D. W. Hearn Machine Works

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. W. Hearn d/b/a D. W. Hearn Machine Works and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and Elvin Eugene Couch. Cases 16-CA-3720 and 16-CA-3830 September 25, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 25, 1970, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain, unfair labor practices alleged in the consolidated com- plaint and recommending that the consolidated com- plaint be dismissed in its entirety, and that the settle- ment in Case 16-CA-3720 be reinstated, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party filed exceptions to the Trial Exam- iner's Decision. 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 these cases 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exception, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Exam- iner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the consolidated complaint be, and it hereby is, dis- missed in its entirety. IT IS FURTHER ORDERED that the settlement in Case 16-CA-3720 be, and it hereby is, reinstated. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J BOTT, Trial Examiner: It having been charged on October 6, 1969, in Case 16-CA-3720 by International Union, United Automobile Aerospace and Agricultural Implement Workers of America (UAW), herein called the Union, and by Elvin E. Couch, an individual, on December 16, 1969, in Case 16-CA-3830 that D W Hearn d/ b/a D. W. Hearn Machine Works, herein called Respondent, had engaged in unfair labor practices, the General Counsel of the National Labor Relations Board issued a consolidated complaint and notice of hearing on January 30, 1970, in which he alleged that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. The consolidated complaint also alleged that Respondent had violated the terms of a settlement agreement in Case 16-CA-3720 On February 4, 1970, the General Counsel issued an amended consolidated complaint in which he eliminated certain alleged threats to employees as a basis for the allegation that the settlement agreement had been violated but retained them as alleged separate violations of Section 8(a)(1) of the Act Respondent filed an answer, and a hearing was held before me in Oklahoma City, Oklahoma, on March 13, 14, 15, and 16, 1970, at which all parties were represented. Subsequent to the hearing, General Counsel and Respondent filed briefs and Mr Couch filed proposed findings of fact which have been carefully considered. Upon the entire record' in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT 'S BUSINESS Respondent, D W Hearn, is the sole owner of D. W. Hearn Machine Works, and is doing business under that name at a plant in Oklahoma City, Oklahoma, where he is engaged in the manufacture of machines and automo- tive parts. During the year prior to the issuance of the complaint, Respondent sold and distributed products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped in interstate commerce. I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. ' General Counsel has filed with me a corrected copy of page 503 of the transcript which was furnished him by the court reporter The The Charging Party has moved that the record be reopened to corrected page accurately reflects the testimony of the witness, and adduce additional evidence The matter alleged in the motion is not there being no opposition to General Counsel's motion to correct the within the scope of the consolidated complaint issued herein Accordingly, record, the motion is granted, and the corrected page has been physically we deny the motion. attached to volume IV of the transcript 185 NLRB No. 100 D W HEARN MACHINE WORKS 737 III THE ALLEGED UNFAIR LABOR PRACTICES A. The Settlement Agreement in Case 16-CA-3720 The events in these cases are related in time at least to the Union's attempt to organize Respondent's 30 or so employees in August 1969 William Brooks, who led the union drive and signed up approximately 20 employees was terminated shortly after the union activity began, but upon a charge filed by the Union alleging that Brooks had been discriminated against because of his union activity, all parties entered into a settlement agreement which was approved by the Board's Regional Director on November 28, 1969, in which Respondent, although not admitting the commission of any unfair labor practices, agreed to make whole Brooks, who had refused reinstatement to his former position, by paying him the sum of $985 00, and by agreeing to post appropriate notices in its plant stating that it would not thereafter "interfere with, restrain or coerce" employees in the exercise of their statutory rights. On December 16, 1969, Elvin Couch filed a charge of unfair labor practices against Respondent claiming that Respondent had discriminated against him in violation of Section 8(a)(3) of the Act. The Regional Director investigat- ed the charge and having concluded that the earlier settle- ment had been violated, set it aside Thereafter he issued the consolidated complaint which includes allegations of discrimination against both