Bridgeport Brass Co.

National Labor Relations Board - Board Decisions

Mar 15, 1961

130 N.L.R.B. 1332 (N.L.R.B. 1961)

1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 15 , 1959 , and would be replaced by Pinkerton guards . Several of the guards
testified that when they asked Hart why , he replied : "You should know, " or "`You
should know, you brought it on yourself." Assuming arguendo that Hart made
the remarks attributed to him , they do not prove anything . First, because the
remarks are subject to a myriad of different interpretations ; and secondly because we
are concerned here with the motivation of a decision made several days before
his remarks and a decision of which he had no knowledge until the matter was
a fait accompli.
D. Conclusions
The Trial Examiner has taken the time to set forth the arguments advanced by
the General Counsel because it is felt that they were set forth with sincerity and con-
viction and have been deemed by the Trial Examiner to be worthy of consideration.
These arguments at best, however , are only circumstantial and arouse suspicion,
but do not prove by a preponderance of the evidence the allegations of the
General Counsel 's complaint . Suspicious as the Trial Examiner may be , these sus-
picions are more than offset by the overwhelming evidence presented by the Re-
spondent of its consideration of the change in the guard employees long before any
union activity by the plant guards; the undenied and undisputed necessity for the
Respondent to effectuate certain economies ; and the actual savings resulting from
the contracting out of the guard work to the Pinkerton Detective Agency. The
General Counsel has the burden of proving by affirmative and substantial evidence
the facts which he asserts and where it is just as reasonable to infer a proper motive
as an unlawful one, the burden of proving the case by substantial evidence has not
been overcome by the General Counsel . In arriving at my conclusion I have not
been unmindful of the complete lack of union animus on the part of Respondent.
On the basis of the credited testimony of Stork as to when the decision to change
over to Pinkerton guards was made and on the basis of the entire record, the
General Counsel has not persuaded me by a preponderance of the substantial evi-
dence that the Respondent was unlawfully motivated.6
Upon the above findings of fact and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The 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. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]
6 See Punch and Judy Tog8 , Inc., 85 NLRB 499; Calenc a Service Co ., 103 NLRB
1190, and National Dairy Product8 Corporation, 127 NLRB 313.
Bridgeport Brass Company and United Steelworkers of America,
AFL-CIO. Case No. 10-CA-4400. March 15, 1961
DECISION AND ORDER
On September 1, 1060, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in this case finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner further found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that they be dismissed.
130 NLRB No. 133.
BRIDGEPORT BRASS COMPANY 1333,
Thereafter the Respondent filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Fanning].
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 Inter-
mediate Report, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, its officers, repre-
sentatives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging' membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of its employees, by laying
off or by discharging or refusing to reinstate any of its employees, or
in any other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of employment.
(b) Interrogating its employees concerning their union member-
ship, affiliation, or sympathies with the above or any other union in a
manner constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
(c) Threatening its employees to shut down the plant in the event
it was organized by the Union.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above-named or any
labor organization, to bargain collectively through representatives of
1 We agree with the Trial Examiner that the records ' submitted by the Respondent,
contrary to its contentions , clearly show that Proctor , the Charging Party, was not a sub-
standard employee. The analysis submitted by Respondent ( Exhibit No . 11) shows the
percentage of Proctor 's actual production hours to standard hours of production work
to be 87 . 6 percent compared to the department average during that period of 86 .7 percent,
and the percentage of actual production work hours to payroll hours as 58 .2 compared
with a departmental average of 51.0. Although Proctor's successor , Bizzel , had higher
averages , his ratio to departmental averages was substantially the same as Proctor's.
Bizzel's percentage of actual to standard production hours was 88.3 compared to a depart-
mental average of 88.2 and his percentage of actual direct labor hours to payroll hours
was 90.8 compared to a departmental average of 80.4. The rise of the percentages after
the discharge of Proctor is not fully explained in the record . The plant , during Proctor's
employment , was in a shakedown and training stage. The plant production might have
increased substantially after that initial period. The Company might also have used a
different formula for the computation of efficiency and averages. On the record as a
whole, we adopt the Trial Examiner ' s finding that Proctor was discharged , not for eco-
nomic reasons , but for his:unionactivities.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
Q. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Thomas R. Proctor inunediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges previously enjoyed, in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Make whole Thomas R. Proctor for any loss of pay he may
have suffered by reason of the discrimination against him, in the man-
ner set forth in the section of the Intermediate Report entitled "The
Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its plant in Moultrie, Georgia, copies of the notice
attached to the Intermediate Report marked "Appendix."' 'Copies of
said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by it .for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director of the Tenth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
(f) IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent discriminated
against Elene Jackson as to her hire and tenure of employment, and
that the speeches by Joseph McNamara and John H. Pimm to the
employees about February 25, 1960, and December 18, 1959, were
coercive.
9 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE ,
Upon a charge, as amended , filed by the United Steelworksr of America, AFL-
CIO, herein called the Union , the General Counsel of the National Labor Relations
BRIDGEPORT BRASS COMPANY 1335
Board, through the Regional Director for the Tenth Region (Atlanta, Georgia)
issued a complaint dated April 7, 1960, alleging that the Respondent or the Company
has engaged in and is engaging in unfair labor practices in violation of Section
.8(a)(3) and (1) of the Labor-Management Relations Act, as amended. In its
answer the Respondent admits certain allegations of the complaint but denies the
commission of any unfair labor practices. Pursuant to notice a hearing was held on
June 6 and 7, 1960, at Moultrie, Georgia, before the duly designated Trial Examiner.
All parties were present and were afforded opportunity to adduce evidence, to ex-
amine and cross-examine witnesses, to present oral argument, and to file briefs. The
General Counsel and counsel for the Respondent filed briefs which I have fully
considered.
From t]
following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
The Respondent is a corporation qualified to do business in the State of Georgia
and since about July 1959 has maintained an office and plant in Moultrie, Georgia,
where it is engaged in the processing and manufacture of plumbing fixtures. In its
operations, projected over a period of 12 months following the issuance of the com-
plaint, the Respondent will ship finished products valued in excess of $100,000 from
its Moultrie, Georgia, plant to places outside the State of Georgia. The answer
admits the Company is engaged in commerce as defined in the Act. I so find.
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
A. The issues
The issues are whether the Company (1) discriminatorily laid off and subse-
quently discharged Thomas R. Proctor, (2) discriminatorily laid off and reduced the
overtime of Elene Jackson, and (3) by various acts and conduct threatened and
coerced its employees in the exercise of the rights guaranteed them under the Act.
B. Preliminary statement
For some time prior- to the events herein, the Company maintained a plant at
Bridgeport, Connecticut, and upon completion of the new plant at Moultrie the
Company moved practically all of its equipment and transferred a few of its em-
ployees to the new location. Operations at the new plant commenced about July 1,
1959. At times material herein, Joseph McNamara was vice president in charge of
personnel, John H. Pimm was plant manager in charge of plant operations, John H.
