The Murray Ohio Manufacturing Co.

THE MURRAY OHIO MANUFACTURING COMPANY 175 on the part of Rickman constituted a threat to agreeable relations among the crafts on the job, Sweeney decided upon the discharge. Rickman was correct in his belief that his personality was involved . A conclusion that any persistency in the presenta- tion of grievances by Rickman contributed to this decision , in the absence of any evidence of union antipathy on the part of the Respondent , would lack record support. I find that the evidence does not sustain the allegation of the complaint that Rickman was unlawfully discharged. CONCLUSIONS OF LAW 1. Stearns-Roger Mfg. Co. is an employer within the meaning of Section 2(2) of the Act and its operations are in and affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Plumbers, Refrigeration and Fitters U.A. Local Union 364, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence does not establish that Loyd Elmer Rickman was discharged in violation of Section 8(a)(1) or (3) of the Act. [Recommendations omitted from publication.] The Murray Ohio Manufacturing Company and International Union, United Automobile, Aircraft" & Agricultural Imple- ment Workers of America, AFL-CIO and James A. Brown, T. Ralph Hurst, Charles R. Jacobs, Buen E. Odem, James L. Calton, Arthur D. Barton, James E. T. Pratt, C. L. Walker, Charlie P. Barton, R. C. Killen, George M. Head , Yeat Stutts, Jr., A. F. Jenkins, Clarence E . Lopp, Edith McMullin, I. E. McMullin, James V. Sudduth, Haden Long, James L. Runner,, Ronald Hartlein, William L. Clark, and Robert W. Brown. Cases Not. 26-CA-878 (formerly 10-CA-3481), 26-CA-854, 26- CA-855, 26-CA-857, 26-CA-858, 26-CA-859, 26-CA-860, 26-CA- 861, 26-CA-862, 26-CA-863, 26-CA-864, 26-CA-865, 26-CA-866, 26-CA-867, 26-CA-868, 26-CA-869, 26-CA-870, 26-CA-871, 26- CA-872, 26-CA-873, 26-CA-875, 26-CA-876, and 26-CA-877 (formerly 10-CA-3419, et al.). November 15, 1961 DECISION AND ORDER On November 19, 1959, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner further found that the Re- spondent had not engaged in certain other unfair labor practices al- leged in the complaint and recommended dismissal of those allega- tions. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 134 NLRB No. 19. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and, finding merit in the General Counsel's exceptions, adopts only such of the Trial Examiner's findings, conclusions, and recom- mendations as are consistent with this Decision and Order. The Trial Examiner found that 4 of the 22 complainants had been unlawfully denied employment in violation of Section 8(a) (3) but that the others had not been unlawfully discriminated against. For reasons detailed below, we find that all 22 complainants were victims of discriminatory treatment by Respondent. The complaint alleges that the Respondent unlawfully failed to recall 21 of the complainants named in the caption for work during its 1958 season and thereby violated Section 8 (a) (3) of the Act.' The Respondent contends that these employees were not recalled to work as the result of an employee evaluation program adopted at the close of the 1957 season for the purpose of weeding out unsatisfactory em- ployees when staffing its plant for the 1958 season and that it, therefore, did not discriminate against any of the complainants. "With consid- erable misgivings and doubt as to the fair and impartial rating" of certain complainants, the Trial Examiner agrees with Respondent's position as to 17 of the complainants, and recommends dismissal of the complaint as to them, but finds that Respondent's employee evaluation program was discriminatorily applied in the remaining 4 cases, in violation of Section 8(a) (3) of the Act. Contrary to the Trial Ex- aminer, we believe that Respondent's employee evaluation program was adopted as a device to eliminate union adherents, and was there- fore unlawful in its conception. We are satisfied, moreover, that the program was discriminatorily employed against all the complainants. Accordingly, we find a violation of Section 8(a) (3) in all the cases. Among the facts and circumstances upon which we rely in reaching this conclusion are the following : - Respondent's Union Animus In an earlier case reported at 122 NLRB 1307, enfd. 279 F. 2d 686 (C.A. 6),_ the Board found that Respondent had violated Section 8(a) (1) and had interfered with the conduct of a representation elec- tion which was held on September 11, 1957, and which the Union lost, receiving 558 out of 1,182 valid votes cast. The Board's Section 8(a) (1) finding and the setting aside of the election was based upon numerous instances of interrogation, threats, and promises of benefit conditioned upon renunciation of the Union. Included in the conduct found violative of the Act were threats to close the plant or move be- cause of the Union, a statement that "we can't promote anybody who 1 The case of Edith McMullin is separately discussed hereinafter.. THE MURRAY OHIO MANUFACTURING COMPANY 177- is against the Company," a statement to the complainant Sudduth by a supervisor that the supervisor could 'not put a man on a better job if he, the supervisor, was not sure of whether the employee was voting for the Company or the Union, and a warning to another employee that, if the Union were voted in, the plant would close for a short period of time and then new hands would be hired to replace union adherents. This record discloses additional interrogation and threats by Re- spondent which we find to be violative of Section 8 (a) (1). Thus, un- contradicted testimony establishes that the assistant personnel di- rector, during hiring interviews, inquired of one applicant how he felt about the Union, where his father was employed, and whether the plant in which his father worked had a union, and asked another about his attitude towards unions. The latter employee and another employee testified without contradiction to remarks by personnel offi- cials to the effect that the plant would close down and move away if it were organized by the Union. Clearly, hostility toward employee or- ganization generally and toward this Union in particular would hardly be demonstrated or documented more convincingly. The Timing of the Employee Evaluation Program The program was formulated about a month after the representa- tion election which demonstrated that the employees were almost equally divided in their sympathies for and against the Union, and pending the Board decision which set aside the election. At the time, Respondent, in view of all its unlawful conduct, must have at least sus- pected that a new election would be directed, that a change of only 34 votes could result in the certification of the Union, and that it would have the opportunity following its seasonal shutdown which was in the offing to pick and choose its employee complement. The Nature of the Employee Evaluation Program Under this program department heads rated all employees on the various aspects of their work performance and assigned numerical ratings to each employee . Employees accorded a numerical score which fell below an arbitrarily determined rating were not recalled to employment . The instrumentality through which the program was to be effectuated was a rating sheet which graded employees with refer- ence to ( 1) quality of work, ( 2) quantity of work, ( 3) dependability, (4) knowledge and versatility , ( 5) attitude and cooperation, and (6) relations with others. Obviously, the job elements evaluated, v--ith the exception of "quantity of work," require the application of sub- jective standards and this by rating officials who, in most cases, had engaged in unlawful interrogation and coercion of the known union adherents rated by them . And with respect to the "quantity of work" 630849-02-vol. 134-13 178 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD item, the one objectively measurable element listed, Respondent made no effort whatever to ascertain the facts from the production records available to it. Indeed, this single objectively determinable rating element appears to have been misunderstood or misapplied to a degree which made the ratings under it less objective than ratings- accorded to employees under the inevitably subjective factors on the rating sheet., Significantly, every complainant was rated below average with respect to quantity of work although company records and undisputed testi- mony indicated that many of them had consistently received in- centive pay. Union Adherence and Activity of Complainants and Respondent's Knowledge Thereof All the complainants were union adherents and they include three of the four employees who acted as union representatives for the pur- pose of checking voting eligibility lists in advance of the election. Also included among them is Buen Odem who secured approximately 50 union designation cards, Arthur D. Barton, who secured a substan- tially similar number, T. Ralph Hurst, who furnished meeting places and openly distributed union literature, and many others who con- spicuously assisted in the Union's organizational campaign. The Trial Examiner himself found that the union membership and activity of each complainant, with the possible exception of Charlie Barton, was known to Respondent. With respect to Barton, the record clearly demonstrates that Respondent was also well aware of Barton's ad- herence to and activity on behalf of the Union. The foreman who allegedly rated Barton as an unsatisfactory employee was quoted, without denial, as having told him that there was "some misunder- standing somewhere" and that he should have been recalled to work. Barton further testified, without contradiction, that his foreman told him that an employee whom Barton had trained as a checker was being promoted to assistant foreman because this employee, unlike Barton, had not been involved with the Union; and, Barton testified without contradiction, that shortly before the representation election, Respondent's vice president, while addressing the shipping depart- ment employees in an effort to persuade them to vote against the Union, said, "I know Barton-he is Hoover's brother and I know how he feels." 2 Respondent's Treatment of Complainants; the Incident Reports Although recall to employment during the 1958 season was de- termined by departmental seniority, none of the alleged discrim- 2 Arthur D. Barton, also found to be a discriminatee , is referred to as "Hoover" in the record. THE MURRAY OHIO MANUFACTURING COMPANY 179 inatees was ineligible for recall because of insufficient seniority since virtually all departments of the plant engaged newly hired employees following the seasonal resumption of operations. When the alleged discriminatees sought explanations for Respond- ent's failure to recall them, they were given evasive answers or ex- planations which were inconsistent with the ones offered at the hearing. Odem, for instance, was told by his superintendent that he would be recalled. Pratt was told that he had not been recalled be- cause of Respondent's high inventory and his letter of inquiry to the personnel office was not answered. I. E. McMullin was told by his foreman that the latter did not know why he had not been recalled and McMullin was not allowed to enter the plant to seek an explana- tion from the personnel office. Also, 16 of the 18 Charging Parties found by the Trial Examiner not to have been discriminated against had been laid off after a prior season's work and recalled to work in the succeeding season although Respondent contended at the hearing that their work was unsatisfactory at all times while they were employed. To support its supervisors' ratings of employees on the rating sheets, Respondent relies upon certain incident reports which appear intended to serve as an adjunct to supervisory reprimands for work incidents of such extraordinary gravity as to warrant their referral to higher management. Most of the so-called incident reports do not relate to specific incidents. Rather, they are broad, subjective charac- terizations of the subject employee's general attitude or performance over extended time periods and were, -therefore, impossible to refute and difficult to impugn through cross-examination. In the few in- stances in which the conduct complained of took 'on the character of an "incident" sufficiently to permit cross-examinational exploration of the matters reported, the subjects of complaint were unusually trivial such as mistakes in counting, returning late from lunch, speed- ing up machine, profanity, damaging a bike carton, and incorrect checking. In contrast to the trivial complaints which were made the subjects of incident reports in the cases of the Charging Parties, there were several instances of serious misconduct on the part of nonunion employees which did not result in the issuance of incident reports or unfavorably affect the subject's rating on the employee evaluation sheet. The General Counsel elicited undenied testimony that one em- ployee found sleeping on the job was not made the subject of an inci- dent report and his subsequently executed rating sheet graded him average in dependability and noted that he observed plant rules of conduct. An employee in the inspection department who struck a foreman in the course of an argument over his work did not become the subject of an incident report and on his rating sheet he was given the highest attainable score on "relations with others." Uncontra- 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dicted testimony disclosed that one employee who frequently came to work while intoxicated, and who once had to be led out of the plant, received ratings above average and was recalled after the seasonal layoff from which the Charging Parties were not recalled. Two em- ployees in the paint department engaged in an argument when one persisted in throwing pieces of metal at the other after having been warned to stop it. The one struck with the metal pieces shook the other, who picked up a board, too large to be lifted in one hand, and heaved it at the other, who jumped to avoid it and returned to ad- minister a harder shaking to his assailant. As the latter was return- ing to his work, the other seized a bicycle frame and attempted to strike him with it. Both went down to the floor scuffling and as they were being separated, one struck the other in the face with sufficient force to draw blood. Although the foreman took both employees off the job at the time, they received satisfactory ratings and were re- called after the 1957 seasonal layoff. We find in all this evidence the application of a double standard in the disparate rating of known union and nonunion employees which can only serve to support the General Counsel's position in this case. Finally, we deem particularly significant uncontradicted testimony that, subsequent to the seasonal shutdown, Foreman Callaley told complainant Arthur D. Barton that he would not be recalled to work because he was for the Union. There clearly emerges from the foregoing, and the entire record, an intense hostility on the part of Respondent toward the Union as well as a determination on the part of the Respondent to thwart the Union's organization of its plant. Equally apparent is the opportu- nity afforded Respondent by the seasonal shutdown to rid itself of union adherents and thereby weaken the Union's position in a new election directed by the Board. That the Respondent availed itself of this opportunity to replace union adherents with new hands, as it predicted it would, is evidenced by the pattern of discriminatory treat- ment to be found in the circumstances attending Respondent's failure and refusal to recall the complainants for work during the 1958 season. All these circumstances persuasively combine to establish that Re- spondent used its employee evaluation program as a device for rid- ding itself of union adherents who are complainants herein and that Respondent thereby violated Section 8 (a) (1) and (1) of the Act.' 3 The fact that other employees who are not complainants in the case may not have been recalled for working during the 1958 season does not, of course, require a different conclusion as our dissenting colleagues assert The evidence adduced by the General Counsel, which includes a foreman's prophecy that complainant A,D Barton would not be recalled because he was for the Union , abundantly demonstrates that the complainants were not returned to work because of their union adherence. If additional evidence con- cerning the other employees could have changed this picture somehow, the Respondent was free to present such evidence But it chose not to do so , and the resultant absence of this evidence relating to employees not named in the complaint cannot be deemed prejudicial to the General Counsel's case. THE MURRAY OHIO MANUFACTURING 'COMPANY 181 There remains for consideration the case of Edith McMullin, as to whom the Trial Examiner dismissed the allegation that she was not recalled to work during the 1958 season for discriminatory reasons. As already indicated, we do not agree with this finding of the Trial Examiner. With respect to Edith McMullin, who is the wife of 1. E. McMullin, herein found to have been discriminated against, the Respondent did not advance any defense of a low score on the employee evaluation sheet. For not only was Mrs. McMullin accorded a score on Respond- ent's rating sheets which should have insured her retention under Respondent's evaluation plan, but her supervisors testified that she was a satisfactory employee. Respondent's explanation of its failure to recall Mrs. McMullin, which was accepted by the Trial Examiner, is that recall was made on the basis of departmental seniority and that she was junior to the four female employees recalled in her department. Mrs. McMullin was employed on September 13, 1956, laid off in December 1956, rehired in a different department in January 1957, again laid off on November 15, 1957, and was not thereafter recalled to employment. At the time of her layoff in November 1957, Mrs. McMullin's foreman told her that she would be recalled. When she attempted to learn why she was not recalled she was told by the assist- antpersonnel director that they were working as many girls in her department as they had in the previous year. However, the record discloses that another female employee who worked in the same depart- ment as Mrs. McMullin, but who was junior to Mrs. McMullin, was recalled to employment in another department in 1958 although Mrs. McMullin was not offered the job. Respondent attempted to explain this departure from its usual recall policy by alleging that the other employee had experience in the department to which she was recalled. It appears, however, that Mrs. McMullin likewise had experience in the same department. We further note that at the end of the 1957 season, when work ran out, Mrs. McMullin was transferred from her regular job to one in another department where she worked for a month prior to her layoff. Notwithstanding, Respondent's admitted policy of canvassing laid-off employees of other departments before hiring new employees, Mrs. McMullin testified without contradiction that two new employees were hired in the department in which she had been working at the time of her layoff in 1957 although she had not been offered reemployment in that department, and one of Re- spondent's superintendents also testified that a large number of women not previously employed by Respondent had been hired in his depart- ment since the 1957 layoff from which Mrs. McMullin was not recalled. Under all the circumstances, we are persuaded that the reason Edith McMullin was not recalled to employment was her membership in 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and activities on behalf of the Union and because of the union affilia- tion and activity of her husband. We accordingly find that Respond= ent discriminated against Edith McMullin in violation of Section 8(a) (3) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, the Murray Ohio Manufacturing Company, Lawrenceburg, Tennessee, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees coercively concerning their union membership and activities and threatening employees with discharge or other reprisals because of their union membership and activities. (b) Discouraging membership in) International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, by discharging employees, by failing to offer them reemployment, or by discriminating in any other manner in regard to hire or tenure of employment, or any term or condition of employment , to discourage membership in a labor organization. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, or 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. (2) Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Offer to James A. Brown, T. Ralph Hurst, Charles R. Jacobs, Buen E. Odem, James L. Calton, Arthur D. Barton, James E. T. Pratt, C. L. Walker, Charlie P. Barton, R. C. Killen, George M. Head, Yeat Stutts, Jr., A. F. Jenkins, Clarence E. Lopp, Edith McMullin, I. E. McMullin, James V. Sudduth, Haden Long, James L. Runnels, Ronald Hartlein, William L. Clark, and Robert W. Brown immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and priv- ileges, and make each of them whole for any loss of pay each may have suffered by reason of the discrimination against him by the payment to each of them of a sum of money equal to the amount he would normally have earned from the date on which he would normally have been recalled to work upon the resumption of seasonal operations THE MURRAY OHIO MANUFACTURING COMPANY' 183 by Respondent at its plant in Lawrenceburg, Tennessee, in 1958,,to ,the date on which Respondent shall offer to each of them proper rein'- .'statement as herein provided, less net earnings during said period and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440 4 " (b) Preserve and, upon request, make available to the Board or its :agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records, and reports, and all other records necessary to determine the amounts of backpay due and the rights of reinstatement under the terms of this' Order. (c) Post in its plant at Lawrenceburg, Tennessee, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by Respondent's representative, be posted by Re- spondent 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. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for the Tenth Region, in writ- ing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBERS RODGERS and LEEDOM, dissenting` in part : As more fully described in the Intermediate Report, soon after the annual shutdown at the close of the 1957 production season the Re- spondent adopted an employee evaluation program under which de- partment heads rated all employees on various aspects of their work performance and assigned numerical ratings to each employee. Em- ployees who failed to attain a predetermined rating were not recalled to employment. Upon the seasonal resumption of operations, approxi- mately 100 employees were not recalled. Of the latter 100, 22 filed unfair labor practice charges alleging that they had been discriminated against because of their union activity. The General Counsel adduced considerable testimony tending to establish the union activity or adherence of the 22 complainants and Respondent's knowledge of such activity or adherence. The General Counsel failed, however, to * In accordance with the Board's usual practice, the period from the date of the Inter- mediate Report to the date of the Decision and Order herein shall be excluded in com- puting the amount of backpay awarded to James A Brown, T. Ralph Hurst, Charles R. Jacobs, Buen E Odem, James L. Calton , Arthur D Barton , James E. T. Pratt, C. L. Walker, Charlie P. Barton , R. C. Killen, George M. Head, Yeat Stutts, Jr., Clarence E. Lopp, Edith McMullin, I E. McMullin, Haden Long , James L. Runnels , and William L. Clark because the, Trial Examiner recommended that - the complaint be dismissed as to them. B 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." 184 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD adduce record information with respect to the union affiliation or activity of the 70-odd terminated employees who did not file unfair labor practice charges. We deem this failure fatal to the General Counsel's case. Discrimination, in our view, presupposes or implies disparate treat- ment. Without an adequate background, against which the treatment accorded the complainants may be compared or contrasted, disparate treatment cannot be shown to have existed. The General Counsel had, therefore, the burden of establishing, as part of his affirmative case, elements which, include the character or status, with respect to the affiliation or involvement in union activity, of the large group of em- ployees terminated simultaneously with the Charging Parties. Ab- sent such a background against which we may evaluate the treatment accorded the complainants under Respondent's employee evaluation program, we are constrained to conclude that the General Counsel has failed to sustain his burden of proof. We would find, accordingly, contrary to our colleagues, that the General Counsel failed to establish by a preponderance of the credible evidence that the employee evaluation program was adopted for dis- criminatory purposes, or that it was applied discriminatorily against any of the complainants 6 In view of the foregoing, accordingly, we would dismiss the complaint insofar as it alleges 8(a) (3) violations with respect to the 22 complainants. 