Murray Ohio Manufacturing Co.

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Murray Ohio Manufacturing Company and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO. Cases Nos. 26-CA-883 and 26-CA-884. July 20, 1960 DECISION AND ORDER On March 22, 1960, Trial Examiner John P. von Rohr issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed with respect to such alle- gations. Thereafter, the Respondent and the Charging Union filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner except as modified herein. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) by the statement of Plant Engineer Flanni- gan to employee O'Rear regarding the wearing of a union button by O'Rear and his subsequent remark in which he offered to negotiate with O'Rear.' We do not agree, however, with the Trial Examiner's findings that the respondent likewise violated Section 8(a) (1) by Foreman Hardison's statements to employees Nutt and Land and by Foreman Heller's questioning of employee Woodall. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Murray Ohio Manu- facturing Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Promising economic benefits in order to influence employees in their choice of a labor organization. 1 See Untion Furniture Company, Inc., 118 NLRB 1148, 1155. 128 NLRB No. 14. MURRAY OHIO MANUFACTURING COMPANY 185 (b) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employ- ment, or any term or condition of employment. (c) In any like or related manner interferring with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) -Make George II. O'Rear whole for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, in the manner set forth in that section of the Intermedi- ate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Lawrenceburg, Tennessee, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Respondent shall take reason- able steps to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order-" 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership in International Union, United Automobile, Aircraft and Agricultural Implement Work- ers of America, AFL-CIO, or any labor organization, by dis- criminating in respect to the hire, tenure, or other conditions of employment of any employee. WE WILL NOT promise economic benefits in order to influence employees in their choice of a labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make George H. O'Rear whole for any loss of pay suffered as a result of the discrimination against him. MU RAY OFIIO MANUFACTURING COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon separate charges duly filed, the General Counsel of the National Labor Relations Board , for the Regional Director of the Tenth Region (Atlanta, Georgia), issued a consolidated complaint, dated October 28 , 1959, against Murray Ohio Manufacturing Company, herein called the Respondent or the Company, alleging that the Respondent had engaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) and ( 3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Respondent filed an answer on October 30, 1959 , in which it admitted the juris- dictional allegations of the complaint, but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Lawrenceburg, Tennessee, on January 26 and 27, 1960, before the duly designated Trial Examiner. At the start of the MURRAY OHIO MANUFACTURING COMPANY 187 hearing the General Counsel moved to amend the complaint by striking therefrom an allegation that Respondent discriminatorily assigned an employee , one James Snider, to more arduous and onerous tasks than those to which he ordinarily would have been assigned. The motion was granted without objection. At the close of the hearing, Respondent moved to dismiss the complaint . This motion, upon which ruling was reserved , is disposed of as hereinafter indicated . Briefs submitted by the Union, the General Counsel, and the Respondent have been care- fully considered. Based upon the record as a whole, and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation with its principal office and plant located at Lawrenceburg , Tennessee, where it is engaged in the manufacture and sale of velocipedes, bicycles, wheel toys, and fans . During the year 1959 , Respondent manufactured, sold, and shipped products valued in excess of $100,000 directly to customers located outside the State of Tennessee. I find that Respondent is and has been engaged in commerce within the meaning of the Act II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, hereinafter referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. HL THE ALLEGED UNFAIR LABOR PRACTICES A. Background This is the third unfair labor practice proceeding brought against this Respondent since it moved its plant from Cleveland, Ohio, to Lawrenceburg, Tennessee, in 1956 Having been the collective-bargaining representative of Respondent 's employees at the Cleveland plant, the Charging Union undertook an organizational campaign at the Lawrenceburg plant after it was moved to that location. A representative petition was filed about August 14, 1957, in Case No. 10-RC-3872. The Union subsequently lost a Board-conducted election on September 11, 1957. Thereafter, in a consolidated proceeding which involved objections to the election and certain unfair labor practice charges also filed by the Union against the Respondent in Case No. 10-CA-3040, the Board issued a Decision, Order, and Direction of Election, reported at 122 NLRB 1306, in which it found merit to the objections and ordered that the election be set aside and that a new election be held. The Board also found that the Respondent had committed certain independent violations of Section 8 (a)( 1 ), but dismissed an allegation that an employee had been discharged in violation of Section 8(a) (3). In a subsequent proceeding, based upon new unfair labor practice charges in- volving the same parties , Trial Examiner Lee J. Best issued an Intermediate Report and Recommended Order in Case No. 10-CA-3481, et al., on November 19, 1959. The latter case is pending before the Board for decision as of this writing. B. The second organizational campaign ; evidence relating to allegations of interference, restraint, and coercion In consequence of the Board's direction of a second election, the Union under- took a second organizational drive among Respondent's employees beginning in early August 1959. Following the distribution of handbills, the first union meeting attended by employees was held on August 8, 1959. At this meeting 39 employees signed a letter in the nature of a petition addressed to W. H. Hannon , vice president of the Respondent , which stated as follows: DEAR MR. HANNON : Please be advised that the following employees in your plant have volunteered to serve on the organizing committee for the