Hughes was plant superintendent, and Charles T. Howell was foreman of the ship-
ping and packing department. The parties are in disagreement regarding the status
of John Simko and George Eugene Tate as of December 17, 1959, and January 2,
1960, respectively. The General Counsel claims they were supervisors or repre-
sentatives of management while the Company contends they were simply toolmakers.
Each of the above-named individuals, with the exception of Howell, was transferred
from the Bridgeport plant to the Moultrie plant. McNamara apparently was in
charge of personnel at all of the Company's plants and maintained his home in
Connecticut. According to Hughes the plant began operations with new, inexperi-
enced production employees, most of who had never worked in a metal plant.
C. Organizational activities
Ned Kocher, international representative, stated he received word from his union
that the Company was building a plant in Moultrie and since the Company had a
collective-bargaining agreement with it he might look into the situation. Kocher
came to Moultrie and as the plant was still under construction he advised some
officers of the Packinghouse Workers Union that he was interested in the plant and
requested that they notify him if the employees indicated any desire for organization.
Around November 14, 1959, Kocher received word that the employees were inter-
ested in the Union and he sent a batch of union cards to Thomas Proctor. About
November 20, Kocher'held a meeting at a hotel with about 15 employees. At that
time a number of cards were given to Kocher but he was not satisfied that he had a
majority, so he asked Proctor and some of the men to check on the number of work-
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers at the plant and sign up additional employees. The meeting ended and Kocher
left Moultrie.
A few days later the group telephoned Kocher to inform him of the number of
employees and that they had obtained additional cards. On November 25, Kocher
wrote the Company that the Union represented a. majority of the employees and re-
quested recognition and a meeting for the purpose of discussing an agreement. In
the meantime, Kocher concluded, the Union would file a representation petition with
the Board.
The Company refused to recognize the Union and while Kocher did not give the
date of the refusal, it appears the Company promptly answered his letter.
After the meeting of November 20, the Union held weekly meetings, all of which,
except one, were held at the union hall of the Packinghouse Workers. Kocher could
not remain in Moultrie for extended periods and he depended largely upon Proctor to
assist in the organization of the employees.
On November 25, the Union filed a representation petition and thereafter, on
February 25, 1960, the Board conducted an election which the Union lost.'
On February 29, 1960, the present charge was filed.
D. The discharge of Proctor
Proctor was employed as a new employee, machine operator, on August 4, 1959, at
$1 per hour .2 About 7 weeks later he received a, 10-cent-an-hour increase and in the
succeeding 2 months be was given 5- and 10-cent raises respectively. Proctor stated
that Simko was foreman of the machine shop, but later Buccine was foreman and
Simko was assistant foreman.
Around November 12, Proctor received union cards and obtained signatures from
about 25 of the approximately 51 employees who signed union cards. Most of
Proctor's cards were obtained in the period November 12 to 20. Proctor also at-
tended all the meetings held by the Union.
On the occasion when Proctor received his last increase he was called to the office
where Hughes stated he was receiving the top rate for a machine operator, although
he might go to $1.26 an hour. Hughes said that it was company policy to grant
increases to employees after 90 days, if they were satisfactory, and if they were not
satisfactory to release them. He further stated Proctor was a good employee and
wanted him to remain with the Company. Proctor said he would remain and then
went back to work. A few days later Simko informed Proctor the Company was
looking for men to train as toolmakers and as Proctor was a good employee and
might qualify for the openings, he should see Pimm.
On December 11, Proctor was called to the office and met with Pimm and
Hughes. Hughes stated that Proctor's name had been mentioned in connection
with threats of violence made in the plant and if this conduct continued he would
be forced to call in the authorities. Proctor asked the name of the person who had
been threatened but Pimm gave no response. Proctor then asked if the threats had
anything to do with the Union and Pimm answered no. Pimm ended the meeting
by stating Proctor was being laid off for 3 days. Proctor left the office and informed
Buccine of his layoff. Proctor denied he had ever threatened anyone at the plant.
Proctor returned to work on December 15 and dater in the morning he met with
Hughes and Buccine in the office. Hughes opened the meeting by declaring, "What
is this union?" "What does it mean?" and then went on to talk about organiza-
tion. He pointed out that if the plant became unionized the Company would follow
seniority, which might result in Proctor'losing out on a' good job. Hughes further
1'Case No. 10-RC-4561 (not published '1n NLRB volumes). Following a hearing, the
Board directed an election to be held among the employees in the customary production
and maintenance unit, and on February 25, 1960, the election was held. Of the 101 em-
ployees eligible to vote, 100 valid ballots were cast, 40 in favor of the Union and 60
against. On April 15, 1960, the Board certified the results thereof.
2 On direct examination Proctor testified he filled' out an application for employment
and in answer to a question or questions as to whether he had ever been a member of a
union or worked for a union, he answered he had worked for Swift & Company, at the
Moultrie plant, which was a union shop. When presented with his application, which he
identified as being filled out in his handwriting, Proctor was unable to point out any such
questions on the form, but claimed they were on the one he filled out. He admitted the
form requested information as to membership in organizations and scientific societies,
other than church affiliation and labor organizations, but he did not pay close attention
thereto and did not answer that part of the form. However, he still persisted, "I filled
out my application AFL-CIO," although the form contains no such statement.
BRIDGEPORT BRASS COMPANY 1337
stated that if the Union came in the Company might be forced to shut down be-
cause it could not afford to operate under union conditions . Hughes told Proctor
he was a good operator and that under a work incentive plan which the Company
was considering he could earn as much as $1.90 an hour. In the course of their
conversation Hughes asked Proctor if he had ever worked for a union . Proctor
replied he had worked for Swift & Company and he had stated on his employment
application that he had worked for the AFL-CIO and had been a union member.
The meeting lasted 40 minutes . Following the meeting , Buccine told Proctor if he
had any problems he would try to work them out.
On December 17, a photograph of the Connecticut plant with the notation, "This
was your plant before the union made it so bad that we had to move," was posted
on the bulletin board. The same day Simko called a meeting of all the operators
and passed around copies of the above photograph.
On Thursday , December 31, Tate asked Proctor if he would work on Saturday,
January 2 , 1960 , and, after Tate assured him that he would work on production,
Proctor said he would come in . Proctor reported for work on January 2, about 8
o'clock , and was assigned a sweeping job. After working some 30 minutes Tate
told Proctor he had heard that he was the ringleader of the Union and followed
him around stating he was the ringleader . Tate apparently left and then returned
in a few minutes and repeated his remarks . Seemingly, this kept up until noon
when Proctor left the plant in order to avoid any trouble. On cross-examination
Proctor stated Tate talked to him on two occasions for about 10 minutes , the first
time from around 8:30 to 8:40 and later, about 10 o'clock , during the work break.
Proctor admitted he left his job without telling anyone at the plant. Proctor re-
ported for work on the following Monday and neither Hughes nor Buccine men-
tioned the Saturday incident.
On January 6, 1960, Proctor met with Pimm, Hughes , and Buccine . Pimm in-
formed Proctor his work had fallen off badly, in some instances from 40 to 60 per-
cent , and he could not keep anyone who did not produce. Proctor remarked that
about a month previously Hughes had praised him as a good employee and now
Pimm was complaining he could not perform his job. Pimm said the company
records showed otherwise . Pimm further stated that the Company had ample
grounds for firing Proctor for walking off the job the previous Saturday . The meet-
ing ended with Pimm giving Proctor a 1-week layoff and warning him that if his
work did not improve when he returned he would be discharged.
