Whiting Corp.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whiting Corporation and United Steelworkers of America, AFL-CIO. Cases 13-CA-9250 and 13- CA-9366 February 11, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On April 7, 1970, Trial Examiner Lowell Goerlich issued his Decision in Case 13-CA-9250, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. He further found that the Re- spondent had not engaged in certain other unfair la- bor practices alleged in the complaint and recom- mended that such allegations be dismissed. On April 28, 1970, the National Labor Relations Board issued an Order in which it ordered, inter alia, that the record in Case 13-CA-9250 be reopened, that Case 13-CA-9366 in which a complaint had issued be consolidated therewith, and that the consolidated proceeding be remanded for hearing before Trial Ex- aminer Goerlich.l On August 11, 1970, Trial Examiner Lowell Goer- lich issued his Supplemental Decision in Cases 13- CA-9250 and 13-CA-9366, finding that the Respon- dent had not engaged in the unfair labor practices alleged in the complaint in Case 13-CA-9366 and recommending that the complaint therein be dis- missed in its entirety, as set forth in the attached Trial Examiner's Supplemental Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief; the Charging Party filed exceptions to the Trial Examiner's Supplemental Decision and a supporting brief; the General Counsel filed cross-exceptions to the Supplemental Decision and a supporting brief; and the Respondent filed a brief in answer to the cross-exceptions. 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 these cases to a three-member pan- el. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and Supplemental Decision, the exceptions, cross-exceptions, and briefs, and the en- tire record in these cases, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner? ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Whiting Corporation, Harvey, Illi- nois, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified,3 and that the complaint in Case 13-CA-9366 be dismissed in its entirety. 1. Delete from the present paragraph 1(e) the word "related." 2. Delete the next to the last paragraph of the Recommended Order. 3. In footnote 27 of the Trial Examiner' s Decision, substitute "20" for "10" days. i On June 9, 1970, the Board granted the Union's request to withdraw the petition in Case 13-RC-1 1866 and certified the results of the July 11, 1969, election therein , which the Union lost The Union' s objections to that elec- tion are therefore moot 2 Chairman Miller would not find violative of the Act ( 1) Peter Hammond's remark to a group of employees on the day after the election that his father wanted to know why "near half the people in the plant voted for the union," which he does not consider unlawful interrogation , (2) the statements of supervisors that employees did not need a union , which, in his view, did not impress employees with the futility of choosing a union, and (3) Supervisor Carvey's repeated approaches to employee Sopko during the election campaign for the purpose of union discussions , which he does not find coercive 3 The Charging Party has withdrawn its request for a bargaining order, but seeks time, on or off company premises, to be paid for by the Respondent, in which union representatives and/or an agent of the Board may explain to the employees their rights under the Act In addition, the Union requests that the Respondent be required to mail the remedial notice to all employees and provide the Union access to the company bulletin boards for a period of I year As we do not believe that the unfair labor practices found herein warrant unusual remedial action, the Charging Party's request is denied. Tasty Box Lunch Co, Inc, 175 NLRB No 7 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner : The charge in Case 13-CA-9250 was filed by the United Steelworkers of America, AFL-CIO, hereinafter referred to as the Union, on July 22, 1969, 1 and a copy thereof was served on Respon- dent Whiting Corporation on or about July 23. A comp aint and notice of hearing was issued on December 30 and amendment to the complaint was allowed on January 28, 1970. The complaint and amendment to the complaint charged that the Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein re- ferred to as the Act , by certain specific acts of unlawful interrogation, threats of discharge , promises of economic benefits, and other unlawful acts which interfered with the i Unless otherwise noted all dates herein refer to the year 1969. 188 NLRB No. 56 WHITING CORP. employees' rights as guaranteed by Section 7 of the Act. The Respondent filed timely answer denying that it had engaged in or was engaging in any of the unfair labor practices alleged. On December 31, the Acting Regional Director issued a report on objections, order consolidating cases and notice ofconsolidated hearing. Among other things the Acting Regional Director found that the objections to the election conducted on July 1 I filed by the Petitioner included allega- tions which were also the subject of the charges filed in Case 13-CA-9250 involving the same parties wherein a com- plaint and notice of hearing had been issued and that the substantial and material issues which were raised by the objections could best be resolved on the basis of record testimony and evidence developed at a hearing. The Acting Regiona Director ordered that Case 13-RC- 11866 be con- solidated with Case 13-CA-9250 for the purpose of hearing, ruling, and preparation of a decision by a Trial Examiner. The Acting Regional Director further ordered that the Trial Examiner designated for the purpose of condiwting a hear- ing "shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact and recommendations of the National La- bor Relations Board." A petition for an election in Case 13-RC-11866 had been filed on May 7, and the stipulation for consent election was approved on May 26. An election by secret ballot was con- ducted under the supervision of the Regional Director on July 11. A majority of the valid votes counted plus the remaining challenged ballots was not cast for the Petitioner. The consolidated cases came on for hearing on January 28, 29, and 30, 1970, at Chicago, Illinois. Each party was afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered by the Trial Examiner .2 Upon the whole record 3 and upon his observation of the witnesses the Trial Examiner makes the following: FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR I THE BUSINESS OF THE RESPONDENT The Respondent is and has been at all times material herein a corporation duly organized under and authorized to do business by the laws of the State of Illinois. At all times material herein the Respondent has maintained its office and factory at 157th and Lathrop Streets, Harvey, Illinois, where it is now and has been at all times material herein engaged in the manufacture, sale, and distribution of stand- ard and custom-made overhead cranes and foundry equip- ment. During the calendar year 1969, a representative year, the Respondent had a gross volume of business in excess of $50 million and sold and delivered products valued in ex- cess of $5 million directly to locations in States outside the State of Illinois. In addition to its Harvey location, the Respondent maintains plants in Gadsden, Alabama, and