Scott & Williams, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1952

99 N.L.R.B. 919 (N.L.R.B. 1952)

SCOTT & WILLIAMS, INCORPORATED
CONCLUSIONS OF LAW
919
1. United Automobile Workers of America, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By surveillance of union meetings ; interrogation of employees concerning
organizational activity ; threat and promise of benefit in connection with an
election of a collective bargaining representative ; and a statement that union-
authorization cards would be subject to its inspection , thereby interfering with,
restraining , and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices within the mean -
ing of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication in this volume.]
SCOTT & WILLIAMS, INCORPORATED and UNITED STEELWORKERS OF
AMERICA, C. I. O. Case No. 1-CA-864. June 05,195R
Decision and Order
On September 12, 1951, Trial Examiner John Lewis issued his
Intermediate Report in the above-entitled 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 certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and adopts the findings, conclusions, and recommendations of the
Trial Examiner.
The Trial Examiner found that Victor Dyer was discriminatorily
discharge in violation of Section 8 (a) (1) and 8 (a) (3) of the
Act. We agree, particularly for the following reasons : In July 1950
'The Respondent has requested oral argument. In our opinion the record , the excep-
tions, and brief fully present the issues and the positions of the parties. Accordingly, this
request is denied.
2 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
[Chairman Herzog and Members Houston and Murdock].
99 NLRB No. 140.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereafter, Dyer, a skilled employee in Department 16, openly
became a leader of the Union, and the Respondent learned of this
fact., Late in August,%as-.the Trial Examiner found, Superintendent
John Ross was heard to say in substance : "Dyer better lay off this
union business or he will be sorry." At about the same time Foreman
Thomas Dickson was heard to say, in the course of mentioning the
Union : "If Ford and Dyer didn't control their activities, why they'd
probably be sorry for it or regret it."
On September 5 Dyer was advised by Foreman Dickson that he
would be terminated at the end of the week for lack of work in the
department. As the Trial Examiner found, however, this explana-
tion is not credible, particularly in view of the marked general im-
provement in the Respondent's business as a whole. Moreover, at
the time of Dyer's discharge- the Respondent was in need of additional
employees with Dyer's skills, and Superintendent Ross admitted that
an employee almost had to commit "mayhem" to merit discharge. Yet
Dyer's request for transfer rather than discharge was denied,
allegedly because of his poor production.
At the hearing the evidence showed that Dyer's production had
been steadily improving and stood well above the level of other em-
ployees retained by the Respondent. It was then that the Respondent
abandoned its previous explanation for refusing to transfer Dyer-
because of his alleged poor production. Rather, the Respondent,
apparently as an afterthought, attempted to justify its action on the
nebulous..ground of Dyer's,"attitude." We, like- the Trial Examiner,
find that this ground did not motivate the Respondent at the time of
Dyer's discharge. In any event, it is unsupported by the credible
evidence in the record.3 We agree with the Trial Examiner that the
true explanation for Dyer's discharge was his union membership and
activity.
We also agree with the Trial Examiner that the Respondent vio-
lated Section 8 (a) (1) of the Act in the granting of wage increases.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Scott & Williams,
Incorporated, its officers, agents, successors, and assigns shall:
' The Respondent argues principally , in its exceptions and brief , that the Trial Examiner
erred in crediting the testimony of certain witnesses and in refusing to credit the testi-
mony of other witnesses. Our rule, when issues of credibility are raised in exceptions,
is to accept the findings of the Trial Examiner, unless the clear preponderance of all the
relevant evidence indicates that the resolution by the Trial Examiner was incorrect.
Standard Dry Wall Products Inc, 91 NLRB 544, enforced 188 F. 2d 362 (C. A. 3) ; N. L.
R. B. v. Universal Camera Corp ., 190 F . 2d 429 ( C. A. 2). No such conclusion is warranted
in this case.
SCOTT & WILLIAMS, INCORPORATED 921
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
C. I. 0., or any other labor organization by discharging, or refusing
to reinstate, any of its employees, or in any other manner discrim-
inating in regard to their hire and tenure of employment, or any
term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Steelworkers of America,
C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Victor Dyer immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of the Respondent's
discrimination against him, in the manner described in the section of
the Intermediate Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agents, for
examination and copying, all records necessary for a determination
of the amount of back pay due under the terms of this Order.
(c) Post at its plants in Laconia, New Hampshire, copies of-the
notice attached to the Intermediate Report and marked "Appendix
B." 4 Copies of the said notice, to be furnished by the Regional Di-
rector for the First Region, shall, after being duly signed by the
Respondent's representative, be posted by Respondent immediately
upon receipt thereof and maintained by it for'sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
4 Said notice , however , is amended by striking from line 3 thereof the words "The Recom-
mendations of a Trial Examiner ," and substituting in lieu thereof 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."