Brooks and Couch as well as allegations of threats of discharge in violation of Section 8(a)(1) of the Act It is settled, and it is conceded, that continuing violations of the Act justify a regional director in vacating a settlement agreement and proceeding with a complaint which covers Respondent's unlawful conduct before as well as after the settlement In determining whether the settlement agreement has been violated, presettlement conduct may be considered as background evidence on the question of Respondent's motive in its post settlement activities i The threshold question, therefore, is whether there is "evidence of substantial unlawful conduct following the settlement agreement,"' but Respondent's total treatment of Couch both before and after the settlement agreement may be considered for whatever light it may throw on Respondent's motive in his case as may its activities in regard to Brooks or any other employee ° B Alleged Discrimination Against Couch 1 Couch's employment history The consolidated complaint as amended alleges that since on or about August 22, 1969, and continuing to date, Respondent has harassed and assigned Couch less desirable work, and General Counsel introduced evidence regarding a dozen or more incidents in which Couch was involved which he claims support the allegation Some of the inci- dents, if they were separately viewed, are insignificant, ' Northern California District Council, 154 NLRB 1384, affd sub nom N.L.R B v Northern California District Council of Had Carriers, 289 F 2d 721 (C A 9), Baltimore Luggage Company, 126 NLRB 1204, 1208 W Ralston & Co, 131 NLRB 912,917 ' Northern California District Council, supra and some of the occurrences were extremely involved, at least in the telling. Since the whole picture must be viewed, these factors alone would make the unraveling difficult enough, but because General Counsel contends and Couch testified that the essence of his complaint is that the easier or more desirable work that he used to perform has been taken from him and he has been left principally with dirty and unpleasant jobs, the search must begin when Couch was first employed by Respondent as a custodian and janitor at $1.10 an hour in 1962 As a custodian Couch's duties consisted of cleaning the shop and the machines, picking up scrap, emptying oil waste, filling oil cans, and cleaning toilets Couch also drove the company truck part-time when first hired, but this part of his work gradually increased over the years. Couch was promoted to shipping and receiving clerk in 1966. He continued to drive the truck and was also put in charge of the tool room, but his duties in the latter respect were mainly custodial He testified that Hearn told him when he promoted him that he "would be wearing several hats," that he would be "doing shipping and receiv- ing, inspecting and packing parts, and general work pertain- ing to the distribution of the parts he manufactured." Couch said that shipping and receiving was approximately 50 percent physical labor and the rest clerical. During part of the period when Couch was shipping and receiving clerk he was also in charge of the stockroom. This assign- ment began when he was assigned shipping and receiving duties and lasted 7 or 8 months when he was relieved. According to him, he was not told that he would no longer be in charge of the stockroom, but one day Hearn's son "moved all my things out into the hallway outside the door and that was it" It also appears from Couch's testimony that during his stockroom assignment there was some "confusion" and "conflict" in the stockroom which he attributed to an "overlapping" of authority. This "over- lapping" of authority appears to have been caused by Hearn hiring another employee to do some of the same kind of work that Couch was doing in the stockroom Before Couch was moved out this person had assumed most of his duties. Couch testified that he was "shipping clerk number one" when he was put in charge of the stockroom, but on October 1969, Kay Whiteman had become, in Couch's own words, "shipping clerk number one," and he was now number two. It also appears from Couch's testimony that his inspection duties evaporated during his stay in the stockroom. While Couch was assigned to the shipping room he had other duties besides shipping and receiving. He contin- ued to drive the truck, which included, in addition to transporting materials to and finished parts from the plant, hauling trash to the dump and scrap to junk dealers He also agreed that he did "some yard work, trimming the bushes around the building" and "some custodial work" like cleaning stopped up drains. Also, "if directed to," he would burn trash, empty burner barrels, and do occasion- al cleaning and painting. After Couch was moved from the stockroom he was required to count parts, sweep and mop the halls, clean machinery, and paint "more frequently" than he had been 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while he worked in the stockroom. This, he said, was a small part of his duties, and he performed these assign- ments not routinely, but only