Hydro-Molding Co., Inc.

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hydro-Molding Company, Inc. and Aluminum TRIAL EXAMINER'S DECISION Workers International Union, AFL-CIO. Case 3-CA-3783 June 19, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 23, 1970, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 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 Decision. He further found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Respon- dent filed timely exceptions, and a brief in support thereof, to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Decision, the exceptions and the brief, and the en- tire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Hydro-Molding Company, Inc., Plattsburgh, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order. ' Respondent 's exceptions directed to the credibility resolutions of the Trial Examiner are without merit The Board will not overrule the Trial Ex- aminer's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are incorrect On the entire record, such a conclusion is not warranted herein Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) ' The Respondent has not filed exceptions to several of the findings of violations of Section 8(a)( I) made by the Trial Examiner , and the General Counsel has not filed exceptions to the Trial Examiner's recommended dismissal of two 8 (a)( 1) allegations We adopt the Trial Examiner's con- clusions on these mattters pro forma ARTHUR M. GOLDBERG, Trial Examiner: Based upon an amended charge filed on June 3, 1969,1 by the Aluminum Workers International Union, AFL-CIO (herein called the Union or the Charging Party), the complaint herein issued on July 11 al- leging that Hydro-Molding Company, Inc. (herein called Hydro, the Company, or the Respondent), violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). The alleged 8(a)(1) conduct consisted of in- terrogation of employees concerning their union membership and activities on various dates in April and May; interrogation of employees concerning union membership and desires by means of questions on its employment application form; threats on various dates in April, May, and June of discharge and other reprisals if employees became or remained members of the Union; a promise of economic benefit, made on or about April 1, if the employees refrained from union activity; the promise and grant of wage increases and other benefits on or about March 24 if the employees refrained from union activity and to induce them to do so; and creating the impression of surveillance of union activity. The putative 8(a)(3) violations consisted of the transfer of Stephen Micanko with a resulting reduction in hours of employment and his subsequent discharge on June 2, all because of his union activity. Respondent's answer filed on July 18 denied all asserted violations of the Act. The answer stated that the employment questionnaire had been in use for 18 years and that many em- ployees who had affirmatively answered the questions concerning union membership and willingness to join a union had been hired by the Company. Hydro admitted granting the wage in- crease but asserted that this was done pursuant to a promise made to the employees as a matter of long- standing company policy. As to Micanko, the answer admitted his transfer and discharge but claimed that both actions were for cause as thereto- fore stated to the Regional Office in the Company's statement of position served in answer to the original charge. A copy of that statement of posi- tion was attached to the answer. A first amendment to the complaint issued on August 27 alleged further acts of interrogation and threats of reprisal for union activity. An answer to the complaint amendment, filed on August 29, de- nied all allegations of violation set forth in the amendment. A second amendment to the complaint issued on October 10 alleged that the Company further vio- lated Section 8(a)(1) of the Act by posting a notice in the plant on or about September 10 creating a suggestion box and employee review committee to i The original charge was filed on May 26, 1969 Unless otherwise noted all dates herein weie in 1969 183 NLRB No. 72 HYDRO MOLDING COMPANY 615 handle employee grievances . This amendment was answered by Respondent on October 13 with a denial that the conduct set forth in the amendment "constituted an unfair labor . practice in any way, shape , form or manner." All parties participated in the hearing in Platts- burgh, New York, on October 22 and 23, and were afforded full opportunity to be heard, to in- troduce evidence , to examine and cross-examine witnesses, and to present oral argument . Oral argu- ment was waived and briefs were filed by General Counsel and the Respondent. Based upon the entire record' in the case, my ob- servation of the witnesses and their demeanor, and my reading of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Hydro-Molding Company, Inc., a New York cor- poration, with its principal office and place of busi- ness in Plattsburgh, New York, is engaged in the manufacture, sale, and distribution of custom molded plastic parts and related products. Annually in the course and conduct of its busi- ness operations Respondent purchases and has delivered directly to its Plattsburgh plant from points outside the State of New York goods and materials valued in excess of $50,000. Additionally, the Respondent annually manufactures, sells, and ships from its Plattsburgh plant to points outside the State of New York products valued in excess of $50,000. The complaint alleged, Respondent admitted, and I find that Respondent is and has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for as- sertion of its jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Aluminum Workers International Union, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Organizing Campaign The Union's campaign to organize Respondent's employees began about February 24 under the direction of Ernest J. LaBaff, an International vice president of the Charging Party. LaBaff visited em- ployees at their homes, talked to them about the Union, and solicited their signatures to authoriza- tion cards. In these conversations LaBaff asked if the employees knew of any fellow workers who might be interested in helping the Union. These talks led LaBaff to Stephen Micanko.3 LaBaff and Micanko first met at the latter's home on March 19 at which time Micanko signed a union card and agreed to solicit for the Union among the employees. The Union filed its petition for election on April 21.' The Union held its first meeting for the em- ployees on April 24. The hearing on the Union's petition was held on May 13. The Company claimed that Micanko was a supervisor. Micanko testified as to his own status and that of other company employees. In the Deci- sion and Direction of Election issued on June 4 Micanko was found to be an employee within the meaning of the Act and eligible to vote. The first election was held on July 2. Thirty-nine votes were cast against union representation, 37 employees favored the Union, and there were 6 challenged ballots. Resolution of the challenges on September 6 yielded three more votes against the Union. Following union objections to the conduct of the first election, a second election was run on October 20, at which time 43 employees were against the Union, 38 voted yes, and there were 7 challenged ballots. Prior to the present organizing campaign there had been at least five representation elections con- ducted at the Company.' B. The March Promise and Grant of a Wage Increase 1. The increase is promised and paid On April 10 the Company granted a wage in- crease to all employees ranging from 10 to 25 cents per hour. Early in the year most employees had signed a petition asking for a meeting to present a demand for increased wages and other benefits. On March 17 the Company assembled its workforce for a meeting which was addressed by Mark A. Rabin, Respondent's vice president and general manager. Rabin told the employees that the Company's earnings figures for the preceding year warranted a wage increase which would be effective in April .6 2 General Counsel filed a motion with his brief to correct certain inadver- tent errors in the stenographic record herein Respondent also requested correction of an inadvertent error Neither party has opposed the other's request Accordingly, an Order Correcting Transcript is attached hereto and issued as of the date of this Decision ordering the corrections so requested [omitted from publication] ' Testimony of LaBaff ' Case 3-RC-465I s Testimony of Company President Sol Levites 6 Employee Lucy Kramer, alone among the witnesses, testified that Rabin also announced that employees with 10 years of service would receive a third week of vacation There was no evidence adduced that addi- tional vacation benefits were ever instituted Accordingly, I find that General Counsel has failed to establish that this additional benefit was promised or granted 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees Kramer and Rita Roberts credibly testified that while speaking Rabin held a union handbill on the subject of security and told the em- ployees there was nothing in the union pamphlet that the Company could not give them . Rabin told the employees that security for the Company and employees came from Hydro's ability to fill orders on time and the quality of the work produced. Rabin testified that it was company policy to talk to the employees several times a year and that pur- suant to this procedure the toolroom employees had been assembled late in 1968 , told that the Company would review the year 's results after receiving the figures from the accountant , and that a wage increase would be forthcoming if the economic factors were favorable . At the March 17 meeting, Rabin told the employees that the figures had just been received or would be received shortly and that it looked as if the Company should be able to put the wage increase in effect in the early part of April . Rabin claimed to have told the employees at the March meeting there would be a wage review at the end of 6 months and that if the economic conditions were favorable and the Company's results were better than they had been in the preceding year, another wage increase would be given. Margaret Hobbs, a former employee who volun- tarily left Hydro's employ shortly before the hear- ing herein , testified that while she had not attended the toolroom employee meeting in December 1968 at which management promised a wage increase, she had heard about that meeting shortly before the March 17 meeting of the entire working force. Hobbs testified that she did not hear Rabin say there would be another wage increase in October but added, "We had a couple of pressers [sic] that kept going off and on . And some of us couldn't hear everything that was said ." Lucy Kramer de- nied that Rabin said anything about another raise after 6 months. 