Welland, Ontario. Both of these other two plants are organ- ized with the Gadsden, Alabama, plant having the Glass 2 The Official Report of the Proceedings contains 558 pages , 213 pages of briefs were submitted 3 That part of the Motion to Correct Official Report of Proceedings which was not objected to by any of the parties and General Counsel's proposals I and 2 were granted and the Official Report of the Proceedings is corrected accordingly 501 and Ceramic Workers and the Welland plant having the United Steelworkers of America. The Trial Examiner hinds that at all material times herein the Respondent was an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES First: Activities of Peter Hammond- The Union's organiza- tional campaign commenced at the Respondent's Harvey, Illinois, plant in April 1969. As noted a petition for an election was filed by the Union on May 7 and the election was conducted on July 11. During the election campaign the Respondent openly opposed the Union by letters, speeches, and handbills. Personnel Director Harley A. Bauch ex- plained to the Respondent's supervisors that "consistent with [the Respondent's] regular practice, Whiting was non- union and [it] chose to remain so if possible." T. L. Hammond was the chairman of the Respondent's board of directors. He owned 25,000 shares of its stock and voted certain stock which was held in trust, some of which (1180 shares) was in trust for his 19-year-old son Peter Ham- mond, a fact which was known to Peter. In all 1,080,000 shares were issued and outstanding. During the election campaign T. L. Hammond was informed of the Respondent's campaign efforts and upon at least one occa- sion he distributed a handbill to employees in front of the plant.4 The handbill was blank except for the suggestion that if the Union prevailed what the Union could do for the employees was "blank."' During the election campaign Peter worked in the plant. He was one of a number of relatives of employees who worked for the Respondent. Peter's father had arranged for his job. According to Peter his father asked him "not to wax eloquently the union-company situation." Said Peter, "He was afraid that my personal opinions would be miscon- strued as company policy." Peter knew that the Company did not want the Union to prevail. Around the middle of June Peter conversed with employ- ee Wallace Johnson who believed Peter was the owner's son. Peter told Johnson that he knew how he was going to vote and that he might as well lay it out on the table so he could see where he was going. Peter also told him that "if the Union got in . . . the Hammonds might sell out, except trackmobile, and move it to Alabama.' On cross- examina- tion Johnson quoted Peter as stating, "Keep it under you In weighing the testimonial defense of the Respondent it is significant that Respondent President Jack A Handley testified for the Respondent that T L Hammond had not taken an active role in the election campaign but upon cross-examination testified that Hammond had handbilled and had participated in board of directors' meetings. 5 As noted by the court in Hendrix Mfg Co, Inc v N L R B, 321 F.2d 100, 104 (CA 5) When, as done here, an employer sets out to campaign against a union, one of the risks is that out of zeal, ignorance, or otherwise , foremen, supervisors, and similar representatives in championing the anti-union cause will overstep the mark. Thus it is understandable that those supervisors who observed T. L Ham- mond distributing handbills would have done their "thing" for the advance- ment of the employer's antiunion campaign 6 Peter testified that Johnson had asked him to tell him what the Company's policy was towards the Union . Peter refused and said, "I know how you stand You know you are for the union You know I am for the company So let's drop it " 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hat, but if the Union gets in, there is some chances that the Hammond family may sell out, all except trackmobile, and it will move to Alabama." Peter denied the statement. On the day of the election Peter engaged in a conversa- tion with employee Lemmie Cogar , sometime after Cogar had voted, in which the Union was a subject . Among other things Peter said to him, "I'll tell you and all the other people for the Union, there's the door and you can get out." Co ggar's boss, J. B. Noah, was in the vicinity . Peter turned to him and said, "If he is going to argue Union, send him home." Noah sent Cogar home . Cogar clocked out at 4 : 18 p.m. Had he not been sent home he would have remained at work until 4 : 30 p.m. Peter denied that he had told Noah to send Cogar home but admitted that he had engaged in a conver- sation with Cogar in which Cogar had defended the Union and he had defended the Company. According to Peter he waxed angry at Cogar's accusations against the Company and as Cogar picked up his equipment and started down the aisle he followed him. He caught him at the intersection of the trackmobile aisle and the general aisle where he told him that "he was not paid to downgrade the company policies and extol the values of the union. He was being paid as a welder." Peter was prepared to say more as Supervisor Noah approached . According to Peter, he said nothing to Noah and he heard Noah say nothing . Noah admitted that he had heard the phrase "downgrading of the company" but denied that he had sent Cogar home. On the day after the election Cogar heard Peter remark to a group of employees that his father wanted to know why "near half the people in the plant voted for the union." In judging the credibility of the foregoing witnesses the Trial Examiner has carefully noted the demeanor of all the witnesses. As to Peter Hammond , he appeared as a dissem- bler endeavoring to pretend truth by half truths . Moreover, the Trial Examiner is convinced that his fealty to his father and to his father's cause conditioned his testimony. The Trial Examiner finds that Peter made the remarks attributed to him. Additionally, the fact that Cogar clocked out 12 minutes prior to the end of his workday adds credence to the conclusion that he was sent home as he testified. This action taken as a reprisal by Foreman Noah for union talk, where there appears to have been no valid rule prohibiting union discussion, at the behest of Peter Hammond, was a clear violation of Section 8(a)(1) of the Act. Whether Peter Hammond's other activities described above were violations of the Act depends on whether Peter occupied a position in which employees were caused to believe that he was speaking for the employer . T. L. Ham- mond feared that the "personal opinions" of Peter "would be misconstrued as company policy," but neither he nor any other member of management neutralized this apprehen- sion by a disavowal of Peter 's ostensible agency. Employees were permitted to believe (as feared by T. L. Hammond) that eter's opinions were company policy. Such belief was further fortified in that Peter stood on the side of manage- ment in the union management controversy . Thus the Res- pondent knowingly placed Peter in a position, the natural consequence of which was to cause employees to believe that he was speaking and acting for management . Having r The credibility resolutions of the Trial Examiner have been derived from a review of the entire testimonial record and exhibits with due regard for the natural logic