Tamper, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1973

207 N.L.R.B. 907 (N.L.R.B. 1973)

TAMPER, INC.
Tamper, Inc. and General Drivers, Warehousemen and
Helpers, Teamsters Local Union 509 , affiliated
with international Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 11-CA-5004 and 11-RC-3539
December 14, 1973
DECISION AND ORDER AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 20, 1973, Administrative Law Judge
Howard I. Grossman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief' and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that' Respondent, Tamper, Inc., Co-
lumbia, South Carolina, its officers , agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IT IS FURTHER ORDERED that the election held on
October 10, 1972, in Case I1-RC-3539 be, and it
hereby is, set aside, and that Case I 1-RC-3539 be,
and it hereby is, remanded to the Regional Director
for purposes of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
1 The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties. The Board also denies Respondent's
motion for rehearing
2 Although our dissenting colleague correctly noted that the complaint
contains no allegation of discriminatory motive in Respondent's effectuat-
ing Berry's transfer to final inspection , it is clear that the complaint alleged
that Respondent violated Sec. 8(a)(1) of the Act by transferring Berry to a
remote work station. We have examined the record and find that the facts
surrounding the May 16 transfer were fully developed and litigated at the
hearing. In these circumstances we approve the finding of the Sec . 8(a)(3)
violation.
Similarly, although the complaint did not allege any illegality with
respect to the reprimands directed toward Berry on May 8 and 9, or his
suspension from work, the Administrative Law Judge found that the
907
CHAIRMAN MILLER, dissenting in part:
I concur in my colleagues' adoption -of the
Administrative Law Judge's Decision, except as
indicated hereinafter. While I would adopt the
finding that Respondent violated Section 8(a)(1)
when its attorney, in preparation for litigation of the
instant case, questioned several employees without
observing all the Johnnie's Poultry safeguards,-3 I
would do so only on the grounds that he failed to
assure the employees that no reprisals would be
taken against them. I would not reach 'the other
factors and circumstances which led the Administra-
tive Law Judge to find the interrogations violative of
the Act.
I am unable to agree with my colleagues as to
several other findings. I would not find that Manager
Beatty's fourth speech, in which he allegedly stated
that if the Union won the election the Company
would "bargain from scratch," constituted a viola-
tion of Section 8(a)(1). Without resolving what
Beatty in fact said in his speech, the Administrative
Law Judge concluded that Beatty's reference to a
poster, which quoted from Midwestern Instruments,
Inc.,4 was the practical equivalent of saying that
bargaining will start from scratch, and, hence, was
violative of the Act. In my view, the poster in
question contained nothing unlawful nor did the
General Counsel establish any other basis for finding
Beatty's fourth speech unlawful.
With respect to employee Berry's transfer to final
inspection, I do not agree that the finding of an
8(a)(3) violation is justified. It should be noted that
there was no allegation in the complaint of discrimi-
natory motive in Respondent's effectuating Berry's
transfer .to final inspection; nor is there any finding
that this issue has been fully litigated. Indeed, it
appears that the Administrative Law Judge was
disposed to make this finding because of Respon-
dent's later reprimands to Berry for mistakes he
made while performing his final inspection duties.
Finally, the Administrative Law Judge found the
Respondent violated Section 8(a)(3) when it ` repri-
manded and suspended Berry on May 8-9. Again,
there was no allegation in the complaint of any
circumstances of these issues have been fairly tried Our examination of the
record reveals that testimony was adduced at the hearing bearing on the
warnings and suspension . At the hearing, Respondent did not object to
testimony with respect to these issues, nor does , it contend in its brief that it
was not prepared to defend against these allegations. It is a well-established
principle that a material issue which has been fairly tried should be decided
by the Board regardless of whether it has been 'specifically pleaded See
American Boiler Manufacturers Association v. NLRB, 366 F.2d 815, 821
(C.A. 8, 1966), and the cases cited therein.
3 Johnnie's Poultry Co., 146 NLRB 770, enforcement denied 344 F 2d 617
(C.A. 8).
4 133 NLRB 1132. The poster read as follows : "REGARDLESS OF
WHAT THE UNION SAYS-THIS IS THE LAW... `There is, of course,
no obligation on the part of an ' employer to continue all existing benefits,
nor is it an ULP to offer reduced benefits.. '."
207 NLRB No. 142
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
illegality concerning these reprimands. In light of
what appears to be an affirmative refusal on the part
of General Counsel to allege this as a violation 5 and
the very real possibility that Respondent did not
therefore present a full defense to this issue, I would
not find this to be a violation of Section 8(a)(3).
Accordingly, I do not join in adopting the order
which makes Berry whole for his lost half-day of pay.
5 In fn . I of his brief to the Administrative Law Judge, the General
Counsel indicated that this incident (Berry's unauthorized exit from the
plant followed by the May 8 reprimand) was "admitted by Berry and (is)
not claimed to prove a violation of the Act "
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge: The
charge in Case 1 l-CA-5004 was filed on July 10, 1972,1 by
General Drivers, Warehousemen and Helpers, Teamsters
Local Union 509, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, or Petitioner. The
complaint issued on August 29, and alleged that Tamper,
Inc., herein called Respondent, or the Employer, violated
Section 8(a)(1) of the National Labor Relations Act, herein
called the Act, by (a) interrogating employees concerning
their union activities, sympathies and desires, (b) informing
employees that Respondent was discontinuing its regular
6-month review and reclassification of employees, thereby
withholding pay increases pending completion of the union
campaign, (c) creating an impression of surveillance of its
employees' union activities, and (d) isolating a union
advocate by transferring him to a remote work station. The
complaint also alleged that Respondent reprimanded and,
on July 5, discharged, Clarence Berry, because of his
activities on behalf of the Union, thus discriminating
against him in violation of Section 8(a)(3) of the Act.
Pursuant to due notice, hearing on the complaint was
held in Columbia, South Carolina, on October 11, 12, 13,
and 24, at which time all parties rested. Some of the
General Counsel's evidence concerning the alleged interro-
gation, and all of his evidence concerning the alleged threat
to withhold wage increases, were contained in certain
speeches made by Respondent's manager of manufactur-
ing, Gordon L. Beatty. Testimony concerning the content
of three such speeches was elicited. The evidence further
indicated that Beatty made a fourth speech at a later time,
shortly before a Board-conducted election, but no evidence
was adduced concerning the contents of the last speech.
Subsequent to the close of the hearing, the General
Counsel submitted a brief; Respondent also submitted a
brief and a memorandum of law.
On January 18, 1973, the General Counsel filed a motion
to amend the complaint, to consolidate the unfair labor
practice case with the representation proceeding (Case
lI-RC-3539), and to reopen the hearing for receipt of
further evidence on the complaint, as amended, and on
I All dates are in 1972, unless otherwise indicated.
2 Respondent's memorandum of law, submitted during the first hearing,
opposed a motion by the Union to consolidate the unfair labor practice
hearing with a hearing on objections to the election , said objections then
certain objections to the election in the representation
proceeding, filed by Petitioner. Attached to said motion
was a Supplemental Decision and Direction in the
representation proceeding, issued on January 18, 1973, by
the Regional Director for Region 11, wherein he notes inter
alia that an election was held under his supervision on
October 10, 1972, and that 65 votes were cast for, and 128
against, Petitioner.
The Supplemental Decision further lists various objec-
tions to the election timely filed by Petitioner, overrules
certain of them, and directs a hearing on other objections,
including Petitioner's assertions that the Employer told
employees that, if Petitioner won the election, present
wages and benefits would be taken away and Petitioner
would have to "bargain from scratch" (Objection 8), that
the Employer interrogated employees as to how they were
going to vote in the election (Objection 9), and that it
promised a reclassification program which would mean
more money to employees if Petitioner lost the election
(Objection 12). In Objection 10, Petitioner asserts that
various employees, including Clarence Berry, were dis-
charged because of their union activities. The Regional
Director overruled this objection except as it pertains to
Berry, and directed a hearing on Berry's discharge.
The Regional Director also directed a hearing on
Petitioner's Objection 1, which alleges unlawful interview-
ing of "witnesses" by the Employer's attorneys on the day
before the election. This involves the same matter as the
General Counsel's proposed amendment to the complaint,
which alleges that Respondent, from October 9 through 11,
interrogated its employees concerning interviews they had
with, or statements they gave to, a Board agent, or
concerning their anticipated testimony in the unfair labor
practice proceeding (which began on October 11, 1972, one
day after the election in the representation proceeding,
October 10).
The General Counsel, in his aforesaid motion, stated that
the matters alleged in Petitioner's Objections 9, 10, and 12
had "heretofore been heard" in the unfair labor practice
proceeding, and that further hearing was needed only on
the proposed amendment to the complaint (including,
presumably, Objection 1), and on Objection 8. With
respect to the latter, the Regional Director's summary of
Petitioner's evidence notes that unlawful statements are
attributed to Beatty "during his four speeches."
After issuance of an order to show cause on the General
Counsel's motion, and Respondent-Employer's response
thereto opposing said motion, I granted the General
Counsel's motion to amend the complaint, consolidated
the cases, and reopen the hearing, but only as to matters
not previously litigated, to wit, the amendment to the
complaint, and Beatty's alleged fourth speech. On March
6, 1973, in Columbia, South Carolina, pursuant to due
notice, further hearing on these matters was held.
Supplemental briefs were submitted by the General
Counsel and Respondent subsequent to the reopened
hearing. All briefs and Respondent's memorandum of law2
being filed by the Union. Subsequently, during the first hearing, the Union
withdrew this motion . Thereafter, as indicated above, the General Counsel
filed his own motion to consolidate the cases.
TAMPER, INC. 909
have been duly considered. Upon the entire record and
from my observation of the witnesses I make the following:
without this background, I shall deal with the general
matters first.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find that
Respondent is, and at all material times herein has been, a
New York corporation with facilities located in South
Carolina, including a plant in Columbia, South Carolina,
where it is engaged in the business of manufacturing heavy
machinery used in railroad track maintenance; and that
during the 12-month period preceding issuance of the
complaint, which period is representative of all times
material herein, Respondent received in South Carolina
goods and raw materials directly from points located
outside South Carolina, valued in excess of $50,000, and
during said period shipped from South Carolina directly to
points located outside that State, products valued in excess
of $50,000. Accordingly, I find, as alleged in the complaint,
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
B. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background-The Layout of Respondent's Plant,
Its Personnel and Manufacturing Technique
An understanding of the basic issues in this case requires
certain background information. Respondent's defense to
the alleged discrimination against Clarence Berry is that he
was discharged for cause, in that he committed a series of
errors justifying his termination, the final and culminating
error having taken place on June 29. A description of
Berry's duties, and resolution of the question of whether he
did in fact commit the alleged errors, require a preliminary
understanding of the plant layout, manufacturing methods,
and the duties of the personnel. Respondent's production
is computerized, and utilizes a variety of cards, envelopes,
and other documents with various "printouts" containing
esoteric symbols. The plant personnel are expected to
follow these symbolic instructions, and the plant layout
and manufacturing flow are geared to same. A large
amount of testimony on these matters, i.e., on Respon-
dent's normal operations, was elicited throughout the
hearing, as well as a diagram and certain photographs.
Some of this evidence is conflicting-in fact, there is
controversy over certain aspects of the plant's internal
geography. As the sum total of evidence on these
background matters is almost equal in quantity to the
evidence on the individual issues peculiar to this case, and
as the latter are, for the most part, incomprehensible
3 The complaint alleges, the answer (as amended at the hearing) admits,
1. The controlling documents
According to Gordon L. Beatty, Respondent's Manager
of Manufacturing at its Columbia, South Carolina, plant,3
the object of Respondent's computerized manufacturing
technique is to produce "a quality part at an acceptable
price." In this respect, the blueprint is the "grand master. It
is the overruler over everything. It is the final say on what a
part is to be like."
The sequence of manufacturing processes which produce
a particular part, as described by the blueprint, are fed into
the computer, step by step. A printout of this process
produces a document called a "methods master," which
describes the part both verbally and by a part number.
Each manufacturing process is indicated by a coded
number, verbal description, and the date the particular
process was instituted as a process in making the particular
part. A new step or process results in a change of method,
without necessarily changing the blueprint, according to
Beatty, although a change may also be indicated on the
blueprint. The date of each methods master change is
indicated by the last two digits of the particular year
followed by the day of that year, i.e., the number 72111
means the 111th day of 1972. Each time a copy of the
methods master is run off the computer, the date the copy
was made is indicated at the top of the methods master in
conventional symbols (Resp. Exh. 7). According to Beatty,
the methods master is available to supervisors, "methods
people," and "production control people."
In addition to the methods master, the computer
produces a separate card for each manufacturing process,
and a large envelope (G.C. Exh. 6), when an order for a
part, is being processed. On the face of the envelope is a
printout of the entire manufacturing process, as shown on
the methods master. Unlike the methods master, which
refers only to a part number and not to any particular
order for that part, the envelope normally has a particular
shop order number, as well as the part number. The
individual cards for each manufacturing process also have
the shop order number. It is the function of "production
control," according to Beatty, to place these separate
process cards and the blueprint into the envelope, which
then follows the part throughout the plant. Failure to
include one of the separate process cards is a serious
matter, according to Beatty. According to inspector
Sammy Broad, a witness for Respondent, the cards are
intended to indicate the next operation in the manufactur-
ing process. This is also indicated by the sequence of
manufacturing processes printed on the envelope.
2. The expediters
Beatty testified that the expediter and the shop foreman
have the responsibility for determining that all of the
manufacturing steps have been followed. In addition,
according to Beatty, the expediter's job is to "put the next
and I find that Beatty at all material times was an agent of Respondent and
a supervisor within the meaning of Section 2(11) of the Act.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job up, the next job that is to be done; in other words, we
have a shortage list in the shop; and he works from the
shortage list; he works from the due dates on the particular
cards; and he makes sure that the next operation is ahead
of the machine; he also records the operations as
completed." According to Julius Derrick, a company
expediter called as a witness for Respondent, the expediters
"control shop orders as they are being run through the
shop and . . . are there as a service to the production
employees and their supervisors." There is no evidence that
the expediter's advice is anything more than that, i.e., it
does not constitute an order which must be followed.
Derrick denied having authority over other employees.
Another witness for Respondent, David Dowd, testified
otherwise with respect to the functions of the expediter.
Dowd is Respondent's quality control supervisor, and was
in charge of five inspectors,4 including the alleged
discriminatee, Clarence Berry. As more fully described
hereinafter, Berry checked with an expediter before taking
the action which Respondent claimed was an error
justifying his discharge. In an apparent attempt to offset
Berry's testimony, Dowd claimed that expediters gave
erroneous information on routing to Dowd's inspectors,
and that he had warned all his inspectors not to rely on
expediter records. The only example of such erroneous
information, according to Dowd, happened several years
before; he could not remember the name of the inspector,
although the expediter was named "Imogene."
Derrick, however-on direct examination by Respon-
dent's counsel-testified that employees came and asked
him for information. He further testified that he frequently
supplied employees, including inspectors, with routine
information, and that this was a normal part of his work.
Derrick denied that anyone had ever complained that his
records were inaccurate, and denied that Dowd had ever
complained that he, Derrick, was supplying erroneous
information to Dowd's inspectors. The alleged discrimina-
tee, Berry, denied that he had ever been warned not to rely
upon the records of the expediters. Ernest Brown, a
company inspector supervised by Dowd, denied that Dowd
had ever told him that expediter records were unreliable, or
that he was not to rely on them, or that they were in fact
unreliable. On the contrary, according to Brown, he
checked with expediters whenever he had a question about
routing. Sammy Broad, an inspector called as a witness by
Respondent, stated that he asked questions of the
expediters.
In addition to the fact that Dowd's testimony is
contradicted by Respondent's other witnesses noted above,
as well as the General Counsel's witnesses, Dowd did not
appear to be a truthful witness. Accordingly, I reject his
testimony outlined above, and find that it was customary
practice at Respondent's plant for employees, including
inspectors, to check with expediters regarding routing of
parts.
The basic document used by the expediters to control
manufacturing flow and give information to employees is
the production accounting report. This is a card with an
order number, part number, quantity, issuance date, due
date, and coded numbers indicating the various operations
(G.C. Exh. 7 and 10). According to Company Expediter
Derrick, this document shows the work station, standard
time for the job, and the other information indicated
above. As each operator completes the manufacturing
process assigned to him with respect to a specific part, the
expediter enters the date with a handwritten note. As
Beatty explained it, the difference between the production
accounting report and the methods master is that the
former specifies the machine that each operation requires,
and the time needed for that operation, whereas the latter
spells out the exact nature of the operation to be performed
on each machine. There is no evidence to indicate that
expediters routinely keep a copy of the methods master; as
indicated, their basic document is the production account-
ing report, which, unlike the methods master, relates to a
particular shop order.
Some of the operations required on parts are performed
outside the plant by other companies. An example of
this-and the operation which acquires significance in this
case-is chrome-plating. Respondent customarily has this
done by outside companies. It is the expediter who routes
the part to shipping for transfer to the company selected to
do the chrome plating. The expediter receives his instruc-
tion for this routing in one of two ways, either a computer
card within the envelope directing the "external" operation
(G.C. Exh. 5), or an informal "pink slip" from an inspector
(Resp. Exh. 6). In addition to external operations which
change various parts, they may be altered or "reworked"
by an internal operation, after having been stored as an
ostensibly completed part.
3. The inspectors
Respondent uses floor inspectors and final inspectors,
both either "first class" or "second class," depending on
each inspector's ability. Floor inspectors work in particular
areas of the plant, such as the weld shop or machine shop,
while final inspectors, as the name suggests, perform the
last act of inspection required to determine that the part
has been completed satisfactorily. According to Respon-
dent's manager of manufacturing, Gordon L. Beatty, the
floor inspector primarily works among the employees, and
inspects the first piece. He is responsible to see that the first
piece off the machine is correct according to the blueprint.
Each floor inspector is assigned to a particular shop, and is
in almost continuous contact with the employees in these
shops. Final inspectors, on the other hand, spend about 90
percent of their time in the "final inspection area,"
although they are on call for floor inspection when
required.
The final inspector has the "final say" as to whether a
part is correct according to the blueprint. Although Beatty
stated that an inspector was subject to the supervision of a
foreman, he added that the latter "definitely cannot
overrule an inspector as far as `passing the part.' "
Inspector Broad, a witness for Respondent, confirmed that
only Supervisor Dowd, not a foreman, could "pass a part."
Further, according to Beatty, it is not the foreman's
4 As indicated by the amended pleadings, Dowd is an agent of
Respondent and a supervisor.
TAMPER, INC. 911
responsibility to determine that all of the required
manufacturing processes have been completed it is the
expediter's responsibility to determine the next required
process, and the final inspector's duty to determine that
this process and all others have been satisfactorily
completed.5 The inspector records this decision on a
computer card entitled "inspection" (Resp. Exh. 5(b)).
Beatty stated that employees are usually floor inspectors
before becoming final inspectors, because the experience
acquired as a floor inspector is helpful to a final inspector.
The latter deals with a larger variety of parts than does the
floor inspector, including parts coming from outside
vendors. Ernest Brown had been a final inspector for about
a year, but was transferred back to a position as floor
inspector about a year before the hearing, because of a
layoff at the plant at that time. Brown testified that the
work of floor inspection is quite different from final
inspection. As a floor inspector, he cannot deviate from the
blueprint; however, as a final inspector, he was often
required to make judgments involving the amount of
money in parts and labor which the Company had invested
in a particular product. Brown stated that greater judgment
was required for the position of final inspector.
Sammy Broad was a final inspector "first class," and had
been a final inspector for almost 5 years .6 He testified that
the job of final inspection consists of two separate parts:
first, the actual inspection of the part, and, second,
determining what to do with the part after inspection.
Broad stated that the blueprint is useful only with respect
to the actual inspection of the product, and says nothing
about the steps to follow in sending the part throughout the
plant. The latter is accomplished by the computer cards
and the envelope. Berry testified that final inspection was
unlike floor inspection in that the former dealt with
"disbursement of parts," and that he had had no
experience with this responsibility prior to his "transfer" in
the middle of May (as described hereinafter).
Broad testified at length concerning mistakes made by
final inspectors. He said that he himself makes mistakes
through carelessness or errors in judgment. He testified
that he does not make more than one mistake per month,
but conceded that these were only the mistakes of which he
had knowledge, and that there may be others. Not all of
them are "serious," according to Broad. Some of them
include passing a part as complete when in fact it is
incomplete, and sending it on for storage or shipment to a
customer. This is a serious error, and Broad has done this.
He has never been reprimanded, however; when the error
comes to his supervisor's attention, the latter discusses the
matter immediately with Broad and tells him to correct the
error. Broad has never received a warning after such
discussions. Prior to the instant case involving Berry, the
only discipline of an inspector of which Broad had
knowledge involved an individual who had approved a
manufacturing flow running the parts "entirely back-
wards," so that they were useless and had to be scrapped,
at expense to the Company. The discipline in this case,
according to Broad, was a suspension of the inspector for 1
or 2 days. Berry testified that, in about 1970, a floor
inspector approved a manufacturing process involving
$17,000 worth of "vibrating shafts," that the "keyway was
cut wrong," that the inspectors "held their breath," but
that no one was disciplined. Supervisor Dowd conceded
that inspectors other than Berry had made mistakes, but
"not real serious mistakes." On the other hand, Dowd said,
any mistake in inspection is a "serious" mistake.