Proctor came back to work on January 13 , and on January 15, as he was punch-
ing out , Buccine took him to the office where they met with Hughes . Hughes in-
formed Proctor that although he had been warned , his work had not improved, and
that he had left his machine that day to visit an employee in another department
and he was being terminated . Proctor wanted to know the person he was visiting
but Hughes replied it made no difference ; he had seen him leave his machine and
talk to an employee in another department . When Proctor asked if it was Stan-
field, Hughes said yes. Proctor denied his production had dropped or that he had
left his machine to visit in another department . Proctor was thereupon discharged.
Pimm and Hughes testified that in October 1959 the Company's local attorney,
Sam Gardner , reported that Proctor had made statements at a barbershop that the
Company "was a lousy place to work ," and that he was going to increase the wages.
Pimm and Hughes called Proctor to the office where Pimm repeated the above
statements to Proctor , who denied making the same. Pimm said he did not appre-
ciate such comments , reprimanded Proctor , and warned that if he continued to make
such remarks more drastic action would be taken.
Hughes talked to Proctor in November when he was given an automatic raise to
$1.25 an hour and stated he was at the top of his rating , although he might go to
$1.26. Hughes explained that after 90 days the Company retained employees whose
work was satisfactory and if not, they were released. Hughes felt Proctor would
make a good employee so he was retained.
Simko, who was employed as a toolsetter at the time, stated that in November
there was a notice posted on the bulletin board regarding vacancies in toolsetting
jobs and Proctor spoke to him about the vacancies . Simko had no authority to
transfer him to toolmaking , or learning the job, so he told Proctor to see Pimm.
Simko denied telling Proctor that he was one of the best employees, in fact he did
not consider . Proctor a good worker because he observed him away from his place
of work quite a few times.
Pimm said a notice was posted on the bulletin board that there were openings
for two apprentice toolmakers and employees who were interested and qualified
could sign up for the jobs. Proctor did not sign up for these openings.
Pimm and Hughes admitted that Proctor was called to the office on December 11.
Pimm stated it had been reported that Proctor and another individual , Wesley
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor, had made threats of violence to another employee, Margaret McGeecher. .
Proctor denied making any such threats. Pimm believed he and Taylor had en-
gaged in this conduct so he .laid off both of them for 3 days. According to Hughes,
Pimm said the threats were directed to McGeecher because of her attitude toward
the Union.
Hughes admitted he talked to Proctor on December 15, but only on the subject
of an incentive plan. He explained to Proctor, and other employees, that around
the first, of the year industrial engineers were to conduct a study and advise the
Company what type of incentive plan might be instituted at the plant. Hughes said
that under an incentive plan a good , experienced operator could earn as high as
$1.60 an hour.
Hughes said Proctor was designated to work on January 2, when the Company
was taking inventory. In moving material from place to place it was necessary to
clean up and Proctor was assigned that job. Proctor did not work the entire day
and left the plant without notifying anyone. Hughes reported the incident to Pimm.
when he returned to the plant the following Wednesday.
Tate denied he accused Proctor of being the ringleader of the Union. Tate said
it was Proctor who remarked the Company believed him to be the ringleader and
there was a rumor that since he had been a union member he was the instigator
of the Union at the plant. This was the only conversation Tate could recall.
Pimm was away. from the plant for several days and came back Wednesday,
January 6. On that day Pimm received a report from the plant accountant that
Proctor's production was far below normal. Hughes also reported Proctor had
walked off the job on January 2. Pimm called Proctor to the office and informed
him that figures submitted by the accounting department showed that he was lying
down on the job. Pimm told him he was being laid off for 1 week and if he did
not improve when he returned he would be dismissed.
Proctor reported for work on January 13. On January 15, Pimm checked his
work record and when he found no improvement in his work he instructed Hughes
to discharge him. The same day Hughes told Proctor he had been warned he
would be dismissed unless his production improved, that it had not improved in
the last 3 days, so he was discharged.
The Status of Simko and Tate; the Motion To Correct the Record
At this point it seems appropriate to dispose of the General Counsel's contention
that Simko was a supervisor on December 17, that Tate was a representative of
management on January 2, and his motion to correct the record. This case does
not turn on the limited testimony of either Simko or Tate so the question of whether
the Company was responsible for their acts is not too significant.
Simko was employed at the Bridgeport plant and came to the Moultrie plant on
August 3, 1959, where he worked as a toolmaker until January 1960, when he was
promoted to assistant foreman. The General Counsel claims Simko was a super-
visor on December 17, since Proctor's testimony "indicated that in August 1959"
he was foreman of the machine shop, and Dorothy Rogers' testimony that Simko
"was next in charge ," and that the Board found him to be a supervisor in its
Decision and Direction of Election issued on February 9, 1960. I find the record
does not support the contention that Simko was a supervisor as defined in the Act
on December 17. There is no dispute the Company posted a photograph of the
Bridgeport plant on its bulletin board, consequently I cannot see how anything is
added to the case by the fact that Simko may have shown the photograph to the
employees at a meeting held on December 17. Since, as appears below, Howell
called a meeting of the employees in the packing and shipping department on the
same date and exhibited a photograph of the Bridgeport plant, it is reasonable to
infer that the Company was aware of the fact that Simko held a similar meeting
and it was, therefore, responsible for his activities in this respect. I so find.
It is undisputed that Tate came from Bridgeport to Moultrie on July 6, 1959,
and was constantly employed as a toolmaker and voted in the election on Febru-
ary 25. Actually, Tate's testimony covers but two instances which relate to Proctor,
namely, the events of January 2, related above, and the statement that he would
turn in Proctor's name for toolmaker apprentice if he got on the ball. First, I find
Proctor grossly exaggerated the events of January 2, particularly that Tate con-
stantly followed him around accusing him of being the ringleader of the Union, to
the extent that Proctor had to leave without even notifying anyone. On this point
I accept Tate's testimony to the contrary and find that Tae did not interrogate,
threaten, or harass Proctor as claimed. Therefore, the question of whether. Tate
was a representative of management becomes immaterial. By placing his own
interpretation on Tate's testimony on the subject of Proctor's becoming a toolmaker
BRIDGEPORT BRASS COMPANY 1339
apprentice, the General Counsel comes up with the suggestion that the record omits
Proctor 's testimony on this point and moves that it should be corrected to show that
Tate told Proctor , "if you'll straighten up and pull out of the union , he thought he
could get Proctor the job." The General Counsel claims his notes show that
Proctor testified to that effect . Counsel for the Company filed an opposition to the
motion . I find this insufficient to support the General Counsel 's motion and, accord-
ingly, I deny the motion.