International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO. Name of employee Clock Number [Signatures affixed] Letters of identical content dated August 11 , 12, 15, 18, 22, and 29, 1959, bearing the signatures of additional employees who signed on the dates indicated, were 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequently sent to the Respondent . The Respondent concededly received each of the above letters, including the letter of August 8, there being a total of 88 employees who signed as having volunteered to serve on the Union 's organizing committee.' At the meeting of August 8, and on occasions which followed, buttons the size of a half dollar bearing the insignia "Vote UAW-CIO" and tee shirts with the inscription "Vote UAW" were distributed among the members of the organizing committee . There is no dispute but that these items were worn by employees at the plant. In response to the letters identifying the members of the organizing committee, Respondent sent the following notice, dated August 17, to each of the members of the committee: It has come to my attention through a communication from them , that the United Automobile Workers' Union has again started to campaign in an effort to create disturbances at our plant here at Lawrenceburg . They have written me a letter in which they claim some special status for you as an "organizing committee." You have a right to belong to this committee if you want to, but there must be no misunderstanding of the fact that your working for the Union part-time or being a committee member does not give you the right to let your Union activities interfere with your employment at Murray Ohio or with the employ- ment or work of others at our plant. You are subject to the same rules as all other employees. If you do not do your job properly or if you do not obey Company rules , or if you neglect your work or interfere with the work of others , you are subject to discipline, including discharge, just as is anyone else. Your attention specially is directed toward the Company policy that anyone who creates a disturbance in the plant or threatens anyone in our employ is subject to immediate discharge. No employee is allowed to carry on union organizing activities in the plant during working hours Anybody who does so and thereby neglects his own work or interferes with the work of others will be subject to discharge. MURRAY OHIO MANUFACTURING COMPANY, By ------------------------------------- BILL HANNON Executive Vice President. On or about August 19, 1959, the Respondent posted a notice on its employee bulletin board which, in substance, expressed Respondent 's general opposition to the Union .2 We turn now to the acts and conduct alleged to be violative of Section 8(a)(1). Thomas Lemay, a member of the organizing committee , worked on several different jobs during his employ with the Company . He voluntarily quit working for the Company about September 1, 1959. After becoming a committeeman , and before he quit, Lemay at times wore a union button or a union tee shirt at the plant. Lemay testified that about 3 weeks before he quit his job, his "foreman ," George Morrison, approached him while he was working on the assembly line and asked him if he would exchange his union button for a foreman 's job. At this point counsel for the General Counsel completed his direct examination of Lemay and counsel for the Charging Party proceeded to question the witness further. Under his questioning, Lemay testified that a day or two before the above incident Morrison sent him to the office. Present were Clarence Junke and Johnny Slankus, whom Respondent stipulated were Lemay's foreman and superintendent , respectively. Lemay testified that when he arrived in the office "they started out talking about the Union running them out up north before they came down here and said that if they come in down here , they would have to do the same thing , move out." The remainder of the conversation , according to Lemay, concerned "getting on to him" about his work. It is noted here that on cross-examination Lemay inconsistently testified that he was sent to the office on the same day and a few minutes after his conversation with Morrison concerning the union button. Lemay gave a poor impression as a witness and I am constrained to find his testimony unreliable. Ac- cordingly, I do not credit the antiunion remarks which he attributed to Junke and Slankus. 1 Approximately 1,700-1,800 maintenance and production employees were employed at the plant in August and September 1959 2It is clear that the notice, which is appended hereto as Appendix B, did not exceed the permissible bounds of free speech as contemplated by Section 8(c) ; no allegation to the contrary is made by the General Counsel MURRAY OHIO MANUFACTURING COMPANY 189 Respondent contends, contrary to the allegation of the General Counsel, that George Morrison is not a supervisor within the meaning of the Act and in support of its contention called Morrison as a witness. Morrison testified that he is classified as a leadman in one of Respondent's two final assembly lines in his department and that his job was to "keep the line going." Approximately 19 to 26 employees work on each line. There is a leadman for each line and each answers to Foreman Slankus [sic]. Morrison credibly testified that he has no authority to hire or fire or to recommend any such action. Further, he cannot grant minor favors to employees such as time off. He is hourly paid and in August he received $1.80 per hour as compared to $1.64 for the production workers. (He presently earns $1.90 as compared to $1.83 for the others). In view of the foregoing, and of other testi- mony in the record which need not burden this report, I find that Morrison was not a supervisor within the meaning of the Act during the period in question. Virgil E. Nutt, a member of the organizing committee who signed the letter of August 8 and an inspector whose alleged discriminatory discharge is discussed below, credibly and without contradiction testified that on August 17, his foreman, Jesse Hardison, approached him during a work break and asked him why he was wearing a union button and at the same time asked what was his biggest complaint When Nutt replied that he had no complaint Hardison told him he must have a complaint or else he wouldn't be wearing a union button. Hardison also told him, according to Nutt, that "if the Union did come in we will all be out of a job because the Company . couldn't compete against the United Automobile Workers Union, that they would go broke and we all would be out of a job." Another employee, Jackie Land, an inspector on the second shift and a member of the organizing committee, testified concerning a conversation he had with Foreman Hardison on August 