D. H. Baldwin Co.

D. H. BALDWIN COMPANY 25 D. H. Baldwin Company and UBC, Southern Coun- cil of Industrial Workers, AFL-CIO-CLC. Cases 26-CA--4406-2,26-CA-4435-2, and26-RC-42551 November 7, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 16, 1973, Administrative Law Judge Phil Saunders ' issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, and finds merit in certain of the General Counsel's exceptions. Accordingly, the Board has decided to affirm the rulings, findings,2 and conclu- sions of the Administrative Law Judge to the extent they are consistent herewith, and to adopt his recommended Order as modified herein. The complaint alleges, inter alia, that Respondent discriminatorily denied employee Dorothy Shadell a downgrade in work assignment and thereafter discharged her because of her union activities in violation, of Section 8(a)(1) and (3) of the Act. Respondent contends that Shadell's discharge was for cause and thus not violative of the Act. The Administrative Law Judge found that General Counsel had failed to establish that Shadell was discharged because of her union activities. We disagree. The facts surrounding Shadell's discharge can be summarized as follows: Respondent is engaged in the manufacture of pianos at two plants in Conway, Arkansas. On October 4, 1971, Shadell was hired in labor grade 1, at a rate of $1.80 per hour. Her initial job assignment was punching, drilling, and pinning bridges in department 317, termed the "pin and bridge depart- ment." During her first 5 months of employment, there were no complaints about her work and she received a satisfactory job rating from her group leader, Glynn Free. She was accordingly advanced in 1 The case caption appears as corrected by Board Order of January 26, 1973. 2 Contrary to our dissenting colleague, we do not find the evidence to be uncontradicted as to what Plant Manager Cornwell told employees during his June 2 speech Cornwell testified that he'read his remarks from a prepared text and the Administrative Law Judge so found. Having reviewed pay to the top rate of $2.05 per hour for her labor grade. The Union began organizing Respondent's Con- way plants in late 1971 or early 1972. Shadell was an active union supporter from the beginning of union activity. She signed a card in January and distributed union cards to other employees. She openly solicited signatures for the Union in the eating and break areas of Respondent's plant. Both before and after her transfer in March 1972, Shadell placed a keychain with a union emblem on the outside strap of her handbag and routinely placed the handbag in an area where both the bag and union emblem could be easily seen by supervisors and other employees. On May 5 she openly distributed union handbills in front of the plant, and Personnel Manager Black observed her soliciting employees for the Union. Shortly before her discharge Respondent Production Manager Thines conceded knowledge of her union activity in stating to employee Sullivan, who had threatened to get a union card from Dorothy Shadell if she did not get a raise, "they knew that Dorothy had union cards." On the basis of this evidence we find, contrary to the Administrative Law Judge, that Respondent clearly knew of Shadell's union activity before and after her transfer to falls assembly. In early February 1972, Respondent began expressing its opposition to the Union through speeches delivered to employees by Plant Manager Cornwell. In March 1972, Production Manager Thines transferred employee Dorothy Shadell from its pin and bridge department, to its upfitting department, where she was placed in labor grade 2. Shadell agreed to the transfer but informed Thines that she wanted to return to her present job if she could not meet the production standards. Shadell was then assigned to making falls, which are components to cover piano keyboards. Approximately 1 week or 10 days after her initial transfer, Shadell was reassigned to the job of assembling falls,and lower frames to pianos in the same department. The assembling job was admittedly more difficult, as demonstrated by the fact that other employees had difficulty perform- ing it satisfactorily. On the day after her reassign- ment, Thines and Cornwell asked Shadell how she liked her new job. She replied that she did not,like it. Thereafter, until her discharge on May 26, she continued to make known her dissatisfaction with her new job, and, as other employees had done in the past, requested a voluntary downgrade to her old department. Both Cornwell and Thines denied the prepared text, we find that it did not contain any threats of reprisals if the employees voted for the Union. At most it was an expression of the Employer's opposition to the Union. Accordingly, we do not find that the Employer's June 2 speech constituted an independent violation of Sec 8(a)(I). 207 NLRB No. 34 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shadell's request, stating they felt she could make out. However, on April 6, Thines complained to Shadell about her slow progress and poor quality work. Thines repeated his complaints on April 27 and May 3 and threatened her with discharge if she failed to reach the 100-percent production standard by May 12. At this time, according to Free's uncontradicted testimony, there were openings in his department (labor grade 1) and in another department. When Free suggested to Thines that Shadell could fill such vacancy, Thines agreed that it looked like Shadell would come back to her old department. However, sometime in May Thines decided not to follow Respondent's regular practice and on May 12 again informed Shadell that she would be discharged if she did not meet 100-percent production by May 26. On May 26, approximately 4 weeks before the scheduled representation election, Thines informed Shadell that, inasmuch as she failed" to reach 100 percent, she was being terminated. Thines gave Shadell no other reason for her discharge. However, during the course of the hearing, additional reasons were advanced by Respondent, including Shadell's poor quality work, and continual and excessive visiting and talking with other employees on her post. In these circumstances we find contrary to the Administrative Law Judge, that in discharging Shadell instead of allowing her to return to her former job and labor grade, the Respondent accord- ed her disparate treatment in comparison with other employees because of her union activity, and used her failure to achieve 100-percent production and its belatedly advanced other reasons as pretexts to cloak its discriminatory motive for her discharge. In finding that Shadell failed to make 100-percent production, the Administrative Law Judge relied on documentary evidence showing Shadell's production performance over 12 weeks from March 6, 1972, to May 26, 1972, which establishes a weekly perform- ance range for her of from 31 to 76 percent, or an average over the entire period of about 49 percent. However, when Shadell's performance is compared to the performance of five other employees, whose performances were regarded by Respondent as satisfactory, in the same job over comparable periods, the record reveals that two of them only reached the 100-percent weekly production quota once, one of the five reached it but twice, and the remaining two employees, like Shadell, never achieved the required weekly production goal. Furthermore, Shadell's