6In this connection , we note that the Trial Examiner's finding of discrimination against employees Jenkins, Sudduth, Hartlein , and Robert W. Brown was predicated upon the evasive and uncertain character of the incident reports filed against these employees, and upon the fact that the department heads who rated them did not have personal knowledge of their work but relied upon the reports of subordinate supervisors not called as wit- nesses. Even taking such factors into consideration , we nevertheless are of the opinion that the General Counsel failed to establish a discriminatory motivation for the dis- charges. Implicit in the Trial Examiner 's finding of a violation with respect to these four employees is a determination that the General Counsel has made out a prima facie case. Otherwise , the finding could not be predicated upon the Respondent 's failure satis- factorily to explain the discharges . Here, as in the case of the other complainants, we believe that the General Counsel did not make out even a prima facie case when he failed to furnish the record information with respect to the discharged employees who did not file charges Absent a prima facie showing that the employees in question were dis- criminated against for reasons proscribed by the Act, it was not incumbent upon the Respondent to justify or explain the discharge of these employees Our view is the same in the case of Edith McMullin, whose work, unlike that of the other complainants, was admitted to be satisfactory . With respect to her, the record shows only that the Respondent "probably knew or suspected that she was a supporter of the Union " As the essential element of employer knowledge must rest on a firmer basis than mere probability, we would find again that the General Counsel has not made a prima facie showing that she was discriminated against for reasons proscribed by the Act. 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 our employees that : THE MURRAY OHIO MANUFACTURING COMPANY 185 WE WILL NOT interrogate employees coercively concerning their union membership and activities and threaten employees with dis- charge or other reprisals because of their union membership and activities. WE WILL NOT encourage or discourage membership in Inter- national Union, United Automobile, Aircraft & Agricultural Im- plement Workers of America, AFL-CIO, or any other labor organization, by refusing to recall employees to work following an economic layoff, denying them further employment by means of any discriminatory merit rating program, or otherwise dis- criminating in regard to their hire or tenure of employment or any term or condition of employment, because,they engaged in or are engaging in organizational activities for the purposes of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or co- erce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, ,United Automobile, Aircraft & 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 purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. WE WILL offer to James A. Brown, T. Ralph Hurst, Charles R. Jacobs, Buen E. Odem, James L. Calton, Arthur D. Barton, James E. T. Pratt, C. L. Walker, Charlie P. Barton, R. C. Killen, George M. Head, Yeat Stutts, Jr., A. F. Jenkins, Clarence E. Lopp, Edith McMullin, I. E. McMullin, James V. Sudduth, Haden Long, James L. Runnels, Ronald Hartlein, William L. Clark, and Robert W. Brown immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority or other employment rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against them. All our employees are free to become and remain or to refrain from becoming or remaining members of any labor organization. THE MURRAY OHIO 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. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE-CASE - This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Lawrenceburg, Tennessee, on March 17, 18, 19, and 20, April 13, and May 26 and 27, -1959, upon a complaint filed by the General Counsel of the National Labor Relations Board, and answer thereto filed by The Murray Ohio Manufacturing Company, herein called the Respondent. The issues litigated were whether or not the Respondent violated Section 8(a)(1) and (3) of the Act, by failing to recall to work 22 employees (herein named) who were laid off at the close of seasonal operations in 1957 . Any issues eliminated at the hearing upon motion of the General Counsel to dismiss or withdraw certain allegations of the complaint will not be discussed herein. -Motion to conform the pleadings to the proof with respect to uncontroverted matters not of substance was granted without objection. Oral argu- ment before the Trial Examiner was waived by all parties, who in due course filed written briefs, which have been given due consideration. . Upon the entire record, and from observation of the witnesses , I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE RESPONDENT The Murray Ohio Manufacturing Company is a corporation organized and-existing by virtue of the laws of Ohio, having its principal factory plant and place of business located at Lawrenceburg,' Tennessee, where it is engaged in the manufacture and sale of bicycles, velocipedes, window cooling fans, wheel toys, etc. During the past calendar year , which period is representative of all times material herein , the Respond- ent manufactured, sold,^and shipped finished products valued in excess of $100,000 ,directly to customers outside the State of Tennessee . I find, therefore, and it is admitted, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' ' U. 'THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft & Agricultural Implement Workers of ' America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR - LABOR PRACTICES A. Historical background Prior to 1956 the Respondent had for many years operated its principal plant in Cleveland; Ohio, where its employees were represented as bargaining agent by Inter- national Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO. Having built a 'new plant at' Lawrenceburg, Tennessee, the Respondent started production thereat in the early part of 1956, and thereafter gradu- ally liquidated its Cleveland plant. During this transitory period, some corporate -officials and department superintendents were required to exercise supervision over operations both at Cleveland and Lawrenceburg until about September 1957 when all operations at Cleveland were, terminated . In the meantime the Union during 1956 initiated -an organizational campaign at the Lawrenceburg plant, and on May 27; 1957, filed a petition for certification in Case No. 10-RC-3872.. A hearing on this petition was held on June 18, 1957, and on August 14, 1957, the Board issued a Decision and Direction of Election which is reported in 118 NLRB 1027. ' For further background information with respect to operations and labor re- lations of the Respondent reference is -hereby made to consolidated Cases Nos. 10-CA-3040 and 10-RC-3872 reported in 122 NLRB 1307, wherein the National Labor Relations Board found that Respondent at Lawrenceburg, Tennessee, had engaged in and was engaging in certain unfair labor practices violative of 'Section -8(a) (1) of-the Act, and thereby interfered with, restrained,-and-coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Thereupon, the Board ordered that-Respondent cease and desist therefrom, that the representation election ,held on September 11, 1957, be set aside, and that a new election be held at such .time-as the Regional Director deems that circumstances permit the free'choice of'a bargaining representative among employees in the appropriate unit, who are em- ployed during the payroll period immediately preceding the date of issuance of the notice of election. The aforesaid findings and order of the Board were based upon THE MURRAY OHIO MANUFACTURING, COMPANY 187 objections, filed with respect to conduct of the Respondent during the 3-week period preceding the election in which the Union was defeated by ballots of 624 to 558: Respondent has always operated its plant, both at Cleveland and Lawrenceburg, on a seasonal basis. All hiring and termination of employees is handled through a central 'employment and personnel office based, upon timely requisitions and recom- mendations of department superintendents as to the number and classification of employees required in their respective operations. The operating season begins about the middle of January each year, and employees are recalled according to depart- mental seniority or newly hired by the personnel office as needed to fill requisitions submitted by each department superintendent. Production is gradually accelerated by the installation of additional assembly lines and a second shift at intervals during the months of April, May, and June until the peak of production is reached in July. Thereafter, production is curtailed in reverse order until all employees are laid off at the end of the season, and the plant closes down in the early part of December. By stipulation of the parties it appears that since the start of operations in 1956 through March 9, 1959, the Respondent at Lawrenceburg received 12,622 appli- cations for employment. From these applications, Respondent in 1956 hired 1,105 employees; in 1957 it hired 523 additional employees; and in 1958 it hired 976 new employees. Total number hired since operations began is 2,604. It is, therefore, apparent from the large number of job applications received by Respondent that the surplus labor force in that area is considerable. B. Organization of the Lawrenceburg plant Corporate officials of the Respondent include C. W. Hannon (president), W. N. (Bill) Hannon (executive vice president); and A. H. Wills (vice president in charge of production). Cromer Smotherman is personnel director. Lloyd George and Nolan Lambert are assistant personnel directors. Production operations at the Lawrenceburg plant consist of (1) a bicycle division and (2) a wheel-goods division, both of which are subdivided into departments under the supervision and control of , superintendents transferred from the liquidated Cleveland plant. Many of the fore- men throughout the plant have been trained and promoted from the ranks of local employees. Some were transferred from the Cleveland plant. By reason of the liquidating operations at Cleveland and gradual transfer of machinery and equipment to Lawrenceburg, Vice President A. H. Wills and at least two of his department superintendents exercised supervision of the operations at Lawrenceburg by visil tation only until permanently transferred on a full-time basis in the summer and fall of 1957. In September 1957, Vice President Wills made a survey of operations at Lawrenceburg, and reached the conclusion- that the operating budget for costs of labor was approximately 5 percent above normal and that an excessive number of workers had been hired as part of the training program during the first year of oper- ation at this new plant.' Consequently, he consulted with his department' super- intendents'and foremen and decided to relieve the situation by means of an employee evaluation program to eliminate all employee's whose record of performance was below average or unsatisfactory. C. The employee evaluation program Having prepared and mimeographed the rating sheet, attached, hereto marked "Appendix A," Vice President Wills called a meeting of all department superin- tendents to explain and discuss his program. To them he delegated full responsibility and discretion in collaboration with foremen to submit on this prescribed form a completed rating sheet' on each individual employee in their respective departments. The rating sheet provides for a definitive' rating of unsatisfactory, below-average; average, and above average in the five categories of (1) quality of work, (2) quantity of work, (3) dependability, (4) knowledge and versatility, and (5) attitude and co- operation. In a sixth category of "Relations With Others" the rating sheet pro- vides for definitive ratings of unsatisfactory, below average, and satisfactory. - Each of-these definitive ratings is followed-by a'fixed numerical rating, which presumably represents a value unilaterally assigned to each definitive rating by Vice President Wills, and the department, superintendents had,no discretion to.,vary from the fixed numerical ratings. from which' a' final total' numerical rating for overall categories would be computed. It is clear, from the rating sheet form that any. employee rated as "Average" (or "Satisfactory") in all categories would automatically receive a total numerical rating of 24; whereas, any definitive rating of "Below Average" 'or "Un- satisfactory"' in any single- category'would result in 'a 'final numerical rating not ,exceeding-23: Each definitive rating is also followed- by written remarks evidently intended to afford some, explanation therefor; and in,, the case ' of a rating of un- 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfactory or below average the form provides a list of written remarks which may be checked off to indicate a reason for such rating. In consummation of this employee evaluation program completed rating sheets were submitted to Vice President Wills in the latter part of November and Decem- ber 1957, after employees had been laid off at the end of seasonal operations. Thereupon, Vice President Wills instructed the personnel direction not to recall for work in the 1958 season any employee who had received a final numerical rating less than 23. Summary of ratings prepared by the personnel director on Decem- ber 31 , 1957 (Respondent's Exhibit No. 6), indicates that the, employment of 100 out of a total of 1;079 employees was terminated, including the 22 alleged dis- criminatees hereinafter set forth numerically in this case, who were thereafter never recalled to work. The names of 100 terminated employees appear in Respondent's Exhibit No. 68. The sole issue here is whether Respondent adopted, applied, or otherwise used the foregoing employee evaluation program and rating system as a guise or subterfuge to discriminate in regard to hire or tenure of employment to dis- courage membership in a labor organization. D. Alleged discriminatory ratings Superintendent Frank E. Budniak submitted completed rating sheets on 210 in- dividual employees in bicycle subassembly department #44, velocipede subassembly department #57, and rim and tube department #62. From this group 23 employees were not recalled to work by reason of numerical ratings below 23, including al- leged discriminatees , Arthur D. Barton, Theodore Ralph Hurst, James E. T. Pratt, Buen E. Odem, Yeat Stutts, Jr., and James L. Calton. 1. Arthur D. Barton This individual was the first man hired by Foreman Paul E. Roller in department #44 at the beginning of operations in May or June 1956. His application for em- ployment shows a history of arrested tuberculosis by reason of which he frequently expressed apprehension that certain jobs to which he was assigned would be detrimental to his health . For several months he worked as a sander and finisher on the bicycle assembly line and at various other jobs in the plant . Finally at his own request he was assigned to the job of spot welding about October 1956 , and con- tinued to work in that capacity throughout his employment . When not employed in spot welding under Foreman Roller he frequently worked at other jobs under the , supervision of Foreman Hugh Callaley in the same department. He was laid off along with other employees at the close of the season in 1956 , and thereafter recalled to work in the early . part of 1957. When organizational activities began in the early spring of 1957, he signed a union card at the first union meeting and became an active worker in the campaign by attending union meetings, passing out cards, and soliciting fellow employees to join the Union . His activities were apparent and well known to the Respondent, as evidenced by conversations had with Foremen Cal- laley and Papp and Assistant Personnel Director Alexander prior to the election of September 11, 1957. He was again laid off at the close of the 1957 season at which time Foreman Paul E. Roller distributed layoff slips and announced to all employees that they would be recalled to work sometime in January 1958. Thereafter on December 19, 1957 , Superintendent Frank E. Dudniak and Fore- man Paul E. Roller submitted to Vice President A. H. Wills and the personnel office a jointly signed evaluation report awarding to Arthur D. Barton a numerical merit rating of 16, by reason of which he was disqualified for further employment and not recalled to work for the 1958 season. Under the categories, "Quality of Work" and "Relations with Others ," he was rated "Average" and "Satisfactory," respectively, but with respect to all other categories was rated "Below Average." Explanatory printed remarks following ratings below average were checked to show "Lack of effort-doesn't try. Wastes time talking . Wastes time if left to work alone . Under- stands less about the work than the average, or than could be expected. Cannot make adjustments or set-ups as fully as would be desirable. Occasionally a prob- lem because of the limited number of jobs he can do. Only fair attitude and co- operation. Leaves something to be desired in this respect." Pertinent printed ques- tions answered affirmatively or negatively indicated that this employee would accept instructions good-naturedly and observe safety rules , but would not try new methods willingly, accept changes cheerfully, observe plant rules of conduct, try to improve skill. take an interest in his lob , try to learn other jobs, or make helpful suggestions. Final remarks in writing at the end of the rating sheet recited that "This employee has been a problem in trying to find a job on which he will willingly work. He complains about his inability to do certain jobs due to a past T.B. record. His THE MURRAY OHIO MANUFACTURING COMPANY 189 medical report indicates he is physically able to perform any job that any other man can do." In support of the foregoing ratings, Respondent introduced in evidence from the personnel file of this employee an employee incident report dated February 26, 1957, in which the aforesaid foreman and superintendent reported in substance that Arthur Barton was having difficulty in maintaining his production due to lack of persistent effort possibly attributed to his physical condition-that more stable effort on his part was required to make the production rates set by the time-study department for his job. A second incident report filed on May 29, 1957 , reported that Barton was purposely controlling and holding his production down to a certain daily figure, and that poor earnings shown on his record for May 23 and 24, 1957, was due to lack of effort on his part. Superintendent Budniak credibly testified in substance that the rating sheet of Barton was based upon general knowledge by working with him over a long period; that he was one of Respondent's senior employees at Lawrenceburg and had been tried out in four different jobs; that he was transferred from a job on bicycle tires to bike finishing work because he complained about his record of tuberculosis; thereafter, he complained about dust affecting his condition, and was transferred to a job on the machine line; then he complained about the water solution burning his hands and was transferred about October 1956 to the job of spot welding, where he remained until laid off at end of the 1957 season; that his production on the last job was below normal , and he was warned at time of incident report in Febru- ary 1957 that he would have to apply himself and start working ; that in May 1957 a time study was made on his job and it was demonstrated to Barton by the watch that he could produce the required number of pieces per day, but when left to work alone he failed to do so;, that he personally observed that Barton wasted time by visiting around and talking to other employees ; that Barton received special atten- tion from his foreman after February 26, 1957, and possibly made a slight improve- ment in his work when daily reminded about his production , but continued below average,, would soon drift back to his old ways of doing, and frequently leave his place of work during working hours; and that he had no knowledge concerning Barton's union activities, and never heard the names of any individuals mentioned in connection with the organizational campaign, except that of the union organizer, Hoyt Wright. After operations at the plant in Lawrenceburg were resumed in January 1958, Barton visited Foreman Paul E. Roller at his home and expressed a desire to be re- called to work. From uncontradicted testimony it appears that Foreman Roller told Barton that he had been a good employee and advised him to see and talk to Person- nel Director Smotherman about it. From there Barton went to see Superintendent Budniak at his home and expressed a desire to return to work. According to Barton, Superintendent Budniak was noncommittal and said , "If they all got together and done it they would all have to undo it." From there Barton went to see Foreman Hugh Callaley at his home, who advised him to see and talk to Vice President Bill Hannon, and said, "Barton I think a lot of you boys, but there is nothing I can do." Thereafter, Barton went to see Vice President W. N. (Bill) Hannon at his home and talked to him about going back to work. The testimony of Barton and Hannon as to what was said in their conversation at that time presents for determination a credibility issue of extreme difficulty; but from all surrounding circumstances of the case and from my observation of the witnesses I am persuaded and find the version of W. N. Hannon more logical and believable despite the background of Respond- ent's admitted hostility and opposition to the Union. Barton's testimony concerning this conversation was somewhat garbled, but in substance tending to show that Vice President Hannon at first said that he would do nothing to help him because of his working for the Union, but after he agreed to abandon the Union consented to talk the matter over with Personnel Director Smotherman and see what could be done for him. In contrast, the testimony of Hannon was straightforward and convincing that he was telling the truth regardless of consequences by admitting that prior to the election he strongly opposed the Union, wrote letters to employees outlining the Company's past experience with the Union at Cleveland , and also held group meet- ings with employees where his strong opposition to the Union was expressed, and that he tried to make their employees understand what the Union did to the Company in Cleveland and what it would mean to their future security if the Union got in the plant at Lawrenceburg. Vice President W. N. (Bill ) Hannon credibly testified that Arthur Barton came to his home on a Saturday in April or May 1958 , and inquired why he had not been recalled to work-that he suggested that Barton go to see Personnel Director Smother- man about it; whereupon, Barton brought up the Union issue by saying that he had made a mistake, and proposed to have nothing more to do with the Union if 190 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD he was called back to.work; thereupon, he told Barton that practically 50 percent of the employees had voted for the Union, and that it was strictly his own business to do as he pleased about it-that he did not -tell Barton that a lot of other people had made the same mistake, made no statement about Organizer Hoyt Wright, and did-not say that he would do nothing for Barton because he had worked for the Union, or that he would do everything he could to keep the Union out. Balton testified further that he finally got in contact by telephone with Personnel Director Cromer Smotherman, who told him there was nothing more he could tell him about the matter. Barton and C. L. Walker (alleged discriminatee) also testi- fied that on the streets in Lawrenceburg during the summer of 1958 Foreman Hugh Callaley made a statement to the effect that Barton and Magee were two of the best hands he ever had, that he would like to have them back, but the Company would not recall those who were for the Union. It appears, however, that Magee had been discharged prior to the seasonal layoff in 1957. Walker was hesitant in fixing the time of such conversation and identifying Callaley as the foreman making such a statement. By reason of all the circumstances, I seriously doubt that Foreman Hugh Callaley made such a statement, and therefore discredit the testimony of Barton and Walker with respect thereto. Foreman Hugh Callaley credibly testified that Barton and another man ap- proached him at the courthouse square in Lawrenceburg, and greetings were ex- changed, but that he was in a hurry at the time and did not in any manner discuss Barton's job at the plant, whether he would be called back to work, or anything about the Union. Callaley credibly testified further that Arthur D. Barton had not worked under his supervision for at least 6 months prior to layoff in the fall of 1957; that prior to being transferred to his spot-welding job Barton had worked under his supervision for a period of 3 or 4 months; that by reason of his discontent- ment was moved around to various jobs; that he never at any time discussed the Union with Barton, and was not consulted about Barton's rating sheet. Barton also related a conversation had with Assistant Personnel Director Lambert in his car on the streets of Lawrenceburg in which Lambert allegedly agreed to talk to Smother- man and see what could be done for him if he would promise to abandon the Union. With respect to that conversation, Nolan Lambert credibly testified that Barton came to him saying that he had made a great mistake and would like to have another chance, and that Organizer Wright was a smooth talker and had talked him into these things. Thereupon Lambert told Barton that he had nothing to do with hiring people, but would be glad to tell Smotherman what he had said. Lambert credibly denied asking Barton any questions about the Union or seeking any prom- ise from him to abandon the organization. On cross-examination, Lambert testified that on a previous occasion Barton had approached him in front of the post office to inquire the reason he had not been called back to work, and at that time he told Barton about the rating system, but not being familiar with Barton's record did not say why he had not been recalled to work. I also discredit the testimony of Arthur D. Barton with respect to a statement allegedly made by J. C. Davis in front of the courthouse at Lawrenceburg during the summer of 1958 to the effect that he had attended a foremen's meeting at which Foreman Paul E. Roller made a request that Arthur D. Barton and T. Ralph Hurst be recalled to work, whereupon Personnel Director Smotherman inquired whether they had been converted; and that Foreman'Roller replied, "Well I don't believe they are, and I don't believe they ever will be, but I do believe they will keep their mouth shut." J. C. Davis credibly testified that he was not a foreman prior to April 25, 1958, and that he never heard such statements made at it foremen's meeting and did not make such a statement to Arthur D. Barton. Davis admitted, however, being approached by Barton near the courthouse during a local political campaign in