Seneca Plastics, Inc.

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was deprived of his employment by the whim of Local 60. Indeed, absent evidence of existence of a legal hiring arrangement or practice, Local 60, it would seem, has no more claim to control whom this employer would hire than would some fraternal organization or the local chamber of commerce. Upon all the foregoing, therefore, I conclude and find that by Foreman McAl- lister's refusal to hire Schrader because he would not be cleared by Local 60, Gouverneur thereby discriminated against him in what would be a violation of Section 8 (a) (3) of the Act, had Gouverneur's action been properly before me. Nor is it essential that Gouverneur be a party to this proceeding. Here no charge was filed against the Employer, hence no complaint issued against it. As Section 8(b)(2) requires only a showing that the union caused or attempted to cause the employer to commit conduct which, if or when committed, would violate 8(a)(3); and as, in the absence of a charge against an employer the General Counsel has no authority to issue a complaint against such an employer, the fact that no such complaint has been issued does not preclude a finding that the union against whom a complaint was filed had, in fact, violated Section 8(b)(2).5 Under all the circumstances, therefore, I conclude and find that because Local 60's refusal to clear Schrader for employment with Gouverneur was the direct cause of Gouverneur's discrimination against him by its refusal to hire him, Local 60 there- by violated Section 8(a)(2) of the Act, and by the same conduct thereby re- strained and coerced Schrader and its other employees in violation of Section 8(b)(1)(A).6 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above, occurring in connec- tion with the operations of the Company set forth in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found and concluded that Respondent, Local 60, has unlawfully caused Gouverneur to discriminate against Edward O. Schrader, I shall recommend that it cease and desist therefrom as to Schrader and any other applicant for employment or employee, and take certain affirmative action designed to effectuate the policies of the Act. By its refusal to clear Edward 0 Schrader for employment, Local 60 thereby deprived Schrader of gainful employment to which he would have been entitled as a qualified ironworker in a vacancy shown to have existed when he applied for and was refused employment. In view of the monetary loss thus occasioned by Local 60's unlawful conduct, I shall recommend that Local 60 be required to reimburse Schrader for the wages lost by its action,7 computation being accomplished in the customary manner 8 with interest assessed at the rate of six percent per annum from March 26, 1964, the date upon which he was refused employment.9 [Recommended Order omitted from publication.] 5 The Radio Officers' Union etc v N L R B , supra, at 53-54 6 The Radio Officers' Union etc v. N.L R B , supra, at 26-27, 42. 7 The Radio Officers' Union etc v N L R B , supra, at 54. 8 F. W. Woolworth Company, 90 NLRB 289 ; Crossett Lumber Company, 8 NLRB 440. 6 Isis Plumbing 4 Heating Co., 138 NLRB 716 Seneca Plastics, Incorporated and Glass Bottle Blowers Asso- ciation of the United States and Canada, AFL-CIO. Case No. 8-CA-3420. October 30, 1964 DECISION AND ORDER On July 9, 1964, Trial Examiner Frederick U. Reel issued his De- cision in the above-entitled proceeding, finding that the Respondent 149 NLRB No. 34. SENECA PLASTICS, INCORPORATED 321 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 attached Trial Examiner's De- cision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respondent, the General Counsel, and the Charging Union filed ex- ceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent also filed a reply brief. 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 [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions, modifications, and exceptions. 1. The Trial Examiner found, and we agree, that the Respondent discharged employee McElroy because of his active campaigning for the Union, in violation of Section 8(a) (3) and (1) of the Act. 2. The Trial Examiner also found, and we agree, that the Respond- ent recognized and dealt with the Committee, an employer-dominated labor organization, in violation of Section 8(a) (2) and (1) of the Act. We find merit, however, in the General Counsel's exceptions to the Trial Examiner's failure to recommend disestablishment of the Committee. The Committee was formed in March 1963, following the Union's defeat in a Board election. An employee had suggested to the Re- spondent's general manager that an employee committee be formed to bargain collectively with the Respondent, and that such committee be composed of three employees to be elected and three to be named by the Respondent. The general manager agreed to the formation of a bargaining committee. He first proposed that all the members be elected by the employees, but later acquiesced in the suggestion that the Respondent name three of six members. The general man- ager thereafter addressed the employees, and urged their support of the Committee. There is no evidence that the employees were given any choice in the matter of the Committee becoming their bargaining representative. The Committee had no constitution, bylaws, or officers, and col- lected no dues. It held no formal meetings, and, it appears, no meet- ings of the employees except to elect a replacement for one of the 770-076-65-vol. 149-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Committee members designated by the employees. All meetings of the Committee with the Respondent were conducted