13, 1959. According to Land, Hardison on that occasion came up to him and said, "You certainly did surprise me." When Land did not respond to this comment, Hardison spoke for a minute or two and then before leaving re- marked, "I wish you would pull it off." Charles Woodall, an employee of the Respondent for 31/z years and a member of the organizing committee, was called by the General Counsel to testify about a conversation he had with Louis Heller, foreman of department 62. Woodall credibly testified that on an occasion after he began wearing a union button at the plant Heller approached him and asked him why he was wearing the button. Woodall answered that he had a good reason. A day or two later, according to Woodall, Heller approached him again and observed that he was not wearing his union button. This time Heller asked him what he had done with his button," . thrown it in the garbage?" Heller denied having these conversations and also testified that Woodall at this time had been transferred to another department and was no longer under his supervision. Heller conceded, however, that he daily had occasion to enter the department in which Woodall worked and that at times he would walk past him. From my observation of the witnesses, I do not credit Heller's denial of these conversations and Woodall's testimony concerning them is accepted in its entirety. Finally, we turn to the testimony of George H O'Rear 3 concerning a conversation he had with A. J. Flannigan, plant engineer of maintenance and industrial engineer- ing O'Rear, a maintenance mechanic and a member of the organizing committee, testified that but with one exception he was the only maintenance employee on his shift who wore a union button at the plant. O'Rear testified that sometime after he started wearing the union button Flannigan came up to him, looked at the button, and said, "I wouldn't have thought it." O'Rear countered by saying, "I wouldn't have thought I would have been here six months without a raise." Thereupon Flannigan stated, "Maybe we can do some negotiating now. What was it you were wanting, $2 an hour?" When O'Rear replied, "No," but that he wanted decent wages for every man in the plant, Flannigan stated that perhaps the Company could do something about it. During the conversation, which as indicated was prompted by Flannigan, O'Rear mentioned that he had belonged to the Union before. Flannigan replied that he had belonged to a union also, but he didn't think much of "this one " All of the foregoing testimony of O'Rear is undenied and is credited. C. Conclusions as to interference, restraint, and coercion Considering the size of the plant and the large number of employees involved, it cannot be said that during the second organizational campaign the Respondent embarked on a course of widespread activity designed to interfere with the rights 3 The allegation that O'Rear was discrnnmatorily denied a 5-cent hourly wage increase is discussed hereinafter. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees guaranteed in Section 7. Nevertheless, I deem it important that the Board, in only the recent past, issued an order directing the Respondent to cease and desist from certain acts and conduct which it found to be violative of Section 8(a) (1) in Murray Ohio Manufacturing Co., supra. In view of this background, and also because of the further unfair labor practice found hereinafter , I cannot regard the incidents here under consideration as being isolated . From the evidence de- scribed in the foregoing section, I find that Respondent engaged in conduct which tended to interfere with, coerce, and restrain its employees in the exercise of rights guaranteed them in the Act by: 1. Hardison's statement to Nutt after having questioned him about his union button that if the Union came in the Company would go broke and the employees would all be out of a job? 2. Hardison's statement to Land, upon observing Land wearing a union button, that Land surprised him and that he wished Land would pull the button off. 3. Heller's interrogation of Woodall as to why he was wearing a union button and his subsequent question as to what he had done with it," . . . thrown it in the garbage?" 4. Flannigan's statement to O'Rear, upon observing O 'Rear's union button, "I wouldn't have thought it" and his subsequent statement , in the context of his remark concerning the union button , "Maybe we can do some negotiating now." I base no finding of an 8 (a)(1) violation upon the testimony of Thomas Lemay. Having found George Morrison to be a nonsupervisory employee, no violation can be based upon any statement that Morrison may have made to Lemay. With respect to Lemay's testimony concerning a conversation he had with Junke and Slankus, I have discredited said testimony . Moreover, it should be pointed out that there is no allegation in the complaint (nor was the complaint amended at the hearing) charging Respondent of any illegal conduct through its supervisors , Junke and Slankus. D. The alleged discriminatory discharge of Virgil Nutt Virgil Nutt was first hired by the Respondent on October 7, 1958, as an inspector on the production line and he remained in this position until about December 4, 1958, at which time he was laid off.5 He was recalled on May 4, 1959, and at this time was assigned a job as an inspector on the paint line. He retained this job until his final discharge which occurred on October 9, 1959.6 Nutt received one automatic pay increase during the period of his first employ- ment and he received another in June after his recall . On July 7 Foreman Jesse Hardison gave Nutt a 5-cent increase which was not automatic, but was in the nature of a merit increase . Hardison credibly testified that he gave Nutt the latter increase in the hope that Nutt would thereby be encouraged to improve his work and become a good inspector.? In 1959 Nutt worked on the second shift under the supervision of Jesse Hardison, his hours being from 3:30 p .m. to 12 a.m. As indicated by his job title, Nutt's basic function was to inspect various bicycle components as they came to him from the paint shop. These components, which included bicycle tanks , frames, and luggage carriers, were attached to racks on a conveyor belt and the belt carried the items past his work station It was Nutt's duty to check the parts for variances in color or for other paint defects such as runs, scratches , spots, and the like. In the case of defective tanks or frames , it was Nutt's job to attach a piece of tape to the defec- tive items . The conveyor belt continued on to the next station a short distance away where three or four production workers would unload the parts from the belt, separating the good parts from those marked bad . The rejects would be sent back to the paint department .8 The procedure with respect to luggage carriers was dif- 4 In the context of Iardison 's interrogation of Nutt. I do not regard Hardison',,; state- ment with reference to the Company 's going broke if the Union came in as a mere predic- tion of what might occur and hence not coercive 6 Nutt testified that he first worked for the Company from about September 16, 1958, until November 6, 1959 I regard the company records ( Company Exhibit No 3), from which the above dates are taken as being more accurate 'Unless otherwise indicated . all dates hereinafter are in 1959 7 About the time of his layoff , Nutt received an individual merit rating which rated him as "average" on all rated items Murray II Marston , his foreman at that time, noted on the rating sheet : "This employee only been here approximately 60 days. Not long enough to tell if he will make a good inspector." 