2. Conclusions and findings The complaint alleged that "Respondent ... on or about March 24 ... offered, promised, and granted to its employees wage increases, increased vacations , and other benefits ... if they refrained from becoming or remaining members of the Union, or giving any assistance or support to it, or in order to induce them to do so." I shall recom- mend dismissal of this allegation of the complaint. Rabin's uncontroverted testimony establishes that in December 1968 the Company had an- nounced to the toolroom employees that a wage in- crease would probably be granted after a review of the operating figures for 1968. While there was no direct corroboration of Rabin 's account of that meeting, Hobbs testified that she had heard about the December meeting before the March 17 an- nouncement of the wage increase . The March 17 meeting came about in part as a result of an em- ployee petition for higher wages and other benefits, but it appears that the petition circulated in the plant before the advent of the Union's organizing campaign. Although I credit employee testimony that Rabin had in his possession a union handbill on the subject of security and told the employees that security would come to them and the Company as a result of quality production and the meeting of customer demands in a timely fashion, there is no evidence that the announced wage increase was in any way conditioned on abstinence from union ac- tivity or that it was occasioned by the Union's or- ganizing campaign . Rather, the evidence indicates that the announcement of the wage increase on March 17 and the subsequent grant of higher pay on April 10 was no more than a fulfillment of a company commitment made in December , prior to the advent of the Union, and that it came about in the normal course of Respondent 's operations. Ac- cordingly, I shall recommend that the complaint al- legations that Respondent promised and granted a wage increase and other economic benefits to the employees' if they would refrain from union activi- ty or to induce them to do so be dismissed. C. Interrogation , Threats, and the Impression of Surveillance General Counsel called a series of witnesses to testify to conversations with company supervisors in which Respondent's agents were alleged to have questioned the employees about their union activi- ties and sympathies , to have threatened reprisals for adherence to the Union or to be levied in the event -the Union succeeded in organizing the plant, and to have made statements indicating that the Company was maintaining surveillance of the employees' statutorily protected activities. Former employee Margaret Hobbs testified to a number of conversations with Richard Seman, su- perintendent of a plant section . On or about April 17, at her machine, Seman asked Hobbs how she felt about the Union, explaining he was asking because he had not heard her mention the Union. Hobbs told Seman she had heard things for and against the Union and was trying to decide for her- self which way to go. Seman replied that because he had worked in the past for two organized em- ployers and had suffered a reduction in pay he was against the Union . Seman told Hobbs that General Manager Rabin could do the same thing to Hydro's employees, take away their profit-sharing plan and insurance , and close the plant . Seman denied saying that Rabin could take this action . However, Seman admitted that he had asked employees if they were ' Complaint paragraph 6(d) and (e) HYDRO MOLDING COMPANY for or against the Union, but "only out of personal curiosity." Employee Yvette Hebert testified that on or about May 1 Seman asked if she was for the Union. Hebert replied that in some ways she favored the Union and in other ways was opposed to it. Hebert asked why Seman had inquired and he replied that he had asked the other girls on the day shift during the preceding week when Hebert had been on the night shift, and now that she was on days he was asking her. On April 25, Margaret Hobbs testified, Seman commented that she had a new boyfriend. Hobbs asked who Seman was referring to and Seman pointed to Stephen Micanko, saying, "Your Union buddy over there." Hobbs added that from time to time Seman referred to Micanko as her boyfriend. Seman denied making such statements. Hobbs testified that on May 20, with employee Bea Hamel present, Seman told Hobbs he was warning her that if she was heard talking about the Union in the plant during working hours he would have her brought to court. Seman told Hobbs that "his lawyer hired him to bring any girl that talked about the Union into court." Seman denied making this statement . Hamel did not testify. Some days later, on May 23, Seman asked Hobbs if she had told any lies about him. Seman explained that he had been called to the office "to answer to a mess of lies that were told about him." Margaret Hobbs testified that Seman declared that unions were no good and that a union had given him a raw deal. Seman told Hobbs that if the Union came into the plant he would take a cut in pay and that the employees could lose their profit-sharing plan, paid insurance , and also take a cut in wages . Seman de- nied saying that unions were no good or that if the Union came in the employees could lose their profit sharing and suffer a cut in pay. Hobbs testified that on July 3, the day following the first election, Seman commented that she was not wearing her union badge. Seman said he could understand the employees wanting the Union for more money, but he added, "You could lose your profit-sharing plan." Seman suggested that Hobbs ask a long-time employee how much money she had in the profit-sharing plan. General Manager Rabin joined Hobbs and Seman at this point. Hobbs asked Rabin if he had not said that in some years there might not be contributions to the profit-shar- ing plan if the money were needed for machine repairs or new equipment. Rabin agreed that he had said this. Hobbs then told Seman that with the Union there would be a retirement plan which would be good every year. Seman left and Hobbs told Rabin that all she had to lose was her in- surance. Rabin explained, Hobbs testified, that she could only lose her interest in the profit-sharing plan if she quit the Company's employ. In his testimony Rabin denied telling Hobbs she could lose her interest in the profit-sharing or that he had 617 ever spoken to her regarding her attitude toward the Union . Seman did not address himself to this conversation. Employee Gale Bloom testified that on or about May 15 , after first asking whether she would give him an honest answer, Seman asked her if she was for or against the Union . Bloom replied that she was "definitely for the Union." Seman said he was opposed to this union of all unions and went on to say that he knew that Micanko was indoctrinating the girls and that Bloom had lunched with Micanko quite a few times . Bloom denied this , pointing out that she and Micanko had lunch periods at different hours. Seman asked if Micanko had given Bloom a union card to sign . Bloom explained that she had signed her card at home and had done so before Micanko signed his because the union representa- tive had asked her for Micanko's address . During the conversation Seman commented that if the Union came in he would be out of a job. Bloom de- nied that the Union would take anyone's job. Seman then said that he would hate to see Bloom leave because she was a good worker. Sometime later Seman returned and asked Bloom to forget everything he had said. Employee Ingeborg Guinup testified that on May 19 after she complained to Seman about the heat in the plant he brought up the Union . Guinup asked what her question had to do with the Union. Seman stated that if the Union came in Guinup might have to start with $ 1.65 per hour . Guinup replied that had nothing to do with her question. Micanko's name came into the conversation and Guinup asked why Seman was picking on Micanko . Seman replied that Micanko had started "the business with the union" and had gone about it in a sneaky way. If Micanko would come right out in the open and talk about the Union , it would be different , Seman told Guinup. Joan Palmer, who worked for the Company for a short period, testified that on or about May 15 Su- pervisor Ronald Provost had asked if Palmer was for the Union . In a second conversation some days later Provost told Palmer that since she rode to work with Rita Roberts he figured Palmer was for the Union and if he determined that she supported the Union he would replace her. Provost generally denied having said that anyone would lose their job because of the Union. Employee Shirley Trombley testified that on or about April 1 she went to the lunchroom to ask Su- pervisor Alphonse LaMonda what job he wanted her to do . LaMonda asked Trombley what she thought about the Union . Trombley replied that she didn't know much about it. LaMonda