As I see it, the General Counsel 's theory is that while Simko and Tate expressed
the opinion that Proctor was an efficient employee they did not recommend him
for toolsetter apprentice , or opposed his being given the job, by reason of his union
activity . Seemingly , this would establish discrimination of some character. How-
ever, the complaint does not allege the refusal to assign , promote , or transfer
Proctor to apprentice toolmaker as an unfair labor practice . Consequently, this
evidence has no bearing on the ultimate findings herein . Aside from all this,
Proctor , according to Pimm's undehied testimony , never even - made application for
the job , as required , so that disposes of the entire matter.
E. The alleged discriminatory treatment of Elene Jackson
Jackson was hired on August 7, 1959 , as a packer in the packing and shipping
department under Howell . Jackson stated that in the course of her employment
interview she informed Pimm and Hughes that she had been a union member
while working at a plant in Indiana and they replied that made no difference as
there was no union at the plant at the time. Jackson was hired at $1 an hour and,
in line with company policy, received two 5-cent-an-hour increases 6 weeks and
3 months, respectively, after she had been employed.
Around the middle of November , Jackson signed a union card and solicited
from 5 to 10 other employees to sign cards which she turned over to Jean Wills, a
coworker . Commencing about December 1.1, she attended union meetings.
Jackson said she worked overtime regularly, almost every day, until about
December 21.
On December 17, Howell held a meeting with a group of the girls in the depart-
ment and exhibited a photograph of the Connecticut plant which had been shut
down . Howell spoke against unions and Jackson asked if he had ever worked in a
union plant . Howell answered he had not and inquired if Jackson had "ever
organized a union before ." Jackson said she had never attempted to organize a
union and "I am not trying to organize this one." Howell informed the group that
the election regarding the Union would not be secret , that the employees would be
required to sign their ballots and if the Union came in the plant would close down.
He then asked each of the employees how they felt about the Union and when he
propounded the question to Jackson , she said if the Company paid decent salaries
she believed there would be no need for the Union . The meeting then ended.
On December 18, Pimm called the shipping department employees to his office
because Howell had reported there were many things they did not understand about
the Union . Pimm advised the group that the election would be secret and that
they would not have to sign their ballots. He also stated the Company could not
pay union wages, but it was considering an incentive plan; engineers were to be
called in to time-study the jobs and the rates might go to $1.15 or $ 1.60, depending
upon the work . Pimm declared there would be no discrimination against union
members. Wills thereupon asked why some of the girls were being deprived of
overtime and Pimm said he was unaware of any such condition . Apparently, the
meeting then ended.
Although Jackson testified she and another employee, Katherine McMullen,
"were being sent home every day without overtime ," she admitted that on Decem-
ber 18 she refused Howell 's request that she work overtime that day.
Following the above meetings , Jackson obtained a copy of an old election ballot,
presumably an NLRB ballot, which she exhibited to the employees at the plant on
December 21, prior to working hours. Later that morning, Jackson was called to
Howell 's office, who asked if she had a union paper . Jackson admitted she did and
offered to show it to him, but Howell declined her offer. Howell stated he could
fire her for what she had done, and Jackson agreed. Howell then accused her of
being a paid organizer for the Union , which she denied . Howell concluded their
meeting by stating that since it was Christmas he would not fire her , but he was
putting her on probation, which meant she would get no more overtime and could
not talk to, or associate with , other employees even at break time. Jackson then
returned to work.
On February 1 and 2 , 1960, Jackson was absent because of illness. On February 3,
when she reported for work, Howell complained that she had missed 2 days with-
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out notifying him and Jackson said she had tried to call in. Howell stated that
failure to call in was grounds for dismissal, but as she had attempted to do so, he
,was simply giving her a 3-day layoff. Jackson asked when the Company initiated
such a rule and Howell said as of that date and that it was being posted that day.
Jackson was thereupon laid off and upon her return she observed a notice to the
.above effect posted on the bulletin board.
Jackson testified that on February 23, Howell informed her that she had been
selected as union observer at the election to be held on February 25 and he wished
she would change her mind about the Union. When Jackson said it was too late for
that, Howell stated he could do a lot of things for her. The conversation ended
with Jackson saying she had never asked for, or received, any favors. On Febru-
ary 24, Howell spoke to Jackson along the same line about changing her position
concerning the Union.
McMullen was hired August 14, 1959, and worked in the packing and shipping
department. She took no part whatever in the Union's organizational drive and
there is no indication she ever signed a union card. McMullen stated she was
assigned overtime regularly until sometime in December, possibly about 2 weeks
before Christmas, when Howell put her and Jackson on probation. Neither
McMullen nor Jackson could understand why they were placed on probation
and inquiries addressed to Howell and Hughes were not satisfactorily answered.
McMullen claimed she was denied overtime until sometime in January 1960, some
3 or 4 weeks before the election.
McMullen testified substantially the same as Jackson concerning Howell's meet-
ing with the employees on December 17 and Pimm's meeting with the employees on
December 18. Like Jackson, McMullen stated she knew of no rule requiring the
employees to call in when sick prior to February 3, 1960, but on that date such a
rule was posted on the bulletin board.
Howell did not testify regarding his meeting with the employees on December 17.
Howell testified that on December 18, he asked Jackson to work overtime but she
stated she was ill and ready to go home. From their conversation Howell under-
stood Jackson did not want overtime work, so he did not offer her overtime until
after her disciplinary layoff in February. At that time Howell heard Jackson had
complained about failure to get overtime so he asked her if she desired overtime
and when she said she did, he gave it to her.
He stated that around the end of January he talked to Jackson about her excessive
absenteeism and her failure to call in on such occasions. Howell told Jackson that
in the future she would have to notify him when she would be absent in order that
he could fill her job and she promised to do so. The next week Jackson was absent
2 days, February 1 and 2, and when she reported February 3, Howell told her she
was being laid off for 3 days for failure to report her absence. Howell reported
the incident to Pimm and the same day a notice was posted on the bulletin board
to the effect that employees were required to notify the foreman in the case of
absence and any employee failing to do so would be subject to dismissal.
Howell said Jackson had been leaving her worktable and talking to other em-
ployees and around the first of January he told her that he was placing her on pro-
bation and if she continued to leave her job she would be subject to dismissal. He
denied he told Jackson she could not associate with coworkers during the luncheon
period. Howell admitted he warned McMullen to stay on the job but denied he put
her on probation, or that he deprived her of overtime.
Concerning the election ballot, Howell stated he was informed Jackson was ex-
hibiting a union paper during working hours, so he called her to the office. Jackson
admitted she had the paper, which she offered to show him, but denied she passed
the paper around during working hours. Howell said she could not neglect her
work to pass around union papers or anything else. He denied he made any threat
or remark that he could fire her for such activity.
Pimm stated he spoke to the employees in the packing and shipping department
on December 18, because the girls approached him with questions concerning
organization which they did not understand. Pimm's remarks to the employees were
recorded in shorthand by his secretary, Viola M. Ladson, and a typewritten copy
thereof was received in evidence, without objection. In brief Pimm outlined his
experiences with the union at Bridgeport, expressed opposition to organization, and
informed the employees that the Company was meeting with representatives of
the Board and the Union on January 5, regarding the representation petition. The
General Counsel does not contend or argue that the speech was coercive.
The Company also produced a summary of its records showing the hours worked
by Jackson and McMullen during the period in question, which is discussed below.