performance range as de- scribed above, is not markedly different from the performance of employee Anthony, one of the five whose performance is compared to hers, whose weekly performance ranged from 23 to 87 percent for an average of 60 percent over the. period he was in the job. Respondent's personnel records also reveal that two employees, Havens and Fortner, were placed in labor grade 2, falls assembly, on March 3, and that, after experiencing learning difficulties, they were downgraded to a labor grade I job. The disparity in Shadell's treatment from that of Havens and Fortner, who were retained in Respondent's employ, is even more obvious considering Shadell's repeated requests for downgrading to her old department and the availability of such work. As the Administrative Law Judge found, during Shadell's initial 6-week period on falls assembly, she made repeated requests for a voluntary downgrade, each of which was denied by her superiors on the grounds that they "knew" she could make it. This expression of confidence by Thines and Cornwell was consistent with their continuous praising of Shadell, even though the record now reveals that they were making unfavorable entries in her person- nel file. Further, Free's uncontradicted testimony reveals that, approximately 4 weeks prior to Shadell's discharge, a labor grade I vacancy occurred in his department^and that job remained unfilled except for Respondent's "pulling different operators off differ- ent jobs in order to make sure that the work functions of the job were performed." When on several occasions, Free asked Thines to return Shadell to this position, Thines told him to "just hold on" because he, Thines, thought Shadell would be transferred back to Free's department. In our view, the above uncontradicted evidence showing disparate treatment of an unabashed union supporter, was not adequately considered by the Administrative Law Judge in arriving at his decision that Shadell's discharge and Respondent's failure to transfer her back to a lower labor grade, were consistent with Respondent's past practice. Respon- dent's awareness of Shadell's union activity and its opposition to the Union, as expressed in speeches of Plant Manager Cornwell to employees, prior to and after Shadell's transfer, show that Respondent, in refusing to transfer Shadell from a job which was admittedly difficult to perform and in making contradictory personnel file entries, was preparing a case for discharging her because' of her union activities. In reaching this conclusion we do not rely solely on the disparate treatment accorded Shadell compared to other employees similarly situated who were permitted to accept a lower job assignment rather than be discharged-an option denied Shadell. Rather, our findings are based on the entire record in this case, which shows Shadell's open and vigorous activity on behalf of the Union, Respondent's D. H. BALDWIN COMPANY obvious opposition to the Union, its knowledge of her efforts for the Union, the inconsistency of its behavior toward her in relation to other employees, its disregard in Shadell's case of a long-established business practice or reassigning employees perform- ing unsatisfactorily without discharging them, and the shifting and contradictory reasons advanced subsequent to her discharge. Accordingly, we find that Shadell was not dis- charged for the reasons advanced by the Respon- dent, but that her discharge would not have occurred absent her union activities, and thus violated Section 8(a)(3) and (1) of the Act. In so finding, we also conclude that Respondent's failure to honor Sha- dell's request to be returned to her old job which was then available, and in which she had performed satisfactorily, constituted additional violations of those sections of the Act. Objections to the Election3 As the discharge of Shadell, which was alleged by the Union to be objectionable conduct, occurred during the preelection critical period, we find that the discharge interfered with the conduct of the election. Therefore, we shall also set aside the election conducted on June 29, 1972, and direct that a second election be held in Case 26-RC-4255. CONCLUSIONS OF LAW Consistent with our findings herein, we shall add the following conclusions of law and renumber the Administrative Law Judge's conclusion of law numbered 5 as 7, while adopting his conclusions of law numbered I through 4. "5. By discharging employee Dorothy Shadell because of her union activities, and refusing to,let her return to her old job as she requested for the same reason, Respondent has violated Section 8(a)(3) and (1) of the Act. "6. Objection IX to the election of June 29, 1972, is sustained." THE REMEDY Having found that Respondent has engaged in certain additional unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the purposes and policies of the Act besides that already set forth in the remedy section of the Administrative Law Judge's Decision. In addition to adopting the Administrative Law Judge's recommended remedy in - all other respects, 3 The representation case was consolidated with the unfair labor practice cases after the Board directed a hearing on the objections to the election. 27 we shall order Respondent to offer Dorothy Shadell immediate and full reinstatement to her former job in labor grade 2 or, if she so requests, to her former job in labor grade 1, or, if such jobs no longer exist, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her in the manner set forth in the section of the Administrative Law Judge's decision entitled "The Remedy" with interest thereon at 6 percent per annum. ORDER Pursuant to Section 10(c) of the- National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, D. H. Baldwin Company, Conway, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following paragraph as paragraph 2(a) and reletter the remaining paragraphs accord- ingly: "(a) Offer to Dorothy Shadell immediate and full reinstatement to her former job or, upon her request, to the job to which she would have been transferred back to, absent the unlawful discrimination against her, or, if such jobs no longer exist, to a substantially equivalent position, without prejudice to her seniori- ty or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her in the manner set forth in this Decision, with interest thereon at 6 percent per annum." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on June 29, 1972, in Case 26-RC-4255 be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER FANNING, concurring and dissenting in part: I agree with the reversal of the Administrative Law Judge's conclusion concerning the discharge of Dorothy Shadell and that a second election should be held, and join fully with my colleagues in their disposition of these issues. I dissent, however, from the majority's affirmance of the Administrative Law Judge's, finding that 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in its speech of June 2 did not threaten employees with discharge because of their support for the Union. Eight employees testified without contradiction that Plant Manager Cornwell said during the course of that speech that Respondent would get rid of the "union pushers" and "trouble- makers" after the election of June 29. Although Cornwell testified that he read from a prepared text, he did not deny that he answered questions nor did he deny the statements attributed to him by these employees. One employee testified that Cornwell added, in response to a question, that there were a lot of employees at Baldwin "that couldn't afford to be out of work." Another employee testified that when Cornwell mentioned troublemakers he added that the employees could look around and see who they were. Two employees testified that Cornwell said that Respondent would replace or get "union pushers" out of there. In the face of this consistent and overwhelming evidence the Administrative Law Judge found, and the majority agrees, that Cornwell was referring only to union outsiders, not employees, even when he admittedly told the employees that after the election, if the Union lost, they would "run the union troublemakers out of here once and for all." In my opinion, this finding is clearly erroneous. The evidence shows, and I would find, that Cornwell in his June 2 speech threatened to get rid of union supporters and this threat included Respondent's prounion employees. Accordingly, I dissent from the finding that such conduct was not violative of Section 8(a)(1) of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government suffered by reason of our discrimination against him together with interest thereon at 6 percent per annum. WE WILL NOT interrogate employees as to their feelings about the Union or as to union activity. WE WILL NOT discharge or otherwise discrimi- nate in regard to the hire and tenure of employ- ment or any term or condition of employment of our employees because of their membership in and activities on behalf of the Union herein or of any other labor organization of their choice. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, including the Union herein, to bargain collectively through a bargain- ing agent chosen by our employees, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activities. D. H. BALDWIN COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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, 3511 Federal Building, 700 West Capitol Avenue, Little Rock, Arkansas 72201, Telephone 501-375-5512. DECISION WE WILL offer to Dorothy Shadell immediate and full reinstatement to her former job or, upon her request, to the job to which she would have been transferred back to, absent the unlawful discrimination against her, or, if such jobs no longer exist, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, with interest thereon at 6 percent per annum. WE WILL offer Glynn Free his former overtime job or, if such job no longer exists, a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we will pay him .for any loss of pay he may have STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Judge: Based on charges filed by UBC, Southern Council of Industrial Workers, AFL-CIO-CLC,1 herein referred to as the Union, a complaint against D. H. Baldwin Company, herein the Company or Respondent, was issued on August 25, 1972,2 alleging violations of Section 8(a)(1) and 8(a)(3) of the National Labor Relations Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged unfair labor practices. A hearing in this proceeding was held before me, and both the General Counsel and Respondent filed briefs. 1 The charge in Case 26-CA-4406-2 was filed by the Union on July 7, 1972, and the charge in Case 26-CA-4435-2 was filed by the Union on August 1, 1972. 2 All dates are 1972 unless specifically stated otherwise. D. H. BALDWIN COMPANY 29 Upon the entire record in this case, and from my observation of the witnesses and their demeanor, I make the following: 3 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation with an office and plants located at Conway, Arkansas, where it is engaged' in the manufacture of pianos. During the past 12 months, Respondent received at its Conway, Arkansas, location goods and materials valued in excess of $50,000, directly from points outside the State of Arkansas, and during the same period Respondent sold and shipped from its Conway, Arkansas, plant goods and materials valued in excess of $50,000 directly to points located outside the State of Arkansas. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issues in this case are the following: Whether the Respondent discriminated against Glynn Free because of his union activities; whether the Respondent discharged Dorothy Shadell on May, 26 because of her union activities; whether the Respondent threatened employees with discharge in a speech given on or about June 2; and whether Respondent coercively interrogated an employee concerning union activity. The Respondent operates two plants, one designated as plant A and the other plant B in Conway, Arkansas. Both plants are engaged in the assembly of pianos and have a combined complement of approximately 250 employees. The Union began an organizing campaign among employ- ees at the two Conway locations in late 1971 or early 1972, and on May 15 filed a petition seeking a unit of production and maintenance employees. In accordance with a Stipula- tion for Certification Upon Consent Election, an election was held among employees in the unit on June 29. The Union failed to receive a majority and thereafter filed numerous objections to the election. In due course, all of the objections except three were overruled, and these three objections now constitute part of the allegations in the instant complaint before me. It is alleged that the Respondent's personnel manager, Milmo Black, interrogated an employee as to her union activity. Employee Voye Davidson testified that sometime in March she had a conversation with Black at a doctor's office, and credibly testified that during this conversation Black asked her how she felt about the Union.4 Plant ^ Manager John Cornwell made speeches to the employees on February 9, June 2, and June 28. The 3 All credibility resolutions made herein are based on a composite evaluation of the demeanor of the witnesses and the probabilities of the evidence as a whole, 4 Manager Black recalled driving Voye Davidson to the doctor for complaint alleges that in his second talk or speech on June 2 he threatened employees with discharge. Cornwell testified that all three speeches, including the June 2 speech, were prepared ahead of time, typed out on index cards, reviewed prior to being given, and then were given in front of employees of both plants with the use of a podium. He said that all the speeches were read as written and without any deviations. Cornwell stated that he attempted to give his reading the appearance of spontanei- ty by looking up at his audience, and that he was able to pursue a degree of direct contact with his audience and still follow the text because he made extensive prior reviews of the speech. Glynn Free testified that during the June 2 speech Cornwell said that "he would, after this election, get rid of all union pushers and troublemakers," and in response to further questions testified that Cornwell also told employees that "there was a lot of employees out here at Baldwin that couldn't afford to be out of work." Martha Bunch said that, at the second speech on June 2, Cornwell told employees that "as soon as it was all over they were going to get rid of the union pushers and the troublemak- ers." Edith Robertson testified that at the second speech Cornwell said that "he didn't like unions and he didn't want one, and he would get rid of the Union and the union pushers and the troublemakers