of probability, the demeanor of the witnesses , and the teachings of N. L R B v Walton Manufacturing Company, 369 U.S 404, 408 As to those witnesses who testified in contradiction to the Trial Examiner 's findings, the Trial Examiner has discredited their testimony either as having been in conflict with the testimony of credible witnesses or because it is in and of itself incredulous and unworthy of belief done so the Respondent may not claim immunity for the coercive effect of Peter's unlawful acts. See Phillips Indus- tries, Incorporate4 172 NLRB No. 232, affd. Clarke v. N.L. R.B., 410 F.2d 756 (C.A. 4); General Metal Products Compa- ny, 164 NLRB 64, affd. 410 F.2d 473 (C.A. 6), cert. denied 396 U.S. 830. The Trial Examiner finds that Peter Ham- mond was an agent of the Respondent within the intend- ment of Section 2(13) of the Act. The Trial Examiner further finds that the Respondent, by Peter Hammond's statement to employee Johnson that he knew how he was going to vote, created the impression of surveillance of union activities, and by his remark that if the Union got in that there is some chance that the Hammond family will sell out, except for the trackmobile which will be moved to Alabama, threatened a reprisal 8 for union affec- tion and thereby the Respondent violated Section 8(a)(1) of the Act. Peter Hammond's interrogation of employees on July 12 as to why "near half the people in the plant voted for the union" was likewise in violation of 8(a)(l) of the Act. Second: Activities of Supervisor Walter Banisak: During the first week of June, while Edward Goodwin was passing out union literature, Supervisor Walter Banisak asked him, "What do you guys want anyway?" Goodwin answered, "More money." Banisak continued, "If you want more money I will get you another job at another factory where you can make more money but you will all have to go to work." Around the middle of June while Goodwin was again distributing union literature, Banisak asked Goodwin "if Whiting was such a bad place to work why do so many of the guys who left want to come back" Banisak also commented that "some of the guys going to leave here if the union don't come in will want to come back." Banisak recalled the conversation but his version differed from that of Goodwin. He testified that he had asked Goodwin, "What's wrong with our insurance?"9 Third: Activities of Supervisor Peter Butkus: Approximate- ly 2 weeks before the election Supervisor Peter Butkus came to employee Coy Land's machine and asked him how the organizing drive was going. Land answered, "As far as I could see, it looked very good for the union at that time." Negotiations were discussed and Butkus said that negotia- tions were "like the union's taking a gun and putting it in the company's back, making their demands." Butkus compared negotiations "as similar to an organization at that particular time that was demanding money from the nu- merous church organizations." He added that "if people didn't like things at Whiting Corporation that they probably should go somewhere else. Butkus acknowledged the con- versation. While his version was somewhat different he tes- tified that he had asked Land, "Do you thing the union will make it this time." Land's version is credited. Fourth: Activities of Supervisor Eugene Bruggeman: Dur- ing the middle of June Superviosr Eugene Bruggggeman asked employee Wallace Johnson what was "bothering" him. During the conversation that followed Bruggeman re- marked, "Which would you prefer? A twenty cent raise or better insurance?"10 Fifth: The activities of Supervisor Matt Carvey: Employee Paul Sopko was a known union activist who participated in a number of incidents which the General Counsel claims 9 See N L R B v Gisse! Packing Co, 395 U.S 575 9 The Trial Examiner denied an amendment incorporating the above inci- dents in the complaint; however, it is the opinion of the Trial Examiner that the interrogations constitute interference with the election. 10 The General Counsel contends that the latter remark constitutes a prom- ise of a benefit. The Trial Examiner finds otherwise As to Eugene Brugge- man, the allegation in paragraph VI(c) of the complaint is dismissed. WHITING CORP. involved unfair labor practices . Sopko recorded these inci- dents in a notebook which was made available to the Respondent's counsel. Several of these incidents involved Supervisor Matt Carvey. The first occurred on May 22; Carvey came to Sopko's work area and said that fellows like W ko "didn't need a union." Carvey also commented, "w would it look if I pay a colored fellow the same as Webb and Green?" On June 3 Carvey approached Sopko's work area again and asked him "how the union was going and how the cards were going." Sopko named some "hopeful figure [150 cards].' Carvey replied, " . . you can't trust these guys. They will sell you out for a cockle or a dime.... It's lots easier to get them in than to get them out."" Several days later Carvey again appeared at Sopko's work station and again asked "how the union was doing." A discussion on union demands vis-a-vis company benefits ensued. The next day Carvey and Sopko engaged in a heat- ed discussion over the insurance program . During the dis- cussion Sopko remarked , "What are you coming around for? All the fellows see you coming around . Are you trying to paint a bad picture that we are real chummy , to scare the men off?" Carvey replied that he "only had one thing in mind ... the workers' welfare." According to Carvey, he asked Sopko "from time to time how the union was doing." Carvey said he was "interested in why the employees would want a union" and discussed with him improvements which the Union was seeking. Along this line he asserted that the employees' insurance plan and its wages were as good as an . n December Carvey was talking to several employees when Sopko approached . Carvey ceased the conversation and said, "Be careful what you say to this guy because every time that you say anything he writes everything down. Sopko asked, "What do you mean Matt?" Carvey answered, "Every time I say anything, you report me." Sopko said, " . if you are telling the truth , you ain't got nothing to worm about." Sopko bussed Carvey on the forehead and left.1 One or two weeks before the election Carvey remarked to several employees that if the employees selected the Union the Respondent would "probably move it to Alabama or Canada ' and that if the Respondent knew the employees who voted for the Union their `jobs would be through" if the Union lost. Carvey testified that he "asked the fellows if they had any stuff ready for shipment to go to Alabama," but denied stating that "most probably if you voted for the union the company would move to Alabama ." He did not specifically deny that if the Respondent knew the employ- ees who voted for the Union "theirjob would be through" if the Union lost. Carvey's denegation is not credited. Sixth: The activities ofSupervisor Gene Colbourn: On May 28 Supervisor Gene Colbourn among other things asked employee Robert Barnes what he "thought about the union situation." Barnes answered, " . . . it would do Whiting a lot of good." Colbourn responded that "he didn't thing that Whiting really needed a union" and that the employees "had pretty good benefits the way it was without having to pay union dues and stuff." Colbourn did not testify. Barnes is credited. Seventh: The