Dyson-Kissner Corp.

National Labor Relations Board - Board Decisions

Mar 16, 1970

181 N.L.R.B. 962 (N.L.R.B. 1970)

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dyson-Kissner Corporation , K-P Manufacturing
Division and Over-The-Road , Transfer, Cold
Storage , Grocery & Market Drivers, Helpers &
Inside Employees Union , Local 544, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and United Electrical , Radio & Machine
Workers of America , UE. Cases 18-CA-2742,
I8-CA-2770
March 16, 1970
DECISION AND ORDER
BY MEMBERS FANNING , BROWN, AND JENKINS
On December 3, 1969, Trial Examiner Thomas A
Ricci issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the Trial Examiner's Decision attached hereto.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a brief in support
of its exceptions. Respondent filed cross-exceptions
to the Trial Examiner's Decision and briefs in
support of its cross-exceptions and in answer to the
General Counsel's exceptions and supporting 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the
entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
designated Trial Examiner at Minneapolis, Minnesota, on
August 26 and 27, 1969, on complaint of the General
Counsel against Dyson-Kissner Corporation, K-P
Manufacturing Division,' herein called the Respondent or
the Company A single complaint was issued on July 18,
1969, based upon two separate charges In Case
18-CA-2742 the charge was filed on March 5, 1969, by
Over-The-Road, Transfer, Cold Storage, Grocery &
Market Drivers, Helpers & Inside Employees Union,
Local 544, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Teamsters. In Case
18-CA-2770 the charge was filed on April 17, 1969, by
United Electrical, Radio & Machine Workers of America,
UE, herein called the UE The issues are whether the
Respondent violated Section 8(a)(3) of the Act in the
discharge of three employees, and Section 8(a)(I) by
certain conduct of management representatives Briefs
were filed after the close of the hearing by the General
Counsel, the Respondent, and the UE
Upon the entire record, and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, a Delaware corporation, operates a
plant in Minneapolis, Minnesota, where it is engaged in
the manufacture, sale and distribution of automatic screw
machine parts, grease guns, and hydraulic pressure
equipment During the past 12 months, a representative
period, it manufactured and shipped from this location
products valued in excess of $50,000 to out-of-state points,
and during the same period it purchased and received at
this plant products valued in excess of $50,000 which were
received from locations outside the State. I find that the
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
11. THE LABOR ORGANIZATIONS INVOLVED
I find that Over -The-Road, Transfer, Cold Storage,
Grocery & Market Drivers, Helpers & Inside Employees
Union, Local 544 , affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, and United Electrical, Radio &
Machine Workers of America, UE, are labor
organizations within the meaning of Section 2(5) of the
Act
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Board hereby adopts
as its Order the Recommended Order of the Trial
Examiner, and orders that the Respondent,
Dyson-Kissner Corporation, K-P Manufacturing
Division, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner A hearing in the
above-entitled proceeding was held before the duly
111. THE UNFAIR LABOR PRACTICES
This case touches upon union activities on behalf of two
unions, the Teamsters and the UE. In about February of
1969 truckdrivers employed by the K-P Company Jointed
the Teamsters Later, in March and early April,
employees of Northwest Automatic Products Division of
the Dyson-Kissner Corporation, herein called N-W, as
well as K-P, Joined the UE The two companies operate in
physically separate, but nearby buildings, are both owned
by Dyson-Kissner Company, and are both immediately
and personally controlled and run by Frank Griswold,
who once owned them as an individual and in 1968 sold
both to the Dyson-Kissner Company Bruce Smith, a K-P
'The name of the Respondent Company appears as corrected by
agreement of the parties at the hearing
181 NLRB No. 107
DYSON-KISSNER CORP. 963
truckdriver, signed a Teamster membership card on
February 11, 1969, told his supervisor, the traffic
manager, early on the morning of March 3, and was
discharged a few minutes later The complaint alleges his
dismissal was retaliatory action and therefore a violation
of Section 8(a)(3) of the Act
Eino Haataja was a part-time driver for K-P, he spent
most of his time as a stock clerk, filling orders for
shipment On March 4 the Teamster Union established a
picket line at the K-P premises to protest Smith's
discharge. Haataja was asked to make a truck delivery
through the picket line; he did not do it He never worked
for the Company again and it is alleged the reason for his
discharge was because he refused to cross the picket line,
also an unfair labor practice
On April 3 a 17-year-old girl, Joy Marth, who had been
hired by K-P less than 3 weeks before, signed a UE
membership card and was discharged at the end of the
workday Her dismissal is also said to have been because
of her union activities and a violation of the statute. There
are also complaint allegations of unlawful surveillance and
interrogation.