after June the 29th." William Spears related that Cornwell told them that "all the union pushers would be replaced," and also said that Cornwell was talking about "troublemakers" on the occasion and that the employees could look around and see who they were. Martha Clements testified she recalled Cornwell stating he wanted the employees to vote no in the election, and, if the Union lost the election, "... we would get rid of these union pushers and all of these troublemak- ers." Clements also testified she recalled Cornwell looked directly at her at the time he made the latter statement, and said that she had been active along with Shadell in promoting the Union. Othelia Barnett remembers Corn- well stating in his speech on June 2 that he thought it best to have the election before vacation and then he could "get rid of all the union pushers and trouble makers." Doncella Percell said that in early June Cornwell told them that "if they voted no they wouldn't have to worry about strikes, and if they voted no they'd get rid of the union pushers and troublemakers once and for all." Pat Hall remembers that on the occasion here in question Cornwell told the employees that "after the ' election all the union pushers and troublemakers would be gotten rid of." Wanda Williams said she recalled that Cornwell stated during the course of the second speech that "they would get the union pushers out of there if didn't go , in." According to Tom Waller, Cornwell told plant A employees during his June 2 speech to vote no in the election and "We'll get rid of these union pushers and troublemakers, once and,for all:' Cornwell's written speech on June 2 contained several statements as to the upcoming election, and then he admittedly went on to say: "This is a serious question and I want you to give it a lot of serious thought. Personally, I removal of a foreign body from her eye. Black admitted talking with Davidson on numerous occasions, but denied talking or inquiring about union activity. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believe an overwhelming majority of you will vote No on June 29th and run the union troublemakers out of here once and for all."5 This appears to be the language in question, and the basis of the controversy. Even when testifying on direct examination as to what Cornwell said on June 2, several of the witnesses for the General Counsel gave, somewhat conflicting testimony, as aforestated, but, when further asked on cross-examination as to whether Cornwell said or used the above admitted words in his speech of June 2, several employee witnesses responded as follows: "Similar to that"-"I don't re- call"-"The best I can remember he said something like that." Eldon Spears admitted that Cornwell had papers in his hand but was not looking at his notes "all the time." Martha Bunch agreed that "at times" Cornwell was reading from his notes, and Edith Robertson remembered that Cornwell had "some papers" on the stand before him. On cross-examination, Doncella Percell believed that Cornwell looked down from "time to time" while making his speech. Pat Hall also recalled that Cornwell had papers with him, as did Othelia Barnett. From a detailed review of this record and the testimony in relation thereto, it appears obvious to me that Cornwell delivered his June speech as written and without devia- tions, and that the speech contained no threat to discharge employees. To find otherwise, I would have to interpret the phrase "union troublemakers," as admittedly used by Cornwell, as applying to Respondent's employees support- ing the Union. Yet, in other parts of his June 2 speech, Cornwell makes specific references to troublemakers as being "union outsiders," and General Counsel's witness, Glynn Free, even agreed that Cornwell had used the phrase "union outsiders and troublemakers" in an earlier portion of his speech on June 2. From all the reliable evidence, there are clear indications that Cornwell was specifically speaking of people directly connected in a full- time capacity and agents of the Union when mentioning and discussing troublemakers, and there were no refer- ences whatsoever classifying employee union supporters as the troublemakers, but on the contrary specific references to outsiders as the troublemakers. A conclusion and finding to the contrary would virtually eliminate the free-speech provisions. In accordance with the above, this allegation is hereby dismissed. Dorothy Shadell was employed in plant A on October 4, 1971, and her initial assignment was to department 317, which houses the subassemblers and small machine operators. The specific job that she performed was punching, drilling, and pinning bodges, and this job was rated as a labor grade 1 position, the lowest job rating in Respondent's Conway operations, and her starting rate of pay was $1.80 per hour. On November,8, 1971, Shadell's rate was increased to $1.84 per hour and on January 24 it was increased to $2.05 per hour, the top rate on this job. During the period of time that she was assigned to the pin and bridge department, about 6 months, she worked under the direction of Group Leader Glynn Free. Shadell's work was evaluated as "good' by Free, and he stated he never received any complaint concerning her workmanship from other employees in his department. It appears-that Shadell was never issued a written or oral reprimand while under Free's supervision. In March, Production Manager John Thines told Glynn Free that he needed an employee in the plant's upfitting department and asked him who he had for a transfer. Free initially suggested Dorothy Morgan, but then told Thines he did not think Morgan could make the production goals or standards in the upfitting department. Thines then inquired about Shadell and Free replied that she was a good worker, but commented that he didn't know whether Shadell could "make it or not, either," but, nevertheless, Thines informed Shadell that she would be transferred to a labor grade 2-a higher paid job-in the upfitting department .6 According to the testimony of both Shadell and Free, Shadell told Thines that she would "try anything once" and asked Thines if she would be permitted to return to Free's department if she was unable to make production in upfitting. Free testified that Thines replied, "Don't worry about it .... You can make it." Thines stated that he was undermanned in the upfitting department, and that Shadell was selected because he had a "slight surplus" of help in department 317 and she was the "senior girl" in this department. Upon her transfer to the upfitting department on March 6, Shadell was assigned to the job of making falls, components used to cover keyboards, but about a week and a half later she was transferred from this original job in upfitting to the job of assembling falls and lower frames also in the upfitting department. Shadell testified that one of the girls, assembling lower frames, Laura Fortner, was not "making production," and the department foreman at this particular time, William Spears, asked Shadell to take over this job, which she did, but on the following day Shadell told Thines and Cornwell that she did not like this work and wanted to return to her old department- even though she would make less money. Shadell testified that the lower frames she had to fit on the pianos as they came through the upfitting department were "warped and beui," and