activities of Supervisor Roy Estes: Two or 11 Carvey testified," I asked him how the union was going . He said, 'very good.' He said he's got about 60 percent of the cards signed . I passed a comment about that time that signing cards don't mean nothing They signed them just to have you get off their back.... I told him that I didn't trust unions either, because they will sell you out. . I also said that you have a bunch of crooked union officials " 12 The foregoing is the testimony of employee John J Wrobel which the Trial Examiner accepts as the best recollection of what transpired 503 three weeks before the election employee David Cizunas appeared at Supervisor Roy Estes' office to purchase a pair of safety shoes. Estes advised Cizunas that since the keys were not available he would have to wait until the following night to purchase the shoes. Estes added that if there had been a union at Whiting, Cizunas "would be sent home for not wearing safety shoes." On June 15 Estes remarked to employee William J. Sliep- ka, after a discussion had ensued over the transfer of an employee from a higher paying operation to a lower paying operation, that "in a union shop if a man was taken off a higher paying machine and put on a lower paying machine, his wages would be decreased to that lower grade scale." This was a deviation from the then practices in the plant. On July 11, shortly after employee Robert Barnes had voted, in passing Estes he asked Estes whether he had voted. Estes said that he "wished he could."13 He added that "Whiting didn't need a union" and that if Barnes "didn't like the waz it was at Whiting" he "should seek employment elsewhere. He said that ` the union was nothing but a bunch of crooks or grafters." Estes asked Barnes whether he knew Coy Land. Upon receiving an affirmative answer Estes said, "I wouldn't want to be in Cory [sic] Land's shoes." He added that "there was certain people around Whiting going to make it tough for him." Estes denied the foregoing specific conversation; howev- er he admitted that he had discussed the Union with several employees, that he told employees "Whiting didn't need a union to get the employees benefits," that the benefits in existence in Whiting now were sufficient," that he asked employees their opinions as to whether the Union would win or lose and how the election was coming along, and that he was "interested in the possibility of the election." The Trial Examiner discredits Estes' denials. Eighth: The activities of Supervisor Marion Michalski: During the month of January 1970 employee Edward Cow- en complained to Supervisor Marion Michalski about the cold in his section of the plant. At the time he was wearing union buttons on his heavy red flannel shirt. Michalski responded, "If you get rid of the buttons, maybe you will get heat over here." Michalski confirmed the incident ex- cept he quoted himself as saying, "By the way, if you weren't weighed down with all those buttons you ... would proba- bly tend to size better." (The references was to Cowen s job.) The Trial Examiner credits the version of Cowen as the more plausible description of the incident. Ninth: The activities of Supervisor J. B. Noah: On May 22 employees Ed Harter and Paul Sopko were talking. Supervi- sor J. B. Noah joined the conversation. Among other things Noah said that the Company was "behind in some things, but the company could take care of all that," that the em- ployees "didn't need a union." He also said the Company was behind in insurance and that "the company would-take care of things." Noah did not remember the conversation. The Trial Examiner considers Sopko to be a veracious wit- ness. Tenth: The activities of Supervisor Leonard Pikarski: About 6 weeks before the election employees Leonard Munson and Edward Cowen (who testified about the inci- dent set out below) with about seven other employees were "griping" as Supervisor Leonard Pikarski approached be- cause their hours had been cut down from 9 to 8 hours a day.14 According to Munson and Cowen, whom the Trial Exam- iner credits, Pikarski said that the Union would not get in because Supervisors Marion Michalski and Fred Willman 17 Estes admitted this remark 14 Testimony of Pikarski 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were in the routing office at that time "going through the boxes trying to find some more work" to put the hours up to 55. He said that the Company would "put [the employees] up on hours and maybe give [them] a nickel later on' and "everybody will be happy and not vote for the union." At the time the employees were working 45 hours a week; prior to the election the employees' hours were increased to 55 hours a week. 15 Eleventh: The activities of Assistant Personnel Director John Roberts: Around May 15 Assistant Personnel Director John Roberts asked employee Paul Sopko if he "had heard the union was gettin in." Sopko answered, "Yes" and add- ed that Sam Parish (a union representative) had made the statement that he would not give up until he had Whiting Corporation. Roberts admitted the conversation which he reported to Harley A. Bauch, personnel director. Twelfth: The activities of Supervisor Charles Walls: Em- ployee Paul Sopko described several incidents involving Su- pervisor Charles Walls, the first of which occurred about May 23. Employee Edward Goodwin and Sopko who were known to. Walls as union supporters 16 were departing for a coffeebreak during which they were going to "check on some of the newer men, on cards." Walls ordered Goodwin to return to his crane and Sopko to his work area. Walls remarked, "Two can play this game ... you are only allowed one coffee break." Sopko protested to no avail. Prior to this date the employees had enjoyed two coffeebreaks. Walls recalled the incident but denied he had said, "Two can play at this game." Around June 18 while employee Wally Wrobel was at Sopko's worktable Walls inquired of Sopko if he still thought the Union had a chance. Soppko answered, "Yes, bigger than ever." Walls turned to Wrobel and asked, "How about that Wally?" Wrobel answered, " Sure it is going to get in." Walls knew that Sopko was a union partisan. Walls admitted that he had asked Wrobel whether he thought the Union would win. On June 23 Walls approached Sopko and asked, "Do you really think that we need a union here?" Sopko answered, "Yes" "Why," Walls inquired. Sopko answered that the employees would achieve better insurance, better wages, better hospitalization, and 'better retirement. Walls re- sponded, "You are going to have to go on strike to get them." Sopko said that is what the Union has strike funds for. Walls remembered the conversation but specifically de- nied that he said that "the employees would have to go out on stake to get them, or those benefits." Around the 17th of June Sopko was at his work station with several employees. Walls told him that he really didn't need a union, that he had always been able to take care of himself. Walls asked him what he was after. Sopko an- swered, "Union representation." Walls' version of the con- versation differed. Around June 27, Walls asked employee Donald Fredrick- son, "What are you mad at the company for?" Fredrickson responded that he wasn't mad but felt that "wages should be such that everybody would know what the other person is getting." During the conversation Walls said he had been liberal in his welding