Cincinnati Gasket, Packing & Mfg., Inc.

CINCINNATI L SKET, PACKING & MFG., INC. 851 ballots taken under an election conducted pursuant to the Respondent 's RM petition and impounded pending the disposition of this unfair labor practice proceeding. Accordingly, I shall recommend dismissal of the complaint. 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. The Respondent is, and has been at all times material to the issues in this pro- ceeding, an Employer within the meaning of Section 2 (2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not, by refusing to bargain with the Union in violation of Section 8 (a)(1) and (5) of the Act, engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. Cincinnati Gasket, Packing & Mfg., Inc. and International Asso- ciation of Machinists, District Lodge 34, AFL-CIO. Case No. 9-CA-2858. April 14, 1964 DECISION AND ORDER On January 9, 1964, Trial Examiner Lee J. Best issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in,the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief and Respondent filed a brief in support of the Trial Examiner's Decision.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [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 Trial Examiner's Decision, the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner? [The Board dismissed the complaint.] 1 No exceptions were filed to the Trial Examiner's conclusion that Donald Pritchard's discharge was not violative of the Act. 2 These findings and conclusions were largely based upon credibility resolutions of the Trial Examiner. It is established Board policy that a Trial Examiner 's credibility findings are entitled to great weight ; he is in a position to observe the demeanor of the witnesses. The Board therefore does not overrule a Trial Examiner 's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 ( C.A. 3). Such a conclusion is not warranted In this case. 146 NLRB No. 105. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act), was heard pursuant to notice before Trial Examiner Lee J. Best at Cincinnati, Ohio, on August 27, 28, 29, and 30, 1963, with all parties present and represented by counsel. Based upon an original charge filed on May 16, 1963, and an amended charge filed on May 23, 1963, by International Association of Machinists, District Lodge 34, AFL- 'CIO (herein called the Union or Charging Party), the General Counsel of the Na- tional Labor Relations Board on July 19, 1963, issued a complaint against Cincinnati Gasket, Packing & Mfg., Inc. (herein called Respondent), alleging that the Respond- ent engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. The complaint specifically alleges in substance that since on or about April 2, 1963, the Respondent has continually by and through its officers and supervisors engaged in specified acts and conduct which interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; and, by discrimination in regard to hire or tenure of employment to discourage mem- bership in a labor organization, discharged Donald Pritchard on May 3, Franklin Alsip on May 15, and George David North on May 23, 1963. In due course, the Respondent filed an answer to the complaint admitting the jurisdictional allegations thereof, but, specifically denying all allegations of unfair labor practices. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence pertinent to the issues involved, to argue orally upon the record, and to file written briefs with the Trial Examiner, all of which have been given due consideration. Upon the entire record in the case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Cincinnati Gasket, Packing & Mfg., Inc., is a corporation organized and existing under and by virtue of the laws of the State of Ohio with offices and plant at 1501 Elm Street, Cincinnati 10, Ohio, where it is engaged in the fabrication, processing, sale, and distribution of gaskets and industrial glassware. During the past 12 months, which is a representative period, Respondent procured and caused to be shipped directly to its plant from points outside the State of Ohio goods and raw materials valued in excess of $50,000; and during the same period manufactured, sold, and shipped finished products valued in excess of $50,000 from its said plant to points outside said State. I find, therefore, and it is admitted that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. In its gasket manufacturing and glass processing operations, the Respondent employs approximately 43 production and maintenance employees exclusive of supervisors. Supervisors of the Respondent, within the meaning of the Act, in- clude Albert J. Uhlenbrock (president), Charles G. Eldred (vice president), Marion H. (Pete) Ledonne (purchasing agent), Alonzo Sears, Jr. (foreman), John J. Wat- terson, Jr. (foreman), Paul John Sillies (foreman), and Henry C. Swinford (fore man). A considerable part of Respondent's business is done on a "will call" basis, wherein the customers personally place their orders at the shop, and either wait while the order is processed or return for its delivery at a later time. II. LABOR ORGANIZATION INVOLVED International Association of Machinists, District Lodge 34, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, existing in whole or part for the purpose of representing employees in dealing with employers concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, and con- ditions of work. III. THE UNFAIR LABOR PRACTICES A. Undisputed background information The Respondent Company was founded by Frank Duttenhofer in or about the year 1907., As'principal owner and chairman of its board of directors he exercised active control of operations until committed to a hospital with a broken hip in May 1962, and thereafter at 90 years of age died on February 22, 1963. During the latter years of Chairman Duttenhofer, operations in the shop were loosely con- CINCINNATI GASKET, PACKING & MFG., INC. 853 ducted without well-defined job classifications and little exercise of discipline over employees . Following the disablement of Duttenhofer, President Albert J. Uhlen- brock assumed responsibility for future operation of the business . The principal customer of the Respondent is the Flight Division of General Electric Company, Evendale, Ohio, with post office address at Cincinnati 15, Ohio , to whom it is a sup- plier of parts for let aircraft engines. In October 1963, General Electric Company made an inspection of the operations of the Respondent and complained concerning a decline in quality of parts being supplied to it by the Respondent . By letter of November 1, 1962, to Respondent's quality control and sales representative, this customer required that certain corrective measures be taken , as follows: DEAR MR. COONEY : The following course of action will assist you in improving your quality rating. (1) Insist that your people follow the policies and procedures contained in your company's Quality Policy Directives. (2) Integration or "effective planning " of inspection will aid in the efficient utilization of final, in-process, die, tool control and manufacturing operation inspections. General Electric's Quality Control looks with extreme apprehension upon any company where it is found that the employees are not following the Quality policy directives of that company . Specifically, I observed in your fabrica- tion shop that G.E.'s part number 416B130P6 and 705B290P1 job travelers were not being signed by inspection. Reference your Quality Control Manual which states, "Travelers are to be signed for every other process set-up and first piece inspected for every other set up." All inspection signatures were missing from both travelers, although both parts were in the third step of process operations. As I have stated, we expect you to control your inspection so that every product characteristic (i.e. blueprint dimension , specification, and/or other requirement) is inspected to a frequency per MIL-Std-105C as stated in your Quality Control Manual. This should assure aircraft quality hardware delivery at all times. We shall not attempt to plan your forms, procedures or frequency of inspec- tion; only you can evaluate , integrate and determine inspection frequency rela- tive to product characteristic. In any case, the plan