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT Is FtTRTHER ORDERED that the complaint be dismissed, insofar as it
alleges that the Respondent interrogated its employees and kept their
union meetings under surveillance.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon"a'charge duly filed-by United Steelworkers of America, C. I. 0., herein
called the Union,- the General Counsel of the National Labor Relations Board, by
the Regional Director for the First Region (Boston, Massachusetts), issued his
complaint, dated May 24, 1951, against Scott & Williams, Incorporated, herein
called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3), and Section 2 (6) and (7) of the National Labor
Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the
complaint, the charge, and notice of hearing were duly served upon the Respond-
ent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent: (1) On or about September 8, 1950, discriminatorily dis-
charged Victor Dyer and has since said date failed and refused to reinstate him ;
'(2} from., on or about August- 7;' 1950; ,to date threatened .employees with' dis-'
charge or other reprisals if they joined or assisted the Union, and interrogated
them concerning their union affiliation; (3) granted to employees a wage in-
crease on or about September 25, 1950, and on or about October 30, 1950; and
(4) has kept under observation and surveillance the meeting places, meetings,
and concerted activities of its employees. In its answer, duly filed, the Respond-
ent admitted certain allegations of the complaint, but denied commission of any
of the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Laconia, New Hampshire, on June 18,
79, and 20, 1951, before oJhn Lewis, the undersigned Trial Examiner, duly
designated, by the Chief Trial Examiner. All parties were represented by
counsel, participated in the hearing, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. At the conclusion of 'the General Counsel's case-in-chief
the Respondent made a series of motions to dismiss the various allegations of
the complaint. Said motions were denied, except for a motion to dismiss the
allegation of the complaint alleging that Respondent had threatened employees
with discharge,, which was granted.' At the conclusion of all the evidence Re-
spondent renewed its motion to dismiss various allegations of the complaint,
ruling thereon being reserved by the undersigned. Said motions are disposed of
in accordance with the findings, conclusions, and recommendations hereinafter
made. The parties were advised that they could make oral argument before the
undersigned, or file briefs or proposed findings of fact and conclusions of law,
or both. The parties waived oral argument indicating that they preferred to
file briefs. Since the close of the hearing briefs have been received from the
Respondent and the General Counsel which have been carefully considered by
the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
I The evidence in support of this allegation of, the complaint is hereinafter discussed in
Section III of this Report
SCOTT & WILLIAMS, INCORPORATED
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
923
Scott & Williams, Incorporated , is a corporation organized under and existing
by virtue of the laws of the Commonwealth of Massachusetts , having its prin-
cipal office in Boston , Massachusetts , and also having an office and its principal
plant at Laconia , New Hampshire . The Company is engaged in the manufacture
of knitting machinery and its principal raw materials consist of steel and cast
iron . The Company purchases annually raw materials valued in excess of
$200,000 , more than 50 percent of which is shipped to it from points outside the
State of New Hampshire . The Company 's finished products exceed in value
$300,000 annually , more than 50 percent of which is shipped to points outside the
State of New Hampshire? Based upon the foregoing facts the undersigned finds
that the Respondent was, at all times material , and now is , engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company operates two plants in Laconia where it employs approximately
750 employees. It also operates a foundry at Concord, New Hampshire. The
events at issue revolve primarily about one of the Laconia plants, known as the
Lakeport plant by reason of the section of Laconia in which it is situated.
The earliest evidence of any collective activity among Respondent's em-
ployees in Laconia is the existence of a collective bargaining agreement with
the International Association of Machinists during the period 1941-42. The
next evidence of collective activity involves the period from January 1947 to
October 1949, when the Company had a collective bargaining agreement with
the American Federation of Hosiery Workers The latter union was disbanded
in October 1949 and there is no further evidence of union activity among Re-
spondent's employees until July 1950 when the charging Union began its organ-
izing campaign.
According to John LaMaur, a representative of the Union, during the early
part of July, while the Company's employees were on their annual 2-week vaca-
tion period, he was approached at his headquarters in Claremont, New Hamp-
shire, by an employee who requested him to come to Laconia to organize Re-
spondent's employees. LaMaur gave the employee in question a number of
application cards with instructions to distribute them among the employees.
Around August 1, after the employees had returned from their vacation, La-,
Maur came to Laconia to hold the first organizing meeting which was attended
by approximately 38 employees. Other such meetings were held periodically
thereafter. On August 25, 1950, the Union filed a petition seeking certification
as bargaining representative of Respondent's employees. On or about the
same date the Union requested the Company to bargain with it as a representa-
tive of'its employees. The Company replied by letter dated August 31, 1950.
2 The above findings are based on facts stipulated by the parties.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advising that it was not prepared to recognize the Union until it was certified
by the Board. The Union subsequently received a majority of the votes cast
in a Board-conducted election on January 17, 1951, and was certified as exclusive
bargaining representative on January 25, 1951. Several bargaining meetings were
held thereafter but no contract resulted. On April 23, 1951, the employees
voted to go on strike and the strike was still in progress at the time of the hear-
ing in the instant case.
B. The discharge of Victor Dyer
Victor Dyer was employed by the Company at the Lakeport plant from March
1942 until his discharge during the week ending September 10, 1950, with the
exception of the period from October 1943 to December 1945 when he was serv-
ing in the Armed Forces. During the period of his employment Dyer had worked
for varying periods of time in a number of different departments. During
March 1950 he was transferred to department 16 where he continued to work,
until the time of his discharge! This department was engaged in the making
of small temporary tools and jigs used in the production work in other depart-
ments. Most of the work in the department involved new jobs, there being only
a small percentage of repeat jobs, and the department ranked high among the
various departments in the degree of skill required of its employees. The em-
ployees in department 16 were mainly employed on an incentive basis. At the
time of his transfer to department 16 Dyer had been employed on a straight
hourly basis, although he had in the past worked on an incentive basis in other
departments. After an adjustment period of several weeks, Dyer went on the
incentive system in department 16 during the week ending April 9, 1950.
The Company's incentive system, referred to in the record as the "Standards
System," had been installed by industrial engineers some 10 years previously.
Under this system the various operations involved in Respondent's production
and toolwork were time-studied and assigned time values, in terms of minutes
of production. The various operations and their time values were listed in a
"standard data book" maintained by the Company. When an employee was
assigned a particular job to perform the job was broken down into its con-
stituent elements and by reference to the time value of each operation involved,
as set forth in the standard data book, an estimator was able to compute the
total number of minutes required to complete the job. The employee was advised
of the total time on each particular job to which he was assigned. Each em-
ployee had a base hourly rate. Where in a given day an employee operated at
greater than normal speed and by reason of his increased production was
credited with an excess number of minutes of production he received incentive
pay for each additional minute of production at the rate of one-sixtieth of his
base hourly rate. Where an employee operated at slower than normal speed and
therefore failed to produce enough to yield 480 minutes of production for an
8-hour day, he was nevertheless paid the base hourly rate for the full 8 hours'
8 There is some dispute in the testimony as to whether Dyer did or did not request the
transfer. According to Dyer, the plant superintendent, John Ross, suggested the transfer
stating that he thought Dyer was ready to go over to that department and that if he was
satisfactory there, he could go on to the•toolroom. Dyer testified that he expressed some
doubt as to whether he was ready to go into department 16 where an incentive system
was in effect but, after being given 2 days to think it over, agreed to the transfer. Both
Superintendent Ross and Dyer's old foreman, Carl Laurier, testified that the request for
the transfer had come from Dyer himself. The undersigned finds it unnecessary to
resolve this conflict in'the testimony. It may be noted, however, that during his cross-
examination Laurier admitted Dyer had expressed some doubt as to whether he -was
sufficiently experienced to go into department 16.
SCOTT & WILLIAMS, INCORPORATED 925
work. The number of minutes by which he failed to achieve his quota were
recorded in the Company's records and the difference between what he was paid
by reason of the Company's hourly guarantee and what he actually earned by his
production was referred to as the "cost of minutes to equal standards." In-
centive earnings were computed on a daily basis, so that a premium earned in 1
day was not subject to deduction because of a deficiency in another day of the
week.