told Trombley that in the past he had received a raw deal from a union and that if Rabin wanted to do so he could move his machines to some other place and drop the profit-sharing plan . LaMonda also said that in the event of a strike , replacements could be hired . Trombley testified that no one else 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was present during this conversation. Foreman Ronald Provost was asked if he had heard LaMon- da make these remarks and testified that he had not. Trombley testified that about a month later, on or about May 7, in a second conversation, LaMon- da again said that Rabin could move his machines to another plant and that the employees could possibly lose their profit-sharing. Employee Rita Roberts testified that on May 21 General Manager Rabin asked her what the Union had promised to make her support it. Roberts replied that the Union had promised nothing but that she had seen other companies going union and felt she would like to try working under organized conditions. Roberts testified that Rabin asked if she had spoken to other employees who had worked in a union plant and ascertained what the union had done for them. Rabin testified that he had heard that Roberts was prounion and was curious as to why she supported the Union. Rabin explained that in the past the Company had helped Roberts with interest-free loans when she needed money. Rabin testified that he asked Roberts, "With the background of our history or relationship it's been stated that you are favoring the Union. Just out of curiosity, tell me why." Roberts replied that she would like to give it a try. Employee Beverly Cleland testified that on June 18, Foreman Victor Killer spoke to her in his of- fice. Killer said that he had to tell the employees certain things about the Union. Killer said that if the Union came in they would lose their profit-shar- ing, insurance, and hospitalization, would probably have to pay union dues of up to $7 per month and if they went on strike he had a right to replace them. Killer asked Cleland what the Union would pay the employees if they went on strike. Cleland replied that she didn't know. Foreman Killer said, "Don't tell me you don't know this," and suggested she ask her union man. Employee Leona Primard testified that she also had a talk with Killer in his office on June 18. Killer told Primard that he had some things to talk about with all the girls. Primard testified that Killer told her that if the Union came in they would lose their profit-sharing, the em- ployees would have to pay for their own insurance and pay union dues of $7 per month. Primard was also told that Killer had the right to replace striking employees. Neither Cleland nor Primard was cross- examined . Killer did not testify. Respondent's coun- sel recapitulated Cleland's and Primard's testimony to Rabin and asked what instructions the general manager had given to Killer and the other foreman. Rabin replied that using a printed set of guidelines of what an employer may do in an organizing situa- 8 Assuming the supervisors were in fact instructed as to what they could lawfully do to combat the Union, "It is what [the supervisor] said or did, not what he was told to say, do, or not say or do, that counts " Hendrix tion, supplied to him by his attorney, he had told all the foremen what they could and could not do. I find that the employees' testimony establishes that Respondent's supervisors engaged in a con- certed campaign of interrogation and threats and led the employees to believe that their contacts with union adherents were being monitored by the Company. In reaching this conclusion I note that Hobbs' account of Seman's interrogation on April 17 is corroborated by Hebert's testimony that she was questioned by Seman about her union sym- pathies immediately after she was transferred to his jurisdiction, at which time he explained to Hebert that he had previously asked the employees under his supervision if they were for the Union. Seman's reference to Micanko as Hobbs' boyfriend, his inquiry to Bloom as to whether Micanko had sol- icited her signature to a union card and his claim that Micanko was indoctrinating the girls plus his accusation to Bloom that Micanko was organizing for the Union in a "sneaky" way establishes Respondent's conviction that Micanko was in the forefront of the Union's campaign and would tend to impress the employees with the fact that the Company was watching their contacts with union adherents. Rabin acknowledged that he had questioned Rita Roberts as to why she was support- ing the Union, thus indicating to Roberts that Hydro had knowledge of her union sympathy. Cle- land's and Primard's unrebutted testimony establishes that Foreman Killer systematically threatened the employees under his supervision with loss of benefit if the Union was successful in its organizing campaign.8 All things considered I find that on various dates in April, May, June, and July, Respondent interrogated and threatened its em- ployees and created the impression that their activi- ties in behalf of the Union were under surveillance, all in violation of Section 8(a)(1) of the Act. D. Union Badges Employee Lucy Kramer testified that on May 19 she first wore a union badge which she had received at a union meeting the night before. The union badge, approximately 1-1/2 inches in diame- ter, bears the Union's name in small type and its in- itials in large letters. Kramer testified that General Manager Rabin came to her work station and told her that it was not customary to wear jewelry on the job and he considered her union badge to be jewelry. Kramer asked if Rabin wished her to remove the union in- signia and he replied that he left that up to her. However, Rabin said that if she continued to wear the badge she would not be covered by the Com- Manufacturing Company, Inc v NL RB , 321 F 2d 100, 104 (C A 5), Texas Electric Cooperatives , 160 NLRB 440, 460-461, enfd in pertinent part 398F2d722(CA 5) HYDRO MOLDING COMPANY pany's insurance. Kramer removed her badge and asked the other girls wearing union pins to do the same. Kramer again wore her union badge on May 21. On this occasion Rabin remarked that it appeared she was taking orders from another company. Kramer testified that Rabin said she was not covered by the Company's insurance while wearing the union badge and, he concluded , "I don't want any more charges from the Union . You can tell LaBaff that." Kramer acknowledged that the Company has a rule against wearing jewelry but claimed that she and other employees occasional) wear pins and necklaces to work. Kramer testified that she had never before been asked to remove jewelry. During the morning of May 19, the first day the union badges appeared in the plant, an antiunion employee wore a cardboard sign suspended from her neck by a string reading, "To hell with unions." Kramer testified that this employee entered the company office wearing her sign. Another employee was wearing a pin with her in- itials. Rabin testified that he told Kramer that her union badge , pinned to her clothing , was similiar to jewelry, and might be caught in an operating machine. Rabin told Kramer that in the event of such an accident the Company might lose its in- surance claim. Rabin stated that the Company must protect all employees with insurance and that under workmen's compensation the Company 's cost is based on its own history. Rabin testified that if a piece of metal fell into a machine it could not only damage the mold and machine but there was also danger to the operator of the equipment . Rabin claimed that employees wearing necklaces , key chains , or bracelets are ad- vised to remove the articles . Kramer agreed that if a piece of jewelry got into a machine the mold could be ruined. Foreman Ronald Provost testified there was a company policy that jewelry and jewelry-like items should not be worn near machines , adding, "[b]ut it is not enforced to the fullest extent." I am at a loss to determine under which allega- tion of the complaint this episode involving the union badges is supposedly encompassed. In his brief General Counsel argues: The direction to remove the union badge constituted illegal interference with union ac- tivities . [Citation omitted.] The threat to deprive Kramer of her insurance for wearing the badge also consituted an illegal threat. However, Kramer did not claim that Rabin told her to remove the badge, rather she testified that when she asked him if he wished her to remove the badge Rabin replied that he left that up to her. As to the alleged threat to deprive her of insurance, I credit Rabin 's explanation that he told Kramer that the Company was obligated to protect her with in- 619 surance coverage , but that a claim for an accident arising from the union badge falling into the machinery might be disallowed and that the cost to the Company for workmen 's compensation coverage could rise if such an accident was on the Company's record. Accordingly , I find no unlawful conduct by Respondent in connection with the union badge in- cident. E. Stephen Micanko 1. Background Stephen Micanko began working for Hydro in March 1967 and was discharged on June 2. Until some time in July 1968 Micanko worked on the day shift as a maintenance man under Richard Seman's supervision . His duties included the repair and setup of machines for production . Setup work con- sists of placing a mold in the machine , checking the machine with the mold to determine that it is func- tioning properly , and putting the machine into production . In July 1968 Micanko was transferred to the night shift at his own request. Company Pre- sident Sol Levites testified that Micanko asked for the assignment to nights because he had purchased a house trailer and wanted his daylight hours free to install it. In addition Micanko told Seman that he had a chance to work at a filling station to make extra money . Seman saw no