8 The components which passed inspection were finished products However, some were sent to another department for decorative trim. MURRAY OHIO MANUFACTURING COMPANY 191 ferent. Rather than tag the defective carriers and allow them to pass on to the production workers, it was Nutt's job to remove the defective carriers from the conveyor line and place them in reject racks located in his immediate work area. It will be recalled that Nutt was one of the 88 union organizers at the plant and that Respondent was so apprised by the Union's letter of August 8. Beginning on August 9 Nutt wore either a union button or a union tee shirt at the plant, a practice which he continued about 90 percent of the time thereafter. As has also been related, Nutt's foreman, Hardison, in a conversation which occurred on August 17, asked Nutt why he was wearing a union button and at the same time stated that if the Union came in they would all be out of a job because the Company could not compete against the Union and would go broke. The evidence reveals that Nutt had been working overtime each night for approx- imately the last 8 or 10 weeks prior to the time of his wearing a union button. Not long after he started to wear his button, Nutt's overtime was divided with Howard Marston, another inspector, and thereafter Nutt worked overtime only every other night. The General Counsel does not allege that this action was taken for a dis- criminatory reason, but cites it as one of the "strange things" which happened to Nutt after he began to wear a union button. Joseph Remick, assistant chief to quality control in inspection , credibly testified that in the first week of August a number of employees complained to him about not getting as much overtime as men with less seniority and that due to these complaints he issued an order that all over- time be divided among the employees under his supervision. Hardison worked under Remick and corroborated the latter's testimony to the extent that Remick advised him about the men's complaints and instructed him to divide overtime among the employees whom he supervised. The evidence is unrefuted that Hardison divided the overtime not only between Nutt and Marston, but also among other qualified employees. In view of the foregoing, I find that the splitting up of Nutt's overtime was not caused by or related to his union activities. Nutt testified that in August, shortly after the advent of the organizing committee, Hardison began to spend a substantial part of his time checking his (Nutt's) work. According to Nutt, this activity on Hardison's behalf ceased sometime after he received a second incident report. Then, as Nutt put it, "he quit checking my line-except he come by and asked me how things were running and what was the trouble and what seemed to be the matter. In other words, he left the impression he was trying to help me then." At this point, it is appropriate to set forth here Nutt's testimony (on cross-examination) with respect to Hardison's checking his work. Q. Mr. Hardison was your foreman, wasn't he? A. Yes, sir. Q. And it was his job to inspect your work, is that correct? A. Yes, sir. Q. And he did inspect your work, didn't he? A. After I started wearing my union button, yes, sir. Q. Are you testifying now that he didn't check your work at all before you started wearing a union button? A. He didn't check it without asking me about it. Q. Without you asking about it? A. No. Whether or not Hardison actually did check Nutt's work more closely following the appearance of the Union at the plant, Nutt's testimony can be regarded at best as only a gross exaggeration of whatever actually occurred in that regard. The evidence clearly reveals, and I find, that one of the chief duties of the foreman in the inspection department was to check the work of the employees under their supervision. Nutt's claim that Hardison checked his work only when he (Nutt) requested him to do so is not credited. Respondent asserts that Nutt was discharged on October 8. 1959, "after repeated warnings for failure to properly perform his job; failure to obey instructions in the performance of his job, and a final incident of both gross negligence and failure to follow instructions and perform his job in a manner in which it was supposed to be done." We turn now to a consideration of Nutt's work record. The evidence establishes that Nutt received three "incident reports" prior to the time of his discharge. Incident reports are in the nature of warnings and are signed by a superintendent and the personnel director. Although these reports are not physically shown to the employees, the employees are notified when one is filed and they are told of the basis therefor. The foreman or supervisor who advises the employee also signs the incident report and notes on it any remarks the employee may have made upon being so advised. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The gist of the General Counsel's theory concerning Nutt's discharge appears to be that once Respondent, particularly by Hardison, discovered that Nutt was an active union adherent, it deliberately set about to build up an unsatisfactory work record against Nutt so that ultimately it could find an excuse to discharge him. Before his union activities, the General Counsel asserts, Nutt had a satisfactory work record. Contrary to the contention of the General Counsel, the evidence establishes that Nutt received his first incident report on July 17, 1959, which was about 3 weeks prior to his having engaged in any union activity. Indeed, the fact that Respondent found fault with Nutt at this time tends to substantiate its entire defense to Nutt's case. Concerning this incident report, Hardison testified that on July 16, as he was making his rounds of inspection, he discovered that Nutt had put his OK tag on an entire rack of bicycle tanks, 40 of which he found to be defective because of