Dyer first evidenced an interest in the Union on July 21, 1950, when he was
invited to join the Union by another employee and signed and mailed to the
Union's headquarters in Claremont an application card. He attended the first
organizing meeting around August 1 and became one of six or eight employees
who were active in organizing for the Union. He signed up a number of his
fellow employees and spoke to other employees about the Union during lunch
hours and before and after work. Following the first union meeting, for which
arrangements had been made by LaMaur, Dyer made arrangements for the other
meetings. He hired the hall where the meetings were to be held and inserted
notices in the newspapers announcing the meetings. On one occasion he passed
out handbills to the employees at the plant gate announcing a meeting. He also
chauffeured LaMaur around to the homes of various employees whom LaMaur
was seeking to interest in the Union and himself went into the homes of a number
of these employees with LaMaur. After his discharge, when the local union was
glben,formal status, Dyer was elected vice president.
On September 5, 1950, following the Labor Day week end, Dyer was advised
by his foreman, Thomas Dickson, that his services would no longer be required
as of the end of that workweek due to the lack of work in the department. Dyer
was the only employee discharged at that time. Dyer's discharge following close
upon a period of abundant union activity was, according to the General Counsel,
discriminatorily motivated. The evidence adduced by the General Counsel was
sufficient to establish, at least prima facie, the discriminatory nature of Dyer's
discharge. In support of the denial in its answer, Respondent contended that
it had,no knowledge of Dyer's union membership or activities and offered the
following explanation for his discharge: That a decline of work in department
16 made it necessary to discharge some employees, and that Dyer was selected
because^of his poor production record and because of his talking and otherwise
unsatisfactory attitude. Respondent's explanation for Dyer's-discharge, as well
as other relevant circumstances shedding light thereon, are discussed below in
detail.
1. Dyer's production record
Dyer's production record from the time he went on incentive work in depart-
ment 16 during the week ending April 9 until July 3, 1950, when the employees
went on vacation, was a not uncreditable one" Although he incurred some de-
ficiencies (cost of minutes to equal standards) in some weeks, these were small
in amount and well below the average for the department. He was also credited
with substantial incentive earnings in a number of weeks. However, beginning
with the week following the vacation period, and for several weeks thereafter,
there was a considerable slump in his production record. For the week ending
July 23, Dyer's deficiency amounted to $18.13 and was the highest in the depart-
ment. In the week ending July 30, his deficiency dropped to $8.64, being exceeded
by that of three other employees. However, in the following week Dyer's de-
ficiency increased again, to $20.05. In the week ending August 13, Dyer's de-
I Foreman Dickson testified that prior to the vacation period Dyer was "an average
worker."
,926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ficiency declined to $7.69 and in the following week it declined further to $5.94.
During the weeks ending August 27 and September 3 there was a further decline
to $3.85 and $1.02, respectively, and during these weeks his deficiencies were
less than the departmental averages of $4.71 and $5.03, respectively. Likewise-in
these latter weekshe.,showed incentive earnings of $3.36 and $10.02, respectively.
For the week ending September 10, 1950, when Dyer was discharged, he had no
deficiency at all and his incentive earnings of $11.81 exceeded the departmental
average.
It is unquestionably true that for a period of several weeks, from the middle
of July to about the middle of August, Dyer was among the employees with the
highest deficiencies in the plant. Considering his creditable record during April.
May, and June, and his improved performance around the end of August and the
early part of September, it is difficult to assess the reason for Dyer's spotty per-
formance in the interim period. According to Dyer's testimony, he complained to
Foreman Dickson during the early part of August about his rates being cut
after the head of the standards department had seen him talking to other,
employees. The General Counsel also attempted to show that, aside from the
cutting of rates, some of Respondent's rates were "tight," i. e.,,the time allotted
for some of the jobs was too low to permit completion of the work. In this
connection, Dyer testified that when he complained to Dickson in August about
the rates on a job being low, the latter adjusted the time upward. Respondent's
witnesses denied that any of the rates were ever cut because an employee was
observed wasting time on the job. They endeavored to show that the rates
established for the various operations were based on scientifically conducted-time
studies and were uniformly applied. They also denied that any of the rates were
"tight." It may be noted, however, that the head of Respondent's standards
department, while denying that there were any "tight" rates, admitted that
Respondent had adjusted rates which were found, after investigation, to be
tight. Foreman Dickson admitted that there had been an upward adjustment
of the time on one of Dyer's jobs after he had complained but claimed that it was
due not to a tightness of the rate but to the fact that the estimator in originally
computing the time for the job had inadvertently omitted the time required on
one particular operation. According to Respondent's witnesses, Dyer's difficulties
were not due to any tight rates or to any cut in rates but to his loafing and
talking on the job.
On the present state of the record the undersigned is unable to make any
affirmative finding as to the cause of Dyer's decline in production during the
period in question. The fact that almost half of the employees in the department
were deficient each week during the period from July 23 to the end of August,
and the substantial amounts of many of the deficiencies, suggest the possibility
that something was wrong with the rates. On the other hand, the fact that
this period coincides with the opening salvo of the union organizing campaign
and the gradually increasing momentum of the union drive, suggests the pos-
sibility that the decline in production efficiency resulted from the preoccupa-
tion of many of the employees with the union campaign, either as organizers
or as organizees.