tests and "indicated that were the union to get in that the men would be required to take a 15 In that the increase in hours to 55 was not alleged in the complaint as an unfair labor practice the Trial Examiner will make no 8(a)(1) finding in regard thereto However, it is the Trial Examiner's opinion that the effectua- tion of a 55-hour week, during the election campaign period, under the circumstances detailed above, constituted interference with the election 16 Walls learned that Sopko and Goodwin were union supporters on the last Monday in May when he returned to work after suffering a hip injury they told us," he testified. welding test every six months" and "if th ey failed it, they would have to wait another six months before they would have an opportunity." Walls said he was surprised at Frednckson's attitude and that he had never given him any problems. He said that he had "put in a raise" for him. Walls also said that "coffee breaks would probably be shortened." While Walls' version of this conversation differed the Trial Examiner credits Fredrickson.17 Thirteenth: The Trial Examiner considers that the shoving incident between employee Sopko and Supervisor Fred Willman which occurred while Sopko was passing union leaflets to be of such an innocuous nature that no findings are made in respect thereto. Fourteenth: (a) The Trial Examiner finds that by the inter- rogation of Supervisors Peter Butkus, Gene Colbourn, Matt Carvey, John Roberts, and Charles Walls above detailed, the Respondent interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed by Section 7 of the Act and thereby the Respondent violated Section 8(a)(1) of the Act. These interrogations which occurred in the context of other unfair labor practices were for the clear purpose of eliciting information in aid of the Respondent's antiunion campaign. Moreover, the Respondent has shown no proof that such questioning was pursuant to the Employer's legitimate business interests. Cf. N.L.R.B. v. Winchester Spinning Corporation, 402 F.2d 299 (C.A. 4). Apropos is the language of the court in N.L.R.B. v. Builders Supply Co. of Houston, 410 F.2d 606, 609 (C.A. 5), enfg. 168 NLRB No. 29, as modified: [The] interrogation was coercive since it took place in an atomosphere of active opposition to the union, Bourne v. N.L.RB., 332 F.2d 47, 48 (2d Cir., 1964), without explanation to the employees of the purpose of the questioning and under circumstances indicating that it had no legitimate purpose, Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754,758-759 (2d Cir., 1963), and was unaccompanied by any assurances against repris- als, see N.L.R.B. v. Lorbes Corp., 345 F.2346, 348 (2d Cir., 1965). ... for the test of interference, restraint, and coercion does not turn on the success of the conduct directed against an employee. It is a violation of the Act if the questioninng takes place under circumstances which impart to it a tend- ency to interfere with the free exercise of rights under the Act." Murray Ohio Manufacturing Co., 155 NLRB 239, 240. Moreover, the questioning "must be viewed and interpreted as the employee must have understood the question and its ramifications." Hughes & Hatcher, Inc., 393 F.2d 557 (C.A. 6). Thus the interrogations were clearly unlawful. (b) In the light of the entire record and in the context used the Trial Examiner finds that:18 17 In respect to the alleged conversation between Walls and employee Arthur Kropp the Trial Examiner is of the opinion that the General Counsel has not established that it occurred as alleged by a preponderance of the evidence 18 The Trial Examiner is well aware that hundreds of cases touch on the subjects of this Decision and among others has considered the cases cited by the Respondent, General Counsel, and Charging Party. The test of unlawful conduct under Section 8(a)(l) of the Act is whether "it may be reasonably said" that the conduct engaged in by the employer "tends to interfere with the free exercise of employees' rights under the Act " Time-O-Matic, Inc v. N L R B, 264 F 2d 96, 99 (C A. 7). As was said in Joy Silk Mills, Inc v. NLRB , 185 F 2d 732, 743-744, .. it has been consistently held that the question is not whether an employee actually felt intimidated but whether the employer engaged in conduct which may reasonably be said to tend to interfere with the free exercise of employee rights under the Act Moreover, "It is well established that illegal interference need not be successful to be accountable ." General Electric Co v. N L R B, 400 F.2d 713 (C A. 5) WHITING CORP. 1. The Respondent, by Supervisor Matt Carvey' s remark to employee Paul Sopko on May 22 that fellows like him "didn t need a union, impressed employees with the futility of choosing a union and thereby violated Section 8(a)(l) of the Act.19 2. The Respondent, by Supervisor Matt Carvey's remark to several employees I or 2 weeks before the election that, if the Union was selected, it would "probably move [the plant] to Alabama or Canada" and, if the Respondent knew the employees who voted for the Union, their `jobs would be through," threatened employees with reprisals if they selected the Union as their bargaining agent and thereby violated Section 8(a)(1) of the Act 20 3. The Respondent, by Supervisor Matt Carvey's repeat- ed approaches to employee Sopko, the leading union pro- tagonist, during the election campaign for the purpose of union discussions in full view of other employees inhibited employees in the exercise of rights guaranteed by Section 7 of the Act and thereby the Respondent violated Section 8(a)(1) of the Act 2l 4. The Respondent, by Supervisor Gene Colbourn's re- mark to employee Robert Barnes on May 28 that "he didn't think that Whiting really needed a union" and that the employees "had pretty good benefits the way it was without having to pay union dues and stuff," impressed employees with the futility of choosing a union as their collective- bargaining agent and thereby violated Section 8(a)(1) of the Act. 5. The Respondent, by Supervisor Roy Estes' remark to employee David Cizunas 2 or 3 weeks before the election that if the Union had been in Whiting he would have becit "sent home for not wearing safety shoes," implied a dep- rivation of a benefit if the Union were selected as the collec- tive-bargaining agent and thereby violated Section 8(a)(1) of the Act. 6. The Respondent, by Supervisor Roy Estes' remarks to employee William J. Sliepka on June 15 that "in a union shop if a man was taken off a higher paying machine and put in a lower paying machine, his wages would be de- creased to that lower grade scale," contrary to the Respondent's present practice, impressed employees with the loss of a benefit if the Union were selected as the collec- tive-bargaining agent and thereby violated Section 8(a)(1) of the Act. 7. The Respondent, by Supervisor Roy Estes' remark to employee Robert Barnes on July 11 that "Whiting didn't need a union," impressed employees with the futility of selecting the Union as their collective-bargaining agent and thereby violated Section 8(aXl) of the Act. 8. The Respondent, by Supervisor Roy Estes' remark to employee Barnes on July 11 that he would not want to be in "Cory [sic] Land's shoes," a known union partisan, be- cause certain people at Whiting would make it "tough for The Trial Examiner is convinced that the 8(axl) findings herein meet the test. In applying the test, of course, it must be reckoned that the employees, as workers, are dependent to a great extent upon the employer's sufferance and that the employees' response to the words spoken and action taken is that of a worker bound by his station in life, and circumscribed by his fears, hopes, and aspirations "[W]ords must be judged by their likely import to (an employer`s) employees. " Wausau Steel Corporation v N.L.R.B., 377 F 2d 369, 372 (C.A. 7). See also N L R B v. Trojan Powder Company. 