4. The final inspection area and the gage crib
There is little if any dispute about the main layout of the
plant, which is approximately 400 feet square, and is
divided into a machine shop, a weld shop, assembly,
storage, shipping, office areas, and the final inspection
area.? The latter occupies a relatively small part of the
entire plant, and is divided, more or less definitively, into
an "inspection area" and a "stores pickup area." There is
evidence to the effect that placement of a part in the stores
pickup area by a final inspector, with the required
documents, constitutes acknowledgment that the part is
"complete," and automatically routes it to "Main Stores"
("AS-01" in the computer's vernacular), from which it is
subject to orders shipping it directly to customers.
Accordingly, placement of an incomplete part in the stores
pickup area would be an "error." The factual dispute
concerns the actual nature of the inspection area, and the
boundary, if any, between it and the stores pickup area.
Also of importance is the location, in or near the final
inspection area, of a gage crib, housing precision instru-
ments. The complaint alleges that Respondent "isolated" a
union advocate by transferring him to a "remote work
station," and the evidence shows that what the General
Counsel means is Respondent's alleged transfer of Berry to
duty as a final inspector, including work in the gage crib.
The parties submitted a joint exhibit, prepared by Beatty
during the,hearing, purporting to show the plant layout (Jt.
Exh. 1). The exhibit is a rough drawing with only outside
dimensions indicated. It shows the main areas as the weld
shop, machine shop, assembly and shipping areas, and
offices. The inspection area is shown as a small rectangle
located somewhat below the center of the plant. Although
no dimensions of the inspection area are indicated, a
comparison of its width, as shown on the exhibit, with the
indicated 400-foot width of the plant, suggests that the
inspection area is about 60 or 70 feet wide on two sides,
and somewhat less than that on the other two sides. The
diagram and various photographs submitted by Respon-
dent (Resp. Exh. 8(a) through (e)) indicate that the
inspection ,area consists merely of several desks or benches.
In one corner of the inspection area, partitioned by
plywood, is the gage crib, about 8 feet square. It has a half
door and a bell overhead used by employees requesting a
particular tool from the gage crib.
Adjacent to the final inspection area, and somewhat
smaller, is the so-called stores pickup area. One "side" of it
is indicated merely by about three desks, or benches,
within the inspection area. Opposite this "side" of the
stores pickup area is a wall partially lined with vending
5 The foregoing summary of employee responsibilities is derived was admittedly opposed to the Union.
principally from Beatty's testimony . 7 In addition to an office area within the plant itself , there appears to be
6 As indicated above, Broad was called as a witness by Respondent , and a "main office" (Jt. Exh. 1).
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machines and metal shelving. Doorways in this wall lead to
two washrooms and a janitorial room. Office space is
located above these rooms, and they are designated on the
diagram as a "block building" (Jt. Exh. 1). The third "side"
of the stores pickup area is comprised mainly of the rear of
the gage crib. The fourth "side" is open to a main aisle, and
is the route for transporting completed parts to the main
storage area.
The photographs show that the combined inspection and
stores pickup area is bounded on at least two sides by solid
white lines, and that these designate main aisles (Resp.
Exh. 8(a), (b), (c)). In addition, there appears to be a solid
white line between the stores pickup area and the
washrooms (Berry's testimony; Jt. Exh. 1). There is also a
dotted white line which was the subject of conflicting
testimony. Viewing the stores pickup area from its open
side, i.e., from the aisle , this appears as a broken line
consisting of three white markings, with intervening spaces,
extending approximately one-third of the way from the
block building to the desks or benches in the final
inspection area (Resp. Exh. 8(e)). A photograph from
another direction shows, very faintly, a "dotted line"
beginning at a point substantially withdrawn from the
main aisle ; it appears to be almost at midpoint of the block
building, near one of the washroom doors (Resp. Exh.
8(c)). As the fourth "side" of the stores pickup area is
otherwise unbounded, the effect of the white dotted line
may be said to create a partial boundary to the fourth
"side," and thus to define that area more clearly.
Beatty testified that the photographs show the plant as it
was in March through July 1972, inclusive. However, he
was not present when the photographs were taken, and did
not know the individual who took them (other than the
"personnel department") or the time of day that they were
taken. He nonetheless testified that the conditions reflected
in the photographs-including the floors-were the same
as they were at the time of Berry's final "mistake" (June
29).
Respondent's witness Broad, testifying prior to introduc-
tion of the photographs, said that the stores pickup area
was "surrounded" by a dotted white line. He was asked by
union counsel the date that the dotted white line was
placed on the floor. "I can't answer that," was the response
of the witness. Asked whether it had been placed there
recently, Broad answered that it had taken place "within
the last year." Asked whether it was placed there after
Berry was discharged, the witness again said, "I can't
answer that," although he admitted knowing the date of
Berry's discharge (July 5). On rebuttal by the General
Counsel, Berry testified flatly that there was no dotted line
around the stores pickup area at the time of his discharge.
The only dotted white line on the photographs extends
about one-third of the way on the "open" side of the stores
pickup area; no such line is shown "surrounding" that
area.
I credit Berry's testimony on this point. Beatty's
statement that the floors were the same at the time of the
photographs as they were previously is general in nature,
and does not refer specifically to the dotted white line;
moreover, Beatty's knowledge of the circumstances and
date of the photographing was admittedly incomplete.
Broad's testimony is equivocal, and on this point he did
not appear to be a truthful witness. Berry, on the other
hand, appeared candid and honest. Finally, Respondent's
own photographs do not support Broad's testimony.
Accordingly, I find that the stores pickup area was neither
"surrounded," nor partially bounded on one side, by a
dotted line at the time of Berry's discharge. It follows that
the short dotted line appearing in the photographs was
placed there subsequent to Berry's discharge.
B. The Beginning of the Union Campaign, and
Respondent's Opposition to It
The union campaign at the plant began in early 1972.
David Mason, who works in Respondent's plant building
axles, testified that James E. Bundrick, Mason's supervi-
sor,8 approached Mason some time in March and asked
him how he "felt about this organization trying to get into
the company." Mason replied that he had not heard about
any such organization. On cross-examination, Mason
characterized the conversation as friendly, and said that he
did not feel threatened by it. A few days later, Mason
approached Bundrick, and asked for more information
about the Union. Bundrick referred him to other employ-
ees. As Bundrick did not testify, and Mason appeared to be
a truthful witness , I credit his testimony.
On April 20, Marvin A. Brazell , an organizer for the
Union, sent a certified letter to Beatty informing him that
the Union was conducting an organizing drive among
Respondent's employees, at their request, and advising
Beatty of the employees' rights protected by Federal law
(Un. Exh. 3).
Robert F. Bone, a company employee who operates an
automatic chucker, signed a union card and attended
union meetings. Bone testified that Clarence Adkins, a
supervisor, 10 approached him about May I as Bone was
talking with another employee, Leroy Shumpert, at the
latter's machine. Adkins asked Bone to do something the
following morning, apparently unconnected with work.
Bone replied that he could not comply, as he had
somewhere to go. Adkins inquired about this, and Bone
replied that he was going to a union meeting. Adkins asked
him where this was taking place. Bone replied that he did
not know, but that he would take Adkins in his truck, if the
latter wanted to go. Bone said that he was serious about the
invitation, but that Adkins "kind of laughed." The
supervisor replied that he knew what was going on, that he
knew how many people were going to the meetings, and
that he knew more about what was going on than people
thought he did.
Adkins testified and acknowledged having several
conversations with Bone about the Union in May and
June. He asserted on direct examination that these
8 As indicated by the pleadings, including the answer as amended at the '° The pleadings establish that Adkins is the supervisor of the machine
hearing, Bundrick is Respondent's General Foreman , and is an agent of shop, Respondent's agent, and a supervisor . Adkins, who defined his
Respondent and a supervisor within the meaning of Section 2(11) of the position as "foreman of the machine shop," testified that he has held this
Act. position for 3 years on the "night shift ," i.e., the second shift, from 3:30 p.m.
9 [Omitted.) until midnight.
TAMPER, INC. 913
conversations all started with Bone asking Adkins ques-
tions about unions. Although Adkins denied having a
conversation in which Bone invited him to a union
meeting, he testified to an inquiry from Bone as to what
takes place at union meetings in general . Adkins replied
that the members usually discuss grievances , and stated
that he gave Bone a union magazine to read . He denied
telling Bone that he knew what was going on at meetings of
the Union involved in this case.
On cross-examination, however , Adkins testified that he
was opposed to the Union, that he made his feelings
obvious to Respondent 's employees in conversations with
them , that he made estimates of the company or union
sympathies of employees, based on discussions with them,
and reported these estimates to Beatty . Adkins testified
specifically that one of the employees about whom he
made such reports was Robert Bone . He averred that he
told Bone that the Company did not need a union, and
that Bone was already in good shape with no problems.
Adkins ' testimony on this gathering of information was
corroborated by Beatty, who testified that he obtained
surveys from each supervisor concerning the union
sympathies of each employee, and that he continued to
update this information. His objective, Beatty testified, was
to defeat the Union.
In light of the foregoing, and the fact that Adkins did not
appear to be a completely truthful witness, I reject his
version of his conversation with Bone given on direct
examination and credit Bone 's testimony.
C. Clarence Berry
1. Berry's employment history
Berry was hired January 18, 1967, as a second class
engine lathe operator in the machine shop. On October 30,
1967, he was made a leadman in the machine shop at an
hourly wage of $2 .55. He received several wage increases in
this position, the last one being $3.06 on March 10, 1969.
He was reduced to a lathe operator on June 23, 1969, at a
rate of $2.81. There is no reason indicated in the record for
this action. Berry said that he did not know, and no reason
was given by Respondent. However, Berry received three
further raises in 1969 as a lathe operator, the last being to
$3.15, on December 22, 1969.
Berry was made a second class floor inspector in the
machine shop on April 6, 1970, and 2 months later, on
June 8, 1970, received a wage increase to $3.25. He
received two more raises as a second class inspector, and,
on June 14, 1971, was promoted to a first class floor
inspector with a raise to $3.62. According to Berry, he
worked about 2 weeks as a final inspector about this time.
He received two more raises, the last one being on March
13, 1972, when his rate was increased to $3.90.11 Beatty
testified that Berry's last three increases were merit
increases , as distinguished from general raises throughout
the plant.
Sometime in February or March, 1972, Berry was
transferred from the machine shop to the weld shop, as a
floor inspector at the same rate of pay. Although Berry had
had no prior experience as an inspector in the weld shop,
he testified that he had no difficulty with the work.
Berry further testified credibly that he had never been
reprimanded in his more than 5 years of employment with
the Company , prior to the events upon which this litigation
is based . Respondent's manager of manufacturing , Gordon
L. Beatty, testified that he had no knowledge of any
mistakes that Berry had ever made as a floor inspector.
Respondent's policy was to make semiannual performance
appraisals of employees. An appraisal of Berry, dated
December 1, 1971, signed by supervisor Dowd and by
Beatty , indicates that Berry then produced a full day's
work , accepted suggestions, cooperated with his fellow
workers, applied himself seriously to work, kept busy, was
making expected progress , did acceptable work, had no
unexcused absences , stayed on the job , carried out
instructions , was a safe worker , did not have to be
watched , reported absences in advance, accepted unsche-
duled overtime , expected to advance on merit , got along
well with others , and was neat in dress and appearance. He
was rated as "good" in quality and quantity of work,
attitude, and attendance. Dowd indicated that he was
satisfied to have Berry remain in his department, and
added that he was "a good worker but with a little more
initiative, could be better" (G.C. Exh. 13).
2. Berry's participation in the union campaign
Berry stated that he signed a union card, attended union
meetings , and carried union cards and literature in his shirt
pocket , vest pocket, and back pocket , in the plant in full
view of persons observing him. This began about the last of
April, Berry testified on direct examination . Although he
was not entirely sure of the date on cross -examination, he
was still certain that it began after he started attending the
union meetings . As Brazell's letter to Beatty was sent April
20, and Bone invited Adkins to a union meeting about
May 1, Berry was doing this at least as early as the first of
May. Supervisor Adkins testified that it was "quite
obvious" what Berry was carrying in his pockets, that it
was union literature , and that he knew that Berry was in
favor of the Union. Accordingly, company knowledge that
Berry was an active union adherent, which it admittedly
had when he was fired (July 5), was acquired at least as
early as May 1.
3. Berry' s "final warning" and "transfer"
On various occasions prior to May 8, Berry had gone to
his car in the company parking lot, without criticism. On
May 8, about 5 p.m., a security guard told Berry that he
had a visitor. Berry went "up front," and found the visitor
to be a young man who was renting a trailer of Berry's
located in a trailer park. The visitor wanted to report an
incident that had happened in the trailer park, but told
Berry that the visitor's wife knew more about it. Berry
testified that the visitor told him that the latter's wife was
in a car in the company parking lot and was 6 months'
pregnant at the time; he asked Berry to accompany him to
the car in order to get the report from his wife. Berry did
11 Berry's employment history , summarized above , is based mainly on
his salary record card (G.C. Exh. 9).
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so, without asking permission. When he returned, he was
given a written warning by Joe Brown, the weld shop
foreman,12 stating that he "went outside the plant without
asking, did not leave parking lot" (Resp. Exh. 2(b)). Brown
also suspended Berry for the balance of the second shift,
and sent him home. Later that night, Berry called Dowd,
who was not working the second shift, and told him about
the suspension. Dowd replied that he would take the
matter up with Berry the following night.
Dowd testified that the parking lot is about 30-40 feet
from the plant. Beatty said it was 100 feet from the plant to
the visitor's parking, and 200-225 feet from Berry's work
station to the guard's desk. Dowd testified, as "quoted to"
him, that Berry had been gone 10 or 15 minutes. Dowd
further testified that there are two "break" periods on the
second shift (3:30 p.m. to midnight), but that he did not
know when they occurred. However, Dowd said that it was
his "understanding" that Berry's absence had not taken
place during a break period. Dowd also averred that it was
"strictly against Company rules" to go outside without
permission, and that the Company had published these
rules. No published rules were introduced into evidence;
Joe Brown did not testify.
The following day, May 9, Dowd first consulted with
Brown, and then called for, Berry, and gave him a second
written warning on the same incident, signed by Dowd and
Brown. This document stated that it was a "final
warning." 13 Berry protested the words "final warning,"
whereupon Dowd read the warning himself and said, "It
does say FINAL." He told Berry that the latter could talk
to Beatty if he wanted to, but that he, Dowd, was sure that
"it will stay FINAL."
Berry located Beatty in the plant, and had a conversation
alone with him about 4 p.m. on May 9. According to Berry,
he complained about the word "FINAL" on the warning
slip, whereupon Beatty replied that "95 percent of the
warnings say 'FINAL' " and that "that doesn't mean
anything." Berry replied that if the warning meant that he
had to "walk a straight and narrow path," and that his first
mistake thereafter would be "set on the outside" (sic), he
could not work under such pressure. Beatty asked him how
long he had been working at Tamper, and Berry told him.
Beatty responded: "So, you made one mistake and it cost
you half a day's pay. Hell, forget it. That's all there is to it;
if it makes any difference to you, the reason you was [sic]
sent home for the day goes in the records with your file."
Berry answered that this made him feel a little better, but
that it was things like this incident that made him want a
union in the plant. On cross-examination, Respondent's
counsel read what purported to be Berry's recorded
testimony in some other proceeding, wherein he allegedly
referred to his inability to work in " 'final inspection and
not make any mistakes.' " The record in this hearing shows
that Berry replied to the alleged quotation, "Yes, I told him
that." Asked in this hearing whether "this [was] in regard
to that second warning," Berry replied that he was "sure"
that it took place after "they sent [him] home"; i.e., the
first warning.
Beatty's version of the conversation is almost the same.
The manufacturing manager added that Berry told him the
reason for the latter's absence from the plant. However,
Beatty denied that Berry mentioned the Union. Beatty
admitted knowing that Berry was an adherent of the union
cause at the time the latter was fired (July 5), and admitted
knowing that a union campaign was going on at the time of
the conversation with Berry about the parking lot (May 9),
but denied knowing, at that time, that Berry was a union
supporter.
Respondent argues that, since Berry was not "trans-
ferred" to final inspection until about May 15, his "claim"
that he referred to "final inspection" during the first
warning conference with Beatty on May 9, before the
"transfer," somehow contradicts his testimony that he
mentioned the Union during the first conference. In the
first place, Berry never "claimed" that he referred to "final
inspection" in the May 9 conference. Rather, he was asked
a leading question on cross-examination concerning his
testimony in some other proceeding, the record of which
has not been introduced into evidence in this proceeding.
Although the transcript in this proceeding at one point
indicates that counsel is purportedly quoting from "page
18" of some other transcript, the subsequent punctuation
and text of the transcript herein make it difficult to
ascertain when counsel is departing from the alleged
quotation. This is insufficient evidence to show that Berry
contradicted his testimony in this proceeding by some
other testimony. Further, it is a nonsequitur, since the
alleged quotation does not mention discussion of the
Union during the first conference, which is the factual
issue in dispute.
In light of Berry's union literature in his pockets as early
as May 1, supervisor Adkins' knowledge of the nature of
that literature, Beatty's admitted program of ascertaining
information on employee attitudes toward the Union, his
knowledge of the union campaign on May 9, his admitted
knowledge of Berry's sympathies on July 5, and his
admission that Berry mentioned the Union in later
conversations (infra), I reject Beatty's testimony that Berry
did not mention the Union during the May 9 conversation,
and credit Berry on this point.
Approximately a week later, about May 15, weld shop
foreman Joe Brown told Berry to work in the gage crib
temporarily. Berry also started doing final inspection at
this time, but was still on call to do floor inspection in the
weld shop when needed. He was required to do the latter
"quite often," and listed some nights when he went back to
the weld shop three or four times, and others when he went
there only once. According to Manufacturing Manager
Beatty, Berry was not really "transferred" to final
inspection and the gage crib, but was required to work
there in addition to his other duties in the weld shop. There
was no change in Berry's pay.
Berry further testified that floor inspector Ernest Brown,
12 The pleadings show that Joe Brown is the weld shop foreman , authorization . This is a violation of plant rules and cannot be tolerated.
Respondent's agent , and a supervisor within the meaning of Section 2(11) of Therefore, Mr. Berry was suspended for the remainder of the shift on May
the Act. 8th, 1972 and is being given a final warning . Any future violation of plant
13 The second warning reads: "During work time on Monday, May 8, rules or policies will result in termination" (Resp. Exh. 2(a)).
1972, this employee left his assigned work area and the plant without
TAMPER, INC. 915
who worked on the second shift, had been working in the
gage crib prior to Berry's new assignment, but thereafter
worked there only occasionally, when Berry was absent.
This duty consisted of answering the gage crib bell, when
rung by an employee needing a, tool, and checking out the
tool to the employee.
Joe Brown's temporary assignment of Berry was made
"official" by quality control supervisor, David Dowd, a
few days later. With respect to his final inspection duties,
according to Berry, he told Dowd that "a lot of these things
[were ] new to [him]," and Dowd told him to "make a
decision one way or the other". "If you make a decision
one way or the other." Dowd continued (according to
Berry), "we will know to go the other way next time."
Dowd worked the first shift (7 a.m. to 3:30 p.m.), whereas
Berry was on the second shift (3:30 p.m. to midnight).
Berry asked Dowd whether he should call the latter at
home, in event of a question; Dowd replied that he "would
rather that [Berry] wouldn't," and told him to make a
decision. Dowd also said that no foreman had a right to
say whether a particular part was good or bad. "We of the
inspection department are responsible," he informed Berry.
Berry also testified that, "after the reprimand [he]
received," Dowd told him that he, Berry, "would be in
Joe's authority after [Dowd] left." The record is unclear as
to whether Berry was referring to the written reprimands of
May 8 and 9, or the one on June 6, discussed infra.
According to Dowd, Berry was told to "answer to" weld
shop foreman Joe Brown when a question came up. The
foreman would determine the correct procedure, which
Berry was to follow. If there still was a question, the part
was to be left for Dowd's decision the following day.
Dowd's testimony does not indicate any change in these
instructions after Berry received his gage crib and final
inspection assignments.
While still a floor inspector in the weld shop, Berry was
under Dowd's supervision. If Dowd's placing Berry under
Joe Brown's supervision took place after the May 8-9
reprimand-and it was Joe Brown who first gave Berry the
warning about the parking lot incident then this action
would have been superseded by Dowd 's new instructions
when Berry assumed his final inspection duties, about a
week later. On the other hand, if Joe Brown's authority
over Berry was first established after the June 6 reprimand
(discussed infra), then the question arises as to whether that
authority was merely of a housekeeping nature (i.e., no
unauthorized visits to the parking lot, etc.), or extended to
substantive control over Berry's work as a final inspector.
Although Dowd testified to the latter interpretation, this
would have been contrary to customary plant practice as
established by the testimony of first class inspector Broad,
and Dowd's own superior, Manufacturing Manager Beat-
t).