In any event, whatever may have been the cause for Dyer's decline in pro-
duction, several facts in connection therewith stand out. First, it is significant
that at the time of his discharge he was definitely not the least efficient em-
ployee in the department. As appears from the table, which is incorporated
herein as Appendix A, there were at least four other employees, as of September
10, 1950, whose average of cost of minutes to equal standards was greater than
Dyer's during the year 1950, and one other employee whose average was only
SCOTT & WILLIAMS, ' INCORPORATED , . 927
slightly less than his." Of these employees , all but one , Guy Simpson, had
been employed in the department for a longer period than Dyer and would
normally be expected to have acquired a greater degree of efficiency . Equally
significant , if not more so, is a comparison of the records of these employees
on the basis of their regularity of performance , i. e., the number of weeks when
their deficiencies exceeded the average for the department . Since an employee's
average efficiency might be adversely affected by unusually low production in
a limited number of weeks , a fair employer would presumably give - some con-
sideration to the fact that during 'the greater part of his employment an em-
ployee was able to limit his losses to le^s ' than average for -his department. A
comparison on such a basis discloses that in more than two-thirds- oflthe weeks
when ,he was employed, Dyer's cost of minutes to equal standards was less'than
the departmental average, while other employees, who were not discharged with
him, had above average deficiencies in a far greater number of weeks between
January 1 and September 10, 1950. The comparative figures demonstrating' this
situation are as follows :
No of weeks
Weeks in wh ch C of M=S'
is above average-
Name
employed
/1/50-9/10/60
No. weeks % oftime
Stickney------------------------------- 34 24 71
Simpson ------------------------------- 13 9 69
Sweatt-- ------------------------------ 35 22 63
Ford--:------------------------------- 35 13' 37
Martin___ _____________________________ 35 10 29
Dyer---------------------------------- 21 6 '29
Even more important than the figures of- average efficiency and relative stand-
ing is the trend of Dyer's production efficiency;;at,the time he was chosen for
discharge. The former figures, while showing that he was not the worst pro-
ducer, place him somewhat at a disadvantage because of his unusually high
deficiencies in the weeks of July 23 and August 6. However, his record after
August 6 was one of -steady improvement. By the week of August 27,he had
whittled down his deficiency to $3.85 which was below the departmental average
and was able to earn a premium of. $3.36. In the week ending September 3, his
deficiency had been cut still further to $1.02, while his premium earnings in-
creased substantially to $10.02. In the week of his discharge he was able to wipe
out,the deficiency entirely and show a premium of $11.81, which was above the
departmental average. It thus appears that;,the decision to_-discharge Dyer
was made at the very time when he was emerging from- his slump and when
he appeared to be giving promise of the type of performance which the Company
bad previously found satisfactory. -
In an effort to explain Dyer's discharge at a time when employees with
equally bad or worse records were retained, Respondent sought to show that other
employees were subsequently discharged or transferred because of poor produc-
tion and sought to justify discharging Dyer ahead of the others on the ground
that his attitude toward his work was worse than others. The undersigned-will
consider below Respondent's claim regarding Dyer's attitude and also its handling
of the discharge and transfer of other employees.
5 The relative standing of these employees is as follows : Average C of M= 5
1. Louis Sweatt----------------------------------------------- $6.44
2 Guy Simpson ----------------------------------------------- $5.99
3 Ira Stickney ----------------------------------------------- $5.63
4. Clayton Ford ------ ---------------------------------------- $4.39
5. Victor Dyer------------------------------------------------ $3.50
6. Stanley Martin--- ------------------------------------------ $3.23
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Dyer's attitude and the alleged warnings
Respondent attempted to show that for some time prior to his discharge Dyer
engaged in talking and loafing on the job, was indifferent to his work, and after
repeated warnings showed no signs of improvement. The undersigned found
much of the testimony on this point, given mainly by Foreman Dickson and
Superintendent Ross," to be confused, contradictory, and generally unconvincing.
This confusion first manifests itself in the testimony as to when Dyer engaged
in the activi+ties'%complaiaed:of and with respect to the dates of the alleged warn-
ings. At first Foreman Dickson testified that up to the vacation period Dyer's
work and attitude were satisfactory and that he did not observe any change
until after the vacation period in July. In line with this Dickson testified that
it was not until after vacation that he and Superintendent Ross talked about
Dyer's unsatisfactory performance, and that in August he spoke to Dyer twice
about his talking and loafing and about his failure to make production. This
would fix the period of Dyer's transgressions as occurring after the vacation
period, coincident with his union activities, and would indicate that he was spoken
to twice in August about them. However, at a subsequent point in his testimony,
Dickson testified that he first spoke to Dyer about talking and loafing on the job
in the latter part of June before the vacation period. At this point in his testi-
mony he claimed to have spoken to Dyer a second time in July during the week
following the vacation, and-again in the latter part of August, or a total of three
times. However, after his+recollection,was refreshed by two memoranda which
he addressed to Superintendent Ross regarding Dyer, Dickson fixed the conver-
sations with Dyer as having occurred at or about the dates of these memoranda,
viZ, August 2 and August 16, 1950. This would fix the three alleged conversations
as: One in the latter part of June and two in August. However, on cross-
examination he again referred to a conversation with Dyer in July, around
July 18 or 19 after vacation. When Dickson's attention was called to the fact
that "the 18th" was the day after vacation, he testified that "maybe [it was]
the 19th, maybe the 20th, but it is that week after vacation." Dickson's testimony
thus evidences considerable confusion as to whether he had two, three, or four
conversations with Dyer and as to when these conversations occurred. While
a certain amount of inexactness is to be expected with respect to events almost
a year past, this confusion in Dickson's testimony is symptomatic of his testimony
generally. Particularly significant are the conflicting claims that Dyer's work and
attitude prior to vacation were satisfactory, and that it was necessary to ad-
monish him even before the vacation.
Giving_ true insight into, the .transparent nature much,.of Respondent's
claims is the exaggerated, vague, unconvincing nature of the testimony as to
the various conversations allegedly had with Dyer and as to the basis of his
alleged transgressions. With respect to the alleged conversation with Dyer
in June, Dickson testified that he, saw Dyer talking "several times" when he
came into the department and that he spoke to Dyer on one occasion about
his "talking and loafing." According to Dickson, the occasion for talking to Dyer
was the fact that "he was falling down a bit on his standards." 6 Although
the record discloses that Dyer had a deficiency of $2.49 in the week ending
June 25, this was considerably less than the departmental average of $4.23
and was exceeded by that of 6 other employees, 10 employees showing some
deficiency in that week. As Dickson's cross-examination proceeded, the "several
times" when he observed Dyer talking became "pretty near every day." Despite
6 As 'previously mentioned , on his direct examination Dickson had originally testified
that Dyer's'work and attitude prior to the vacation period were satisfactory.
SCOTT & WILLIAMS, INCORPORATED 929
the fact that Dickson allegedly found it necessary to talk to Dyer about his
talking because of the fact that his standards were "down a bit," he apparently
found it unnecessary to have any special conversation with the 3 employees to
whom Dyer was talking, although it developed that they were talking and loaf-
ing at the same time and one of them, Stanley Martin, had a deficiency of $5.46
in the week ending June 25.