in the office of the general manager, with the general manager and plant superin- tendent present. The employee members of the Committee were paid for their time in attending these meetings, which were held during working hours. The formation of the Committee occurred more than 6 months prior to the filing of the charge herein, and is set forth only as back- ground for the events here in issue. During the 6 months prior to the filing of the charge, however, the Committee continued to meet with the Respondent, and the Respondent appointed a replacement for one of the committee members it had designated. In fact, it was not until after the filing of the charge, and after an informal opinion from the Board's Regional Office, that the Respondent removed its three appointees from the Committee. Although the Trial Examiner found that the Respondent domi- nated the Committee in violation of Section 8(a) (2) and (1) of the Act, and that "to some extent the present Committee is a continua- tion of the formerly dominated organization," he did not recommend disestablishment of the Committee on the grounds: (a) that the Re- spondent had been reluctant initially to appoint its three members, (b) it had canceled their appointments when advised of the illegality of a Committee so constituted, and (c) in the event the Committee was disestablished, "the employees would be free to select a new simi- lar Committee." We find these grounds without merit, however, as : (a) the Respondent, while expressing initial reluctance to do so, did appoint half the members of the Committee; (b) its withdrawal of its appointees after issuance of the instant charge is in our opinion insufficient to purge the Committee of the effects of the Respondent's domination and assistance; and (c) while the employees may select a similar committee, it is only by disestablishing the dominated or- ganization that they can be given an opportunity freely to select a representative. Accordingly, as we find no adequate basis for de- parting in this case from the Board's long-established policy of re- quiring complete disestablishment of a company-dominated labor or- ganization,l we shall enter a disestablishment order. 3. In November 1963, the Committee requested that the Respond- ent grant the employees a week's extra vacation, a wage increase, and a 3-day paid leave in the event of a death in an employee's family. The Respondent promptly granted the vacation request, took no ac- tion on the request for a wage increase, and agreed to consider the request for the 3-day paid leave. The Union, which began its or- ganizational campaign during the last week in January or early Feb- 'The Carpenter Steel Co., 76 NLRB 670. SENECA PLASTICS, INCORPORATED 323 ruary 1964, distributed campaign literature which listed such paid leaves as one of the benefits enjoyed by its members in other plants. The respondent's general manager admittedly was aware of the Union's campaign and of its organizing propaganda when, during the first week in February, the Respondent announced that it was granting this 3-day leave benefit to its employees. The Trial Examiner found that, as this benefit had been requested by the Committee, and the Respondent had agreed to consider the matter, the General Counsel had failed to prove that the grant of this benefit was prompted by the threat of organization by the Union. The Respondent had, however, taken no action on this request of the Committee for 3 months, and then granted it directly after learning that the Union was organizing and was listing this very benefit as one it had obtained at other plants. The Respondent presented no evidence to show that it had, during these 3 months, discussed the matter further with the Committee or that it had decided to grant this benefit at any time prior to the Union's campaign.2 According- ly, we are convinced, and find, contrary to the Trial Examiner, that the Respondent granted this benefit in order to discourage member- ship in or activity on behalf of the Union, in violation of Section 8(a) (1) of the Act. - 4. The Trial Examiner, although he found that the Respondent had violated Section 8(a) (3) and (2) of the Act, recommended a narrow cease-and-desist order. In view of the nature and extent of the Respondent's violations, we shall order the Respondent to cease and desist from in any manner infringing upon the rights of em- ployees as guaranteed by Section 7 of the Act., ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Seneca Plastics, Incorporated, Cambridge, Ohio, its of- ficers, agents, successors, and assigns, shall : 1. Cease and desist front : (a) Discouraging membership in Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, or any other labor or- ganization of its employees, by discharging employees or otherwise discriminating against them because of their union membership or activities. (b) Dominating or interfering with the administration of the Committee, or any other labor organization of its employees, or con- 2 Cf. Jackson Tile Manufacturing Company, 122 NLRB 764 2 N L R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ; Fry Products, Inc., 110 NLRB 1000, 1005. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tributing financial or other support thereto, or recognizing the Com- mittee or any successor thereto. (c) Granting its -employees benefits in order to discourage union membership or activity, provided, however, that nothing in this De- cision and Order requires it to vary or abandon any economic benefit which has heretofore been established. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self -organization, to form labor organizations, to join, or assist Glass Bottle Blowers As- sociation of the United States and Canada, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their , own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion as guaranteed by Section 7 of the Act , or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion 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 necessary to effectuate the policies of the Act : (a) Completely disestablish the Committee as representative of any of its employees for the purpose , in whole or in part, of dealing with or discussing grievances , labor disputes, wages, rates of pay, hours of employment, or conditions of work. (b) Offer Ralph E. McElroy immediate and full reinstatement to to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole in the manner described in the portion of the Trial Examiner's De- cision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against him. (c) Notify Ralph E. McElroy, if he is serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms hereof. (e) Post at, its plant at Cambridge, Ohio, copies of the attached notice marked "Appendix." 4 Copies of said notice , to be furnished ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order " SENECA PLASTICS, INCORPORATED 325 by the Regional Director for Region 8, shall, after being duly signed by an authorized representative of the Respondent, be posted imme- cliately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT dominate or interfere with the administration of the Committee , or any other labor organization of our employees, or contribute financial or other support thereto, or recognize the Committee or any successor thereto. I'VE WILL completely disestablish the Committee as representa- tive of any of our employees for the purpose, in whole or in part, of dealing with or discussing grievances , labor disputes, Wages, rates of pay, hours of employment , or conditions of work. I'VE WILL NOT discourage membership in Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, or any other labor organization of our employees , by discharging em- ployees because of their union membership or activities. NE WILL offer Ralph E. McElroy immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- fered as a result of the discrimination against him. WE WILL NOT grant our employees benefits in order to dis- courage union membership or activity.- WE WILL NOT in any other manner interfere with, restrain, or coerce any' of our employees in the exercise of their right to self- organization, to form, join, or assist Glass Bottle Blowers As- sociation of the United States and Canada, AFL-CIO, or any other labor organization , to bargain collectively through repre- sentatives of their own choosing , and to engage in other-con- certed activities for the purposes of collective bargaining or other mutual aid or protection , as guaranteed by Section 7 of the Act, or to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement requiring mem- 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership 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. All our employees are free to become or remain, and to refrain from becoming or remaining, members of the above-named or any other labor organization. SENECA PLASTICS, INCORPORATED, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full re- instatement upon application in accordance with the Selective Serv- ice Act and Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they have any questions concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, heard before Trial Examiner Frederick U. Reel at Cambridge, Ohio, on May 21, 1964, pursuant to a charge filed the preceding February 17 and a com- plaint issued April 2, presents questions as to whether Respondent granted benefits to employees to discourage union activity , dominated, interfered with, or supported a labor organization , and discharged one Ralph McElroy for union or concerted activities. Upon the entire record in the case, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED Respondent, hereinafter called the Company , an Ohio corporation engaged at Cambridge in the manufacture of plastic injection moldings, annually ships over $50,000 worth of finished products to points outside the State and is therefore engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. Charging Party, herein called the Union , is a labor organization within the mean- ing of Section 2(5) of the Act . A committee of employee representatives, herein called the Committee and described more fully infra, is, for reasons developed below, likewise a labor organization within the meaning of Section 2(5). II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Company 's creation of and dealings with the Committee In March 1963, the month following the Union's defeat in a Board-conducted election at the Company's plant, employee John Potts approached Company Gener- SENECA PLASTICS, INCORPORATED 327 al Manager Dwight Wade 1 to suggest that the employees would like to have an employee committee represent them in dealings with management. Wade agreed to the general proposal but originally demurred to Potts' suggestion that the Company name three men (one from each shift) and the employees elect three (one from each shift) to the Committee. Wade's original view was that all the committee members should be selected by the employees. He yielded, however, when the employees indicated that unless the Company named three of the men, the employees would abandon the project. The six-man committee met with management on various occasions during the year following its creation. The personnel of the Committee underwent some revision during this period, as various representatives left it and were replaced, either by election (in case an elected representative stepped down) or by company appointment, if a company appointee was to be replaced. In December 1963 (within 6 months prior to the filing of the charge) the Company appointed Harold Meighen to the Committee; Meighen had been an employee-elected member at an earlier date. Also within 6 months prior to the charge, the Company after discus- sion with the Committee granted the Committee's request that the Company grant employees time off with pay in the event of a death in the employee's immediate family. This was only one of many working conditions which the Committee from time to time discussed with management. The committee members were paid for time spent in negotiating .meetings with management (at all such meetings two members of the Committee were present during their working hours, and four members were present outside their working hours). The committee members did not hold formal meetings of their own and did not hold meetings with the employees. The Committee had no constitution or bylaws, had no officers, and collected no dues. After the filing of the charge in this case, and as the result of an informal opinion from a representative of the -Board's Regional Office, the Company re- moved its three appointees from the Committee, which continues, apparently, as a three-man group. Upon these facts I find that the Committee is a labor organization within the meaning of the Act; it falls squarely within the definition of Section 2(5). N.L.R.B. v. Cabot Carbon Company, et al., 360 U.S. 203. I also find that the Company vio- lated Section 8(a) (2) and (1) of the Act by "dominating" this organization in that the Company appointed three of the six employee members. In so finding I have not overlooked the testimony of some of the employer-nominees that they did not regard themselves as management representatives, but their testimony to that effect does not alter the basic fact that management named half the membership of the Committee. This "domination" was evidenced within the period cognizable under Section 10(b) by the Company's appointment of a committeeman in December 1963. The Company's action in dropping its three appointees from the Committee after the filing of the charge in this case does not moot the case (see, e.g., N.L.R.B. v. Associated Machines, Inc, 219 F. 2d 433, 437 (C.A. 6)) but is a matter discussed under "The Remedy," infra.' B. The granting of benefits General Counsel alleges that the Company has "granted economic benefits and rewards to its employees in an effort to discourage union organization activi- ty." The evidence in support of this allegation is that the Company in February 1964 instituted the plan of paying employees for 3 days' absence caused by a death in the employee's family. This was 1 of 11 benefits which the Union had claimed its members enjoyed in other plants. The Union's claims were contained in organ- izing literature which it distributed to company employees shortly before the Com- pany granted this benefit, and General Manager Wade admitted that he was aware of the Union's propaganda at the time he granted the benefit. The record also shows, however, that the benefit in question had been suggested by the Committee some months before, and that the Company at that time had agreed to consider the matter. Under all the circumstances I find that General Counsel failed to sustain the burden of proof that the grant of this benefit was prompted by the threat of r Wade's son, Ted Wade, is plant superintendent. 2 Under all the circumstances, and particularly as the Committee had its genesis with the employees rather than in the mind of the Employer, I find no evidence of unlawful support in the fact that the Committee has no officers, dues, bylaws, etc , or in the fact that the employees are paid for attending bargaining meetings. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization . N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, appears to turn, in part at least, on the fact that the benefit there was granted on the eve of an election, a compelling circumstance absent here. C. The discharge of McElroy 1. McElroy's employment record Ralph McElroy worked for the Company for approximately 21/2 years prior to his discharge on February 8, 1964. During all but the last week of his employ- ment his job was that of a press operator on the second shift. Five days before his discharge he was promoted to the job of floor-man, a promotion made on the basis of his seniority. At the time of the promotion the factory superintendent advised him that the promotion carried a 30-day probationary period; if in that period his work as a floorman was unsatisfactory or if he did not like the job, he would be returned to the press. Notwithstanding the promotion, company officials testified that McElroy had never been a particularly satisfactory employee. Among the faults of which they complained was his "absenteeism"; he was supposed to work a 7-day week but was allegedly often absent on weekends.3 McElroy's press had damaged a mold some 3 months before his discharge, and the Company was of the view that this might possibly have been occasioned by some neglect on his part. The Company con- ceded that the mold matter was merely an "incident" in McElroy's work record "and not a major issue in his discharge." Foreman Scurlock, called as a company witness, testified on direct examination that McElroy was neither the best nor the worst of the press operators, and that he was "a fairly good operator" apart from his absenteeism. McElroy testified that Scurlock on one occasion called McElroy the best man Scurlock had. 2. Circumstances attending the discharge During McElroy's