must be equivalent to MIL-Std-105C. Action on these two items should be inaugurated immediately . If we can be of any assistance, please contact us. Very truly yours, GENERAL ELECTRIC COMPANY. B. R. DURST, Process Control Engineer, Incoming Materials Quality Control, LIED Large Jet Engine Department, Evendale Plant. D. J. DEWAN, Buyer, Specialty Parts Purchasing, Large Jet Engine Depart- ment, Evendale Plant. W. ASHBY, Buyer, Specialty Parts Purchasing, Large let Engine Department, Evendale Plant. BRD/dt In further consultations with President Uhlenbrock , it was demonstrated that the quality rating of Respondent had during the past 6 months dropped from an average of approximately 96 to 98 percent to an average of approximately 58 to 60 percent, and even lower on some items. Thereupon , during the months of November and December 1962 and January 1963, the Respondent adopted a new program of production to become effective as of February 16, 1963, designed to tighten controls in all of its manufacturing processes and operations. A new system of inspections was established that created new job classifications. Wage rates were revised by setting up a minimum and maximum wage bracket for each classification . Assignment of employees thereto resulted in a wage increase effective February 21 , 1963, to 34 em- ployees. Only two employees retained their previous wage rates, and no employee received a reduction in wages . A preexisting bonus -plan was scrapped. Authority was delegated to all foremen in their discretion to grant further merit wage increases within 90 days not to exceed the maximum provided for each job classification, whenever employees assigned to such classification were found to be qualified therein. Pursuant to this discretionary authority merit wage increases were granted to 30 out of a total of 43 employees, effective May 16, 1963 . See Respondent's Exhibit No. 19. Additional allowances for percentage wage increases to employees 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with service in excess of 10 years were provided. Thereupon, President Uhlenbrock held meetings with the employees in each department and explained the new program to them. On or about March 30, 1963, approximately 10 employees, including Donald R. Pritchard, Jake Brown, William H. Kidd, George Carter, and George David North, attended a meeting with Business Representative Dan Koons at the union hall to dis- cuss representation for the purpose of collective bargaining. With Donald R. Pritchard acting as contact man for the Union , this group inaugurated an organiza- tional campaign in the shop by soliciting other employees to sign authorization cards. Thereafter, by letter dated April 2, 1963, the Union notified Respondent that it rep- resented a majority of employees and requested recognition for the purpose of col- lective bargaining. Respondent replied by letter of April 5, 1963, expressing doubt as to such majority representation, and notified the Union that it was requesting the National Labor Relations Board to conduct an election to determine the question of representation. On the same day Respondent filed such a petition with the Board in Case No. 9-RM-319. Following this petition the parties on April 17, 1963, signed an agreement for a consent election, which was thereafter conducted by the Board at the plant in the will call department from 3:30 to 4:15 p.m. on May 2, 1963. The Union won the election by a ballot count of 24 to 19. On May 7, 1963, the Respond- ent filed objections to conduct affecting the outcome of the election. Thereafter on August 6, 1963, Respondent's objections were overruled by the Regional Director for the Ninth Region, and the Union was certified as bargaining representative for all employees in the appropriate unit. Following the election, Respondent dis- charged Donald R. Pritchard (employee) on May 3, 1963, for alleged threats against other employees. Thereafter, Respondent discharged Franklin S. Alsip on May 15, 1963, by reason of alleged insubordination. Thereupon, the Union called a strike on May 16, 1963, and established a picket line at the plant, George David North (employee) was discharged on May 23, 1963, for an alleged accumulation of un- protected conduct during the strike, including an unprovoked attack upon a non- striking employee (Charles E. Mohr) on the picket line at the plant. Pending an investigation of charges, the strike was called off on June 3, 1963. B. Interference, restraint, and coercion As heretofore stated , the Union requested recognition by letter to the Respondent on April 2, 1963. Thereupon, the Respondent posted a notice to employees on its bulletin board, as follows: BULLETIN A labor union has written our company demanding that we recognize the union as the exclusive bargaining representative for all of our production and maintenance employees. We have written the union today that we do not be- lieve that our employees want to be represented by this organization. This afternoon we have asked the National Labor Relations Board (U.S. Government) to come to our plant in the near future and conduct an election, at which all eligible employees will have an opportunity to vote by secret ballot on this very important question. We believe the U.S. Government will grant our request and conduct this election at our plant. We'll keep you advised of developments. ALBERT J. UHLENBROCK, President. Pursuant to instructions from President Uhlenbrock, various foremen and super- visors held meetings with'the employees under their supervision to discuss the situa- tion. From the ;testimony of Purchasing Agent Marion H. Ledonne, it appears that these supervisors were instructed to review the benefits presently afforded by employ- ment with the Company, and nothing more. Consequently such meetings were called and held in various departments of the plant by Purchasing Agent Marion H. Ledonne, Foreman Alonzo Sears, Jr., Foreman John Jerome Watterson, Jr., Foreman Henry C. Swinford, and Foreman Paul John Sillies. From that time forward the Union became a subject of open discussion throughout the plant between adherents and nonadherents to such an extent that the Respondent found it more difficult than usual to control production. . 1. Conduct of Supervisor Marion H. Ledonne Purchasing Agent Ledonne held at least two meetings with employees under his supervision in which he admittedly discussed benefits, received from the Company, told them that they, were free to vote for or against the Union, that conversation in CINCINNATI GASKET, PACKING & MFG., INC. 855 the shop about the Union was causing a loss in, production, and -that henceforth there must be no "chitchat" except pertaining to work and no soliciting or organizing with respect to the Union during working hours on company premises. He ad- mittedly said to George Carter (employee ) : "If you- want to talk union, go across the street. You,are not permitted to discuss union affairs or solicit union patronage during working hours on company premises ." In the aforesaid statements made by Supervisor Ledonne I find no threats of reprisal or promise of benefit , hence no viola- tion of Section 8(a)( I) of the Act. 2. Conduct of Foreman Alonzo Sears, Jr. It is alleged in the complaint that at various times on and after April 2, 1963, Foreman Alonzo Sears, Jr., interrogated employees concerning their union activities, created the impression that Respondent was keeping their activities under sur- veillance, threatened employees with loss of economic benefits, discharge, or other reprisal if the Union became their bargaining representative, and otherwise inhibited Respondent's employees in the selection of a bargaining representative. Foreman Sears admits that on or about April 5, 1963, he assembled all employees under his supervision in the glass shop, and reviewed the benefits and privileges presently offered by the Company in their employment. He' also related his own unfavorable past experiences as a member of a papermakers' union while working for the Philips Carey Manufacturing Company in, Cincinnati, Ohio, including the practice of docking the wages of employees for tardiness in reporting for work, whereas it was the policy of Respondent to overlook such dereliction if there