The synthetic nature of much of Dickson's testimony becomes even more
apparent in his accounts of his alleged further conversations with Dyer in July
and August. His testimony regarding these conversations reveals an almost
verbatim similarity. With respect to his conversation in July, "the 18th or 19th,"
Dickson-gave the following account :
Well, at the time he was working on a big fixture, and he was -going in
the red quite considerable, and I asked him what was the matter, or "What's
the matter, Vic," I says, "You're falling down on that." And he answered
back that the standards weren't right, and that they were cutting the
standards in half. And I told him, I says, "Well, your talking plus your
loafing." I says, "No wonder you can't meet them." I says, "That's ridicu-
lous about thinking the standards was cut in half."
Regarding the first conversation in August, Dickson gave the following account:
A. Well, there was the month of August, as much as I can recollect now,
we had a discussion and I told him, I said, "What's the matter, Vic? You're
not meeting the time." And he never gave me anything-he'd give me an
excuse, and I says
Q. What did he say, if you can recall? What were the excuses?
A. Well, the excuses was that his standards was cut in half. "Now," I
says, "you're doing a lot of talking and a lot of loafing and that may have
some bearing on it."
With regard to his conversation later in August, just before Dyer's discharge,
Dickson at first gave the following account :
Q. What was the substance of that conversation?
A. Well, the substance of it was that he acted to me as if, indifferent, you
know, he took it for granted that, I guess-dissatisfied ; as much as I gather,
he was dissatisfied, anyway.
When the rather vague nature of this testimony was called to his attention,
Dickson testified as follows :
Q. (By Mr. HE&N.) I wish you would tell us in detail a little bit more so
that we will understand this situation, not just vaguely but let's be definite.
What was there about his manner or what he said that gave you the im-
pression he was dissatisfied or indifferent?
A. Well, his attitude of indifference. I'd say, "What's the matter, Vic,
can't you meet the time on that?" And he acted to me disgusted, and all
he could say, "They cut the standards on me." And he wouldn't try to
better himself and I told him-
Trial Examiner LEWIS :, This second time he gave the same excuse?
The WITNESS : Same excuse.
It thus appears, according to Dickson's testimony, that on each of the three
occasions when he spoke to Dyer in July and August he asked Dyer why his
production was low, that the latter gave a cut in his "standards" as the ex-
cuse, and that Dickson told him the fault lay in his talking and loafing.
930 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
Dyer in his testimony freely admitted that Dickson-had spoken to, him, but
claimed that this was on a single occasion during the first week in, -August.,
Dyer's version of this iiief ent was that Dickson told him "his 'standards *,ere
rather low," that he (Dyer) complained about his time having been cut, and that
Dickson denied this was so but stated that if he had any such complaints in the
future to see him. According to Dyer, there was no reference to his "talking
and loafing," but that Dickson did mention that possibly his standards were low
because the men were not prompt in returning to work after the lunch hour. The
undersigned is convinced from the record as a whole that this is the only time
Dickson ever spoke to Dyer critically about his work. It was apparently this
incident which Dickson blew up in his testimony into three separate conversa-
tions with Dyer. Dickson confirmed Dyer's version of this conversation, that
when the latter complained about his time being cut he (Dickson) told Dyer
to come to see him if he had any such complaint in the future and that within
a few days thereafter Dyer came to, see him with a complaint about a job being
undertimed,, which Dickson thereafter gdjustgd. The memorandum which
Dickson sent Ross after his original talk with Dyer in August tends to confirm
Dyer's version of this incident. The memorandum contains no reference to
any serious disciplinary problem but indicates that the problem n', as essentially
one of Dyer's failing to meet the production standards. The memorandum,
-which is dated August 2, reads as follows :
I had a talk with'Victor about the posting sheets and told him he should
get on the ball and work a little harder.
The only serious question arising in connection with this conversation early
in August is as to whether it occurred before or after the first union meeting.
According to Dyer, Dickson's talk with him occurred the day following his at-
tendance at- the first union,meeting. It is apparently the General Counsel's con-
tention that it was Dyer's attendance at the meeting which was really respon-
sible for the criticism of his production. This claim, however, is not supported
by a preponderance of the evidence. Both LaMaur and Dyer indicated uncertainty
as to whether the union meeting occurred August 1, 2, or 3. According to Dyer's
testimony his conversation with Dickson took place on Friday, the day follow-
ing the union meeting, which would fix the date of the meeting as Thursday,
August 3. However, the date of Dickson's memorandum to Ross, August 2,
would indicate that the conversation could not have occurred after the union
meeting unless the meeting was held August 1. There is nothing in the record
to cause the undersigned not to accept the date of the memorandum, August 2,
as authentic. In view of the uncertainty in the testimony of the General Coun-
sel's witnesses as to when the first union meeting occurred, the undersigned is
unable to make any affirmative finding that the complaint about Dyer's work
was made after his attendance at the first meeting. Nor is there sufficient
evidence to establish that the complaint was made and the memorandum pre-
pared with knowledge of Dyer's union activity.' So far as appears from the
record, and in view of Dyer's unsatisfactory performance during the preceding
2 weeks, there appears to be no reason to question Dickson's motive in speaking
to him on August 2 about his production. However, the undersigned is not
7 In his direct testimony Dyer fixed the date of his active participation in the Union's
organizing activities as occurring after the first union meeting when recalled in rebuttal,
he testified that he began distributing union cards to fellow employees following the
signing of his own card on July 21. In view of the confusion in Dyer's testimony with
regard to the conunencement of his union activities the undersigned is unable to make
any finding that they were sufficiently pronounced by August 2 as to cause Respondent to
become aware of Dyer's union membership at that time.
SCOTT ' & WILLIAMS, INCORPORATED 931'
convinced from the testimony that there were any prior or subsequent com-
plaints against Dyers or that, aside from the decline in his production, he was
otherwise open to criticism because of his talking or loafing, or his "attitude."
As previously mentioned Dickson claimed that he also had another conversa-
tion with Dyer later in August about his work and attitude. The unsatisfactory
nature of this testimony has already been alluded to. However, in an effort to
corroborate Dickson's testimony by documentary evidence, Respondent offered
in evidence a memorandum sent by Dickson to Ross, dated August 16, as fol-
lows :
I have repeatedly warned Victor Dyer about his failure to meet the stand-
ards set on jobs, that he was in the red every week. I shown him the post-
ing sheet & told him about his talking during working hours. I think this
should be the last time.