employment on the press, he normally produced 540 units per day. This was the same number normally produced each day during that period by Lee Harding, who operated the same machine on the first shift, and by Jim Harding, who operated the same machine on the third shift. Lee Harding's ten- ure on that press antedated McElroy's; at the time McElroy was put on the press it was normally producing 540 units per shift, and the figure remained unchanged during the months McElroy operated the machine on the second shift. On one weekend a few months preceding McElroy's discharge, an operator normally em- ployed on another machine produced 590 parts in one shift on the Harding-McEl- roy machine, apparently by using a more efficient method of removing the product from the press. He reported his success to General Manager Wade, and at a later date (but before McElroy's discharge) told Wade that "somebody was sitting on that press." At the time McElroy was transferred to floorman, the press he had been operat- ing (which had been shut down for repairs over the weekend of February 1 and 2) returned to part-time operation. Jim Harding operated it for a full shift on Feb- ruary 3 and produced 550 units; its next full-shift operations were on February 6, when it twice produced 560; and commencing February 7, it regularly produced 580 per shift. Certain adjustments were made in the time cycle of the machine at the time McElroy was promoted to floorman. Although there is testimony that these changes did not affect the overall automatic time cycle, they apparently did affect the "slack" in the gate, and hence improved the efficiency of the operation. When General Manager Wade returned from a business trip early in February 1964, he was displeased to learn that McElroy had been promoted to a floorman's job. On Friday, February 7, the day McElroy's old press started to turn out 580 pieces per shift, Wade saw McElroy speak to Lee Harding at the press. Wade told McElroy, referring to the increased production, "That is what you should have been doing right along," to which McElroy returned, "It can't be done," and walked away. Wade then asked Harding what McElroy had said with respect to the machine's production, and Harding replied (according to Wade) that McElroy 3 There is some evidence that the plant operated 7 days a week only 8 months of the year On the other hand there is also evidence that the Company operated on Saturday, and Sunday in every month of 1963 except May, June, July, September, and December and that it operated on those days in May, July, and September of 1962. SENECA PLASTICS, INCORPORATED 329 had been complaining more about the production of another machine on the other side of the building. McElroy's version of his conversation with Wade does not differ materially from Wade's. According to McElroy, however, his conversation with Harding began with the latter's saying, "Look at my production sheet." Mc- Elroy testified that he looked at the sheet, saw the increased production, and said with a laugh, "I see that they got you speeded up. That means that I have to make more boxes," a reference to his duty as floorman to supply boxes for the production. Dwight Wade that evening decided to discharge McElroy, and so instructed Ted Wade, the plant superintendent, either then or the next morning.4 In Dwight Wade's words, he regarded McElroy as the "instigator" of the produc- tion problem on the press, rather than either of the Hardings, a judgment allegedly based on what Wade viewed as McElroy's penchant for weekend absen- teeism. The next morning Wade spoke to two members of the Committee, ex- plaining his determination to discharge McElroy for holding down production and emphasizing that the plant had been failing to get orders because its bids were too high based on current rates of production. The plant superintendent concurred in the judgment of his father, the general manager, that McElroy should be discharged. .Whereas General Manager Wade merely felt that McElroy was the "instigator" of the low production, Superinten- dent Wade had "heard through the grapevine that [McElroy] had been complain, ing about the production " 5 According to Ted Wade, he feared that McElroy, who had held down production on his old press and who was now complaining about production on the other presses, would in his new job as floorman "have the opportunity to roam all over the plant and maybe undermine production every place else." Accordingly, on Saturday afternoon, February 8, Ted Wade sent for McElroy and, following a short interview, discharged him. During the interview, according to McElroy (Wade, called as a witness, did not contradict McElroy's version, which I credit), Wade accused McElroy of "holding down on production, telling men to hold down on production, causing ill feelings between the men" and not "doing [his] work on the floor." McElroy in reply, said that he had 30 days in which to prove himself on the floor job, and denied telling anybody to hold down production. Wade then said that McElroy was "complaining," to which McElroy rejoined: "Yes, I admit that I complained about speed up in the presses.... Every man out there, every press operator out there is complaining about the way the presses were speeded up." Wade replied that he did not expect McElroy to admit all the charges against him but that "they had a man tell him [Wade] that [McElroy] told him [Wade's informant] to hold down on production." McElroy demanded the name of the informant, but Wade de- clined to reveal it. Wade referred to the failure to obtain jobs because of overbid- ding. He also stated that "they would have no so-and-so come in off the street and tell them