was a reasonable excuse. The latter remark was directed primarily to William H. Kidd (employee) who had been late on several occasions. Sears said that under a union there would -be new rules and problems, and that he did not know how far the Company could control them. He also 'made a 'statement to the effect that strikes cost money that could never be recovered. Foreman Sears further admits that later in the month of April, Donald R. Pritchard was instructed to get out of the lighting shop and re- turn to his place of work in an-adjoining room, because there was too much talking among employees in his department. On another occasion during the same perm he found Lonis Monroe (Negro porter) talking to Pritchard in the glass shop and, without speaking to Monroe, inquired of Pritchard as to how long Monroe had been in there. About the same period, he overheard a discussion between George Carter and Jerry Brown in the washroom and thereupon told Carter to break it up and take any talk like that outside the shop because he had been brought in there to work. Foreman Sears credibly testified that after the meeting on April 5, 1963, employees frequently discussed the Union pro and con in his presence, and asked many ques- tions about it-that on several occasions Gene Hardin (employee) inquired whether there would be any objection to forming a company union-that he told Hardin there would probably be no objection, but that it would be unlawful for the Respond- ent to take any part in such an organization. When asked what he thought about the Union, he told Hardin to look around at the older and more efficient employees for guidance, and do his own thinking about it. After the strike started on May 16, 1963, he frequently talked to George David North and other picketing employees, telling them that they should drop the dispute, come on back to work, and let the National Labor Relations Board settle the problem, because they were losing money, and that would be the best thing for them to do. Donald Ray Pritchard (employee) testified that he volunteered to be contact man for the Union at Respondent's plant, and that George Carter, William Kidd, and George David North worked with him in getting cards signed by other employees; that in his speech to employees on April 5, 1963, Foreman Sears said, "Some of you have signed union cards, haven't you Pritchard?" and that his reply thereto was "I don't know what the hell you are talking about." Pritchard further testified that Foreman Sears also made a statement to the effect, "If you guys want a union, why don't you organize a company union so no outsiders can come in?" Foreman Sears vigorously denies making such remarks, and asserts that no discussion whatever concerning a company union occurred at that meeting. William H. Kidd (employee) testified that at the meeting on April 5, 1963, Fore- man Sears mentioned that he'had heard about people signing union cards and that some of us had joined the Union; and then looked at Pritchard with a smile and said, "Isn't that right, Don?" However, in an affidavit to the National Labor Rela- tions -Board on May 21, 1963, Kidd had said: "I don't recall Sears naming Pritchard in regard to the Union-or signing a card." Kidd further testified that Sears told them that coming in late to work would have to stop, and that if the Union got in some of the company benefits would be lost-whereupon, he asked Foreman Sears 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if that was a threat, and he said "No," and that he did not care if the employees wanted a union or not. Kidd further testified that on or about April 2, 1963, Sears inquired, "How's the union getting along, Bill," but that he made no reply-that on another occasion Sears asked him why -he wanted a union, and told him that he did ,not need job security because he was the best worker in the glass shop-that the guys trying to start a union had not been there long and were mostly new employees. George W. Carter, Jr. (employee), testified, concerning the incident in which Foreman Sears discovered Jerry Brown and himself in the washroom, to the effect that Sears said: "Now, that you got this damn thing going, you better keep moving or your is going to hit Fifteenth Street." This testimony was corroborated by James Lonnie Flowers (employee) to the effect that Foreman Sears came out of the washroom and told him to tell George Carter that "he better watch his step and keep on the move or he would have his on Fifteenth Street." Foreman Sears vigorously denied making any such statements to either Carter or Flowers, but admits that he told Flowers if George Carter did not quit hanging around in his department it would be reported to his own foreman (Ledonne). Flowers was later suspended from work for a short period when he put in a false claim for paid sick leave in August 1963, and thereafter volunteered his testimony to the General Counsel for .the first time at the hearing herein. Gene Hardin (employee) testified that following the first union meeting on or about April 7 or 8, 1963, Foreman Sears inquired "How the meeting went last night," and that he replied that it was "O.K."-that on another occasion Sears said to him: "You're not going to vote for that, are you? If you do, you'll be one of the very few good men who go with the Union. If you look around me, you'll see that most of the fellows in this aren't very good or very regular workers." Lonnie Lewis Catron (employee) testified that at the meeting on April 5, 1963', Foreman Sears said: "A lot of you people have signed cards, haven't you Pritchard?" and that Don Pritchard just shrugged his shoulders-that Sears further stated: "A lot of you people think this union is going to get you job security, but if we wanted to fire you we could fire you for' a number of reasons, like Bill Kidd over there com- ing in late all the time"-that "if we voted the Union out, Mr. Uhlenbrock would give his permission to have a company union, and elect our own stewards to speak for us on any grievance that we might have."_ 3. Conduct of Foreman John J. Watterson, Jr. It is alleged in the complaint that on or about April 10, 1963, Foreman Watter- son threatened employees with increased work quotas, discharge, and other reprisals if the Union became their bargaining representative; that on and after April 18, 1963, he prohibited conversation between employees and confined them to their 'departments because of their activities on. behalf of the Union; that on or about May 1-14, 1963, he increased the work quota of an employee (George D. North) and failed to grant him a promised wage increase because-of activities on behalf of the Union. Foreman Watterson credibly testified that George David North (employee) had been working under his supervision in the gasket department, and on or about April 1, 1963, was assigned to the job of cutting gaskets by pattern on a big press ma- chine-that he told North he would receive a raise in pay after a 30-day trial if he proved himself to be an efficient operator, but was later informed by Vice President Charles G. Elred that all wages had been frozen pending outcome of the representa- tion election scheduled for May 2, 1963, because it would be unlawful to grant unilateral wage increases pending settlement of the representation question. Con- sequently all wage increases including the merit revision of wages in all job classi- fications were postponed until after the election. Foreman Watterson further testi- fied that on one occasion in April he found Lonis Monroe (Negro porter) standing around in the gasket department, told him to stop interfering with the men at work, and to stay out of his department unless he had duties to perform therein-that on several occasions he warned George David North about leaving his place of work at the big press, and on one occasion in April told him to leave the stockman (Fisher) alone and get back to his press-that on one occasion North had left his press two or three times while cutting an order for 10,000 gaskets, so he told North that the job must be completed by quitting time at 4:30 p.m., but admits that the production record of North on that particular job was good or better than that of a former operator performing similar