BRIDGEPORT BRASS COMPANY 1341
F. Acts of interference , restraint, and coercion
Walter G. Lee, receiving clerk in the shipping department, stated that in Decem-
ber and January he and Howell had several conversations concerning the Union
and on one occasion Howell made a remark about the plant moving in the event
the Union came in . When Lee inquired if the plant would actually move, Howell
answered it would and cautioned Lee, "You had better not be with the union, be-
cause here in the office, I can make or break you." Between February 21 and 25,
Howell asked Lee several times how he was going to vote in the election and Lee
assured Howell he was going to vote against the Union.
Nick Norman was employed as a forklift operator under Howell from De-
cember 1959 to April 1960, when he was discharged. Some 2 weeks before the
election Howell approached Norman and five or six other employees during a work
break and declared, "If the union comes in , there will be a strike within seven days;
he would see to it personally." About February 22 or 23, Howell asked Norman
how he was going to vote in the election and he replied he would vote the way he
had planned.
Larry Croy was hired as a machine operator on November 17, and was given
the usual pay increases after 6 weeks and 90 days, respectively. When he received
the latter increase Hughes stated he would get additional increases if his work was
satisfactory and commented "something about there was a possibility that I [Croy]
could be fired or laid off if the union came in." Croy admitted that Hughes may
also have mentioned something about a strike.
Frankie Thomas, a packer, stated that on the day of the election, and once prior
thereto, Howell asked if she was going to vote "no" in the election and she said that
she would vote that way.
Ollie May was hired on November 20 as an inspector under Scull and received
her 6-week pay increase of 5 cents an hour. On the day of the election May asked
Scull if she was going to get her second increase and he stated that she would as
"soon as this union mess cleared up, we would get back on our feet." On March 7,
May was given her second increase.
Myrtle Williams, a packer, testified that about February 22 she asked Howell if
it was true the plant would close down if the Union came in and he replied, "Yes, it
is; they have a plan worked out that they would ditch the machinery, junk the
machinery and sell the material for scrap and turn the building back to the Chamber
of Commerce."
Howell testified he told Williams and other employees that "if the union won the
election and made it as economically rough on the Moultrie plant as it did the East
Main plant [Bridgeport] that I felt they would have to close."
Hughes did not testify concerning Croy's testimony.
Scull did not testify at the hearing.
It is undisputed that Howell exhibited a photograph of the Company' s Bridge-
port plant to the employees and that it was posted on the bulletin board with a
notation stating, "This was where you worked before the union got so bad that we
had to move."
The foregoing statements attributed to Hughes and Scull are undenied. Howell's
explanation of his remarks to the employees is.couched in general and legalistic
language. I am not persuaded by Howell's explanation and I credit the testimony
of the witnesses for the General Counsel. Indeed, the Company, in its brief, does.
not touch upon the foregoing evidence.
This evidence, as well as the findings with respect to the testimony of Proctor,.
Jackson, and McMullen, shows widespread interrogation of employees concerning:
their union membership and sympathies and how they would vote in the election,.
plus numerous threats and warnings that organization would not be beneficial to the
employees and that the plant would close down in the event it became organized.
Plainly, the interrogation of employees in the circumstances herein constituted illegal
interrogation under the rule announced in the Blue Flash Express, Inc., case. (109
NLRB 591.) It is equally plain that the photograph of the closed Bridgeport plant,
with the notation thereon, contained a definite threat or warning that the same thing
would happen to the Moultrie plant, if organized by the Union. Hence, the circula-
tion and posting of the photograph was not protected by Section 8(c) of the Act.
I therefore find that by the above interrogations, statements , acts, and conduct the
Company thereby interfered with, restrained, and coerced the employees in the,
exercise of their rights guaranteed, under Section 7 of the Act, in violation of Sec-
tion 8 (a)( 1 ) thereof.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howell's Solicitation of McMullen To Engage in Surveillance and To Speak to
Jackson Concerning 'Her Union Activities
McMullen testified she had a conversation with Howell on February 22, while she
was working, when he requested her to attend a union meeting to be held that night
and to report the names of the employees who were present. McMullen said she
could not do so because the union and nonunion workers were her friends. McMullen
also stated she had several conversations with Howell, apparently about February 22,
and some 3 weeks before the election, concerning Jackson. In these conversations
Howell said he wanted to know if Jackson was still in favor of the Union and asked
McMullen to speak to her and try to get her to drop the Union.
Howell denied McMullen's testimony regarding surveillance of the union meeting.
Concerning Jackson, Howell said it was McMullen who asked him if he would talk to
Jackson to help her get out of the Union and he told her, no, that if Jackson desired
to talk to him, he would be glad to do so.
I accept McMullen's testimony and find that Howell requested that she engage in
surveillance of the union meeting and that she attempt to persuade Jackson to give
up her union membership and activities.
McNamara's Speech to the Employees
McNamara admitted that on February 24 he spoke to all the employees in the
cafeteria and a copy of his speech was offered and received in evidence. In brief,
the General Counsel argues that the speech, considered in the light of the Company's
antiunion campaign, contained veiled threats that the plant would be closed if the
Union should win the election to be held the next day. Although McNamara
undoubtedly expressed opposition to the Union and urged the employees to vote
against it in the forthcoming election, I am of the opinion his speech falls within
the protection of Section 8(c) of the Act. Accordingly, I find McNamara's speech
was not violative of the Act and 'I do not rely upon the same for any of the findings
herein.
The Testimony of Paul Jackson
The General Counsel closed his case in the late afternoon of June 6. The following
morning the General Counsel moved to reopen his case for the purpose of taking the
testimony of Paul Jackson, husband of Elene Jackson, on the grounds that he first
learned of his testimony during the adjournment. Over objection of counsel for the
Company, I granted the motion.
Jackson testified that about February 15, 1960, Howell came to his home and
introduced himself as Elene's supervisor. In short, Howell stated that: (1) They
were having difficulty with Elene at the plant; (2) if she would denounce the Union
and support the Company he could guarantee her future employment; (3) she was
on probation and had lost her overtime; (4) she was scheduled to be fired; and
(5) Proctor had been fired for his union activity. Continuing, Howell pointed out
that Jackson himself had been fired from a Federal housing project because of Elene's
union activities and that he had a mortgage at a local bank which might be foreclosed
unless he did something about his wife's organizational activities. All of these
threats and offers were resisted by Jackson on the ground that he would not sacrifice
constitutional rights for his wife's job. Jackson admitted he did not come forward
with this testimony until the night before he testified because he and Elene feared
it might jeopardize his future standing in the community.
Howell denied that he visited Jackson's home around the time in question, or any
other time, or that he ever had any such conversation with Jackson.
The General Counsel argues that Jackson "reluctantly" took the stand to support
his wife and Proctor at "the risk of jeopardizing his standing in this anti-union com-
munity." There is no evidence to support these assertions. First, Jackson was cer-
tainly no reluctant witness, in fact he was a very garrulous and willing individual.