The Respondent denies the commission of any unfair
labor practices
The Discharge of Bruce Smith
Smith was for 12 years a driver for K-P, always in
personal contact with Mr. Griswold, in fact enjoying a
quite intimate and friendly relationship with him There
was never any question about his competence or sense of
responsibility towards the job He joined the Teamsters on
February 11, and then talked about it with other
employees He interested one of the N-W drivers,
Kodytek, into signing up He talked to several others,
including Streif and Haataja, of the K-P shipping
department, Earl Rautio, a truck mechanic, and Tom
Bistadu, a painter, both of K-P, and Hugo Lusar, who
works for a certain coffee company in the same area, a
company also owned and operated by Griswold. He did
this during working hours, at the loading platform, in the
general garage and shop area, as well as at lunch and
during coffeebreaks On occasion, when the N-W driver
group was overloaded with work, he used to make a
special trip for N-W, and this took him into the N-W
area, where he also talked to employees there about the
Union It appears he was careful to warn Kodytek, of
N-W, to keep all of this from Griswold's ears
Early in the morning of March 3, after he made his
first delivery, his supervisor, Traffic Manager Waryan,
told him to wash the truck, and that he, Waryan, had
heard Griswold was thinking of giving part of the truck
delivery work to an independent trucking company called
Widholm. Smith commented maybe this was because
Griswold heard he had joined the Teamsters Waryan
asked had Smith really signed, and then said it was the
first he knew about it Within half an hour Smith was
called into the office of Plant Superintendent Jernander,
where Griswold had also called Jernander and Waryan to
be witnesses to a conversation. There is a conflict in
testimony as to part of what Griswold then said, or did
not say.
According to Smith, Griswold opened with. "What's
this I hear about you joining the Teamsters Union, did
you'"" Smith admitted he had, and Griswold continued:
"Wally came and told me this morning that you had
joined the Teamsters Union." Smith then called Waryan a
"fink," and Griswold came back with "That's what I pay
the man for. I pay him to keep me informed to what is
going on in my plant . How could you join the union
after I have been so good to you"" To the foreman
Griswold then said "I can't see how this man could join a
union after I have been so good to him " Griswold then
told Smith he was discharging him, and the employee
asked "What for, for joining the union"" The answer was
"No, I am not firing you for joining the union, I am
going to fire you because you are unhappy with your
work." There followed some talk with Smith protesting he
was satisfied and would not have been kept for 12 years
were his work less than satisfactory and Griswold
suggesting he was not worth his "salt " When Griswold
asked why Smith had joined the Union, he answered
because Griswold had sold the business and the future
must be protected
As they talked, Griswold called his secretary on the
phone to inquire how much Smith had earned in 1968, it
was $8,000 With this Griswold turned to his assistants-
"Look at the pay I have paid that man Isn't this a
good salary to pay a truckdriver?" Again Griswold called
his secretary to inquire how much Smith had earned, in
1967, and again confronted Smith with what the employer
thought a good pay Griswold then went on to remind
Smith of past favors. "Look at how I helped this man, I
helped him with his house and plumbing and his house
and contracts I haven't asked him for money and he
turns around and does this to me How could you do
this?"
Griswold then reminded Smith that he had damaged
two trucks and never been criticized for it Finally he had
the secretary prepare checks for the driver and paid him
for the entire week -- this was Monday, the first day of
the workweek -- and an additional 2 weeks' vacation pay.