that she mentioned this fact to Manager Thines and others about a week after assuming her new job. Eldon Spears, who served as foreman in the upfitting department from early 1971 until May, testified that prior to Shadell's transfer Thines told him` he was going to assign someone to upfitting who had previous experience in the plant, and by doing so this employee might stay on this job for a longer period of time. Spears said there had been two or three employees doing this work who did not stay very long at it. Spears explained that the lower frame is a piece of wood covering a portion of a piano, and if the piece is bowed or warped you have to put a pin in the middle of it, and many pieces also had to be sanded. Spears stated that when Shadell was in his department all of the lower frames were warped and before they could be properly fitted each 5 See Resp. Exh. 1(b). and posting the tabulated results on the board. An average learning cycle, 6 Manager Thanes updated the learning cycles for the plant's production on the upfstter I job to which Shadell was assigned, is 8 weeks, and by the jobs, but standards have been set on production for many years. Employees end of the eighth or ninth week an employee is expected to reach 100 are advised how their production is progressing by tabulating their percent of the production standard applying to this particular job. production standard reports, which the employees themselves make out, D. H. BALDWIN COMPANY 31 had to be sanded-and this operation would take an extra 3 to 5 minutes. He said that on several. occasions before Shadell was transferred he explained these conditions to Thines. Spears stated that during the year and a half he was in the upfitting department no one had' been discharged for inability to make production, and that Lucille Smith had been permitted to transfer from polishing to finishing. He said that within a few weeks after Shadell assumed her new job she asked Cornwell or Thines if she could be returned to her old department, but she had received the reply that she would do all right. Spears also testified that, from the condition of the falls and lower frames, he was of the opinion that the Company's production standard of 42 pianos a day could not be met. Diana Hensley worked in the upfitting department with Shadell. Hensley agreed that at the time Shadell came into upfitting department the lower frame pieces were warped and bent, but said that they "always are." " Hensley testified that most of the time she made 100-percent production when working on falls, that Laura Fortner was put on subassembly falls after she had problems making prod- uction on falls assembly, and that an employee by the name of Delois was transferred. Hensley also said that she did not know of any employee other than Shadell who was discharged from falls assembly because of not making production standards. The General Counsel also produced testimony through upfitting department employee Edith Robertson to the effect that she did not know of anyone other than Shadell who was fired - because of failure to make production percentages. She further stated that there were employees who were permitted to transfer following their inability to make production goals and named James Haven and Laura Fortner. Dorothy Sullivan testified that a week or so before Shadell was discharged she asked Thines for a pay raise and said that Thines then told her he would give the request some thought. Sullivan said that approximately 20 minutes later her line leader , Mary Johnson, approached her and told her that Thines had asked her to tell Sullivan that he probably couldn't give her a raise unless her production standard come up, but that he would try to give her a raise the next Monday if she brought her production up that week. Sullivan said she told Johnson in response, "Well, if you don't give me my top pay, I'll go get a union card from Dorothy Shadell," and testified that Johnson replied, "Well, IT go tell him," and that Johnson then left to talk with Thines. Sullivan testified that shortly thereafter she went to the office, where Thines asked her what she meant about a union card . She said she replied, "Well, I meant just that, that if he couldn't give me my top pay, I'd get me one and sign it." Sullivan also testified that, although it was not the Company's policy to grant an incentive-type increase to employees in her department unless they held their production standards for 15 consecutive days, she received her increase the Monday following her conversation with Thins, and Mary Johnson without meeting ' this requirement. Thines acknowledged the above incident with Dorothy Sullivan, but said he merely told her he would prefer it if she not sign a card, but it had no effect as to her pay raise and that Sullivan received her wage increase because she consistantly made 100 percent on her production . There is no allegation in the complaint that this incident was violative of the Act. The Respondent maintains that Shadell was terminated for substandard performance and poor quality of work in the assembly of falls, and for no other reasons. This record reveals that on April 6 Manager Thines talked directly to Shadell about her slow progress and the poor quality of her work. Thines stated that she was well below her training cycle and that he had also previously mentioned this fact to Supervisor Junior Jackson . On April 27, Thines again talked with Shadell, and insisted upon improvement in her work performance and also complained about her continu- al and excessive visiting and talking : Thines said it was a daily occurrence for Shadell to ask him repeated questions about tools and other matters. On May 3, Thines complained about her excessive absenteeism and contin- ued slow progress and Shadell was then told to improve her production rate by May 12 or she would be replaced. On or about May 12, Shadell was told that her progress was unacceptable and that she must make the 100-percent production standard by May 26 or be discharged. On May 26, Thines had her worksheet calculated, and it was verified that her percentages had not improved and as a result she was terminated. Shadell was already working in the upfitting department when Junior Jackson took over this department . Jackson stated that it seemed to him Shadell was "awful slow" in learning and did not have "her heart in it." Jackson explained the meetings he and Thines had with Shadell, stated that her "visiting" slowed her production, and said that she did "real lousy work"-leaving screws out of the fall rods and things of this nature . Both Thines and Jackson maintained that they have always had trouble with warped wood-a common and continual problem in wood working, but no worse in 1972 than in other years. Jackson concluded his testimony by stating that Shadell was "forever hollering" at him, and was constantly complaining all the time about things that "didn't amount to anything." Thomas Lunsford makes final inspection of pianos at the Respondent's plant and testified that almost daily Shadell was leaving two screws out of the fall adjustments, that the lower frames she put on the pianos were not adjusted, that the quality of her work did not improve, and said that her work was "the worst" he had seen. Shadell admits having talks with Thines wherein he inquired about her low production and then informed her that she had to make 100-percent production. She said that in early May her production increased from 52 to 71 percent, but admitted that due to a foot injury she also missed several days of work in May. Shadell testified that the pump-type screwdriver she used in assembling the falls and lower frames to the pianos broke, that she showed the screwdriver to Junior Jackson, but he could do nothing about it, and that she then gave the broken screwdriver to Darrell Duke, who took it to the Company's maintenance department for repair, but in the meantime she was forced to use a "homemade" screwdriver for about a day. Darrell Duke testified that when Shadell complained about 'her broken screwdriver he replaced it within 15 minutes, and he never saw Shadell using a homemade one. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no question that the Company had knowledge of Shadell's union activity a few weeks prior to her discharge and management openly admits such knowledge. In late January, Shadell signed a card for the Union and at the same time was given additional cards which she passed out to some of the employees at the plant. Shadell testified that she handed one card to an employee in the break area of the plant a short time after she signed her own card, and said that on the following day she recalled handing out another card to an employee near the plant's loading dock, an area where employees routinely gathered for lunch, and said that thereafter, "every three or four days," she handed out additional cards to employees at the plant in areas frequented by Thines. It also appears that sometime in February Shadell placed a union keychain on the outside strap of her handbag and thereafter took the handbag and chain to work with her, and said that she routinely placed the bag, with the chain and union emblem in an exposed position, on a shelf near her work station. Whether or not the Respondent had specific knowledge of these union activities by Shadell in January and February is, of course, somewhat problematical, but in early May Shadell handed out union handbills and Manager Cornwell admittedly learned through a supervisor that she had done so, and Thines also knew of this incident. Shortly after this handbilling incident, Shadell saw Respondent's personnel manager, Milmo Black, in the plant parking lot, and told him that all her employee friends had signed a union card and then asked Black if he too wanted to sign one. In its total aspects, this record clearly reveals that Shadell was not doing a satisfactory job in the upfitting department. Shadell even admitted leaving screws out of the lower frames and having to refit frames on several occasions, and she also admitted that some pianos had to even be returned to her for additional work on them because of oversights. Shadell further admits several conferences with Thines and Jackson pertaining to her shortcomings, as aforestated.7 It appears to be part of Shadell's contentions that Respondent had substandard materials such as screwdriv- ers which didn't work, warped lower frames, warped falls, unposted production schedules, too short training periods, unresponsive group leaders, and days or periods when no pianos were scheduled to be worked on. However, the Company established that the wood frames were in about the same conditions as always, as previously noted herein. Shadell said there were spells without any pianos to work on, but Diana Hensley testified that when there wasn't enough work for the two of them on falls assembly and lower frames, she would do other things and Shadell remained full time on the work she was doing. Thines reported that the plant assembled 914 pianos in April, 1,019 in March, 1,078 in May, and 945 in June, and that each piano had to go to falls assembly and have lower frame installation. Shadell claims that she did not have a 7 During the first week in the upfitting department Shadell had an average weekly percentage performance of 34; her second week showed 31; third week 32, fourth week 35; fifth week 37; sixth week 42; seventh week 42, eighth week 55; nmth week 65; 10th week 70; 11th week 75; and her last and 12th week 65. Cornwell explained that he would consider 100 percent as any figure between 100 and 106, and that employees in the upfitting department doing the work in question were expected to reach 100 percent screwdriver to work with for some time, but this seems highly unlikely in view of the testimony given by Darrell Duke, and, , even if Shadell was required to use a homemade screwdriver for a short period of time, there is no showing that this seriously hampered her production. There also appears to be some claim by Shadell that she did not know her production figures, yet, as pointed out, since each operator makes up their own daily timesheets, she must have had an idea as to how she was doing. In answer to any contention Shadell may have had about inattentive trainers, it is clear from this record that Spears, Hensely, Jackson, and others were helpful when she called upon them-and obviously this happened quite often. Additionally, it is undisputed that several other upfitters had trained to full production within the general limits of the established training periods. Thins also testified that he has discharged six employees in the last 9 months for failure to make production goals, and said that he would probably have discharged other employees if it were not for counseling techniques which tend to weed out marginal employees. As I have specifically indicated, the Respondent had adequate and justifiable reasons for terminating Shadell because she was not making production goals and had poor quality work. There is a further contention by the General Counsel, however, that the Company would have reassigned or transferred Shadell to her old job or to another job had it not been for her union activity. Plant Manager Cornwell stated that the Company had no actual policy dictating the transfer of employees to lower-level jobs, but that it was dependent on circum- stances. Cornwell acknowledged that in the past such transfers have been made when there was a job open, but he said that at the time Shadell was terminated there were no job openings in any of the departments. Thines testified that in the early part of May he gave some thought to putting Shadell on another kind of job, but felt she could do her work in the upfitting department if she would try. Thines stated that he also discussed this matter of reassignment with Glynn Free-group leader in the department Shadell had previously worked in-and said Free told him that, because of her talking and the quality of her work, he did not "particularly" want Shadell back. As a rebuttal witness, Free denied making any statement to Thines that he did not want Shadell back, but earlier, on cross-examination, he said that he was "nearly sure" he had not made such a statement .8 Glynn Free testified that approximately 3 or 4 weeks after Shadell was transferred into Witting (which would be in late March or early April), he had a labor grade 1 vacancy in his department, and said that on two or three occasions he kept "pressing" Thines to hire someone to fill this vacancy, but that every time he mentioned it Thines would merely tell him to "hold on" because Shadell might be returning to him as he did not think she could make the at the end of their eighth week. 8 If Free had not