Monroe Auto Equipment Co.

142 DECISIONS OF NATIONAL Monroe Auto Equipment Company, Hartwell Divi- sion and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO. Case 10-CA-6722 January 12,1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On June 8, 1967, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions and a support- ing brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, but not, for the reasons set forth below, his conclusions and recommendations. Phillips, the discriminatee herein, had been em- ployed by the Respondent for a total of more than 5 years. Before he acted as a union observer at the Board-conducted election of March 3 and 4, 1966, the only events affecting his employment that might be characterized as out of the ordinary, were: his transfer to a job in the shipping department, at his own request, in the spring of 1964; and his acquiescence in the Respondent's request, about 5 months later, to return to his former job upon the promise of a 10-cent per hour wage increase. After the election, a number of apparently un- precedented events occurred: Employee Bickery was instructed by his foreman to report any occa- sions when he was called to make repairs on ma- chines Phillips operated; employee Whitworth was warned by his foreman not to "buddy up" with Phillips any more; and employee Cole began to receive training in the operation of the machines Phillips had been operating, apparently without criticism, since 1964. Thereafter, Phillips, who had been given no training in the work to which he was being assigned, was in effect instructed to exchange jobs with Cole, who had been given such training; when Phillips refused to accept his new assignment ' See Monroe Auto Equipment Company, 159 N LRB 613, 622-626. LABOR RELATIONS BOARD because, as he testified, he thought the transfer so soon after the election was discriminatory, he was discharged. In our opinion, all these facts, found by the Trial Examiner, considered against the background of the Respondent's established union animus' and the absence of any testimony concerning the reason for the transfer decision, establish a strong prima facie case of discrimination, which the Respondent has failed to rebut. We cannot agree with the Trial Ex- aminer's conclusion that the machine malfunction, for which Phillips was not responsible and in con- nection with which he was neither warned nor repri- manded, was Respondent's actual reason for train- ing another employee in a job satisfactorily per- formed by Phillips over an almost continuous 5- year period. If this malfunction played any part in the sequence of events that led to Phillips' termina- tion, as Foreman Smith's testimony would seem to imply, it is clear, when the training given Cole is contrasted with the absence of any training for Phil- lips, that it was to be utilized as a cover to obfuscate the true discriminatory motive underlying the Respondent's conduct. Accordingly, we find that the discharge of Phil- lips when he refused to accept the discriminatorily motivated transfer was violative of Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that the Respondent violated Sec- tion 8(a)(1) and (3) of the Act by discharging Phil- lips because he refused to accept the discriminatori- ly motivated transfer, we shall order the Respond- ent to cease and desist therefrom and to offer Wil- liam J. Phillips immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make Phillips whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by pay- ment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his interim earnings dur- ing said period, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Monroe Auto Equipment Company, Hartwell 169 NLRB No. 16 MONROE AUTO EQUIPMENT CO. 143 Division, Hartwell, Georgia, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile , Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization, by discriminating in regard to the hire and tenure of employees or any term or condition of their employ- ment. (b) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of the right to self-organization , to form labor organizations , to join or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Offer William J. Phillips immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniori- ty and other rights and privileges , and make him whole for any loss he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision and Order enti- tled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and coping, all payroll records, social security pay- ment records, timecards , personnel records and re- ports, and all 'other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Hartwell, Georgia, place of busi- ness, copies of the attached notice marked "Ap- pendix."2 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it 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. Reasonable steps shall be taken by the 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in In- ternational Union, United Automobile, Aerospace and Agricultural Implement Work- ers of America, UAW, AFL-CIO, or any other labor organization, by discriminating in regard to the hire and tenure of employees, or any term or condition of their employment. WE WILL offer William J. Phillips immediate and full reinstatement to his former or substan- tially equivalent position , without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss he may have suffered as a result of his discharge. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to join or assist International Union , United Au- tomobile , Aerospace and Agricultural Imple- ment Workers of America, UAW, AFL-CIO, or any other labor organization , to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection, or to refrain from any and all such activities. MONROE AUTO EQUIP- MENT COMPANY, HARTWELL DIVISION (Employer) Dated By (Representative) (Title) Note: We will notify the above-named em- ployee, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD communicate directly with the Board's Regional Office, 730 Peachtree Street, N.E., Atlanta, Geor- gia 30308 , Telephone 526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon a charge filed on October 14, 1966, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10 (Atlanta, Georgia), issued a com- plaint on December 9, 1966, against Monroe Auto Equipment Company, Hartwell Division, herein called the Respondent or the Company, alleging that it had en- gaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Na- tional Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Thereafter the Respondent filed an answer denying the allegations of unlawful conduct al- leged in the complaint. Pursuant to notice, a hearing was held in Hartwell, Georgia, on February 9 and March 30, 1967. All parties were represented by counsel and were afforded opportu- nity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs have been received from the General Counsel and the Respondent and they have been carefully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: to another machine on the same shift under the same foreman and at the same rate of pay. There is no allega- tion or evidence that acceptance of the transfer would in- volve less desirable working conditions or work of a more arduous nature. There is no allegation or evidence of any independent violations of Section 8(a)(1) of the Act by the Respondent in the instant case. As a basis for showing union hostility in support of the alleged Section 8(a)(3) violation in this case, the General Counsel relies heavily upon a previous Board decision against this same Respondent as reported in Monroe Auto Equipment Company, 159 NLRB 613. The events in the latter case arose out of an organizing campaign by the Charging Union beginning in the middle of 1963, which culminated with the Union's loss of a Board-conducted election on July 23 and 24, 1964.' Insofar as is pertinent here, the Board in the cited case upheld the Trial Examiner's finding that: (1) the Com- pany discriminatorily transferred an employee who had acted as a union observer in the election to a more ardu- ous and disagreeable job; and that it later constructively discharged this employee in violation of Section 8(a)(3) of the Act by forcing his resignation in returning him to that job when he reported back to work after a severe illness; (2) that the Company discriminated against another em- ployee who also acted as union observer to the election by giving him a 7-day suspension allegedly for failing to obey an order to clean up his work area; and (3) that the Company did not violate the Act by its layoff of a third employee known by it to be an active union adherent. FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent is a Michigan corporation with an of- fice and place of business located in Hartwell, Georgia, where it is engaged in the manufacture, sale, and distribu- tion of automotive shock observers and related products. During the 12. months preceding the hearing herein the Respondent sold and shipped finished products valued in excess $50,0001rom its plant in Hartwell, Georgia, directly to customers located at points and places outside the State of Georgia. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue; Background The sole issue in this case is whether employee William J. Phillips was discriminatorily terminated on April 25, 1966, for refusing to accept a transfer to anotherjob. This involved a transfer from one type of production machine This election was subsequently set aside by the Board. B. The Facts William J. Phillips began his employment with the Respondent on June 15, 1959. He left this job in December 1960, but returned to the Company's employ in September 1961, at which time he was placed on the assembly line and worked on the third shift from 4,p,m. until 12 a.m. Two months later he was given the job of operating a baffle machine and an oil seal spring machine on the same shift. He continued on this job until the spring of 1964, at which time he requested and was granted a transfer to a job in the shipping department on the day shift. After working in this position for approxi- mately 5 months, Phillips was requested by the foreman and by the superintendent of the night shift to return to his former job of operating the baffle spring machine and oil spring machine on that shift, this apparently for the reason that the Company was having difficulty in finding a replacement for Phillips when he left that job. Although it appears that Phillips at first was unwilling to return to his former job on the night shift, he finally did so when promised an hourly 10-cent wage increase. Phillips was granted this increase, but in order to conform with the established rate schedule the Respondent found it neces- sary to change his job classification to that of a repairman. He had not been so classified when he worked on these machines from November 1961 to the spring of 1964. A second election was held at Respondent's plant on March 3 and 4, 1966. Phillips and another employee acted as observers for the Union on both days.2 Following the election, which the Union won, he solicited 2 Phillips testified that about 2 weeks prior to the election he cam- paigned "strongly" for the Union . There is, however, no evidence of com- pany knowledge of any such activities. MONROE AUTO EQUIPMENT CO. 145 employees to sign union membership cards. According to Phillips, "after the election I got around 100, 125, somewhere in that neighborhood. I don't remember ... 