objection to the transfer, Wensel , the night maintenance man, was willing to switch to the day shift , and the transfer was effectuated. Micanko testified that the normal working hours for maintenance men was 10 hours a day and that he had worked 10 hours per shift both before and after his transfer to the night shift in July 1968. There is a 2-hour overlap of shifts , the night shift starting at 3 p.m. and the day shift ending at 5 p.m. Micanko received a wage increase of 15 cents per hour on April 10, the day of the general wage increase. Micanko first became interested in the Union on March 19 when LaBaff came to Micanko's home, secured an authorization card from him, and en- listed Micanko's assistance in organizing the other employees . Micanko took a supply of union cards, visited employees at their homes, and obtained authorizations for the Union . Micanko testified for the Union at the May 13 representation hearing at which his own status as an employee was litigated. Micanko also gave testimony about other em- ployees whose supervisory status was in question. I have heretofore credited employee testimony that Seman on a number of occasions linked Micanko to the organizing campaign, expressed his belief that Micanko had initiated the organizing ef- fort, inquired about Micanko 's activities in behalf of the Union, and noted his disapproval of Mican- ko's organizing tactics . Thus, on two occasions 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seman referred to Micanko as Hobbs' "Union boyfriend," asked Bloom if Micanko had solicited her signature to an authorization card, and told Bloom that Micanko was indoctrinating the girls and told Guinup that Micanko was working for the Union in a "sneaky" way. On or about May 1, about 1-1/2 weeks before the May 13 representation hearing, Seman accused Micanko of threatening a girl in the shop. Micanko denied the claim and asked Seman to identify the employee involved. Seman did not answer, saying instead, "You're an organizer." Seman said that Rabin knew of the incident and that if Micanko de- nied it they could talk to the general manager. Micanko and Seman went to Rabin who said that if anything was bothering Micanko they could sit down and talk about it. Micanko said he preferred to talk outside of working hours and Rabin and Micanko met the next morning for a talk. Micanko testified that he and Rabin discussed safety hazards in the plant, some personal gripes that Micanko had with other people in the plant, and Micanko's feel- ing that the women in the shop were afraid to speak up. Micanko stated that he told Rabin that it would be good to have a union. Rabin asked if Micanko was soliciting for the Union and Micanko acknowledged that he was. With this the conversa- tion ended. Rabin's version of this conversation, given during his direct testimony, was that it concerned Mican- ko's grievances, "a whole pile of grievances," many of them petty. Rabin testified that he "conceivably ' asked Micanko what benefits he expected to receive from the organizing effort. In redirect testimony, after reading parts of his prehearing af- fidavit Rabin enlarged on his prior account of the conversation. Rabin testified that he told Micanko that his work was deteriorating and that he had noticed that Micanko was not paying much atten- tion to his work. Rabin noted that Micanko ap- parently had some problems and asked how he could help Micanko. At this point Micanko listed a series of gripes, many of them petty. Rabin testified that he pointed out that Micanko was causing a great deal more mistakes and errors than was nor- mal for a person performing his job assignment and told Micanko that he was capable of doing better work, but apparently had his mind on other things. Rabin explained to Micanko that he had permitted a machine to run under conditions which created rejects, "he had permitted an excess of material in a number of cases to accumulate causing excessive repair requirements and expenses involved in such. He had on a number of occasions permitted damage to tools. And this led up to the end of May such very serious damages." Rabin testified that 9 Rabin did not refer to this conversation in his testimony Thus, Mican- ko's testimony stands uncontradicted this was said to Micanko in their conversation early in May. 2. Micanko's transfer to the day shift a. The transfer is effectuated Micanko testified that on May 3 Rabin asked if Micanko wished to stay on the night shift. If so, the general manager stated, Micanko would have to sign a statement to that effect. Micanko agreed to do so but Rabin never brought such a statement to him for signature.9 On May 12 Rabin complained that Micanko had permitted one machine to run for 3 to 4 hours producing bad parts and had allowed a serious amount of overproduction on another machine. Rabin said that Micanko needed additional training and would be transferred to the day shift effective May 19. Micanko testified that on May 16 Seman asked why Micanko didn't just not punch in for work the following morning. Micanko asked why and Seman replied, "You know you are going to get fired." Micanko replied that he had suspected that would happen since his shift had been changed. Seman then told Micanko that he had been instructed by Rabin and Levites to "get the goods" on Micanko so that he could be fired. Seman explained that at first Levites had planned to "kill [Micanko] with kindness" on the day shift, but that following Micanko's testimony at the representation hearing, the company president had determined to get rid of him. Seman said he would deny the conversation if Micanko went to Rabin or Levites about it.10 Micanko reported for work on the day shift on May 19. During the day, Micanko testified, Seman asked how the organizing business was going. Micanko replied it was going well and queried Seman about how it felt to "play G-d." Later that day Seman asked Micanko for his key to the plant and told Micanko to punch out at 4 p.m., thus giv- ing him a 9-hour day. While on the day shift, before his transfer to nights in July 1968, Micanko had worked a 10-hour day. Company President Levites testified that Micanko worked only 9 hours per day after returning to days because he was no longer in a supervisory position, had fewer duties to carry him past the normal working hours, and had reverted to trainee status. There was no claim that Micanko had served in a supervisory capacity be- fore going on nights in July 1968. As noted, the Re- gional Director in his Decision and Direction of Election, based on testimony as to Micanko's duties on the night shift, found that he was not a super- visor. In its statement of position in response to the 1s Seman did not refer to this conversation in his testimony Micanko's testimony stands unrebutted HYDRO MOLDING COMPANY 621 original charge which was attached to and made a part of its answer to the complaint, Respondent wrote: Mr. Micanko worked fewer hours on the day shift than he did on the night shift because of the unavailability of foremen to train him .... May 14th" 1969 Machine #C-20 #819 7,000 pcs. over. May 21st 1969 Machine #B-13. 18 minutes after 4-p.m. machines bell went off. Found ap- proximately 2 hrs. accumulation of drool on nozzle & valve which stopped machine cold. b. Seman 's logbook on Micanko Starting with an entry dated May 9 Seman main- tained a written record of Micanko's malfeasence on the job. These entries were made by Seman in a spiral bound notebook referred to by Company President Levites as a "production log book. " Levites explained that Seman used this notebook to record jobs done and other events that had to be tabulated. The first pages of the notebook are filled with lists of dates and job numbers with brief com- ments appended thereto. Levites testified that Seman came to Rabin and himself" and complained that he was having con- siderable difficulty with Micanko's performance. Levites described Seman as "sort of despairing of ever doing anything successful with" Micanko. Levites testified that because Respondent had al- ready invested 2 years in training Micanko and he was a valuable employee in many ways, he sug- gested to Seman that the foreman add to his production logbooks any comments that had to do with Micanko s job performance. Seman testified that he complained to Rabin and Levites about Micanko's failure "to take care of the machines in a manner which I considered proper" and "to be on time with the machines, to do things on a scheduled basis." Seman originally testified that he first observed Micanko's bad work in February or March. He called the matter to management's attention in April. Seman later testified that Micanko's bad work developed in Oc- tober 1968. At that time, Seman stated, Micanko improperly set a mold in a 150-ton machine result- ing in damage to the machine. Seman testified he cannabalized a replacement part but did not report the incident to management. However, Seman said he was not in the plant when the alleged accident occurred but knows it had to be Micanko's fault because it was the only possible way it could have happened. Later in his testimony Seman stated that he observed Micanko doing things wrong every day since October 1968. Respondent introduced Seman's logbook into evidence. As noted the first entry concerning Micanko is dated May 9. The log on Micanko reads as follows: May 9th 1969 Machine #B-13 Running 10020 Ran Shorts & Flash from 5 pm to 8 pm (1 box full) which had to be hand sorted to remove good pcs. Seman placed the conversation in April The log shows the date May 14 crossed out and no other date sub- May 28th 69 Steve was told on May 27th not to put Delrin into C-24 until the heats came down to Delrin level (300-350 degrees) He failed to follow these instructions & created a dangerous condition for his own safety, and filled the entire building with a choking gas for over 5 minutes. Ed Wieland gave him these