the summer of 1958, but denied having any discussion concerning employment at The Murray Ohio Manufacturing Company. Davis credibly testified that Barton was distributing political literature for one of the candidates for governor-that Barton requested assistance in getting a political job-that he suggested that Barton go to the political headquarters of candidate Ellington across the street and offer his political support; whereupon Barton expressed doubt that he would get any help there, because he had recently thrown away a political sticker placed on his car by Ellington's campaign manager. Having discredited testimony of Barton with respect to the alleged foregoing expression of opinions against the interest of Respondent by minor supervisors long after the rating sheets had been submitted and several weeks after the plant had resumed operations for, the 1958 season, I am of the opinion that little weight should be given to such expressions by persons taking no part in preparing the rating sheets. THE MURRAY OHIO MANUFACTURING -COMPANY 191 - 2. Theodore Ralph Hurst This individual was first employed by Respondent on June 6, 1956, as a paint touchup man in department #44 under the supervision of Foreman Hugh Callaley. He was laid off at the end of the season in 1956 and recalled to work in the early part of 1957. In March 1957 Hurst assisted the Union by obtaining a meeting place in the community building at Mount Eboe near his home: Thereafter,,.he attended union meetings and solicited other employees to join the organization. Having signed a card himself, he also procured the signatures of others. His activities on behalf of the Union were undoubtedly observed by supervisors of the Respondent, because Hurst's testimony was-not contradicted that shortly prior to the election he passed out union pamphlets in the plant; whereupon, Foreman Paul E. Roller came to him and said, "Here is some literature that you have been passing out-take it and stick it up your .... . Shortly, thereafter, in the foreman's office Hurst heard Foreman Roller say to Foreman Hugh Callaley, "This man is doing everything he can in his power for the Union, keep an eye on him." Thereafter, on December 18, 1957, Superintendent Frank E. Budniak and Fore- man Paul E. Roller submitted a jointly signed evaluation report in which Theodore Hurst was given a numerical rating of 15 by reason of which he was disqualified from further employment and was not recalled to work for the 1958 season. In his rating sheet this employee was rated as "Average" under the categories of "Quantity of Work" and "Knowledge and Versatility"; but "Below Average" under all other categories. Reasons for ratings below average were explained by indicated printed or written remarks, as follows: "Mistakes are too frequent. May be caused by haste or lack of knowledge. Accuracy and finish of work often unsatisfactory. Will not follow instructions. Sometimes fails to heed instructions. Wastes time if left to work alone. Only fair attitude and cooperation. Leaves something to be desired in this respect. Occasionally temperamental and apt to `flareup' or to be hard to get along with." Pertinent printed questions answered in the affirmative or negative indicated that this employee tried to improve his skill, but would not accept instructions good naturedly, try new methods, accept changes cheerfully, observe safety rules, observe plant rules of conduct, take an interest in his job, or make helpful suggestions. In support of the foregoing ratings, Respondent introduced in evidence from personnel files an incident report dated February* 5, 1957, signed by Foreman M. Demko, Superintendent Budniak, and the personnel director, reciting that "On Monday 2/4/57 T. R. Hurst speeded up furnace speed. He was warned and reprimanded for this doing as it is against company policy. He was talked to by Budniak and Demko." A second incident report dated March 28, 1957, recited a refusal to obey foreman instructions: "This employee was stacking trays too high on furnace conveyor which was against company policy of which he was aware. When asked to restack the trays by his foreman, he refused to do so. When repri- manded by Supt. he stated he understood he should obey foreman instructions." Superintendent Frank E. Budniak credibly testified in substance that Hurst was a temperamental man and would not follow instructions; that whenever his foreman would give him a job, he would perform it a time or two as directed, but then revert to his own way of doing; that Hurst secretly tampered with the machine furnace to speed it up and increase his production, but thereby adversely affected the quality of the work, and it became necessary to place a police watchman on the job to discover who was doing it; that Hurst also made a practice of holding back trays coming out of the furnace until they piled up and would thereby disrupt the normal sequence of their going down the conveyor belt to the furnace loaders by stacking them too high on the furnace conveyor; that he tried to work too fast, and would waste time by leaving his work station; and that Hurst grumbled when changed from one job to another. Theodore Ralph Hurst upon cross-examination admitted being called to the office of Superintendent Budniak in February 1957 concerning the furnace incident and about the furnace trays incident in March 1957. Except as to that, Hurst incredibly testified that he had never been criticized, warned, or reprimanded about his work, had never repeated those derelictions, and had never received any complaints about his work. Hurst testified that Foreman Roller distributed layoff slips at the end of the 1957 season, announced that employees would be recalled to work about January 16, 1958, but when handing a layoff slip to him said, "Here's yours, you can take yours and go off and kill hogs." When not recalled to work, Hurst talked to Assistant Personnel Director Lloyd George about the middle of January 1958, and was told that only a few men in each department were being recalled. About 1 week later 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he went to see Foreman Hugh Callaley at his home to inquire about being recalled to work. Then he went to see Foreman Paul E. Roller, who told him that it would be a long time before recalling him to work and advised him to look for another job. Then through his wife, he wrote a letter to Executive Vice President Hannon, and received a reply dated March 6 , 1958, as follows: DEAR MR . HURST : This will acknowledge your recent letter. Answering your inquiry, I wish to point out to you that due to business conditions and the diminishing demands for our products, we feel that we would not require as many employees in 1958 as we were able to provide work for in 1957. This meant that fewer employees would be returning in some departments . In deter- mining which employees we would call back and which we would not call back to fill the fewer jobs that we now have, we took into account the work record of the employees in each department , and gave first consideration for the various jobs to those employees who were competent and whose work records and per- formance record during the past year indicate a performance record of better than the average of the group for the year 1957. Our records indicate that your performance and work record was such that you did not come within the group entitled to preference under our policy, and since we had more persons who were above the average than we had jobs available, we have had no vacancy that we could offer you. Very truly yours, W. M. HANNON, Executive Vice-President. Foreman Hugh Callaley credibly testified in substance that Hurst had been transferred to the night shift 4 or 5 months prior to the layoff at close of season in 1957, and was not working under his supervison at that time ; that there was no reason for making a request that Hurst be recalled to work and he did not do so; that it was entirely a function of the personnel office to hire or recall employees, and he did not have the privilege of requesting that any particular employee be sent to his department; that Hurst came to his home sometime during the spring of 1958 and inquired whether there was any chance of his being recalled to work; whereupon, he told Hurst to see Personnel Director Smotherman to get the facts, but did not say that he had requested his recall. 3. James E. T. Pratt This individual was first employed by Respondent on June 11, 1956 , as a milling machine operator in Department #44 under the supervision of Foreman Hugh Callaley. He was first laid off at the close of the 1956 season, and was recalled to work in the early part of 1957. Pratt signed a union card on July 3, 1956, there- after solicited other employees to join the organization, and attended union meetings throughout the campaign. His activities were well known to the Respondent as evidenced by a conversation with Foreman Cole of the inspection department shortly before the election in September 1957 in which this foreman related his past experi- ence with unions and inquired what benefits Hurst expected from the Union. See also statement made by Foreman Paul E. Roller on or about June 1, 1957, in Case No. 10-CA-3040, 122 NLRB 1307 (IR). Thereafter, on December 23, 1957, Superintendent Frank E. Budniak and Fore- man Paul E. Roller submitted a jointly signed evaluation report in which James E. T. Pratt was given a numerical merit rating of 12 by reason of which he was disqualified for further employment and was not recalled to work for the 1958' season. In this rating sheet Pratt was rated as "Below Average" in all categories with explanatory printed or written remarks , as follows: "Mistakes are too frequent. May be caused by haste or lack of knowledge. Accuracy and finish of work often unsatisfactory. Careless, don't-give-a-hang attitude at times. Unsuited to job physi- cally. Unsuited to job emotionally. Produces somewhat less than is expected. Lack of effort-doesn't try. Wastes time away from job Sometimes fails to heed instructions. Wastes time if left to work alone. Frequently absent from job. Started late and left early on job breaks. Understands less about the work than the average, or than could be expected. Cannot make adjustments or set-ups as fully as would be desirable. Only fair attitude and cooperation. Leaves something to be desired in this respect. Occasionally temperamental and apt to 'flareup' or to be hard to get along with . We feel there is something wrong with this man." Pertinent printed questions answered in the affirmative or negative indicated that this employee accepted instructions good-naturedly, observed safety rules, observed plant rules of conduct, but would not try new methods willingly, accept changes cheerfully, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. THE MURRAY OHIO MANUFACTURING COMPANY 193 Superintendent Frank E. Budniak credibly testified in substance that one of his principal duties was to discuss the work in the plant with individual employees on their jobs, but instructions to employees were usually given through" the foreman; that he had an opportunity to observe the work of James E. T. Pratt; that Pratt was not physically suitable for his work because his eyesight was bad, and there was no improvement after he started to wearing eyeglasses; that he was emotionally unsuited for individual work, and when,given instructions would grumble, shrug his shoulders, and walk away; that he was warned on several occasions about being careless, break- ing tools, etc., but no incident reports were filed against him; that he was always the first man to leave his machine for job breaks and lunch periods, and demon- strated "a careless, don't-give-a-hang" attitude about his work; and that the quality- of his work was poor and he would flare up and get angry when told about it. Pratt incredibly denies that he was ever late reporting to work or leaving his job early. He also denied ever being warned or reprimanded about his work, that he was frequently absent, or that his eyesight interfered with the proper performance of his duties. After not being recalled to work, he went to the plant in February 1958 to pay up his insurance and talked to Assistant Personnel Director Carl Alex- ander. When he inquired about his job, Alexander said he did not know why he had not been recalled, that he understood that employees were being called back on the basis of seniority, but there were not as many jobs available as in 1957 by reason of excess inventory. At a later date, he again went to the plant in company with other employees, but was stopped by the guards at-the gate and not permitted to enter without a pass or appointment. On July 3, 1958, he wrote a letter to the personnel director inquiring why he had not been recalled to work, but never re- ceived any reply thereto. 4. Buen E. Odem This individual was first employed by Respondent on May 29, 1956, to assembly kickstands for bicycles in department #57 under the supervision of Foreman Steve Svetkovitch. He was first laid off at the end of the season in 1956, and thereafter recalled to work in the early part of 1957. He signed a union card in June or July 1956, thereafter attended union meetings , and solicited other employees to sign union ,authorization cards. The first union meeting attended by him was held in Nebolt more than a year before the election on September 11, 1957. Several meetings were held at Nebolt, several around Lawrenceburg, some at an all-night truck step, and some at Leoma, all under the direction of Organizer Hoyt Wright. Odem testified without contradiction that on the night of the election (September 11, 1957) at the American Legion Hall in Lawrenceburg, Foreman Svetkovitch patted him on the shoulder and said, "Odem I could-a-told you you would-a-lost this election be- fore you had it, but you wouldn't listen to me. I knew how you felt about it-that is the reason I never had said anything to you about it. If you boys need a union you ought to get together and get a union of your own-this UAW, CIO isn't any good." Odem testified further without contradiction that at time of the layoff on December 13, 1957, Superintendent Budniak said to him and his buddy: "You boys count your pieces that you have left over and put them right back in the right place, right where you will be able to go to work at 7 o'clock on the 6th day of January. I want you back the 6th day of January to go to work, so don't bother about putting them back in the big tubs-leave them right where you can get them." Thereafter, on December 20, 1957, Superintendent Frank E. Budniak and Fore- man Steve Svetkovitch submitted a jointly signed evaluation report in which Buen E. Odem wasgiven a merit rating of 17 by reason which he was disqualified for further employment and was not recalled to work for the 1958 season. In this rating sheet Odem was rated as "Average" under the categories "Quality of Work" and "Know- ledge and Versatility." He was rated "Satisfactory" under the category "Relations with Others." In the categories "Quantity of Work," "Dependability," and "Atti- tude and Cooperation," he was rated as "Below Average." Reasons for ratings below average were explained by printed or written remarks, as follows: "Produces somewhat less than is expected. Lack of effort-doesn't try. Sometimes fails to heed instructions. Wastes time if left to work alone. Only fair attitude and co- operation. Leaves something to be desired in this respect." Pertinent printed ques- tions answered in the affirmative or negative indicated that this employee observed safety rules, but would not accept instructions good-naturedly, try new methods willingly, accept changes cheerfully, observe plant rules of conduct, try to improve skills, take an interest in his job, or try to learn other jobs. In support of the foregoing ratings, Respondent introduced in evidence from per- sonnel files an incident report dated June 7, 1957, submitted by Foreman Svetkovitch 030849-62-vol , 134-14 ' l 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Superintendent Budniak to the personnel director, reciting that "On June 7 I was looking for this man about 3.00 p in. and wondered why he was not at his job as I needed the production from his jab badly. I walked into the washroom and found this man already washed up setting in the comer smoking at 3:10 p.m. This is not the first time that this man has been found off his job well before washup time and has been verbally warned before. This should be a final warning to this em- ployee. If this happens again employee will be subject to dismissal or suspension." Superintendent Frank E. Budniak credibly testified in substance that Odem was one of the senior employees at the Lawrenceburg plant, but had never been satis- factory; that in comparison with that of other employees his production was below normal, but the quality of his work was average; that he was constantly leaving his job and had been given several verbal warnings prior to the aforesaid incident re- port of June 7, 1957; that on that particular occasion his work station was vacant at 3 p.m., so the foreman investigated and found him at 3:10 p.m. in the washroom moking a cigar, although quitting of another department, already washed up and smoking'' time was 3:30 p.m.; that it was a violation of the company rule to leave his job that early, that he had on a previous occasion talked to and reprimanded Odem about leaving his job ; and that lack of effort was Odem's greatest fault, and he did not want to produce. Buen E. Odem incredibly testified in substance that he never received any com- plaints about his work and was never criticized for lack of effort, failing to heed instructions, or wasting time; that he does not recall any such incident as that re- cited in the report of June 7, 1957, and it was never mentioned to him. He credibly testified, however, that when not recalled to work in January 1958 he called the personnel office several times and finally talked to Assistant Personnel Director Lloyd George, who told him in substance that employees had been classified in different categories; that he had given the foreman too much backtalk, and his work was not satisfactory; otherwise he would have been recalled to work on his seniority. Odem testified further that he thereafter made several visits to the plant gate seeking an interview with personnel officials, but was always stopped by the guard and not allowed to enter the gate. He also tried to call them by telephone but failed to get anywhere. 5. Yeat Stutts, Jr. This individual was first employed by the Respondent on April 21, 1957, as a press operator in department #57 under the supervision of Foreman Hugh Callaley. When not operating a machine, he performed such work as furnace brazing, sand- ing, and fork assembly. Soon after being hired by Respondent he signed a union card, attended union meetings, and solicited other employees to sign union cards. His activities were known to the Respondent as evidenced by statements made to him by Foreman Ed Paley prior to the election of September 11, 1957, which appear by testimony in Case No. 10-CA-3040, 122 NLRB 1307 (IR). When laid off at the end of the season on November 11, 1957, Foreman Paley told him that he would be recalled to work not later than January 15, 1958. Thereafter on December 20, 1957, Superintendent Budniak and Foreman F. Prince submitted a jointly signed evaluation report in which Yeat Stutts, Jr., was given a merit rating of 6 by reason of which he was disqualified for further employ- ment and wasnot recalled to -work for the 1958 season. In this rating sheet Stutts was rated as "Unsatisfactory" under categories "Quality of Work," "Quantity of Work," and "Relations with Others." Under categories "Dependability," "Knowl- edge and Versatility," and "Attitude and Cooperation," he was rated "Below Av- erage." Reasons for such ratings were indicated by pertinent remarks in print and writing, as follows: "Does almost as much bad work as good, makes frequent mis- takes due to carelessness. Careless, don't-give-a-hang attitude. Produces only enough to justify keeping employed. Lack of effort-doesn't try. Wastes time away from job._ Sometimes fails to heed instructions . Wastes time if left to work alone. Understands less about the work than the average, or than could be ex- pected. Occasionally a problem because of the limited number of jobs he can do. Only fair attitude and cooperation. Leaves something to be desired in this respect. Quarrelsome, surly and hard to get along with. This employee simply would not do his job and would become surly when his work was called to his attention." Perti- nent printed questions answered in the affirmative or negative indicated that this employee observed safety rules, but would not accept instructions good-naturedly, try new methods willingly , accept changes cheerfully, observe plant rules of con- duct, try to improve skills, take an interest in his jobs, try to learn other jobs, or make helpful suggestions. In support of above ratings, the Respondent introduced in evidence an incident report dated September 23, 1957, signed by Foreman F. Prince, Superintendent THE MURRAY OHIO MANUFACTURING COMPANY 195 Budniak, and Personnel Director Smotherman reciting that "This is the third time employee has been talked with and warned about his lack of effort, interest, and cooperation on the job. He just will not, no matter how much encouragement he is given, put forth any effort to do the job satisfactorily. His earnings are well be- low the expected earnings of the job. Assumed a poor attitude and said he is do- ing the best he can. Have told this employee unless he improves he will be separated from the company. Last warning before termination." Superintendent Frank E. Budniak credibly testified in substance that Stutts re- cceived the lowest rating in his three departments: that Stutts exhibited a careless attitude and did poor work by putting pieces in the furnace and failing to follow up; that he consistently failed to make production; and that after several warnings he called the working group composed of Stutts, Rush, Carson, and Henderson into his office and criticized their work, and told them that they would be discharged if the poor work continued. Thereafter, incident reports were filed on all of them. No improvement was shown thereafter. Yeat Stutts, Jr., admits that he was called to the office with other employees to talk about his work; but he incredibly denied having any recollections of what Super- intendent Budniak said to them. Stutts also incredibly testified in substance that he never received any warnings or reprimands whatever about his work, attitude, lack of effort, wasting time, failing to heed instructions , or loitering in the washroom. Stutts credibly testified in substance that in the latter part of January 1958, he went to the plant gate seeking an interview with Personnel Director Smotherman , but the guard refused to admit him without a prior appointment, and that he called the personnel office several times by telephone and was given excuses by the switchboard operator for not calling Smotherman to the telephone. 