At the hearing Griswold said he discharged the driver
for soliciting on behalf of the Union during working
hours. Indirectly, but no less clearly, he also implied there
was another reason that he had decided to contract away
the K-P trucking deliveries and therefore no longer needed
the man Be that as it may, his testimonial version of the
discharge conversation, where he admitted inviting the two
supervisors as witnesses, is as follows "I told him I knew
he wasn't happy, I didn't want anyone working at my
company that wasn't happy. He was not loyal, [ told him
I told him that he would be much better working for
someone else. I was paying all of the employees' vacation
check, in the past we had only paid them 2 weeks, but
anyone there for 10 years was entitled for 3 weeks
vacation I handed him his check for a full week that way
plus two more vacation checks. I said, `You won't be
entitled to these checks until July 1st, you have three or
four months to go,' I said, `You have worked here a long
time and I want to give you the checks ' I said any time I
could help him, I would be happy to "
This is the sum total of Griswold's testimony as to the
discharge conversation. He made no mention of company
rules against solicitation, nor said anything to Smith
about such activities by the employees Smith's testimony
that the matter was not mentioned stands uncontradicted
The statement in the Respondent's brief that Griswold
then and there told Smith he was being released for
infraction of a no-solicitation rule misreads the record
transcript 2
'Later in the day, after Smith had left the premises, Griswold did tell
other employees Smith had been released for soliciting, and in a written
statement distributed to all employees on March 13 he publicized the same
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith said the conversation in the office lasted 30 to 45
minutes; Griswold said it was only 5 or 10 minutes.
Waryan, the traffic manager, put it at 10 or 15 minutes
His direct testimony as a witness for the Respondent is:
"Mr Griswold and Bruce discussed about Bruce not being
happy working for K-P and there were other parts of the
conversation that I don't recall exactly, Mr Griswold did
mention how he had loaned him quite a sum of money
over the years, and that is all I can say, that I can
remember" A final question to him before he left the
stand was "Do you recall anything about Griswold
getting somebody to bring information or to ask via
telephone how much the man had earned in a year or
two" The witness. I recall that now, sir." Plant Manager
Jernander was also called by the Respondent All he said
about this meeting was that it lasted about 10 minutes
Although Griswold personally runs both the K-P and
the N-W companies, and once himself owned them, it is
clear on this record that each is a separate and distinct
business operation, with separate payrolls and separate
physical premises In the spring of 1968 the UE carried on
an organizational campaign among the N-W employees
and Griswold posted a no-solicitation rule notice on the
premises of N-W. It was received in evidence and a total
reading of the document single spaced and two pages
long shows unmistakably the purpose for announcing
the rule then was to dissuade the N-W employees from all
union activities The statement is replete with arguments
against any self organizational activitites Clearly the
notice is as much, if not more,,an antiunion message than
an innocuous method for maintaining order and
production It was not posted on any of the premises of
K-P, and apart from Griswold's uncorroborated statement
at the hearing that such a rule exists, and his further
statement that he more than once told Smith to stop
soliciting others during working hours, there is no
substantial objective evidence that any proper
no-solicitation rule was ever publicized among the K-P
personnel. One of the seemingly most credible witnesses at
the hearing was Eino Haataja, the part-time driver who
worked for K-P for 16 years, he said quite convincingly he
had never heard of such a rule. The truth of the matter is
there was no rule against solicitation among the K-P
employees and that while Smith may have wanted to
conceal his prounion activities for other reasons, he was
not in violation of any established work orders. A further
persuasive fact supporting this conclusion is Griswold's
failure to refer to such a rule at all when discharging the
driver Had he really turned against this man for this
reason surely he would at least have mentioned it that
day He spoke of disloyalty instead
I find that Smith was discharged because he joined the
Teamsters Union, and do not credit Griswold's later
idea throughout the shop But this came after the discharge , and after the
Teamsters had filed a charge on March 5 on Smith's behalf
Q [By Mr Field ] Also we had testimony yesterday about a meeting
in the shipping office in the afternoon as I recall of March 3 , 1969, after
Bruce Smith was discharged where there was some discussion on your
part as to why Smith was discharged , and as I recall or at least
according to my notes , one of the witnesses , and I have forgotten which
one, stated in a part of his testimony that you said that Mr Smith was
fired for joining the Teamsters Union, is that what you said"
A No, I told him that he was fired because he solicited employees on
company time
Q That is all I have
A I think that was Dick Streit
Griswold was testifying here that he told Streif , in the afternoon, why
Smith had been released, not Smith himself at the moment of discharge
statement that the reason was violation of a no-solicitation
rule. Left-handedly at the hearing Griswold injected a
second reason for the discharge, and this was that he was
going to and in fact did contract away the K-P trucking
work and therefore had no need for him anymore. His
testimony on this point, taken in totality, only served to
impair his credibility generally.