how to run their plant." McElroy said, "I take it I'm fired," and when Wade confirmed this, McElroy left. 3. McElroy's union activity During the weeks immediately preceding his discharge, McElroy had been actively campaigning for the Union, and had spoken to approximately three- fourths of the men on his shift in an effort to induce them to sign cards. McEl- roy's union activity was not confined to general solicitation of employees in vacuo, as it were. On the contrary, he vigorously espoused the Union as the means the employees should take to alleviate certain working conditions of which they were complaining. During the several weeks preceding McElroy's discharge, a num- ber of employees complained among themselves over what they regarded as a speeding up of the presses. Not only McElroy but other witnesses as well testified that the employees (both pressmen and floormen) had been voicing such com- plaints. Upon hearing their complaints, McElroy would make such comments as the following: If we had a union in here we could get this place organized if the guys would sign the cards and we could put these jobs on bonuses or else get a 4 Ted Wade's testimony as to when he discussed the *McElroy discharge with Wade, Senior, is inconsistent But Ted Wade answered "No" to the question. "Did anyone report to you that McElroy had importuned and asked hint to hold back production?" 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raise. We weren't getting anything The Company was getting more pro- duction but we were getting more work and that is all that we were getting. They are liable to speed up the press again tomorrow and there is nothing. you can do about it. It is not doing you any good to complain to me. If we could get organized around here, get some cards signed , get a union, we could help ourselves and have some protection. * * * * * * * You guys are all mad now, one thing that you can do about it is to organize. I got cards in my car. I will be glad to give one to any man that wants it. If we had a union, we could set it up on a basis where we would either get a raise over the board, or you have the bonus, anything after so many. * * * * * * * If we get a union in here, we wouldn 't have to contend with that . We could settle speeding up the machines. * * * * * * * If we had an organization and get the cards in we wouldn 't have to put up with this. McElroy categorically denied , both at the time of his discharge and again as a witness, that he had ever asked , urged, or counseled any employee to hold down production . Other witnesses corroborated his testimony to the extent of testifying that they had never heard him do so, and had not heard from other employees that he had done so. The Company produced no witness , among the several em- ployees it called , who testified that McElroy had urged him to curtail produc- tion. General Manager Wade at first testified that employee Starr told him McEl- roy had importuned Starr to hold down production, and that Starr was the only employee who ever told him that . But Wade expressly retracted this testimony, and testified affirmatively that Starr had not told him this. Starr, a witness for the Company, did not testify that McElroy had ever so importuned him. Ted Wade testified that Foreman Scurlock told him that employee Fabian told Scurlock that McElroy asked Fabian to hold down production . Scurlock placed this conversa- tion as after McElroy's discharge , and Fabian was not called as a witness. What Fabian said, according to Scurlock , was that McElroy complained that Fabian was running too much on his press , thereby making too much work for McElroy. In the absence of Fabian's testimony , there is no probative evidence that McElroy made the statement in question In any event, the alleged remark did not even come to Scurlock's attention, let alone the Wades', until after the discharge. In this state of the record , I find that McElroy never asked any employee to curtail production and that, as General Manager Wade admitted, "no employee whoever told [him] that Mr. McElroy was importuning them to hold back production." McElroy was, however, urging that the men turn to the Union to obtain relief (possibly piece-rate pay or bonuses or negotiated production ceilings) from the speedup of which many were complaining. 4. The Company's discharge policies Although McElroy was given a summary discharge , the Company ' had a policy, when contemplating discharge, of suspending the employee for 3 days during which the Company would deliberate over whether to permit the employee to resume work or would convert the suspension into discharge. This policy was followed in those cases where the Company had some initial doubt as to whether' the offense merited the severity of discharge . For example, one David Sichina was discharged outright ; his offense was that "he took off and just didn't come back to work" although Ted Wade "went down to his house three times to get him to come back .. . On the other hand, Fred Calixte was given a suspension, after which he was discharged . According to Ted Wade , Calixte "was one of these fellows that didn't want to abide by any of the company rules. He would take excessive time on his breaks, he would work on his car during working hours, he was holding back production." Calixte had been warned about these matters before his 3-day suspension which eventuated in his discharge . As Ted Wade testified , "We usually try to give a man lots of chances. Calixte 's production, incidentally, was less than 1 ,040 units per shift on a press on which the other men were then running 1 ,040 and which subsequently produced 1,380 units per shift. SENECA PLASTICS, INCORPORATED 