work-that on or about May 5, 1963, he inquired of William H. Kidd (employee) whether he had obtained permission to CINCINNATI GASKET, PACKING & MFG., INC. 857 come into the gasket department to deliver a radio to George David North, and was told by Kidd, that he had received permission from Vice President Elred-that on the next day North was required to remove the radio because of complaints from other employees that the noise therefrom was interfering with their work-that about the same period of time on separate occasions 2 office employees (Si Snapp and "Butch") were talking to North while operating his big press machine and he told both of them not to disturb the operators in the gasket department while at work. Foreman Watterson testified further that it was customary practice for em- ployees to place their orders for lunches with the restaurant across Fifteenth Street from the gasket shop in order to insure a full half hour for eating when the bell rang at noon, but it was expected that work be continued until 12 o'clock noon. Some employees had abused this privilege by quitting work before the bell rang. Consequently he announced 'on May 7, 1963, that employees placing their orders for lunch at the restaurant must return to the shop and continue at work until the bell rang. Employees were also allowed 5 minutes prior to lunch in which to wash up. No material change in this practice was required of the employees. Fore- man Watterson admits that soon after recognition was demanded by the Union, he held a meeting with his employees to relate his past experiences with a labor organiza- tion at the Chevrolet plant in Norwood, Ohio, concerning strikes, layoffs, produc- tion slowdown, job classifications, etc., but told them that they were free to have a union if they wanted to. George David North (employee) testified-that on or about March 29, 1963, he and other employees held a meeting at the union hall, signed cards, and took cards back to the plant for other employees to sign-that he assisted in getting the cards signed, discussed the Union with Lonis Monroe and another group of employees in the restaurant across the street-that Don Pritchard was selected as. contact man with the Union-that soon after the campaign started, Foreman Watterson became less friendly with him, and tried to stop other employees from talking to him in the shop-that Watterson told Lonis Monroe to stop talking to him, get out of the department, and not come in there except on business-that when he borrowed a pencil from Bill Fisher (the stockman), Foreman Watterson came up to Fisher and told him to get away and "not speak to me any more"-that shortly before the strike; Watterson came to his machine and told him he must complete running the order of 10,000 pieces by 4:30 p.m. or else-that "when told that I was running 230 hits per hour, Watterson said that I could go faster if I wanted to, and then walked away"-that on another occasion Watterson told Si Snapp (office employee) to "get away and stop talking to me"-that on another occasion he told another office employee (Butch) to "get away and not speak to me." This witness further testified. that when he inquired of Foreman Watterson about a promised wage in- crease, Watterson said: "Let your union get your raise for you. You guys wanted a union shop, and now you have got it." North further testified that when William H. Kidd came into the gasket shop to bring him a radio, Foreman Watterson in- quired what he was doing there, and upon receiving an explanation, said, "Well, you give him the radio, and get out of here, and don't talk to him"-that soon after the radio started playing, Watterson demanded that it be turned off. With respect to rules in the shop, North testified that he had customarily acted as a "store boy" to collect money from the employees to go outside to buy coffee and doughnuts for them, but that after the election Foreman Watterson stopped them from talk- ing to him and required that the employees make a note in writing of what they wanted him to get for them, so he voluntarily quit going to the store-that prior to April the employees would leave their jobs for lunch about 5 minutes before the bell rang at noon, but in April it was 'announced .that employees must not leave for lunch until 12 o'clock, but could clean up at 11:55 provided they did not leave the building until the bell rang-that prior to April employees could come in a couple of hours late without calling in, and still get paid for work, and if they stayed out on sick leave it would make no difference whether they called up or not, but in April a new rule was adopted which required employees to call up before 7:45 a.m. in order to get paid sick leave-that Respondent also adopted a rule requiring em- ployees to get permission from the foreman before leaving his department or going into another department.' This witness further testified that about the middle of April 1963, 'Foreman Watterson held a meeting with all employees of the gasket department to talk about the Union-that he reviewed all benefits that the Company was giving them, related his past experiences with unions, and said : "If you guys get this union you will have layoffs-you will be on strike-that production would be stepped up, and that we would lose our 2V2 hours overtime we got each week. I 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD know there is not anybody in here, there is none of you old guys that have been here a long time wants this union . It is only a couple of new employees that are instigating this"; and that, "if we would stick with the Company,' working conditions would be improved and our difficulties -would be ironed out-that ' he could go out on the street and get anybody to take our jobs right now." Franklin S. Alsip (employee) testified in substance that he had always made a practice of leaving the shop for lunch before the bell rang at noon, but that Foreman Watterson came to him shortly after the election in May 1963 and said that "we must go by company rules," that "no one leave the shop until the bell rings," and that he also raised objections to the employees sending out for coffee and doughnuts, but did not stop-the practice of doing so. 4. Conduct of Foreman Henry C . Swinford It is alleged in the complaint that Foreman Swinford , on or about April 7, 1963, threatened employees with the loss of economic benefits if the Union became their bargaining representative, promised them additional economic benefits if the Union failed to become their bargaining representative, instructed employees to form a labor organization under domination of the employer , and created the impression that Respondent was engaged in surveillance of the union activities of its employees. Gene Hardin (employee ) testified in substance that about the second week in April 1963, Henry Swinford (foreman of the machine shop ) called a meeting of all employees under his supervision and "told us that some people had signed union cards, but this did not mean that they would have to vote for the Union "-that if the Union was voted out, President Uhlenbrock would have no objection to the em- ployees forming a shop union-that if the Union came in there would be several changes-that under- present conditions "we could transfer from one job to another when things got slow, but that the Union would not allow us to do that"-.that the Union would "not allow us to be moved to another job when our jobs got slow and the Company would have to send us home in that situation." Foreman Henry C. Swinford admits that in April 1963 , about 3 or 4 weeks before the election, he held a meeting with his machine shop employees to explain the benefits being given to them by the Company , but did not say any of them would be taken away if they voted for the Union. This witness denies any discussion of a shop union at this meeting, but says that on one occasion prior to the meeting and on another occasion after the meeting Gene' Hardin inquired whether the Respondent would object to a shop union, and he then expressed his own personal opinion that there would be no objection, but that the subject had never been discussed . Foreman Swinford denied saying that "if things - get slow on your job you can work another job, but you can't do that if the Union gets in." He also denied saying that he knew that some of the people had signed union cards. 