Picketing started on Tuesday, March 4, the morning
after Smith was released It seems no deliveries were
made at all the rest of the week On Friday afternoon
Griswold made a contract with Widholm Transfer and
Storage Company to have all the K-P deliveries made by
that company, and no K-P driver has performed any such
work since That day Smith, as well as Kodytek, the N-W
driver, went on the Widholm payroll. With this all
picketing ceased. Widholm's employees are represented by
this same Teamster Local under contract. Widholm had
never before made any such deliveries of products for
K-P, all it had done in the past was move heavy
machinery belonging to the Company from one location
to another.
Early in his testimony Griswold gave the impression he
had decided to use Widholm before releasing Smith,
indeed that Widholm was already doing such work while
Smith was still on his payroll
Q. (By Mr Field) Now, what finally precipitated
your discharging him, how did you go about it)
A. I had been working with Widholm . . We had
a big trucking expense and Bruce burned up two trucks
I talked to Widholm and I knew a lot of
companies that have their trucking taken over by
another contracting trucker Russ [R H. Glosser, vice
president of Widholm] came in and showed me how
much we would save by picking up once a day and take
them in their truck over to their garage and warehouse
where they would distribute them into bins where they
had 15 trucks going out everyday to different trts of
the country We figured we could save ,,000 a
year by having them handle our trucking. I f ed this
would be a good way to make the best show. , for the
company I was working for now
Q What did you decide to do about Bruce when you
decided to switch your trucking to Widholm'>
A. There wasn't anything to do I kept him on when
we didn't need him, but there was really no use for him.
Before the Respondent was through with its defense, it
developed clearly and beyond question, that aside from
any sales efforts Widholm may have made earlier to get
this business,' the decision to make the change, and the
reason why the change was made that week, was because
unfair labor practice charges had been filed to protest
Smith's discharge and the Teamster picket line had
interrupted all deliveries. A conference took place on the
afternoon of March 7 in the office of Mr. Field, the
Respondent's lawyer. From Griswold's later testimony
"He [Fred Snyder, secretary-treasurer of Teamster Local
544] said if we would give our trucking for K-P to
Widholm that would dissolve or terminate the picketing
and so forth and so on I believe you [Mr Field] wrote
him a letter after we talked it over. He said we would also
have to have Jim Kodytek because he had joined the
union also I said that was o k and whatever he wanted to
do was o k with me " And to prove the point the
Respondent offered its lawyer's letter handed to Snyder
'Glosser, of Widholm , testified that before these events, "I have talked
to Griswold a year before this came up now and then, always plugging
for business "
DYSON-KISSNER CORP 965
that day'
With these the facts, Griswold's attempt to justify the
discharge on the ground that Smith's services were not
needed on Monday of that week taints his entire
testimony' I find equally unconvincing his further
suggestion that he released; the man because of damage to
trucks. Smith recalled that "a couple of years ago,"
engine, clutch, and transmission on a pickup truck had to
be replaced because of overloading, and that "a year and
a half before" his discharge a cylinder rod had to be
replaced on another truck he drove. He testified, without
contradiction, that no criticism had ever been made to
him because of these things
Smith may have embellished the discharge conversation
somewhat, but I do credit his statement that Griswold
confronted him with having joined the Teamsters The
traffic manager had just learned of it 30 minutes earlier,
and the discharge was indeed precipitate. No reasonable
explanation was offered as to why it had to be just at that
moment that the man must be discharged. Griswold is
opposed to any union activities among his employees.' He
is above all a very intelligent man, and from him a charge
of "disloyalty" directed to Smith at that moment must be
taken as a euphemism He spoke the same way when
demoting a supervisor, who had also engaged in union
activity, to a rank-and-file position in the N-W Company
the year before. See the Board decision cited above And
of course reminding Smith of past favors, substantial
loans for house building and what Griswold believed quite
adequate earnings in prior years, was the employer's way
of telling the man that direct, personal dealing with the
employer are to be preferred over collective bargaining
through a labor organization. I can only conclude the
discharge of Smith was a deliberate unfair labor practice.