5. Concluding findings as to McElroy 331 The issue in McElroy's case, of course, is whether he was discharged for union activity or for some other reason-absenteeism, breaking a mold, inattention to work, holding down production, or trying to get others to hold down produc- tion The Company itself, although adverting to his other faults, emphasizes the production factors as the real cause for his discharge. The curious aspect of the case is that the union activity in which he was engaged took the form of discuss- ing the alleged production speedup 6 with the other men, and hence the cause for discharge claimed by General Counsel and the cause asserted by the Company are nearly identical, albeit phrased in sharply differing terms. As noted above, the evidence is overwhelming that McElroy did not urge any employee to slow down production; there is little if any, probative evidence to the contrary. It is altogether possible that McElroy's urging the men to join the Union as a means of satisfying their complaints came to the Company's attention, and it is also possible that the "grapevine," to which Ted Wade referred, had slightly garbled what McElroy had urged. In any event, the Company's position is that one of the causes, if not the prime cause, of McElroy's discharge was the Company's belief that he had been urging the men to curtail production. Assum- ing that the Company knew that McElroy had not so urged the men but had merely urged them to organize so that they might negotiate through a union on "speed-up" problems, it is clear that a discharge for so doing would be unlawful, as his actions constituted protected union and concerted activity. Assuming the contrary-that the Company in good faith, but mistakenly believed that McElroy had urged a slowdown when all he had urged was organization-does not change the result, for in that event McElroy's legal position is identical to that of the employee in N.L.R.B. v. Industrial Cotton Mills, 208 F. 2d 87, 89, 93 (C.A. 4), cert. denied, 347 U.S. 935, specifically approved by the Sixth Circuit in N.L.R.B. v Cambria Clay Products Company, 215 F. 2d 48, 53. In short, McElroy enjoyed statutory protection for the remarks to employees like those quoted earlier in this Decision, and he could not be lawfully discharged therefor, even though his Employer in good faith, but erroneously, believed that his statements had been of a different and unprotected character.? The Company contends that it discharged McElroy not only for trying to curtail the production of others, but also for curtailing his own production, and in sub- stantiation thereof points to the increased output on McElroy's former press as soon as he left it. I am constrained to reject this defense for the following reasons: In the first place, even the Company concedes that its belief that McElroy was seeking to have others curtail production was a major contributory cause of his discharge. Under these circumstances, and in view of the foregoing discussion establishing the illegality of this reason in this case, it follows that the discharge violated the Act even if other valid grounds also contributed to the ultimate deci- sion . See N L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). In the second place, the record is by no means clear that McElroy was respon- sible for the allegedly unsatisfactory production on his machine. This machine had been producing 540 units per shift before McElroy was put on it. General Manager Wade knew the production had been "pegged" at that figure, but he testified that "pegging" (i e., limiting production to a standard number) was a common, and not an objectionable, practice. Manifestly McElroy had not done the original "pegging." Militating in the Company's favor is the fact that produc- tion went up coincidental with McElroy' s leaving the machine. But, according to Jim Harding, who operated the machine on the third shift, his production increased at this time because "the slack in the gate time disappeared," and this was an automatic factor controlled by the mechanism, not by the operator. And Foreman Egnot, who adjusted the cycle on the machine coincident with McElroy's leaving it to assume the floor job, testified that he had "jacked [it] up about 3 seconds to take the slack out of the gate time" (A change of 3 seconds in the 46-second cycle might well account for an increase in production of about 6 percent from 540 to 580 in an 8-hour shift.) 6 The Company's denial of a speedup raises no issue of moment as the evidence is clear that the employees thought there was a speedup, and were engaged in a lawful concerted activity in discussing their complaints among themselves when McElroy urged them to join the Union 7 The validity of this general proposition will presumably be settled by the Supreme Court at its next term in N.L R B. v. Burnup and Sims, 322 F. 2d 57 (CA 5), cert granted 375 U S. 983 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As McElroy was considered a thoroughly satisfactory press operator, the Wades explained the celerity with which they fastened on him rather than either of the Hardings, as the "instigator" of the low production by referring to his record of weekend absenteeism. But even here the data put forward by the Company does not show what the Company claims for it. McElroy, hired in 1961, missed only 2 full weekends in 1962, plus 1 Saturday and 1 Sunday. This hardly seems like chronic weekend absenteeism in a man working 7 days a week. His record de- clined in the first 4 months of 1963, when he missed 2 weekends and 2 Sundays. But in the last 10 months before his discharge he missed only 2 weekends (and on one of those he was ill with the flu) plus 