150, I don't remember just how many." There is no evidence that this activity came to Respondent attention. Curtis Bickery, in Respondent's employ as a tool-and- die maker for 8 years, testified without contradiction that on the "night of the election" he was instructed by Thurston Bickery, his foreman, to report to him any occa- sion when he was called to make repairs on the machines which Phillips operated. Employee, Bickery said that the foreman advised him that on any such occasion "he (the foreman) would like to go back there with me." Bickery testified that he had never before received similar instruc- tions as to any other employee. Bickery said that he sub- sequently had three or four occasions to make repairs on Phillips' machines and that he reported these to the foreman.3 Testifying also for the General Counsel was Furman Whitworth, an employee who operated a machine located about 15 feet from Phillips' work station. Whitworth and Phillips both worked on the same shift under James Smith (also called Ed Smith), the foreman of department 13. Whitworth testified without contradiction that about 3 days after the election Foreman Smith told him that "I shouldn't buddy up with William Phillips any more. " Although Foreman James Smith was hospitalized at the time of Phillips' termination, Smith was called by the General Counsel and queried as to whether he had received any special instructions after the election for Bennie Reed, the general foreman on the night shift, con- cerning Phillips.' Smith responded that he did receive in- structions, these to the effect that "if he couldn't do his job and if he was, caught loafing on the job to go through the regular procedure as I would any other one." How- ever, Smith testified that during the same period he received similar instructions in regard to several other employees. When Smith was asked if he received specific instructions concerning the disciplining of union people, Smith responded, "I recall that Mr. Reed told me to - that I would have to watch all of these people and to get rid of the' union people as well as other people if they got out of step, not to be scared to discipline them." I turn now to the event of Phillips' termination. Upon reporting to work on April 22, 1966, a Friday, Phillips was advised by Bennie Reed, the night superintendent, that he was being transferred to operate a' rewelding machine which was located in another area of the same department. 'As noted more fully hereinafter, this machine had been operated by an employee named Cole. As will also be noted, Cole had been receiving training concerning the operation of Phillips' oil seal spring machine and baffle spring machine. Thus, it was Reed's plan simply to transfer Cole and Phillips to each other's respective jobs at no change in hours, supervision, or rate of pay. In any event, upon being apprised that he was being shifted to Cole's machine and that Cole would as- sume his job, Phillips asked how long the transfer would remain in effect. Reed suggested that they take the matter up with Grover Dudley, the plant superintendent, and they thereupon went to see Dudley. Concerning the con- versation which ensued, Phillips testified, "Dudley said it was his idea to transfer me-and I'd have to take this job. And I told him I didn't think it was right if I kept my job up. And I asked Grover how long and he wouldn't tell me for how long it would be." At Phillips' request, Phillips, Reed, and Dudley thereupon went to Charles Gordon, the plant manager. Phillips' testimony concerning this conversation was partly fragmentory and one particular aspect of it, as I shall later point out, was somewhat hazy and confusing. However, his first and most comprehen- sive account of this conversation was as follows: We went to him [Charles Gordon] and he told Mr. Dudley to put me back in the same area I was in repairing shocks that night and tell me to watch Cole, he was the fellow taking my job over that night. And if anything went wrong with machines for me to fix them. He told Mr. Dudley that he wanted me to work in that department right around that area. Just give -me a job back there repairing shock. But Mr. Dudley said he didn't have enough repair- men. Mr. Gordon told him to move one up, make another repairman and give me that job back there. But, then Mr. Gordon told Mr. Dudley to put me back there just for that night, that the'd transfer me on Monday. And I told them this wasn't right. And I didn't think I should be transferred off my job. But he went ahead. I went back on that job that night and in the meantime Mr. Gordon he jumped up and slapped the desk and kind of said a little cuss word and said he run the plant and I'd do like he said to do. And I told him I didn't have to do like he said to do if I was right. So, anyway, I went on back on the job that he wanted me to go on that night." Later in his direct testimony Phillips said that Gordon ad- vised him that "they were just going to move me around and learn me all the jobs." He stated, however, that Gor- don did not say that the transfer could lead to a promoti- on.5 On cross-examination Phillips testified that at one point he told Gordon that he would refuse to accept the transfer, whereupon Gordon stated that he (Phillips) would have until Monday to think it over. Phillips testified also that, "He (Gordon) said I'd be expected to take the new job [on Monday] that they had offered me." Phillips also testified on cross that he told some of the em- ployees, upon returning to his work station from Cor- don's office, that he would not accept the transfer. Following the weekend Phillips reported to his regular work station on Monday. He was met by Bob Isbell, the assistant foreman who was acting in the place of hospital- ized Foreman