when directed to One of Couch's principal tasks after he left the stockroom was banding and addressing boxes of merchandise for ship- ment. He was gradually relieved of this work between December 15 and 31, 1969, and these duties were taken over by Irvin Shoals. Couch still drives the truck and counts parts which he then transports to employee work stations 2. Couch's union activities Brooks, whose discharge was the basis for the settlement agreement in the first case, successfully circulated union cards among the employees on August 13, 14, and 15, 1969. Couch assisted Brooks and signed a card himself Hearn testified that he was informed on the night of August 15 that Couch was helping Brooks pass out union cards at the plant. The Union filed a petition for an election with the Board on August 20, and the election took place on October 9. Couch wrote and distributed letters to employ- ees in support of unions to counter Respondent's antiunion communications to employees before the election, and he also served as the Union's observer at the election. On November 13, Couch, with company knowledge, took time off from work to appear as a witness in the case involving Brooks which was scheduled for hearing that day, but cancelled when the case was settled 3. Specific incidents principally relied upon as evidence of harassment a. Coffee drinking On August 22, 1969, as Couch was standing in his work area drinking a cup of coffee, Hearn came by and told him that he did not want him drinking coffee except on breaks or lunch hour. Couch replied , "All right, Mr Hearn," and has not done it since He testified that ever since the coffee machine was installed in the stockroom in 1968 he has seen machine operators carry coffee to their machines and drink it while the machines are running, but nothing has been said to them . Hearn testified that he had never seen Couch drink coffee during working hours before this time, that it is his policy not to permit coffee drinking by anyone except on their own time and that he does not knowingly tolerate violations of this policy. b. The Perfection American misshipment On or about October 1, 1969, 2,000 synchronizer rings were shipped to the Perfection American Company by mistake and were lost and could not be accounted for until the customer notified Hearn of their receipt about 10 days later. On October 13, Hearn handed Couch an interplant memorandum referring to the error and warning Couch that, "Further gross negligence will not be tolerated." Couch told Hearn at the time that he was not responsible for the shipment, but he said that Hearn maintained that he was. According to Couch, the Perfection American shipment which erroneously included the 2,000 rings was ready,to go out at 4 30 p m when he usually stopped work, so Kay Whiteman told him that he could leave and she or one of the other employees who were working late would take care of the shipment The bill of lading from which cartons are addressed was not ready when he left at 4 30, Couch said, but he added that in some cases he had addressed cartons from the shipping order or from memory Shortly after the Perfection American shipment left the plant it was discovered that the 2,000 rings were missing. Both Couch and the stockroom girl were instructed to find them and they searched the plant. The stockroom girl recalled packing the merchandise, but at this time Perfection American had not reported receiving the ship- ment and Couch had no theory at the time about where the missing cartons might be. When notification came from Perfection American, Couch then remembered that the Perfection American shipment had been dispatched on the day the parts were missed, but he maintained that since he was not present at the shop at the time and since Kay Whiteman "had assumed responsibility," he had no knowledge that the parts had gone to Perfection American and was not responsible. Couch admitted, however, that when he got the written reprimand from Hearn he did not tell anyone that Kay Whiteman "had assumed the responsibility" for the shipment. Couch also agreed that whoever addressed and shipped the cartons in question was responsible for their loss, and he conceded that he frequently relied on his memory and not written documenta- tion in stenciling addresses on cartons for shipment to Perfection American. Hearn testified that Couch told him the parts were missing and that he had banded them the previous evening On further investigation Whiteman told him that she was sure she had packed the parts for she recalled putting another customer's order number on the boxes. Hearn said that his first reaction in talking to Whiteman was that she had actually forgotten to pack the shipment, but when Perfection American notified him that the parts had been found he concluded that the error was Couch's. As a further indication of harassment, General Counsel contends, and Couch testified that after this incident he was not supplied with the same kind of information from the office to assist him in stenciling customer addresses on boxes as he had been before, and this made his