lightness in the paint spray. He reported the matter to his superior, Joseph Remick (assistant chief to quality control in inspection), whereupon Remick instructed him to issue a reprimand to Nutt. Hardison then made out and signed an incident report, which Remick later also signed, and advised Nutt of the action taken .9 The General Counsel urges that the July 17 incident report be discredited com- pletely as an outright fabrication. I find no basis whatsoever for upholding this contention. On the contrary, the corroborated testimony of Hardison and Remick is fully credited concerning this incident report. Significantly, Nutt testified on cross-examination that he did not recall the July 16 incident, but acknowledged that he had been criticized by Hardison in July for passing some bad fenders iU The July 17 incident report, concerning which both Hardison and Remick testified, was introduced in evidence as a part of Respondent's case. Nutt was not called on rebuttal. On August 17 Hardison filed a second incident report charging Nutt with "not making rejects due to his inattention on the job." Concerning this incident, I credit Hardison's testimony that he did not file this incident report until having first cautioned Nutt about permitting bad forms to pass, and that he made the report only after having observed on his second round of inspection that Nutt permitted the same situation to continue. Nutt conceded having been notified by Hardison of the second incident report." The third incident report with respect to Nutt's work was made by Remick on August 28. On this occasion Remick discovered that a rack containing a number of defective bicycle carriers had Nutt's OK tag on the entire lot. Remick there- upon made out an incident report on which he noted: Found painted carriers with Virgils ok on 2 loads. Found I1-Rejects in 1-load Found 19-rejects in I-load Rejects were light paints and runs. Virgil was told before & this is his last warning. Remick also wrote in the incident report: "That Virgil Nutt be discharged on next offense." Hardison testified that when he notified Nutt about this incident report, and the reason therefore, Nutt replied, "I don't see how I missed them. I went over them twice." Nutt conceded that he was notified about this incident report and that Hardison told him that he could be fired if it happened again. In fact, Nutt conceded on direct examination that he had passed as satisfactory the defective items which were the subject of this reprimand. He offered no further 9 Remick credibly testified that in June, prior to the above incident, Joe Stanford (an inspector in the trim department) and Murray Marston (a foreman in the inspection department) each had occasion to come to him and complain about Nutt's work Although the incident occurred on July 16, the report was made out on July 17. 10 On direct examination Nutt testified about an incident involving bad fenders and frames concerning which he was warned by Hardison, but lie did not identify the time this occurred Presumably this is the incident which he acknowledged being warned about in July It is appropriate here to note that Nutt was a voluble witness and that much of his testimony relating to his work was rambling, disjointed, and confusing Consequently, I find certain aspects of his testimony, as noted herein, to be unreliable "Apparently in reference to this incident report, Nutt testified that around August 19 Hardison checked his line to see if anything was missing, and that 'if he would find one [bad touch mark on a frame] he would come and jump on me about it and correct me about it but he found 2 out of that 15 on frames and he never did find a fork " MURRAY OHIO MANUFACTURING COMPANY 193 explanation except to state that the carriers were "tuning bad" that night and that "they are the hardest thing to inspect and the hardest thing to paint, in my opinion." We turn now to the final incident which Respondent asserts was the basis for Nutt's discharge . The facts concerning this incident, which occurred on the night of October 6, are largely not in dispute . On this evening, at approximately 11:30 or 11:40, an order or a "run" of bicycle luggage carriers was on the line and came to Nutt for inspection . It is undisputed that this was a bad run in the sense that an above normal number of carriers had bumped or touched each other as they were carried along the conveyor line from the paint shop. The result was that the paint on these carriers had "touch" or "bump" marks on them which made them defective . The carriers on the conveyor were attached to bars at the rate of 16 to a bar. Nutt testified that there were 51 bars on this run (or a total of about 816 luggage carriers ) and that he removed approximately 3 from each bar. In any event , Nutt testified that he removed approximately 163 to 165 bad carriers out of a total run of 825 . As noted hereinafter, witnesses for the Respondent testified that Nutt removed only 60 defective luggage carriers . What is important to note here, however (and this is undisputed), is the fact Nutt did not remove all the defective carriers which came past him on this run. Instead , except for those which he removed, Nutt tagged the entire run "hold for inspection ." The result was that all these carriers , the good mixed with the bad, were removed from the conveyor line and placed in four or five racks in the production area below him. Nutt testified that the run of luggage carriers was completed "shortly" before the buzzer rang at 11:50 p in . It was Respondent 's custom to give the employees a 10- minute break period at 11:50 so they could wash up before punching out at the end of the shift. However, they were not permitted to punch out until 12. On this evening Howard Marston (the other inspector ) was scheduled to work over- time and was due to relieve Nutt at 11: 50. Nutt testified that Marston did not arrive until 11:55. He testified also that before he left he told Marston to be sure and tell Hardison about the luggage carriers that were marked "hold for inspection" because Hardison "needed to know about them." Nutt thereupon vent to the restroom , washed up, and punched out. As we shall see, Hardison approached him as he was about to leave the plant. Hardison testified that on this evening about 11:55 he walked toward the clock, and, when passing the paint line, noticed that four or five racks of material were tagged "hold for inspection." Hardison testified that since Marston was scheduled to relieve Nutt , and because Nutt had not reported to him about the material marked "hold for inspection ," he immediately went to the clock to look for Nutt. The evidence is clear , from the testimony of both Hardison and Nutt, that Hardison caught up with Nutt just after Nutt had clocked out and was standing in the door- way Hardison asked Nutt why the carriers were marked "hold" and Nutt told him what had occurred . 