart from my resolution of Supervisor Heslip's credibility (the only basis upon which Respondent's knowledge of Vacek's or the UAW's activities could be based), it should be noted that except for the alleged conversation. Heslip had with Super- visor Hayes ( a conversation denied by Hayes and contradicted by Heslip himself), Heslip concedes he never mentioned Vacek's UAW affiliations to either of the Uptons, or to Chief Engineer Dorff, or to his assistant Hayes. Thus the most charitable treat- ment of Heslip's testimony reveals his failure to supply Respondent with the knowl- edge necessary to establish discrimination with respect to Vacek. At it does not appear, therefore, that Respondent was aware of Rudolph Vacek's union activity when it discharged him, and as the evidence to support Respondent's stated reasons for the discharge is ample in the record, I shall recommend that so much of the complaint as relates to Rudolph Vacek be dismissed. 2. Kenneth C. Waters Kenneth Waters was hired on January 5, 1959. He was first assigned to work on the turret lathe and was thereafter assigned to the drill press and milling depart- ments, working interchangeably, in both departments. As a result of a drop in orders work in each of these departments was seriously curtailed. On October 28, 1960, Waters was one of a group laid off for lack of work, another group having been laid off on the previous week. None of the employees of either of these two groups have since been recalled and further layoffs have occurred, including one a week prior to the close of the hearing in this case. Witnesses appearing in behalf of Respondent credibly testified that Waters was a good employee, that he was, in fact, laid off because there was no work to,be done in his department, that no one who has since been hired to do his or any other laid- off employee's work, and that upon the improvement of business Waters will be recalled.18 The layoff of Waters, as of the other employees in his particular group , and in the group laid off on the week previous, was accomplished by meetings of management with the grievance committee of the Manchester Union, of which committee Waters was a member. The meeting at which the individuals were selected for the Octo- ber 28 layoffs, which meeting appears to have been held on October 25, is best described in Waters' own admission: Q. (By Mr. CHERPELIS.) At the October 28th meeting, or committee meet- ing-1 believe it was October 25th. The meeting at any rate at which Mr. Upton discussed who was going to be laid off, or give the names, was any mention made at that meeting regarding the seniority status of any of the employees in the Gerotor department? A. Yes, there was. Mr. Ross wanted to know where I was at on the seniority list, and I told him I was at the top of the list, and that's when he started going to bat for me. He was trying to get me-get Mr. Upton to put me somewhere else, and he also brung it up he wanted me to take Julius Lavender's job, and I told Mr. Ross I would think about it, but in the meantime Mr. Upton said "Hell, no, he is the only man in the mill department and therefore he will go," so the following morning of the 26th Mr. Ross came back to me and said "Let's go in ,and talk to the old man and maybe he will have a change of heart," and I told Lefty, I said "No, I am not built like that; if I have to take another man's job in order to stay in the shop, I don't want it." Thus, when he was selected, Waters understood the reasons for the selection and appears willingly to have abided by the decision. It is General Counsel's contention that Waters' layoff occurred out of turn and because of his known solicitation in behalf of the UAW. As previously noted in the case of Vacek, the only evidence of Respondent's knowledge of UAW activity in the plant derives from the testimony of Vacek, Heslip, and Waters, none of whom I credit. There is, however, some question as to whether President Upton had, on the same day Waters was selected for layoff, already received a telephone call from a Mr. McLean, a representative of the UAW, protesting the handling of Vacek's dis- 18 The testimony of President Upton, 'Chief Engineer Dorff , and Chief Inspector Bauer. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge, and the language used by Upton concerning it. Upon the assumption that Upton did become aware of the UAW activity contemporaneously, if not before, Waters' layoff, it would require an inference much too weak and remote for me to indulge in to find that Upton therefore knew that Waters was one of the prime movers in this campaign and that this fact and not the normal economics of plant personnel operations was the reason for his layoff. Accordingly, I find upon the testimony of credible witnesses that Respondent had no knowledge of Waters' UAW activity.19 Under such circumstances, therefore, as has been presented by the testimony of credible witnesses I conclude and find that Kenneth Waters was properly laid off for lack of work and for no other reason. 