I conclude that the date of Joe Brown's assumption of
supervisory authority over Berry is uncertain, and that its
nature was ambiguous. As noted above, it was customary
practice in the plant for the inspectors to consult with
Dowd or an expediter in event of a routing question, while
no foreman, such as Joe Brown, had authority to "pass a
part."
Berry testified to a particular conversation which he had
a day or two after assuming the new duties; i.e., about May
16 or 17. This conversation took place about 3:30 p.m.,
when the shifts were changing. Dowd asked Berry, "Just
what the hell is going on?" Berry replied that he did not
know, and suggested that Dowd tell him. Dowd said that
he had received Berry's pay records, had talked to
Supervisor Joe Brown, and that the latter had referred him
to Beatty. Dowd then talked to Beatty, who informed
Dowd that Berry was "circulating over the plant too much
talking with the other fellows and that [Berry] had too
much influence and to get (him) off the floor." Berry told
Dowd that it was "crazy or silly" to try to keep him from
talking, that this wouldn't keep him from talking, that he
would only go to the (employees') homey and talk. Berry
said that he had talked to other employees, but had not
held up production, as he had "better sense"- than to do
this.
Dowd did not testify concerning the foregoing conversa-
tion related by Berry.14 As it is consistent with Berry's
other testimony, and since he was a reliable witness, I
credit his testimony in this matter.
4. Berry's "mistakes" as a final inspector-his
appearance at the representation hearing-the
second written warning
As indicated above (sec. IIIA, 3), the final inspector
records the decision that a part has been completed on a
computer card entitled "Inspection." This card identifies
the shop number, part number, the inspector making the
decision, the "quantity transferred- to stores"; i.e., a
completed part sent to storage, and other information
(Resp. Exh. 5(b)).
Berry testified that, on the day following assignment to
his new duties, i.e., on about May 17, Dowd shook his head
in a joking way and said, "Oh, Pete,15you did a bad thing
last night." Berry inquired as to the nature of the offense,
and Dowd told him that he had made an error on an
inspection card the previous night. The nature of the error
is not completely clear from the record, but appears to
have been a failure to record the quantity of a part
transferred to "Main Stores" (storage). Berry acknowl-
edged the error, whereupon Dowd told him that it was "no
big thing," and instructed him to correct the card.
Although Dowd's_testimony is somewhat vague, it tends to
corroborate Berry's testimony concerning this incident,
which is credited.
The parties stipulated that the Union filed a representa-
tion petition involving Respondent on May 11, in Case
11-RC-3539, and that a hearing on the petition was held
on May 31.On May 30, Berry received a subpena to attend
14 Called as a witness for Respondent, Dowd was asked whether he testimony , which did not involve Beatty in this particular conversation,
recalled a `warning session" with Berry, at which Beatty was present and at although there is evidence of a similar question by Beatty on June 6,
which he, Beatty, asked Berry, "What the hell is going on9" Dowd answered discussed infra.
in the negative . This is insufficient to constitute a denial of Berry's 15 Berry was known by the nickname , "Pete."
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing as a witness for the Union (petitioner), and
showed it to Adkins on that date.16 Beatty acknowledged
that he learned of Berry's subpena the same night, and
claimed that this was his first knowledge of the fact that
Berry was a union adherent. Berry attended the hearing on
May 31, and Beatty conceded that he saw him at that
proceeding.
Berry testified that he received no notice of errors by
him, or criticism of his work, between the conversation
with Dowd about May 17, related above, and June 6. On
the latter date, Dowd asked Berry to accompany the
supervisor to Beatty's office. Beatty gave Dowd a written
warning to read to Berry, and Dowd did so. The warning
asserted that Berry had made various errors. 17 After Dowd
read the warning to Berry, the latter said that he did not
know anything about the alleged mistakes, that he was not
denying he made them, but that they should have been
shown to him. Beatty then asked Dowd whether he had
shown the mistakes to Berry. "Well, some of them," Dowd
replied, whereupon -Berry replied that none of the mistakes
had been shown to him by Dowd. Beatty said: "Pete, what
in the Hell has happened? You have worked, I know that
you are well qualified to do the job, and you have worked
with us all this period of time. Now during the last couple
of weeks, these things have popped up." Berry replied:
"Mr. Beatty, you know why; you know the reason for this,
it is the Union. I know that you have the Union thing just
as high as you can get it. You are ready to chop off my
head." Beatty denied this: "No, Pete, we want to save your
job, not to fire you." However, he informed Berry that such
errors could not be "tolerated."
Beatty's version of this conversation is substantially the
same, with the variation that Berry's statement concerning
Beatty's desire to "chop off" Berry's head took place after
Dowd had left, when Berry and Beatty were alone in
another part of the plant. Beatty affirmed that Berry said
the Company's real reason for the warning was Berry's
union activities, and that he, Beatty, denied this. Beatty
stated that Dowd claimed to have records of the "mis-
takes," but that they were merely duplicates of the warning
slips, and were in Dowd's handwriting. Beatty averred that
he could not recall whether Berry asked why he had not
been shown the "mistakes" previously. However, he
testified affirmatively that Dowd did not claim to have
shown them to Berry before June 6.
Dowd's testimony is not as complete as Berry's and
Beatty's, but in the main is consistent with their versions.
According to the supervisor, Berry said that he did not
believe that he had made the alleged errors, and Dowd
stated that he had records of them. Dowd did not state
whether the conversation included the subject of prior
notice to Berry of the errors. He denied being present when
the subject of the Union came up.
These accounts are substantially consistent. I credit
Berry's version of the conversation, subject to the correc-
16 Berry also asserted that he showed the subpena to a supervisor named
Bill Brown . It is unclear whether he was referring to Weld Shop Foreman
Joe Brown.
17 The warning , written on 2 slips, identifies Berry, is signed by Dowd
and Beatty, and reads : "During the period between 5/18/72 & 6/6/72 the
following errors were made by said employee : 5/18/72-Y68510-baffle
plates-54 pcs sent to Stores incomplete . 5/23/72--44A7 I -sent to Stores
tion that the discussion about the Company's alleged
antiunion motivation took place after Dowd had left.
Dowd testified to two other reprimands given Berry, oral
in nature, at both of which Sammy Broad was allegedly
present. The supervisor placed the first such reprimand
sometime in May, and asserted that it involved a "skipped
operation ." Berry testified that there were no oral repri-
mands between the May 17 conversation with Dowd, and
the June 6 warning conference . However, he testified on
direct examination by the General Counsel that, about 2
weeks before his discharge (July 5), i.e., in about the third
week of June, Dowd showed him that he had failed to
record the quantity of an item transferred to main stores.
Dowd was unable to fix the date of the second oral
reprimand about which he testified. I conclude that Dowd
was referring to the conversation about the third week of
June, related by Berry.
Sammy Broad , although not a supervisor, testified that
he complained to management about the work of other
employees, including inspectors. At one time he com-
plained because another employee talked to him about the
subject of cats. In Berry' s case , Broad asserted, so many
errors were made on the second shift by Berry that Broad
was caused unnecessary work correcting them when he
came on duty the following morning, on the first shift.
Parts were sent to main stores incomplete, paper work was
filled out incorrectly, he received frequent complaints from
main stores about incorrect counts, etc.
Broad testified that he reported these alleged errors to
Dowd. He also testified that Dowd told him, Broad, to
gather information on Berry's "mistakes," and to report
them to Dowd. The record is not clear as to whether Dowd
made this request before or after Broad first reported
Berry's alleged errors.
On cross-examination , Broad was asked about the
specific errors alleged in the June 6 written warning to
Berry.18 With respect to the first two errors listed on the
warning ("baffle plates" and "44A 7"), Broad stated that
he did not know what they were, and had no knowledge of
any errors concerning them made by Berry. With respect to
the third alleged error ("W66406"), Broad said that this
was a front plate requiring a "hard phasing operation in
the weld shop," that the parts were in the inspection area
when Broad left work, and that they were gone the
following morning , with the "paper work" left on Broad's
bench. Broad asserted that he checked main stores, and
found that they had been delivered without the hard
phasing operation . Concerning the fourth alleged error ("3
orders routed to stores with inspection tickets filled out
incorrectly"), Broad said that he found these "in the stores
area" with the tickets "filled out incorrectly." Broad had
no knowledge of the fifth alleged error ("Pt #C-45").
Broad said that he wrote the errors allegedly made by
Berry, including the two on the warning notice of which he
claimed knowledge , on a piece of paper, and gave the
incomplete . 5/22/72-W66406-10 pcs sent to Stores incomplete.
5/22/72-Three (3) orders routed to Stores with inspection ticket filled out
incorrectly with no count on either ticket . 6/6/72-Pt #C-45-side
plate-count incorrect . Count taken from ticket, no actual count made. This
type of incompetence cannot be tolerated and any further errors will lead to
disciplinary action or discharge" (Resp . Exh. 3(a), 3(b)).
18 Ibid.
TAMPER , INC. 917
paper to Dowd. He said that, about June 1, he was present
during the beginning of a conversation about this between
Dowd and Berry, but did not stay to hear the remainder of
the conversation. Instead, he "went to another part of the
area and made [himself) busy at something else."
The evidence summarized above is insufficient to charge
Berry with three of the errors listed on the June 6 warning
slip, and is inconclusive concerning the other two. Broad
admittedly had no knowledge of three of the errors, and
the source of Dowd's alleged knowledge of same is
unknown . With respect to the two errors concerning which
Broad asserted knowledge, there is no documentary proof,
such as a final inspection slip, fixing responsibility for same
on Berry. Dowd and Broad were both unreliable witnesses,
admittedly hostile to the Union. Broad himself knew, as he
conceded, that Berry attended the representation hearing,
and was a union adherent. Broad's admitted reports on
other employees to the Company, the absence of any
reprimand of Broad despite his own regular mistakes, and
Dowd's request that Broad gather information on Berry's
mistakes, suggest that Broad was a company "favorite"
utilized by Dowd for the purpose of building a case against
Berry. The latter, on the other hand, candidly admitted on
direct examination by the General Counsel that Dowd
spoke to him in the third week of June about an omitted
countan incident about which Dowd could not remem-
ber the date. It is clear that Berry was the more reliable
witness.
The evidence is inconclusive as to whether there was one
more oral reprimand, in May or early June. Although
Dowd stated that Broad was present at two additional, oral
reprimands, Broad testified about only one, and even then
did not hear what was said. Whether Berry made certain
mistakes other than those he admitted, including those
with which he was charged in the written warning-and on
this issue the evidence is inconclusive-there is no doubt
whatever that Berry was not given immediate notice of
each mistake. Thus, when Berry, at the June 6 conference,
said that he had not received notice of the errors with
which he was charged, Dowd's half-hearted response was
that he had shown "some of them" to Berry, thus admitting
that he had not shown others. Therefore, notice of some'
mistakes alleged on the warning slip was not given until
June 6. This lack of immediate notice was contrary to the
practice of notifying inspectors immediately on the
occurrence of mistakes. The fact that Berry was not given
immediate notice, and received it retroactively on June
6-after his appearance for the Union at the May 31
representation hearing-makes the Company's evidence
suspect.
It is significant that Berry's first "mistakes," after more
than 5 years of employment, occurred immediately after
his "transfer" to a post in which mistakes were regularly
made . Respondent's witnesses advanced the contention
19 "Under the circumstances , the issuance of multiple warning slips to
(the employee) lends credence to the . . . argument that Respondent was
establishing a case to justify [his I discharge" Li'l General Stores, Inc, 170
NLRB 867, 877 (1968), enfd. as modified 422 F.2d 571 (CA. 5, 1970).
20 The date alleged in the complaint, July 7, was amended at the hearing
to June 24.
21 As indicated above, Beatty also made a speech to employees shortly
before the unfair labor practice hearing in the instant case. Evidence
that the reason for the "transfer" was the fact that the weld
shop was not as busy about May as it had been previously.
But this is not consistent with Beatty's admission that
Berry was not really transferred, but was simply given the
final inspection and gage crib duties in addition to his floor
inspection duties in the weld shop.
The effect of the "transfer" was to relieve Ernest Brown
from regular duty in the gage crib to only occasional duty.
Although Brown had had a year's prior experience as a
final inspector, while Berry had had only 2 weeks of such
duty, and was inexperienced in it, it was Berry, rather than
Brown, who was selected for the final inspection duty.
When Berry told Dowd that he was new at the final
inspection duties, and requested permission to call Dowd
at home in the event of a question, the latter declined; and
yet, a day or two later, Dowd told Berry that he had done a
"bad thing" (May 17).
Respondent argues that the gage crib is near the vending
machines, and is not "remote" from other employees. Yet
it is obvious that gage crib duty restricts freedom of
movement within the plant, and that final inspection duties
are substantially confined to the final inspection area.
Indeed, as Dowd frankly told Berry, Beatty said that the
object of the "transfer" was to get Berry "off the floor"
because he was "circulating" through the plant and had
too much influence (in favor of the Union) with other
employees.
The evidence is thus overwhelming that at least one of
Respondent's reasons for the "transfer" was to prevent
Berry from influencing other employees in favor of the
Union. The evidence also indicates that an additional
motive was to assign new duties to a hitherto exemplary
employee so that "mistakes" in the performance of such
duties could be ascribed to the employee and used to
justify disciplinary action against him.19 In light of this
latter motivation, and Respondent's lenient attitude to-
ward mistakes made by other inspectors, its evidence of
Berry's alleged mistakes has little or no probative value,
and does not justify its discipline of him.
D. Beatty's Speeches to Employees
The complaint alleges that, about June 24,20 Beatty
interrogated employees concerning their union activities,
and informed them that the Company was discontinuing
its regular 6-month review and reclassification of employ-
ees, thereby withholding some pay increases pending
completion of the Union's campaign. The testimony of
numerous witnesses, including Beatty, shows that the
manufacturing manager made three speeches to employees
prior to July 12, 21 the originally scheduled date of a Board
election in Case 11-RC-3539. The Decision and Direction
of Election issued on June 16.22 Beatty and all but one of
the General Counsel's witnesses were unable to supply
reasonably accurate dates of these speeches. However,
concerning the content of this speech was adduced at the reopened hearing,
and is discussed infra
22 The dates of the Decision and Direction of Election, and the originally
scheduled election, were stipulated by the,parties. Also stipulated was the
fact that the election was postponed on July 11, because of the filing of the
unfair labor practice charge herein, on July 10, and the fact that the Union
did not at that time file a request to proceed with the representation case.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marion Montgomery, a tracer lathe operator, testified in
effect that the first such speech occurred about the last of
May, the second about June 10, and the last on June 24.
Montgomery's testimony is credited, and I find that
Beatty's, speeches to groups of employees were made on or
about these dates. The evidence is consistent that they were
made from a prepared text in the canteen, or cafeteria, and
were followed by question and answer periods.
1. The alleged interrogation
In one of question and answer periods, according to the
testimony of David Mason, there was discussion of the
subject of resignation from the Union. Beatty said that
resignation was possible within a 10-day grace period at
the end of each year, but that employee notices of
resignation would probably get lost, and the employee
would end up paying dues for another year. One employee,
Walter Martin, asked Beatty whether he would be paying
union dues and not getting anything from them. Beatty
replied that this was probable, since the only reason the
Union wanted to "get into Tamper" was to claim credit for
the good benefits which the employees already had, and
thus induce employees of other companies to join the
Union. Beatty then "kind of jokingly" looked at Walter
Martin and said, "You signed a card, didn't you?
Everybody knows that you signed a card." Everybody
laughed, because Martin kind of "got shook up." He
stuttered a bit and said, "No, no, no." Everybody laughed
again, including Martin. It was just one laugh, which
continued.
Henry Varnador, a third class fitter at the Company,
testified that he was present at the three meetings, and that
Walter Martin asked questions at two or three of them.
During a discussion about what the employees might
expect to get in return for their union dues, Martin said, "I
ain't giving none of my money to nobody for nothing." On
cross-examination, Varnador testified that there was no
employee reaction to this statement from Martin. Beatty
then asked, "You have signed a card, haven't you?" Martin
denied this. On cross-examination, Varnador was asked
when it was that the employees first laughed-after
Beatty's statement, or Martin's. The witness replied that
laughter first occurred after Martin's statement; i.e., after
Martin's denial that he had signed a union card. Varnador
testified that there were approximately 20 to 25 employees
at the meeting.
Walter Martin was called as a witness for Respondent,
and testified concerning the same incident. According to
Martin, it took place at the meeting "before" the last one.
Beatty's last speech was given shortly before the unfair
labor practice hearing.23 Martin's apparent reference is to
the last of the three speeches in the early summer; i.e., the
speech on June 24.
On direct examination, Martin testified that he said he
wasn't going to pay [his ] money to nobody that wasn't
going to help [him]," which remark brought on a "big
laugh." Beatty then said, "Then you must have signed a
Union card." Martin denied that Beatty asked him whether
he had signed a card.
On cross-examination , Martin originally denied that
Beatty was "talking against" the Union. Rather, according
to Martin, Beatty was just trying to tell the employees what
the Union "was about." Although Martin conceded that
Beatty told the employees about strikes, violence, and lost
work (in other plants) because of the Union, he maintained
that Beatty was not against the Union. Finally, Martin
agreed, Beatty conveyed the impression that he was
opposed to the Union. The witness said that Beatty's entire
speech , about money from the employees' pay checks, was
"funny," although he altered this opinion so as to
characterize only Beatty's postspeech remarks as humor-
ous. Martin denied knowing whether any other employees
asked questions of Beatty.
According to Beatty, Martin said that he was not going
to give the Union his money if they did not get anything
for him, at which remark everybody laughed, including
Beatty. Beatty then said, "Well, Slim,24 you must have
signed a Union card," and Martin replied that he had not
done so. There was continuous laughter, according to
Beatty.
In assessing this testimony, there is little conflict about
the nature of Martin' s original statement, to wit, that he
was not going to pay dues to the Union without getting
anything in return . I credit Varnador's testimony on cross-
examination that there was no employee reaction to this
statement . I also credit the testimony of Mason and
Varnador that Beatty then specifically asked Martin
whether he signed a card, rather than making a statement
that Martin must have signed one. Beatty and Martin both
agree that the latter answered Beatty with a denial.
According to Martin and Beatty, there was continuous
laughter. According to Mason, the laughter began after
Beatty's question, because Martin was "shook up."
According to Varnador, the laughter did not begin until
Martin denied signing a card. I credit Varnador's account
of this, as his memory of these events appeared superior to
Mason's, and his testimony as to the timing of the laughter
was given on cross-examination devoted precisely to this
issue . I consider Beatty an unreliable witness on this point,
as he appeared to be glossing over as ajoke certain events
which were quite serious to the Company in its campaign
against the Union. Martin was evasive and incredible as a
witness.
2. The alleged threat to discontinue the employee
review and 'reclassification program
Beatty testified that the Company's policy, prior to April,
1972, was to guarantee every employee a wage review at
least every 6 months. If the employee merited an increase,
he would receive one. In addition, the Company conducted
a survey at least once a year to determine whether its wage
scales were comparable to others in the same community.
If warranted by such a survey, the Company granted an
across-the-board wage adjustment. The last general in-
crease was in March 1972, according to Beatty. Henry
23 Supra, fn. 21
z4 Martm was known by the mckname, "Slim "
TAMPER, INC. 919
Varnador, a witness for the General Counsel, was
questioned extensively on this subject by Respondent's
counsel, on cross-examination. According to Varnador,
there are two ways in which an employee can get a raise,
either by a "merit" increase, or a general wage adjustment
throughout the plant. Each job classification has its own
rate structure. If a particular employee is at the "top of the
rate" for his job classification, he cannot receive a further
"merit" raise, but can get an increase as a result of a
general wage readjustment.
Robert F. Bone testified that he attended three speeches
given by Beatty in the early summer of 1972, although he
was unable to specify the exact dates. At the conclusion of
one of these speeches, which Beatty read, Bone asked him
whether there was a new employee reclassification plan in
progress. Beatty replied that the Company was working on
one. However, he added, "we can't do anything right now
until this mess is over with but just as soon as it [is] over
with, [we] can issue the new classifications." Beatty's
testimony on this exchange is substantially the same as
Bone's-the Company did have a reclassification system,
but that there was no way he could reclassify Bone's job in
the absence of some reason for it, "especially when all of
this union mess was going on." Nonetheless, when Beatty
was asked by Respondent's counsel whether he told or
implied to employees "that wage increases, wage reviews,
and/or reclassification plans were being withheld because
of Union activities," Beatty denied it. On the contrary, he
testified that he told employees that the reviews would
continue. He affirmed, over the General Counsel's objec-
tion to testimony on Respondent's actual wage policy
during the union campaign, that there was no change in
policy, and that the Company conducted 170 wage reviews
from April through October 10, 1972. As a result of these
reviews, according to Beatty, 136 to 140 employees
received wage increases, some of them at the same time
that he was giving the speeches to employees.
In the absence of any evidence contradicting it, I credit
Beatty's testimony concerning the reviews actually con-
ducted, and the wage increases given. However, I cannot
credit his denial that he ever told or implied to employees
that there: would be a withholding of such reviews and/or
reclassifications because of union activities, since this is
contradicted by Beatty's own testimony concerning his
answer to the question from Bone. Accordingly, I credit
Bone's version of that conversation, as corroborated by
Beatty.