The Release of Eino Haataja
With respect to Haataja, stockroom employee and
part-time driver, the charge of wrongdoing, as stated in
both the complaint and the General Counsel's brief, is
pinpointed and very narrow. It is said he was released
because "he failed to drive a Respondent's truck through
the Teamster picket line " The word "fail" is used as a
deliberate avoidance of the word "refuse," because the
fact is he was not told to cross the picket line and it
would be wrong to say he refused to do so. Despite this
shading of words, the implication is the same --
retaliation for respecting a picket line.
'The letter reads as follows
Confirming the discussion this morning between yourself, Mr Madden,
Mr Griswold and me, this letter is to advise you that Northwest and
K-P both intend to turn their truck hauling over to Widholm Trucking
Company
Since this arrangement will eliminate the controversy which gave rise to
the unfair labor practice charge filed last week by your union, I
understand that you will contact the NLRB and withdraw the pending
charge
'1 also credit the testimony of Haataja, against Griswold 's partial denial,
that in a special meeting he called after Smith had left the premises on
March 3 - with Jernander , Waryan, Streif, and Haataja present -
Griswold said " that he fired Bruce Smith and he mentioned how much
benefits he gave him He said he gave him a plumbing job, and loaned him
roofing on occasions and he was awful nice to him Then he went and
joined the union "
'Griswold made it a point to stress that in both the K-P and the N-W
companies he and he alone hires and fires employees In F W G
Corporation , 178 NLRB No 99 (this is the N-W Company discussed
above ), the Board found unlawful discrimination in employment with
respect to N-W employees and ordered their reinstatement with backpay
The issue of motivation in this man's discharge presents
about as close a question as can be On his own
testimony, Griswold told him- "Wally [the traffic
manager] has a few deliveries out of the picket lines .. .
You don't have to do it." With this I must also believe
Griswold's version that he asked did Haataja "have any
objection" to making the delivery, that when the man said
"he would be glad to do it," he, Griswold, said "Don't
argue with them . . Go slow and if anyone says a word
to you, back up." The picket did have something to say,
Haataja did back up, and that was an end to the matter
On the face of the thing it would be virtually impossible
to find he disobeyed an order, or offended Griswold by his
attitude
Haataja was told to go home that day and has not
worked since He was not a Teamster man; without
explanation as to when, he said he signed and mailed
away a UE card There is no evidence the Respondent
believed, or had reason to believe he was prounion If
anything, his conduct could lead Griswold to believe
Haataja was willing to set himself against Smith's picket
line, for he said he would be "glad" to cross the line.
When he "failed" to go through, he was as much carrying
out Griswold's orders to avoid confrontation as evidencing
a respect for the concerted activities of other employees
He had worked for this company 16 years, a reason for
his dismissal there has to be What makes this man's case
a difficult one is that the reason assigned by the Company
to explain his discharge is totally incredible, and I do not
believe it
In November 1967 Haatafa suffered a heart attack, he
returned to work in January 1968, and on medical advice
was given light assembly work instead of driving, first half
day and then full time. By the summertime he was doing
regular work in the stockroom, filling orders for shipment
and lifting product cartons as necessary. He also drive the
truck, 2 weeks during one man's vacation, many weeks
when another had an accident, a'nd on and off part-time
whenever necessary. He continued on this regular basis for
many months until the day of picketing on March 4, 1969
Griswold simply told him to go home that morning and
to await further orders When they did not come Haataja
called a number of times, always asking for work, but
Griswold advised him to start living on social security as a
disabled workman Haataja insisted he felt fine and
wanted his job back, but to no avail He checked with his
doctor, who examined him, advised him to work and said
he was too healthy to justify disability retirement. Haataja
is only 52 years old and now working as a carpenter The
physician, Dr Avant, even telephoned Griswold to tell
him Haataja was perfectly able to resume his old duty,
and not entitled to social security benefits Griswold
admitted the doctor urged him to take the man back
To justify the discharge on this basis Griswold testified
that after backing up from the picket line, Haataja was
"shaking," "pale, really nervous and shook " He recalled
how Mrs Haataja had once telephoned the Company to
say she would hold it responsible if anything happened to
her husband while driving a truck It then developed this
phone call came early the year before, and I credit Mrs.
Haataja's testimony that she telephoned on May 23, 1968.