6. James L. Calton This individual was first employed by Respondent on September 24, 1956, as a setup man in department #62 under the supervision of Foreman Louis F. Heller, and at times under the supervision of Foreman Kelley. He signed a union card in the early part of 1957, attended union meetings, and solicited other employees to sign union cards. His activities were known to Respondent as evidenced by uncon- tradicted testimony that prior to the election of September 11, 1957, Foreman Kelley threatened Calton with discharge if he did not quit talking about the Union, and also stated that people in the office wanted to get rid of him because he was a hot unionman. Calton was first laid off in November 1956 at the end of seasonal operations, and recalled to work on January 7, 1957. When laid off again on November 13, 1957, he was told by Foreman Heller that he would be recalled for the ensuing season in January 1958. Thereafter on December 20, 1957, Superintendent Frank E. Budniak and Fore- man Louis F. Heller submitted a jointly signed evaluation report in which James Calton was given a merit rating of 14 by reason of which he was disqualified from further employment and was not recalled to work for the 1958 season. In this rat- ing sheet Calton was rated "Below Average" under all categories except "Relations with Others" with explanatory -reasons, as follows: "Mistakes are too frequent. May be caused by haste or lack of knowledge. Accuracy and finish of work often unsatis- factory. Careless, don't-give-a-hang attitude. In too much of a hurry. Produces somewhat less than is expected. Lack of effort-doesn't try. Insufficient knowledge of work. Wastes time talking. Wastes time away from job. Slow-requires con- stant instructions and observation . Sometimes fails to heed instructions . Fails to follow through. Wastes time if deft to work alone. Understands less about the work than the average, or than could be expected. Cannot make adjustments or set-ups as fully as would be desirable. Only fair attitude and cooperation. Leaves something to be desired in this respect." Pertinent printed questions answered in the affirmative or negative indicated that this employee observed safety rules and partly tried to improve his skills, but would not accept instructions good-naturedly, try new methods willingly, accept changes cheerfully, observe plant rules of conduct, -take an interest in his job, try to learn other jobs, or make helpful suggestions. Un- -der the category "Relations with Others" he was rated "Satisfactory. Normally obliging and easy to get along with." In support of the foregoing ratings, Respondent introduced an incident report filed on July 23, 1957, reciting that "Calton has been instructed time and time again ,on proper set-up of machines . Many times due to bad set-ups on his part produc- tion has been lost. Man must begin to show improvement"; and a second incident report on October 16, 1957 , reciting that "On this date I have again talked to Calton about his poor set-up work and also being too slow and not thorough in his job. His inefficiency results in lost time ,in production and scrap pieces and also loss in earn- 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings to production workers. Keep working with him to try and improve his work. If not it will be necessary to take this man off the job." Superintendent Frank E . Budniak credibly testified in substance that the setting up of machines is one of the most important jobs in the plant; that this job was given to James L. Calton at his own request, because he had prior experience as a garage mechanic; that he was transferred to the day shift in July 1957 because the night foreman complained about his poor work, after which he (Budniak) talked to Calton about his work on two occasions in July; he was warned for not obeying instructions, and Calton claimed that he was doing the best he could to learn the jobs; and that he was given a second warning at time of incident report in October 1957 because a bunch of rims had been rejected due to improper setup of the machines on the day shift. dames L. Calton incredibly testified in substance that he never received any complaints about his work; was never warned or reprimanded, and never discussed the subject with Superintendent Budniak; that no one ever told him that his setup work was poor, and it was never mentioned to him except on one occasion an inspector required him to change the setup when he did not get it right; and that the line could not run until the setup was perfect and it was never necessary for the foreman or inspector to help him. Although not entirely clear from his testimony, he seems to admit, however, that he was sometimes required to make changes before the inspector would approve the setups made by him, and that the foreman was, probably present on some occasions when this occurred. Calton credibly testified in substance that in January or February 1958 he went to the plant gate and made a request to visit the personnel office to find out why he had not been recalled to work, but the guard refused to admit him; that 2 or 3 weeks later he again went to the gate and requested permission to go in to get his tools; whereupon, the guard called someone by telephone and the tools were brought to him at the gate by an employee named Smith; and thereafter, in July 1958, he had a telephone conversation with Foreman Heller, who stated that he did not know whether Calton would be recalled to work, that it was left up to Smotherman. Superintendent Clarence J. Junke submitted rating sheets on 191 individual em- ployees in the final bicycle division department #45, and paint shop departments #50 and #51. From this group seven employees were not recalled to work by reason of numerical ratings below 23, including alleged discriminatees I. E. McMullin, Clarence E. Lopp, William L. Clark, and Haden Long. With respect thereto, Super- intendent Junke credibly testified in substance that in the latter part of September 1957 he attended a meeting called by Vice -Presiden"t A: H. Wills at which all department heads were present, including Personnel Director Cromer Smotherman^ and Executive Vice President W. N. (Bill) Hannon; whereat the general conditions and operating costs of the Lawrenceburg plant were discussed and Vice President Wills presented an employee merit plan similar to that formerly existing at the Cleveland plant. At a second meeting about the middle of October 1957, Vice President Wills distributed rating sheets and requested all department heads to col- laborate with their foremen and submit comprehensive ratings on all individual employees that would show adaptability of each for their work, but did not mention any minimum rating to disqualify or eliminate any employee from further employ- ment. Thereafter, over a period of 21h months he personally observed the work of employees and conferred with their respective foremen in the preparation of ratings for each individual. 7. I. E. McMullin This individual was first employed by Respondent on August 6, 1956, in paint department #45 under the supervision of Foreman H. Leo Burns and Superintendent Clarence J. Junke. His principal duty was to hang bicycle parts on the conveyor line, which carried them into the paint shop for painting. Approximately 6 months after being hired he signed a union card, and actively participated in the organiza- tional campaign by traveling around with Organizer Hoyt Wrieht, attending union meetings, and soliciting other employees to join the organization and sign union cards.. His activities were known to Respondent as evidenced by several conversa- tions with Foreman Burns and Assistant Personnel Director Carl Alexander prior to the election in September 1957. It appears without contradiction that Alexander- at that time said to McMullin and Head, "If you boys don't let this Union alone, you are going to be back in the log woods where you came from." McMullin was first laid off at the end of the season in 1956, and recalled to work when operations were resumed in the early part of 1957. At the end of the 1957 season he was again laid off and told by his foreman that he would be recalled in January 1958. Thereafter, on December 20, 1957, Foreman Burns and Superintendent Junke jointly signed an evaluation report in which McMullin was given a merit rating of THE MURRAY OHIO MANUFACTURING COMPANY 197 15 by reason of which he was disqualified from further employment and was not recalled to work for the 1958 season . In this rating sheet McMullin was rated as -Average" under the categories "Quality of Work" and "Knowledge and Versatility"; but was rated `Below Average" under all other categories. Pertinent reasons for the disqualifying ratings were, as follows: "Produces somewhat less than is expected. Lack of effort-doesn't try. Sometimes fails to heed instructions. Wastes time if left to work alone. Only fair attitude and cooperation. Leaves something to be desired in this respect. Occasionally temperamental and apt to `flareup' or to be :hard to get along with. Constantly complaining and refuses to carry his share of the load." Pertinent printed questions answered in the affirmative or negative indicate that this employee observed safety rules, but did not accept instructions good- naturedly, try new 'methods willingly, accept changes cheerfully, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing ratings, Respondent offered in evidence an incident report by Foreman Burns and Superintendent Junke dated and filed in the personnel office on June 10, 1957, reciting that "On June 10 when I came back in my depart- ment I found McMullin away from his job, talking, and hindering one of the other employees in a different part of the department. I have talked to this man on previous occasions about his leaving his job station while the overhead conveyor was running. He was told by his leaving the line a hardship was created on the other people. Foreman should not allow this incident to occur again without taking more serious action. Final warning." Superintendent Clarence J. Junke credibly testified that his ratings on McMullin were made after personal observation of-his work and consultations with his fore- man; that he had never talked personally to this man about his production, but relied upon reports from Foreman H. Leo Burns and other foremen, and had previously recommended that the incident report of June 10, 1958, be filed as a final warning to him, because the foreman had talked to him several times; that McMullin was rated below average as to "Quality of Work" and "Attitude and Cooperation" be- cause he constantly complained about having too much work to do, failed to carry his share of the workload, and thereby slowed down operations on the conveyor line and caused loss of production; that he also often complained about the accuracy of his paychecks and made it necessary for the Company to investigate and make time studies of his job; and that he was rated below average as to "Dependability" and "Relations with Others" because he did not do what was expected of him, and wasted a lot of time talking to other employees and complaining to them about his earnings, thereby causing unrest in the department. I. E. McMullin testified that Foreman Diaddorio distributed layoff slips on Novem- ber 15, and told employees that they would be called back to work about January 1, 1958, and that about 1 month later he received a letter i from the Company saying that he would be called back to work, but contained no definite instructions, and he heard nothing further about it. McMullin incredibly testified that he never received any complaints about his work, was never reprimanded, could not recall any incident like that recited in the incident report of June 10, 1958, and was never told anything about it. McMullin credibly testified, however, that he went to see Foreman Burns to inquire why he had not been recalled to work; that the foreman said he did not know, but would find out and let him know; but that he never heard anything more from the foreman. At a later date he tried three times to get in the plant to see the personnel director, but was always stopped by the guard at the gate and not allowed to go in. 8. Clarence Lopp This individual was first employed by the Respondent on August 23, 1956, as a touchup and repairman in paint department #45 under the supervision of Foreman Richard Krueger. About April 1957 he signed a union card and thereafter became active in the organizational campaign by attending union meetings and soliciting 'other employees to sign up with the organization. His activities were known to the Respondent as evidenced by undenied conversations prior to the election with Foremen Hawk and Hardison and Assistant Personnel Director Lambert. Lopp was first laid off at the end of the season in 1956, and thereafter recalled to work for the 1957 season. When again laid off at the end of the 1957 season, on or about Novem- ber 11, 1957, Foreman Krueger told him that employees would be recalled within a month or two. 'When introduced in evidence as Respondent's Exhibit No. 2 this letter proved to be nothing more than a seasonal greeting to all employees containing a check for Christmas holiday pay, but did not mention recall to work. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, on December 20, 1957, Superintendent Junke and Foreman Krueger jointly signed and submitted an evaluation report in which Clarence E. Lapp was given a merit rating of 12 by reason of which -he was disqualified for further employ- ment and was not recalled to work for the 1958 . season. In this rating sheet Lopp was rated ,Below Average" under all categories with explanatory reasons, as follows: "Mistakes are too frequent-may be caused by haste or lack of knowledge. Accu- racy and finish of work often unsatisfactory. Careless, don't-give-a-hang attitude. Shows no interest in present job. High percentage of repair rejects. Lack of effort- doesn't try. Wastes time. Unsuited to job emotionally. Sometimes fails to heed instructions. Wastes time if left to work alone. A problem because of the limited number of jobs he will do. Only fair lattitude and cooperation . Leaves something to be desired in this respect. Occasionally, temperamental and apt to `flareup' or to be hard to get along with ." Pertinent questions answered in the ffirmative or nega- tive indicated that he would observe safety rules, but would not accept instructions good-naturedly, try new methods willingly; accept changes cheerfully, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. t In support of the foregoing ratings Respondent -introduced in evidence an employee incident report by Foreman Krueger dated October 2, 1957, reciting that "For the last four or five months Clarence work has become so poor that it has been necessary to add an extra inspector just to inspect his repair work. I have talked with him and done all I can to try to:get Clarence to do his job as he knows how. I told him that I and the superintendent have worked hard with him and he just will not take an interest in his job and do the job satisfactorily." Recommendation thereon by Superintendent Junke was, as follows: "This employee will have to be replaced if he doesn't show considerable improvement." Superintendent Clarence J. Junke credibly, testified that he talked to Lopp several times about his work, and because of an accumulation of incidents recommended that Foreman Krueger prepare the above incident report dated October 2, 1957; that an additional inspector had been put on in April or May 1957 to follow up the work done by Clarence E. Lopp; and that he personally observed Lopp at work, and it got worse rather than better, and he discussed it with this employee three or four times in the presence of Foreman Krueger. For that reason he was rated below average as to "Quality of Work " because on different occasions Lopp was found sitting outside in an alley or driveway smoking cigarettes . He was rated below average as to "Dependability ", because of a heated argument with the inspector foreman when he attempted - to correct Lopp's work. Under "Knowledge and Versatility" it was noted that Lopp was a problem because he objected to working in the big paint spray booth; and was,also careless about his work. He was rated below average as to "Attitude and Cooperation" because of reports by the foreman that Lopp -objected ,to working in the big paint spray booth and had requested a transfer, which was not recommended until he performed a better job where he was already at work. With respect to "Relations with Others" Lopp was rated below average because he was temperamental and would occasionally "flareup" and get into arguments with the inspectors. f Clarence Lopp incredibly testified on direct examination that he never received any complaints about, his work, never- engaged in any arguments, and was never told anything about an incident report being filed against him; that poor work was never discussed with him by either Foreman Krueger or Superintendent Junke; that he was never warned or reprimanded; that-he frequently worked in the big spray booth and never objected to working there; that no one ever criticized his attitude or coopera- tion or spoke to him about loafing on the job; and that he never knew anything about an extra inspector being put on the job, and does not recall smoking in the alley driveway.' He admitted that all smoking'was prohibited on working time and at'all times in certain areas, but that during break ,periods employees .were permitted to smoke in an area out in front of the restroom . He admitted having arguments with Foreman Hawk and Inspector Foreman Hardison, but that it was about the Union, and not about his work. On cross-examination he admitted 'that for a period of time his work was , not inspected, but that in 1957 the inspectors began to make inspections of the touchup and, repair work performed, by him; that sometimes such work would be rejected, and he would be required to do it over again; that the inspectors would bring the work back to him when not done correctly; and that during break periods in hot weather employees would smoke in the alley driveway, but never smoked there during working hours. Lopp credibly testified that in March 1958 he called Foreman Krueger by telephone; that the foreman said he did not know .when he. (Lopp ) -would be recalled-to work , and suggested that he go to the unem- ployment office; that about, 3 weeks ' later he went to the plant gate and requested THE MURRAY OHIO MANUFACTURING COMPANY 199 an interview with ^Smotherman, whereupon the guard called up the personnel- office and reported that Smotherman was busy; and that approximately 1 month later he ,obtained an interview with Assistant Personnel Director Lloyd George, who said: "Well, I just don't know when you will be called back. We are sorting and grading them out as best suited for the jobs." 9. William L. Clark This individual was first employed by Respondent in May 1956 as a trucker at the unloading station in department #45.2 Finding this job too great a strain on his crippled leg Clark requested and was transferred to the loading station, where he was required to pull hooks off the line, load them on trucks, and push the loaded trucks away. The latter job also proved too strenuous, so he again complained, and during latter part of 1956 was transferred to an operation known as the Ransberg Electro- static System for spraying paint electrically on the bicycle frames. At this job the operator was provided with a stool and not required to remain standing on his feet all the time. Clark remained on the Ransberg machine job until the second shift closed down at the end of the rush season in 1957. This employee signed a union card about June 1956, and thereafter actively supported the organizational campaign by attending union meetings. The first union meeting was held in a chicken house on his farm. His activities were known to Respondent as evidenced by undenied conversations with Foreman Krueger prior to the election in September 1957. This employee was first laid off at the close of the 1956 season,,and about 3 months there- after was recalled to work in the spring of 1957. He was transferred to the belt- washer operation when the second shift closed down, and continued at, work thereat until laid off at the end of the 1957 season. Thereafter, on December 20, 1957, Superintendent Junke and Foreman Krueger jointly signed and submitted an evaluation report in which William L. Clark was given a merit rating of 14 by reason of which he was disqualified from further em- ployment and not recalled to work for the 1958 season. In this rating sheet Clark was rated as "Average" under "Quality of Work," but was rated "Below Average" in all other categories. Explanatory reasons for below average ratings appear on the merit rating sheet, as follows: "Produces somewhat less than expected.' Tries hard but is clumsy and fights job. Wastes time talking. ' Unsuited to job physically. Due to physical limitations this employee apparently is able or willing to do only one portion of the job, operating Ransberg. Is unable or unwilling to do loading, unloading, and similar duties. Fails to follow through. Wastes time if left to work alone. Cannot make adjustments or set-ups as fully as would be desirable. ^ Occa- sionally a problem because of the limited number of jobs he can do. Only fair attitude and cooperation. Leaves something to be desired in this respect. Occa- sionally temperamental and apt to `flareup' or to be hard to get along with. .Tried as a unloader, and loader, as washer, hook changer, and other elements of the job other than Ransberg, and either complained they were too hard, physically unable, or unwilling to do these jobs satisfactory. Is a problem of physical limitations." Pertinent questions answered in the affirmative or negative indicated that this em- ployee observed safety rules, but would not accept instructions good naturedly, try new methods willingly, accept changes cheerfully, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing ratings Respondent' introduced in evidence an employee incident report dated July 30, 1957, by Foreman Krueger reciting that "Clark on this occasion and on previous occasions failed to follow paint schedule. This, causes delay in production and causes inconvenience on a large group of employees." On this report the superintendent recommended that "If Clark can't follow instructions, he will have to be taken off of the job." A second incident report was filed by Fore- man Krueger on October 17, 1957, reciting that "This employee' through. his negli- gence on his job has caused a number of rejected pieces due to bad paint jobs. I have warned him before about not watching the system. while it is in operation." Thereon the superintendent made his recommendation, as follows: "Clark will have to improve to hold his job. He has been tried on several jobs in the department. Employee has been moved from job to job trying to find one he could do. If he can't do the Ransberg job it will be necessary. to recommend separation." - Superintendent Clarence J. Junke credibly testified in substance that. Clark was rated as unsuited'to the job physically because of his complaints about standing and walking around on his crippled leg; that because of these, complaints he was trans- By observation it is apparent that this man is " handicapped by a crippled right leg, attributable to polio during childhood, whereas the left leg is normal in every respect. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferred from job to job so many times that the conclusion was finally reached that Clark was either physically unable or was unwilling to perform any of these jobs; that the Ransberg machine was only a part-time job; and that with respect to the incident report of July 20, 1957, Clark had been putting the wrong paint into the Ransberg, thereby not following instructions on the paint schedule provided therefor, so he recommended his removal from the job if he could not follow instructions. With respect to the incident report of October 17, 1957, he had personally talked to Clark many times about causing rejections due to inferior paint jobs and not watching the Ransberg machine while in operation. By reasons of these transfers from job to job Clark was rated below average under "Knowledge and Versatility," because the number of jobs he was able to perform was limited. His rating of "Below Average" as to attitude and cooperation was attributable to not following the paint schedule and putting the wrong paint into the Ransberg machine. The "Below Average" rating as to relations with others was attributed to temperament because, when corrected, Clark would contend that he read the schedule wrong or just did not watch it. Ratings were based both upon personal observation and discussions with Foremen Krueger and Burns. William L. Clark admits that his crippled leg gave him trouble in the performance of several jobs prior to his transfer to the Ransberg machine operation, but as to the latter job he testified that he never complained, and no foreman ever said that he was physically unsuited for that job; that he was never warned or reprimanded for not following the paint schedule; and that in the beginning the paint was brought to him ready-mixed and he simply dumped it into the Ransberg machine, but during the latter part of 1957 he was required to mix the paint himself. He admits that Super- intendent Junke, during the organizational campaign prior to the election, talked to him in the personnel office about his work, saying, "Clark you have been on the job long enough to know when you are not painting correctly, when your paint is not running right." Clark credibly testified that in January 1958 he went down to the plant to pay his insurance, and inquired of Assistant Personnel Director Nolan Lambert when he would be called back to work; that Lambert said in substance that he did not know, because he had been on the second shift, that orders were short at that time, but they were expecting a pretty good year, and it would likely be in March or April, depending upon economic conditions. Thereafter about May 1, 1958, Clark again went to the plant gate in a car with other employees, but was stopped by the guard and told that he would have to have an appointment to get in the plant. Thereafter, on July 5, 1958, Clark sent a letter of inquiry by registered mail to the personnel department, but never received any reply thereto. 