Marion Montgomery testified that, at the Beatty speech
on June 24, someone in the rear of the room said that his 6-
month review had been completed, but that he had not
received an increase. Montgomery could not identify the
employee, but stated his belief that the individual had
recently resigned from the Company for service in the
Navy, because of better pay. This was the only question of
this nature asked at the meeting, according to Montgomery.
Beatty's reply, according to Montgomery, was that the
employee who asked the question should have no doubt as
to why he did not get any more money, and that if the
employee did get more money, the Labor Board would
consider it bribe and would be "on [Beatty's ] back."
Beatty testified concerning this incident and the employ-
ee who asked the question, whom Beatty identified as
Rhett Seese. According to Beatty, Seese received a 6-
month review about a month before this particular speech
by Beatty, but had not received a raise. Seese came to
Beatty's office and asked the reason, and was told that he
did not merit an increase because of his work performance.
Later, at the speech in question, Seese `jumped up," said
that he had just had a 6-month review, had not received a
raise, and wanted to know when he would get one. Beatty
replied that Seese "should damn well know why [he ] didn't
get any money," and that Beatty could not give money to
people who did not deserve it, because the Union and the
National Labor Relations Board would consider it "a
bribe."
I credit Montgomery's and Beatty's substantially consist-
ent testimony as to the statements made at the meeting,
Beatty's testimony as to the identity of the employee
(Seese), and Beatty's prior discussion with Seese.
I also credit Montgomery's testimony that Seese's
question was the only one of similar nature asked at the
June 24 meeting. From this I infer that Beatty's exchange
with Bone-on a subject similar to the one raised by
Seese-did not take place at the June 24 employee meeting,
but, rather, occurred during one of the two speeches which
Beatty made prior to June 24. As indicated above, neither
Beatty nor Bone could fix the dates of any of the speeches,
but their approximate dates have been established by other
evidence as about the last of May, June 10, and June 24.
Bone expressed the opinion that the speeches took place
before early May, a view which is erroneous. However,
since the June 24 speech is excluded as the date of the
Bone-Beatty exchange (on Montgomery's testimony), a
finding that this exchange took place in the earliest of the
other two speeches, i.e., on about the last of May, is more
nearly consistent with Bone's testimony than an inference
that it occurred on June 10. Accordingly, I find'that the
above-described conversation between Bone and Beatty, as
established by their mutually corroborative testimony, took
place during the first of Beatty's speeches to employees, in
about the last of May.
E. Interrogation by Supervisor' Adkins
Jimmy Patterson, an expediter, testified that he had a
conversation with Adkins "a couple of days after the
National Labor Relations Board had issued their decision
on who was involved"; i.e., on or about June 19.25
Patterson testified that he had been under the impression
that he would not be able to vote in the forthcoming
election, because of his position as an expediter. However,
he read the notice of election which, according to him,
included him as an eligible voter.26 Adkins approached
Patterson about 9:30 p.m., asked him what he thought of
the Union, and how he was going to vote. Patterson replied
25 The Decision and Direction of Election in the representation Hopper, manager of industrial relations , stating that the Board had ruled
proceeding, to which Patterson's testimony obviously refers, issued on June that certain classes of employees , including expediters, were eligible to vote
16. I in the forthcoming election (Resp. Exh. 11).
26 Respondent posted a "Notice," dated June 19, signed by Don T.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he did not know, since he had been under the
impression that he would not be able to vote, and had not
given the matter much thought. Adkins responded that if
Patterson was smart, he would not vote for the Union. On
cross-examination, the witness characterized Adkins' man-
ner of speaking as a "shrewd type of voice," not friendly in
nature.
Patterson further testified that, about a week two before
Berry's discharge (July 5), i.e., in the latter part of June,
after Patterson had been having a conversation with Berry,
Adkins approached Patterson and told him that he should
not be talking to Berry, as the latter might influence
Patterson's decision about the Union.
Adkins testified that he had a conversation with
Patterson at the time the election notice was posted, and
that he asked the latter whether he was aware that he was
eligible to vote. Patterson replied in the negative, whereup-
on Adkins advised him to read the notice. Adkins denied
asking Patterson how he was going to vote, or telling him
that he would be smart if he voted against the Union. On
cross-examination, however, he conceded that it was he
who initiated the conversation, and that he was hoping to
get a vote for the Company.
As I deem Adkins to be an unreliable witness, while
Patterson appeared to be truthful, I credit Patterson's
version of this conversation.
F. The History of Shop Order 1730
1. The piston rods
Part number Y683402-0 1 is an "Outside Jack Cylinder
Piston Rod." According to Beatty, it is made of hard steel,
and is about 3 feet long and a little over 3 inches in
diameter. It is actually the inner part of a large jack used
on one of Respondent's products, a railroad track
maintenance machine. As the machine rolls along the track
from tie to tie, it grasps the track and jacks it up or moves
it to the side, whereupon the machine makes various
repairs to the track and the roadbed. The jack is exposed to
the elements, and customarily has been chrome plated for
protection. In accordance with this requirement, the
blueprint for the jack indicates that it is to receive a hard
chrome plating (Resp. Exh. 5(c)). The finish on the rods,
before chrome plating, is so highly polished that the
addition of the chrome is imperceptible to the naked eye.
The existence of the chrome plating can therefore be
detected only by measuring the rods with a micrometer in
order to determine the minute increase in diameter which
would indicate the chrome; alternatively, a chemical test
may be used. As indicated above (sec. III , A, 2), the
Company normally has chrome plating done by outside
firms.
There was testimony concerning the precise method
whereby Respondent customarily routes the piston rods for
chrome plating, i.e., whether they first go to main stores,
and are thereafter shipped out for plating, or, whether they
go outside directly for this process before reaching main
stores. The testimony is consistent that a computer card or
instruction on the envelope setting forth the proper
sequence is definitive.
In the absence of such instruction, the evidence is
inconclusive . Testifying with respect to chrome plating in
general, as distinguished from the piston rods here in
question, Beatty stated flatly that parts arrive at final
inspection , go from there to shipping , and are then sent
outside for the external operation. No parts are stored,
according to Beatty.
Derrick, however, testified that parts are sometimes sent
to Main Stores although work originally planned for them
remains to be done, and that they are later withdrawn for
subsequent work, because this is "cheaper." Patterson, the
other expediter, stated that parts are sent into main stores
in a semi-finished state . Although Derrick had no
knowledge that this had ever taken place with respect to
chrome plating, he conceded that it might have happened
without his knowledge. The only witness who worked in
main stores, material handler James L. Rutledge, stated
that, about a year and a half before the hearing, some
guide rods were withdrawn from main stores for outside
chrome plating. As is described hereinafter, when Berry
sought advice on this matter from Patterson and Rutledge,
neither was able to give him the correct information.
I conclude from the evidence that, in the absence of
explicit instructions in the form of a computer card, or on
the envelope, Respondent's policy, if any, was not
generally known to its employees.
Broad asserted that on "half a dozen" occasions, he
received requests from Berry to send out various other
parts for chrome plating. If the purport of this testimony is
that Berry had knowledge of the correct procedure on
piston rods, it is inadequate, since Broad did not state
whether on these alleged occasions, Berry made the request
pursuant to explicit instructions from the computer;
further, they did not concern piston rods. Berry testified
credibly that he had had no prior experience in the
procedure for chrome plating of the piston rods here in
question.
2. Changes in the computer's instructions
That Respondent 's policy on chrome plating of the
piston rods was ambiguous is indicated by the fact that,
although it had been manufacturing and chrome plating
this part since 1964, and a similar part before then
(according to Beatty), the external operation for the
chrome plating was first put on the computer in April,
1972. Beatty testified that this change made the chrome
plating process a "little clearer."
As heretofore described, the computer prints out the
sequence of manufacturing processes on the methods
master, including the dates of any changes. The methods
master for the piston rods is in evidence (Resp. Exh. 7),
and shows that about eight changes in method were made
in the spring of 1972. One of these changes reads:
"EXTNL SEND OUT FOR CHROME plating." Opposite
this entry is the numeral "72111," meaning that entry of
the operation sending the part out for chrome plating
(external) was made on the 111th day of 1972, i.e., April 21,
1972. This change was "issued to the" computer, according
to Beatty, on the first date in the right-hand column of the
methods master , "72116"; i.e., April 26, 1972. As Beatty
admitted, this change means that there was no individual
TAMPER, INC.
computer card showing the external operation on orders
processed prior to April 26, 1972.
3. Shop order 1730
a. The beginning of the order
Shop order 1730 calls for 52 of the piston rods in
question. Although the order had been "issued to the shop
in May," according to Beatty, he conceded on cross-
examination that it had been printed "a long time prior to
that." Accordingly, as Beatty agreed, the production
accounting report for shop order 1730 (G.C. Exh. 10) does
not indicate any external operation for chrome plating,
despite the fact that this is the document used by
expediters to route each part through the necessary
manufacturing processes; nor was there any individual
computer card showing this operation.
Despite the absence, prior to April 26, of any indication
of an external operation for chrome plating in the form of
a computer card, or on the production accounting report,
Beatty contended that this operation had "always" been
shown on the "envelopes," and that it was also on the
envelope for shop order 1730. However, on cross-examina-
tion concerning the dates of these documents, Beatty gave
the following answer: "That order (i.e., shop order 1730)
was issued to the shop in May and the order was printed to
that a long time prior to that and so that envelope existed
before that revision was made" (emphasis supplied). _
b. The order arrives at final inspection
Shop order 1730 went on its way through the plant, and
arrived at final inspection on June 29. When Berry arrived
for the second shift on that day, the piston rods were
already on the floor in final inspection. Sammy Broad, the
final inspector on the first shift, was still there. Berry noted
that the rods were heavy and wrapped in cardboard. He
asked Broad whether all of them had to be checked, and
Broad answered that spotchecking was sufficient. Broad
corroborated this testimony. Later on during the shift,
according to Berry, he slid several of the rods out of their
cardboard covers, and checked them with a micrometer.
He found that they were ground to precision. However,
upon examining the blueprint, he knew that they had to be
chrome plated. Accordingly, he examined "the envelope"
very carefully, with a magnifying glass, to see whether
there was an operation for chrome plating, but could find
none. The next step on the envelope was "AS-1," i.e.,
"AS-OI," or main stores. Berry also examined the contents
of the envelope for a computer card directing an external
operation for chrome plating, but it was absent.
27 On March 20, Patterson signed a "Secrecy and Invention Agreement"
with the Company, wherein he agreed inter alia not to make any copies of
the Company's documents pertaining to its operations, products , machiner-
y, processes, etc., except in connection with his official duties for the
Company (G.C. Exh. 12(a)). Patterson testified that, after he made a copy of
the production accounting report and gave it to Bone, he received in the
mail from the Company a copy of the secrecy agreement which he had
previously signed . The envelope in which the copy was sent is postmarked
July 17, and has the Company's return address (G.C. Exh. 12(b)).
Thereafter, the Company introduced into evidence various secrecy
c. Berry's attempts to ascertain the next operation
921
At that point, as Berry put it, he was confused as to the
next procedure. He knew that chrome plating was required,
but did not know whether the rods were to be sent out for
this process first, or, rather, routed to main stores first (as
indicated on the envelope), and then sent out for chrome
plating. He consulted the expediter then on duty, Jimmy
Patterson. According to Berry, he brought the envelope
and blueprint to Patterson, commented that there was no
computer card directing an external operation for chrome
plating, and asked Patterson if he had it. Patterson did not
have the card, whereupon Berry said that he did not know
the exact procedure for chrome plating. Patterson "pulled
his files," and said, "It says here they go to AS-1."
Patterson's testimony corroborates Berry. The latter came
to Patterson with the question outlined above. Patterson
"pulled the card on the rods" (i.e., the production
accounting report), showed it to Berry, and told him that
the next operation after inspection was AS-01 (main
stores). The day shift expediter, Derrick, also testified that
this was the meaning of the production accounting report
for this order.
General Counsel's Exhibit 10, the production accounting
report, has a handwritten note appearing on it: "51 pcs out
to be chrome plated 7-6-72 due back 7-13-72." This note
was written by Derrick, on receipt of written instructions
on a pink slip from Sammy Broad (Resp..Exh. 6). Patterson
testified that he recognized Derrick's handwriting, and the
latter agreed that he had written the note. However,
Patterson testified that this handwritten instruction was
not on the production accounting report when he had the
conversation with Berry on June 29. A day or two after
Berry's discharge (July 5), i.e., on July 6 or 7, Robert F.
Bone came to Patterson and suggested that the latter make
a photostatic copy of the production accounting report.
Patterson did so, and gave the copy to Bone.27 It is this
copy, with the handwritten note by Derrick, which is in
evidence as General Counsel's Exhibit 10.
The General Counsel issued a subpena duces tecum to
Respondent prior to the hearing, calling for production of
certain documents, and at the hearing moved to have the
original of the production accounting report produced.
Patterson, however, testified that the original copies are
normally destroyed in the course of business, and the
original was not produced.
Patterson further testified that, a few days after Berry's
discharge, he noticed another shop order for the same part,
i.e., Y683402-01, and observed that the production
accounting report for this order did indicate an external
operation for chrome plating. Patterson stated that he was
not a union adherent. He was employed by Respondent at
agreements signed by other employees, all executed on March 20 (Resp.
Exk's 10(a) through 10(d)). Beatty testified that he did not know the exact
tune that an employee would normally receive a copy of such a signed
agreement, although it was "the general procedure" that they were
furnished immediately after having been signed . Usually this copy is given
to the employee. Beatty said that he did not know why Patterson's copy was
mailed, except for the possible reason that Patterson was on the second
shift. In response to union counsel's question as to whether it was "odd"
that a copy of an agreement executed in March was not mailed until July,
Beatty said that he did not know.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time of the hearing, and appeared candid and honest. I
credit his testimony.
After his conversation with Patterson on the evening of
June 29, Berry discussed the problem with Rutledge. As
previously noted, Rutledge was a material handler in main
stores. Rutledge replied, according to Berry, that he did not
know the proper procedure, i.e., whether the piston rods
were shipped outside immediately for chrome plating, or
were first sent to main stores and then withdrawn for this
purpose. Berry thereupon told Rutledge that he was going
to fill out the inspection card, and "sit [the rods] right at
the end of the inspection table, not in the area where we
immediately take [to] stores but right next to the inspection
table." Berry asked Rutledge to leave the rods where Berry
intended to place them, so that the "first shift [could] take
care of it." Rutledge agreed to this procedure, according to
Berry. Rutledge testified, and corroborated this portion of
Berry's testimony.28 Accordingly, I credit their mu-
tually consistent testimony. In light of the procedural
dispute concerning Rutledge's testimony, noted below (fn.
28), it is appropriate to record the fact that Berry's
testimony concerning his conversation with Rutledge was
uncontradicted, and is credible without corroboration.
Berry made no further attempts to obtain advice on
disposition of the order. Weld Shop Foreman Joe Brown,
Supervisor Adkins, and Floor Inspector Ernest Brown-
-who had had prior experience as a final inspector-were
then on duty on the second shift. Berry testified that the
reason he did not ask Joe Brown was that he had already
asked "the fellow that handled all of the paper" (Patter-
son), and that he believed that Joe Brown did not have
knowledge of "how this thing was handled," although he
conceded that he was not sure of Joe Brown's knowledge
of such matters.
The issue of the availability of the correct routing
information to persons working on the second shift was the
subject of testimony. According to Beatty, the corrected
methods master, showing the external operation, was in the
"methods area," and was available to foremen. Patterson
said he had no knowledge of this, but Derrick, the other
expediter, testified that the "front office" was open during
the second shift for the purpose of obtaining information.
se After the General Counsel concluded direct examination of Rutledge
in the first hearing, union counsel attempted to elicit testimony concerning a
conversation with Respondent 's attorney shortly before the October 10
election . This pertains to what later became the General Counsel's
amendment to the complaint , and Petitioner's Objection 1. After prelimi-
nary testimony-which did not reach the identity of the attorney or the
substance of the conversation-Respondent objected . Union counsel then
withdrew this line of questioning.
On cross-examination , Respondent's counsel requested copies of "any
statement" the witness had given the General Counsel . The General Counsel
supplied several that were relevant, but withheld one taken the evening
before the hearing . This pertained to Rutledge's conversation with
Respondent 's attorney, as to which only preliminary testimony had been
given. As Respondent demanded this statement in addition to those already
given to him, the General Counsel requested that I make an in camera
inspection of the last affidavit, pursuant to Sec. 102.118(b)(2 ) of the Board's
Rules and Regulations . Respondent's counsel objected to the in camera
inspection procedure . Union counsel moved to strike all of Rutledge's
testimony covered in the disputed statement . Respondent, strangely,
opposed this motion. Thereafter , I examined the affidavit , and, by
agreement of all parties (with Respondent reserving its objection to the
overall procedure), complied with the "excision" requirement of the rules by
reading into the record that portion of Rutledge 's last affidavit pertaining to
However, there were no clerical employees on duty during
that shift, and the foreman would have to know where to
look. I conclude that the corrected methods master,
showing the external operation, was "available" in the
"front office" during the evening of June 29, to persons
who knew where to find it. Whether or not foreman Joe
Brown had this knowledge is unknown on the basis of the
record. The expediter on duty, Patterson, did not know of
this.
d. The envelope
At the hearing, the General Counsel represented that his
subpena duces tecum required Respondent to produce all
"production work and work progress records including
envelopes, expediter cards, master cards, blueprints, and
daily tickets on Part Y68340-01 " In response, Respondent
produced various documents, including an envelope
marked as General Counsel's Exhibit 6. This is a white,
clean envelope, approximately 12 inches by 9 inches, with
the part number "Y683402-01" indicated thereon. Howev-
er, the indicated shop number is "8520." Various manufac-
turing processes are listed on the face of the envelope, the
third from last being "EXTNL SEND OUT FOR
CHROME PLATING." On direct examination, Berry
testified that this envelope was similar to the one he
examined on the evening of June 29, but was not the same
envelope. On cross-examination, Respondent's counsel
showed Berry another envelope, soiled and covered with
grease, and asked him whether this was the envelope he
examined on June 29. At this point the General Counsel
strenuously objected that Respondent had not complied
with the subpena, and was attempting to cross-examine the
witness concerning a document which should have been
produced pursuant to the subpena, and which was crucial
to the General Counsel's position that there were no
written instructions to send the rods out for chrome
plating. Respondent's counsel stated that both the clean
envelope and the soiled one were "duplicates." The dispute
was resolved by the agreement of all parties that the
General Counsel would take Berry back on direct
his preliminary testimony, and by omitting those portions which did not
relate to any testimony.
Although thus in possession of all of Rutledge 's prior affidavits, and that
portion of the last statement which related to his testimony, Respondent
refused to cross-examine Rutledge , on the ground that the indicated
procedure prevented him from engaging in effective cross-examination. At
the hearing and in his first brief , Respondent's counsel argued that the
stated procedure permits the "determiner of credibility" to read a statement
of the witness without affording the same opportunity to counsel, and that
this is inherently prejudicial to Respondent.
At the reopened hearing , Rutledge was again called as a witness for the
General Counsel (as set forth hereinafter), and at that time testified to the
entirety of his interview with Respondent 's attorney . Respondent's counsel
was then supplied with the last affidavit (which had been sealed pursuant to
the Board 's Rules), and counsel cross-examined Rutledge concerning his
interview with the attorney. Over the General Counsel 's opposition, I then
gave Respondent's counsel a second opportunity to cross-examine Rutledge
concerning his testimony at the original hearing . Counsel noted that he no
longer had Rutledge 's earlier affidavits, and, although he had been supplied
with same at the first hearing, could not recall their contents. I directed the
General Counsel to submit the earlier affidavits , but they were not in his
possession at the second hearing . Respondent's counsel again refused to
cross-examine Rutledge regarding his testimony at the first hearing.
TAMPER, INC.
examination concerning the soiled envelope (then marked
as G.C. Exh. 11).
On direct examination concerning this envelope, Berry
said that he was unable to tell whether it was the same one
he saw on June 29, although he agreed on recross-
examination that the words "out for chrome plating" are
faintly discernible underneath the grease.
During Respondent's presentation of its defense , Super-
visor Dowd testified that the soiled envelope (then G.C.
Exh. 11) was the same envelope which accompanied the
order of piston rods concerning which Berry was dis-
charged. He testified that he had followed the flow of
manufacture of the rods throughout the shop, and had
handled the envelope personally during this process. There
was no special reason that he followed this particular
order, Dowd stated-it was his practice to "wander
through the shop and see what [was] going on." He
recognized some of the grease marks as peculiar to the
grinding operation. Further, said Dowd, it was the only
order of piston rods of this type going through the plant at
that time, although he conceded that orders for the same
part go through the shop every 6 to 8 weeks. He agreed that
the face of the envelope does not show a part number, but
contended that it was the piston rod envelope in question
because of the grinding and chrome plating operations,
discernible underneath the grease, according to Dowd,
which were peculiar to manufacture of such rods. Further,
according to Beatty, the envelope and the production
accounting report (G.C. Exh. 10) have certain markings
which show that they refer to the same shop order. Thus,
both have the date stamp, "May 2, 1972." Beatty identified
certain numbers and dates appearing on the face of the
envelope as the clock numbers of employees and the dates
they performed various operations on the piston rods; the
same dates for the same operations, according to Beatty,
are indicated on the production accounting report. Dowd
said that operators "sometimes" make these markings "for
their own benefit." The envelope was received in evidence,
over the General Counsel's objection, renumbered as
Respondent's Exhibit 5(a).