Secondly, there is no credible testimony, much less allegation in the complaint,
remotely suggesting that the officials or the citizens of Moultrie were cooperating
with the Company in opposing organization of the plant. I am convinced Jackson
was simply attempting to build up a case for his wife, and incidentally Proctor, and
I have no difficulty in concluding his testimony must be rejected. I accept Howell's
testimony and find he had no such conversation with Jackson.
Concluding Findings
I have no difficulty in finding that Proctor'was an active proponent of the Union
and that company officials were fully aware of his union activities.
BRIDGEPORT BRASS COMPANY 1343
It is undisputed that Pimm and Hughes summoned .Proctor to the office on
December 11 and accused Proctor, along with Taylor, of uttering .threats of violence
against McGeecher because of her attitude towards the Union. Although Proctor
denied the accusation, Pimm, without further investigation or consideration, sum-
marily disciplined Proctor (and Taylor) by giving him a 3-day layoff. From my
observation of Proctor on the witness stand I find it difficult to believe that he would
threaten violence to a lady employee because of her union attitude. I am convinced
Proctor was not guilty of any such conduct and that Pimm simply used the report
of threats as an excuse to discipline Proctor for his organizational activities. By
so doing the Company thereby violated Section 8(a) (3) and (1) of the Act.
Upon his return to work on December 15, Proctor was called to the office where
he met with Hughes and Buccine. Hughes admitted he spoke to Proctor about an
incentive plan which the Company was considering and under which an experienced
operator could earn as high as $1.60 an hour. While Hughes claimed the conver-
sation was limited to the subject of the incentive plan, Proctor asserted Hughes
questioned him' regarding the Union and talked about organization. In this con-
nection Hughes stated the Company would adopt a seniority plan if the plant was
organized, which might result in Proctor losing out on a good job and that the Com-
pany might close down if forced to operate under union conditions. I accept
Proctor's account of the meeting and find Hughes questioned Proctor concerning
the Union and offered inducements and threats calculated to discourage Proctor
from continuing his union membership and activities in its behalf.
The next incident involving Proctor occurred on Saturday, January 2, when he
left his job at noon without advising anyone. Whether Proctor left because of Tate's
conversations or his dissatisfaction with the cleanup job is immaterial for when he
reported for work the following Monday, he was neither warned nor disciplined for
having left his job without permission or notification.
There is no dispute that on January 6, Proctor was laid off for 1 week by Pimm
for alleged inefficiency and discharged on January 15 on orders by Pimm for the
same reason. The General Counsel contends the layoff and discharge were prompted
by Proctor's union membership and activities rather than inefficiency.
Pimm produced certain records prepared by the accounting department, which
were compiled from Proctor's own daily work reports, purporting to show Proctor's
inefficiency. One of these records, captioned "Analysis of Proctor and His Replace-
ment, Bizzell" (Respondent's Exhibit No. 11) shows Proctor's efficiency rating for
the weeks ending December 5, •1959, through January 16, 1960, and Bizzell's rating
for the period January 24 through March 6, 1960. The analysis discloses that in
the above-mentioned period Proctor worked a total of 208.2 payroll hours, of which
121.2 were actual direct labor hours (Actual D/L Hours), that is, productive hours
when his machine was operating and producing, while his standard direct labor hours
(Std D/L Hours) amounted to 106.2, that is, the time allotted for the particular jobs
performed. Thus, Proctor had an efficiency rating of 87.6 (percent of actual hours
to standard hours). For this period the department efficiency average was 86.7.
By taking the percentage of actual direct labor hours, productive hours, to payroll
hours, time paid, the analysis shows that Proctor was actually producing but 58.2
percent of the time for which he was paid. Therefore, according to the analysis,
his "Average Non Productive Time" was 41.8 percent of the actual hours worked
and for which he was paid. The analysis does not reveal the department average
for nonproductive time. As I view the analysis, the records establish that Proctor's
efficiency rating was slightly above the department average for the period selected,
albeit his nonproductive hours appear to be high. Apart from the absence of
department average for comparative purposes, there are many factors, which enter
into the fixation of productive or nonproductive hours. Thus, machine breakdowns
:ire excluded from actual direct labor hours, as is time spent obtaining material and
for cleanup operations. Again, it may be that Proctor charged too much or too
little for the particular jobs performed. And, of course, there is the possibility that
the Company may have withheld work from Proctor. Whatever the answer, and
there is no satisfactory explanation in the record, I cannot conceive that the Com-
pany would permit Proctor to loaf 41 percent of the time over a period of 5 or 6
weeks without even speaking to him, or warning him, about such a serious matter.
Certainly, Pimm was not hesitant in warning Proctor regarding alleged derogatory
remarks made against the Company in October, and in December he lost no time
in inflicting disciplinary punishment to Proctor supposedly for threatening a lady
employee. Thus, according to the analysis, for the week ending December 5,
Proctor was paid for 40 hours, but actually produced but 18.6 hours of that time.
Despite the fact that the figures indicate he was not .producing for more than half the
time for which he was paid, nevertheless no question was raised regarding his effi-
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciency until January 6 . In the meantime Pimm had laid off Proctor on December 11,
and Hughes had spoken to him on December 15, but neither made any reference
whatever to his efficiency or inefficiency. In my opinion if there had been any real
question concerning Proctor's efficiency as an employee either Pimm or Hughes
would have brought it to his attention long before January 6. Oddly enough, the
analysis shows that for the week ending January 1, Proctor's efficiency rating was
103 percent.
For comparative purposes the analysis reveals the work record of Bizzell for the
weeks ending January 24 through March 6, 1960. Manifestly, the selection of an
employee covering the period in question would present a truer comparison as to
Proctor, but in any event the analysis as to Bizzell's work record is interesting.
Bizzell's efficiency rating is not too impressive for it was 88.3 percent when the plant
average was 88.2 percent. However, the analysis discloses that Bizzell actually
produced 90.9 percent of the time for which he was paid, so his nonproductive time
amounted to but 9.1 percent. Compared to Proctor's record this is an amazing
average. Indeed Bizzell actually produced 100 percent of the time for which he
was paid during 2 different weeks, 56 hours one week and 46 hours the other week.
This means he had no machine breakdowns, spent no time obtaining materials, and,
seemingly, cleaned up on his own time. I find this hard to believe. Under the
circumstances I fail to see how Bizzell's record is decisive of the issue of Proctor's
efficiency since it covers a later period of time. It strikes me the Company could
just as easily have presented the record of any operator who was working during
the same period selected for Proctor.
As I have already stated, I find it difficult to believe that the Company would have
allowed Proctor to loaf almost 50 percent of the time. Although the Company
claims that Proctor left his work excessively, the evidence on this point is neither
substantial nor convincing. Thus, Pimm said he had observed Proctor away from
his work "a couple of times"; Tate could not estimate the number of times he saw
Proctor leave his machine "but it was a number of occasions"; Simko saw him "away
from his work quite a few times"; Hughes observed Proctor in another department
and spoke to him "Probably on one or two occasions"; and Howell said Proctor came
to his department frequently, three or four times a week, and once around January 1,
he told Proctor to leave. Proctor denied he left his machine any more than the
other employees. He admitted he, as well as other employees, went to the packing
and shipping department to pick up and deliver material. Proctor denied Howell
ever told him to leave the department.