in- structions. Mach . #C-24. Universal die-set was set up by Steve without one screw to the stationary side of platen being tight. c. Respondent's reasons for the transfer On May 12 Rabin told Micanko that because he had permitted a machine to run for 3 to 4 hours producing bad parts and on another occasion had permitted a serious overproduction of parts, he was being transferred to the day shift for training. Micanko admitted that on Friday, May 9, one of the automatic machines for which he was responsi- ble had produced faulty parts for about one-half hour. Micanko explained that his instructions were to check each machine every 15 minutes but that on May 9 he had trouble with another machine and did not get to the machine in question for about one-half hour. At that time he discovered that scrap parts were being run. Micanko testified that he im- mediately shut the machine down and called Seman at home who told Micanko not to worry about the situation and that they would look into the problem the following morning. The following day Micanko discovered that an operating part in the machine was loose causing the material to be injected short of the proper point. Micanko testified that this situation had occurred before and that scrap parts were run several times a week. Micanko denied that the machine had run scrap parts more than one-half hour. Seman testified that when he left the plant at 5 p.m. on May 9 the machine was operating properly. Seman claimed to have returned to the plant at 8 p.m.13 and that it was he who discovered that every part being produced by the machine was faulty because insufficient material was getting through to fill the mold cavities. Seman claimed that based upon the number of bad parts that had accumu- lated the machine had been running improperly from 5 p.m. on, a period of 3 to 3-1/2 hours. stituted. " Micanko denied that Seman returned to the plant that night 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Margaret Hobbs testified that Foreman Seman and maintenance men Wieland and Wensel-had asked her on occasion to sort scrap parts. At one time Wieland had brought to her our boxes of scrap parts, asking that she sort them after Rabin had left. General Manager Rabin testified that while it was the practice to deliberately run parts short of material when machines are first put into produc- tion and that these are either discarded or sorted by people assigned to slow operating machines, the Company's ratio of scrap to overall production is less than 3 percent. On May 9, Rabin claimed, two- thirds of the parts run were scrap. As to the overrun of parts, Micanko admitted that on Wednesday or Thursday, May 7 or 8, he failed to follow instructions to shut down an auto- matic machine under his control at 9 p.m., resulting in an overrun of 7,000 pieces on an order for 10,000. Micanko testified that overruns occur from time to time and that the excess pieces are stocked and used for later orders. Rabin testified that stan- dard procedure calls for overruns of 5 percent but that Micanko had permitted a 70-percent excess. Rabin stated that overruns in excess of 5 percent are permitted to keep machines or operators busy and agreed that the excess parts are used for sub- sequent orders. d. Conclusions and findings I find that Respondent transferred Micanko to the day shift because of his activities on behalf of the Union. The picture of Micanko's poor job per- formance painted by Seman was laid on with too broad a brush. Seman first testified that he noticed bad work by Micanko in February or March, then he remembered an incident of improper work by Micanko in October 1968 and finally Seman claimed to have observed Micanko making mistakes every day since October 1968. However, Seman does not claim to have reported Micanko's deficiencies to higher management until April at which time he was allegedly told to keep a written record of Micanko's errors. Despite this claim of unending errors by Micanko, Seman - did not discover improper work warranting an entry in the log until May 9. Seman's statements to employees about Mican- ko's union activities and his characterization of Micanko's tactics as "sneaky" evidence Respon- dent's awareness of Micanko's efforts for the Union and the Company's hostility toward him. Micanko's deficiencies were again sketched bigger than life in Rabin's version of his conversa- tion with Micanko early in May in which Rabin "conceivably" asked Micanko what benefits he ex- pected from the Union and said that Micanko's " This account of the discharge interview is based on a synthesis of Micanko's and Rabin's testimony . Rabin added that he told Micanko the mind was "apparently ... on other things." Rabin claimed to have told Micanko early in May that he had permitted a machine to run making defective parts, the occurrence of May 9, and to have "per- mitted an excess of material in a number of cases to accumulate causing excessive repair requirements and expenses." Seman's log, allegedly started in April, shows only one incident of accumulation of excess material and that on May 21. Micanko was a credible witness who candidly ad- mitted mistakes. I credit Micanko's unrebutted testimony that on May 16 Seman told him that the plan had been to transfer him to the day shift and there to "kill [him] with kindness" but that follow- ing Micanko's testimony for the Union at the representation hearing on May 13 the decision had been made to "get the goods on Micanko and to discharge him. The two reasons advanced for the transfer appear to be no more than ordinary production problems faced in plant operations and I credit Micanko's claim that on May 9 he was responsible for no more than one-half hour roduction of defective parts. Accordingly, I find that in violation of Section 8(a)(3) of the Act Respondent transferred Mican- ko from night duty, the shift he had requested and preferred, to day work with a reduction in hours of work, in retaliation for his union activities and to prepare the groundwork for his discharge. 3. Micanko's discharge a. The circumstances of Micanko's discharge When Micanko reported for work at 7 a.m. on Monday, June 2, he discovered that his timecard was missing from the rack. Seman told Micanko that he was not to punch in until Rabin arrived. Later, when Micanko met with Rabin in the latter's office, Rabin asked if Micanko had loosened the bolts on machine C24. Micanko was not sure that he had done so, but admitted loosening the bolts. Rabin then said that Micanko had too much on his mind and was not paying proper attention to his work. Rabin discharged Micanko, saying it was because Micanko could have damaged or destroyed a costly mold. Rabin told the secretary to pay Micanko the money due him and the interview ended. 14 Micanko testified that on Thursday, May 28, he had set up machine C24 with the mold for part # 809 for a production run. Later Micanko learned that this was to be a test run on #809 which was completed about 10 a.m. Micanko then asked Rabin what he was to do with the mold and was told to cool and remove it to make room for another mold. Micanko started the cooling process but was called away by bells signifying trouble on damage could have been irreparable and that all Micanko could say was, "I'm sorry." HYDRO MOLDING COMPANY 623 other machines. Micanko explained that his prima- ry responsibility was machines in production, not those being set up. Later that afternoon Micanko started to take out the die-set on C24 but was again called away to other machines. He left at his regu- lar quitting time of 4 p.m. When he started work the following day, May 29, Micanko did not return to C24 because of other duties. About 11 a.m. on May 29 Micanko was told by maintenance man Ed Wieland that C24 was set up and ready to go. Wieland had set up the new mold in C24 and put it into production. Micanko was told that he was to remove the molded parts from the machine, put them in boxes, and take them to the inspection department. Company President Levites explained that about 17 percent of Hydro's machines are equiped with Universal molds or frames into which the actual molds, composed of accurately machined modules, are set. These modules are attached and detached for each production run. Using these modules rather than complete molds Hydro is able to reduce tooling costs and expedite the manufacture of molds. In the mounting of the modular molds care must be taken that the parts are accurately placed and that the sides of the Universal mold (Universal die-set) do not move. Wieland testified that on May 29 he was in- structed by Rabin to install the mold on C24 for a part for Delco. Following normal procedures, Wie- land obtained the mold, put it in the Universal mold, floated the parts together, and made sure that it was in working order. Wieland then started the machine into production. On the second or third shot of material Wieland noticed that one of the stationary sides of the Universal mold, into which the component parts of the Delco mold had been placed, had jumped. Wieland stopped the machine and discovered that the four bolts which fasten this stationary plate had been unloosened and were withdrawn quite a bit. Wieland testified that this was not a normal condition. Wieland asked the toolroom man if he knew anything about the condition of the stationary plate, explaining that the bolts were loose. The toolroom man denied knowledge of the matter. Wieland returned to the machine, tightened the bolts on the stationary plate, and put the machine back into production. Company President Levites was present. Wieland did not mention the condition of the stationary plate to Micanko. Levites testified that when Micanko had removed the mold for part #809 from machine C24 he had loosened the large bolts holding one side of the Universal mold rather than the small bolts fastening the mold itself. Levites stated that "As far as I was concerned, that had cooked