Dowd testified that such envelopes are normally de-
stroyed in the course of business, but that he kept the
envelope in question because of Berry's discharge . Howev-
er, he conceded that he did not show it to Berry during the
latter's discharge interview . Dowd further stated that
General Counsel's Exhibit 6 is a "clean version" of
Respondent's Exhibit 5(a), and that they are of the "same
type."
I do not credit this testimony. There was another, order
for the same piston rods going through the plant at about
the same time, as Patterson testified , and Dowd's state-
ment to the contrary is false. General Counsel's Exhibit 6 is
not simply a "clean version" of Respondent's Exhibit 5(a).
The former, for example , states as one operation , "SPRAY
WITH rust preventive solution," the word "PREVEN-
TIVE" appearing under the word "CHAMFER" in the
line above. In Respondent's Exhibit 5(a), the word beneath
"CHAMFER" is "PROTECTIVE," rather than "PRE-
VENTIVE."
Of greater significance is the fact that there is no shop
order number or part number on Respondent's Exhibit
923
5(a). That both such numbers normally appear on the
envelope is evidenced by the "clean" envelope, which
involves another shop order for the same part (GC. Exh.
6). The absence of both such numbers on the envelope here
in dispute suggests some irregularity concerning it.
The only documentary connecting links between shop
order 1730 and the envelope which , Respondent insists,
instructed Berry to send the rods out for chrome plating,
are the same date-stamp "May 2, 1972," appearing on both
the production accounting report for that shop order (G.C.
Exh. 10) and the disputed envelope (Resp. Exh. 5(a), the
date stamp appearing in a different color and size from
that on the production accounting report); and the
employee clock numbers and dates of operations allegedly
corresponding with dates on the production accounting
report.
If the date-stamp and coded numbers appearing on the
face of the envelope are bona fide , and if the envelope does
relate to the same part, then Respondent's argument that
they relate to the same shop order has some plausibility.
But there is no documentary evidence that the envelope
does concern these piston rods, only Dowd's dubious
testimony.
There is no testimonial evidence authenticating the
visible markings on the envelope, or the dates they were
placed there, from the person or persons who actually
made them. The date-stamp, "May 2, 1972," appears
clearly in large, red letters and digits, in ink. Of the three
"employee clock number, and date" markings, two are in
pencil ("5/8-12/72 LEP 52" and "6/6/72-250-12"), and
one is in ink ("6-46-72-024-4D"). The handwritten dates on
the production accounting report, which "blend in" with
the envelope, according to Respondent , are: "5-12-72",
"5-25-72", "5-31-72", "6-6-72," "6-21-72," "600-72,"
and "6-29-72" (G.C. Exh. 10). As these dates represent the
completion times of various manufacturing processes, it is
clear that the marking in pencil on the envelope , "5/8/72,"
if placed there on that date , was written prior to any of the
manufacturing processes , while at least three manufactur-
ing processes remained to be performed at the time the
pencil note, "6/6/72-250-12" was written on the envelope,
if in fact it was written on June 6.
The original sequence of manufacturing processes was
stamped on the envelope with some type of printing or
duplication ink (see, e.g., _G.C. Exh. 6). Almost all of this
original printing has disappeared on Respondent 's Exhibit
5(a), obliterated by the manufacturing processes , according
to Respondent, with the few faint exceptions noted above,
including "out for-chrome plating". And yet, clearly visible
are the inked date-stamp, and the three other markings,
one in pencil purportedly affixed 'prior to any of the
manufacturing processes . These markings-upon, which
Respondent relies to show' that this envelope told Berry to
send the piston rods out for chrome plating--somehow
managed to sail through the sea of grime unblemished.
This is completely incredible . It is impossible that these
markings, including the perishable notations in pencil,
could have survived a, process which almost eradicated the
"printout" made with printing ink. Either the date-stamp
and the markings were placed on Respondent's Exhibit
5(a) some time after completion of the manufacturing
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
processes, or the envelope has never really been through
any manufacturing processes. In either event, the docu-
ment is spurious, and I so find.
As noted, Dowd testified that he followed this particular
order through the plant, prior to its arrival at final
inspection. He was not the only supervisor exhibiting an
unusual interest in this part at that time. As described
above, when a copy of the methods master is run off the
computer, the date that the copy is made appears at the top
of the copy in conventional symbols. The copy of the
methods master for the piston rods, supplied by Respon-
dent, has the following symbol on the top line: "DATE
06/28/72" (Resp. Exh. 7). On cross-examination by union
counsel, Beatty was explaining the numerous times he had
supplied documents to Board investigators, including
copies of the methods master. When asked whether a
Board investigator was out at the plant on June 28, before
the filing of the unfair labor practice charge (July 10),
Beatty affirmed that the investigator did not arrive until
after the charge had been filed, and stated that he gave the
investigator a copy which had been run off previously, on
June 28. Asked why he ran the copy at that particular time,
Beatty replied: "We needed it. We knew that we were
going to be here," i.e., at an unfair labor practice hearing.
Beatty also agreed to the established fact that the final
"mistake" which led to Berry's discharge took place on
June 29. The obvious conclusion is that, prior to Berry's
final "mistake" which Respondent advances as the reason
for his discharge, Beatty already knew that the Company
was going to be charged with commission of an unfair
labor practice, in some way involving these piston rods. It
would appear that Beatty was gifted with foreknowledge,
and knew on June 28 that Berry was going to commit his
fatal error the following day.
These additional considerations warrant a finding that
Respondent's documentary "proof" of Berry's final "mis-
take" has little or no probative value. As I have already
concluded that Dowd was not a truthful witness, I find the
evidence insufficient to establish that Respondent's Exhibit
5(a) is the same envelope which Berry saw on June 29, in
connection with shop order 1730. The actual envelope is
not in evidence. Accordingly, Berry's testimony, that there
was nothing on the envelope which he saw indicating an
external operation, and that the next step was "Main
Stores," is credited. The fact that there was no individual
computer card in the envelope directing an external
operation is undisputed. Nor was there any such indication
on the production accounting report consulted by expedi-
ter Patterson; that document states that "Main Stores" was
the next destination of the rods (G.C. Exh. 10). The only
place that the accurate information was available, on the
evening of June 29, was the corrected methods master, on
file in the "methods area" of the "front office," where no
clerical employees or "methods people" were working on
the second shift.
Supervisor Dowd testified that Berry was "familiar with
our operation of closing out orders and sending rods .. .
out for chrome plating." Dowd testified that Berry had
done "threading operations" on the same part previously.
Dowd's testimony concerning Berry's alleged knowledge of
the procedure used for chrome plating is incredible, in light
of Berry's almost complete lack of experience as a final
inspector, and the fact that orders for this part normally
went through the plant only about every 6 to 8 weeks.
Berry testified that he knew the piston rods were to be
chrome plated, but had no experience in the process by
which this was accomplished. I credit his testimony.
e. Final disposition of the order
Berry filled out and initialed the final inspection ticket
for order 1730, showing 52 pieces as "good," no pieces to
be scrapped, and 52 pieces "to be transferred to Stores"
(Resp. Exh. 5(b)). He testified that he placed the piston
rods "right up against" an inspection table. In an attempt
to pinpoint the exact location, Respondent's counsel, on
cross-examination of Berry, presented him with one of
Respondent's photographs of the inspection area (Resp.
Exh. 8(c)), and asked him to point to the exact table. The
witness did so, and Respondent's counsel requested that
"the record reflect that the witness pointed to the table in
the lower left comer of this picture and the first one-fourth
of the picture." The table so indicated in this exhibit is
placed so that one of its narrow sides points toward the
vending machines near the so-called stores pickup area.
There are other inspection tables closer to that area.
Respondent's counsel also asked Berry to fix the location
on the diagram (Jt. Exh. 1) with a numeral. The witness did
so, placing the numeral next to a small block designating
an inspection table 29 Although the location as fixed on the
diagram seems somewhat closer to the stores pickup area
than the location designated on the photograph (because of
a table in the photograph not indicated on the diagram),
both locations are outside the stores pickup area as shown
on the diagram , and according to Berry's understanding of
it.30 Berry testified that the location where he placed the
piston rods was 20 to 25 feet from the "canteen," or
vending machines . He placed the final inspection ticket on
top of the piston rods.
Sammy Broad testified that, when he came to work for
the first shift the following morning, the rods were 10 to 15
feet from the inspection table, and were within the confines
of the dotted line which, according to Broad, surrounded
the stores pickup area. The inspection ticket was on top of
the rods, and the "rest of the paper work" was on the
inspection table.
Dowd testified that his first order of business in the
morning is to check the "rack" to see which orders have
been closed out or completed the night before. He saw the
empty envelope for the piston rods, and went looking to
see what had happened to them. He was asked by
Respondent's counsel where he found them, and his first
answer was : "In the inspection area; well, stores area."
Asked to specify the location "exactly," Dowd said that the
rods "were in an area designated for stores where these
parts are routed for issue to assembly line or sales orders
.." On cross-examination, Dowd said that this area
was a "part of Main Stores," and that the rods were about
29 On the diagram (Jt. Exh. 1), Berry's stated location of where the rods 30 Berry's understanding of the stores pickup area is indicated by the
were placed is indicated by the numeral "8" in red . numeral "5" in red on the diagram.
TAMPER, INC.
10 feet from the inspection table. Dowd testified that this
took place on June 29.
In an assessment of this testimony, the first undoubted
fact is that Berry's disposition of shop order 1730 took
place on June 29. This is established by his testimony, the
date on the inspection ticket (Resp. Exh. 5(b)), and
corroboration by Broad. The second shift on June 29
ended at midnight, and Berry's testimony is the only
evidence of record as to the location of the piston rods at
that time. I do not credit Broad's testimony, in substance
that, 7 hours later, at the beginning of the first shift on
June 30, the rods were located 10 to 15 feet from the
inspection table,. and were within the dotted line surround-
ing the stores pickup area. There was no such dotted line
surrounding the stores pickup area, and Broad was an
unreliable witness.
Dowd was in error in fixing the date of his discovery of
Berry's "mistake" as June 29, since whatever it was that he
discovered, it did not take place until the following
morning, June 30. Further, Dowd's testimony that the
piston rods were in the "stores area," or an area which was
"a part of the Main Stores," is misleading. It is clear from
the plant layout (Jt. Exh. 1) that main stores is located on
the other side of the block building from the stores pickup
area, and is surrounded by a fence. It was only after
persistent questioning that Dowd testified that the piston
rods were about 10 feet from a table in the inspection area.
I credit Berry's uncontradicted testimony as to the
location of the piston rods at midnight. Although Broad's
and Dowd's testimony that, 7 hours later, the rods were 10
to 15 feet away, is also uncontradicted, crediting this
testimony would logically require either a belief in
levitation, or a finding that somebody other than Berry
moved the rods during the night. As there is no record
evidence in support of such belief or finding, I conclude
that, on the morning of June 30, the rods were where Berry
had left them the,night before, to wit, leaning against a
table in the inspection area.
I credit the testimony of all three witnesses that Berry left
the completed inspection ticket with the piston rods. He
did not leave any note requesting Dowd or Broad to check
the piston rods, although he had in the past left such notes
on items about which there was some question.
Broad testified that Dowd asked him to check the rods.
Broad did so with a micrometer, and found that they had
not been chrome plated. Dowd testified that, on one rod,
he wrote "hold on these rods," and that he told "the stores
man on the first shift to hold them." Rutledge, however,
testified that he next saw the rods "sitting in an aisle where
usually we bring our stuff from inspection," that there was
"no paper work on them," and that Rutledge wrote on the
rods: "No paper work. Tell the leadman on the day shift."
It was for this reason, Rutledge testified, that he did not
put the rods "on the shelf."
The date that Rutledge saw the rods again is unclear. He
first testified to his conversation with Berry on June 29,
and was then asked whether he saw the piston rods "again
31 The summary reads:
On June 30, 1972, a serious error was found to have been committed
by this employee on the night of June 29, 1972, in his final inspection
work. I saw Berry's paper work from June 29 laying on the work bench
925
... after June 29th." "It was on Wednesday night,"
Rutledge answered . "Wednesday, June 29th?" he was
asked, and the answer was in the affirmative. The leading
question to the witness was erroneous for two reasons: (1)
the last Wednesday in June 1972, fell on the 28th day of
the month, not the 29th, and (2) the witness was obviously
testifying about the time he again saw the rods, after his
conversation with Berry, on Thursday, June 29. According
to the context of his testimony, Rutledge could only have
been referring to the Wednesday following his conversation
with Berry; i.e., July 5, and I so find. This was the day that
Berry was fired. Although Broad sent a pink slip
instruction to expediter Derrick to send the rods out for
chrome plating (Resp. Exh. 6), this instruction is dated July
6. It therefore appears that, whatever corrective action
Dowd allegedly took, it was not apparent to Rutledge, and
that it was the latter's action, not that of the "Stores man
on the first shift," which kept the rods from being shelved
in Main Stores. The plant was closed on Monday, July 3,
as well as the following holiday, July 4, but opened on July
5. Since Broad and Dowd "discovered" Berry's "mistake"
on the morning of June 30, and Rutledge did not come on
duty until the second shift on July 5, it appears that neither
Dowd, Broad, nor Beatty (who personally investigated the
matter, see infra, subsection G) took any effective action to
correct Berry's "mistake" for two full working days, June
30 and July 5, and did so only after Rutledge had placed a
warning notice on the rods. It was Rutledge, of course,
with whom Berry discussed these rods in the first place.
As noted, Broad sent the pink slip instruction for chrome
plating to Derrick on July 6 (Resp. Exh. 6). Derrick made
the handwritten entry on the production accounting report
showing that the rods were sent out for chrome plating.
Thereafter, Bone asked Patterson, the expediter on the
night shift, for a copy of that report. Patterson complied,
and it is this copy which is in evidence as General
Counsel's Exhibit 10.
Beatty testified that the piston rods would have worked
temporarily if they had been shipped out without the
chrome plating, but would have rusted soon after their
release from the plant, the time for same depending on the
method of packing and shipment.
G. Berry's, Discharge
On June 26, prior to final disposition of shop order 1730,
Dowd made a written performance appraisal of Berry,
stating that "due to lack of interest and limited capabili-
ties", he was no longer an asset to Dowd's department.
Dowd recorded his opinion that "a production type job
with constant supervision [was] the answer to [Berry's]
problem" (Un. Exh. 2). Although appraisals of employees
were customarily shown to them, Berry testified credibly
that he was not shown a copy of this appraisal.
The Company's position changed after June 29. Dowd
testified that he made a summary of the events concerning
the piston rods.31 Beatty stated that he was informed of
Berry's disposition of the piston rods, checked into the
in final inspection . I noticed that the order of piston rods had been sent
to stores as completed items and knew that this was impossible because
I knew the stage of production they were in. I told Sammy Broad to
check these out. He did and found that they were not chrome plated.
(Continued)
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reports, and found them to be correct. The envelope was in
the final inspection area with the blueprint, and the
completed inspection ticket was on the rods. Beatty
testified that the decision to discharge Berry was made
without further investigation, or an opportunity for Berry
to explain, because of Beatty's professed belief that Berry's
action was deliberate. According to Beatty, Berry had
made "too many mistakes" in the past few months to allow
for negligence as the explanation. Beatty said that he was
not certain that Berry intended to be detected, or wanted
to get the Company to discharge him. Rather, according to
the manufacturing manager, Berry "basically . . . did it
just to stir up the plant in general on account of the Union
drive . . . [T]he last `little touch' was to actually try to get
the Union to postpone the election." The originally
scheduled date for the election was July 12, and it was not
rescheduled until July 11.
June 29 fell on a Thursday, as already indicated. Berry
worked the next day, Friday, and reported back for work
on July 5, after the "long weekend." As he looked for his
time card, Dowd, standing nearby, said that it was not
there, and told Berry to go to the office of John Donald
Hopper, Respondent's manager of industrial relations.32
Berry did so, followed by Dowd and Beatty.
Hopper gave Dowd a piece of paper and asked him to
read it to Berry. Dowd did so, and summarized the
Company's position on Berry's "mistakes," ending with the
piston rod order. Hopper then handed Berry his final pay
check and vacation check. According to Berry, Beatty
asked, "Pete, why did you do it?" Berry told of his
conversations with Patterson and Rutledge, their inability
to determine the next procedure, and concluded that "We
followed methods, and . . . sent them to stores." Beatty
asked whether Berry knew that the rods had to be chrome
plated. Berry answered in the affirmative, but said that he
did not know the exact procedure. Beatty responded that
Berry had "closed out the order" and that he had been
"sufficiently warned." Berry asked Beatty whether he was
sure that this was what he wanted to do, and Beatty
replied, "You damn right."
Dowd confirmed that Berry said that he had consulted
with an expediter before taking action on the order. As
noted above, Dowd insisted that he had told his inspectors
not to rely on information from expediters. Nonetheless,
after Berry stated his reason for the action taken on the
piston rods, Dowd, according to his own testimony, did not
remind Berry of Dowd's alleged prior admonitions against
reliance on such information. This thought occurred to
him, Dowd testified, but he did not voice it. Nor was the
envelope, which Respondent now contends gave Berry the
chrome plating instructions, shown to him on July 5.
Beatty testified that it would have made no difference what
The chrome plating step is clearly called for on the blueprint . This is a
serious error because it would have cost the company a great deal of
money in parts, time , and labor.
A total of 52 piston rods were routed to stores as completed items. If
these rods had been issued out for Assembly or shipped out on Sales
Orders ALL of the Assemblies in which they were placed would have
had to be removed from the machine, dismounted and replaced in a
very short period of time because of rust and excessive wear . This is a
very costly operation which would result in loss of pistons , 0' Rings
and possibly the outside cylinder and piston rod. Each machine is
equipped with two of these units.
Berry said, as the Company had already decided to fire
him because of his "intentional " actions. However , Beatty
did not tell Berry of his opinion that the latter's actions
were "on purpose." Patterson testified without contradic-
tion that no company supervisor consulted him regarding
Berry's discharge. On rebuttal, Berry denied that he ever
deliberately made any mistakes.
In his memorandum of law, Respondent's counsel
alleges certain actions to. have been taken by the Union in
the related representation proceeding (Case 1l-RC-3539),
and other unfair labor practice charges to have been filed
against Respondent, all engaged in as "legal maneuvers
intended to manipulate the date of the scheduled election."
In his brief , Respondent's counsel advances the argument
by contending that Berry's "artificial way" of handling the
piston rod order shows that it was really "an intentional act
on Berry's part to further the union's attempt to `block' the
scheduled July 12 election."
This argument is fantastic. If the Union did in fact desire
to postpone the election, this may well have been because
Respondent's unfair labor practices had made a fair
election impossible. In any event, the filing of an unfair
labor practice charge limited to Respondent's violations of
Section 8(a)(1) would have been sufficient to block the
election-asking Berry to get himself fired so the Union
could add an 8(aX3) allegation would have been unneces-
sary to accomplish the Union's alleged purpose. Respon-
dent's premise that the Union asked one of its proponents
in the plant to eliminate himself from the campaign for no
reason whatever, is unsupported by any evidence and is
ridiculous. Berry was an active union adherent and was
doing what he could to obtain a union victory in the
election. There is no evidence that either he or the Union
anticipated a loss, and, accordingly, any deliberate action
by him which risked discharge could only have removed a
vocal union protagonist from the campaign, thus operating
against, instead of for, the union cause. If Berry deliberate-
ly intended a mistake, it is incredible that he would first
have asked two other employees about the correct
procedure to follow. Therefore, because the motivation
imputed to Berry by Respondent is absurd on its face, and
because Berry was a truthful witness, I credit his denial
that he made any mistakes deliberately. Whether Beatty,
himself, actually believed the accusation made against
Berry at the hearing, is considered infra.
H. Beatty 's Fourth Speech, October 3
As noted above, Petitioner's Objection 8 alleges that the
Employer told employees that, if the Union won the
election , existing wages and benefits would be taken away,
I reviewed this employee 's file which contained a final warning
dated June 6, 1972, for other errors made in inspecting parts. There was
also a previous warning on May 9 , 1972, where the employee left work
without permission. In addition to the written warnings , the employee
had been verbally warned several times for making errors . These errors
have been so numerous and obvious that they have to be the result of
gross negligence or intentional acts. This cannot be tolerated. The
employee was terminated. [Resp. Exh. 4.1
32 The complaint was amended at the hearing so as to indicate Hopper's
name accurately. The pleadings , including the answer as amended at the
hearing, show that Hopper was an agent of Respondent and a supervisor.
TAMPER, INC.
and the Union would have to bargain from scratch. There
is no complaint allegation to this effect.
Beatty testified at, the resumed hearing, and stated that
he did make a speech to employees on October 3, 1972, 1
week before the election. In fact, he made a number of
speeches on that date to different groups of employees.
According to Beatty, he read from a prepared text on each
occasion without varying from it, used posters, and
permitted questions and answers only on a subject
unconnected with the organizational campaign (a T.V.
raffle).