135 F.2d 337, 339 (C.A. 3), where effect was given to the employer's statement as it was "capa- ble of being understood [by the employees].... even though the words are chosen with a fine sense of Victorian delicacy." 19 N.L R B. v. Bailey Co., 180 F.2d 278, 279 (C.A. 6); The Trane Co, 137 NLRB 1506, 1510; Brandenburg Telephone Co., 164 NLRB 825, enfd 408 F 2d 377 (C.A 6). 20 North Vernon Division of Thompson Inustries, Inc, 169 NLRB No. 62 21 Cf Hawthorn Company A Division of Kellwood Co, 166 NLRB 251 505 him," threatened employees with reprisal if they favored the Union and thereby violated Section 8(a)(1) of the Act. 9. The Respondent, by Supervisor Marion Michalski's remark to employee Edward Cowen during January 1970, to wit, "If you get rid of the [union] buttons, maybe you will get heat over here," impliedly promised a benefit for union disaffection and thereby violated Section 8(a)(1) of the Act 22 10. The Respondent, by Supervisor J. B. Noah 's remarks to employee Ed Harter and Paul Sopko on May 22 that the employees "didn't need a union" and that although the Corn pan^t was behind in some things it would "take care of all that,' impressed employees with the futility of choosing the Union as their coll ective-bargaining agent and promised employees economic benefits , and thereby violated Section 8(aXl) of the Act. 11. The Respondent, by Supervisor Leonard Pikarski's representation to employees about 6 weeks before the elec- tion that arrangements were being made to increase work- ing hours, impressed employees that an economic benefit would be given to discourage union activities and thereby violated Section 8(a)(1) of the Act. 12. The Respondent, by Supervisor Charles Walls' direc- tion to employees Edward Goodwin and Paul Sopko, known union partisans, about May 23 to refrain from a coffeebreak, together with the remark "Two can play this game," discouraged union activi by deprivin employees of a benefit and thereby violated Section 8(axl) of the Act. 13. The Respondent, by Supervisor Charles Walls' re- mark to Paul Sopko on June 23 that the employees would have to "go out on strike" to get better insurance, wagges, hospitalization, and retirement benefits, impressed employ- ees with the futility of choosing a union as their collective- bargaining agent and thereby violated Section 8(aX1) of the Act. 14. The Respondent, by Supervisor Charles Walls' re- mark to employee Donald Fredrickson that if the Union prevailed welding tests would be required every 6 months and those who failed would have to wait another 6 months for another opportunity to take the test, contrary to the employer's present "liberal" policy, threatened a reprisal if the employees chose the union as collective-bargaining agent and thereby violated Section 8(aXI) of the Act. Fifteenth: Having found that the Respondent engaged in violations of Section 8(aX1) of the Act between the date of filing the petition for the election and the date of the elec- tion, the Trial Examiner finds that the Respondent unlaw- fully interfered with the employees' exercise of a free choice for or against a bargaining representative. "Conduct viola- tive of Section 8(a)(l) is a fortiori conduct which interferes with the exercise of free and untrammeled choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786. The Trial Examiner finds that by reason of unlawful in- terference the election conducted on July 11 , 1969, should be set aside and held for naught 23 CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and(7) of the Act and it will effec- 22 Cf. Lexington Metal Products Company, Division of Fern Manufacturing Corporation, 166 NLRB 878. 2 "If an election were won by the employer through illegal conduct and in violation of law, the Union was wronged and it had a right to have such an election set aside "N.L.R B v. Plaskolite Inc, 309 F.2d 788, 790 (CA. 6). 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(ax 1) of the Act. 4. The Respondent unlawfully interfered with the repre- sentation electionconducted on July It, 1969; said election should be vacated and another election directed. 5. All production and maintenance employees of the Whiting Corporation at its Harvey , Illinois, plant but ex- cluding office clerical employees, expediters, laboratory em- ployees, professional employees, guards and supervisors as defined in the Act, as amended, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.24 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE RECOMMENDED REMEDY 25 It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. The Trial Examiner further recommends as requested by the General Counsel that Lemmie Cogar be reimbursed for wages lost, in accordance with the Board's usual practice, when Cogar was unlawfully sent home 12 minutes early on July 11, 1969. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law and upon the entire record in this case, it is recommended that the Respondent, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of their rights of self-organization by threats of reprisals, promises of benefits, or withholding of benefits. (b) Unlawfully impressing em loyees with the futility of selecting the Union as their collective -bar aining agent. (c) Unlawfully creating the impression of surveillance of em loyees' union activities or desires. (d) Unlawfully interrogating any of its employees as to their union activities. (e) In any other related manner interferin with, re- straining, or coercing its employees in exercise of'gtheir rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effec- tuate the policies of the Act: (a) Reimburse Lemmie Cogar in accordance with the recommendation set forth in the "Recommended Remedy" herein. (b) Post at its Harvey, Illinois, lant copies of the attached notice marked "Allpendix."26 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith?? IT IS FURTHER RECOMMENDED that the election conducted herein on July 11, 1969, be vacated and set aside and that a second election by secret ballot be conducted among the employees in the unit found appropriate, at such time as the Regional Director for Region 13 deems appr nets. It is recommended that the Regional Director shall direct and supervise the election subject to the National Labor Rela- tions Board Rules and Regulations. IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act, other than those found in this decision. 24 This unit was incorporated in the stipulation for certification upon con- sent election executed by the parties and approved by the Regional Director. 