5. Conduct of Foreman Paul J. Sillies It is alleged in the complaint that sometime in April 1963, Foreman Paul J. Sillies threatened an employee (George W. Carter, Jr.) with discharge if the Union failed to become the bargaining representative of Respondent's employees. George W. Carter, Jr., testified in substance that he frequently engaged in conversation with his foreman (Paul J. Sillies) in the will call department-that in April and again in June 1963, Foreman Sillies said that if the Union did not get in "I would just have to find another job"-that "I would not be with them or something like that. My reply was that 'I most probably would not be there if my union fell through."' In the second conversation (in June), Foreman Sillies said that if the Union did not go through "I might as well leave anyway because I was not going anywhere with the Company, and I told him that I felt that we were in and we would be all right." I find this testimony irreconcilable with other testimony of this witness to the effect that on May 14, 1963, President Uhlenbrock called him into the office, and in the presence of Vice President Elred and Foreman Sillies told him that he was being promoted to class B gasket specialist, and that he would receive a further promotion to class A gasket specialist whenever Foreman Sillies found that he was ready for it. At that time he was wearing a union button. Having observed the demeanor of Carter on the witness stand and the generality of his testimony without being able to recall specifically what was said to him on either occasion, I was convinced that he was simply trying to build up in his own mind some threat to his tenure of employ- CINCINNATI GASKET, PACKING- & MFG., INC. 859 went, and to so interpret the remarks of both Foreman Sillies and President Uhlen- brock for the purpose of bolstering the case of the Union against the Respondent. Consequently I find the entire testimony of George W. Carter, Jr., inconsistent, con- tradictory, and incredible as the basis upon which to find any unfair labor practice against the Respondent herein. _ _ 6. Conduct of President Albert J. Uhlenbrock It is alleged in the complaint that on or about May 11, 1963, President Uhlenbrock discriminately reprimanded nine employees and threatened to discharge them for declining to perform overtime work; and that on or about May 15, 1963, he discriminated against certain employees in granting merit wage increases because of their membership in and activities on behalf of the Union. It was a customary prac- tice for the Respondent to operate its plant overtime on Saturdays whenever necessary to expedite production. Official records of the Company show that such operations were conducted on Saturday, April 27, 1963, at which time George David North refused to work, stating to Foreman Watterson that he was for the Union and that he would just be cutting his own throat to do so. Following this occasion, George David North, Franklin S. Alsip, William H. Kidd, Donald R. Pritchard, Jake Brown, Nicholas J. Aday, Eugene Aday, Charles Haehnle, Reuben Kidd, Robert Huddleston, Eugene Hardin, and other employees around the bar in Red's Saloon entered into an agreement to refuse further work on Saturdays for the avowed purpose of weaken- ing the resistance of Respondent in the event of a strike. Thereafter, when the Respondent scheduled work for these employees on Saturday, May 11, 1963, nine of them refused to work, giving various excuses for not doing so. Thereupon, the Respondent on May 13, 1963, posted a notice to all employees on its bulletin board, as following: NOTICE MAY 13, 1963. Employees of this company have always been required to perform overtime and Saturday work when directed to do so by their supervisor. The only excep- tion has been if the employee, in the opinion of the company, has a good excuse for declining the assignment. We wish to remind you of this rule. Our customers rely on us to get orders out. Sometimes this requires overtime or Saturday work. We have to take care of these customers in order to keep their business. Keeping their business means jobs for you. Any employee who violates this rule will be subject to immediate discharge. If special problems arise, please discuss them with your supervisor or with me. (S) Albert J. Uhlenbrock, ALBERT J. UHLENBROCK, President. At the same time these nine employees were separately called into the office of President Uhlenbrock, and each was presented with a reprimand in writing, as follows: Employee: Clock No: You were asked to perform overtime work on Saturday, May 11, 1963, and refused to do so. Employees of this company are required to do the work which is assigned to them unless, in the opinion of the company they presented a good excuse for declining the assignment. This includes overtime and Saturday work. We are reprimanding you for your refusal to work overtime last Saturday and are warning you that if you refuse further assignments of work you will be discharged. A copy of this written warning is being placed in your personnel file and we are also giving a copy of this warning to you personally. CINCINNATI GASKET, PACKING & MFG., INC. (S) Albert J. Uhlenbrock, ALBERT J. UHLENBROCK, President. In accordance with its new wage program adopted in February 1963, the Re- spondent announced merit Wage increases on May 16, 1963. Because of the con- 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tention by counsel for the General Counsel that union-members wearing buttons in the plant were discriminated against, the wage increases of May 16, 1963, are set forth as follows: Button wearers Not wearing buttons - Aday, Eugene-------------$0.08 - $0.07 Allender, Charles --------- Aday, Nick--------------- 0 Carlotta, Mike------------ .04 Alsip, Frank-------------- .05 Gregory, Harold----------- .15 Bartlett, Gene------------- .20 Hanlon, Walter------------ .05 Bazeley, Jim-------------- 0 Hopkins, Joseph----------- .20 ------- .20 Jake Brown Klumpp, Harry ------------- .15 ------- , Brown, Jerry-------------- .05 Manier, John-------------- 0 George------------ 0 Carter Maples, William----------- .15 , Catron, Lonnie------------ .10 McGuire, Jessie----------- .20 Fisher, Bill--------------- .20 Mohr, Charles------------- 0 Flowers, Jim-------------- .10 Osterday, Jim------------- 0 Haehnle, Charles---------- .15 Swinford, Richard ---------- .05 Hardin, Gene------------- .03 Uhrig, Victor-------------- 0 Higgenbotham, Dan -------- 0 Ulm, Leon--------------- .10 Huddleston, Robert-------- .05 Wade, William------------ .05 Kidd, Reuben------------- .06 Ward, Roland------------- .16 Kidd, William------------- .10 Yagodrich, Joseph--------- .08 Lane, Ova---------------- 0 Murphy, Tom------------- .05 North, George------------- 0 Pratt, Ollie--------------- .05 Swinford, James----------- .10 Watterson, William --------- .15 Walters, Kenneth---------- .05 From the foregoing, it therefore appears that 75 percent in the group of 24 button wearers received a merit wage increase. In the group of 17 nonwearers of buttons only 12 received any wage increase (70.6 percent). Thirteen of the button wearers, or 54 percent, received an increase not exceeding 10 cents per hour; whereas 35 per- cent of the nonwearers received increases not exeeding 10 cents per hour. Five wearers and six nonwearers received increases ranging from 15 to 20 cents per hour. In the absence of more specific evidence indicating discrimination against a particular individual, it would be impossible for this Trial Examiner to find in these merit wage increases any discrimination against union supporters as a group because of their organizational activities. 