job more difficult Courch's testimony on this issue is confusing, somewhat, if not flatly inconsistent, and contradicted com- pletely by Hearn. Regardless of my ultimate assessment of Hearn's actions in holding Couch responsible for the misshipment, I find that there is no evidence of any substance to support the claim that Respondent made a change in its procedures after the incident which actually deprived Couch of information that had regularly been supplied him before. I also find in this connection that Lyn Thornton, an office clerical, did not ignore Couch's written request that he be furnished additional information, and that, as she credibly testified, she passed it on to Hearn who ignored it because he did not want Couch putting customer names and addresses on shipments until he received the bill of lading covering the shipment. D W. HEARN MACHINE WORKS 739 c The truck incident Couch had driven the company truck for years and normally made arrangements to have it serviced. He testified that approximately 10 days before November 1 he concluded that the vehicle ought to be checked for antifreeze, oil and grease, and other services and so he mentioned it to Hearn who referred him to Foreman Barfield. Barfield told Couch that he had made arrangement for service with a station in Oklahoma City. About November 1, 1969, Couch had the truck serviced and turned the station's bill into the Respondent's office. Sometime later Hearn asked him what the bill was for, and he told him. At that point, Hearn instructed Couch not to have any other work done without a requisition. Couch indicated agreement, and he then noted that since winter was coming he had had the station check the heater and defroster and they did not work properly Hearn replied, "Don't worry about it, you probably won't be driving the truck then." Hearn admitted making the remark about Couch's future, but he said that Couch had been making derogatory remarks about the management of Hearn Machine Works to one of Hearn's vendors and what was in his mind when he made the statement was the thought that if Couch continued to make these remarks he would put him in a position where he would no longer be driving the truck. Couch did not deny making the remarks attributed to him d. Painting the factory desk There is no dispute about Couch having painted a wall- hung factory desk at Foreman Barfield's request on Novem- ber 3 and refusing to sand and repaint it on November 4, although ordered to do so by both Barfield and Hearn. The incident was offered not only as evidence of harassment under the theory that this was "dirty" work that Couch had not done since he was promoted to shipping and receiving clerk, but also because during the affair Hearn made a statement to Couch about firing him which is alleged as a threat in violation of Section 8(a)(1) of the Act Couch testified that he painted the desk on Barfield's orders on November 3 "in my spare time between banding and addressing cartons" and the job "was quite good, wasn't anything wrong with it, except that it didn't seem to suit Mr. Hearn" who asked him who had ordered him to paint it . On the following day Barfield told him to sand and repaint the desk , and Couch said he answered, "No, I won't sand and repaint the desk. I don't have to do unreasonable things that you ask me to do ." Couch said he then took from his pocket a pamphlet entitled "Know your rights . What your supervisor cannot do," which he had received from the Union , and asked Barfield if he had ever read it. When Barfield said he had not and was not going to, Couch said he replied "Well, I'm not going to sand and repaint the desk." Barfield told Couch that he was "going to do whatever I tell you or else," and Couch asked if that meant that he was fired, but Barfield said , "No, but I'll see what Mr. Hearn has to say about it." In about 5 minutes Hearn appeared , Couch said, and asked him if he had refused to comply with Barfield's order Couch admitted that he had and showed Hearn the UAW pamphlet. He accused Hearn and Barfield of "trying to run him off" and insisted that he was not going to be "run off." Then, he said, "one word led to another." Among the things he recalled were Hearn's insist- ence that he follow Barfield's orders, to which he responded that he "would do the things which (he) was supposed to do." He told Hearn that he was "not going to run (him) off like (he) did Bill Brooks and Letha Breed," and Hearn retorted that, "At least Letha Breed was woman enough that she quit." Couch then informed Hearn that he "was a man when you were still in rompers, a member of a union when he was still in grade school" and one time president of his local union. Somewhere along here Hearn contended that "dirty labor unions" had got Congress to pass a law which prevented him from running his business as he wished, and if it were not for the National Labor Relations Board he would fire Couch "so quick it would make (his) head swim " Couch said that Hearn also stated that he "would like to see you crawl out that door on your belly," and that his reponse was that he