encountered some problems dealing with Shadell while she was in his department, then it is highly peculiar that Shadell would make a statement as she did upon being transferred to upfitting. She stated to Free, "I guess you can thank the good Lord now that you've got rid of me." D. H. BALDWIN COMPANY 33 production standards in the upfitting department. Free stated that this vacancy was finally filled after Shadell had been terminated, but that before it was filled he had to pull employees off their regular work to do this job that was vacant, and he said there was also a vacancy in a position known as "material handler," but Thines had told Free that he did not want to assign Shadell to this job. In efforts to further substantiate his position that absent union activity Shadell would have been transferred to another job subsequent to indicating her displeasure with work in the upfitting department, the General Counsel points to various instances wherein other employees, experiencing difficulties in performing their assigned work, were permitted to accept downgrades to lower labor grades and thus gain assignments they considered to be more desirable. The General Counsel points to the circumstances involving William Spears and argues that Spears was permitted to give up the job of working foreman in the upfitting department and resume his lower-grade job as a stringer. He also points out that Willie Havens began work in a labor grade 1 job on January 6, progressed to the top rate of $2.05 per hour in the labor grade on March 27, was upgraded to the labor grade 2 of falls assembly on March 28, and was demoted as a result of "learning difficulties" to her old labor grade 1 job on April 17, and further argues that Laura Fortner was hired for the falls assembly job (labor grade 2) on March 3, and after 3 weeks of learning difficulties was downgraded to a labor grade I job within the upfitting department effective March 20. The General Counsel also mentions the situation of Mary Trousdale and points out that her personnel records reveal that she was hired in September 1968 at a labor grade 1 position in the pin and bridge department at a starting rate of $1.60 per hour, and by January 1969, after a period of good progression, she received the top rate in her classification, but was later downgraded after experiencing some difficul- ty in making satisfactory progress. There is no question that Shadell continued to make known her dissatisfaction with the assembler's job and made request for reassignment to a lower level position, as aforestated, and it is also clear that from time to time the Company had permitted the transfer of employees to a lower grade job depending on various circumstances. However, in the , instant case Thines made the initial selection in promoting Shadell to the upfitting department on the basis that management was having considerable difficulty keeping people in this department, and in efforts to solve this problem picked someone who had previous plant experience, and it is quite understandable, therefore, why Thines was not amenable or anxious to grant Shadell's requests for a transfer back to her old job or to another department. Moreover, Shadell was making some improve- ment in her new job, and, in fact, ' her percentage of production increased from an initial 32 percent to 76 percent 1 'week prior to 'her discharge-the last week it slipped back to 65 percent-and although management considered this slow progress, there was nevertheless at least some showing or promise that she might eventually make the 100 percent category-so again there is a reasonable basis for denying her request for transfer.9 Other than some personnel records and limited testimo- ny hearing on the same-we do not know the full circumstances surrounding the transfer or reassignments of the employees referred to previously herein by the General Counsel. There is no showing, unlike Shadell, that the Company had an urgent need in retaining them in the jobs they transferred from, and in several instances there was no showing that they were not doing satisfactory work in the jobs they were transferred from, but in the instant case the General Counsel is endeavoring to establish that even though an employee is not performing satisfactorily in a present job-that employee, nevertheless, is entitled to be transferred to a lower grade job. I do not believe there is an adequate showing in this record that such was always the policy of the Company, and most certainly management should not be required to, retain or transfer an employee who admits certain glaring ommissions in her work, and who was also continually guilty of poor quality work even after several warnings, conferences, and attempts by management to correct her errors. This situation is also highlighted by the open reluctance of Glynn Free in having Shadell returned to him as communicated to Thines, and further by the testimony of immediate supervisors who could readily observe Shadell's working habits, and from such observations either characterized her job performance as the "worst" ever seen, or, in the words of Junior Jackson "real lousy work." While other employees were occasional- ly transferred because of slowness in their work or discontent with a job-no such characterization of their efforts, insofar as this record is concerned, was ever attached to their work performances. In essence, when the Company showed and established it had encountered repeated instances of careless and bad quality work by Shadell "over and over," " the contention and argument by the General Counsel that Shadell was entitled to be transferred pretty much falls by its own weight. Moreover, Shadell was replaced in Fred's depart- ment by Sue Rowlett within a few weeks after Shadell was assigned to upfitting, and there was no other vacancy in her old department. From the testimony given by Free in these respects, it is apparent to me that he was totally mistaken and confused in his statement that there was a vacancy in his department after Shadell was terminated. At the hearing before me, I had the opportunity to closely observe Shadell, and from her testimony, general demeanor, and otherwise, it can be readily noticed that she is an extraordinarily outgoing individual in some respects, and takes great delight in engaging in conversations and in just plain talking to anyone at most anytime. Therefore, I have no hesitation in believing witnesses for the Respon- dent who testified in this respect, and also I have no hesitation in believing that her compulsory talking hin- dered her production, From the demeanor and the testimo- ny of Respondents supervisors and group leaders, it' was also obvious to me that those who had worked with' Shadell were constantly annoyed and upset with her tremendous 9 In penods material herein, Thines received an increase in his day. Thines said that unlike the year before, he was unable to meet this production schedule. In March, his schedule called for a daily output of 49 schedule. pianos, but in April and May his production called for a 52 or 53 pianos a 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propensity and natural inclination for repeated and endless verbosity, and I think it a reasonable inference that this fact was made known to other department heads and group leaders, and which, in turn, most probably played a considerable part in any and