Mr. Micanko's goose. I was in favor of dismissing him on grounds of this type of technical incompetence and that was done." Micanko denied there was incompetence on his part, because he claimed, it was Wieland's job when setting the mold to be sure that all parts were securely fastened in place. If he had set the Delco mold in place , Micanko testified, he would have checked the setup and tightened the four bolts in question. General Manager Rabin testified that employee Shirley Hart, who was discharged a few days before the hearing herein for allowing the machine she was attending to run defective parts for 3-1/2 hours, had previously broken a mold. Rabin did not claim that Hart was terminated for damaging the mold. Respondent pointed to two other instances of failure by Micanko to properly perform his job in the period between his reassignment to the day shift on May 19 and his discharge on June 2. The first involved the accumulation of excess material or drool on the nozzle of machine B 13 on Wednesday, May 21. On May 22 Rabin accused Micanko of having permitted a 3- to 4-hour accumulation of drool on the machine. Micanko answered that the amount of drool in question could have accumu- lated in a few minutes if the machine had been im- properly adjusted. Wieland explained that if a safety device had been set wrong the material would have bypassed the cutoff and the amount of drool claimed would have built up. Micanko testified that before he left work at 4 p.m. on May 21 he had checked the machine and it had been operating properly. The following morning, May 22, when he discovered that the machine was not in operation and Seman told him to look at the nozzle, Micanko checked the machine production card and discovered that B13 had been shut down at 4:15 p.m., the day before, 15 minutes after he had left the plant. Rabin testified that it is common for a lit- tle drool to accumulate on automatic machines. Rabin further stated that the "excess material or drool will give off a smoke that is easily visible and that will rise right above the machine." The second incident occurred on May 28 while Micanko was removing nylon molding compound and replacing it with Delrin, a molding compound with a melting temperature much below that of nylon. When Delrin is overheated ammonia gas is given off. Micanko testified that he was purging or cleaning the machine of the nylon15 using Bam- berger compound , a cleansing material which has the property of melting at the temperature of the material with which it is used. As the nylon and Bamberger compound passed through the machine Micanko lowered the temperature to prepare for the infusion of the Delrin which is not safe at tem- peratures above 350 degrees.16 Micanko testified that as he fed Delrin in the machine froze. At that la Rabin testified that nylon melts at 487 degrees Fahrenheit 1e Wieland testified that the proper Delrin temperature is between 400 and 415 degrees 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD point Micanko shut down the machine as it was 4 p.m. and he had been ordered to leave at that hour. The following morning Micanko raised the heat on the machine back up to nylon temperature to complete the purging process and as a result the Delrin gave off ammonia gas. Micanko claimed that under the best of circumstances when Delrin is put into a machine some fumes will be given off. Seman testified that when the incident occured the employees in the plant had to leave their machines and run for air. Some, Seman claimed, fell to the floor thinking the air there would be free of the gas. The foreman stated that during the 5 minutes it took to clear the air in the plant there was no production. Wieland agreed that he had never seen as great an emission of gas but said nothing about employees running for air or an in- terruption of production. Micanko denied that em- ployees left their machines or that anyone ran out of the plant or fell to the floor. b. Conclusions and findings The issue ... is not, of course, whether or not there existed grounds for discharge . apart from ... union activities. The fact that the employer had ample reason for discharging [Micanko] is of no moment. It was free to discharge [him] for any reason good or bad, so long as it did not discharge [him] for [his] union activity. And even though the [discharge] may have been based upon other reasons as well, if the employer was partly motivated by union activity, the [discharge was] violative of the Act.4 4 If employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or deliquency , there is nonetheless a violation of the National Labor Relations Act N.L.R B v. Jamestown Sterling Corp, 211 F 2d 725, 726 (2d Cir , 1954) "" I have heretofore found that Respondent was aware of Micanko's union activity, held him responsible for the organizing campaign and had made known its hostility toward him because of his organizing efforts. Further, I have credited Mican- ko's testimony that Seman candidly admitted that he had been told to get the goods on Micanko fol- lowing the representation hearing and Levites' deci- sion to get rid of Micanko. In that conversation Seman told Micanko, "You know you are going to get fired." Micanko was allegedly discharged for endanger- ing the Delco mold by failing to secure the bolts on the stationary plate. It is not clear that creation of the danger to the mold can be laid solely at Mican- ko's door. Wieland set up the mold and put the machine in production. I am not convinced that a setup man could have carefully set the mold in place in the manner described by Levites and not have observed movement resulting from the loose stationary plate which served as the anchor of the modular mold. Further, Wieland's failure to even mention the dangerous situation to Micanko when he turned over operation of the machine to Mican- ko does not comport with Levites' claim that when the condition was discovered "Wieland appeared to be in a state of shock" or with Respondent's evaluation of the danger to the mold. Moreover, Rabin testified that Hart had damaged a mold some weeks before the hearing and had been retained by the Company until a subsequent failure to properly attend to her work. I credit Micanko's version of the incident of May 22 when excess drool accumulated on a machine. Had Micanko permitted drool to accumulate for hours, as claimed by Respondent, it would appear the smoke which Rabin testified would have come from the accumulated material would have alerted others to the situation. In this connection I note that Respondent did not controvert Micanko's testimony that the machine had been shut down only 15 minutes after he had checked it and found it in proper order. As with so much of his testimony, Seman inflated the Delrin incident out of proportion. Seman's description of the chaos created is belied by Wie- land's account of the event. All things considered, I find that Respondent se- ized upon plant problems, only in part attributable to Micanko, to carry out its purpose of ridding itself of Micanko because of his outspoken and con- spicuous union activity and thereby violated Sec- tion 8(a)(3) of the Act. F. The Company Meetings in June On June 16 and again on June 3018 Respondent assembled all the employees to hear an address by Company President Levites. On June 30 General Manager Rabin spoke as well. Levites testified that his talks at both meetings were essentially the same and in reply to a union handbill on security which had intimated that Hydro's employees were not very secure. Levites stated that he spoke from notes and that following the list of do's and don'ts supplied by the Com- pany's attorney he was careful in what he said. Levites testified that he listed to the employees the benefits the Company had supplied to them without unionization, including their wage scale, fully paid health and major medical insurance , and the profit- sharing plan to which the Company had made con- tributions in all but 2 years since its creation. Levites stated that he told the employees that the 17 N L R.B. v. Great Eastern Color Lithographic Corp., 309 F.2d 352, 355 (C.A 2) '" The first election was conducted on July 2 HYDRO MOLDING COMPANY profit-sharing trust fund was doing well and that all were enjoying "a very nice, tax-free accumulation, particularly those who had been with us say a good number of years." Levites told the employees of the value to them in dollars and cents per hour of the Company's fringe benefit plans. Next Levites noted the Company's recent expansion in the plant and equipment and the addition of new product lines which would provide more stable employment. As against these company benefits Levites testified he pointed out changes which might come with a union. First he told the employees that they were free to join a union and that he was speaking to them to make sure they made an educated choice. Levites noted that when employees join a union they take on a new set of obligations including the duty to pay dues, initiation fees, and possible as- sessments to support other groups which might be on strike. Levites told the employees that negotia- tion of a union contract involved the risk of a strike and that in the event of a walkout the Company would seek to maintain production and that strikers could be legally replaced. Levites testified that he alerted the employees "that there was another greater risk than that." He told the employees that Hydro's biggest customer was International Busi- ness Machines and that the tools used to fabricate parts for IBM were the customer's property. Levites read to the employees parts of the "tool agree- ment" with IBM which provides that the tools are IBM's property, may be removed by IBM at any time, and told the work force that if there was the "risk of strike or interference with production, we will be obligated to advise IBM, and the risk existed that these tools will be withdrawn."19 Levites testified