Griswold admitted he made no change in Haataja's
assignment through the 10 months intervening between
May and the following March. Whatever Griswold's
reason for releasing Haataja, the man's physical condition
was not it
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All this really reduces the complaint to an argument
that absent any convincing reason proved by the
Respondent for releasing an employee with 16 years
seniority, and given the Company's otherwise established
antiunion animus, it must be inferred that the incident on
the picket line, the only thing that happened during the
last day of the man's employment, was in fact the
provoking cause. And this may very well be true Yet the
affirmative indication that Griswold did not really care
whether Haataja did or did not make the delivery that day
still remains It is also true that with elimination of all
trucking work, part, at least, of Haataja's regular
assignment ceased to exist. And finally, he was not a
union man, and this fact cannot be ignored On total
balance, and disturbing suspicion aside, I conclude that
the General Counsel has not satisfied the affirmative
burden resting upon the complaint to show by a
preponderance of the substantial evidence on the record as
a whole that Haataja was unlawfully dismissed. I shall
therefore recommend dismissal of the complaint as to
him
Discharge of Joy Marth
The discharge of this 17-year old girl presents a purely
factual question Was she discharged because she signed a
UE membership card" As in all such cases, there are
certain facts which indicate illegal motivation and others
which point to economic reasons. The question is not
quite why she was fired, but rather do all the relevant
facts warrant an affirmative finding that she in fact was
released to curb union activity'? The test is a positive one,
requiring substantial evidence and places the burden upon
the-General Counsel. An even balancing of the pros and
the cons requires dismissal of the complaint as to her'
Joy Marth started work on March 24, 1969, and was
discharged on the 14th next consecutive workday, April
10 She did mechanical, repetitive and totally unskilled
work in the hydraulic hose room, where Joseph Rivers
was in charge During lunch hour on April 10 she joined a
group of employees on the parking lot while UE
organizers held a meeting with them. Two supervisors
were sitting in their car nearby at the time On returning
to the shop Janice Waite, who worked in the same room,
gave her a UE card and told Rivers, the supervisor, she
had given it to Marth and that Marth was going to sign
it. Shortly before 5 p m. that day Plant Manager
Jernander paid her off.
These, plus the fact of Griswold's union animus evident
in the discharge of Smith the month before, are the basic
elements advanced in support of the complaint as to
Marth. If other relevant considerations are ignored, it
would seem proper to infer an illegal motive. The
Respondent that very day learned of her pro-UE attitude,
the discharge followed rather precipitously in
midworkweek, and the girl had no advance notice. Other
contentions are also made, but these are essentially aimed
at weakening the persuasive force of other facts urged by
the Respondent in defense.
In this case the Company is properly charged with
knowledge of Marth's conduct in signing for membership
in the UE. Contrary to the Respondent's assertion, I find
that Rivers is a supervisor within the meaning of the Act
He testified he is in charge of the department, where three
girls worked under him at the time of the events. It is he
who is "told to put them to work," who "show[s] them
'Glen Raven Silk Mills, 101 NLRB 239
what to do," and who must "know what they are doing,"
and see that "they seem to be going alright." He "several
times" complained to the plant manager that Marth was
too slow The plant manager corroborated this by simply
saying he "turned her over to Rivers" when she was hired
No other management representative works in this
department And Griswold, who said he made the final
decision to discharge her, said the action followed Rivers'
first bringing his complaint about her to him - "Mr
Rivers talked to me that he couldn't have her in his
department," and then conceded both the manager and
Rivers "recommended her discharge "
About whether he did learn that day of Marth's signing
the card, Rivers, a rather simple person, first sought to
evade, but in the end virtually admitted the fact He first
denied knowing she was interested in the Union before the
discharge, or that he gave Janice Waite permission to take
the UE card from his cupboard, while also saying he did
have such a card among his personal effects in the shop:
"I don't know where the card went " Without explanation
he then dust continued along to say he did tell Waite he
had a card in his cupboard, "I didn't tell her when she
could pick it up " "I told Janice Waite the card was there,
if she wanted it she could have it, I did not-need it," "she
told me she picked it up." Against such testimony I credit
Joy Marth's statement at the hearing that she heard
Waite tell Rivers that day at noon that Marth did intend
to sign up for the UE
Griswold said his ultimate decision rested upon the fact
Marth had been absent too much and her production
record was too low The following facts lend support to
this affirmative defense. (I) During the 14 days Marth was
on the payroll she was absent 3, 2 of them during the last
week she worked. (2). Rivers found fault with her work,
first saying she worked too fast and a week later that she
was too slow Marth admitted this The General Counsel's
insistence that the phrase "too fast" was a compliment by
the supervisor is wrong, for it is clear this meant too rapid
handling of the machine endangered the hands and
reflected poor adaption to the process. The "too slow"
meant too little production, and Marth's records, placed
in evidence, do show her hourly output did decline the
second week in some respects at least (3) Rivers had to
redo a full order of Marth's work (4) Comparison of
Marth's production record with the comparable ones of
Janice Waite and Nancy Wilson, the other two girls in the
same room, leaves no doubt she was substantially the
poorest of the three.