7. Discharge of Donald R. Pritchard Donald R. Pritchard was first hired by the Respondent in October 1962, and had apparently been a satisfactory employee for a period of approximately 6 months when the organization campaign was started. It was Pitchard and Jake Brown that first interviewed the union representative and arranged for a meeting with employees to be held at the union hall on or about March 30, 1963, at which Pritchard assumed the role of contact man for the Union. At the same time George Carter, William Kidd, and George David North agreed to work with him in soliciting other em- ployees to sign union cards. Thereupon solicitation of employees while at work in the plant began. Walter Harold Hanlon (employee) signed a card at the solicitation of Pritchard, with the reservation that "I am going to think it over." Later that after- noon in the plant he overheard Pritchard make a remark to the effect that if the cards did not get out of the building safely, somebody was going to get cut; but paid no further attention to it. Apparently, another employee (Harold D. Gregory), during the month of April 1963, openly stated in the presence of Pritchard, North, Kidd, and others that he would not vote for any union and would cross any picket line set up at the plant. Harold Dean Gregory (employee) credibly testified that Pritchard there- after approached him in the washroom and inquired how he was going to vote in the election-to which he (Gregory) replied: "You know how I am going to vote in the election"-then Pritchard said: "If not Yes, you are liable to get your neck broke"- that on a later occasion shortly before the election Pritchard again came to him and said: "If-the Union don't get in, and I have to leave here, I am going to take somebody with me when I go." This witness further testified that Pritchard again came to him on the day of the election (May 2, 1963); inquired whether he would cross the picket line if the Union gets in and calls a strike-then upon receipt of a negative reply, Pritchard said: "You know, I have always wanted to kill somebody." CINCINNATI GASKET, PACKING & MFG., INC. 861 Being fearful that Pritchard was serious in his intention, this witness thereupon reported his threats to Foreman Alonzo Sears, Jr.; whereupon, police protection was promptly furnished at his home fora period of 3 or 4 days. Foreman Alonzo Sears, Jr., credibly testified that on one occasion prior to the election Pritchard came to him and inquired whether Walter H. Hanlon had reported that he (Pritchard) was responsible for starting the union movement, and thereupon said : "If he told you that, I am going to cut his . throat"-and that he reported this and the threats against Harold Gregory to President Uhlenbrock or Vice President Charles Elred. From the testimony of Gene Hardin (an avowed supporter of the Union) it appears that another employee (Dick Swinford) in discussion with other employees made a statement to the effect that he would fight just as hard to keep the Union out of the plant as Don Pritchard was fighting to get it in ; and Eugene Aday ( also a union sup- porter) testified that he heard a commotion in the glass shop on May 3, 1963, wherein he observed Dick Swinford stand up and say to Don Pritchard: "Are you threatening me." It is admitted by Pritchard that he had made a remark to Swinford to the effect that he would be waited on by an undertaker named Radle. Following the election, which resulted in a vote of 24 to 19 in favor of the Union, the Respondent sought the legal advice of counsel and started an investigation of the threats against other employees allegedly made by Donald R. Pritchard and other union supporters. Attorney Rob J. Taylor came to the plant on May 3, 1963, held a conference with company representatives, and then called in Harold J. Gregory (employee) for an interview. Thereupon, Gregory signed an affidavit under oath relating the threats made against him by Don Pritchard. This affidavit appears in the record herein as Respondent's Exhibit No. 16, and relates in substance the same facts as later testified by this witness at the hearing before the Trial Examiner. Not- withstanding denials by Donald R. Pritchard, I find the testimony of Gregory to be entirely credible in every respect, and find it to be a true statement of conduct en- gaged in by the said Pritchard. On the basis of this interview and affidavit of Harold D. Gregory and other information furnished by Foreman Alonzo Sears; Jr., Attorney Taylor advised Respondent that good cause existed and recommended that Donald R. Pritchard be discharged. Thereupon, Pritchard was called into the office and discharged by Vice President Charles Elred for threatening bodily harm to other employees because of their opposition to the Union. Elread refused to reveal the source of his information in order to avoid the possibility of further threats and retaliation against such employees, which I find to be a reasonable position to take under the circumstances involved. I further find contrary to the testimony of Pritchard' that Respondent did not attribute his discharge either in whole or part to the damage of machinery in the plant or to any other reason than his threats of violence against fellow employees. Pritchard admitted that on June 25, 1961, he was tried and convicted in court of engaging in disorderly conduct and fighting at a restaurant in Cincinnati, Ohio; and was again tried and convicted on April 10, 1962, before Judge Robert Wood for disorderly conduct and resisting a police officer at the General Hospital, where he had been carried for the treatment of injuries received in a brawl at a baseball game in Le Blond Park. This past record of disorderly conduct plus the threats presently made against Respondent's employees seem to indicate that Donald R. Pritchard is a man of violent tempera- ment. I find, therefore, that he was discharged for cause on May 3, 1963, and not for the purpose of discouraging membership in a labor organization. 8. Discharge of Franklin S. Alsip Frank Alsip had been employed in the gasket shop of Respondent since September 1960. Prior to February 1963, he was paid at the rate of $1.90 per hour, and at that time received a wage increase of 9 cents when Respondent's wage system was revised . Thereafter, he became one of the leaders in the- organizational campaign, and following the election wore a union button along with other employees in the plant without any objections thereto being voiced by the employer. On or about May 7, 1963, he protested when Foreman Watterson announced that employees must not leave their jobs for lunch until the bell rang at noon. He also resented regulation by the foreman of the practice of sending out for coffee and doughnuts during working hours, although that practice was never prohibited. When requested to work on Saturday, April 27, 1963, he refused to do so, and told his foreman that he was going fishing. Thereafter, he entered into an agreement with other employees not to perform overtime work on Saturdays for the avowed purpose of hindering the production schedule, because it might help the Respondent to withstand a strike. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consequently, he received a written -reprimand -along with other employees when they refused to work on Saturday, May 11, 1963. There is no contention that Re- spondent required overtime work as a retaliatory measure, and it is admitted that such overtime work had always been a customary practice-whenever necessary to maintain production: Nevertheless, the Respondent on or about May 15, 1963, an- nounced additional merit increases, and granted to Alsip a further-wage increase of 5 cents per hour. Foreman Watterson at that time approached Alsip at work in the shop on a Wednesday, and told him that he was being given a-wage increase of 5 cents per hour to begin the next week. Thereupon, Alsip raised the objection-that this wage increase was not' sufficient, and the foreman told him that it was more than that being given to some others in the same job classification. Shortly there- after, Alsip left his worksite, went to the foreman's desk, and demanded a reason for not granting him a larger wage increase. Thereupon, Foreman Watterson told him that during the past month he had been talking too much, and that his pro- duction had declined because he was away from his machine too much. There- upon, Alsip said to the foreman: "You had better watch what you have been say- ing, because you can lose your job over some of the things you have been telling these men about the Union." Watterson made a reply to the effect that he was still the boss, and that if Alsip did not like it there is the door. Then Alsip said, "I am not about to leave now," and went back to his machine. Thereupon, Wat- terson reported to Vice President Elred that Alsip was arguing about the wage increase and had threatened his job as foreman. Elred agreed to take the matter up with President Uhlenbrock, and also authorized the discharge of Alsip if he gave any more trouble. Thereupon, Foreman Watterson went back to Alsip in the shop, and said: "Frank, I will overlook the threat you made, but don't let it happen any more. One more time, Frank, you step out of line, and you are through." Alsip retorted: "Don't put off until tomorrow what you can do today." Thereupon, Vice President Elred was called into the shop, and Alsip was discharged on May 15, 1963, because of his insolence and insubordination toward Foreman Watterson. 