Respondent submitted a purported copy of the written
speech, and Beatty identified the poster. The printed
speech is entitled "Outline for Roundtable #4," and
discusses various subjects such as alleged criminal records
of union officers, the salaries of union officials, etc. One
portion reads as follows:
In return for your dues, the Teamsters say that they will
"bargain" for you. They would like for you to think that
"bargaining" means that they would get the Company to
agree to their big campaign promises. You and I know
that that just isn't what the law says about bargaining
though. (Review Poster: Regardless of What the Union
says) (Resp. Exh. 13, p. 3)
Beatty said that the poster was about 2-1/2 by 2 feet in
size, and was an enlarged copy of a sign which had been on
a bulletin board for some time. The text reads as follows:
REGARDLESS OF WHAT THE UNION SAYS-THIS IS THE
LAw.... "There Is, Of Course, No Obligation On The
Part Of An Employer To Contract To Continue All
Existing Benefits, Nor Is It An Unfair Labor Practice
To Offer Reduced Benefits . . ." [Midwestern Instru-
ments, Inc., 133 NLRB 11321 [G.C. Exh. 15(d), App.
H.]
Beatty denied that he made any reference to "bargaining
from scratch."
A considerable portion of the written speech is devoted
to the subject of strikes, including the sentence, "The strike
is the Union's only weapon to try to make the Company
agree to its demands." The speech also lists the conse-
quences of an employee's being involved in an "economic
strike"-the loss of pay, inability to collect unemployment
compensation, and, the possibility of permanent replace-
ment. "Tamper will exercise its lawful right to continue
operating its business," the speech reads, "even if it means
hiring permanent replacements during a strike-if it's
necessary to serve our customers. That's a hard line
approach-but you can rely on it."
At the hearing, Beatty testified that he made no
distinction between an "economic strike" and any other
kind of strike.
Henry Varnador testified on direct examination to a
speech by Beatty "about a week or so" before the election.
Beatty had at least one poster. Varnador quoted, from
memory, his recollection of the beginning words of the
poster: "No matter what the Union says, this is the law."
The poster had been on the bulletin board. Although
Varnador did not recall the exact wording of the rest of the
poster, it concerned "Negotiations ... and starting from
scratch." Beatty said that the Union would have to "start
all over like we had nothing, and start from there with
927
negotiations." Examples given by Beatty, according to
Varnador, were that Respondent might give a 10-cent raise
and take away a holiday.
On cross-examination, Varnador testified that Beatty did
in fact refer to bargaining from scratch, and that this was
the first time Beatty had made this statement. He said that
"everything was negotiable" in bargaining, but did not
explicitly say that Respondent would take away all
benefits. Beatty also talked about the effect of strikes on
employees, although Varnador was not sure that this was
said during the last speech. The witness said he did not
know what an "economic strike" was, and that Beatty said
that the finance companies, in event of a strike, would
"come and get you."
Jimmy Patterson testified to a speech by Beatty about a
week before the election. Although he did not pay too
much attention, he recalled Beatty's saying that, in event of
a strike, the Company had the right to hire new people and
the strikers would be out of their jobs. "You know, sorta
like fear." Also, in event of negotiations, the Company
could "go around to nothing and start all over again, to
negotiate. They didn't have to give anything if they didn't
want to." This last point was something new in Beatty's
speeches, according to Patterson's testimony on cross-
examination. Beatty "spent a lot of time emphasizing this
fact. He kept going over it." Patterson said that Beatty had
a "manuscript" in front of him, and appeared to be reading
from it. However, Beatty did not give a copy of it to
anyone.
David Mason testified that he attended a speech by
Beatty about a week before the election. On direct
examination, he testified that, in this speech, Beatty said
that the union would have to start out at scratch and
bargain from there in the event it won the election. On
cross-examination , Mason first testified that Beatty had
said this in a preceding speech, then identified the poster
(G.C. Exh. 15(d) app. H), and said that Beatty made this
statement in the last two speeches. Although Beatty was
apparently reading from a text, the statement about
bargaining from scratch was a response to a question asked
of Beatty by an employee. Mason did not recall some of
the incidents of the last speech, such as Beatty's use of a
poster, or discussion of a raffle, but did recall others, i.e.,
permanent replacement in event of an economic' strike.
Respondent points to various contradictions in the
testimony of the General Counsel's witnesses, and argues
strenuously that only the printed text of Beatty's speech
has been established as the language which he used. I do
not consider this factual dispute to be of crucial signifi-
cance , since the language of the poster-that the Employer
had no obligation to continue existing benefits-is the
practical equivalent of saying that it would "bargain from
scratch." As discussed infra, the relevant issue is the import
of Beatty's speech in the entire context of surrounding
events. However, whatever it was that Beatty. did say,' he
said something more than what was in the written speech
and on the poster. I credit Patterson's testimony that
Beatty's discussion of the bargaining process was some-
thing new in his speeches, that he "kept going over itz' and
emphasizing it.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Attorney Stewart's Interviews With Employees
1. The substance of the interviews
a. Stewart's testimony
Respondent's Attorney Stewart33 testified that he inter-
viewed nine employees 34 at the plant, beginning the
afternoon of October 9, and concluding on the morning of
October 10 (the day of the election). Hopper, manager of
industrial relations, was present at the interviews but said
little. Stewart's testimony, as corroborated by that of
various employees who were interviewed, indicates that
Hopper or Stewart informed each employee that the
latter's purpose was to prepare for the forthcoming unfair
labor practice hearing. Stewart made no inquiries concern-
ing union activities or sympathies of the employees, nor
did he inquire as to how the employees intended to vote.
On the contrary, he informed the employees that he did not
want to know anything about that matter. He made no
inquiries about the employees' views concerning Respon-
dent's wages, hours, and working conditions. Each inter-
view was conducted in a quiet and courteous manner, with
frequent shaking of hands before and after the conversa-
tions.
Stewart testified that he, was aware of the precautions
which had to be observed concerning the employees'
rights, and "did it by rote . . . [said] exactly the same
things to each employee." Thus, Stewart told each
employee that because the latter had received a subpena,35
Stewart assumed that the employee knew something about
the complaint, may have talked with a Board agent, and
perhaps had given a statement. Stewart assured each
employee that he had a right to do so under Federal law,
and that Respondent intended to obey the law. Stewart did
not ask any employee to produce a copy of a statement
given to the Board. He further stated that he did not, as
such, inquire as to the contents of the employees'
statements to the Board. Rather, he read the complaint
allegations to the employees, and asked them whether they
had any information about said allegations. Stewart said
that he did not know whether employee responses to these
questions covered the same material contained in Board
affidavits.
Stewart was asked on direct examination whether he
informed the employees that they were free not to talk to
him. He replied that he did not give a "negative
statement." Rather, he asked each employee if the latter
would talk with him, and, upon receiving an affirmative
answer, proceeded with the interview.
During Stewart's interview with Marion Montgomery,
the first employee interviewed, the attorney outlined to
Montgomery the latter's "rights" (set forth above), and
then said, "Marion, I would like you to discuss these
33 J. Hamilton Stewart, III., Esq.
34 Marion Montgomery , James Rutledge, Jimmy Patterson, Robert
Bone, Henry Dale Varnador , Eugene Corley, Leroy Shumpert, David
Mason , and Walter Martin . Martin was interviewed a second time by
Stewart and J. Frank Ogletree, Jr., Esq., Respondent 's other attorney.
35 Stewart testified that, upon his arrival at the plant, he learned that
various employees had received Board subpenas requiring their attendance
at the forthcoming unfair labor practice hearing, and had requested time off
for this purpose . Stewart told employees that this time off would be granted.
matters with me." Montgomery said "all right," and
Stewart then proceeded to go through some of the
complaint allegations. Montgomery replied that he had no
information concerning various allegations. However,
when Stewart arrived at one paragraph of the complaint,
Montgomery said that he did not want to talk to Stewart
any more, and that the latter would know "exactly" what
Montgomery's testimony was at the hearing. The interview
then ended.
During the interview with Bone, the latter asked Stewart,
"Do I have to answer these questions?" The attorney
replied, "No, you don't have to answer them, but I'd
appreciate it if you would. We're trying to prepare our case
for trial." Bone then continued with the interview. After
Stewart went through his preliminary talk "by rote" with
Varnador, the latter said that he did not think that
Respondent or its attorney could talk with him "within 24
hours of the election." Stewart then "briefly explained .. .
what the 24-hour rule meant in the election," and gave
Varnador his opinion that it did not apply to the matter at
hand. Varnador said that he did not "understand the rule,"
and continued with the interview.
b. The General Counsel's evidence
The General Counsel elicited testimony from seven of
the employees interviewed by Stewart 36 All of the General
Counsel's witnesses testified in substance that they were
not told by Stewart that the interviews were voluntary or
that they were free to leave.37 Bone corroborated Stewart's
testimony that, when Bone asked the attorney whether he
has to answer questions, Stewart replied in the negative,
but said that he would "appreciate it" if Bone would do so.
However, Bone added, Stewart did not at that time tell him
that he was free to leave. Mason and Patterson testified
that Stewart told them that the latter was preparing his
case, and had a "right" to ask questions of them.
According to Montgomery, Stewart introduced himself,
and told Montgomery that he had the right "by law" to ask
questions of Montgomery.
Five of the General Counsel's witnesses38 testified that
Stewart did not advise them that their jobs would be
unaffected by anything they told the attorney, while two of
the employees39 stated that Stewart did give them such
assurances . Four of the employees 40 testified that Stewart
did not inform them that their jobs would be unaffected if
they refused to answer the attorney's questions.
Three of the General Counsel's witnesses41 testified that
Stewart asked them whether they had given statements to
the Board. According to Mason, Stewart said that he had a
"list of statements that was [sic] given to the NLRB
attorneys and he asked me questions about some of these
statements."
36 Rutledge, Patterson , Montgomery , Mason , Varnador, Bone, and
Walter Martin.
37 Martin's testimony to this effect relates only to his first interview, with
Stewart.
38 Rutledge , Montgomery, Varnador , Bone, and Martin (first interview).
39 Mason and Patterson.
40 Mason, Bone, Varnador, and Martin (first interview).
41 Patterson, Varnador, and Bone.
TAMPER, INC. 929
2. The place of the interviews and the calling of
employees
All of the interviews42 were conducted in what was
variously described as "the conference room," or the
"Board room." It is located in the "Main Office" area,43
near the office of Respondent's president. The room is
about 15 to 18 feet wide and 20 feet long, according to
Stewart, with one side formed completely of glass, from
which the Columbia Airport can be seen . The room is
carpeted, the window has draperies, and the walls are
panelled. The room is furnished with a long, polished,
wooden table, a small coffee table, and about a dozen
upholstered chairs. None of the employees who were
interviewed had ever been in this room before their
conversations with Stewart.
The General Counsel' s witnesses testified to the availa-
bility of other locations for private conferences with which
they were more familiar, such as Beatty's office, various
offices of supervisors,, or the lunchroom area, which has a
partition which can be extended in order to separate one
area from the rest of the lunchroom. Although Rutledge
stated that such partitioning did not make the secluded
area of the lunchroom soundproof, Patterson testified that
he had had confidential interviews with supervisors,
concerning his job, in this area.
Stewart testified that he informed Hopper of the need for
a "suitable" location for the interviews, where the
participants could not be seen. Several alternative locations
were considered and rejected. Thus, the office of a vice-
president, absent on vacation, was rejected because he was
a "high company official," Hopper's because a door leads
to an assistant's office and because it is visible from the
production floor, Beatty's and supervisory offices for the
latter reason (visibility), and the canteen because of the
presence of employees. Asked about the lunchroom area,
with its partition, Stewart said that Hopper did not
mention this to him, and that he had no knowledge of it.
Respondent's attorney stated that he did not consider an
outside location.
Stewart further stated that he decided to have Hopper
present during the interviews because the manager of
industrial relations had started in the plant as an assistant
in personnel, knew all the employees on a first-name basis,
and would "create a less formal atmosphere."
Respondent's attorney further averred that the employ-
ees were called to the interview by placing calls to their
respective foremen, the normal procedure if an employee
has a telephone call, an emergency at home, or for any
other purpose.
3. Discussion
The only real difference between the testimony of
Stewart and the employees is whether the attorney asked
several employees whether they had submitted statements
to the Board. I discount Mason's testimony that Stewart
told him that the latter had a "list of statements" given to
the Board, and asked him questions about these "state-
ments ." It is clear that Stewart used the complaint, rather
than employee statements, as the guide for his interviews,
nor is there any evidence that he was in possession of
employee statements prior to the hearing. The record
shows that the employees had no real knowledge of the
papers which Stewart had in front of him during the
interviews. I conclude that Mason misinterpreted Stewart's
remarks about Board statements when the latter, as he
testified, told Mason and others that he assumed that they
had submitted statements.
On the other hand, I credit the testimony of Patterson,
Varnador, and Bone, three reliable witnesses, that Stewart
asked them whether they had submitted statements to the
Board. Patterson and Varnador testified explicitly to this
effect on cross-examination, and, when pressed by counsel,
Patterson repeated the testimony with an example. Bone's
testimony, on direct examination, is that Stewart initiated
the interview with a question as to whether Bone had
signed any "statements," whereupon Bone replied specifi-
cally with "two of the things ... in the statement."
I also credit the uncontradicted testimony of Mason,
Patterson, and Montgomery that Stewart, when advising
them of the purpose of the interviews, said that he had a
"right" to such information.
J. Summary and Conclusions
1. The violations of Section 8(a)(1) prior to the
discharge of Berry
a. Introduction
Respondent's defense to the alleged violations of Section
8(a)(1), in general, is that they were isolated, casual, joking,
mild, or merely friendly conversations. In support of this
general defense, Respondent cites, inter alia, N.L.R.B. v.
Builders Supply Company of Houston,44 wherein the Court
of Appeals for the Fifth Circuit has, according to
Respondent, "restated . . . the law relating to interroga-
tion," to the effect that "mild and casual interrogation is
not violative of the Act." Although there is language of this
nature in the court's decision, it occurs in connection with
the court's disagreement with the form of the Board's
order, not with the substantive holding. With respect to the
latter, the court sustained the Board's finding of violations
of Section 8(a)(1), with a rationale which supports the
General Counsel's, rather than Respondent's, view of the
incidents herein. Thus, the court stated as follows:
The issue as to a violation of Section 8(a)(1) is
extremely close. Much of the alleged coercion and
interference is comparatively mild when viewed in the
light of the hard-core conduct which so often accompa-
nies a representation campaign. Certainly, if we isolate
each incident and examine it separately, there is little to
suggest any unlawful activity on the part of the
respondent. But viewing these incidents collectively, as
we must, and recognizing that they occurred during the
midst of an active campaign against representation by
[the union], we are constrained to hold that they
42 Except Martin 's second interview, with Stewart and Ogletree. therefrom to the Main Office.
43 See Joint Exhibit 1, which shows the production area and the route 14 410 F.2d 606 (C.A. 5, 1969), enfg. as modified 168 NLRB 163 (1967).
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounted at the very least to an uncoordinated pattern
of coercion [authority cited 1.45
It is obvious that Respondent's opposition to the Union
in this case was highly coordinated, and had a clearcut
pattern. Respondent's supervisors regularly circulated
among the employees , attempted to ascertain their union
sympathies, voiced objections to the Union, and made
periodic reports of employee sentiments to Beatty. The
latter "updated" these reports periodically, and made
speeches to employees opposing the Union, before the
election. It is in this context that the separate, alleged
violations of Section 8(a)(1) must be considered. As is set
forth infra (subsection (2)), this context included violations
of Section 8(a)(3) of the Act. When the incidents are
considered against this background, it is obvious that
adjectives such as "isolated," or "casual," are inappropri-
ate descriptions, while the facts of the individual incidents
demonstrate that they were coercive, regardless of their
alleged mildness , jocularity, or "friendly" nature.
b. Bundrick's interrogation of Mason
As summarized above, Supervisor Bundrick asked
Mason in March what the latter felt about the organization
trying to get into the Company. Respondent emphasizes
Mason's testimony that the conversation was friendly and
that he did not feel threatened or coerced, and concludes
that this "innocuous" conversation does not "even ap-
proach the requisite coercion for a violation of Section
8(a)(l) "
This argument is invalid because it omits reference to the
context of union animus and other unfair labor practices in
which the interrogation took place, and because the Board,
with judicial approval, recently held similar interrogation
to be violative of Section 8(a)(1). Thus, in H. L. Meyer
Company, Inc.,46 the interrogation, as here, took place early
in the organizational campaign, and was followed by other
unfair labor practices. Shortly after the employee signed a
union card, a foreman asked her whether she had ever
belonged to a union. She answered, truthfully, in the
affirmative, and a general discussion of unions followed.
The Board, however, concluded that the foreman was
trying to "pry into" the employee's union sentiments, and
stated as follows:
While the Respondent sought to make light of [the
foreman's] inquiries, its arguments in this regard lose
considerable force, because such conduct cannot be
regarded as isolated or otherwise excusable in view of
the Respondent's pronounced union animus and its
clear disregard for the lawful organizational rights of its
employees, as otherwise found herein 47
Accordingly, the Board found the interrogation to be
unlawful.
In its enforcing decree, the Court of Appeals for the
45 Ibid.
49 177 NLRB 565 (1969), enfd. as modified 426 F.2d 1090 (CA. 8, 1970).
41 Ibid., 177 NLRB at 566.
49 Supra, fn. 46 . For a similar conclusion by another circuit court, where
the interrogation was followed by other unlawful conduct by respondent,
see N.L.R.B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360 (C.A. 6, 1963), enfg.
as modified 137 NLRB 1057 (1962).
49 McKinnon Services, Inc., 174 NLRB 1141, 1144-45 ( 1969); Arkansas
Grain Corp., 160 NLRB 309 (1966).
Eighth Circuit affirmed this finding with the following
language:
This court has observed on many occasions that an
employer's interrogation of its employees is not
unlawful per se, unless it is conducted in a background
of company hostility so as to induce a fear of reprisal in
the employee for his union activity [case cited]. When
interrogation serves as a threat, either direct or implied,
which dissuades the employee from participating in
concerted activity, it is unlawful. The record contains
several instances of such coercive interrogation. The
fact that several of these interrogations were of a single
employee does not in itself remove them from the
status of unfair practices under the Act. There was
more than one instance of such interrogation, and each
incident occurred in a continuing background of
overall union hostility by the company [case cited]48
Respondent's argument that Mason did not experience
actual fear or apprehension is irrelevant, as the test of
coercive interrogation is an objective one; i.e., whether it
had a tendency to be coercive under all the surrounding
circumstances .49 It is apparent from the amicable discus-
sion of unions in the Meyer case, and from the employee's
truthful response to the interrogation, that she experienced
no apprehension. Nor is a finding of unlawful interroga-
tion vitiated by the existence of friendly relations with
supervisors.50 The Board has stated that "[t]he illegality of
the remarks is not cured by the casual nature of the
conversation or the personal relationship of the parties
11,51 and the Court of Appeals for the Eighth Circuit, in
another case, has noted that "[a In employer's background
of `strong anti-union posture' may properly be considered
to determine the probable effects on employees of
particular acts of the employer." 52
In the instant case, as is set forth later, Respondent's
interrogation of Mason occurred in a context of violations
of Section 8(a)(3) of the Act, involving Clarence Ber-
ry-unlike Meyer, where the court found that only Section
8(a)(1) had been violated. When the discriminatory actions
against Berry and the number of other coercive incidents in
this case are considered, it follows a fortiori from Meyer
that Bundrick's interrogation of Mason concerning the
latter's union sympathies tended to be coercive. According-
ly, I find that Respondent, by that interrogation, violated
Section 8(a)(1) of the Act.
c. Impression of surveillance by Adkins
The next alleged violation of Section 8(a)(I), in point of
time , is Supervisor Adkins' conversation with Bone, in
early May. As summarized above, after Bone told Adkins
that he was going to a union meeting, Adkins asked where
it was taking place. When Bone offered to take Adkins to
the meeting, the supervisor laughed, and said that he knew
50 McKinnon Services, Inc., ibid.
51 Clark's Gamble Corporation, d/b/a M. N. Landau Stores, Inc., d/b/a/
Clark's Stores, 168 NLRB 273, 274 (1967), enfd. as modified and remanded
407 F.2d 199, (CA. 6, 1969). (The subsequent history of the case concerned
the propriety of the bargaining order , cert . granted 396 U.S. 23, original
order affd. 422 F.2d 845 (C.A. 6, 1970).)
52 Orchard Corp of America v. N.L.R.B., 408 F.2d 341 (C.A. 8, 1969),
enfg. 170 NLRB 1297 ( 1968).
TAMPER, INC.
what was going on, that he knew how many people were
going to the meetings , and that he knew more about what
was going on than people thought he did.
Respondent argues that this incident was not violative of
the Act, because (1) Adkins did not make the statements
attributed to him by Bone, and (2) Bone was "kind of
kidding" when he offered to take Adkins to the union
meeting, and the latter "kind of laughed" when the offer
was made. As to the first objection, I have already credited
Bone's version of this incident . Respondent's argument,
that it is unlikely that a "trained supervisor such as Adkins
would violate one of the cardinal rules restricting supervi-
sory activity," flies in the face of a multitude of Board
decisions holding that trained supervisors did precisely
that. As for Respondent's second argument, there is no
evidence that either Bone or Adkins laughed when the latter
told Bone what he knew about the Union-and it is this
statement by Adkins, not Bone's offer of a ride, which
created the impression of surveillance.