As to her the records show the picture of 80 percent out
of the 98 hours she was paid for The charts show work
and time for the same parts and the same mechanical
operation with respect to all three girls. They show, in
terms of units produced per hour, the following. Marth
285, Waite 384, Wilson 344, Marth 590, Waite 621,
Wilson 783; Marth 546, Waite 721, Wilson 879 In his
brief the General Counsel ignores these comparisons, and
stresses instead the fact that Marth's record, considered
alone, does not prove any substantial deterioration in her
work, or poorer performance in the end than seems to
have been the case more markedly during her second week
of employment The argument does not effectively rebut
the fact her performance was low, if comparative
performance figures are to have any meaning at all And
the fact of Marth's production indeed having been lowest
during her second week makes more credible Jernander's
testimony that he did speak to her about it, than her
denial.
8
DYSON-KISSNER CORP. 967
The weight to be accorded the foregoing factors in this
case is not lessened by certain other contentions advanced
Marth was hired without experience -- as indeed, at age
17, it could hardly be otherwise -- others are hired
without experience, and yet Jernander told her when she
left that she "had no experience on machines and they
were going to hire someone else " The implication here is
that Jernande`r would normally have ignored her relative
incompetence because he is always willing to hire
inexperienced girls There is another face to this coin The
work requires no skill whatever, it was shown one can
learn to do it in 5 minutes But if on such work an
employee after 3 weeks is still low in production, it
follows she is not likely to improve and will long remain
low In the circumstances, it would not be unreasonable to
try someone else, even another inexperienced person
There is much stress on the fact she stood around with
others on the parking lot while the UE organizers talked
it up. Someone said it was mostly a K-P employee
meeting, with a majority of the approximately 35 persons
gathered there from K-P and the rest from the N-W
Company Jernander was looking from his car, and may
have noticed she was listening At best he could have
concluded she favored the idea But all this adds nothing
to the case in support of the complaint, for knowledge of
her prounion sympathy stands firmly enough in Rivers'
knowledge that she was going to sign the regular union
card And there is a certain relevance in the fact Janice
Waite, who appeared as the solicitor of Marth's signature
to a UE card, was not discharged; could it be because her
work was satisfactory?
Griswold said he decided to do this on Thursday,
without waiting for Friday, because the girl might not
have come to work the last day of the week She had been
out 2 days that very week Was her final separation check
already prepared before Rivers learned she would sign for
the UE, or was it hastily calculated that afternoon9 The
office girl, Cole, said it "probably" went over in the
morning, as is the usual practice. Jernander, who handed
it to her, said it was in the same envelope with all others,
on Thursday morning, he "thought " There was no way of
contradicting these things
In the end, it is a question of substantial evidence,
convincing proof that the complaint is correct Another
mind, another thought I do not think the proof
sufficiently supports the charge, and shall recommend
dismissal of the complaint as to Marth.