The foregoing testimony, which evidently covers his entire employment, falls
far short of proving that Proctor's alleged nonproductive time was due to his own
fault or conduct. Although the analysis and the testimony gave rise to vari'us
speculations and suspicions as to the cause of Proctor's high percentage of so-called
nonproductive time, I find the record insufficient to -warrant a finding that Proctor
was responsible for this situation or that he was aniaefficient worker.
It is undisputed that Proctor returned to work on January 13 and was discharged
on January 15. Pimm produced records covering Proctor's employment for January
13 and 14 (Respondent's Exhibit No. 10) and plainly stated, "This is the basis on
which I gave M•r. Hughes instructions to discharge Proctor." These records are
limited strictly to Proctor's efficiency rating on three job operations computed on the
basis of actual hours to standard hours. Unlike the analysis discussed above, these
records contain no reference whatever to nonproductive time , or to percentages of
actual and standard hours to payroll hours, in fact payroll hours are omitted en-
tirely. The records merely disclose that on January 13, Proctor performed two
operations, flare and cup handle. On the flare job his actual hours were 1.1 hours as
against 0.6 standard hour for the operation so his efficiency rate was 54.55 percent.
On the cup handle operation he spent 4.8 hours on a 1.6-hour job, giving him an effi-
ciency rating of 33.33 percent. On January 14, he took 7.4 hours to perform a cup
handle job, which was fixed at 2.8 hours, for an efficiency rating of 37.84 percent.
Pimm testified these figures showed a decrease in Proctor's efficiency rate for the
preceding week and the department average. Unquestionably, this is true for Proc-
tor's efficiency rate for that week was 99.0 percent and the department average was
86.7 percent. Nevertheless Proctor was laid off for 1 week.
Testifying from his own records Proctor, on rebuttal, accounted for his hourly
time as follows: On January 13, he spent 0.7 hour material handling, 4.8 cup handle
operation, 1.1 flare operation, 0.3 tool trouble, and 1.1 cleaning up for a total of 8
payroll hours. On January 14, 7.4 hours cup handle operation, 0.4 material han-
dling, and 0.2 tool trouble, comprising 8 payroll hours. Proctor testified that when
he operated the flare machine for 1.1 hours, "I did 501," whatever the unit descrip-
tion might be, which he stated was normal or average. Concerning the cup handle
BRIDGEPORT BRASS COMPANY 1345
jobs, he stated that in 4.8 hours he produced 5,805 units and in 7.4 hours he produced
10,415 units, which he said was normal or average production. His testimony in this
respect is not disputed.
It is abundantly clear that the Company used one formula to determine Proctor's
efficiency to justify his disciplinary layoff and a different formula to support its con-
tention that he was discharged on the grounds of inefficiency. Thus, in the period
preceding his layoff Proctor's efficiency rating was above the department average,
so the Company rejected his rating and, instead, used nonproduction time as a fac-
tor to establish he was an inefficient employee. Later, when Pimm decided to dis-
charge Proctor he did so on the basis of his efficiency rating for 2 days and nothing
more. Undoubtedly, Proctor's efficiency rate for these 2 days was low and entirely
out of proportion to his rating for the previous 6 or 7 weeks. There is no disagree-
ment between Proctor and Pimm and company records as to the type of operation
and hours actually worked on January 13 and 14. Proctor was not questioned in
regard to the standard hours allowed for the particular operations and there is no
evidence indicating knowledge, or lack of knowledge, on the part of Proctor, or other
employees, concerning the standard hours formula as fixed by the Company. In any
event, Proctor gave the exact number of units produced while working on the par-
ticular jobs on the dates in question and he stated his production in all respects was
normal or average. I am more impressed with Proctor's testimony that his produc-.
tion was average for these 2 days, rather than the bare records of the Company to the
contrary. Moreover, the Company, if it had so desired, could have challenged Proc-
tor's production figures and his assertion that they were in line with average depart-
ment production. I therefore accept Proctor's testimony and find that his produc-
tion for January 13 and 14 was normal or average.
Of course, it is well established that the Act does not interfere with the normal
right of an employer to discharge his employees but is directed solely against abuse
of that right by interfering with the countervailing right of self-organization guaran-
teed employees under the provisions thereof.3 I am convinced that the Company's
treatment of Proctor at the time he was advocating the Union, coupled with its
hostility to organization, as found above, warrants the conclusion that the layoffs and
discharge of Proctor were motivated by a desire to eliminate the most active pro-
ponent of the Union and were part of a plan to discourage Proctor and other em-
ployees from becoming or remaining members of the Union or participating in ac-
tivities on its behalf for the purposes of collective bargaining or other mutual aid or
protection.4 By thus laying off and discharging Proctor, the Company violated Sec-
tion 8(a) (3) and (1) of the Act.
Elene Jackson
The gravamen of Jackson's case is that she was discriminatorily denied overtime
and laid off for 3 days for failure to report her absence from work.
Unquestionably, Jackson was active on behalf of the Union and acted as union
observer at the election held on February 25. It is also clear, and I find, that at the
meeting of the packing and shipping department employees on December 17, Howell
exhibited a picture of the Bridgeport plant, stated employees would have to sign
their ballot in any election to be held, accused Jackson of trying to organize the
plant, and interrogated employees regarding their union affiliation and sympathies.
It is equally clear that on December 21, Jackson showed the employees an old elec-
tion ballot, before working hours, in order to convince the workers the election would
be a secret one. This action resulted in Howell calling her to the office. Jackson
claimed Howell put her on probation, which meant she would receive no overtime
and could not associate with other employees. Howell admitted he spoked to her
on that occasion because he had heard she was passing the ballot around during work-
ing hours and when Jackson denied this took place during working hours, he
cautioned that she could not neglect her work. Howell conceded he placed Jackson
on probation around the first of January because she was leaving her job constantly,
but denied that the probation prevented her from associating with her coworkers.
I find that Howell's conduct at the meeting of the employees on December 17
constituted interference, restraint, and coercion with the right of the employees in
violation of Section 8 (a)( 1 ) of the Act.
s Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 187; N.L.R.B. v. T. A. McGahey, Sr.,
et at. d/b/a Columbus Marble Works, 233 F. 2d 406, 413 (C.A. 5).
4 N.L.R.B. v. Avondale Mills, 242 F. 2d 669, 671 (C.A. 5) ; N.L.R.B. v. Armstrong
Tire and Rubber Company, Tire Test Fleet Branch, 228 F. 2d 159, 161 (C.A. 5) ;
N.L.R.B. v. S. S. Coachman & Sons, Inc., 203 F. 2d 109, 111 (C.A. 5).
597254-61-vol. 130-86
1346 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD •
While, undoubtedly, Howell spoke to Jackson on December 21 concerning the
ballot, I find the evidence on this meeting too inconclusive to support a finding of
unfair labor practices. Further, I accept Howell's testimony and find Jackson was
not placed on probation at that time.