Respondent cites V.L.R .B. v. M & WMarineWays,Inc.,53
wherein the Court of Appeals for the Fifth Circuit,
disagreeing with the Board, held that a question by a
supervisor to an employee who was a good friend of his,
and with whom he customarily ate and relaxed, made
during an unplanned , casual, social meeting, was not
violative of Section 8(a)(1). None of these factors is present
here . Adkins' interrogation was in the plant, not during a
social meeting. Although Bone testified that his relation-
ship with Adkins was "cordial" on the job, he further
stated that he did not know Adkins "personally," and did
not "really" know him off the job . Other authority cited by
Respondent is similarly inapposite 54 Accordingly, I find
that Respondent , by Adkins' statement to Bone, created an
impression of Respondent's surveillance of the employees'
union activities , thereby violating Section 8(a)(1).
d. Beatty's threat to withhold wage reviews
The next alleged violation of Section 8(a)(1) is Beatty's
threat to discontinue the wage review and/or reclassifica-
tion program because of the Union campaign, made during
one of Beatty's speeches to employees. As may be recalled,
there were two separate incidents during different
speeches, the first involving a question from Robert Bone
during Beatty's first speech, about the last of May, and the
second involving an exchange between Beatty and Rhett
Seese during the third' speech, about June 24; the
complaint alleges two separate violations.
As summarized above, Seese had received a 6-month
review, and was not deemed worthy of an increase. At the
third meeting, he asked when he was going to get his raise,
and Beatty replied in substance that Seese knew why he
wasn't getting a raise, and that it would be considered a
bribe if Beatty gave him one.
The General Counsel, in his brief, refers only to the Bone
incident, and says nothing about Seese. Respondent argues
that Beatty's response to Seese could only be interpreted to
53 411 F.2d 1070 (C.A. 5, 1969), denying enforcement of 165 NLRB 191
(1967).
54 Southwest Latex Corporation v. N.LR.B., 426 F.2d 50 (C.A. 5, 1970),
denying enforcement of 175 NLRB 358 (1969); Georgia Highway Express,
Inc., 170 NLRB 1335 (1968).
931
mean that the Company had no intention of violating the
law by granting undeserved benefits. I agree with this
interpretation of Beatty's response, and with Respondent's
position that such a statement is not violative of the Act.
Accordingly, I shall recommend that this allegation be
dismissed.
With respect to Bone's question about a new reclassifica-
tion program, Beatty replied that one was in progress, or
that the Company did have a reclassification program,55
but there was nothing the Company could do until "the
mess" was over with, and that there was no way he could
reclassify Bone's job in the absence of some reason for it,56
"especially when all of this Union mess was going on." The
General Counsel argues that Beatty's response constituted
a threat to withhold the regular wage and reclassification
reviews pending resolution of the Union's campaign
activities. Respondent underlines that portion of Beatty's
version of his response referring to the absence of any
reason for reclassifying Bone's job, and argues that
Beatty's statements that (1) he could not give people
money when they did not deserve it, and (2) he could not
reclassify a job when there was no particular reason for it,
are legal and permissible.
The Company's argument improperly attempts to link
the Seese and Bone incidents. They occurred during
different speeches, and involve different principles. I have
already concluded that Beatty's response to Seese was
permissible. His statement that he could not give raises to
undeserving employees was made during the exchange
with Seese. Beatty's answer to Bone, however, clearly
suggested that the union campaign would deter continua-
tion of the Company's existing review and reclassification
program.
Respondent emphasizes that portion of Beatty's testimo-
ny that he made reference to the lack of any reason for
reclassifying Bone's job. But there is no doubt about the
nature of Bone's question to Beatty. Unlike Seese, he did not
ask about his job or his wages-he asked a general question
about the Company's existing program. Nor was there any
evidence that Bone, like Seese, had already received a
review, and had been denied an increase. Although
granting Seese an increase which he had not earned might
well be, as Respondent argues, an illegal benefit,in return
for Seese's support during the campaign, this by no means
justifies denial of wage reviews for Bone and other
employees. Such reviews did not automatically mean a
wage increase for each employee, as Respondent's eviden-
ce shows. But they did constitute Respondent's regular
practice prior to the union campaign, and assured each
employee that his individual case would receive considera-
tion. Further, as outlined above, Respondent annually
compares its wage structure with that of the employment
community in which it is located, and when justified by
such comparison, makes across-the-board increases. The
Company's employees were entitled to a continuation of
the Company's entire policy on wage reviews and job
classifications, the union campaign notwithstanding. Aside
55 According to Respondent , Bone was referring to a new classification
plan, but there was in reality only an "ongoing reclassification system."
56 As summarized above, the phrase about not reclassifying anybody
when there was no reason to do so occurred m Beatty's version of the
exchange , not Bone's.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from what Beatty did or did not say about Bone's job, his
response otherwise indicated that the individual wage
reviews for all employees, the annual surveys, or both,
would be suspended pending termination of the union
campaign.
Respondent points to the fact that the individual reviews
actually continued during the campaign, from April
through October, and that many employees actually
received wage increases as a result. But Beatty's statement
to Bone, at a meeting of employees, was made about the
last of May. It is certainly doubtful, at the least, that the
employees knew of all reviews and increases granted to
individual employees, in April and May; and it was
impossible, of course, for them to know what action the
Company would take in the future. Accordingly, the
coercive nature of Beatty's statement at the meeting was in
no way diluted by the Company's actual practice. Since the
individual wage reviews and the annual wage survey were
the only ways in which the employees could obtain
increases, denial of these reviews and the survey in effect
meant that there would be no wage increase to any
employee pending completion of the Union campaign.
This was tantamount to a threat to withhold wage
increases because of that campaign, and was violative of
Section 8(a)(1).57
e. Adkins' interrogation of Patterson
About June 18, Adkins approached Patterson, and, in a
"shrewd type of voice" which was not friendly, asked him
what he thought of the Union, and how he was going to
vote in the forthcoming election. The only arguments
Respondent makes concerning this incident are assertions
that (1) Patterson considered himself a member of the
"staff," not a "production rank and file employee," and (2)
Adkins spoke to Patterson in a "conversation-type voice."
Accordingly, Respondent argues, the conversation was so
"casual and moderate that it could not conceivably
amount to threats or coercion."
These arguments are irrelevant, and are based on
distortions of the record. On cross-examination, Respon-
dent's counsel asked Patterson leading questions as to
whether he considered himself a member of the "staff," or
a "production employee out there," or "production rank
and file employee," without defining any of these terms.
Although counsel obtained an affirmative answer to his
first leading question, and negative answers to the latter
two, Patterson also testified that he did not consider
himself "on a level with Adkins," and that the latter, in
fact, was Patterson's supervisor in the absence of the
expediter's regular supervisor, Carl Stucky. Patterson was
an "employee" within the meaning of Section 2(3) of the
Act, and, as determined in the representation proceeding,
was eligible to vote in the election. Respondent's argument
concerning his status is meaningless, and its quotation of
Patterson's characterization of Adkins' tone of voice as a
57 Dodson's Market, Inc., d/b/a/ Dodson IGA Foodliner, 194 NLRB 192
(1971); H. L Meyer Co., Inc., supra, 177 NLRB at 566, 573.
59 Whether Martin actually signed a card is unknown on the basis of this
record-he may have signed one, and the laughter may have been
occasioned by the falsity of his reply, known to the other employees, or by
his obvious discomfiture when he became "shook up" and stuttered.
"conversation-type" omits Patterson's further description
of it as "shrewd" and not friendly.
As I am unaware of any authority for the proposition
that a finding of unlawful interrogation must also include
findings of certain tonal characteristics or decibel levels, I
reject Respondent's arguments and conclude that Respon-
dent, by Adkins' interrogation of Patterson concerning the
latter's Union sympathies, thereby violated Section 8(a)(l)
of the Act.
f. Beatty's interrogation of Martin
As hereinabove described, at the end of Beatty's third
speech, about June 24, during a question and answer
period, Martin stated in substance that he would not pay
union dues if he received nothing in return for them.
Beatty then asked Martin whether he had signed a Union
card. Martin stuttered, said "No, no, no," and appeared
"shook up," at which point the employees started laughing.
Respondent's counsel, in his brief, cites various parts of the
transcript, including the testimony of Varnador-but not
that portion of his cross-examination of Varnador devoted
to the timing of the laughter-and protests that the
General Counsel could not "seriously contend that such a
light-hearted incident" violates Section 8(a)(1). On the
contrary, the General Counsel appears to be quite serious
about this allegation, arguing that the fact that various
witnesses recalled the incident, while forgetting other
questions and answers, shows the "lasting effect" created
by Beatty's interrogation.
Beatty's question to Martin took place during the third
of several speeches which Beatty made opposing the
Union. The entire record in this case shows that the
Company was not humorous about its opposition to the
Union, and Beatty's speeches against the Union were quite
serious. Respondent was determined to defeat the Union,
as Beatty admitted, and the Company committed numer-
ous violations of the Act in the course of the campaign.
This, certainly, was not a background for comedy. While
various interpretations may be placed on the employees'
laughter when Martin denied signing a union card,58 the
fact that there was no laughter after Beatty asked Martin
whether he signed a card shows that the employees did not
consider this part of the exchange to be funny. I therefore
reject Respondent's characterization of this incident as a
humorous episode, and find that Respondent, by Beatty's
interrogating Martin as to whether he had signed a Union
card, in the presence of other employees, thereby violated
Section 8(a)(1) of the Act.
2. The violations of Section 8(a)(3) of the Act
a. Berry's reprimands and suspension on May 8-9
The General Counsel's position is that this case has "all
the classic elements customarily used as indicia" support-
ing a finding of discrimination. I agree. The Company's
Paraphrasing language of the Court of Appeals for the Ninth Circuit, "Nor
does [the employees'] jocular response protect respondent-it may have
been that [they were ] putting up a false front of confidence and defiance
while, nonetheless, fearing the effect of [the interrogation ]." N.LR.B. v.
Hotel Conquistador, Inc., d/b/a/ Hotel Tropicana, 398 F.2d 430,434 (C.A. 9,
1968), enfg. as modified 159 NLRB 1220 (1966).
TAMPER, INC. 933
animus against the Union, and its knowledge of Clarence
Berry's advocacy of the Union cause, have been clearly
established. Prior to the time that he associated himself
with the Union campaign, Berry's work record was
outstanding, with no mistakes or reprimands. He had
progressed upwards in terms of salary and job responsibili-
ty, and had received a favorable report in his last appraisal
before the advent of the union campaign. The Board and
the courts have consistently held that a record of good
work and salary increases tends to indicate that subsequent
adverse action against the employee was discriminatorily
motivated 59
Once Berry was seen by Supervisor Adkins with Union
literature in his pockets, however, matters changed rapidly.
The first dereliction of duty upon which the Company
seized was Berry's leaving the plant for 10-15 minutes on
May 8, to go to the parking lot. Although Dowd testified
that the Company had published "rigid rules" on leaving
the plant without permission, Dowd was not a reliable
witness, and no such rules were introduced into evidence.
Moreover, Berry had previously left the plant without
permission, and was not warned or reprimanded. Of even
greater significance is the Company's established record of
lenience with respect to employee errors in production
involving loss of substantial amounts of money.
When the Company's general policy on discipline of
employees is compared with the treatment given to Berry,
the grossly disproportionate nature of the latter is obvious.
For the relatively minor infraction of going to the parking
lot for 10-15 minutes, Berry was given a "final warning"
with an admonition that "[a]ny future violation of plant
rules or policies will result in termination" (G.C. Exh's
2(a), 2(b)), and was suspended for the balance of the shift
with loss of half a day's pay. It is improbable that the
Company would have imposed such severe discipline on an
employee with ,Berry's excellent work record, for his first
offense, unless factors other than the infraction itself
played a part ins the Company's decision. An inference that
a discriminatory factor was involved is warranted on the
basis of Berry's excellent record prior to this first offense,60
the timing of the discipline, in the middle of the Union
campaign,61 the fact that the Company had learned of
Berry's prominent role in that campaign, 62 had already
engaged in unlawful interrogation of employee sympa-
thies,63 had not disciplined Berry previously for the same
offense, and was lenient with respect 'to far more serious
employee infractions.
As Respondent points out, the complaint does not allege
any illegality with respect to the reprimands on May 8 and
9, or the suspension from work. However, it is established
law "that a material issue which has been fairly tried by the
parties should be decided by the Board regardless of
whether it has been specifically pleaded [cases cited],"64
and the circumstances of Respondent's first warnings and
Berry's suspension have been "fairly tried." Even with
these considerations, it would be unnecessary for me to
pass on the matter if it concerned only the reprimands, as
no difference in remedy would be involved in light of my
conclusion with respect to the reprimand on June 6 (infra).
However, Berry's loss of half a day's pay is another matter,
and would not otherwise be covered by the remedy
hereinafter recommended. Accordingly, for the reasons
above given, I conclude that the real reason for Respon-
dent's action against Berry on May 8-9 was Berry's open
advocacy of the Union within the plant, and that by its
reprimands of Berry on these dates,65 by its suspension of
him with loss of pay for half a day,66 and by each such Act,
Respondent thereby discriminated against Berry, in viola-
tion of Section 8(a)(3) of the Act.
b. Berry's assignment to the gage crib and final
inspection
As described above (sec. III, C, 3), Respondent imposed
additional duties on Berry in the middle of May-the gage
crib and final inspection-for the purpose of depriving him
of the freedom of movement which he had as a floor
inspector, in order to prevent him from influencing other
employees in favor of the Union. No inference is, required
to establish this motivation, as Dowd told Berry that
Beatty had given the reason explicitly. In addition, as is
clearly evidenced by Respondent's subsequent treatment
of Berry's "mistakes" in ' the more difficult job as final
inspector, an additional motive was to place Berry in a
work situation where "mistakes" would either be inevitable
or could be contrived, in order to "justify" Berry's
discharge.67 That Respondent had this ultimate objective
as early as the May 8-9 parking lot incident is indicated by
the language of the "final warning," with its explicit threat
of "termination."
The complaint alleges Berry's "isolation" by "transfer-
ring him to a remote work station" as a violation of Section
8(a)(1) only. However, it is quite clear that these additional
duties constituted a discriminatorily motivated change in
Berry's "terms or conditions of employment," were thus
violative of Section 8(a)(3) as well as Section 8(a)(1), and I
so find.68
5s Sweeney & Company, Inc. V. N.L.R.B., 437 F.2d 1127 (CA. 5, 1971),
enfg. as modified 176 NLRB 208 (1969); Master Tank and Welding
Company, 190 NLRB 274 (1971); Woolco Department Store No. 6040, 189
NLRB 322 (1971); 'Weston's Shoppers City, Inc., 189 NLRB 234 (1971);
Rockingham Sleepwear, Inc., 188 NLRB 698 (1971); Certified Foods, 188
NLRB 638 (1971); Collins & Aikman Corp., 187 NLRB 620 (1970).
60 Ibid
61 Farah Manufacturing Company, 187 NLRB 601 (1970); C.P. Lesh
Paper Company, 187 NLRB 359 (1970); Lyncoach & Truck Co., Inc., 183
NLRB 1296 (1970).
62 Carbet Corporation, 191 NLRB 892 (1971); City Welding & Manufac-
turing Company, 191 NLRB 124 (1971), Saia Motor Freight Line, Inc, 182
NLRB 614 (1970).
63 Eugene Luhr and Co., 187 NLRB 769 (1971). As indicated, Bundrick's
interrogation of Mason took place in March . Adkins' impression of
surveillance, conveyed to Bone during a conversation in early May, appears
to have been contemporaneous with Berry's first reprimands and suspen-
sion
64 American Boiler Manufacturers Association v. N.LRB., 366 F.2d 823
(C A. 8, 1966), remanding 154 NLRB 285 (1965).
Milford Fabricating Company, Inc., 193 NLRB 1012(1971); Ahcevdle
Cotton Mill Inc., 193 NLRB 885 (1971); Gateway Transportation Co., Inc,
193 NLRB 47, 190 NLRB 199 (1971).
66 Zenith Plastics Company, 190 NLRB 735 (1971).
67 Supra, fn. 19.
fis Associated Mills, Inc., 190 NLRB 113 (1971); in language identical
with the complaint allegation herein, the Board found that respondent's
purpose in effecting the reassignment was to "isolate " the alleged
(Continued)
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Berry's reprimand on June 6
As set forth above (sec. III , C, 4), Berry was given a
written reprimand concerning certain alleged mistakes that
he made. It is obvious that Berry did make some mistakes,
although the record does not support Respondent's
allegation that he made all the mistakes with which he was
charged. It is also evident that Respondent intended Berry
to make mistakes, for the purpose of building a case
against him. In addition to the reasons for this conclusion
which have already been given, the following events which
took place between about May 15 and June 6 further
indicate Respondent's discriminatory motivation: (1) the
fact that Berry, being new on the job and being assigned
the second shift, when quality control supervisor Dowd
was not on duty, asked Dowd for permission to call the
latter at home in event of a question, and was denied; (2)
the fact that Dowd asked Broad, a procompany employee,
to investigate Berry's work, and submit a written report to
Dowd;69 (3) the fact that Berry, with Respondent's
knowledge thereof, appeared at the representation hearing
on May 31, on behalf of the Union;70 and (4) the fact that
Respondent, contrary to customary practice, had not
brought the alleged mistakes to Berry's attention when they
occurred.71
In these circumstances, the fact that Berry did make
some mistakes does not exonerate Respondent from the
complaint allegation that the June 6 reprimand was
discriminatorily motivated 72 Accordingly, I find that
Respondent, by such reprimand, discriminated against
Berry in violation of Section 8(a)(3) of the Act.73
d. Berry's discharge on July 5
As detailed more fully above (sec. III, F), the reason
advanced by Respondent for Berry's discharge was his
alleged mistake in approving the piston rods without
chrome plating. That this reason is pretextual is demon-
strated by the following facts, in addition to those already
given: (1) although Berry knew that the rods were to be
chrome plated, he had had no prior experience in the
sequence of processes by which this was accomplished, i.e.,
whether the rods went outside directly for chrome plating,
or were first sent to main stores; (2) the envelope which he
did see instructed him to send them to Main Stores; (3)
there was no computer card stating that an external
operation for chrome plating was the next step; (4) Berry
made a diligent effort to ascertain the next step, by
consulting with the expediter then on duty, in accordance
with plant practice on routing, but the latter's document
(production accounting report) was also erroneous, and the
expediter himself did not know what to do; (5) Berry went
further and consulted a material handler in main stores,
discriminatee from other employees during the critical period in the union
campaign. Id See also National Tape Corporation, 187 NLRB 321 (1970);
The Cavern Supply Company, Inc., 187 NLRB 160 (1970); Cotton Lumber
Company, 182 NLRB 286 (1970); and Champa Linen Service Co., 177 NLRB
798 (1969), enfd. 437 F.2d 1259 (C.A. 10, 1971).
69 Henriksen, Inc., d/b/a Gibson Discount Center, 191 NLRB 622 ( 1971).
70 Radco Enterprises, Inc., 189 NLRB 278 (1971).
71 IBEC Packing Co., Inc., 194 NLRB (1971).
72 Certified Foods, 188 NLRB 638 (1971).
73 Supra, fn. 65.
who was similarly unable to advise Berry, whereupon
Berry informed him that he would leave the rods in the
inspection area , not in the stores pickup area ; (6) Berry in
fact did leave the rods in the inspection area, leaning
against a desk; (7) although Berry's "mistake" was
discovered by management the following morning, with
the professed belief by the latter that the mistake was
deliberate, Berry was nonetheless permitted to work for
two days before being discharged;74 (8) no action was taken
by Respondent to correct the alleged mistake for 2 working
days, until action was taken by the material handler whom
Berry originally consulted; (9) the alleged mistake did not
result in any actual damage or loss,75 and the discharge
took place 7 days before a then-scheduled Board election
(July 12).76
The fact that Berry did not leave a "note" for Dowd on
top of the rods, as he had done previously, is meaningless
in light of the fact he left the rods in the inspection area,
where management discovered them, and did nothing. The
fact that he failed to consult foreman Joe Brown or other
supervisors present on the second shift shows only that he
was following customary plant practice-only an inspector
could "pass a part," and it was the expediter, not a shop
foreman , who supposedly had the routing information.
Dowd instructed Berry not to call him, Dowd, in event of a
question. Respondent's argument that Joe Brown, Adkins,
or some other supervisor on the second shift might have
gone to the "front office," confronted the computer, and
obtained the correct information, is speculative and unreal.
Respondent sought no explanation for Berry's alleged
failure to follow proper procedure,77 decided to discharge
him forthwith without giving him an opportunity to
explain, 78 failed to tell him, at the termination interview,
of its professed belief that his mistakes were intentional,79
and after hearing his description of his attempt to get
accurate information from the expediter, failed to tell him
of its alleged prior admonitions against such advice, and
deliberately withheld from him the evidence upon which it
now relies to establish that he did, in fact, have adequate
instructions (Respondent's Exh. 5(a)). These facts show
that Beatty did not believe that Berry's "mistakes" were
intentional , and his testimony that he did so believe was
false.