9. Discharge of George David North George David North was discharged by a letter from the Respondent dated May 23, 1963, as follows: This letter is to notify you that you are hereby discharged for cause and are no longer an employee of Cincinnati Gasket, Packing & Mfg., Inc. because of your participation in unlawful acts and unprotected conduct during the course of the strike of the Machinists Union against our company. It is admitted by North himself that beginning on April 27, 1963, he refused to per- form overtime work for the Respondent on Saturdays because he was a union man, and wished to prevent the Respondent from building up any reserve production in the face of a contemplated strike. He also persuaded other employees to join in an agreement to refuse to perform customary overtime work on Saturdays for the Respondent. He also admits that prior to the strike he made statements in the presence of other employees to the effect that he would use his "fists" whenever anyone tried to cross the picket line. Following the discharges of Donald R. Pritchard and Franklin S. Alsip, the Union called a strike, and picketing of Re- spondent's plant began on May 16, 1963; but operations in the plant continued with the assistance of approximately 18 nonstriking employees, including Harold D. Gregory, Walter H. Hanlon, and Charles E. Mohr. Approximately 22 employees joined the strike, and the pickets included George David North, Donald R. Pritchard, Franklin S. Alsip, Lonnie L. Catron, George W. Carter, Jr., and Nicholas J. Aday. North admits that they stopped approximately 90 percent of all customers trying to enter the will call department on Elm Street, but that the other 10 percent went on in across the picket line-that they might have called them names, but did not touch them. At any rate President Uhlenbrock received complaints from customers that they had been threatened by the pickets. Atkinson and Pierce Mfg. Company reported that stones were thrown at its car. Monarch Well Supply Company re- ported that the pickets threatened to turn their car over if they went inside the shop Commercial Refrigerator Company reported that their representative was stopped and not allowed to enter for the purpose of picking up some sponge rubber stripping that was ready for delivery. Walter H. Hanlon (nonstriker) credibly testified that shortly after he retired on the night of May 16, 1963, his home telephone began ringing at repeated intervals throughout the night until about 3 a.m. when he left the telephone receiver dis- connected to prevent further disturbance. Each time he answered the telephone the caller would just hang up the receiver and refuse to answer-that next morning CINCINNATI GASKET, PACKING & MFG., INC. 863 (May 17, 1963),' George-David North, while walking the picket line, stopped at an, open window of the shop where Hanlon was at work,-and remarked that he looked tired, "Like you didn't get much sleep last night"-that he thereupon told North, about his harassment by telephone, and North replied to the effect that his' finger was sore from "dialing." Thereupon, the incident was reported to Foreman Alonzo, Sears, Jr. Despite disclaimer of any knowledge of 'this harassing incident, there is a reasonable presumption that North was a party to it by reason of his statements to, Walter H. Hanlon on the following morning. The climax of unlawful conduct engaged in by George David North on the picket line was reached on May 18, 1963, in an encounter with Charles E. Mohr (non- striking employee) while at work at Respondent's plant. Respondent's plant con- sists of a building facing on Elm Street at the intersection of Fifteenth Street in, which is located the will call office and the gasket department. There is a side door opening on Fifteenth Street. About 70 or 80 feet west of this side door the Respond- ent occupies a separate building facing on Fifteenth Street in which is located its glass department and machine shop. There is an alleyway and two or three other buildings between the gasket shop and the glass shop. Picketing was being con- ducted along the sidewalks on both Elm and Fifteenth Streets and in the alley. In the course of their employment on May 18, 1963, Charles E. Mohr (nonstriker), is company with Donald J. Lyall (corporate treasurer), came out of this side door on Fifteenth Street and walked down the sidewalk to the glass shop. When they passed George David North near the entrance to the glass shop, he made the remark "Scab bastard," but they entered the building without making any reply. A few minutes, later Mohr started back alone along the same route to the gasket shop. Thereupon, he observed George David North beyond the side door and walking toward him. As he approached the side door entrance, North blocked his entrance, struck him on the ear, and threw him to the ground partly on his hands and knees. Mohr then scrambled to his feet and pushed his way into the side door of the gasket shop, and immediately reported the incident to President Uhlenbrock. The police were called in, and after an investigation Mohr and Uhlenbrock drove down to city hall to file an indictment against North; whereupon they met North coming out, and ascertained that North had already been in with a bondsman to post an appearance bond for himself and had also issued a counterwarrant against Mohr. Witnesses for the General Counsel testified to various versions as to how the incident occurred. North, Pritchard, Alsip, and Nicholas J. Aday incredibly testified to the effect that Mohr accidentally collided with George David North on the picket line while looking back over his shoulder at Pritchard, who had just called him a "Scab." Lonnie L. Catron (picket), however, incredibly testified to an entirely-dif- ferent version to the effect that Mohr made an unprovoked attack on North after he had gone off duty on the picket line and was going toward his automobile-that North was not wearing a picket sign and was reading a paper in his hand with a coat on his arm. Such testimony is belied by the fact that North immediately after the incident rushed down to the city hall with his bondsman to post bail for his appear- ance in court before any legal action had been taken against him. Concluding Findings The record in this case shows that prior to the organizational campaign the Re- spondent was already having trouble controlling production in its plant, and cus- tomers were threatening to withdraw their patronage unless there was an immediate improvement in the quality of its products. All evidence points to a deplorable lack of discipline and control of employees during working hours. Respondent was, therefore,,exercising no more than a prudent managerial function when it endeavored to prevent loitering by employees from one department to another to engage in con- versation with other employees at work. It had the right to prescribe reasonable rules requiring employees to stay on their jobs and get permission to leave their places of work before going into another department or outside the plant during working hours. It is clear that Pritchard, North, Alsip, and Carter, and possibly other union supporters, aggressively advocated and solicited union membership dur- ing working hours in the plant. They were inconsiderate toward those employees who were opposed to the Union, although the Act provides equal protection in the right of employees to abstain from union activities. Activities within the