There is no question but that Jackson declined Howell's request to work overtime
on December 18. From this Howell assumed Jackson did not want overtime, so
,he did not again offer her overtime until February, when he heard she had com-
•plained in that respect. I fail to see how Howell's assumption can be held unreason-
able, especially since Jackson voiced no complaint to him. Thus, on cross-
examination she was asked, "You haven't had any discussion with him [Howell]
about it [overtime] since then? [December 18]" and she answered, "Well, in
April, he started giving me overtime again." As appears below, Jackson was ab-
sent practically the whole month of April.
The alleged refusal to give Jackson overtime is interwoven with her absentee
record and her failure to notify the Company of her absence which resulted in a
3-day disciplinary layoff. Jackson admitted she did not notify the Company of her
absence from work on February 1 and 2, although she unsuccessfully tried to do so.
Howell's version is somewhat different. He stated that in the latter part of January
he warned Jackson of her excessive absenteeism and her failure to call in and in-
structed her to notify the Company of any further absence. The following week she
was out 2 days, February 1 and 2, and did not call in. For this she was laid off for
-3 days. The General Counsel stresses the point that as of that date the Company had
no written or posted rule requiring the employees to give notice of absence and that
Jackson's layoff was for discriminatory reasons. The Company claims employees
had been verbally instructed to notify their foreman of any absence. Admittedly, a
written rule was posted on February 3. I am not impressed by the General Coun-
sel's argument for it seems to me that any responsible employee would notify his em-
ployer of any absence, regardless of anly rule. In any event, I find Howell had
instructed Jackson to report any future absence and since she neglected to do so,
her 3-day layoff was for nondiscriminatory reasons.
Jackson's employment record, which was received in evidence without objection,
shows a poor attendance record. From August 13 to December 17 she was absent
six times, ranging from 4 hours to 3 days; from December 24 to February 27 she
was absent seven times, from 8 hours to 2 days; and from March 5 to May 28 she
was absent on two occasions, once for 4 weeks and again for 1 day. Strangely
enough, although Jackson claimed she was placed on probation on December 21,
and denied overtime thereafter, the records show that for the week ending Decem-
ber 24 she worked 40.3 hours, despite the fact she was absent 8 hours that week. 1
find the Company did not discriminatorily refuse to give Jackson overtime or un-
lawfully lay her off in February 1960.
I do find that on February 23, when Howell advised Jackson she had been
chosen as union observer at the election, he sought to persuade Jackson to cease
advocating the Union, with the promise that if she did, he could do a lot of things
for her. I also find that Howell made a similar appeal and promise to Jackson on
February 24.
McMullen testified she was placed on probation about the middle of December
and refused overtime until 3 or 4 weeks before the election. Howell denied Mc-
Mullen was placed on probation or deprived of overtime. McMullen did not par-
ticipate in the organizational campaign and is not mentioned in the complaint. The
General Counsel offers her testimony to support his theory that Jackson was unlaw-
fully refused overtime. The Company's records show that for the week ending
December 24, when she was supposedly on probation, McMullen worked 54.5 hours.
The records also show that during the 4 weeks in January she worked 28.1, 45, 44.5.
and 54.7 hours, respectively. When confronted with these figures on cross-
examination, McMullen simply said she was on probation, could not work overtime
and somebody must have made a mistake. I accept Howell's testimony and the
accuracy of the Company's records and find she was not put on probation or denied
overtime.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
. BRIDGEPORT BRASS COMPANY 1347
V...THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices affecting commerce, I shall recommend that it cease and
desist therefrom and take certain affirmative action in order to effectuate the policies
of the Act.
It has been found that the Respondent by laying off and discharging Thomas R.
Proctor discriminated against him in respect to his hire and tenure of employment in
violation of Section 8 (a) (3) of the Act. I shall, therefore, recommend that the
Respondent cease and desist therefrom and from infringing in any other manner
upon the rights guaranteed employees in Section 7 of the Act. I shall recommend
that the Respondent offer to Thomas R. Proctor immediate and full reinstatement
.to his former or substantially equivalent position without prejudice to his seniority
and other rights and privileges.5 I shall further recommend that the Respondent
make whole Thomas R. Proctor for any loss of earnings he may have suffered be-
cause of the discrimination against him, by payment to him of a sum of money
.equal to the amount he normally would have earned as wages during the period of
his layoffs, December 11, 1959, and January 6, 1960, and from the date of his dis-
charge, January 15, 1960, to the date of the offer of reinstatement , less his net
.earnings during these said periods with backpay computed in the customary manner .6
I shall further recommend that the Board order the Respondent to preserve and
make available to the Board, upon request, payroll and other records to facilitate
the checking of backpay and the rights of employment.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Bridgeport Brass Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization as defined
in Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Thomas
R. Proctor, thereby discouraging membership in United Steelworkers of America,
AFL-CIO, 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, by interrogating' employees regarding their union
membership and sympathies, by promising benefits to the employees if they would
give up their union membership or activities, and by threatening to close down the
plant if the Union succeeded in organizing it, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act and thereby 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 com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in' unfair labor practices by reason of its
layoff of Elene Jackson, nor did it refuse to give her overtime as alleged in the
complaint.'
Further, the Respondent has not engaged in any unfair labor practices by reason
.of the speeches by Joseph McNamara and John H. Pimm about February 24, 1960,
-and December 18, 1959, respectively.
[Recommendations omitted from publication.]
r The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,
65 NLRB 827.
e F. W. Woolworth Company, 90 NLRB 289.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization, by laying off or by discharging or
refusing to reinstate any of our employees, or in any other manner discriminat-
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing in regard to their hire or tenure of employment , or any term or condition
of employment.
WE WILL NOT interrogate our employees concerning their membership , affilia-
tion , or sympathy with the above -named or any other labor organization, in a
manner constituting interference, restraint , or coercion in violation of Section
8(a)(1)oftheAct.
WE WILL NOT threaten our employees that we will shut down the plant in,
the event it becomes organized by the above-named or any other labor organiza-
tion. ,
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist the above -named or any other labor organization , to bar-
gain collectively through representatives of their own choosing , to engage in.
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , and to refrain from any and all such activities.
WE WILL offer to Thomas R. Proctor immediate and, full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
and other rights and privileges and make him whole for any loss of pay suffered.
as a result of the discrimination against him.
All our employees are free to become , remain , or refrain from becoming or remain-
ing members of United Steelworkers of America , AFL-CIO, or any other labor
organization.
BRIDGEPORT BRAss COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
'Allied Distributing Corporation and Standard Optical Company
and International Union of Electrical , Radio and Machine
Workers, AFL-CIO. Case No. 2O-CA-1744. March 15, 1961
DECISION AND ORDER
On May 26, 1960, Trial Examiner Eugene K. Kennedy issued his
Intermediate Report in this proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also recommended that the complaint
be dismissed in all other respects except in accordance with the find-
ings and conclusions set forth in the Intermediate Report. The
Board 1 has reviewed the rulings made by the Trial Examiner at the:
hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the excetpions, and the brief,2 and hereby adopts the.
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the-
Board has delegated its powers in connection with this case to a three -member panel
[ Members Rodgers , Jenkins, and Fanning].
2 The Respondent's request for oral argument and to reopen the hearing is denied as in-
our opinion the record , exceptions, and brief adequately present the positions of the parties.-
130 NLRB No. 143.