10. Haden Long This individual was first employed by Respondent on October 15, 1956, on the second (night) shift in department #59 under the supervision of Foreman Walker. In that job he was engaged in hanging handle bars on the conveyor line and packing gliders. He was seasonally laid off in December 1956, and was thereafter recalled to work in March 1957. Upon recall he was assigned to department #45 under the supervision of Foreman H. Leo Burns, and engaged in placing bicycle parts on the conveyor belt washer where they went through various washing processes. Long signed a union card while in the hospital about 2 months prior to the election in Sep- tember 1957, and thereafter attended several union meetings , and solicited other employees to sign authorization cards for the Union. His activities were known to the Respondent, as evidenced by an undenied conversation prior to the election with Foreman Burns and Assistant Personnel Director Lambert in which Lambert threatened Long with dismissal from the plant unless he stopped soliciting employees to sign union cards. When again laid off on November 14, 1957, he was told by Foreman Burns along with other employees that they would be recalled within 2 or 2V2 months when the plant changed over to new bicycle models. Thereafter, on December 20, 1957, Superintendent Junke and Foreman Burns submitted a jointly signed evaluation report in which Haden L Long was given a merit rating of 4 by reason of which he was disqualified from further employment and was not recalled to work for the 1958 season. In this rating sheet Long was rated as "Below Average" in the categories "Quality of Work" and "Quantity of Work"; and was rated "Unsatisfactory" in the categories "Dependability," "Knowl- edge and Versatility," "Attitude and Cooperation," and "Relations with Others." Explanatory reasons for these ratings appear on the rating sheet , as follows: "Mis- takes are too frequent . May be caused by haste or lack of knowledge. Accuracy and finish of work often unsatisfactory . Careless. don't-give-a-hang attitude. Un- suited to job emotionally. Produces somewhat less than is expected . Lack of effort- THE MURRAY OHIO MANUFACTURING COMPANY 201 doesn't try. Insufficient knowledge of work. Wastes time talking. Unsuited to job emotionally. Not dependable at all. Must constantly follow him up and check his work. Tries to hide mistakes. Cannot be depended upon to work alone. Under- stands very little about the work and consequently is of limited usefulness. Is com- pletely stalled when anything goes wrong or anything unusual comes up. Very unsatisfactory attitude and cooperation. Quarrelsome, surly, and hard to get along with. Always causing friction and stirring up the other employees. This employee is very difficult to handle and is unsatisfactory." Pertinent questions answered thereon in the affirmative or negative indicate that this employee will not accept instructions good-naturedly, try new methods willingly, accept changes cheerfully, observe safety rules, observe plant rules, try to improve skill, take an interest in his job, try to learn new jobs, or make helpful suggestions. In support of these ratings Respondent introduced in evidence an incident report filed by Assistant Personnel Director Nolan Lambert on April 3, 1957, in which Long was charged with engaging in profanity, and reciting that "Employee approached Nolan Lambert at shift change on night of April 3, 1957, and in a loud voice and an excessive amount of profanity began protesting being placed on a job putting on tires. He stated that he had a bad temper and after being told that his temper might cause him to do something he might be sorry for later he stated that he didn't think so but would walk out if placed on the job again. He was told that if he walked out he would be dismissed. He, continued to use profanity very freely after being asked to talk as he should. Witnesses: Oda Adams, Luther Shirley, and several other employ- ees." Another incident report with respect to profanity and threats of violence by Long to a fellow employee was filed by Foreman Burns on June 27, 1957, as follows: "Threaten violence if Benny Cozart came to Personnel Office or if he talked to any of management personnel." On the latter report Superintendent Junke wrote the following: "This cannot be tolerated. Employee told that profanity and threats will not be tolerated in the plant-any recurrence would result in dismissal." Assistant Personnel Director Nolan Lambert, with respect to the foregoing incident report of April 3, 1957, credibly testified in substance that during the night shift Long came rushing up to him near the timeclock in the plant and in a loud voice said: "Lambert, I want to talk to you, I am getting God-damned tired of Burns sending me back here and putting me on this tire job-I've got a bunch of damn cows to milk at home and I can't milk 'em if I've got blisters on my hands." Thereupon he told Long that profanity could not be tolerated in the plant, and that his temper might get him in trouble sometimes; whereupon, Long said: "By God, he didn't think so, but if he was sent back and put on tires he would walk out." With respect to the second incident report on June 27, 1957, Lambert credibly testified that he had reports that Long was cursing and threatening an employee named Cozart; whereupon, he in- structed Foreman Burns to send Long, Cozart, and Shirley to his office. Cozart came in first and said that Long was accusing him of telling lies on him at the personnel office, and threatened violence if he did it again. Shirley came in next and said that Long was continually accusing Cozart and had invited Cozart to meet him outside the plant. Long came in next and denied making such threats; but he (Lambert), nevertheless, warned Long that if it occurred again, he would be dismissed from the Company. Shortly thereafter, he found Long outside the office, crying, and saying he did not want to be fired; whereupon, he called Long back into the office, tried to reason with and console him, so that he could go back to work. Long said that he was too nervous to work, so at his own request was sent home for the remainder of the night shift. Superintendent Clarence J. Junke credibly testified in substance that three em- ployees, including Haden L. Long, worked at the belt washer, where in rotation they engaged in loading, unloading, and trucking bicycle parts; that Foreman Burns re- ported at least six times, and on two occasions he personally observed that Long raised the electric hoist too high and, by continually pulling on the cord, would break the safety devices thereon, causing materials to be dumped and dropped all over the floor, thereby endangering himself and others. On such occasions the hoist would remain suspended until an electrician could be procured to bring it down and make necessary repairs; that Long raised objections to being placed in other kinds of work; that he engaged in profanity, and when corrected by the foreman would insist that he was doing his job right, but that the other fellow was not doing his; that Long accused fellow employees of making false reports to the personnel office, and on one occasion invited employees Cozart and Shirley outside to fight; that both Foreman Burns and Assistant Personnel Director Lambert made reports and consulted with him about Long's work and conduct; and that he (Junke ) was temporarily exercising jurisdiction over department #59 in the absence of Superintendent Skinner, and for that reason the foremen in the department would come to him for advice. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haden L. Long incredibly denied all of the incidents related in the testimony of Lambert and Junke . When asked on cross-examination to explain some of the things that happened, his memory completely forsook him. He incredibly denied having received any complaints or warnings about his work; denied at any time using pro- fanity in the plant; and denied making any accusations or threats against employee Cozart. After hearing and observing this witness, I am constrained to discredit his testimony wherever it is in conflict with that of Superintendent Junke and Assistant Personnel Director Lambert. Long testified without contradiction, however, that about March 26, 1958, and several times thereafter, he went to the plant for the purpose of talking to Smotherman, Lloyd George, or someone else in the personnel office, but on each occasion was stopped by the guard at the gate and not allowed to enter; and that the guard would always call the office by telephone, but invariably received the report that they were too busy to see him. Superintendent Alexander Skinner submitted rating sheets on 164 individual em- ployees in toy final department #58 and toy enamel department #59, from which group 22 employees were not recalled to work, including the alleged discriminatees, Charles R. Jacobs and James L. Runnels, by reason of a final numerical rating below 23. Superintendent Skinner has been the head of toy final department #58 and toy enamel department #59 since June 1957, dividing his time and supervision be- tween the Cleveland and Lawrenceburg plants until he came to Lawrenceburg on a full-time basis the latter part of September 1957. During his absence Superintendent Junke exercised supervision over these departments. Superintendent Skinner credibly testified that notice to evaluate all employees was received on or about October 1, 1957, and that approximately 2 weeks later he attended a meeting with Production Vice President A. H. Wills for a general discussion of the plan. Thereupon, Wills presented the rating sheet form and explained its functions. At that time all depart- ment superintendents were instructed to collaborate with the foremen and to fairly rate all employees according to their own best judgment. Wills explained the mean- ing of each category, but did not indicate any special significance as to the ob- jective of the numerical ratings accompanying each category. It was pointed out that reasons for each rating could be noted by making a checkmark after appropriate remarks under each category, but was not a mandatory requirement. Thereafter, the rating sheets were prepared in consultation with the foremen and submitted to the office of Vice President Wills in the latter part of December 1957, according to their best judgment and with no intention to throw anyone out of his employment. All rating sheets were written out by the foreman with his consultation and advice and-signed by both of them. He did not know until requisitions were submitted to the personnel director in January 1958 that certain people in his departments would not be recalled to work; that in rating all employees they tried as best they could to make a complete inventory of employees in his departments by evaluating each of them by comparison with other employees. 11. Charles R. Jacobs This individual was first employed by Respondent in June 1956 as a touchup and repairman in department #59 under the supervision of Foreman Frank A. Hawk. He worked with paint spray gun and brush at the final end of the conveyor line to touch up tricycles immediately prior to packing for shipment. It was a production job at which he earned an average of approximately $1.50 per hour. Jacobs signed a union card during the fall of 1956, attended union meetings, and solicited other employees to sign- authorization cards furnished by Organizer Hoyt Wright. Prior to the election he was excused from work by his foreman to visit the union hall and look over the eligibility list of voters. His activities were known to Respondent, as evidenced by uncontradicted statements made prior to the election by Foreman Hawk and Production Vice President Wills. This employee was first laid off at the close of seasonal operations in the fall of 1956, and approximately 6 weeks later was recalled to work for the 1957 season. He was again laid off at the close of the season on or about December 14, 1957, and has never been recalled to work. On or about December 20, 1957, Superintendent Alexander Skinner and Foreman Smith submitted a jointly signed evaluation report in which Charles R. Jacobs was given a numerical merit rating of 13 by reason of which he was disqualified from further employment • and was not recalled to work for the 1958 season: In this rating sheet Jacobs was -rated as "Average" and "Satisfactory" under the categories "Knowledge and Versatility" and "Relations with Others," respectively, but "Below Average" in the categories "Quantity of Work," "Dependability," and "Attitude and Cooperation."- In the category."Quality of Work".he was rated as "Unsatisfactory." THE MURRAY OHIO MANUFACTURING COMPANY 203 Explanatory reasons noted on the rating sheet for these unfavorable ratings are, as follows: "Does almost as much bad work as good , makes frequent mistakes due to carelessness . Careless, don't-give-a-hang attitude. In too much of a hurry. Pro- duces somewhat less than is expected . Lack of effort-doesn't try. Tries to hide his mistakes . Sometimes fails to heed instructions. Fails to follow through. Waste time if left to work alone. Frequently absent. Only fair attitude and cooperation. Leaves something to be desired in this respect. Could be very good man but for some unknown reason will not put the effort to do so." Pertinent questions answered thereon in the affirmative or negative indicate that his employee will accept instruc- tions good-naturedly, accept changes cheerfully,-and observe safety rules , but will not try new methods willingly, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of these ratings the Respondent introduced one incident report prepared and filed by Foreman F. A. Hawk on December 4, 1957, reciting that "Employee's record shows excessive absence . He was advised that it was not a specific incident that is the cause of the report, but an accumulation of incidents . He was advised to correct his absenteeism for the good of himself and the Company." Employee's remarks noted thereon were : "He feels that his absence has been justified by sickness to himself and members of his family." Superintendent's recommendation noted thereon was : "Advised employee to make other arrangements in case of illness to other members of his family." Foreman Frank A. Hawk credibly testified in substance that he observed and frequently talked to Jacobs about his work; that Jacobs was a very sloppy worker and kept his work station in a mess, would leave the paint screen foul with paint, and performed a poor job of repairing while working as a touchup and repairman on the bikeline; that Jacobs attempted to conceal his poor work and evade inspection by hanging repaired parts on the line beyond where the inspector was at work, and the inspector made a complaint about it; and that Jacobs would do good work when being watched, but when left alone would resume his sloppy and haphazard way of doing the job, and became progressively worse throughout the year 1957. Foreman Hawk credibly testified further that Jacobs had a very poor attendance record, and seldom notified the Company in advance when he expected to be absent from work, calling the Company only twice out of 18 absences during 1957, although employees were instructed to notify the Company prior to 7 a.m. so that their jobs could be filled by substitution of other workers to fill every job on the production line; that Jacobs was called into the office of Superintendent Skinner at the time the incident report of December 4, 1957, was prepared, and his excessive absenteeism was fully discussed. Jacobs said that he had illness problems at home , and had been sick himself with a stomach trouble and flu , but did not call in a doctor or go to the company dispensary ; that immediately following this conference Jacobs was again absent for 2 days without making a satisfactory explanation . Foreman Hawk cred- ibly testified that on several occasions he recommended that Jacobs be discharged, but in the absence of Superintendent Skinner the matter was delayed because Junke expressed a desire to personally observe the man on the job a while, and after Superintendent Skinner came down to Lawrenceburg on a full-time basis the matter was delayed for him to make further observation of this man, and because the 1957 season was drawing to a close. Superintendent Alexander Skinner credibly testified from official reports made to him in due course of business that Jacobs was absent from work on 18 different occasions during the year 1957, which was more than any other employee in the plant. For that reason he called Jacobs to his office and talked to him about it in the presence of Foreman Hawk, trying to find out why he was absent so much . Jacobs tried to justify his absenteeism by reason of sickness in his family; and then failed to show up for 2 days following this interview. It was also reported to him that Jacobs would put parts back on the line beyond the inspector without performing proper repairs thereon, and would also hide parts in boxes away from the line instead of making necessary repairs thereon. Charles R. Jacobs incredibly testified that no one ever complained to him about his work, and that he was never warned or reprimanded . He denied trying to conceal poor work by sneaking it past the inspectors or hiding it in boxes away from the line, but asserted that he had seen the foreman himself do such things to get inferior parts past the inspector. Jacobs had difficulty in recalling the various occasions on which he was absent from work, but testified that he always sent word by Yeat Stutts, Jr., or some other employee. He recalled being-in a hospital for I week either in 1956 or 1957, but could not definitely say which year it was. He explained that in the latter part of November he was absent to attend the funeral of his wife's grand- father; and sent word to the Company by Yeat Stutts, Jr. He also recalled that in 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December he was excused for 1 day because his wife went to the hospital to have a baby, but he stayed out an extra day without being excused to bring his mother back from the hospital. Jacobs credibly testified that in January 1958 he went to the plant personnel office to inquire about going back to work, but did not see anyone, because a girl at the desk said that everybody was attending a meeting; that he went back to the plant approximately 1 month later to pay up his insurance on the latter occa- sion he asked to see Personnel Director Smotherman or Superintendent Skinner, but the office girl told him that Smotherman was absent and Skinner was too busy to see him. 12. James L . Runnels This individual was first employed by Respondent on April 2, 1957, in department #59, under the supervision of Foremen Robert Walker and Frank A. Hawk. His principal job was to place cartons on the packing line in proper sequence to facilitate the packing therein by other employees of frames and parts simultaneously moving on the overhead conveyor line. Runnels signed a union card soon after being hired in April 1957, and thereafter attended union meetings and solicited other employees to sign up with the organization. His activities in that respect were known to the Respondent by reason of undenied statements made by Foremen Walker and Hawk in conversations with this employee prior to the election in September 1957. Run- nels made bets with Foremen Sammy White, Robert Walker, and Jesse Hardison that the Union would win the election. On November 14, 1957, this man was laid off along with other employees when seasonal operations were being closed down. -- Thereafter, on December 23, 1957, Superintendent Alexander Skinner and Fore- man Frank A. Hawk prepared and submitted to Production Vice President A. H. Wills a jointly signed employee evaluation report in which James L. Runnels was given a numerical merit rating of 15 by reason of which he was subsequently dis- qualified for further employment and not recalled to work for the 1958 season. In this rating sheet Runnels was rated as "Average" in the categories "Quality of Work" and "Knowledge and Versatility," but was rated "Below Average" in all other cate- gories therein. Explanatory reasons for the unfavorable ratings were listed therein, as follows: "Produces somewhat less than is expected. Wastes time talking. Wastes time away from job. Frequently holds up work due to returning late from lunch period. Sometimes fails to heed instructions. Fails to follow through. Wastes time if left to work alone. Only fair attitude and cooperation. Leaves something to be desired in this respect. Occasionally temperamental and apt to `fiareup' or to be hard to get along with." Additional pertinent questions answered either affirma- tively or negatively therein indicate that this employee will observe safety rules, but will not accept instructions good naturedly, try new methods willingly, accept changes cheerfully, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of these ratings the Respondent introduced in evidence two employee incident reports filed in the personnel office on July 3 and September 17, 1957, respectively. The first report recites that employee was engaging in horseplay on July 3, 1957, as follows: "This man is the controlling job as far as the speed of the conveyor is concerned. He is supposed to put cartons on the belt at the same rate of speed as the frames come off the overhead conveyor. He was warned repeatedly by me not to hold the cartons back and then jam them on the line, thus making the other people farther down the line work much faster than they should to maintain a quality pack. This was not necessary holding back of of cartons. It was just horseplay." Recommendations endorsed thereon by Superintendent Junke was, as follows: "To make out an incident report on the subject employee. Disposition: Incident report being made out and employee warned not to repeat this infringement on plant policy." The second incident report recites that employee was late return- ing from lunch on September 17, 1957, as follows: "Employee has been late before and was warned that he must be on the job when the line starts. He is 2 to 5 minutes late constantly." Employee's-remarks thereon were, "That he could not get through the cafeteria. Other times he was out for lunch and did not get back on time." Recommendation of Superintendent Junke thereon was, as follows: "Reprimand and incident report. Disposition: Employee has been reprimanded and I am making out a report." Foreman Frank A. Hawk credibly testified in substance that for the past 3 years he has been general foreman in charge of the second shift at night in departments #58-59 of the Lawrenceburg plant; that he also works on the first shift (day) during 6 months of the year; and that James T. Runnels worked under his super- vision for approximately 9 months in 1957 on the job of putting cartons on the packing line. He observed that Runnels was a practical joker and engaged in THE MURRAY OHIO MANUFACTURING COMPANY 205 horseplay on the job, playfully tossing nuts and bolts at the feet of other employees, and on one occasion splashed glue upon fellow employees by tossing a wheel into the bucket container. Runnels made a practice of holding back cartons until they jammed up on the conveyor belt, then releasing a large number at one time, thereby destroying the sequence in which they should move down the conveyor belt and making it difficult for other employees down the line to perform the packing opera- tions in an orderly and efficient manner. Runnels also made a practice of being a few minutes late in returning to work from the lunch period, thereby causing delay and reducing the production of other employees on the packing line. At one time Runnels was temporarily assigned to a job at which he could sit'down while recovering from a broken ankle, but when returned to a regular standing job, he raised strenuous objections and said it was a "stinking deal" to take the sitting job away from him and give it to someone else. On another occasion in the tail of 1957, when a change in the park cycle was made by requiring one additional part to be packed in the cartons, Runnels complained that it increased the amount of work he was required to perform. Foreman Hawk credibly testified that he talked to Runnels many times about deficiencies in his work, reported the incidents to Superin- tendent Junke, and subsequently discussed these matters with Superintendent Skin- ner; that he recommended that Runnels be discharged, but no action was taken be- cause Superintendent Skinner was not acquainted with this employee' and wanted to personally observe him for a while. Superintendent Clarence J. Junke credibly testified that Foreman Hawk com- plained to him about James L. Runnels and reported that he engaged in horseplay and hindered the work of other employees; that Runnels would hold back cartons at the head of the control line, and then put them on the belt too close together, making it difficult for employees further down the line to perform their packing duties efficiently; that Runnels made a practice of being late in returning to work after his lunch period, thereby causing frames and parts on the overhead conveyor to accumulate on the floor until Runnels came in to start up the conveyor belt to bring up the packing cartons; and that Runnels contended he could not get through the cafeteria line early enough to return to work on time. Junke further testified that he recommended that Runnels be reprimanded and that incident reports be submitted to the personnel office. He also discussed the matter with Superintendent Skinner and Foreman Hawk together. Superintendent Alexander Skinner credibly testified that the rating sheet sub- mitted with respect to James L. Runnels was based upon reports and consultations with Foremen Hawk and Smith; that Superintendent Junke was in charge of his departments during his absence at the Cleveland plant; and that he did not move to Lawrenceburg on a full-time basis until the last week in September 1957. James L. Runnels incredibly testified that he never received any complaints about his work, that he never engaged in horseplay in the lpant, and was never late in returning to work after the lunch period. He categorically denied each and all of the incidents testified to by Foreman Hawk, and denied that Foreman Hawk or anyone else ever reprimanded him or talked to him about any such things. He also denied any knowledge of the foregoing incident reports being filed against him or that either of them was ever brought to his attention or discussed with him. Runnels credibly testified, however, that in an effort to get recalled to work in 1958, he made three trips to the plant, but was always stopped by the guards at the gate and not allowed to,go in and talk to Personnel Director Smother-man or his Assistant Personnel Director Lloyd George. Superintendent Frank Kolinski (chief inspector) submitted rating sheets on 94 individual employees in inspection department #93 from which group seven employees were not recalled to work by reason of a final numerical rating below 23, including the alleged discriminatees Ronald A. Hartlein, James V. Sudduth, and A. F. Jenkins. 13. Ronald A. Hartlein This individual was first employed by the Respondent on February 11, 1957, as an inspector in department #93 under the supervision of Chief Inspector Frank Kolinski. He worked in various parts of the plant under the supervision of Foremen Ted Papp and Gerald Cole. Soon after being hired, Hartlein signed a union card, and thereafter attended union meetings and talked to other employees about the organization. Shortly prior to, the election in September 1957 he assisted in checkine the eligibility list of voters on behalf of the Union. His union activities were well known to the Respondent, as evidenced by undenied statements made prior to the election by Chief Inspector Frank Kolinski-and Foreman Gerald Cole. At the close of seasonal operations this man, was laid off on November 8, 1957, and has 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never been recalled-to work. On November 18, 1957, Superintendent Frank Kolinski and Foreman Ted Papp prepared and submitted to Production Vice President A. H. Wills a jointly signed employee evaluation report in which Ronald A. Hartlein was given a numerical merit rating of 10 by reason of which he was thereafter dis- qualified for further employment and was not recalled to work for the 1958 season. In this rating sheet Hartlein was rated "Below Average" in all categories except "Relations with Others," and as to that category he was rated "Unsatisfactory.' Explanatory reasons for such unfavorable ratings appear on the rating sheet, as follows: "Mistakes are too frequent. May be caused by haste or lack of knowledge. Accuracy and finish of_work often unsatisfactory. Careless, don't-give-a-hang attitude.