Smith. Isbell told him to go "up in front" to Cole's machine. Phillips thereupon went to Dudley. Dudley asked if Isbell had not given him instructions. Ac- cording to Phillips, he answered in the affirmative but he thereupon told-Dudley, "I reckon I was going to do the job you wanted me to do on Friday." Phillips said that Dudley then told him to see Isbell again. He did so and Isbell again advised him that he should "run Cole's job." Phillips at this point sought out Dudley and Reed. Phillips 3 It appears that these were routine repairs, the type of which com- monly involved all production machinery. ° Smith was no longer in Respondent's employ at the time of the hear- ing. Refusing at first to comply with a subpena issued by the General Counsel, he did not testify until enforcement of the subpena was granted by a United States District Court. ' On several occasions previously Phillips had requested a transfer to higher paying jobs. Phillips said these requests were refused because "they always said it would cost the company too much money to move me." 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that "they told me that's all they had for me and if I didn't want that they'd just have to discharge me." Pursuant to Gordon's instructions , Reed thereupon wrote up a discharge slip which stated as the reason for discharge "Reason, refused to run assigned job." Phillips testified that at his insistance the two foremen then took him to see Gordon. Gordon told Phillips that "what Dudley said went . if I was discharged I was discharged." With this Phillips was terminated. The Respondent did not call any of the supervisors who participated in the decision to transfer Phillips from one machine to another to explain the reason or basis for taking this action at this particular time. Plant Manager Gordon, when called by the Respondent, testified only that Phillips was terminated because he refused to do the job assigned to him.6 However, Foreman Smith testified to an incident which he said gave rise to the initial deci- sion to train employee Cole in the operation of Phillips' machine. Thus, Smith testified that one evening, at some point following the election, it was ascertained that Phil- lips had produced 1,000 defective springs.7 He said that Plant Superintendent Dudley took the matter up with him and instructed that he train another employee to learn the operation of the spring machines. Smith testified that it was he who suggested that employee Cole be so selected. As noted heretofore, Cole, who worked on the night shift, came in several hours early to receive this training. Although Cole received his instructions from the day shift operator, Phillips testified that he was aware that Cole was receiving this training. He said that he first ob- served this about 1-1/2 months prior to his termination. Smith testified that Dudley told him to train another employee for Phillips' jobs because "he [Dudley] felt that Mr. Phillips was hindering our production or trying to hinder our production." He said, however, that Dudley did not give him any further instructions concerning the transfer of Phillips, although he testified that he assumed Phillips ultimately would be transferred "because we never have two people on one machine or one job."8 The foregoing has been set forth as the only disclosure in the record as background for Respondent's decision to transfer Phillips from one job to another. It is clear that the incident of the defective springs in itself did not play any part in Phillips' ultimate termination nor does Respondent assert it as a reason therefore. However, I think it proper to note that the evidence strongly suggests that Phillips was not at fault for the production of the de- fective springs. Thus, not only was he not giving any warning or reprimand therefor, but Smith conceded that the defective parts were produced as the result of a broken part in the machine.9 C. Conclusions The circumstances of Respondent's tool and die foreman instructing a tool and die employee to report any work orders for repairs on Phillips' machines and the re- mark of Foreman Smith to employee Witworth that he should not "buddy up with Phillips any more," both of which occurred at or following the day of the election wherein Phillips acted as a union observer, give rise to suspicion that these incidents were prompted by antiu- nion considerations. This is particularly true when con- sidered against. the background of Respondent's dis- crimination against the union observers in the preceding case, to which reference has previously been made. Nevertheless, I am on this record unable to conclude that the General Counsel has established by a preponderance of the evidence that the job transfer in question was dis- criminatorily motivated and that Phillips termination which resulted when he refused to accept the new assign- ment was therefore violative of Section 8(a)(3) and (1) of the Act. The timing of events in cases of this nature are almost always an important consideration in determining issues of alleged discrimination. Here, the proposed transfer of Phillips took place approximately 7 weeks following the election. But also following the election occurred the in- cident wherein Phillips produced the 1,000 defect parts. Assuming that Phillips was not at fault in producing the defective parts, the fact remains that the incident did give the Respondent a tangible basis for training another em- ployee in the operation of Phillips' machine at the time of the occurrence. The evidence does not, in my opinion, warrant an inference that this action was taken as part of a plan for later discrimination. Aside from the foregoing, there is no evidence what- soever, nor does the General Counsel contend, that the