that he told the employees that the tools Hydro was using had come from strikebound plants from which the tools had been taken and given to the Company. He told the employees that histori- cally when tools were removed from a struck plant they were never returned and that Hydro had never lost a tool it had obtained in this manner. Levites denied having suggested that the em- ployees might lose the profit-sharing plan. General Manager Rabin testified that he was not in Plattsburgh on June 16, the day of the first meet- 2, but that he did speak to the employees on June Rabin testified that he pointed out to the em- ployees the accessibility to them of the Company's 'd The agreement between IBM and Hydro , entitled "Tooling Cer- tificate," provides in pertinent part 1. We acknowledge that the below listed items of tools and tooling in our possession are the property of IBM Each has been identified by an IBM tool number 2 Whenever requested by IBM , we shall return any or all of said items plus any drawings covering them to IBM without cost except that transportation charges shall be billed collect + • s r 9 If for any reason we are unable to continue production , we shall notify IBM immediately and IBM shall have the right to enter our 625 management, the benefits of the profit-sharing plan, the total benefits that had been paid out under the plan, and the number of persons who had shared in the distributions. Finally, Rabin testified, "I pointed out that with all favorable conditions being what they were in line with a previous commitment, that we-it looked favorable that when we had the ac- countant's figures in by the early part of August or thereabouts, we should be able to do something substantial for them." Seven of General Counsel's witnesses were questioned about the June meetings . Of the six20 who recalled the matters discussed, all remembered Levites' remarks about the Company's relations with IBM and the possibility that IBM would remove its molds if there was the possibility of a strike. Five of the employees testified that Levites had raised the possibility that the employees might lose the profit-sharing plan if the Union's campaign succeeded .21 Five of the employee witnesses re- called Levites saying that if the union came in the employees might have to pay for all or part of their insurance.22 General Counsel's witnesses corroborated Rabin's account of his June 30 talk. Respondent called three employees23 who, in response to leading questions, denied that either Levites or Rabin had said that if the Union came in the employees might lose the profit-sharing plan, be required to pay the cost of their insurance, might suffer a reduction in wages, that the plant would close and move away, or that there would be any reduction in benefits. On cross-examination each of the employees denied that anythin had been said at these meetings about insurance.2 Foreman Ronald Provost was asked the same leading questions and gave the same answers. At one point Respondent's counsel asked Provost: Q. Did you at either meeting hear either Mr. Rabin or Mr. Levites state or imply if the Union came in, the profit sharing plan would go out? A. (By Provost) Not if a Union came in, no. I didn't hear that. The point was pressed on cross-examination. Q. (By General Counsel) I believe Mr. Fein- berg _asked whether or not the statement was made that people would lose the profit sharing plan if the Union got in. I believe your answer premises at any time to remove its tools m Trombley testified that she didn't pay too much attention to what was said =' Employees Lucy Kramer, Leona Pnmard, Margaret Hobbs, Rita Roberts, and Beverly Cleland The concensus of their testimony was that Levites told them he would not say they would lose the profit-sharing plan, but they could 22 Employees Lucy Kramer, Judy Lamore, Leona Primard , Margaret Hobbs, and Rita Roberts t' Katherine James , Dora Seymour, and Dora Bushey 24 Dora Seymour limited her answer to a denial that there had been men- tion of hospitalization 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was they didn 't make the statement if the Union got in: A. (By Provost) Yes. Q. Well, I mean was the statement made it is possible they might lose their profit sharing? A. Yes, there was that possibility. The denials by Respondent's employee witnesses that Levites or Rabin had uttered the allegedly violative threats at the June meetings were elicited entirely by leading questions. Counsel were alerted on the record that little weight would be given such testimony. The suspect nature of testimony given in response to leading questions is demonstrated by the fact that these witnesses, in response to leading questions , denied there had been mention that the employees might have to pay for their own in- surance if the Union came in. Then, the same wit- nesses denied that there had been any mention at all of insurance at the meetings. Accordingly, I give no weight to this testimony in seeking to determine whether, in fact, Levites "threatened ... employees with discharge or other reprisals 1125 at the June meetings. Levites was an attractive witness but his credibili- ty suffers from lack of corroboration. The em- ployee witnesses called by General Counsel were equally impressive and their testimony which car- ried the ring of truth, was mutually corroborative.26 In addition, Provost, a company supervisor and Respondent's own witness, further buttressed their testimony that the possibility of loss of the profit- sharing plan was mentioned at the June meetings. Accordingly, I find that in his talks to the em- ployees at the June meetings Levites, in violation of Section 8(a)(1), threatened the employees with possible loss of the profit-sharing plan and cost-free insurance in the event the plant was unionized. While Levites' statements to the employees of possible action by IBM to remove its molds stand unrebutted and the Tool Certificate established IBM's right to do so, this possibility was tied to an "assumption that the union, which had not yet even presented any demands, would have to strike to be heard." N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. As to the threats of possible loss of the profit- sharing and company-paid insurance, I find that these statements violated Section 8(a)(1) as they fall within the Court's teaching in Gissel that: If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the state- ment is no longer a reasonable prediction based on available facts but a threat of retalia- Complaint paragraph 6(c) -" Moreover, all but Hobbs are presently employed by Hydro and were knowingly testifying against the interest of their Employer Federal En- velope Company, Division of Nationwide Papers Incorporated, 147 NLRB tion based on misrepresentation and coercion, and as such without the protection of the First Amendment. 395 U.S. 575, 618. G. The Employee Suggestion Program On September 20 the Company posted at various points in the plant a notice entitled "Suggestion Boxes and Review Committee." In full the notice read: SUGGESTION BOXES AND REVIEW COMMITTEE IN ORDER TO CREATE GOODWILL A NUMBER OF SUGGESTION BOXES WILL BE PLACED THROUGHOUT THE PLANT AREAS. COMMITTEE MEMBERS ARE REQUIRED FROM THE FOLLOWING AREAS: 1) One Member from Coil Winding 2) One Member from West Section 3) Two Members from Main Section COMMITTEE VOLUNTEERS ARE ASKED TO POST THEIR NAMES BELOW: IF MORE THAN 4 NAMES ARE LISTED, ALL EMPLOYEES WILL VOTE ON THEIR SELECTION OF 4 NAMES FROM THE ABOVE LISTING. NATURALLY THIS COMMITTEE WILL OPERATE FOR A TRIAL PERIOD OF 6 MONTHS AND CAN BE RE-ELECTED OR CHANGED BY POPULAR VOTE AT THAT TIME. THE COMMITTEE WILL THEN MEET TO DETERMINE FURTHER PROCEDURES. /s/ M.A. Rabin A number of employees affixed their names in the area of the notice provided for volunteers for the Review Committee. At two times in the past Respondent had at- tempted employee suggestion plans . The first effort, some 15 years before , had involved regular meetings with the employees in which the sug- gestions were reviewed. The second effort, 8 to "10 years before the events herein , had been aban- doned because too many of the unsigned sug- gestions lacked merit.27 That the instant program was designed by Respondent as more than a system of collecting suggestions was explained by Rabin , who testified, 1030, 1036 =r This account of Hydro's past experience with employee suggestion plans is based mainly on Rabin's testimony Lucy Kramer's testimony cor- roborates Rabin in part HYDRO MOLDING COMPANY "This time we thought we would establish a com- mittee that not only management would be viewing the suggestions but really basically the employees themselves would be able to screen the suggestions first and pick out what had merit to it." "So far as appears conditions of employment were the only matters of common interest between management and the employees "28 and their resolu- tion would achieve the desired end of creating "goodwill." Thus, inevitably the employee sug- gestions solicited by this program will relate to their wages, hours, and working conditions. The greater vice lies in the creation of a representative employee committee to screen out and pass on to management those suggestions which had merit . The language of the notice29 makes clear that this company-created conduit for channelling employee suggestions to their Em- ployer was to be a mandatory procedure. In the words of Respondent's counselS° this sug- gestion plan and review committee constituted a "type of employee-management relations ." I find that the review committee was conceived of as a "labor organization " within the meaning of the Act. N.L.R.B. v. Cabot Carbon Co., 360 U.S. 203.31 Accordingly, I find " that Respondent violated Section 8 ( a)(1) by imposing a committee of its own creation upon its employees as their collective-bar- gaining representative for any collective bargaining which they might wish to engage in, and thereby in- terfering with their rights to self-organization and to bargain through representatives of their own choos- ing." (Footnote omitted.) Walton Manufacturing Company, 126 NLRB 697, 701, enfd. 289 F.2d 177 (C.A. 5). H. The October Wage Increase , The Denial of an Increase to Kramer, and Kramer's Work Assignment on October2l Although not alleged to be violations in the com- plaint or the two amendments thereto, General Counsel now seeks a finding that Respondent vio- lated Section 8(a)(1) of the Act by its grant of a general wage increase to the employees early in Oc- tober, the second such increase in 1968 and the first time in its history that Hydro had ever given its employees two wage increases in 1 year ; the denial of an increase in October to Lucy Kramer who had served as the Union's observer at the duly election; and by the assignment of Kramer, on October. 