12 Hardison then left Nutt and returned to the area where the racks were stationed and looked through them . He testified also that upon his return to this area he asked Marston, "Did you see all this," whereupon Marston replied , "Yes, Virgil Nutt told me to tell you about it when you come." Hardison, whose shift also ended at 12, thereupon wrote the following note which he left for Remick: COP Y 10/6/59 JOE: Nutt didn't inspect the luggage carriers as he should have tonight he only pulled off 1/2 racks of rejects on the complete run and tagged the rest of them hold. He never reported to me they were running bad and I had to catch him- after he clocked out and asked him why he didn't check them. I wish you would call me at home and talk to me about it. If he can't do his job he isn't any good to us. The least he could have done was made a report to me before he clocked out. [S] JESSE. I left them so you could see the mess he left and some are good and some are bad. When Remick found the note the next morning, he, together with Murray Marston and Gene Diaddario,13 proceeded to inspect the racks which Nutt had left marked 12 Fardison testified that Nutt told him only that "a little of everything" was wrong with the material. Nutt testified that he explained the situation more fully and that Hardison accused him of not inspecting the carriers. i'' Murray Marston. not to be confused with Howard Marston, was inspector foreman on the day shift Diaddario was paint shop foreman on the (lay shift. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "hold for inspection" on the night before. The evidence indicates that a total of approximately 825 carriers went through the line on the preceding evening's run. Of these, a total of approximately 160 were found to be defective. Although Nutt testified that he had removed 163 or 165 defective carriers, the corroborated and credited testimony of Remick, Murray Marston, and Diaddario show that they found only 60 defective carriers which Nutt had removed and placed in a separate rack. The remaining 100 defective carriers were mixed with the good in the racks which Nutt had marked "hold for inspection." After he had made his investigation of the above matter, Remick telephoned Hardison at home and told Hardison not to let Nutt work that evening and that Nutt should be discharged. When Nutt reported to work that evening he was advised by Hardison that it had been recommended he be discharged. He did not work that night and he received his termination slip when he reported the next morning. E. Conclusions concerning Virgil Nutt's discharge Upon consideration of all the evidence, I am convinced, and I find, that Nutt did not perform his job properly on the night of October 6 and that Respondent therefore had cause to terminate Nutt's employment. Respondent asserts that on the evening in question Nutt failed to perform his duties in two respects: (1) he failed to remove all the defective carriers from the conveyor line, and (2) he violated a company rule by not reporting to his foreman that the carriers were running unusually bad. As to his failure to remove all the carriers, I am unable to conclude with certainty from the evidence presented that it would have been physically possible for Nutt to have removed all of the 160 defective carriers as they passed him on the conveyor line.14 However, I have found the evidence to establish that Nutt removed only 60 carriers from the line, not 163 or 165 as he testified. Regardless of whether or not Nutt could have removed all of the defective carriers, I am satisfied that his performance in this regard was not up to the standard which the job required.15 With respect to the second aspect of Nutt's work on this occasion, it is undis- puted that the Company had a rule which required the inspectors to notify their foreman immediately upon discovery of a bad run and that the inspectors, including Nutt, were aware of this rule. Nutt testified that on the evening of October 6 he was unable to notify Hardison about the bad run because Hardison was not in sight and he was unable to leave his work station to look for him due to that fact that the line was still running. Although there is no doubt but what the line was still running at this time, the evidence establishes 16 that the usual procedure for an inspector to follow in such a case was to notify the three production workers who were stationed only a few feet away. One of the production workers then could leave to find the foreman or, in the alternative, the inspector could leave the line and the production workers would remove the material and place it in a rack until the inspector returned. Nutt did not follow this procedure nor did he offer any explanation for his failure to do so. I find under all the circumstances that at the very least Nutt should have notified his foreman before leaving the plant. Nutt was well aware that this was the worst run he had ever experienced and he knew that it was his duty to report the matter to his foreman. Moreover, Nutt had already received three reprimands about his work-the last only 9 days before. Instead, Nutt punched out at 12 o'clock sharp without making any effort to find Hardison.17 In all the circumstances I am convinced, and I find, that Nutt failed to perform his duty and violated a company rule by not reporting the matter to his foreman. 14 Remick testified that in the normal course of events an inspector would be able to take off 160 defective carriers out of a run of 800 This opinionated testimony was not further substantiated. Is Respondent made some change in the operations of the paint inspector's job several months after Nutt was discharged, but the record does not indicate the nature or extent of the change The fact that later some change was made in the operations does not alter my conclusion that Nutt, in all the circumstances, including his failure to report the bad run to Hardison before leaving the plant, failed to properly perform his duties on this occasion 10 This finding is based on the credited testimony of Remick and Hardison Moreover, Jackie Wray, another inspector and a witness for the General Counsel, fully confirmed Remick's and Hardison's testimony in this regard 17 The last employees check out about 12 : 03. Nutt, therefore, was among the first to leave the plant. MURRAY OHIO MANUFACTURING COMPANY 195 While the violations of 8(a ) ( 1) heretofore found may be a factor to be con- sidered in determining whether or not Respondent committed a discriminatory dis- charge, they are not sufficient, in and of themselves, to compel the conclusion that Nutt was discriminatorily discharged . It was still incumbent upon the General Counsel to establish by a preponderance of the evidence that he was discharged because of his union activities.18 Not only have I found that the incident of October 9 constituted real cause for Nutt's immediate discharge, but it is an inescapable fact that Respondent began to find fault with Nutt before Nutt engaged in any union activity. In this connection, I have considered also the fact that Nutt was a young man of 19 years and that he worked for the Respondent for a total period of less than 6 months prior to his discharge. 