all transfer refusals. More- over, it is, of course, well established that union activity will not insulate or protect employees from justifiable discharg- es, and the Act cannot be used as a cloak for incompeten- cy. The allegation that Dorothy Shadell was discharged in violation of the Act is hereby dismissed. It is alleged that on or about July 31, the Respondent eliminated the overtime and changed the duties of its employee Glynn Free because of his union activities. Free is employed by the Respondent as a group leader in departments 301, 317, and 321 of plant A, and has been with the Company for about 13 years. For a period of 8 or 9 years prior to the end of July, Free was also assigned the part-time job of mixing glue for three departments, and to do this job he reported to work at 6:30 a.m. each workday, one-half hour prior to his regular starting time, and mixed the glue in a mixer located in one of his departments. Free was compensated for this extra half hour of work by being paid overtime pay at the rate of one and a half times his regularly hourly rate. Approximately three-fourths of the glue he mixed each morning was used in the departments 301, 317, and 321, and the remaining glue was used in a department located on the second floor of the plant which was supervised by Group Leader Lunsford. Free served as an observer for the Union in the election held on June 29, and at the end of the following month the Respondent reassigned the part-time job of making glue to Lunsford. Free testified he was informed of the reassign- ment and loss of overtime by Thines who told him to report to work at 7 o'clock the following Monday morning and that in the future "Tom Lunsford would be making the glue." He testified that when he asked Thines why the reassignment was being made, Thines said, "Well, if for no other reason, let someone else do it for awhile." Cornwell testified that in the period here in question they were having problems starting the air compressors at the plant, and when he inquired about the matter was told that whoever turned them on was using the wrong "sequence." Upon further inquiry, Cornwell learned that,Free had turned the compressors on when maintenance people had failed to do so, and then testified he could not understand this arrangement because the air compressors were a "maintenance function." Cornwell stated that he wanted the situation corrected, and wanted the compressors to be turned on by the maintenance men in the future. Cornwell said he also inquired as to what else Free was doing in the morning, and was told that he also mixed glue. Cornwell's response was that someone else should be mixing the glue. Cornwell went on to say that the Company was experienc- ing problems with the air compressors, a bomb threat, and various other matters that were causing concern about access to the plant, and management was in the process of trying to curb the excess issuing of keys to hourly rated personnel, and the feeling was that salaried supervisors should be responsible for opening and closing the plant. Cornwell acknowledged that he was aware that on the date of the election Free served as the Union's observer. Since there appears to be no starting time change in the job of mixing glue, still 6:30 a.m., it is difficult for me to understand how the switch from Free to Lunsford would curb any excess keys to hourly rated personnel since both Free and Lunsford are hourly rated group leaders. Cornwell finally agreed that the only reason Free's glue- mixing job was reassigned was because of the problem with the air compressors, but there is no explanation as to why Free could not be instructed as to the proper procedures or, if Cornwell wanted only maintenance people to turn the compressors on, why Free was not so informed. Without additional instructions and arrangements, the mere chang- ing of the glue mixer from one group leader to another would certainly not alleviate the complaint as to the compressors. It is most obvious from this record that Respondent's motivating reason for reassigning the part- time job of mixing glue, and thereby changing the duties and eliminating the overtime of Glynn Free, was to show its dissatisfaction with Free for engaging in union activity and serving as the Union's observer. It has long been established that it is a violation of Section 8(a)(1) and (3) of the Act for an employer to deprive employees of overtime benefits because of their union activity. THE REMEDY Having found that 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 policies of the Act. A broad cease-and-desist order is warranted in view of Respon- dent's discriminatory conduct and other violations. It has been found that Respondent unlawfully changed the duties and eliminated the overtime job of Glynn Free on July 31, 1972, and it will therefore be recommended that Respondent offer him immediate and full reinstate- ment to his former overtime position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment of a sum equal to that which he would normally have earned, absent the discrimination, from the date of the discrimination to the date of Respondent's offer of reinstatement, with backpay and interest computed in accordance with the Board's established standards.'° It will be further recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary and useful to determine the amount of backpay and the right to reinstatement under the terms of these recommen- dations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: 10 F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716. D. H. BALDWIN COMPANY 35 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By changing the duties and eliminating the overtime of Glynn Free on July 31, 1972, the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interrogation of an employee as to her feelings about the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact , conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 11 The Respondent, D. H. Baldwin Company, Conway, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to their feelings towards the Union. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist labor organizations, including the above-named organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: 11 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. (a) Offer to Glynn Free immediate and full reinstatement to his former overtime job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy," with interest thereon at 6 percent per annum. (b) Preserve and, upon request, make available to said Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records required or useful in analyzing the amount of backpay due. (c) Post at its plants in Conway, Arkansas, and at all other places where notices to employees are usually posted by Respondent, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 26, shall, after being duly signed by Respondent's duly. authorized representative, 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 ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations which have not been found. IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the date of receipt of this Decision, Respondent notified said Regional Director that it will comply with the foregoing recommendations, the Board issue an Order requiring Respondent to take the action aforesaid. 12 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."