3 will recommend therefore that so much of the complaint as alleges discrimination against him be dismissed. C. The alleged interference, restraint, and coercion It is alleged in the complaint that Respondent's supervisor, Willie Fry, "threatened its employees with discharge or other reprisals if they became or remained mem- bers of the Charging Party or gave aid and support to it." In support of this allega- tion General Counsel adduced testimony from Kenneth Waters, whose testimony I have rejected (supra), and from his brother, Keith Waters, and Charles Todd. Todd first testified that Fry, in midOctober 1960, "said if Mr. Upton heard anything about anybody trying to organize or get the UAW in, he would probably be fired." But thereafter on cross-examination he testified that to the best of his knowledge no foreman or any representative of the Company knew what was going on in connec- tion with the union activity, and that none of them ever mentioned it to him. Such a contradiction renders Todd's testimony unreliable. Similarly, Keith Waters testified to the effect that Fry attributed Vacek's discharge to union activity and said, with reference to Upton, "Yes, and he will probably get rid of everybody that had anything to do with the union." But on cross-examination Keith Waters, when recounting Fry's stated feelings "about getting the CIO in there," stated that Fry "said it would be a good thing. He said he would even-he would either be boss or he would be a set up man." Such obvious contradiction destroys any credence I could otherwise place on Keith Waters' testimony. As to the further allegation that during the`same period Foreman James Heslip also threatened employees with discharge or other reprisal for UAW membership or assistance, I find that this has support in the record only from the testimony of Kenneth Waters. As I have rejected Kenneth Waters' testimony, I must necessarily reject any allegation based upon it. For the foregoing reasons, therefore, and upon my observation of the witnesses, I find there is insufficient credible evidence to support an allegation that Respondent has unlawfully interfered with, restrained, or coerced its employees. I shall accordingly recommend that the complaint be dismissed in such respects. V. THE REMEDY Having found that the Respondent maintained and enforced a contract with the Manchester Union which in certain specified respects constituted discrimination against employees in violation of Section 8(a),(3), as well as a form of unlawful assistance and support to the Manchester Union and interference with its administra- tion, in violation of Section 8(a) (2), and having found that Respondent otherwise interfered with and rendered unlawful support and assistance to the Manchester Union, I shall recommend that Respondent cease and desist from such conduct, that it withdraw and withhold all recognition from the Manchester Union and cease giving effect to any agreement, or renewal or extension thereof, with said labor organization unless and until it has been certified by the National Labor Relations Board as majority representative of Respondent's employees following a Board- conducted election. As the conduct indulged in by Respondent has not been found to be of such gravity as would constitute unlawful domination, I shall not require disestablishment of the Manchester Union nor do I believe it would effectuate the policy of Act 29 It is suggested that the wearing of lapel buttons sponsored by the CIO Committee on Political Education (COPE), endorsing the campaign of President Kennedy, constituted evidence whereby Respondent's knowledge of UAW activity could be inferred I must necessarily reject any suggestion that would equate national political interest and prefer- ence with a union organizing campaign. I would similarly conclude with respect to pamphlets published by COPE concerning the voting records of Michigan candidates for congressional office which Waters and others allegedy distributed, and which Waters claims he saw on Upton's desk on the day of his layoff. LEONETTI FURNITURE MANUFACTURING CO. 233 to require, as urged by the Charging Party, reimbursement of employee dues and other payments made to Manchester Union by them. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW) AFL-CIO, and Manchester Union are labor organiza- tions within the meaning of Section 2(5) of the Act. 2. The operations of Respondent occur in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with the administration of and rendering unlawful assistance and support to the Manchester Union and by maintaining and enforcing an unlawful agreement with it, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a) (2) of the Act. 4. By discriminating against its employees by maintaining and enforcing an unlawful agreement with the Manchester Union, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 5. By the foregoing conduct only Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com - merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not violate Section 8 (a) (3) or (1) of the Act by the discharge of Rudolph Vacek or the layoff of Kenneth Waters. [Recommendations omitted from publication.] Fred Leonetti and Benjamin Sussman, Partners doing business as Leonetti Furniture Manufacturing Co. and Warehouse- men's Union Local 206, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America.. Case No. 36-CA-1001. November 15, 1961 DECISION AND ORDER On June 29, 1961, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He also found that the Respondents had not engaged in other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the Re- spondents filed exceptions to the Intermediate Report and a brief in support thereof.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with No exceptions were filed to the Trial Examiner's recommended dismissal of allegations In the complaint. 134 NLRB No. 28.