25 The Charging Party requests that the Trial Examiner recommend a bargaining order rather than a second election . However, the Charging Party suggests that "should there be a question concerning the majority status of the Union, and the closeness of the election not form the basis for a bargain- ing order, the Board may make an administrative determination of the status of the authorization cards in the custody of the Regional Director, 13th Region, National Labor Relations Board , which cards will evidence such majority status " But, if majority status exists based upon a card count a different criterion is applied, for the Supreme Court has said: "The Board's authority to issue such an order [bargaining order] on a lesser showing of employer misconduct is appropriate , we should re-emphasize, where there is also a showing that at one point the Union had a majority." NL.R.B. v. Gissel Packing Co, 395 U.S 575. The Board's Rules and Regulations do not provide for a Trial Examiner's making an administrative determination of the status of authorization cards. Thus, although ment may be found in the Charging Party's request for a bargaining order, the Trial Examiner for this reason refers the Charging Party's request for a bargaining order remedy to the Board. 26 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 National 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." 27 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 WE WILL NOT interfere with the rights of our employ- ees to engage in union activities or choose a union as a bargaining agent by threats of reprisals, promises of benefits, or withholding benefits. WE WILL NOT unlawfully interrogate our employees about their union activities. WE WILL NOT unlawfully * ress our employees with the futility of selecting the Union as their bargaining agent. WE WILL NOT indicate in any way that we are keeping ourselves informed concerning our employees' union activities or desires. WE WILL NOT send our employees home for lawfully WHITING CORP. talking in favor of the Uilion and will reimburse Lem- mie Cogar for wages lost because we sent him home for talking in favor of the Union. WE WILL NOT deprive our employees of benefits if they lawfully wear union buttons. The Act gives all employees these rights: To organize themselves to form, join, or help unions To bargain as a group for the representatives they choose To act together for collective bargaining or oth- er mutual aid or protection To refuse to do any and all of these things All of you are free to become or remain or refrain from becoming or remaining members of any labor organization including United Steelworkers of America, AFL-CIO. WHITING CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312- 353-7572. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: Pursuant to an order of the National Labor Relations Board consolidating Case 13-CA-9366 with Cases 13-CA-9250 and 13-RC-11866' (in which latter cases the Trial Examiner had issued a deci- sion on April 7, 1970), and reopening the instant proceed- ings, this matter came on for hearing on June 8, 9, 10, and 11, 1970, at Chicago, Illinois. Each party was afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered by the Trial Examiner.2 In its Order the Board provided that: (Ulpon the conclusion of such hearing, the Trial Exam- iner shall prepare and cause to be served on the parties of supplemental decision containing any additional findings of fact, conclusions of law, and recommenda- tions based on the evidence received pursuant to the provisions of this Order, and that following service of such supplemental decision upon the parties, the pro- visions of Section 102.46 of the Board's Rules and Reg- 'Upon motion of the Charging Party, joined in by the General Counsel, the Trial Examiner ordered Case 13-RC-11866 severed from Case 13-CA- 9250 and Case 13-CA-9366 and remanded Case 13-RC-11866 to the Re- gional Driector for Region 13. 2 A part of the Board's Order provided that "the consolidate proceeding be remanded for hearing before Trial Examiner Lowell Goerlich for the purpose of receiving additional evidence on the allegations of the complaint, as amended, issued in Case 13-CA-9366 " 507 ulations, Series 8, as amended, shall be applicable to the filing of exceptions and brief to the supplemental decision as well as to the Trial Examiners Decision dated April 7, 1970, as corrected. The sole issue raised by the complaint in Case 13-CA- 9366 3 is whether the alleged involuntary retirement of Cent- rell Wilson, an overhead crane operator, on September 17, 1969, was effectuated by the Respondent for the purpose of discouraging membership in a labor organization in viola- tion of Section 8(aX3) of the National Labor Relations Act, as amended, herein referred to as the Act. Upon the whole record and upon his observation of the witnesses the Trial Examiner makes the following: FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR The Respondent's Employees' Retirement Plan provides that the "Normal Retirement Date of an Employee shall be the last day of the calendar month coincident with or next following the date on which he attains age sixty-five.... Upon attaining his Normal Retirement date every Emplo - ee shall thereupon be retired from employment with the Company, unless the Company permits him to continue in its employment thereafter and he does so continue." Centrel Wilson, who was born on May 9, 1903, reached his 65th birthday in the year 1968. As was the Respondent's policy he was interviewed by Personnel Director Harley Bauch in reference to his benefits in the retirement plan sometime during his 64th year. At such time the benefits under the plan were explained to him. Apparently Wilson was not ready for retirement for he requested that he be permitted to work an additional year. Bauch granted the request on condition that there would be availability of work and that he would retain the ability to do the job a In June 1969 Wilson joined the Union. He attended ap- proximately three union meetings. At a June 1969 meeting Wilson circulated a pay stub among the employees attend- ing, reflecting a pension payment which his brother had received from Allis-Chalmers, a plant organized by the Un- ion. Wilson told the employees present that he thought that "it was quite nice to receive that much." Wilson later took the check stub to the Employer's plant where for 3 days it was exhibited to employees by Wilson and employee Sopko. Wilson also carried a pencil in his shirt pocket, attached to which was a clip bearing the words "Go Go Steel Workers." Many other employees carried like clips, some of whom were not unit employees. Additionally Wilson engaged in union discussions with other employees. Such was the scope of Wilson's union activities .5 On June 11, 1969, "your In-Plant Committee" distributed a leaflet in which, among other things, appeared: Pension-A.C. and Bliss do have a $6.50 x years plan. Get an A.C. contract and look at page 38, par.222 (a) and see for yourself. They have a $400.00 age 60 plan, look at page 39, par. 222 (G). Mr. Wilson, a Janitor, is receiving a pension of $362.00 a month from the Pen- 3 The charge in Case l3-CA-9366 was filed by the United Steelworkers of America, District 31, Sub-Dis 5, herein referred to as the Union, on Septem- ber 22, 1969, and served upon the Respondent, Whiting Corporation, on September 23, 1969. Wilson testified that Bauch said as long as he was doing a good job and there wasn't and "kick" on his work he could stay until July 1970, a month after his son was to be graduated from high school. S Employee Henry Clyde Holly testified that he had discussed the check stub with Supervisor John W. Campbell and Campbell had admitted that he had seen