As the Board has stated under similar circumstances, it is
"incredible that Respondent would summarily discharge
an employee with an outstanding record and 7 years'
tenure , on the mere suspicion that he jammed the
timeclock although no damage was done to the clock, and
no serious inconvenience was caused, without even
confronting the employee with the evidence against him
and allowing him an opportunity to explain. When
Respondent's precipitous action in discharging (the em-
ployee) is viewed against the background of its strong
14 Certified Foods, supra, fn. 72.
75 Jackson Packing Co., 170 NLRB 1361 (1968).
76 Atlantic Foundry and Pattern Corp., 192 NLRB 745 (1971).
77 N.L.R.B. v. Coast Delivery Service, Inc., 437 F.2d 264 (C.A. 9, 1971),
enfg. 172 NLRB 2268 ( 1968).
78 M. J. Pirolli & Sons, Inc., 194 NLRB 241 (1971); Speed Queen,A
Div. of McGraw-Edison Co., 192 NLRB 995 (1971); C & D Sportswear
Corporation, 189 NLRB 24 (1971).
79 George J. Roberts & Sons, Inc., d/b/a The Roberts Press, 188 NLRB
454(1971).
TAMPER, INC.
union animus, its demonstrated willingness to engage in
coercion of its employees and interfere with their Section 7
rights, and its other unlawful antiunion conduct, as well as
its knowledge of (the employee's) union sympathies, the
conclusion is warranted that Respondent seized upon this
situation as an excuse to rid itself of a known union
adherent." 80
Further, as the Court of Appeals for the Fifth Circuit has
stated:
It is undisputed that the company was aware of (the
alleged discriminatee's) key role in the Union move-
ment ... While this court is fully cognizant that being
an ardent supporter and protagonist of the Union does
not insulate an employee against discharge for justifia-
ble cause (authorities cited), we are likewise aware that
the existence of valid grounds for discharge is no
defense to an 8(a)(3) unfair labor practice charge when
discriminatory motive is a factor in the employer's
decision (authorities cited). Moreover, it need not be
shown that the proscribed motive was 'dominant--for
general counsel carries his burden when it is shown that
the employee would not have been discharged but for
the anti-union animus of the employer [authorities
cited] s1
Whether Respondent "seized upon" Berry's handling of
the piston rods as the excuse to fire him, or deliberately
contrived to cause that mistake, is an interesting question
which need not be decided here. Some of the Company's
actions are seemingly unexplainable except on a contri-
vance theory. Thus, why was it that there were two shop
orders for the same part in the plant at or about the same
time,, one with accurate routing instructions, and the other
with erroneous information? If the methods master for this
part was corrected in April so as to indicate the proper
routing, why was it that the production accounting report
was correct on one order, and incorrect on the other? Why,
indeed, was it in April 1972-after, many years of
fabricating the same part with chrome plating-that
Respondent, at or about the beginning of the union
campaign, suddenly decided to change the computer's
instructions? Did the original of the production accounting
report for shop order 1730-indicating no external opera-
tion for chrome plating-actually disappear in the normal
course of business? Why was it that Respondent sent
Patterson a copy of his secrecy agreement with the
company months after he had signed it,, but only a few
weeks after Patterson preserved the evidence on the
production accounting report by making a copy and giving
it to Bone? Why was it that Dowd followed this particular
order around the shop so diligently, and professed ability to
recognize a grease-covered envelope which could not
possibly be genuine? Finally, how did Beatty know on June
28 that Respondent would be in an unfair labor practice
hearing involving the piston rods, 24 hours before Berry
made his "mistake" concerning those rods?
As I have indicated, the serious doubts about Respon-
dent's good faith in this proceeding raised by these
questions need not be decided here. Suffice it to say that
80 Jackson Packing Co., supra, fn. 75, 170 NLRB at 1362-63.
81 Sweeney & Co., Inc V. N.LR.B, supra
935
Respondent's professed reason for Berry's discharge is an
elaborate charade of computerized abracadabra and
documentary sleight - of hand. I reject Respondent's
argument that Berry was discharged for cause, and find
that he was fired because of his union sympathies and open
advocacy of the union cause, thus discriminating against
him within the meaning of Section 8(a)(3) of the Act.
3. Beatty's fourth speech, October 3
As set forth above, Beatty told the employees that the
Union would like them to think that it could get the
Company to agree with their big campaign promises, but
that this was not what "the law says about bargaining."
What the law did say, Beatty informed the employees by
means of the poster, was that an employer has no
obligation to continue existing benefits, and may lawfully
offer reduced benefits. Beatty stressed this point, going
over it several times.
A considerable portion of the speech was devoted to
strikes, and the many losses employees suffered because of
strikes. This included loss of pay and inability to collect
unemployment compensation. As Beatty told his listeners,
in event of a strike, the finance company "will come and
get you." In addition, the employees risked loss of their
jobs. Although Beatty's speech initially refers to an
employer's right to replace an employee during an
"economic" strike, the adjective is dropped later in the
speech, and Beatty made no attempt to explain the effect
upon job rights of an economic, as compared to an unfair
labor practice, strike. One employee (Varnador) testified
that he did not know what an "economic" strike was,' and
it is a fair inference that the rest of the employees were
similarly unaware of the distinctions which the Board
makes. The impact of Beatty's remarks about strikes is
indicated by the testimony of another listener (Patter-
son)-the Company had the right to hire new people and
the strikers would be out of their jobs-"You know, sorta
like fear."
Whether Beatty's fourth speech was coercive is deter-
mined by the circumstances in which it was made. As the
Board has stated, "statements are sometimes made of a
kind that may or may not be coercive, depending on the
context in which they 'are uttered. 'Bargaining from
scratch' is such a statement "82 As noted above, a
statement that an employer has no obligation to continue
existing benefits during bargaining has the same meaning
as a statement that he will bargain from scratch. As the
Board has stated, "an employer is not required even to
continue in effect its existing benefits if a union wins.
Bargaining is a two-way street and it starts from
scratch." 83 "The Board in considering the 'impact . . . of
`bargaining from scratch' statements . . . has distinguished
circumstances in which such remarks could reasonably be
read in context as a threat to discontinue existing' benefits
from instances in which such remarks are merely ^ descrip-
tive of the employer's bargaining strategy, designed to let
82 Wagner Industrial Products Co., 170 NLRB 1413 (1968).
83 Astronautics Corporation of'America, 164, NLRB 623, fn, 2 (1967)
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees know that unionization does not mean
automatic increases in benefits." 84 Relevant circum-
stances in making this distinction are whether the employer
has made other coercive remarks in its communications to
employees,85 and whether it has committed other unfair
labor practices.86
I conclude that the effect of Beatty's speech upon
employees was to create fear that they would lose existing
benefits, rather than a warning that they could not
automatically expect increases in benefits. It is true that, in
the written text of the speech, Beatty said that the Union
was trying to get the employees to believe that it could
compel Employer agreement with "big campaign promis-
es" by the Union. The meaning of this ambiguous
statement, however, was spelled out in the poster, which
refers only to the possible loss of existing benefits. That
this was the meaning attached to Beatty's remarks is
clearly established by the testimony of the employees who
heard the speech. Beatty went over this point several times.
His statements were not made in response to employee
inquiries about the bargaining process.87 On the contrary,
as Beatty testified, he permitted no questions except those
relating to the T.V. raffle. His "hard line approach" to
strikes, his failure to distinguish between different kinds of
strikes, and the talk of "finance companies" and loss of
jobs in event of a strike, were also coercive.
Finally, unlike other cases,88 Beatty's statements were
made in a context of strong antiunion animus and other
unfair labor practices. Accordingly, I conclude that those
remarks tended to interfere with the forthcoming election,
and made a fair election impossible.
Although not alleged by the General Counsel as an
unfair labor practice, Beatty's statements during his fourth
speech were fully litigated. Accordingly, I also find that, by
those statements, Respondent violated Section 8(a)(1) of
the Act.
4. Attorney Stewart's interviews with employees,
October 9-10
The General Counsel relies principally upon Johnnie's
Poultry Co. 89 in support of his position that Stewart's
interviews with employees were violative of the Act. The
Board there stated as follows:
Despite the inherent danger of coercion therein, the
Board and the courts have held that where an employer
has a legitimate cause to inquire, he may exercise the
privilege of interrogating employees on matters involv-
ing their Section 7 rights without incurring Section
8(a)(1) liability. The purposes which the Board and
courts have held legitimate are of two types: the
verification of a union's claimed majority status to
determine whether recognition should be extended .. .
84 Textron, Inc., 199 NLRB No. 17 (1972).
85 Ibid.
86 Astronautics Corporation of America , supra, fn. 83 ; Textron, Inc., supra,
fn. 84 ; Aerovox Corporation of Myrtle Beach, South Carolina, 172 NLRB
1011 (1968).
87 Cf. Nutrena Mills, Division of Cargill, Incorporated, 172 NLRB 183
(1968).
88 Cf . AAA Lapco, Inc., 197 NLRB 274 (1972), cited by Respondent;
Host International, Inc., 195 NLRB 348 (1972 ); Wagner Industrial Products
and the investigation of facts concerning issues raised
in a complaint where such interrogation is necessary in
preparing the employer's defense for trial of the case.
In allowing an employer the privilege of ascertaining
the necessary facts from employees in these given
circumstances, the Board and courts have established
specific safeguards designed to minimize the coercive
impact of such employer interrogation. Thus, the
employer must communicate to the employee the
purpose of the questioning, assure him that no reprisal
will take place, and obtain his participation on a
voluntary basis; the questioning must occur in a
context free of employer hostility to union organization
and must not be itself coercive in nature; and the
questions must not exceed the necessities of the
legitimate purpose by prying into other union matters,
eliciting information concerning an employee's subjec-
tive state of mind or otherwise interfering with the
statutory rights of employees. When an employer
transgresses the boundaries of these safeguards, he
loses the benefits of the privilege.
In defining the area of permissible inquiry, the Board
has generally found coercive, and outside the ambit of
privilege, interrogation concerning statements or affi-
davits given to a Board agent. For such questions have
a pronounced inhibitory effect upon the exercise by
employees of their Section 7 rights which include
protection in seeking vindication of those rights free
from interference, restraint, and coercion by their
employer. Moreover, interrogation concerning employ-
ee activities directed toward enforcement of Section 7
rights also interferes with the Board's processes in
carrying out the statutory mandate to protect such
rights . . . .90
In agreement with the General Counsel, I find that,
although Stewart did observe some of the safeguards, he
did not observe all of them. His interviews were conducted
in a context of continuing company hostility to the Union,
including a coercive speech by Beatty only a week before
Stewart's interrogations-a circumstance in which the
Board has refused to extend the umbrella of the privilege.91
Further, the participation of the employees was not
secured on a voluntary basis. They were called from their
jobs by foremen, and were taken to the "Board room," at
or near the very seat of power in the Company, despite the
availability of alternative locations 92 This was their first
visit to this room. There, in the presence of the manager of
industrial relations, they were "requested" by a company
attorney to answer some questions. The attorney said that
he would "appreciate" it if they would cooperate. In
several instances he said that he had a "right" to answers
from the employees-a right "by law" in one instance. To
Co., supra, fn. 82.
89 146 NLRB 770 (1964), enforcement denied on other grounds 344 F.2d
617 (C.A. 8, 1965).
9° Ibid., 146 NLRB 774-776.
91 Standard Fittings Company, 173 NLRB 42, 46 (1968).
92 1 am not persuaded that this room was the only one available, despite
Stewart's testimony that he and Hopper considered others unsuitable. It is
obvious that the Company had other places where it conducted private
interviews with employees , and there is record evidence of that fact herein.
TAMPER, INC.
argue, as does Respondent, that the employees' affirmative
replies to the lawyer's "requests" indicate voluntary action
on their part, ignores the coercive atmosphere inherent in
these circumstances. What rank-and-file employee would
have had the temerity to refuse such a "lawful" demand by
his employer's attorney, flanked by a top-level supervisor?
Stewart's argument that the presence of Hopper made the
interviews less formal; i.e., less coercive, is incongruous.93
In the midst of one interview, when the employee asked
whether he was required to answer Stewart's questions, the
latter's reply was properly in the negative, but he added
that he would, nonetheless, "appreciate it" if the employee
did answer the questions, and the employee was not given
permission to leave. This was in effect a veiled insistence
on answers. Stewart was required to give each employee a
forthright assurance that the latter need not cooperate.94
This Stewart did not do.
It is also clear that, with two possible exceptions, the
employees were not assured that no reprisals would be
taken against them, an omission invalidating the privi-
lege.95
As indicated above, Stewart asked several employees
whether they had submitted statements to the Board.
Although there is some authority suggesting that such a
question, without asking the contents of the statement, is
permissible by an attorney when preparing for trial, this
reasoning is vitiated herein by the fact that Stewart also
went through ,the complaint allegations asking whether the
employees had knowledge of them. I see no meaningful
distinction between interrogation concerning the contents
of a statement submitted to the Board, and interrogation
concerning employee knowledge of complaint, allegations,
coupled with an inquiry as to whether a statement was
submitted. It is obvious that they are one and the same,
and that this kind of inquiry is not covered by the
privilege.96 As the Court of Appeals for the Sixth Circuit
has stated:
There is merit in the contention that an employer
should be privileged to interview employees for the
purpose of discovering facts within the limits of the
issues raised by the complaint, where the employer or
its counsel does so for the purpose of preparing its case
for trial and the questioning is restricted to that extent.
We think that this privilege is, well recognized (authori-
ties cited). But, as pointed out in those cases, the
privilege is a narrow one. The interrogation is limited to
the purpose of preparing for case for trial . . . . The
cases recognize that the rule calls for a delicate balance
between the legitimate interest of the employer in
preparing its case for trial, and the interest of the
employee in being free from unwarranted interroga-
tion.
In the present case, the company had been served with
a copy of the complaint and knew the issues it had to
93 See Automotive Warehouse Distributors, Inc, 171 NLRB 683 (1968).
94 Heck's Inc., 172 NLRB 2231 (1968).
9s Automotive Warehouse Distributors, Inc., supra
96 Surprenant Manufacturing Co v NLRB, 341 F.2d 756 (C.A. 6,
1965), enfg. as modified 144 NLRB 507 (1963), Johnnie's Poultry Co., supra,
fn 89.
937
meet. In our opinion, the questions seeking to elicit all
information given by the employee to an agent of the
Board were indiscriminate inquiry which exceeded the
necessities of the situation, and constituted a violation
of Section 8(a)(1) of the Act (authorities cited) 97
A similar conclusion is warranted herein. Therefore,
because Stewart's inquiries did not preserve the confiden-
tiality of statements submitted by employees to the Board,
and because his interviews were conducted in a context of
union animus without observing all of the safeguards
established by the Board and the courts,98 I conclude that
Respondent, by Stewart's interviews of employees on
October 9 and 10, thereby violated Section 8(a)(1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth above
in section III, above, occurring in connection with the
operations of Respondent set forth above 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
commerce and the free flow thereof.
V. THE REPRESENTATION PROCEEDING
The evidence supports Petitioner's Objections 1, 8, 9, and
10 to the extent that it alleges that Berry was discharged
because of his union activities. The evidence does not
support Objection 12 in the precise language in which it is
phrased-that the Employer promised a new reclassifica-
tion system which would mean more money to the
employees if Petitioner lost the election. Rather, in what
amounts to the same thing, the Employer threatened to
withhold wage reviews'due under an existing reclassifica-
tion program, thus threatening to stifle any pay raises.
Objection 14, not mentioned heretofore, asserts that, by the
Employer's conduct alleged in the prior objections, the
Employer made a fair election impossible, and interfered
with its employees' rights protected under the Act. It is
clear that, to the extent that the evidence supports the
objections listed above, Objection 14 is also meritorious.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. A broad
cease-and-desist order appears warranted, in view of
Respondent's discriminatory conduct and other viola-
tions.99
As it has been found that Respondent unlawfully
suspended Clarence Berry on May 8, 1972, with loss of
pay, and unlawfully discharged him on July 5, 1972, I shall
97 Ibid, Surprenant Manufacturing Co v. N.LRB., 341 F 2d at 762-763
98 N.L KB. v. Neuhoff Brothers Packers, Inc, 375 F 2d 372, (C.A. 5,
1967), enfg. 151 NLRB 916 (1965 ); Standard Fittings Company, supra fn. 91;
Automotive Warehouse Distributors, Inc., supra, fn. 93.
99 N.LR B v Express Publishing Company, 312 US. 426; N.L R.B. v.
Entwistle Mfg. Co, 120 F.2d 532 (C.A. 4).
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that Respondent offer him immediate and full
reinstatement to his former or a substantially equivalent
position, and make him whole for any loss of earnings
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he
would normally have earned, absent the discrimination,
less net earnings during such period, with backpay
computed on a quarterly basis in the manner established in
F. W. Woolworth Company, 90 NLRB 289, and interest at 6
percent per annum as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716. I shall further recommend that
Respondent preserve and make available to the Board,
upon request, all payroll records, social security payment
records, time cards, personnel record and reports, and all
other records necessary and useful to determine the
amount of backpay due and the right of reinstatement
under the terms of these recommendations.
The Representation Proceeding
It having been found that the Employer interfered with
the results of the election on October 10, 1972, in Case
11-RC-3539, I shall recommend that the election be set
aside, and that the representation proceeding be severed
and returned to the Regional Director for appropriate
action.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating its employees concerning
their union sympathies, by conveying an impression to
them that it was engaged in surveillance of their union
activities, by threatening to withhold individual wage
reviews and general wage adjustments, which were the
prerequisite to wage increases, pending termination of a
union campaign then in progress, by threatening to reduce
or eliminate existing employee benefits in the event of any
bargaining with the Union, and by interrogating employees
concerning their statements given to the Board and on
other matters, without providing them with necessary
safeguards, Respondent thereby interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act, thus engaging in an
unfair labor practice within the meaning of Section 8(a)(l)
of the Act.
4. By reprimanding Clarence Berry on May 8 and 9
and June 6, 1972, and by suspending him with loss of pay
on May 8, 1972, all because of his Union activities, by
assigning new duties to him on about May 15, 1972, in
order to prevent him from influencing employees in favor
of the Union and in order to create a pretext for his
discharge, and by discharging him on July 5, 1972, because
of his union activities, Respondent thereby engaged in
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not engaged in any unfair labor
practice other than those described above.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER'
Respondent, Tamper, Inc., its agents , officers, successors
and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union affiliations or sympathies, conveying an
impression to its employees that it is engaged in surveil-
lance of their union activities , threatening to withhold
individual wage reviews, general wage adjustments, or
wage increases warranted by such reviews or adjustments,
pending completion of a union campaign, threatening to
reduce or eliminate existing employee benefits in the event
of bargaining with the General Drivers, Warehousemen
and Helpers, Teamsters Local 509, or any other labor
organization , or interrogating its employees, concerning
information given by them to the National Labor Rela-
tions Board or concerning any other information, in a
manner interfering with their rights guaranteed in Section 7
of the National Labor Relations Act.
(b) Discouraging membership in the aforesaid labor
organization, or any other labor organization, by repri-
manding, suspending, reassigning, or discharging its
employees because of their union activities, or by otherwise
discriminating against them in regard to their hire or
tenure of employment or any term or condition of their
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act, except as permitted by
Section 8(aX3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Clarence Berry 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 earnings suffered by reason of the
discrimination practiced against him, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Post at its Columbia, South Carolina, plant, copies of
the attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent, shall be
posted immediately upon receipt thereof, in conspicuous
places, including all places where notices to employees are
2 In the event the Board's Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
TAMPER, INC.
customarily posted, and shall be maintained for a period of
60 consecutive days thereafter. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify Clarence Berry immediately if he is presently
serving in the Armed Forces of the United States of his
right to reinstatement upon application, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after his
discharge from the Armed Forces.
(d) Preserve and make available to the Board or its
agents, upon request, all payroll and other records, as set
forth in the section of this Decision entitled "The
Remedy."
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
The election on October 10, 1972, in Case 11-RC-3539,
is hereby set aside, and that case is remanded to the
Regional Director for appropriate action.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal- law by interrogating our
employees concerning their union sympathies and affilia-
tions, and by interrogating them on other matters in a
manner interfering with their protected rights, by convey-
ing to them the impression that we were engaging in
surveillance of their union activities, by threatening to
withhold individual wage reviews and general wage
adjustments pending completion of a union campaign, by
939
threatening to reduce employee benefits in event of
negotiation with the Union , and by reprimanding, sus-
pending, reassigning, and discharging Clarence Berry
because of his union activities.
WE WILL NOT unlawfully interfere with your union
activities.
WE WILL NOT reprimand, suspend, reassign, dis-
charge, or otherwise discriminate against any of our
employees for supporting General Drivers, Warehouse-
men and Helpers , Teamsters Local Union 509, affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL offer Clarence Berry reinstatement to his
former or a substantially equivalent position , and make
him whole for any losses suffered by reason of the
discrimination practiced against him , by paying. him
backpay with interest at 6 percent per annum.
TAMPER, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individuals
if presently serving in the Armed Forces of the United
States of the right to full reinstatement upon application
after discharge from the Armed Forces in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1624
Wachovia Building, Winston-Salem, North Carolina
27101, Telephone 919-723-9211.