1e Indeed, Nutt conceded various work deficiencies and that he had been warned before. The fact that Nutt was an active union adherent and that steps were taken by the Union to notify the Respondent of this fact does not immunize him from having to meet Respondent 's work requirements. On the entire record, and from my observation of the witnesses , I find that the Respondent did show by substantial evidence that the assigned basis of discharge did have a tangible basis and was not a mere pretext to conceal the real reason . Although the Respondent may have welcomed the opportunity to be rid of an active union adherent, a violation of the Act cannot be established by suspicion alone. I find that the General Counsel has not sustained his burden of proof as to the union activity of Nutt being the reason for his discharge. It is therefore concluded and found that Respondent did not, by its discharge of Nutt, engage in discrimination within the meaning of Section 8(a) (3) of the Act. F. Findings and conclusions concerning the allegation that George O'Rear was discriminatorily denied a5-cent wage increase The complaint alleges that "on or about September 25, 1959, the Respondent [discriminatorily] failed to give its employee George H. O'Rear, a raise in pay of 5 cents an hour, while giving such raise to all other welders in O'Rear's department." As heretofore noted, O'Rear was a member of the organizing committee and he was one of the only two employees in the maintenance department to wear a union button on his shift20 As has been noted, A. J. Flannigan, maintenance plant engineer, expressed his surprise when he found that O'Rear was wearing a union button and told him that "Maybe we can do some negotiating now. What was it you were wanting, $2 an hour?" During this same conversation Flannigan also told O'Rear that he did not think much of "this" Union-"this" being in reference to the UAW-CIO. O'Rear, whose job classification was a maintenance mechanic, first began working for the Respondent in July 1956. It is undisputed that O'Rear received the follow- ing merit increases during his tenure with the Company : November 19, 1956-10 cents; January 27, 1957-5 cents; May 18, 1957-5 cents ; June 24, 1957-5 cents; January 27, 1958-5 cents; January 19, 1959-5 cents; November 16, 1959-5 cents. During his entire tenure of employment with the Respondent , O'Rear was ex- clusively engaged in performing welding work . During the period here under consideration he worked with two other maintenance mechanics in the maintenance shop (this as contrasted to other maintenance mechanics who performed welding in the production areas or in other parts of the plant ). According to O'Rear's unrefuted and credited testimony , he had more seniority than the other two men who worked with him. In September 1959, the latter two employees received a merit increase of 5 cents an hour, but O'Rear did not. A few days after this increase was given , O'Rear went to see Flannigan in the latter's office for the purpose of ascertaining an explanation for his not also receiving a 5-cent increase. According to O'Rear's credited testimony, Flannigan at first stated that he could not tell him why he did not get a raise . When O 'Rear asked him for the second time, he was told by Flannigan to sit down . Flannigan then stated , "You are working against us." To this O'Rear replied , "I'm not working against you . I'm working for the good of everybody in here." O'Rear testified that Flannigan then said that "he >e Straehan Shippinq Company/, et al, 87 NLRB 431; Punch and Judd Togs Inc of California, 85 NLRB 499 ; Petroleum Carrier Corporation of Tampa. Inc , 126 NLRB. 1031 19 Respondent's emnloyment records show that Nutt was still a temporary employee at the time of his discharge p According to O'Rear 's unrefuted and credited testimony , the other employee wore a union button for only a few days. O'Rear wore a button almost daily from August until Christiuas 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would make it right if we would go along with him." O'Rear answered that he was not selling out. At this point, according to O'Rear, Flannigan remarked that they were looking around for foreman material, but that he was not a 100-percent com- pany man so they could not use him. Flannigan acknowledged that O'Rear came to see him about not receiving a raise, but gave a different version as to what ensued. According to Flannigan, O'Rear "stormed" into his office and asked why he could not get a raise like the rest of his department. Flannigan testified that he told O'Rear he did not receive a raise because he was not "putting out"; that he was "content to just stand there and do that one job and he didn't like to go out in the various departments and do repairing and welding." At this point, according to Flannigan, O'Rear got pretty hot and said, "Well, the only way you can get a raise around here is either to do some work for you on your house or work out on your house." Flannigan testified that he then told O'Rear that he felt highly insulted about this accusation, where- upon O'Rear left his office. On cross-examination O'Rear conceded that during this conversation he told Flannigan that other employees in the department had worked on Flannigan's house on company time, but he also testified that this aspect of the conversation did not occur until after Flannigan had talked to him about working against the Company. Counsel for the Respondent did not ask Flannigan whether he made the statements attributed to him by O'Rear. From my observation of the witnesses, and upon the evidence as a whole, I credit O'Rear's version of this conversation. In this connection, I regard it as significant that Flannigan did not deny having an earlier conversation with O'Rear concerning O'Rear's wearing a union button I have heretofore found that the statements made by Flannigan in that conversation were in violation of Section 8(a)(1) I find that the evidence adduced by the Respondent was insufficient to meet what I regard as a prima facie showing the General Counsel that O'Rear was discrimi- natorily denied a 5-cent wage increase. Thus, not only did O'Rear credibly testify that Flannigan told him, in substance, that he did not receive a raise because he was working against the Company,21 but Respondent offered no affirma- tive evidence to indicate the reason why the two men of lesser seniority with whom O'Rear worked did receive a raise and O'Rear did not.22 While it is true that O'Rear subsequently did receive a 5-cent raise on November 16 1959, the fact that this belated increase ultimately was given is not in itself sufficient to show that earlier discrimination had not occurred. In this regard, it is significant to note that the November increase was not given to O'Rear until after an unfair labor practice charge had been filed on his behalf. On the entire record I conclude and find that the Respondent failed and refused to give O'Rear a 5-cent waee increase in September because of his known union activities, thereby violating Section 8(a)(3) of the Act. It is also found that the discrimination occurred on the day when the two employees with whom O'Rear worked received a 5-cent hourly increase. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent set forth 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 affecting commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices viola- tive of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. a Under all the circumstances. I find that Flannigan's reference to O'Rear's "working against" the Company clearly referred to O'Rear's activities on behalf of the Union 23 Respondent offered testimony to the effect that 64 employees were classified as mainte- nance mechanics (32 of whom performed welding work) and that some but not all of them received a 5-cent wage increase in September The fact that some other employees in this classification did not receive a wage increase at this time does not alter my conclusion with respect to O'Rear. MURRAY OHIO MANUFACTURING COMPANY 197 The Respondent's unfair labor practices abridge basic rights guaranteed employees by Section 7 of the Act.23 The rights involved are closely related to others guaran- teed by Section 7. In view of the nature of the unfair labor practices found above, and as the Respondent has committed other unfair labor practices, as found by the Board in Murray Ohio Manufacturing Co., etc., 122 NLRB 1306, there is reasonable ground to believe that it will abridge such other rights in the future unless appropriately restrained. Therefore, in order to make effective the inter- dependent guarantees of Section 7, I shall recommend an order which will in effect require the Respondent to refrain in the future from abridging any of the rights guaranteed employees by Section 7.24 Having found that the Respondent discriminatorily denied a wage increase to George H. O'Rear in violation of section 8(a) (1) and (3) of the Act, I shall recom- mend that Respondent make him whole for any wage loss incurred as a result of the discrimination against him, in accordance with the Board's usual remedial policies. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4. By discriminating in regard to the terms and conditions of employment of George H. O'Rear, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act by its discharge of Virgil Nutt. [Recommendations omitted from publication.] '3N L R B v. Entwistle Mfg Co, 120 F . 2d 532 (CA 4). -t May Dept, tment Stores d/b/a Famnous-Barr Company v N L R B , 326 U S 376 APPENDIX B To: ALL EMPLOYEES. Subject: GENERAL ANNOUNCEMENT. August 19,1959 A number of you have come to your foreman and to me wanting to know something of the Company's position in the light of the United Automobile Work- ers Union's new attempt to start an organizing campaign here at Lawrenceburg Since we all know that the United Automobile Workers Union is very anxious to take over your rights, including the right to be able to collect something over $15,000 each month out of your pay as Union dues, and having seen them in their campaign here before, I am sure that they will spend a lot of time and circulate a great deal of propaganda to try to see some of you on signing their cards, turning your rights aver to them, and agreeing to pay part of your money to them as Union dues. Because many of you have come to work with Murray Ohio since the last cam- paign the United Automobile Workers Union put on in Lawrenceburg, I believe it is desirable to make a few things clear to you as to my position, the Company's position, and the rules and policies of your plant. This is done so that you will not be misled or fooled by propaganda or sales talk. I particularly want to call your attention to the following six points: (1) We believe that you are and always will be better off without the United Automobile Workers Union at Murray Ohio. - 577684--61-vol. 128-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) We believe that if you were to let the United Automobile Workers Union come into your plant that it would not do any good and ,that it might do serious harm to you and to your company. (3) It is not necessary and it will never be necessary for any person to belong to the UAW or to sign cards in the UAW or any other union in order to get a job with or to work for Murray Ohio. (4) Any employee who might sign a card or belong to the UAW will not, as a result of that, get any advantage or privileged treatment over anyone who refuses to sign a card or who does not belong to the Union. (5) Anyone who has been interfered with in the plant or has been threatened should let the Company know and we will take appropriate steps to see that this sort of conduct is stopped. (6) No employee will be allowed to carry on union organizing activities in the plant during working hours. Anybody who does so and thereby neglects his own work or interferes with the work of others will be subject to discharge. The same law which allows the United Automobile Workers Union people to try to sell you on turning your rights over to them, this law gives you an equal right to refuse to have anything to do with them. This same law also allows you, if you like, to attempt to persuade others not to have anything to do with these UAW people. Anyone who tells you anything contrary to this is not telling you the truth. THE MURRAY OHIO MANUFACTURING COMPANY (S) Bill Hannon BILL HANNON Executive Vice President Local 1426, International Longshoremen's Association, AFL- CIO and Fred Brown and Heide and Company, Inc. and Wilmington Shipping Company, Parties to the Contract. Case No. 11-CB-90. July 00, 1960 DECISION AND ORDER On March 14, 1960, Trial Examiner Henry S. Salim issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent Union filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following addition. We find, in agreement with the Trial Examiner, and for the reasons given in the Intermediate Report, that the Respondent violated See- 128 NLRB No. 30.