- Unsuited to job emotionally. Frequently careless in work. Produces. somewhat less than is expected. Lack of effort-doesn't try. Wastes time talking. Wastes time away from job. Unsuited to job emotionally. Sometimes fails to heed instructions. Fails to follow through. Wastes time if left to work alone. Only fair attitude and cooperation. Leaves something to be desired in this respect. Quarrelsome, surly, and hard to get along with. Always causing friction and stirring up the other employees. Tried on a number of jobs. Had to move him several times because of creating disturbances." Additional pertinent questions answered' either in the affirmative or negative indicate that this employee will observe safety rules, but will not accept instructions good naturedly, try new methods, accept changes cheerfully, observe plant rules of conduct, try to improve skill, take an, interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing unfavorable ratings and remarks, the Respondent introduced in evidence two incident reports submitted by Foreman Papp to the personnel office on June 19 and November 5, 1957, respectively. The first report cited "Loafing" as a specific violation with details, as follows: "I have to continuously go searching for this man to locate and bring him back to his job. I have stood at his station for good long periods of time waiting for'him to come back, and in the end wind up looking for him. When I find him, his excuse is always: `I am looking for pans'." On this report Superintendent Kolinski endorsed the recommendation that "Man should be given a chance at another station to improve work habits." In the second incident report on November 5, 1957, "Careless inattention to job" was cited as the specific violation with details, as follows: "Hartlein had been placed on this job (overhead conveyor) in order to give an opportunity to improve his work habits, but on November 5th a hardship on production was caused by his failure to inspect the parts properly that were going by his work station without seat holes, cranks without holes, and other rejects being caught after they had already come through the paint shop and had been painted." Disposition recommended thereon by the superintendent was "Final warning before separation." Superintendent Frank Kolinski testified that in the fall of 1957 he received rating sheet forms from Vice President A. H. Wills with instructions to Tate all employees for the purpose of evaluating their progress and performance to determine which- ones were best suited for our operating conditions; that ratings should be made in, collaboration with his subordinate foremen and supervisors, but no minimum stand- ard for retention of employees was mentioned. The ratings given to Ronald Hart- lein were based upon his performance over a period of approximately 8 months from reports made by subordinate foremen and supervisors; that he was frequently careless about his work, and on two occasions it'was necessary to go over some of his work; that on another occasion Personnel Director Smotherman reported dis- satisfaction among some of the female employees in the wheel department because Hartlein was rejecting more of their work than usual, so without determining the fairness of his inspections therein, Hartlein was moved to another department to stop the disturbance. In May or June 1957, Hartlein was assigned as inspector on the fork-lift line and worked at a station that was visible from the superintendent's office; that he (Kolinski) during that period observed on at least two occasions that Hartlein was absent from his work for periods of 10- or 15-minute intervals, and Foreman Papp was instructed to investigate such absences; that he had no knowl- edge that Hartlein was a member of the Union, and never discussed the organiza- tional activities with him; that Foreman Papp reported to hire on several occasions that Hartlein was loafing on his job; and that the foreman in the pressroom on one occasion reported that he was disturbing other employees there and not properly performing his own job. Foreman Ben Starkey (pressroom) credibly testified that he requested Chief Inspector Kolinski to remove Hartlein from the pressroom as inspector because he was spending too much time talking to the press operators. Ronald Hartlein credibly testified that he was never criticized, warned, or repri- manded about his work, for interfering with or disturbing other employees, and THE MURRAY OHIO MANUFACTURING COMPANY 207 denies that he was at,any time removed from one job to another by reason thereof. He admits, however, that on one occasion an unauthorized employee (Dick Cape- hart) put him on a job of checking tubing, and that Foreman Papp instituted a search for him, and inquired where he had been. Hartlein testified that in June or July 1957 he complained to Foreman Gerald Cole that Foreman Papp had been untruthful about certain overtime work, whereupon Foreman Cole said: "You better not make it too rough on Papp, he went to bat for you several times and he has.been out on the well known limb to save you. They have asked him one time to get rid of you and he has told them that he was not getting rid of you, that he thought too much of you, that if they wanted to get rid of you that they could do it themselves, but he would not do the dirty work." Hartlein testified that Foreman Papp told him he was being switched around to learn quite a few jobs so that he could be used as a replacement when others were absent from work. Hartlein credibly testified that in April 1958 he talked to Assistant Personnel Director Lloyd George about a job in the toolroom; that George postponed the matter until he could get in contact with someone in the toolroom about it; that he called George three times and accused him of "giving me the run around ," whereupon George said he was wasting time and hung up the telephone receiver; that George said they were calling employees back to work on a rating system, and that someone had sub- mitted unfavorable remarks about his work; and that the reason he had not been recalled was because his work was not up to par. Thereafter, in Judy 1957, he talked by telephone to Foreman Ted Papp, who said that he would like to help him, but had already gotten into hot water about it, and suggested that he see Superin- tendent Kolinski to get his problem straightened out. On the next day he called Superintendent Kolinski, who suggested that he see Personnel Director Smotherman. Thereafter, he tried several times to get in contact with Smotherman, but failed to contact him by telephone, because the operator would take his name and then give- some excuse for not connecting him with Smotherman or Lloyd George in the personnel office. 14. James V. Sudduth This individual was first employed by Respondent on April 21, 1957, in depart- ment #57, worked until June as a wrapper, and was then made an inspector under the supervision of Foreman Hardison on the night shift. It was known or suspected' by the Respondent that Sudduth was in favor of the Union, as evidenced by con- versations with and statements made to him by Foreman Hardison and Foreman Walker prior to-the election in September 1957. He made a bet with Foreman' Walker that the election would be won by the Union. Sudduth was laid off on October 11, 1957, and has never been recalled to work. On November 6, 1957, Superintendent Frank Kolinski and Foreman Jesse T. Hardison prepared and sub- mitted to Vice President A. H. Wills a jointly signed employee evaluation report in_ which Sudduth was given a numerical merit rating of 11 by reason of which he was thereafter disqualified for further employment and was not recalled to work for the 1958 season. In this rating sheet Sudduth was rated "Satisfactory" in the cate- gory "Relations with Others," but "Unsatisfactory" as to "Dependability." With _ respect to all other categories he was rated "Below Average." Explanatory reasons for the unfavorable ratings are set forth therein, as follows: "Mistakes are too fre- ' quent. May be caused by haste or lack of knowledge. Accuracy and finish of work often unsatisfactory. Careless, don't-give-a-hang attitude. Lack of effort- doesn't try. Insufficient knowledge of work. Wastes time away from job. Not dependable at all. Must constantly follow him up and check his work Tries to hide his mistakes. Cannot be depended upon to work alone. Occasionally a prob- lem because of the limited number of jobs he can do. Only fair attitude and co- operation. Leaves something to be desired in this respect. Normally obliging and, easy to get along with. Not interested in his job. Needs constant checking to see that he is doing it." Additional pertinent questions answered in the affirmative or negative indicate that this employee will accept changes cheerfully, and observe safety rules, but will not accept instructions good-naturedly, try new methods will- ingly, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing evaluations and ratings the Respondent introduced in evidence an incident report prepared and 'submitted by Foreman Hardison to the personnel office on July 23, 1957, reciting that "On Judy 23 this man through his carelessness and inattention to his job caused quite a bit of lost time and also un- necessary work by not checking transfers on the backbone of the parkcycles. He - also neglected trying the double bars to 'see if the set screws would line up. This man spends entirely too much time off the job, either in the restroom or away from - his work station , talking and hindering other employees." Recommendation en- - 208 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD dorsed thereon by the superintendent recited that "this inattention to job should not be tolerated." Superintendent Frank Kolinski credibly testified that the did not personally ob- serve the work of James V. Sudduth, but that it was reported to him by this man's immediate supervisors that he was very careless, did not give necessary attention to his job; and was short-cutting the operations required on materials passed down the conveyor line. James V. Sudduth credibly testified that he never received any complaints about his work, and was never warned or reprimanded about anything; started work at $1.10 per hour, received increases in pay regularly, and was earning $1.36 per hour at time of layoff; that Foreman Hardison told him that he was one of the best inspectors he had. In June 1957 Sudduth applied for a civil service job with the Tennessee State troopers, and was told by Assistant Personnel Director Lloyd George that the Company had given him a good recommendation for the job. When not recalled to work in January 1958, Sudduth went to see Personnel Director Smother- man and inquired whether he would be recalled to work. Smotherman told him that fewer people would be hired than last year, and that he might not be recalled. 15. A. F. Jenkins This individual was first employed by Respondent in February 1957, and worked as an inspector on the day shift under the supervision of Foreman J., H. Wimbs. Soon after being hired, he signed a union card, attended union meetings, and so- licited other employees to sign authorization cards in favor of the Union. His activities were known or suspected by the Respondent, as evidenced by an undenied statement made by Foreman Wimbs to this man in April 1957 to the effect that they had heard that he was a red-hot unionman and that union meetings were being held at his house. Jenkins denied that any meetings were held at his home. When laid off on November 15, 1957, Foreman Wimbs told him that he would be recalled to work upon resumption of operations after the first of the new year, and Foreman Hardison said that employees would be recalled according to seniority. On November 19, 1957, Superintendent Frank Kolinski and Foreman J. H. Wimbs prepared and submitted a jointly signed individual merit rating report in which Archie F. Jenkins was given a numerical merit rating of 14 by reason of which he was thereafter disqualified for further employment and was not recalled to work for the 1958 season. In this rating sheet Jenkins was rated as "Satisfactory" in the category "Relations with Others," but in all other categories was rated as "Below Average " In addition to the descriptive phrases appearing as a part of each cate- gory, explanatory reasons for the unfavorable ratings were indicated, as follows: "Lack of effort-doesn't try. Sometimes fails to heed msructions. Fails to follow through. Wastes time if left to work alone. Cannot make adjustments or set ups as fully as would be desirable. Occasionally a problem because of the limited number of jobs he can do. Unable to make decision." Pertinent questions answered thereon either in the affirmative or negative indicate that this employee will accept instructions good-naturedly, accept changes cheerfully, observe safety rules, observe plant rules of conduct, but will not try new methods willingly, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. Superintendent Frank Kolinski credibly testified that he never personally observed the work of A. F. Jenkins, no incident reports were ever submitted with respect thereto, and the foregoing merit ratings are based upon his collaboration with and reports received from foremen and supervisors. Foreman Wimbs reported to him that Jenkins needed more supervision than any other employee, was not versatile, would not accept responsibility or make decisions normal for any inspector to make, and depended at all times on the foreman to help him decide what to do, thereby causing materials to pile up on the floor while he went off to find and consult his foreman. A. F. Jenkins credibly testified in substance that he started work in the plant at a wage of $1 per hour, periodically received increases to $1.45 per hour, and was never absent from work;,that he constantly made decisions on his job as inspector, and never received any complaints about his work; that he never received any warn- ings or reprimands whatever; and that Foreman Wimbs told him he was doing a good job, and he never had any conversation with Superintendent Kolinski. In March 1958 he talked to Assistant Personnel Director Lloyd George in the personnel office, who said that they were recalling employees best qualified for their jobs, and that he was not in that group. In April 1958, he went to see Personnel Director Smotherman, who told him also that they were recalling only the best qualified and most dependable employees. When asked if he had heard that Jenkins was a red-hot unionman and held union meetings at his home, Smotherman replied: "Yes, ain't no THE MURRAY OHIO MANUFACTURING COMPANY 209 use beating around the bush about it, we heard that-but was not the reason I was not recalled." Superintendent Michael Maskovyak rating sheets on 73 individual employees in shipping department #92 from which group 8 employees were not recalled to work by reason of ratings below 23, including the alleged discriminatees Charlie P. Barton, George M. Head, R. C. Killen, C. L. Walker, and Robert W. Brown. 16. Charlie P. Barton This individual was first employed by the Respondent in the receiving department on May 14, 1956, and thereafter in July 1956 was transferred to shipping department #92, where he worked as a checker and leadman under the supervision of Foreman Robert S. Lough and Assistant Foreman Junior Hood. He was the senior employee in his department. Barton signed a union authorization card about July 1956, but the record does not show that he took any active part in the organizational campaign. He was first laid off in December 1956 at the close of seasonal operations, and approximately 1 month later was recalled to work for the 1957 season. He was again laid off on December 20, 1957, at the close of seasonal operations, at which time Foreman Lough said that employees would be recalled according to seniority. Consequently, Barton expected to be the first employee recalled to work. On December 23, 1957, Superintendent Maskovyak and Foreman Lough prepared and submitted a jointly signed individual merit rating report to Vice President Wills in which C. P. Barton was given a numerical merit rating of 13 by reason of which he was thereafter disqualified for further employment and not recalled to work for the 1958 season. In this rating sheet Barton was rated as "Average" in "Knowledge and Versatility," but "Below Average" in all other categories. In addition to re- marks descriptive of each category, explanatory reasons for the unfavorable ratings were indicated therein, as follows: "Careless, don't-give-a-hang attitude. Unsuited to job emotionally. Not accurate. Tries hard but is clumsy and fights job. Insuffi- cient knowledge of work. Had other men doing his checking, resulting in slow and inefficient work by his crew. Sometimes fails to heed instructions. Fails to follow through. Too hard to get along with-results not worth the time and effort." Perti- nent questions answered thereon in the affirmative or negative indicated that this employee will observe safety rules, and make helpful suggestions sometimes, but will not accept instructions good naturedly, try new methods willingly, accept changes cheerfully, observe plant rules of conduct, try to improve skill, take an interest in his job, or by to learn other jobs. In support of the aforesaid ratings, the Respondent introduced in evidence two incident reports signed by Foreman Lough and countersigned by Superintendent Maskovyak. The first report dated June 12, 1957, recites incorrect checking and failure to follow instructions, as follows: "Barton is being warned again for frequent mistakes on loading out cars. On June 3 it was necessary to send a man to Nash- ville to help straighten out one carload that Barton had mischecked. On this date it was found that he was having one of his,men do the checking work. He was warned to improve his checking efficiency and accuracy, that he was being paid to do so. Very poor attitude. Blamed mistakes on others. Errors of this type cannot continue as it interrupts the Company's efficient operations." The second report dated July 29, 1957, recites very poor and objectionable attitude, to wit: "On Monday, July 29, Barton stopped me and asked why he did not get a foreman's job. I told him that his work had been most unsatisfactory in the job that he had. He became indignant and said that he was much better qualified for the job than the man who got it. He was reprimanded for this flare up, temper and unwarranted criticism, and was again told that his work was very unsatisfactory." Recommenda- tions endorsed thereon by Superintendent Maskovyak were as follows: "The Per- sonnel Dept. has been advised that unless this man's attitude changes it will be necessary to take him out of this Dept." Superintendent Michael Maskovyak (traffic manager) credibly testified in sub- stance that on three occasions Barton voluntarily told him that he had not signed a union card, because he did not want to jeopardize his chances of becoming a foreman, and became disgruntled when he was not promoted thereto on the basis of seniority. Barton was about the last man he would ever promote on the basis of qualifications and ability, because he made frequent mistakes every day in his work as a checker, would deny his own mistakes when reprimanded and blame the men under him for them, made six errors on one particular day in loading one car involving six separate shipments, and made it necessary to send a man to Nashville with bills of lading to check all the orders and restencil some of the cartons. On a number of occasions it was necessary for Foreman Lough and himself to enter a car and recheck Barton's G30S49-62-col 134-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loading count. Sometimes Barton would lose count in a partly loaded car and make it necessary to pull out the merchandise and recount the packages. He reported to the personnel office that Barton had become a problem, and received instructions to file incident reports on his deficiencies and terminate him if he did not get straight- ened out. Barton failed to follow instructions about loading cars to the roof and also about rotating his men in the loading work. Charlie P. Barton incredibly testified that he never received any complaints or reprimands about his work, and was always told that he was doing a good job; that the only time he failed to carry out instructions was when Foreman Lough told him to tell his men that the plant would close down and move out if the Union came in; that Superintendent Maskovyak told him he was doing a good job and was next in line for an assistant foreman's job; and that when he reminded the superintendent of his promise, Maskovyak became angry and said: "Well, I will tell you we will hire and file and promote anybody we want to when we get ready. Well, Lloyd George and Smotherman are running that show up there If you want to get another job I will give you a good recommendation, but Lloyd George and Smotherman are running that show up there." Barton also testified that Superintendent Maskovyalc said he was going to make him assistant foreman, but Smotherman disapproved it. Barton credibly testified that in January 1958 he called the personnel office several times, and finally got in contact with Personnel Director Smotherman at his home, but Smotherman put him off and would not talk over the telephone about recalling him to work. He also went to the plant, but the guards would not allow him to go in without an appointment to see Smotherman, but on one occasion did go in with him to pay his insurance. Barton also talked to Superintendent Maskovyak about going back to work, who said "Well, your work is not satisfactory and you didn't ,get along with your men." The General Counsel also offered the testimony of former Assistant Foreman James E. Hughes to the effect that he observed the work of Charlie Barton as a checker and found that he obeyed instructions and performed his work promptly and correctly. I give little weight to this testimony, however, because Hughes himself was terminated on or about November 7, 1957, by reason of an altercation and fight with an employee working under his supervision. Hughes had signed a union card, and was thereafter appointed assistant foreman about July 1957. Hughes himself had been a checker, and received the promotion to assistant foreman despite the seniority of Barton in department #92. 17. George M. Head This individual was first employed by Respondent on August 28, 1956, in shipping department #92 under the supervision of Foreman Robert S. Lough. During the latter part of 1957 he was a carloader in the group working with Checker Charlie P. Barton, but prior thereto had worked with several other loading crews. He attended union meetings, signed a union card, and solicited other employees to join the organization by passing out cards to them. His activities on behalf of the Union were known to the Respondent, as evidenced by statements found in Case No. 10-CA-3040 to have been made prior to the election of September 1957 by Assistant Personnel Director Alexander to the effect that he and Gene McMullin would be sent back to the log woods if they did not let the Union alone. Head was first laid off at the close of seasonal operations in December 1956, and thereafter recalled to work in January 1957. At the close of operations he was again laid off on Decem- ber 7, 1957, and was not recalled to work in 1958. On December 17, 1957, Superintendent Maskovyak and Foreman Lough prepared and submitted to Vice President Wills a jointly signed employee merit rating report in which Head was given a numerical merit rating of 14 by reason of which he was thereafter disqualified from further employment and not recalled to work for the 1958 season. In this rating sheet Head was rated as "Satisfactory" in "Relations with Others," but was rated therein as "Below Average" in all other categories. In addi- tion to the descriptive phrases of each category, explanatory reasons for the unfavor- able ratings were indicated therein, as follows: "Careless, don't-give-a-hang attitude. In too much of a hurry. Wastes time talking. Wastes time away from job. Some- times fails to heed instructions. Wastes time if left to work alone. Frequently absent. Understands less about the work than the average or than could be ex- pected Cannot make adjustments or setups as fully as would be desirable. Occa- sionally a problem because of the limited jobs he can do. Likes to horseplay and late quite often." Pertinent questions answered therein in the affirmative or nega- tive indicate that this employee will accept instructions good naturedly and accept changes cheerfully but will not try new methods willingly, observe safety rules, THE MURRAY OHIO MANUFACTURING COMPANY 211 observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing ratings, Respondent introduced in evidence three inci- dent reports signed and submitted to the personnel office by Foreman Lough and Superintendent Maskovyak. The first dated May 15, 1957, reported complete dis- regard of safety rules with details, as follows: "On May 15 this man was cautioned and reprimanded for his complete disregard for his own personal safety and the safety of others in the Department. He has been warned frequently about indulging in horseplay during rest periods and lunch periods. Also he will not use any caution in pulling a loaded skid down aisle way approaching a blind corner resulting in near miss collisions with tow motors coming down one of the main aisle ways." Recom- mendation thereon by the superintendent recited that "Disregarding of safety rules cannot be tolerated. Any more such offenses will result in man's suspension or separation." The second report dated October 16, 1957, pertained to "Damaging. bike cartons through carelessness," and recited that "On this date this man damaged. a number of cartons by pulling his loaded skid too fast and turning a comer too swiftly and hitting a post knocking the cartons over. He has been cautioned about this on several other occasions." Recommendations thereon by the superintendent re- cited "Final warning before suspension or separation. Filing this record in his per- sonnel folder." The third report dated October 29, 1957, pertained to irregular attendance, and recited details, as follows: "Have talked with Head a number of times regarding his attendance and lateness to work. I told him the need for work- ing every day as we just had the necessary number of men to do the job with everyone here. By his missing a lot, worked a hardship on the other people." Recommendations thereon by the superintendent recited "if Head can't work regu- larly he will have to be replaced." Superintendent Michael Maskovyak credibly testified in substance that for the first 4 or 5 months of his employment he regarded Head as a good employee, but later changed his mind about it, that he received complaints from tow motor operators that Head was rushing heedlessly up and down the aisles with mechanical equipment, and thereby endangering the safety of others; that on one occasion he personally observed Head dump a load of materials because he was going too fast, and talked to him about it; that he also received reports that Head frequently engaged in horse- play such as greasing the handle of dollies or skids and "goosed" other employees at work; that Head was not discharged prior to end of the season because the Company had adopted a moratorium on discharges during the organizational cam- paign prior to the election, and the personnel director instructed him to wait until the end of the year, because it was too late to bring in temporary replacements so late in the current season, and to report the infractions of all employees by filing incident reports in the personnel office for use in determining whether they should be retained in their employment by the Company; and that incident reports were utilized as a means of information to the personnel office with respect to the efficiency of indi- vidual employees. Maskovyak credibly testified that all incident reports and the merit rating sheet on George M. Head were prepared and filed after consultations with Foreman Lough; that they were written up by the foreman in his presence and according to his instructions and approval; that Head was rated below average with respect to quantity and quality of work because he was very careless and in too much of a hurry, pulled the skids too fast, wasted time talking to other employees, and then rush to the car to avoid reprimand from the checker for delay; that he was rated below average for dependability because he would not follow instructions, was careless in observing plant rules and safety regulations, and had a bad record for absenteeism in that he was absent 17 times in 1957, which was more than any other employee in the department; that he was rated below average in knowledge and versa- tility because it was necessary to constantly warn him about carelessness in perform- ing simple jobs, and could not be depended upon to pick up stock and return prompt- ly; and that he was rated below average on attitude and cooperation because of failure to observe safety rules, and was a constant annoyance by his horseplay. George M. Head incredibly testified that he never received any complaints or reprimands about his work, except that on one accasion Foreman Lough spoke to him about working too fast, cutting out in the aisles with his skid, and told him to slow down to avoid being hit by tow motors. He denied any criticism by Foreman Lough about knocking down a stack of cartons or engaging in horseplay. He ad- mitted being absent from work about 19 days in 1957, but attributed it all to sickness in his family including himself for 7 or 8 days, and contended that he always notified the employer by sending word by other employees, and that he was never criticized or reprimanded for being absent. He denied any knowledge of incident reports being filed against him. 212 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD 18. R. C. Killen This individual was first employed by Respondent on August 6, 1956 , in shipping department #92 under the supervision of Foreman Robert S. Lough . He engaged in loading cars in a group working with a checker (Owen Pettus). He signed a union card and attended union meeting , but there is no evidence that he actively partici- pated in the organizational campaign . Respondent knew of his sympathetic attitude toward the Union, because prior to the election Foreman Lough inquired what he thought about the Union, and he told the foreman that it might be better when the Union came in the plant. Killen was first laid off at the close of seasonal operations in December 1956 , and approximately 5 weeks thereafter was recalled to work in 1957. He was again laid off at the end of the season on December 20. 