the stub . Campbell denied Holly's testimony. Joe Kutt admitted that he had seen the pencil clips but denied any knowledge of the check stub incident as did Bauch 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion Plan for 27 years of service. Check! his check was shown to the group. According to Sopko,lie passed a copy of the leaflet to a representative of management. The pension issue was commented upon frequently by both the Union and the Respondent during the election campaign. Wilson continued to work for the Respondent until Sep- tember 17, 1969. After January 1969 he commenced slip- ping in his operation of the overhead crane, a job which he had been filling for 13 years, in the structural sho. Accord- ing to Bauch he had received reports from Suppervisors Campbell and Kutt and Safety Director Mackie that Wilson's ability as a crane operator was deteriorating ("the fact that he was creating hazards"). Campbell reported to Bauch, "We are going to have to do something with Wilson. He is liable to Burt someone." " Among other incidents, Mackie reported the Kimbro incident to Bauch.6 Kutt re- ceived complaints about Wilson's work performance from several employees. Employee Frank Kimbbro, the employee who had received the injury noted above, remarked to Kutt, "Joe, you better do something about that man up in the crane.... He is going to hurt somebody." Around 8:30 a.m., on September 17, 1969, Wilson was engagged in lifting a trackmobile frame. A trackmobile frame weighs' between 500 and 1,200 pounds. In order to elevate it by crane two plate hooks are attached to each side of it. These are attached to chains extending from the crane's trolley. In that the frame is higher on one side and lies off balance, one hook is placed lower than the other causing slack in one of the chains. Thus, as the chains are pulled up one chain becomes taut before the other. As the latter chain becomes taut a "jerk" is caused. At this point, if the trolley is not properly centered over the frame, the frame, as it leaves the floor, will swing to and fro. Floormen place the hooks and hold them to the frame until the chains become taut, whereupon they step aside and the frame is lifted from the floor. Crane operator Henry Clyde Holly described the process and how a competent crane operator would perform the lift of a trackmobile frame, " . . you would pick it up slow by pullin the hoist up and not holding it. You hold it until about all the slack is out of it, then you stop it. Then you start up again. And after you get it up even ... though by you taking it slow like that, with it one sided , its going to jerk anyway.... One chain is taut, the other is loose when it sets up straight itself, mostly comes up itself, and it straightens itse up and jerks." On September IF, 1969, H. Andy Hashin and Paul Kime- ro were the floormen. After the hooks were placed on the trackmobile, Hashin motioned to Wilson to make the lift. The trolley was not centered over the load and the load swung toward the side where Hashin was located. He jumped in order to avoid a collision with the frame. Hashin looked up at Wilson and shouted "G---d--- it, what's the matter with you? Can't you see?" Wilson "just grinned." Hashin reported the incident to Supervisor Kutt remark- ing, "By G---, Joe, if you don't do something about this guy Wilson, I am going to the front office. I'm not going to get hurt." Kutt said he would look into it and again talk with Hashin. Later Kutt contacted Hashin at which time Hashin said, "My G--, Joe, I will have to quit. I don't want to get killed. I don't want to get crippled up." About noon Kutt 6 During the winter prior to Wilson's retirement, Wilson "plopped" a load over Frank Kimbro Kimbro was required to attend first aid; an ice pack was placed on his foot. called Bauch and told him that they would "have to have a little talk with Wilson." Kutt and Wilson met with Bauch around 2:30 p.m. When Kutt informed Wilson of the meet- ing Wilson said, "I suppose it's about Hashin." Wilson's version of the meeting is as follows: Bauch said that "it seemed like [Wilson's] work wasn't satisfactory. Re- flex was gone" and that he could not "operate like [he] had been operating." Bauch advised Wilson that it would be better for him to retire; that it would be for his best interests. Wilson asked whether he could "go on a broom or some- thing" until July 1970. Bauch replied, " .. , we ain't got nothin like that much now. We want to save it for the other men." Bauch said that he had nothing Wilson could do. Wilson responded, "I might as well retire right now." Bauch explained Wilson's pension benefits. Wilson signed Pension Form 2 dated September 17, 1969, which provided for pension payments of $108.76 a month and a lump sum benefit in the Profit Sharing Trust of $6, 942.54 as of "9/30/69." Wilson signed under the language, "It is my desire to retire effective September 17, 1969." According to Bauch when Wilson and Kutt appeared in his office he related the incident involving Hashin and stat- ed that he had heard of other instances which indicated Wilson's ability to operate a crane was deteriorating. Wilson responded, "It looks like I better retire. I think I will retire right now." Bauch asked Kutt what he thought. Kutt re- plied, "Harley, you have the situation" and left. Bauch then obtained Wilson's file and discussed his pension benefits with him. Wilson signed the retirement form above noted. At the time the amount of his profit-sharing benefit had not been computed. Wilson started out of the room but imme- diately returned and said "I would like to work longer." Bauch said that he could not grant the request. Bauch testified that he was a member of the Safety Com- mittee and that at the time Wilson appeared at his ofice the Company was "superconscious" over the subject of safety because one of the Company's service department engineers had lost his life in July 1969, through an accident in the plant. Bauch said that he had first planned to submit Wilson's case for an evaluation' to the Safety Committee which was composed of Bauch, the plant manager and the safety direc- tor, but that Wilson's decision to retire rendered that unnec- essary. ch denied that during the retirement interview with Wilson union considerations had been weighed. According to Kutt, Bauch talked to Wilson about his performance and that he was "getting a lot of reports. 11 He talked about safety and the Hashm incident. Wilson commented, "Looks like they don't want me around here. I might as well retire." Bauch asked Wilson when he intend- ed to retire. He answered, "Right now." At this point Kutt left the meeting. The Trial Examiner is of the opinion and finds that even though the evidence was construed most favorably to the General Counsel, the General Counsel has not established by a preponderance of the testimony that the Respondent has committed the unfair labor practices charged in the complaint. Accordingly, the Trial Examiner recommends that the complaint in Case 13-CA-9366 be dismissed in its entirety. 7 If the Safety Committee's evaluation required that an employee be re- moved from his job for safety considerations, it was the policy of the Compa- ny to try to effect a transfer for the employee if he had "value as far as the Company was concerned, and he was under retirement age." Wilson did not avail himself of a Safety Committee evaluation.