knew it, but was not going to leave unless Hearn fired him Hearn countered by stating that he was "not going to fall into that trap." On the next day, November 5, Couch said he sanded and repainted the desk, even though he had to postpone some of his other work Barfield's and Hearn's versions of the desk painting epi- sode are basically in accord with Couch's, but contain some variations which color the incident and have some bearing on motivation. Barfield testified that Hearn had previously indicated to him that the desk needed painting and when he noticed Couch idle one day he asked him to do it. Couch complied, but he used primer paint which Barfield objected to On the next day, Barfield voiced to Couch his dissatisfaction with the primer paint, explaining that such a medium was used only on machinery, and showed him a can of green enamel paint to use. To this point Couch made no objections or comments in regard to his new instructions Later in the day Barfield saw Couch " idle again," he said, and asked him if he was going to repaint the desk. Couch uttered a flat "No" which shocked Barfield, and he asked him again. Couch again refused, and Barfield stated credibly and with contradiction that Couch was becoming "very hostile and raising his voice real loud" as well as waving his arms as if he "was in defense of himself." At that point Couch displayed the UAW pamphlet, and Barfield added to Couch's account of this part of the incident only the observation that Couch "shook" the pamphlet in his face According to Barfield, he did not seek Hearn's assistance, but Hearn overheard the loud voices and asked what the problem was. Barfield explained what had happened. Hearn then asked Couch to follow Barfield' s instructions, but Couch refused in a "loud and hostile tone." Barfield said that to that time Hearn's voice was "normal" and he instructed Couch either to do the job or go home. Couch answered that he would neither perform the work or leave the plant and advised Hearn that if he wanted him to leave he would have to fire him. This was the 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first time that firing or discharge was mentioned by anyone and it was preceded by Couch's shaking the same pamphlet in Hearn's face that he had in Barfield's Barfield agreed with Couch about Hearn mentioning the Labor Board in connection with a reference to firing Couch, but he said that Couch had first accused Hearn of assigning him "dirty jobs" because of his union affiliation in order to force him to quit his job. Couch said this would not happen and that Hearn would have to fire him It was then that Hearn said he could not under the law fire Couch because of his activities, for if he did Couch would file an unfair labor practice charge with the Board. He said Couch replied that he would and that he would "do that even before I go home " Hearn went back into his office, and Barfield said Couch stood idle for about 45 minutes. Hearn returned and read a memorandum to Couch on the subject of "insubordina- tion" in which he recounted what had just happened and concluded by warning Couch that "Any future refusal to work on such jobs will result in your being discharged from the company." He then handed Couch the document. The next day Couch sanded and repainted the desk. To Couch's and Barfield's accounts of what happened on November 4 Hearn added these items essentially. In his conversations with Couch both he and Couch were "quite angry" and were engaging in a "shouting match" which he characterized as "disgraceful " Couch mentioned quitting or being fired, and Hearn conceded that he said he could not tell him to quit and that if he fired him he would file an unfair labor practice charge He also admitted that the Labor Board was probably mentioned. His remark about Couch "crawling out the door" was made after he spoke to Couch the second time and reminded him that he had treated him kindly over the years, had provided opportunities for him which he had not made the most of and had made every effort to get along with him He then commented that Couch's return for such treatment seemed to be his unreasonable conduct. It was then that Couch stated, "You can't give me a position" and added that he was more a man than Hearn would ever be Hearn then told him that if he were "half a man that he'd crawl out the shop on his belly, the way he'd been acting " e The table cleaning incident Ten days later, on November 14, while Couch was count- ing parts, Barfield asked him to clean some drill press tables. Couch said that since he was busy he continued with what he was doing until Barfield returned in about 45 minutes and asked him if he was not going to do the work. He said he replied that he was not because it was not his job to do it, and if Barfield wanted "to make anything out of it, we'll take it to the National Labor Relations Board." Barfield ordered Couch to clean the tables or go home, but Couch said he would not. As in the desk painting incident, Couch justified his refusal to carry out his supervisor's orders on the ground that table cleaning had not