transfer of Phillips to the rewelding machine would cause any hardship to this employee. This job was on the same shift and in the same department in which he was work- ing. It involved the same rate of pay and came under the same supervisor as his job on the baffle and oil spring machines. Indeed, Phillips admitted that he refused to ac- cept the transfer without ever knowing what the new job was about.1° As to his reason for refusing the transfer, Phillips testified, "and after the union election this soon I thought, I felt, it [the transfer] was discrimination to me."11 In the absence of preponderant proof that the transfer was discriminatorily motivated, the assumption must lie that the transfer was based upon legitimate busi- 9 Gordon also testified that six repairmen were assigned to the as- sembly line on each shift and that it was the policy of the Company to rotate them. He said that this decision is up to the foreman and that "if a man is weak in this point he will move a man into that area to strengthen that particular segment of the line." He testified further that Phillips' job was within the repairman classification , although he did not explain why Phillips was not classified as a repairman when he initially operated the spring machines . As previously noted, Phillips was given the repairman classification when he transferred to the night shift in 1964. It may be noted that Phillips' duties also entailed the changing of parts on the machine when the line changed from one production job to another; further, Phillips also performed the job of repairing shock absorbers. ° The spring is a part which is later assembled into the shock absorber. 8 It may be reiterated here that Smith was not present when this deci- sion was implemented or when Phillips was terminated. 9 The defective springs were discovered by the line inspector in the course of his duties. The 1,000 defective parts were produced during a period of one half hour. Smith testified that the operator is also responsi- ble for checking the springs with hand guages. According to Smith, Phil- lips should have made such a check every 15 minutes and had he done so the error would have been corrected earlier. However, Phillips credibly testified that he was never given any specific time within which to make such a check. The defect in question, it may be notod, was not visible to the naked eye. 10 Thus, Phillips testified that he had never observed the rewelding machine in operation and that he made no inquiry as to the nature of the job at the time of the proposed assignment. 11 He also testified, "I didn't have any training for the [new] job and I liked the job that I was on so why move me then?" MONROE AUTO EQUIPMENT CO. 147 ness considerations.12 The fact that Phillips was a union adherent and acted as a union observor did not give him a vested interest in his job. In his brief, the General Counsel argues as follows: "By transferring Phillips Respondent created a situation where Phillips was placed in a job he knew nothing about, after being uprooted from a job with which he was thoroughly familiar. The way was then open for Respond- ent to bear down on Phillips and to further discipline him for the slightest mistake - a mistake which most probably [would occur] because of Phillips' unfamiliarity with the job." Of course, this is sheer speculation. A finding of present discrimination can hardly be based upon anticipa- tion of possible future events. Accordingly, and for all of the reasons hereinabove set forth, I shall recommend that the complaint be dismissed in its entirety.13 Upon the basis of the foregoing findings of fact and on the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 12 Although I have some reservations over the fact that Respondent did not call witnesses to explain the reason for the transfer , on the entire record I nevertheless am impelled to conclude that the General Counsel did not make a prima facie case to establish that the transfer was made for antiunion reasons Additionally, and although Phillips' testimony was somewhat confused on the point, it appears from his own testimony, as heretofore set forth, that when he protested the transfer to Plant Manager Gordon, Gordon attempted to persuade Plant Superintendent Dudley to transfer another repairman to Cole 's job and let Phillips remain in his old job. According to Phillips , Dudley responded that he did not have enough repairmen - and Gordon thereupon upheld the superintendent's decision. While not of itself conclusive, this is further evidence that the transfer was not made for discriminatory reasons. 13 The General Counsel has cited cases in which the Board found dis- crimination notwithstanding that the employees involved were transferred to substantially equivalent jobs or even higher paying jobs . Not only are these cases factually distinguishable , but in each case the purpose of the transfer in itself clearly was indicative of the discrimination found Thus, in Southern California Associated Newspaper , A Corporation d(bla South Bay Daily Breeze, 130 NLRB 61, the Board found that the em- ployer violated Section 8 (a)(3) of the Act where an employee was ter- minated for refusing to accept a promotion to a new job . However, the Board found that the reason for offering the promotion was to remove the employee from a mail room for the purpose of impeding union activity among mail room employees. Similarly, in J.W Mays, Inc, 147 NLRB 942, the discrimination found against two employees who were discharged for refusing to accept transfers from the warehouse to equally paying jobs in the general office was predicated upon a showing that the purpose for the transfer was to impede the employees' union activities in the warehouse 350-212 0-70-11