From the wording of this memorandum and the testimony as a whole, the under-
signed is convinced that the memorandum was prepared after Respondent had
become aware of Dyer's union activity and that it was deliberately worded with
the possibility of Dyer's discharge in mind. There is nothing in the record to
support the reference in the memorandum to the effect that Dyer had been "re-
peatedly warned" about his production. Dickson's testimony regarding warn-
ings in June and July are patently unacceptable. The only convincing evi-
dence of any prior warning is the one in early August which was mildly worded
and gave no foreboding of the dire consequences to follow. Even under Dick-
son's version of the facts, that he had a talk with Dyer in June, a second in
July, and a third in early August, there appears to be no basis for the grimly
worded nature of this memorandum. The reference to Dyer's talking "during
working hours," to which no reference was made in the earlier memorandum,
is additional evidence that the memorandum was deliberately prepared to build
a record which would justify Dyer's discharge.
To corroborate Dickson's testimony regarding Dyer's talking and unsatis-
factory attitude, Respondent offered the testimony of Superintendent Ross.
Ross' testimony was highly exaggerated, confused, and even less convincing
than Dickson's. His frequent references to what "probably" happened or as to
what he "imagined" happened gave evidence of an effort on his part to reconstruct
events concerning which he had little, if any, recollection. According to Ross he
walked through the plant "maybe fifty times an afternoon and fifty times in the
morning and I wouldn't be a good superintendent if I didn't notice the fellows
that weren't doing a good job." His peregrinations through the plant were
later reduced to "maybe five or seven times a day approximately." On cross-
examination they were again increased to "maybe, as I say, 10, 15, 20 times-
I wouldn't attempt to state the exact number, because it would be kind of
ridiculous." It was during these trips, starting around the third week in July
and continuing in August when, according to Ross, he observed Dyer misbehav-
ing. Despite his alleged observation of Dyer engaging in misconduct on numer-
ous occasions, Ross admitted that he never spoke to Dyer about the matter, be-
cause he preferred not to interfere with the foreman's prerogative. According
to Ross, however, he did discuss Dyer's conduct with Dickson "so many times
I didn't even take kin of them ... I'd probably say ten or twenty." When asked
8 Regarding the claim of alleged complaints against Dyer in June and July , it should
be noted that according to Dickson 's testimony it was the regular practice to record
complaints against employees in the form of a written memorandum to the superintendent.
The form of memorandum contains the specific printed instruction : "Avoid Verbal Orders."
The earliest memorandum of any conversation with Dyer is the August 2 memorandum.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he had any definite recollection as to when his first conversation with Dick-
son took place, Ross testified vaguely : "Could have been before the vacations or
after the vacations or somewhere in that period , but I know I had them." When
asked what he discussed with Dickson , Ross testified :
Mostly the case of the fellow talking too much , seeming to have an ap-
pearance and an attitude , which I think was perfectly true, that he didn't
seem to care whether he worked or not ; repeatedly telling the foreman to
warn him, no difference in the attitude.
When asked whether he had a definite recollection of such a conversation with
Dickson about Dyer after vacation , Ross gave the following labored response,
after some prodding by Respondent 's counsel :
Q. Do you have a definite recollection of what actually took place:with
reference to Dyer?
A. Not the actual words in dotting the i's and crossing the t's, I wouldn't.
Q. You know what the actual practice was?
A. That's right.
Q. (By Mr. HzzN.) Will you tell us the subject matter of any conversa-
tion you had with Dickson with reference to Dyer after the vacation period?
A. Sure, very definitely.
Q. Just the substance of it. We don't expect you to dot the i's, and so
forth.
A. The substance of it, from my observation and also from my records, and
particularly from my observation, the young employee at that time was so
indifferent to his work that he really didn't seem to me to want to work in
there.
Q. Is that something you said to someone?
A. More or less , probably would say that to Dickson.
Q. No. Is that something that in substance you said?
A. That's right.
Q. To whom did you say it?
R. Mr. Dickson. [Emphasis supplied.]
Although there was much testimony by Dickson and Ross about Dyer's talking
and loafing , Ross finally conceded that it was not "exactly " Dyer's talking
which resulted in his discharge but rather:
It was the definite attitude shown by the employee for a certain ' period
of time conductive to his employer or relative of his employment to make
them form an opinion , which I am sure is practice in other firms, of know-
ing through experience that a man should be dismissed from his job.
The undersigned places little reliance upon Ross ' testimony which evidenced
very little actual recollection regarding the events at issue. Perhaps the most
convincing part of his testimony was his innocent admission that with 1,350
employees under his supervision he found it difficult to remember about any
specific conversation which took place. It was 'obvious to the undersigned that
his recollection of the events at issue was very hazy and confused and was
evidently colored by a certain visceral reaction on the subject of Dyer.
From the record as a whole , the undersigned is not convinced that Dyer's
talking or his attitude of indifference were responsible for his discharge. The
reliable evidence definitely establishes only one occasion when his supervisor
had occasion to discuss with him his work or attitude and this was the occasion
early in August which is adverted to in the memorandum of August 2. The mild
tenor of this memorandum does not suggest that Dyer was the troublemaker
SCOTT & -,WILLIAMS, INCORPORATED 933
which Respondent's witnesses attempted to establish in their testimony. The
undersigned is not convinced that there were any previous or subsequent talks
with Dyer or that he was ever warned of possible discharge.
In any event, even assuming that Dyer had been doing considerable talking
on the job and had been spoken to several times, it was the substance of the testi-
mony of Respondent's witnesses that it was his "indifferent" attitude and failure
to improve which ultimately brought about his discharge rather than the talking
itself. This claim, however, is belied by his production record for the end of
August and early part of September which is one of steady improvement. It is
inconceivable that he could have continuously engaged in talking and loafing and
have conducted himself in an indifferent manner, and at the same time been able
to,show such steady improvement in his work.
It may also be noted that his termination record contains no reference to Dyer's
talking or indifferent attitude but states that he was "not adapted to incentive
work." Although Ross testified that "disciplinary reasons" were the "major
factor" in Dyer's discharge, the termination record contains a check mark
alongside the item "Unsuited to job," as the reason for his dismissal, and leaves
blank the item "Disciplinary reason."'