1957, and has never been recalled to work. On December 23, 1957, Superintendent Maskovyak and Foreman Lough pre- pared and submitted an employee evaluation report in which R . C. Killen was given a numerical merit rating of 11 by reason of which he was subsequently disqualified from further employment and not recalled to work in 1958. In this individual merit rating sheet Killen was rated as "Satisfactory" under the category "Relations with Others." In the category "Dependability" he was rated as "Unsatisfactory," and in all other categories was rated "Below Average." In addition to phrases describing the various categories, explanatory reasons for the unfavorable ratings are indicated therein, as follows: "Careless, don't-give-a-hang attitude. Unsuited to job emotion- ally. This man's work is slow. Lack of effort-doesn't try, wastes time away from job. Not dependable at all. Must constantly follow him up and check his work. Cannot be depended upon to work alone. Understands less about the work than the average, or than could be expected. Occasionally a problem because of the limited number of jobs he can do. Work very slow, doesn't like to work overtime. Does not do his share of Group's work." Pertinent questions therein answered in the affirma- tive or negative indicate that this employee will accept instructions good naturedly, and accept changes cheerfully, but will not try new methods willingly, observe safety rules, observe plant rules of conduct, try to learn other jobs , or make helpful suggestions. In support of above ratings the Respondent introduced in evidence two incident reports prepared and submitted to the personnel office by Foreman Lough and Super- intendent Maskovyak. The first report was dated October 17, 1957, and pertained to slowness. Details recited therein were as follows: "His assigned work was to pull skids between the stock pile and the loading dock. He wandered off the job and his lead man (R. Williams) had to find him. This held up the whole crew. He had been cautioned about this several times in the past. The other men yin his crew complained that he did not do his share of the work because he kept wandering away." Recommendation of the superintendent thereon was "Reprimand and advise employee must improve work habits." The second report was dated November 22, 1957, and also pertained to slowness . It was recited therein that "His assigned work was to pick up stock in the warehouse to fill orders in the course of the day. He picked up the wrong stock at least four times. This caused the crew to lose a great deal of time and they did not accomplish a normal day's output of work. He picked up less stock than any other pickup man." Recommendation of the superintendent thereon recited that "personnel was advised this man was too slow and clumsy even for the simplest labor jobs in the warehouse and recommended that he be replaced." Superintendent Michael Maskovyak credibly testified in substance that the person- nel office usually sent to his shipping department those job applicants who v'ere un- suited for incentive type production work; that R. C. Killen was a type of employee that was not suited to the regimentation of industrial work, and was capable of per- forming only the duties of a laborer; that he was slow, took no interest in the work, would frequently wander away from his job, never showed any improvement, and objected to working overtime; that he failed to keep up and perform his share of the work in his group, and other employees complained about it; that he recommended replacement of Killen, but by reason of the moratorium on discharges during the organizational campaign the personnel director insisted that he wait until the end of the season; and that after the election was over it was too late to hire a replacement before the seasonal layoff. R. C. Killen incredibly testified that he never received any complaints or repri- mands about his work, and did not know of any incident reports being filed in the personnel office; that he worked overtime whenever permitted to do so, but on two occasions objected to short periods of overtime after regular hours because he would miss a ride home. He credibly testified, however, that on February 13, 1958, while paying his insurance at the personnel office, he asked to see Smotherman, but was told that he was too busy to see him. At a later date he went to the plant gate and THE MURRAY OHIO MANUFACTURING COMPANY 213 asked to see Smotherman , but the guard told him he would have to have an appoint- ment to get in. Thereafter he called the personnel office by telephone from the out- side, but was told that Smotherman was busy and would not have time to talk to him. On April 2, 1958, he went to see Executive Vice President Bill Hannon at his home, who said he did not know much about the shipping department , but would arrange for him to see Personnel Director Smotherman . Thereafter, Smotherman agreed to see him at the personnel office at 9 a.m. next day . Upon arrival at the office Smotherman was absent , but he talked to Assistant Personnel Director Lloyd George, who told him that they were recalling people on the basis of seniority and could not say when he would be recalled to work. 19. C. L. Walker This individual was first employed by Respondent on August 6, 1956 , in shipping department #92 under the supervision of Foreman Robert S . Lough. He worked with a checker and crew loading cars and as a pickup man . He signed a union card about September 1956, attended union meetings, and solicited other employees to sign up with and support the organization . His activities were known to the Re- spondent , as evidenced by undenied statements made to him by Foremen Lough and Gaines shortly before the election in September 1957 . Walker was first laid off at the close of seasonal operations in December 1956 , and recalled to work in the early part of 1957 . At the close of seasonal operations he was again laid off on December 20, 1957, and was not recalled to work in 1958. On December 23, 1957, Superintendent Maskovyak and Foreman Lough pre- pared and submitted to Vice President Wills a jointly signed employee evaluation report in which C. L. Walker was given a numerical merit rating of 14 by reason of which he was subsequently disqualified for further employment and not recalled to work for the 1958 season . In this employee merit rating sheet Walker was rated "Satisfactory" as to "Relations with Others," but was rated "Below Average" in all other categories. In addition to phrases descriptive of the respective categories, explanatory reasons for the unfavorable ratings were indicated therein , as follows: "Careless, don't-give-a-hang attitude . Work slow. Lack of effort-doesn't try. Wastes time talking . Wastes time away from job. Sometimes fails to heed instruc- tions. Wastes time if left to work alone . Understands less about the work than the average, or than could be expected . Cannot make adjustments or setups as fully as would be desirable . Constantly picking up wrong stock, cannot adapt to any change in methods." Pertinent questions therein answered in the affirmative or negative indicated that this employee will accept instructions good naturedly , accept changes cheerfully , and observe safety rules, but will not try new methods willingly, observe plant rules of conduct , try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing ratings, the Respondent introduced in evidence two incident reports submitted to the personnel office by Foreman Lough and Superin- tendent Maskovyak. The first report dated August 8, 1957 , pertained to "Neglect of Duties" and it was recited therein that "On the above date this man was repri- manded for his obvious neglect of duties. He has been verbally warned and talked with several times previously about not doing his share of the Group's work. He spends entirely too much time away from his crew in the washroom. or in some other appropriate loafing place." Recommendations endorsed thereon by the superin- tendent recited that "If this neglect of duties continues this man should either be suspended or separated . Filing this record in the man's personnel folder." The second report, dated October 21, 1957 , pertained to "Uncooperative attitude , Wander- ing away from the job-Loafing," and recited that "Walker has been reprimanded before about loafing. He has been given every opportunity to improve." Recom- mendation thereon by the superintendent was "Final warning, before suspension or separation " Superintendent Michael Maskovyak credibly testified in substance that Walker was a very slow worker, and loafed on the job; that he just didn't want to work, and would sit down any time the supervisor was away from the area; that be did not do his share of the work, talked too much , and spent too much time in the restroom; that he was undependable , did not try, and was not capable of being an average employee; that he usually objected to being rotated from one job to another, and when sent to pick up stock he would often bring back the wrong merchandise and thereby delay the entire group in their work while his mistakes were being corrected; that he was warned several times about his mistakes , and the checkers disliked his work because they might be held responsible for loading the wrong stock in cars; and that he would not complain when reprimanded , but would sit down more than any employee in the department when a supervisor was not around. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. L. Walker, incredibly testified that he never received any complaints about his work, and that he was never warned or reprimanded about anything; that he never failed to carry out instructions, and knew nothing about the incident reports filed in his personnel folder; that he overheard Foreman Hugh Callaley tell Arthur D. Bar- ton on the street in Lawrenceburg that he (Barton) and Magee were two of the best employees he ever had, and that he would like to call them back to work, but could not do so, because the Company would not recall those who were working for the Union. Walker credibly testified, however, that on January 19, and February 19, 1958, respectively, he went to the plant to pay up his insurance, and on both occa- sions-asked to see Personnel Director Smotherman, but was told by the office girl that he was absent from the office; that on July 19, 1958, in company with other employees, he went to the plant gate and called the personnel office by telephone, but was told that Smotherman was too busy to see them. 20. Robert W. Brown This individual was first employed by Respondent in July 1956 as a laborer in shipping department #92 under the supervision of Foreman Robert S. Lough. There- after, in September or October 1956, he was assigned to the job of counting com- pleted tricycles as they came from the production line to the shipping department. At the close of seasonal operations he was first laid off on December 15, 1956, there- after recalled to work as a laborer in the early part of 1957, and again assigned to the counting job on May 27, 1957. Brown signed a union card at an early stage of the organizational campaign in 1956, attended all meetings called and presided over by Organizer Hoyt Wright, including one of the first meetings in the Com- munity Building at Mount Nebo, solicited other employees to join the organization by procuring signatures on 40 or 50 authorization cards, assisted in the preparation of the eligibility list, and acted as an observer for the Union at the election on Sep- tember 11, 1957, in the plant cafeteria. His activities were, therefore, well known to the Respondent. At the close of seasonal operations he was again laid off on December 18, 1957, and has never been recalled to work. Approximately 4 weeks prior to layoff on or about November 18, 1957, he was removed from his job as a counter on the production line and assigned to a job as laborer with reduction in pay of 10 cents per hour. ,On December 20, 1957, Superintendent ,Maskovyak and Foreman Lough prepared and submitted to Vice President Wills an employee evaluation report in which R. W. Brown was given a numerical merit rating of 15 by reason of which he was subse- quently disqualified from further employment and not recalled to work for the 1958 season. In this individual merit rating sheet Brown was rated as "Average" as to "Knowledge and Versatility," "Satisfactory" as to "Relations with Others," but in all other categories was rated "Below Average." In addition to the descriptive phrases defining the meaning of each category, explanatory reasons for the unfav- orable ratings appear therein, as follows: "Careless, don't-give-a-hang attitude. Very careless in counting. Lack of effort-doesn't try. His inconsistency and careless- ness in counting and necessity of doing work over result in less work than expected. Sometimes fails to heed instructions. Fails to follow through. Frequently disregards instructions causing extra work in the Dept." Pertinent questions therein answered in the affirmative or negative indicate that this employee will accept instructions good naturedly, accept changes cheerfully, and, observe safety rules sometimes, but will not try new methods willingly, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing ratings the Respondent introduced in evidence three incidents reports submitted to the personnel office by Foreman Lough with approval or recommendation endorsed thereon by Superintendent Maskovyak. The first report, dated August 9, 1957, recited that "On the above date this man's mistakes in counting were called to his attention. Found it necessary to recount part of the pre- vious day's production each day for the last 4 days because of his inaccurate counting. Seems to have lost interest and is not attentive." The superintendent's recommenda- tion thereon was "first warning." The second report dated October 30, 1957, was typewritten and recited "Negligent in carrying out instructions" in details, as follows- "He was instructed to take off and hold any odds and ends during production runs of velos and park cycles to eliminate confusion and errors during the warehouse stacking or carloading. However, he would put these on the conveyor mixed with a long run of velos or park cycles. When this merchandise was received in the warehouse mixed , this would cause extra and unnecessary work. This incident has occurred several times. The above employee was reprimanded by me several times for the TH11 MURRAY OHIO MANUFACTURING COMPANY 215 above negligence and incompetence and was told on the above occasion that if this occurred again that he would have to be replaced, as it was causing serious mixup in the warehouse and that he was aware that this was his responsibility. The third report dated November 12, 1957, was also typewritten in full and pertained to leaving conveyor running during break time, reciting in detail that "This man went on rest period and left velos conveyor running (the section of conveyor running north from the sealing machine) thus causing a jam and the damage of several velos which fell to the floor. Employee was instructed when he went on the job as to shutting the con- veyor off during break period or during any other period when a break occurred. This employee was reprimanded by me when the above incident happened and was told that if this occurred again that he would have to be replaced, and that there was no excuse for him to leave the conveyor running." Superintendent Michael Maskovyak testified that Robert W. Brown worked as a laborer and counter, not as a checker. It was his duty to count the sealed cartons of packaged pieces going into the warehouse from the production line, and his work station was in a different building from the superintendent's office. On one occasion, after payroll data for 4 days' operations had been prepared to pay off incentive workers, it was discovered that the warehouse count differed greatly from the pro- duction records, making it necessary to recount the particular items in the warehouse to verify the count made by Robert W. Brown. Thereupon, the incident report of August 9, 1957, was prepared and submitted to the personnel office. Also on another occasion it was reported to him that Brown had left the conveyor belt running during his absence from the production line, thereby causing a jamup on the line and making it necessary to open up, inspect, and repack about 1 dozen pieces. Thereupon, the incident report of November 12, 1957, was prepared and submitted, but he did not personally discuss the incident with Brown.3 Robert W. Brown credibly testified in substance that he was recalled to work as a laborer in the early part of 1957, and at a later date was again assigned to the job of counting packages going into the warehouse for storage and shipment; that in the latter work he was required to use a counting register that was inaccurate and caused a lot of trouble, making it necessary sometimes to recount the articles, and on one occasion went to the warehouse on his own time to recount about 400 pieces; that he worked with a leadman named Orville Norwood, and followed his instructions about setting aside odds and ends from the line and later sending them to the warehouse on the conveyor belt when completed, and was never reprimanded for improper per- formance of this work; that he never received any instructions, complaints, or repri- mands from any foreman, except that on one occasion Foreman Lough cautioned him and Wallace Odem to be careful in stacking all window fans right side up in the warehouse. Brown admitted that on one occasion he negligently left the conveyor belt running for a few minutes while he was getting a drink of water or a coke, and upon his return found a note from Foreman Lough calling it to his attention, but that he was never guilty of such an oversight again ; that he was not called to the office or reprimanded about it; that sometimes the packaged articles would jam up and fall off the conveyor at a point where it made a square turn around the wall into the ware- house, whereupon it would be necessary to cut off the belt and straighten them out. Brown credibly testified further without contradiction that when put back to work as a laborer with reduced pay in November 1957, he made inquiry of Foreman Lough, who said, "Well, it's 'cause you are not working for the Company." When not recalled to work Brown spoke to,Foreman Hood about it on January 15, 1958, and Hood said: "Well, I will just be fair with you-you have got too many points marked up against you." Thereafter on January 20, 1958, Brown went to see Foreman Lough at his home, who expressed doubt that he would be called back to work and advised him to get another job. When asked for a recommendation to help him get another job, Foreman Lough refused and referred Brown to Personnel Director Smotherman, but declined to make an appointment to see Smotherman. At later dates Brown went twice to the personnel office to pay his insurance to Assistant Personnel Director Carl Alexander, who declined to make any appointment for him to see Smotherman. Superintendent R. F. Shatto and Foreman Ben Starkey jointly submitted rating sheets on 86 individual employees in the pressroom department #53, from which group three employees were not recalled to work, including the alleged discriminatee James A. Brown, by reason of a final numerical rating below 23. 