plant were so apparent to all employees and supervisors that there was no occasion for the Respondent to engage in or to create the impression of surveillance to find out which employees were promoting or resisting union representation. I cannot agree with the contention of counsel for the General Counsel that the concerted refusal of 744-670-65--vol. 146-56 S64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .employees to perform customary overtime work on Saturdays was a protected activity for which they could not be legally reprimanded by their employer. Such refusal to work was not synonymous with the right to strike. Witnesses for the Respondent freely admitted their meetings with employees to discuss the company position and point out the advantages and benefits already' offered to employees without repre- sentation by a labor organization, as well as their past experiences with labor ,organizations at other plants, and there is no substantial evidence that they made .any false statements with'reference thereto. Each of Respondent's foremen vigor- ously denied making any threats of retaliation or promises of benefits if the Union was selected as the bargaining representative. Their testimony was straightforward .and worthy of belief, whereas I find the testimony of witnesses for the General Counsel fragmentary, conflicting, confusing, and clearly biased to the extent of .attempting to interpret innocent remarks into interrogation and threats which might .constitute interference, restraint, and coercion of employees in the legitimate exercise .of their rights to engage in or abstain from selecting the Union as their representa- tive for the purpose of collective bargaining. It is singular that no charge was ever filed by the Union alleging any independent violations of Section 8(a) (1) of the Act. No charge whatever was filed prior to the election, and the original charge was .filed coincident to the beginning of the strike on May 16, 1963, based entirely upon .the alleged discriminatory discharges of Donald Pritchard, Lonis Monroe, and Franklin Alsip. The amended charge filed on May 23, 1963, merely added the dis- charge of George David North as the basis thereof. From my observation of wit- nesses for the General Counsel and the doubtful and biased nature of their testimony, I find the denials by foremen and supervisors of any interrogation, threats, or promises of benefit to be entirely credible, while the testimony of the witnesses for the General Counsel to the contrary is not worthy of belief. Consequently, I find -that the Respondent in dealing with its employees under the unusual circumstances .of this case did not exceed the bounds of free speech guaranteed in Section 8(c) of .the Act. With respect to alleged violations of Section 8(a) (3) by discrimination in regard .to hire or tenure of employment to discourage membership in a labor organization, I find no substantial evidence to justify a finding that Respondent discriminated in the merit wage increases granted on May 15, 1963, to George David North and other employees. With respect to the discharge of Donald R. Pritchard on May 3, 1963, I find that he was discharged for cause land not for the purpose of discouraging membership in a labor organization. Notwithstanding his own denial of such con- 4uct, I find from the more credible testimony of witnesses for the Respondent that Pritchard threatened' violence against those employees who refused to support the Union. With respect to the discharge of Franklin S. Alsip, I find that his insolence and insubordination toward a, foreman of the Respondent makes him unfit for fur- ther employment by the Respondent. I find that he was discharged for cause and not for the purpose of discouraging membership in a labor organization. With respect to the discharge of George David North, I find from substantial credible testimony that he deliberately and forcibly blocked entrance to the plant by Charles Mohr (an ,old and trusted employee for more than 40 years), and assaulted him in the perform- ance of his duties for the employer; and that prior to going on strike himself he had deliberately refused to perform customary overtime work for his employer without .any legitimate excuse and for the avowed purpose of retarding production in the plant. Such conduct in my opinion makes him unfit for further employment by the Respondent, and I find that he was discharged for cause and not for the purpose of ,discouraging membership in a labor organization. -As of June 3, 1963, the Union notified the Respondent by telegram that the strike was being called off pending the' outcome of the investigation being cgnducted by the National Labor Relations Board. Thereafter, objections to the election 'filed by the Respondent were overruled and the Union was certified as bargaining representative on August 6, 1963. In the absence of Donald R. Pritchard, Franklin S. Alsip, and George David North, there is no indication of further industrial strife at Respondent's plant. Based upon the foregoing findings,of fact, and upon the entire record in the case, 'I make the following: CONCLUSIONS OF LAW 1. Cincinnati Gasket, • Packing & Mfg., Inc., is an employer within the meaning of Section 2(2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists, District Lodge 34, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, and by reason of the EQUIPMENT SALES CO., INC. 865 Board certification of August 6, 1963, is now the duly certified representative of Respondent's employees in the appropriate unit for the purposes of collective bargaining. 3. The Respondent has not engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, as alleged in the complaint, and it would not effectuate the policies of the Act to issue any order against Respondent at this time. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I, therefore, issue the following: RECOMMENDED ORDER It is hereby recommended that the complaint issued herein against the Respondent be dismissed in its entirety. Equipment Sales Co., Inc. and District Lodge No. 112, Inter- national Association of Machinists, AFL-CIO, Petitioner. 'Case No.12-RC-1777. April14,1964 DECISION AND ORDER CLARIFYING CERTIFICATION On October 3, 1963, following an election pursuant to stipulation for certification upon consent election in the unit agreed to by the parties, the Regional Director issued a certification of representatives in the above-entitled case, in which he certified the Petitioner as the bargaining representative of a unit of all production and maintenance employees, including plant clerical employees, at the Employer's Jack- sonville, Florida, plant.' The Employer's shipping and receiving clerk, Richard O. Bryan, cast a challenged ballot in the election held on September 25, 1963, but his eligibility to vote was not investigated at that time since the challenged ballots were not sufficient in num- ber to affect the results of the election. On November 20, 1963, the Petitioner filed a motion to clarify bargaining unit, requesting the Board to include in the unit the said Richard O. Bryan because of his alleged status as a plant clerical employee. On November 28, 1963, the Employer filed opposition thereto, requesting that the motion be dismissed, or, in the alternative, that evidence be taken before a duly appointed examiner of the Board. The Employer, however, failed to set forth any facts to support its opposition to the Petitioner's motion. Accordingly, on December 6,1963, the Board issued a notice to show cause why the Petitioner's motion should not be granted, and on December 16, 1963, the Employer filed its response in opposition to the Petitioner's motion, urging that the position presently held by Bryan be excluded from the bargaining unit on the ground that it is a combination sales and office clerical position. Thereafter, the Board, on January 8, 1964, issued an order remanding the proceed- 1 The certified unit includes all production and maintenance employees, including plant clerical employees , employed by the Employer at Jacksonville , Florida, excluding office clerical employees, salesmen , professional and technical employees, temporary and casual employees, guards , and supervisors as defined in the Act. 146 NLRB No. 104.