3. The other discharges and transfers
In an effort to prove that there was nothing unusual about Dyer's discharge,
Respondent attempted to show that other inefficient employees were discharged
or transferred because of poor production. The undersigned found this evidence
unconvincing and, if anything, it tended to establish that there was something
unusual about the handling of Dyer's discharge.
As will subsequently appear, it was Respondent's contention that a decline in
work made it necessary to get rid of some of the poorer producers in department
16. Among the employees allegedly chosen were Dyer, Ford, Sweatt, and Stick-
ney. However, for some strange reason Dyer was the only one discharged on
September 10. It is true that Ford was later discharged on September 2410
However, Respondent gave no reason for the delay in getting rid of him. During
the week of September 3, when Dyer had managed to cut his deficiency down to
$1.02, Ford had a deficiency of $1190. Although Respondent claimed that it
delayed taking action with respect to other employees because their "attitude"
was better than Dyer's, it made no such contention in Ford's case but admitted
that his attitude was bad.
In a further effort to show that it was not unusual to discharge employees for
poor production, Respondent adduced evidence of earlier discharges. Thus it
appears that on January 24, 1950, it discharged employees Robert Read and Don-
ald Morgan for the reason, as stated on their termination slips, that they were
"not to par on standards." Insofar as their work records are available they dis-
close that both these employees had substantially worse production records than
Dyer.11 It may also be noted that in January 1950 when they were discharged
the business outlook was considerably different from what it was in August 1950
after the start of the Korean war, as will subsequently appear. It is significant
9 The undersigned does not accept Respondent's strained explanation that this was
done, in accordance with established company policy, so as not to prevent Dyer from
obtaining employment elsewhere
10 According to the testimony of employee George Lynch, Ford was also an active union
member Ford's name was mentioned in the charge as having been discriminatorily dis-
charged, but for reasons not appearing from the record, was not named in the complaint.
11 During the per iod in Ja nuam v 1950 for which 'their work records are available, Read
had an average coat of minutes to equal standards of $11 40 and 'Morgan's amounted
to $6 57.
215233--5:t-l;0
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the termindtion slips of these two employees contained the notation : "Nb
work available in other departments," thus suggesting that if such work had
been available they would, have been trah-sferred to, nonineentive; work, rather
than discharged.
The record discloses that a number of other deficient operators in the depart-
ment were transferred to other departments rather than discharged. Sweatt,
whose deficiency average was worse than Dyer's, was transferred to easier work
in another department on September 25. The remaining operators whose records
were as bad as, or worse than, Dyer's continued to work in department 16 for
the balance of the year 1950. Although, according to Dickson, Stickney was one
of those whom he had decided to discharge or transfer around the end of August,
no action was taken in Stickney's case until January or February 1951 when he
was transferred to another department, despite the fact that he continued to
incur unusually high deficiencies during the balance of 1950.' Other employees.
T. Blanchard and Eugene Whiting, who had had high deficiencies prior, to.,Sop-
tember, continued to incur above-average deficiencies in a number of weeks during
the rest of 1950 and were transferred out of the department around the end of
the year. It does not appear that Respondent even bothered to transfer deficient
operator Simpson, although he continued to incur above-average deficiencies dur-
ing the balance of 1950.
From the record as a whole, it seems evident that Respondent's usual policy
was to transfer employees who were regularly unable to meet production stand-
ards to nonincentive work rather than to discharge them, unless there was no
other work available. This was inadvertently admitted by Ross' testimony in
another connection that :
. . . terminations in Scott & Williams are few and far between. In fact,
you've almost got to commit mayhem before . . . you are terminated.
The reason for this policy is the fact, as testified to by several of Respondent's
witnesses, that there is a shortage of machinists and toolmakers in the Laconia
area and that the Company therefore tries to husband its manpower resources.
Under these circumstances, the failure to transfer Dyer to some other work
is difficult to comprehend. particularly in view of his hitherto satisfactory
record. Respondent's witnesses admitted that his work in other departments
had been satisfactory. Over the years he had been transferred to gradually
more and more skilled work until he had finally reached department 16 which
stood high in the hierarchy of departments according to skill required of em-
ployees. Respondent's witnesses admitted that these transfers indicated that
the Company was satisfied with his work during that period. In 1948 when
other employees were laid off due to a shortage of work, Dyer was kept on and
transferred to another department. Despite this background, Respondent made
u6 effort to find other work for Dyer in September 1950, although, as will appear,
it was contemplating an expansion of its operations and shortly thereafter hired
other employees to perform work that Dyer had done in other departments."
The only possible explanation for not transferring or rehiring Dyer was that his
"attitude" had not been good This claim, as has already been indicated, the
undersigned considers without merit.
"Examples of such deficiencies are- November 26, 1950-$15 .45; December 3, 1950-
$28 51; December 31, 1950-$14 39'
"During the week ending September 17 Respondent hired William S. Boyd to work
on the Warner & Swazey machine, work which Dyer had previously done before coming
to department 16. On October 2 It hired Joseph Long and Linwood Rogers to work on
that machine Other individuals were hired during this period to do drilling and burring,
work which, according to Dyer's uncontradicted testimony, he had previously done.
SCOTT & WILLIAMS, INCORPORATED 935.
4. The decline in work and the decision to lay off employees
According to Respondent's witnesses,, it was the decline of work in depart-
Tnent 16 which actually precipitated Dyer's discharge. Although Dickson tes-
tified that Dyer "wouldn't have lasted very long irregardless," it was the decline
in work which brought about the decision to discharge him. Here again the
testimony was marked with confusion and contradiction. According to Ross
he first talked to Dickson in May or June 1950 about the decline in business and
the possibility of layoffs, but told him that they would hold off until after the
vacation period in hope that business would improve. Dickson, however, tes-
tified that Ross first discussed the possibility of layoffs in August 1950, after the
vacation period. According to Dickson the question was next discussed toward
the end of August and a decision to lay off several employees, including Dyer,
was reached. However, according to Ross, the discussions of possible layoffs
continued during July and August and the possibility of Dyer being laid off was
mentsio4bd each time. According to Dickson's testimony it was Ross who told
him in August that he would have to lay off some of his employees. According
to Ross, however, Dickson might have taken the initiative in this respect.
According to Dickson, Ross did not tell him how many to lay off but be himself
picked Dyer, Ford, Sweatt, and Stickney. Ross, on the other hand, testified that
he was the one who determined the number to be laid off and left it to Dickson's
discretion to decide which ones would go.