21, to a work station adjacent to material to which the 'tl Walton Manufacturing Company, 126 NLRB 697, 700, enfd 289 F 2d 177 (CA 5) 29" suggestion boxes will be placed " "Committee members are required from I'll all employees will vote I' ll this committee will operate " "The committee will then meet to determine further procedures " ( Emphasis supplied 5Tr p 183 Section 2 ( 5) of the Act, 61 Stat 138, 29 U S C Sec 152 (5) provides 627 Company knew Kramer was allergic the day after she was union observer at the second election. The October wage increase and the Company's failure to include Kramer in its largesse both took place before the Regional Director issued the second amendment to the complaint on October 10. Further, no effort was made to amend the com- plaint at the hearing to allege these actions as viola- tions nor did General Counsel state on the record that he would seek relief for these matters. As to Kramer's October 21 work assignment , Respon- dent's counsel objected to General Counsel going into the matter and withdrew this objection only after General Counsel stated on the record , " I feel that at least, although no finding can be made on it, to show the animosity of the Company, I would like to put this in." On this record *I cannot find that these "material issue[s] [have] been fairly tried by the parties [and] should be decided ... regardless of whether [they have ] been specifically pleaded ." American Boiler Manufacturers Association v. N.L.R.B., 366 F.2d 815 , 821 (C.A. 8); International Union of Operating Engineers , Local No. 139 (Camosy Con- struction Co., Inc.), 172 NLRB 173. 1. Respondent's Application Form For Employment For at least 20 years32 and continuing to the time of the hearing herein the Company has required ap- plicants for employment to complete a form con- taining the following questions: 12.Are you a Union member? Are you willing to join? Rabin testified that over the years a substantial number of applicants had stated that they were union members or willing to join but that no appli- cant was ever rejected because of such affirmative answers. The Board has held33 that the "use of an employ- ment application which required prospective em- ployees to answer questions as to whether they were members of a union violated Section 8(a)(1) of the Act. Springfield Garment Manufacturing Company, 153 NLRB 1126." This is true even in the absence of evidence that any applicant was refused employment because of union affiliation. Reno's Horseshoe Club, Inc., 162 NLRB 268, 269, 274. Accordingly I find that the inclusion of these questions on Respondent 's employment application farm violated Section 8 (a)(1) of the Act. "The term 'labor organization"me..._ ny organization of any kind, or any agency or employee representation commm.,. ]an, in which employees participate and which exists for the purpose , in wiono n rt, of dealing wa es rievances labor dis utes n h l g , p , oyers concerni g g wit emp ,-,,f pay, nditions of work " l t f h oymen , or co ours o emp '= Testimony of General Manager Rabin 3' Sterling Aluminum Company, 163 NLRB 302 427-258 O-LT - 74 - 41 628 unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not committed other un- fair labor practices as alleged in the complaint. RECOMMENDED ORDER The Respondent, Hydro-Molding Company, Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activity and sympathy or the union activity and sympathy of other employees; threatening em- ployees with loss of the profit-sharing plan, loss of paid insurance, loss of employment opportunity, or with plant closing in the event the plant is unionized; creating the impression of surveillance of union activity; imposing upon employees, as a condition of employment, a requirement that col- lective bargaining must proceed on the basis of a labor organization sponsored, formed, or assisted by the Respondent; requiring prospective em- ployees to answer questions on the employment ap- plication as to their union membership and willingness to join a union ; or, in any other manner interfering with , restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. (b) Discouraging membership in the Union, or any other labor organization, by discriminating against employees in regard to the terms and condi- tions of their employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Stephen Micanko immediate and full reinstatement to his former position on the night shift or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent 's discrimination against him as set forth in the section of this Decision entitled- "The Remedy." (b) Notify Stephen Micanko, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in ac- cordance with the Selective Service Act and the t ed to them in Section 7 of the Act and _ universal Military Training and Service Act, as aran e gu thereby engaged in and is engaging in unfair- iabor practices within the meaning of Sectio--6(a)(1) of the Act. 4. By engaging in.to c'n-duct described in sec- tion III, F_-n eof, Respondent discriminated a aiT-.^cephen Micanko in regard to the terms and unditions of his employment, in order to discourage activities protected by Section 7 of the Act, and thereby has engaged in and is engaging in DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Respondent 's operations described in section I, above, have a close, intimate , and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that the Respondent unlawfully first transferred and then discharged Stephen Micanko, I shall recommend that Respondent be ordered to reinstate him to his former position on the night shift or a substantially equivalent position of employment without prejudice to his seniority and other rights and privileges and to make him whole for any loss of pay he may have suffered as a result of Respondent's unlawful conduct, including loss suffered by reason of the reduction in his hours of employment following his transfer to the day shift . Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: 1. Hydro-Molding Company, Inc., ployer engaged in commerce within the Section 2(6) and (7) of the Act. CONCLUSIONS OF LAW is an em- meaning of 2. Aluminum Workers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in certain described conduct referred to hereinabove in section III, C, F, G, and I, hereof, Respondent interfered with, restrained, and coerced its employees in the exercise of rights amended, after discharge from the Armed Forces. (c) 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 of this Recommended Order. (d) Post at its Plattsburgh, New York, plant co- HYDRO MOLDING COMPANY pies of the attached notice marked "Appendix."34 Copies of said notice, on forms provided by the Re- gional Director for Region 3, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.35 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " is In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the op- portunity to present their evidence , the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and abide by its terms. We violated the law when we transferred Stephen Micanko to the day' shift on. May 19, 1969, and when we fired him on June 2, 1969, because of his activities for the Aluminum Workers International Union , AFL-CIO. WE WILL NOT again fire anyone or change their working conditions for such activity. WE WILL NOT threaten employees that the selection of a union as their bargaining representative will result in loss of the profit- 629 sharing plan, paid insurance , or loss of any other benefit. WE WILL NOT interrogate employees con- cerning their union membership or activities or the union membership or activities of other employees in a manner violative of Section 8(a)(1) of the Act. WE WILL NOT require applicants for employ- ment to answer questions on the employment applications as to their union membership. WE WILL NOT threaten employees that the plant will be shut down or moved away, or that work being done in the plant will be lost to the employees , if a union comes into the plant. WE WILL NOT create the impression of sur- veillance of the union activities of employees. WE WILL NOT impose upon our employees, as a condition of employment , a requirement that collective bargaining must be conducted through a labor organization to be sponsored, formed, or assisted by the Company. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL offer Stephen Micanko his job back with backpay. WE WILL notify Stephen Micanko, if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon application as provided by law, after discharge from the Armed Forces. All our employees are free to become or remain, or refrain from becoming or remaining , members of the Aluminum Workers International Union, AFL-CIO, or any other labor organization. Dated By HYDRO-MOLDING COMPANY, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any-questions concerning this notice or com- pliance with' its provisions may be directed to the Board's Office, Drislane Building, Seventh Floor, 60 Chapel Street, Albany, New York 12207, Telephone 518-472-2215.