been part of his job as shipping and receiving clerk and because it was the job of the "clean-up people," two of whom were present at the time. Hearn testified that he had noticed the drill press tables in an aisle in the way of traffic and asked Barfield to have someone clean them and put them back in storage. When Barfield told him later that Couch had defied his instructions and threatened to take the matter to the Board, Hearn decided to take no action, even though he felt that inaction would injure his relationship with his supervi- sor, because he had a settlement agreement in the Brooks case pending before the Board . He said he told Barfield to try to get along with Couch to avoid any labor problems. Hearn actually executed the settlement agreement in Brooks' case that day. Barfield's testimony is basically like Couch's in regard to this incident, but he added that Couch was doing no productive work of any kind when he asked him to clean the tables. I credit Barfield's version in respect to Couch being idle in this instance and in the previous incident when Barfield gave him his instructions. f. Couch is reprimanded for washing up early It is contended that at quitting time on the same day that Couch was directed to clean tables and refused he was the victim of additional discrimination by having his privilege of clean-up time withdrawn. Couch testified that on November 14, "At 4:25 I finished counting all the parts that would go into a container . . . and made out the form . . . and then I went at 4:28, which was two minutes till quitting time, I went to the washroom , washed my hands and joined the other employees at 4 29 back at the lunch table near the time clock. Since it was Friday, why, all the employees were waiting there to get their pay checks and clock out and go home, I joined them. Mr Hearn singled me out and said, 'I don't want you washing up on my time' He said, 'You continue counting parts until the bell rings to go home.' " Couch replied, "Yes, Mr. Hearn." There is a bell that rings at 4:20 at Hearn 's, called the cleanup bell, to announce to the machine operators and others in the machine tool section that production may be stopped and the area around the machines cleaned up. There are certain employees who are not supposed to clean up when the 4:20 bell rings, and Couch admitted that he is one of them . Hearn also admitted that some of the machine operators who clean their machines at the 4:20 bell probably "get the jump" on the washroom before 4:30. Couch pointed out, however, that of the 15 odd employees at the clock at quitting time on November 14, 3 of them were not affected by the 4:20 cleanup bell, meaning they had no more right to be there than he had. Couch also stated that he knew exactly what time he quit work and entered the washroom "because previously I had been, let's say instructed to work and to carry out these jobs that I was doing until the end of the . . work." He also testified, however, that he checked the clock because he "was aware that I was being harassed." Hearn testified that he saw Couch heading for the wash- room as soon as the 4:20 cleanup bell rang It occurred to him that Couch had no machine to cleanup and employees were not supposed to wash their hands anyway until after the final bell. As Couch left the washroom, Hearn joined D W HEARN MACHINE WORKS him and walked with him toward the timeclock, telling him that in the future he should wash his hands after the final bell because he was not operating a machine. Couch merely replied, "Aye, aye, sir." g Emptying a barrel of waste In late November, Hearn told Couch to emply a barrel filled with scrapings like steel wool from the grinder. Couch said he did it, although it was not his job, but the job of cleanup boys and porters two of whom were "on the job at that time." Hearn testified that emptying the waste barrel was not something that only porters and cleanup boys were expected to do Couch admitted that after he was moved out of the stock room he emptied barrels like this from time to time "when asked to do so," but he said that in this instance he was being interrupted in other work he was performing, the barrel had remained emply for 3 weeks, and other employees should have taken care of it. h. Rearranging the materials in the storage area Couch testified that on December 11 Barfield asked him to get some lumber down from the storage area. When he went for the lumber, Barfield and Hearn were present looking over the stored material. Hearn commented on how cluttered the area looked and Couch agreed that it did. Not long after, Barfield asked Couch to rearrange the materials in the area, which he did. Couch said this used to be his work when he was custodian, but had not been since that time. On cross-examination, Couch admitted that after he had been taken out of the stock room he had stored materials in the storage area and, "when I was directed to," had rearranged the materials already stored there Barfield testified that since he has been foreman Couch has stored and removed materials from the storage area and other employees