Aside from any such contradictions or inconsistencies in the testimony, the
explanation given by Dickson and Ross that Dyer was laid off because of a
shortage of work is belied by the testimony of another of Respondent's own wit-
nesses. According to the testimony of the Company's treasurer and resident
manager, Harry J. Kelly, the Company's business "improved materially" from
the end of June 1950, which condition continued during July, August, and Sep-
tember of that year. Kelly further testified that in August 1950 the Company
began negotiating with the Bendix Aviation Corporation to receive an unusually
large subcontract to perform part of that Company's Government defense con-
tracts. Negotiations with Bendix continued during August and September, and
on October 9, 1950, the Respondent Company formally authorized its officers to
enter into a contract with Bendix. According to Kelly, the contract with Bendix
was "an exceptionally large" one and was expected to last "for a great many
years." On September 25, Respondent made an adjustment in rates for incentive
workers and on September 30, 1950, voted to grant all employees an 8-percent
increase, effective October 30. Kelly explained that the October wage increase
was granted by the Company in order to maintain its present staff and to attract
new employees so that the Company would be in a position to maintain its
production obligations under the Bendix contract.
In the light of Kelly's testimony regarding the improvement in business start-
ing-around the end of June, and particularly in view of the fact that the picture
was even brighter in August and September when the Bendix contract was under
negotiation, any claim that Dyer was laid off because business was slow would
appear to be made out of the whole cloth. Respondent attempted to explain this
evident inconsistency on the ground that despite the fact that there was enough
business for other portions of the plant, it was slow in department 16. Both
Dickson and Ross testified that the fact that certain departments of the plant
were busy did not necessarily mean that there was enough work for other de-
partments. Since normally an upsurge in business would be expected, within a
reasonable time, to make its effect felt in all parts of a plant, the undersigned is
unable to accept Dickson's and Ross' unsubstantiated testimony. The anomal-
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ism of Respondent's position struck the undersigned at the hearing and he sug-
gested that the Respondent might wish to offer documentary evidence to support
its claim of a decline in business in department 16 in the face of a general im-
provement in the Company's business. However, Respondent elected not to
avail itself of this opportunity. Under the circumstances it can only be assumed
that Respondent's records do not support its oral claims.
5. Knowledge of Dyer's union membership
According to Respondent, it had no knowledge of Dyer's union membership
prior to the decision to discharge him and consequently, whatever confusion may
exist in its explanation for the discharge, it could not have been motivated by
his union membership. The undersigned finds Respondent's claim not to be
substantiated by the record.
Two employee witnesses called by the General Counsel testified to having over-
heard Superintendent Ross and Foreman Dickson make reference to Dyer's
union membership shortly before his discharge. According to Willard A. Gard,
during the latter part of August he went to the office of Superintendent Ross
looking for his foreman, Arthur Bean, Sr., and as he approached the office he
overheard Ross say in substance : "Dyer better lay off this union business or
he will be sorry." Along a similar vein, employee George Lynch testified that
about 2 weeks before Dyer's discharge when he (Lynch) went to get some cams
for a row of tiers separating his department from department 16, he overheard
Foreman Dickson talking to another individual whom Lynch could not see
because he was beyond his line of vision. According to Lynch's testimony, he
heard some mention of the Union and then after some additional conversation
which he could not get, Dickson stated in substance that : "If Ford and Dyer
didn't control their activities, why they'd probably be sorry for it or regret
it.,,
Respondent questions the reliability of this testimony on the ground that Gard,
as president of the local Union, and Lynch, as a member of its negotiating
committee, were interested witnesses and that the strikingly similar stories of
these two "eavesdroppers" were too pat to be true. Both Ross and Dickson
denied having made the statements attributed to them. With respect to Ross'
and Dickson's denials, the undersigned gives them very little weight since, as
previously indicated, they proved to be generally unreliable witnesses. Another
witness called by Respondent to deny the statements attributed to Ross was
Foreman Albert Graham who, according to Gard's testimony, was in the office
when he allegedly overheard Ross make reference to Dyer's union activities."
Graham's denial of the remarks attributed to Ross was in a somewhat weak
form, viz, that he did not "remember" having heard such a statement. He ad-
mitted that he and Bean were frequently in Ross' office during this period but
testified that he had "very little recollection" as to what was discussed on these
occasions. In view of the uncertainty of Graham's recollection concerning the
period in question it seems evident that a minimum of reliance can be placed on
his denial.
In resolving the conflict in the testimony the undersigned has given due weight
to the fact that both Gard and Lynch were definitely interested witnesses and
that their testimony was very convenient from the Union's point of view. The
fact that both had overheard the remarks without being- observed and the
similarity of what they overheard is also a striking coincidence. However, both
14 Arthur Bean , Sr., Gard's foreman, was not called as a witness nor was Ross' secre-
tary, Miss Smith, whom Gard also claimed to have seen in the office. However, the
parties stipulated that if they were called they would have testified substantially the
same as Graham.
SCOTT & WILLIAMS, INCORPORATED 937
of them impressed the undersigned favorably in their demeanor and appeared
to be telling the truth . Their testimony was not substantially impaired after
searching cross-examination by Respondent 's counsel . It must also be noted
that despite a surface similarity in their testimony there were certain important
differences . Thus, while Lynch was able to identify only Foreman Dickson and,
it might be argued , had imagined the presence of another person , Gard definitely
identified at least four persons who were present in Ross' office thus leaving
himself open to contradiction by all of these people. Likewise , while Gard
claimed to have overheard reference only to Dyer, Lynch testified that mention
-,vas also made of another employee, Ford. If the Union had concocted a story
to help Dyer 's case, there would seem to be no reason for dragging Ford's name
into the picture . Despite the somewhat pat nature of their testimony, the
undersigned is convinced on the record as a whole that both Gard 's and Lynch's
testimony is worthy of belief.
However , even if the testimony of these two witnesses were disregarded, the
undersigned is satisfied that Respondent was aware of Dyer 's union membership
at the time of his discharge . The testimony discloses that Dyer was very active
in the Union . He regularly talked to employees in the plant during lunch hour
about the Union . He also arranged for the hiring of the union hall , inserted no-
tices of union meetings in the newspaper , handed out handbills at the plant gate,
and visited the homes of employees with the main union representative , LaMaur,
to: induce ..them to,joini , tli i,Union . So pronni