Surveillance
He said they often sit there about 10 minutes. He was
then asked had this habit begun "about the time UE
rented the bullhorn and started their meetings in the
parking lot"", and answered "It may be then, but I don't
know "
I think it clear this was a form of surveillance, both in
Jernander watching the leaflet distribution and in the
supervisors sitting in plain view of employees gathered to
hear the union organizers. The managers may not have
been in position to single out the particular individuals
who succumbed to the solicitation, but that this conduct
of necessity gave the impression to the employees that
they were being watched is a necessary inference that must
be drawn. By such conduct Jernander and Waryan
violated Section 8(a)(I) of the Statute, and I so find
IV THE REMEDY
The Respondent must be ordered to cease and desist
from the unlawful conduct here found to have occurred
In view of the nature of the unfair labor practices found,
it must also be ordered to cease and desist from further
violations of the statute of any kind
Smith, who was illegally discharged, has been regularly
employed since his departure from the Respondent, and
the General Counsel stated on the record that there is no
occasion for ordering reinstatement now or payment of
any loss of earnings The transfer of the Respondent's
trucking work to the Widholm company was not called
improper In the event, however, that the Respondent
should discontinue the arrangement in the future and itself
resume making its own truck deliveries, Smith must be
offered the first position available as a truckdriver
employed directly by the Respondent.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free now thereof
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following.
Time and again, while UE organizers distributed union
organizational leaflets immediately outside the employee
entrance to the K-P plant, Plant Manager Jernander came
out of the building, asked for a copy, and then stationed
himself just inside the door, in plain view of employees
being solicited by the union agents At the hearing he said
he does this two or three times a week, and has done so
"off and on for years just to greet the people as they
leave at night " Jernander also sat in his car on the
parking lot during the lunch hour; Waryan, the traffic
manager, does the same thing, often sitting together with
the plant manager There have been a number of
organizational meetings held by UE organizers on the
parking lot in midday, where they solicit membership The
two supervisors sat there on April 10, the day Marth was
released. Waryan explained this practice as "just relaxing
and getting ready to go to lunch," that he normally goes
to lunch with Jernander, and that they just "visit" there.
Conclusions of Law
I The Respondent is engaged in commerce within the
meaning of the Act
2 The Unions are labor organizations within the
meaning of the Act
3 By discharging Bruce Smith the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct and by surveilling the
self-organizational activities of the employees, the
Respondent has engaged in and is engaging 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.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act it is hereby ordered that Dyson-Kissner
Corporation, K-P Manufacturing Division, Minneapolis,
Minnesota, its officers, agents, successors, and assigns,
shall
I Cease and desist from
(a) Discharging employees or discriminating in regard
to their hire, tenure of employment, or other terms or
conditions of employment, because they have engaged in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection
(b) Surveilling the self-organizational activities of its
employees, or in any other manner interfering with,
restraining, or coercing employees in the exercise of their
right to engage, or to refrain from engaging in, any or all
the activities specified in Section 7 of the Act
2 Take the following affirmative action, which I find
will effectuate the policies of the Act
(a) In the event the Respondent resumes trucking
operations for the delivery of its products by use of its
own equipment and employees, offer the first position
available to Bruce Smith without prejudice to any rights
and privileges previously enjoyed
(b) Post at its place of business in Minneapolis,
Minnesota, copies of the attached notice marked
"Appendix "8 Copies of said notice, to be furnished by the
Regional Director for Region 18•, shall, after being signed
by the Respondent's representatives, be posted by
Respondent immediately upon receipt thereof and
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 to insure that said notices are not altered,
defaced, or covered by any other material
(c) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith '
'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 , recommendations , 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 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 "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 18, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
IT IS HEREBY RECOMMENDED that the complaint be
dismissed insofar as it alleges the unlawful discharge of
Eino Haataja and Joy Marth
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT discharge any of our employees or
discriminate in regard to their hire, tenure of
employment, or any term or condition of employment,
because they have engaged in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection
WE WILL NOT surveill the self-organizational
activities of our employees
WE WILL NOT in any other way interfere with,
restrain, or coerce our employees in the exercise of
their right to engage in, or to refrain from engaging in,
any and all of the activities specified in Section 7 of the
National Labor Relations Act.
In the event at a future date we resume truck
operations for the delivery of our products by use of
our own equipment and employees, we will offer the
first position available to Bruce Smith
You are all free to join, or to refrain from joining,
Over-The-Road, Transfer, Cold Storage, Grocery &
Market Drivers, Helpers & Inside Employees Union,
Local 544, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and United Electrical, Radio and Machine
Workers of America, UE
DYSON-KISSNER
CORPORATION, K-P
MANUFACTURING
DIVISION
(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,
316 Federal Building, 110 South Fourth, Minneapolis,
Minnesota 55401, Telephone 612-725-261I