8 From the testimony and demeanor of Superintendent Maskovyak as a witness, r am convinced that he had little personal knowledge concerning the work of Robert W Brown, but relied upon reports from Foreman Robert S Lough and others 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 21. James A. Brown This individual was first employed by Respondent in September 1956, and worked as a press operator in department #53 under the supervision of Head Foreman Ben Starkey and Foremen George Burline and Jasper Sayre. He was not assigned to any particular machines, but learned to operate many different press machines and performed a variety of jobs thereon. The pressroom contained 134 machines on which approximately 3,000 different operations were performed. After being hired each operator was given a 90-day training period, and thereafter instructions were issued with each job assignment. Brown signed a union card in January 1957, and thereafter attended union meetings. Shortly prior to the election in September 1957, Foreman Starkey mentioned the fact that be had heard that Brown was a unionman, ,and told him in substance that the plant had been moved away from Cleveland on account of the Union, causing employees there to lose their jobs, and that Mr. Hannon would lock the gates if the Union came in at the Lawrenceburg plant. Brown placed a bet of $15 with Foreman Jasper Sayre that the Union would win the election. It is apparent, therefore, that Respondent knew or suspected that this employee was a supporter of the Union. At the close of seasonal operations in December 1956 Brown was laid off, and thereafter recalled to work 3 or 4 weeks later in the early part of 1957. He was again laid off at the close of seasonal operations about Decem- ber 9, 1957, was told that employees would be recalled to work after Christmas, and that he would be on the night shift to which he had recently been transferred. On December 23, 1957, Superintendent Shatto and Foreman Starkey prepared and submitted to Vice President Wills a jointly signed employee evaluation report in which James A. Brown was given a numerical merit rating of 14 by reason of which he was subsequently disqualified for further employment and not recalled to work for the 1958 season . In his individual merit rating sheet this employee was rated as "Aver- age" for "Quality of Work," but "Below Average" in all other categories. In addition to phrases descriptive of each category, explanatory reasons for the unfavorable ratings were designated, as follows: "Lack of effort-doesn't try. Wastes time away from job. Sometimes fails to heed instructions. Wastes time if left to work alone. Cannot make adjustments or set ups as fully as would be desirable. Occasionally a problem because of the limited number of jobs he will do." Pertinent questions therein answered in the affirmative or negative indicated that this employee will accept in- structions good naturedly and observe safety rules, but will not try new methods will- ingly, accept changes cheerfully, observe plant rules of conduct, try to improve skill, take an interest in his job, try to learn other jobs, or make helpful suggestions. In support of the foregoing ratings the Respondent introduced in evidence four incident reports submitted by Foreman Starkey to the personnel office. The first report, dated July 22, 1957, recited lack of effort and loafing on job, as follows: "I had to talk to Brown again about loafing on the job and lack of effort on this date he was assigned to chain guard form oper. He did not put forth effort on the job seemed to have the attitude he would rather loaf and receive day work." The second report, dated August 22, 1957, recited too much time away from job, as follows: "had a talk with Brown today about leaving his job and spending too time in rest room and'quitting early at break time and lunch time today, he was on a job and due to spending too much time away from job and lack of effort he did not make his guaranteed rate." Recommendation endorsed thereon by Superintendent R. Douglas recited: "Must improve or face more serious action." The third report, dated Sep- tember 18, 1957, recited "Holding up Production," as follows: "On this date I re- ceived a complaint from an employee working in a group of four working with Brown about Brown not cooperating with the group and holding down production and possi- ble earnings, today the group made only 1.12 average for the day. Checking back with the same group on the job averaged 1.68. I have talked to Brown about his lack of effort and attitude." The fourth report, dated November 27, 1957, recited "Lack of effort to produce satisfactory," as follows: Brown has been warned by me on a number of times about his lack of effort and lack of desire to work on certain jobs-today he just didn't show any effort or desire to try and produce satisfactory." Recommendation thereon by Superintendent R. F. Shatto recited that "This em- ployee's record indicates he has had several warnings relative to lack of effort. This is his final warning before separation." Foreman Ben Starkey credibly testified in substance that prior to expansion in 1958 he was in full charge of the pressroom with 8 other subordinate foremen and approximately 90 employees working under his supervision. He attended meetings of the department heads called by Vice President Wills in October 1957, and there- after with the consultation of other foremen prepared and submitted individual merit rating sheets on all his employees according to instructions. Shatto came in as superin- tendent at the end of the year, signed the rating sheets, but did not participate in THE MURRAY OHIO MANUFACTURING COMPANY 217_ all of the consultations and determination of the ratings , but entered into a discussion about them . Foreman Starkey testified that he was at all times in close contact with, all of his men and observed them at work ; that he frequently observed James A. Brown, and talked to him many times in the course of his employment ; that .he pre- pared and submitted all of the incident reports set forth above after talking to Brown on each occasion, but did not show him the reports, because they were submitted for the purpose of providing a record in the personnel office of employee conduct on a particular day and prior thereto . Foreman Starkey testified that when Brown liked the job assigned to him, he would turn out average production , and there was no complaint about the quality of his work, but when he disliked the job would loaf and waste time in performance, spend too much time in the restroom, would not comply with plant rules prohibiting smoking and quitting early at lunch time and at the end of the shift, or cleaning up around his machine ; that he was often reprimanded, but no record was made about it until the incident reports were submitted . Foreman Starkey testified that the guaranteed or base rate established for employees in the pressroom was $1 .30 per hour; that the average earnings of the group as a whole was in excess of $1.60 per hour; but that the earnings of James A. Brown were below the average .4 James A. Brown incredibly testified that Foreman Starkey never criticized, com- plained, or talked to him about his work; that he was never reprimanded in any way and had no knowledge of any incident reports being submitted to the personnel office, and denied the occurrence of any such incidents . He credibly testified, how- ever, that in July 1958 , he called the personnel office, talked to Assistant Personnel Director Lloyd George, and inquired why he had not been recalled to work; that George told him in substance that they had eliminated a few employees of the slow and nervous type from each department in the plant, would not say that he had been discharged, but advised him to get another job if he could find one. Superintendent Andrew Busho submitted rating sheets on 103 individual employees in body line department #64 and wheel and screen department #74 from which group 19 employees were not recalled to work , including the alleged discriminatee Edith McMullin . This last named employee received a numerical rating of 23 in the employee evaluation program, and was therefore qualified for recall to work; but Respondent contends that she was not recalled in 1958 because of a reduction in force in her department and that only 4 out of 11 female employees therein with greater seniority were recalled to work. 22. Edith McMullin This individual was first employed by Respondent on September 13, 1956, in department #74 and was laid off at the close of seasonal operations . When recalled to work in the early part of 1957, she was assigned to the job of assembling spokes for tricycle wheels under the supervision of Foreman Paul Pfeiffer . At the close of seasonal operations she was again laid off on November 15, 1957 , and has never been recalled to work. At the time of layoff her regular job had already closed down in the latter part of September, and she had been retained for a while longer on a temporary job in which she-did not make production , presumably by reason of inex- perience therein . She signed a union card in the early part of the organizational campaign, attended some union meetings, and solicited a few employees to sign authorization cards. Respondent probably knew or suspected that she was a sup- porter of the Union by reason of the activities of her husband , I. E. McMullin, herein- before referred to supra, but there is no evidence that any supervisor of the Respond- ent ever mentioned the subject to her. Edith P . McMullin credibly testified without contradiction that during her employ- ment Respondent never made any complaints about her work ; that Foreman John Dioddaris told her that she was doing extra well ; and that at time of layoff she inquired of the plant manager when they would be recalled to work, and was told that it would probably be about the first of the year (1958 ). About April 1, 1958, she went to the plant gate and the guard refused to admit her without an appoint- ment, but was allowed to talk over the telephone to Assistant Personnel Director Lloyd George who told her in substance that the girls were being recalled by seniority and that only four had been recalled in department #74. She then complained that one girl (Christine Kamarad ) with less seniority than herself had been recalled, and Lloyd George promised to investigate why she had been passed over . At a later date the guard at the gate refused to admit her or permit her to call anyone over the telephone . Mrs. McMullin further testified that two new girls had been hired in the 4 Weekly receipt records introduced by the General Counsel show that the average earn- lugs of this employee were approximately $1.50 per hour. 218 DECISIONS OF NATIONAL LABOR • RELATIONS BOARD temporary job in which she was working at time of layoff, but admitted that only four girls were now working in department #74, all of whom were senior to her. Superintendent Andrew Busho credibly testified in substance that the work of Edith P. McMullin in his department #74 was satisfactory; that she received an in- dividual merit rating of 23, which did not disqualify her from further employment or recall to work in 1958; that the available work in his department was limited, and he sent to the personnel office a requisition for only four female employees; that the four girls recalled to work by seniority were (1) Partain (4-11-56), (2) Bryan (6-12-56), (3) Stann (7-19-56), and (4) Rochelle (7-19-56); and that the seniority date of McMullin was 9-13-56. Four other girls having equal or greater seniority than McMullin were not recalled to work, i.e., Troup (7-19-56), Jackson (7-19-56), Hollin (9-11-56), and Holland (9-13-56). Only department seniority applies with respect to recalling laid-off employees, and Kamarad (9-17-56) was rehired in department #59, over which Busho had no juris- diction. Superintendent Skinner of department #59 selected Kamarad from an available group of five female employees submitted by the personnel office, as most suitable for the job by reason of prior experience. Concluding Findings The representation election held in Case No. 10-RC-3872 on September 11, 1957, demonstrated that the approximately 1,200 employees of Respondent were almost equally divided in their sympathies for and against the Union. Ballots cast were 558 in favor of, and 624 against, the Union. Subsequently the Board found in Case No. 10-CA-3040 that the Respondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. The Union filed exceptions and objections to conduct of the election and it was set aside. The foregoing cases were consolidated for hearing and determination. Approximately 1 month after the foregoing election and pending a final determina- tion of all the issues involved in those consolidated cases, the Respondent by and through Production Vice President A. H. Wills initiated an employee evaluation program for the avowed purpose of improving the standard of its employees by eliminating at the end of the 1957 season all who did not measure up to Respondent's conception of an average employee within the discretion and judgment of the heads of its various departments. Consequently, the superintendent or acting superintend- ent of each department was furnished printed forms and instructed to consult with subordinate supervisors and submit individual merit ratings on each employee in the six categories set forth therein. It is apparent that the comprehensive categories cover the entire field in which an employee must measure up to the average standard in order to retain his employment status. Each category was given a numerical value for the apparent purpose of establishing a grade for each employee, and it is apparent from the rating sheet that a grade of 24 established the standard for an average em- ployee. Vice President Wills, however, after a study of the rating sheets, unilaterally instructed the personnel director to disqualify only those who failed to obtain a mini- mum grade of 23. Consequently more than 100 employees were disqualified for recall to work in 1958. It is contended by the General Counsel that Respondent utilized this evaluation program as a cloak to get rid of the 22 union adherents named herein. The employee evaluation program adopted by the Respondent is not discrimina- tory per se, because an employer has the legal right to prescribe its own standards of employment be they reasonable or unreasonable, except to the extent that the Act prohibits and was intended to prevent discrimination in regard to hire or tenure of employment to discourage membership in a labor organization. When adapted with a background of hostility towards the Union and recent unfair labor practices, however, it is imperative that the individual merit ratings given therein to union adherents be analyzed and closely scrutinized to determine whether discrimination was practiced in disqualifying them from further employment. It is clear that the rating officials fully understood the purpose and intent of the program; and it was not important under the circumstances here that they know the numerical rating at which the axe would be applied. The burden is on the General Counsel in each case to prove discrimination, if any, by a preponderance of the evidence. Having credited the testimony of Vice President W. N. Hannon, Assistant Per- sonnel Director Nolan Lambert, Superintendent Frank E. Budniak, and Foremen Hugh Callaley and J. C. Davis, I find no discrimination in the merit ratings given to Arthur D. Barton, Theodore Ralph Hurst, James E. T. Pratt, Buen E. Odem, Yeat Stutts, Jr., and James L. Calton. As to each of these employees, therefore, it will be recommended that the complaint be dismissed. THE MURRAY OHIO MANUFACTURING COMPANY 219 Having credited the testimony of tSuperintendent Clarence J . Junke and Assistant Personnel Director Nolan Lambert , I cannot find from a preponderance of the evidence that unfavorable merit ratings were given to I. E. McMullin , Clarence E. Lopp, William L. Clark, and Haden Long because of their activities on behalf of the Union. It will, therefore , be recommended that as to each of these employees the complaint be dismissed. Having credited the testimony of Superintendents Alexander Skinner and Clarence J. Junke and Foreman Frank A. Hawk , I cannot find from a preponderance of the evidence that unfavorable merit ratings were given to Charles R. Jacobs and James L. Runnels because of their activities on behalf of the Union . It will, therefore, be recommended that the complaint as to these two employees be dismissed. With respect to the unfavorable merit ratings given in the inspection department by Superintendent Frank Kolinski to Ronald A. Hartlein, James V. Sudduth, and A. F. Jenkins, I am constrained to find that Respondent has totally failed to show by credible evidence that these men were disqualified for recall to work in 1958. Kolinski admitted that he had never observed their work or talked to either of them about it, and that he relied almost entirely on what was reported to him by sub- ordinate foremen and supervisors . Supervisors of the Respondent in the best posi- tion to know and testify as to their qualifications and deficiencies were Foremen Theodore Papp, Gerald Cole, Jesse T. Hardison, and J. H. Wimbs. Neither of these foremen was called as a witness, although they directly supervised the work of these employees and made reports to Superintendent Kolinski as chief inspector. Having, therefore, credited the testimony of Hartlein, Sudduth, and Jenkins rather than the evasive and uncertain incident reports and hearsay information upon which the testimony of Superintendent Kolinski was based, I shall find from a preponderance of the evidence that Respondent discriminated in regard to hire or tenure of em- ployment to discourage membership in a labor organization by giving unfavorable merit ratings to and failing to recall to work Ronald A. Hartlein, James V. Sudduth, and A. F. Jenkins. In case No. lO-CA-3040 it was found that on September 5, 1957, Foreman Hardison called Sudduth to his office, inquired whether he was a member of the Union, and told him in substance that he was qualified for a better job, but "that he [Hardison] could not put a man there that he was not sure of whether he was voting for the Company or the Union." (IR.) With respect to the merit ratings of Charlie P. Barton, George M. Head, R. C. Killen, and C L. Walker, I credit the testimony of Superintendent Maskovyak, which was apparently based upon his own personal observation and knowledge of these employees, and I find no discrimination therein. It will be recommended, therefore, that the complaint as to them be dismissed. With respect to the merit ratings of Robert W. Brown, it appears that Superin- tendent Maskovyak had little opportunity to observe the work of this employee, because his work station was in a building apart from the superintendent's office. The unfavorable ratings are thus attributable to reports made by Foreman R. S. Lough. It was found in Case No. 10-CA-3040 that Foreman Lough about 6 weeks prior to the election proposed to give Brown a better job if he would stop working for the Union. Thereafter, on August 9, 1957, the first incident report was filed, reciting inaccuracy in counting production enroute to the warehouse. Brown cred- ibly attributes this deficiency to a defective counting register furnished by Respondent. Thereafter, Brown assisted the Union in preparing the eligibility list of voters and also served as observer at the election on September 11, 1957. Without notice to Brown, a second incident report was filed against him on October 30, 1957, which very indefinitely recited negligence and incompetency in his work. Brown was removed from the job as counter about November 1, 1957, and went back to work as a laborer. Nevertheless, on November 12, 1957, Foremen Lough without notice to Brown - submitted another incident report reciting that this man had left the conveyor belt running during a rest period. The report is very indefinite as to the time such incident occurred. Brown admits that on one occasion he left the conveyor belt running while he went to get a drink of water, but received no reprimand about it other than a note of warning from the foreman, and this oversight was never repeated. At any rate, there appears to be no justifiable reason to disqualify this man as a laborer by reason of frivolous deficiencies in a temporary higher classifi- cation. I am, therefore, convinced and find from a preponderance of the evidence that Robert W. Brown was given unfavorable discriminatory merit ratings because of his activities on behalf of the Union, resulting in his disqualification by the Respondent for further employment and recall to work in 1958. With respect to the merit ratings given to James A. Brown in pressroom depart- ment #53, 1 credit the testimony of Foreman Ben Starkey to the effect that this 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee at all times worked under his personal supervision and direction and that he talked to him many times about his work. From a preponderance of the evidence, I find no discrimination in the merit ratings given to James A. Brown, which resulted in his not being recalled to work in 1958. It will be recommended, therefore, that the complaint as to this employee be dismissed. With respect to Edith McMullin I find that no discrimination was practiced by Respondent in failing to recall her to work in 1958. At the time of layoff on November 15, 1957, Mrs. McMullin and 10 other female employees had been assigned to temporary jobs because all work in their regular assignments had been exhausted. Four of these employees were recalled to work in 1958 according to seniority. At least three of those not recalled were senior to McMullin, but it is true that one girl (Christine Kamarad) was rehired in another department by selec- tion of the department superintendent. From a preponderance of the evidence it is clear that failure to recall these female employees, including McMullin, was due entirely to economic reasons, rather than any desire by Respondent to discriminate against them to discourage membership in a labor organization. It will, therefore, be recommended that the complaint as to Edith McMullin be dismissed. In summary, I find that the General Counsel has proved by a preponderance of the evidence that Respondent, in violation of Section 8(a)(3) of the Act, discrim- inated in regard to hire or tenure of employment to discourage membership in a labor organization by failing and refusing to recall to work in 1958 certain essential and qualified employees, as follows: Ronald A. Hartlein, James V. Sudduth, A. F. Jenkins, and Robert W. Brown. With considerable misgiving and doubt as to the fair and impartial rating of cer- tain other employees named in the complaint by reason of prior unfair labor prac- tices found against the Respondent in a previous case, I am, nevertheless, constrained to find that the General Counsel has failed to show by a preponderance of the evi- dence that Respondent discriminated in the merit ratings and failure to recall Arthur D. Barton, Theodore Ralph Hurst, James E. T. Pratt, Buen E. Odem, Yeat Stutts, Jr., James L. Calton, I. E. McMullin, Clarence E. Lapp, William L. Clark, Haden Long, Charles R. Jacobs, James L. Runnels, Charlie P. Barton, George M. Head, R. C. Killen, C. L. Walker, James A. Brown, and Edith McMullin. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 111, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce, among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent failed and refused to recall to work in the early part of 1958 its employees, Ronald A. Hartlein, James V. Sudduth, A. F. Jenkins, and Robert W. Brown, because of their activities on behalf of the Union, and thereby discriminating in regard to hire or tenure of employment to discourage membership in a labor organization, I shall recommend that Respondent cease and desist from such unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions, and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Respondent, The Murray Ohio Manufacturing Company, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, is a labor orgnaization within the meaning of Section 2 (5) of the Act. 3. By failing and refusing to recall to work its employees, Ronald A. Hartlein, James V. Sudduth, A. F. Jenkins, and Robert W. Brown, because of their activities on behalf of the Union, thereby discriminating in regard to hire or tenure of employ- ment to discourage membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] THE MURRAY OHIO MANUFACTURING COMPANY 221 APPENDIX A INDIVIDUAL MERIT RATING Employee's Name-------------------------- No-------- Dept-------- Employment Date_________ Piece Worker ---- Day Worker____ Date______ Unsatisfactory. Does almost as much bad work as good, makes frequent 0 mistakes due to carelessness. Below Average. Mistakes are too frequent. May be caused by haste or 2 lack of knowledge. Accuracy and finish of work often unsatisfactory. Average. Work usually correct. Makes only occasional mistakes. Work- 4 manship is average from standpoint of accuracy and finish. Above Average. Is iskilled worker. Seldom makes errors. Does high 6 grade work from standpoint of accuracy and finish. If a rating of "Unsatisfactory" or "Below Average" was given, what was the reasons for it? Check those applicable: Careless, don't-give-a-hang-attitude____ Unsuited to job physically---- In too much of a hurry ---------------- Unsuited to job emotionally____ Not enough experience on this job_________________________________ Other reasons: ------------------ ------------------------------ Unsatisfactory. Produces only enough to justify keeping employed 0 Below Average. Produces somewhat less than is expected. 2 Average. Production is satisfactory 4 Above Average. Fast Workers. Usually Turns out more than average. 6 If a rating of "Unsatisfactory" or "Below Average" was given, what are the reasons for it? - For instance: Lack of effort--doesn't try ----- =------ Wastes time away from job____ Tries hard but. is clumsy & fights job____ Unsuited to job physically------ Insufficient knowledge of work-------- Unsuited to job emotionally___ Wastes time talking---------------------------------------------- Other reasons: ------------------------------------------------ Unsatisfactory. Not dependable at all. Check: Must constantly follow 0 him up and check his work___ . Tries to hide' his mistakes___ . Cannot be depended upon to work. alone--- . Absent too often to be satisfactory employee___ . Below Average. Sometimes fails to heed instructions___ . Fails to follow 3 through___ . Wastes time if left to work alone--- . Frequently absent___ . Average. Usually reliable and carries out instructions with only normal 6 supervision or follow up. Ocassionally absent. Above Average. More dependable and conscientious than the average. 9 Can be trusted to work alone. Seldom absent. Absence caused by a work accident, and recognized as a compensation, case, should not be counted as absence at all. Unsatisfactory. Understands very little about the work and consequently 0 is of limited usefulness. Is completely stalled when anything goes wrong or anything unusual comes up. Below Average. Check: Understands less about the work than the aver- I age, or than could be expected--- . Cannot make adjustments or set ups as fully as would be desirable___ . Occasionally a problem because of the limited number of jobs he can do___ . Average. Has adequate knowledge of the job so that he is able to do what 2 OW z is expected of the average employee on the same kind of work . Able to make adjustments or set ups to handle situations normally encountered in his work. Canbe shifted around on other similar jobs. Above average. Has a thorough all around knowledge of his kind of work 3 so that he is more versatile than the average. - 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Does he: Accept instructions good-naturedly?___- Try to improve skill?________ Try new methods willingly?----------- Take an interest in his job?_____ Accept changes cheerfully? ----------- Try to learn other jobs?______ Observesafetyrules?____________._--_ Provide own tools?__________ Observe plant rules of conduct? -------- Make helpful suggestions?-____. Unsatisfactory . Very unsatisfactory attitude and cooperation. Use this 0 degree for anyone who habitually is late or leaves early. Below Average. Only fair attitude and cooperation . Leaves something to 2 be desired in this respect. Average. Tries to do what is expected and takes normal interest in job. 4 Above Average. Tries to do more than is expected and takes more than 6 average interest in job. Unsatisfactory . Any of the following characteristics : Quarrelsome , surly 0 and hard to get along with-__ . Other employees unwilling to work with him because of disposition or some unpleasant personal characteristic___ . Always causing friction and stirring up other employees. ___ . Below Average. Occasionally temperamental and apt to "flareup" or be 2 hard to get along with. Satisfactory. Normally obliging and easy to get along with. 4 REMARKS: Total: -------------------- -------------- ---------------------------------- ----------------------------------- ---------------------------------• •--------------------------- Foreman ---------------------------- Superintendent Double A Products Company and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW) AFL-CIO and Manchester Union, Party to the Contract. Cases Nos. 7-CA-0963 and 7-CA-3003. Novem- ber 15, 1961 DECISION AND ORDER On June 29, 1961, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other alleged unfair labor practices and he therefore recommended that the complaint be dismissed in that re- gard. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report, together with a supporting brief, in which he was joined by the Charging Party. The Respondent filed a brief in sup- port of the Intermediate Report. 134 NLRB No. 26.