1 Sunday and 1 Saturday (the day following the assassination of President Kennedy). This seems an insufficient basis for an assumption that he had been the "instigator" of a conspiracy to slow down production on his and other machines.8 Finally, the summary discharge of McElroy may be contrasted with the treatment of Calixte, who was given a 3-day suspension while the Company considered his future tenure. Calixte was consistently below the production quota met by others on his machine, and was also guilty of other faults, not charged to McElroy. The inference is all but inescapable that the harsher treatment given McElroy was prompted by the reports that he had been discussing production speedup with other employees. But we are not left to inference and conjecture. There is ample evidence in the record that the decision to discharge McElroy was motivated in substantial part by the reports or rumors that had reached management as to McElroy's discussions with other operators and floormen, concerning their general complaints as to production. See, for example, McElroy's undenied testimony that in the discharge interview Ted Wade accused him of "telling men to hold down on production, causing ill feelings between the men," and "complaining." See also General Manager Wade's testimony that he decided to "get rid of [McElroy] because even on the floor job he was in a worse position as far as work is concerned, because now he is in a position where he could talk to everybody in the plant." And see Plant Superintendent Wade's testimony that he had "heard through the grapevine that [McElroy] had been complaining about the production" and "now he is going to have the opportunity to roam all over the plant and maybe undermine production every place else." Finally, we have Ted Wade's statement to McElroy that "they would have no so-and-so come in off the street and tell them how to run their plant." 9 Whether the Company knew it or not, what it regarded as attempts to undermine production were neither more nor less than union or concerted activity protected by the Act. The record establishes that McElroy had not urged em- ployees to curtail production, but had urged them to join the Union so they could have a spokesman for their complaints as to speedup. His activity was protected by the Act, and his discharge therefor violated Section 8(a)(3) and (1). CONCLUSIONS OF LAW 1. By dealing with an employee -committee composed in part of company- appointed members, the Company engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(2) and (1) and Section 2(6) and (7) of the Act. 2. By discharging Ralph McElroy under the circumstances and for the reasons described above, the Company engaged in an unfair labor practice affecting com- merce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. THE REMEDY The appropriate remedy for the discharge of McElroy is to reinstate him with backpay and interest computed under the formulae approved in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The 8 The Company in its brief also refers to alleged midweek absenteeism. Apart from ill- ness on January 24, and an excused absence because of his son's death, McElroy had missed part of Veterans Day, and no other weekday time in the 4 months preceding his discharge. 9 General Counsel urges that the "so-and so" referred to the union organizer, and that the statement shows company knowledge of McElroy's union activity. The Company's theory, less persuasive, is that the epithet referred to McElroy himself. But either read- ing shows company irritation at McElroy's efforts to join with other employees in some action related to production. MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 333 Company should also be ordered to cease and desist from discriminating against employees for union or concerted activity and from like or related violations of employee rights under the Act. Although the Company violated Section 8(a)(2) and (1) by recognizing and dealing with an employer-dominated labor organization, several circumstances tend to mitigate the normal disestablishment remedy. In the first place, the Employer was reluctant to appoint any members to the Committee. Second, the Company promptly canceled their appointments as soon as advised of the illegality inherent in the Committee as then constituted. To be sure, to some extent the present Committee is a continuation of the formerly dominated organization. I can see no good purpose to be served, however, by "disestablishing" this Commit- tee, as the employees would be free to select a new similar Committee. In my judgment, the statutory purposes would be adequately served by making it clear that the Employer may not recognize and deal with a bargaining agent which includes employer appointed members. Finally, I shall recommend the posting of an appropriate notice. For reasons explicated in Melrose Processing Company, 146 NLRB 979, I shall include the reference to the Armed Forces in the order, not in the notice. [Recommended Order omitted from publication.] Marriello Fabrics, Inc. and Michael Marriello and District 65, Retail, Wholesale and Department Store Union , AFL-CIO. Case No. 2-CA-9607. October 30, 1964 DECISION AND ORDER On July 8, 1964, Trial Examiner Louis Libbin issued his Decision 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 attached Trial Examiner's De- cision. Thereafter, the Respondents filed exceptions and the General Counsel filed cross exceptions to the Trial Examiner's Decision, and supporting briefs. 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 [Chairman McCulloch and Mem- bers Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that the Respondent, 149 NLRB No. 36.