seldom visit it. Hearn added the information that he found the area a mess and told Couch that it seemed to have been his doing i The Freedco incident Couch was still performing shipping and receiving duties on or about December 11, 1969, when a shipment of transmission parts to Freedco was delayed 'over night because the number of boxes on the load did not conform with the bill of lading. Couch testified that Foreman Barfield "criticised him" the next day by instructing him to take one case from the delayed shipment and place it in the stock room with instructions to the girl in the stock room to hold it until it could go with another case as one single order and shipment.' A few days later the other case of transmission parts was ready for shipment to Freedco, and Couch, unable ' It was not clear at the hearing and it is not now clear from General Counsel's brief whether Barfield's "criticism" of Couch was part of Couch's "harassment " In any case, Hearn made no point of it when he spoke to Couch later, and my review of the record and Respondent's extensive treatment of the point convinces me that Couch might have been responsi- ble for the delay in shipment 741 to find the carton he had placed back in stock, was packing a new carton from stock when Hearn approached and asked him what he was packing When Couch informed Hearn that it was a Freedco order, Hearn asked what had happened to the box that had been put in the storeroom, but Couch said he did not know Hearn inquired of the stock room girls who told him that it had been in the room, but had disappeared. Hearn searched for the box, but it was never found. During the afternoon while he was looking for it he spoke to Couch again and complained that the "box dust simply doesn't get up and walk off. I said it had to be moved by someone or stolen, because it dust can't disappear with no reason." He admitted that he might also have made a statement to Couch, as Couch had testified, that, "I suppose this isn't one of your mistakes either" He also recalled that Couch replied that he would take the blame for his own errors, but resented being blamed for the mistakes of others. Hearn took no action against Couch in the Freedco matter I find no evidence in connection with this incident that Hearn was accusing Couch of stealing, as General Counsel suggests. Whether Hearn's remark about this not being one of Couch's mistakes either is more significant will be treated later in analyzing Hearn's and Couch's reactions to each other over a period of time. Between December 15 and 31, 1969, Couch was gradually relieved of the duty of addressing boxes for shipment. He also testified that since December 31 a new system of addressing cartons utilizing preprinted address labels has been in effect. It also appears that Irvin Shoal, who was hired in April 1969, does the box banding in shipping that Couch used to do. Couch spends most of his time now driving the truck and counting parts. j. Counting parts Parts arrive at Respondent in large quantities and unfin- ished form for later milling and machining, and must be counted. Couch concedes that Hearn's long standing instructions were that parts should be counted by picking them up two in one hand and three in another and dropping them in groups of five into a container. This method of using multiples of five makes it easier to avoid errors. A few weeks before January 17, 1970, Hearn, having seen Couch counting parts by using only one hand, had told him that he had hired a man with two hands and instructed him to count in the approved manner . Couch testified at the hearing that he merely replied , "Yes, Mr. Hearn," but in a letter he sent the Board on January 17, 1970, he stated that his answer to Hearn 's criticism was "You hired a man who also has a brain." He added that Hearn said, "You are not using it," to which he replied, "I am using my brain as well as you are using yours." Couch testified that he was counting parts again on January 17, 1970, in a crouched position again using a technique contrary to Hearn's instructions, Hearn saw him and after commenting that Couch was making a WPA project of the job, told him to "Get up off your rump and count those parts as I directed you to, three in one 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hand and two in the other, and place them in the pan as directed " Hearn then proceeded to demonstrate how he wanted the assignment performed. There was a substan- tial amount of testimony about whether Hearn's method would have required Couch to assume a position which would have hurt his already sensitive back I credit Hearn's statement that such was not his intention and that Couch could have used mechanical aids to lift the containers. During the second part-counting incident, the first episode was referred to by Couch, he said. There is some conflict about what statements were made in the first and second cases as well as a relatively minor conflict about the sharp- ness of Couch's replies. It is unnecessary to determine when each particular statement was made for Couch agreed that they were in fact made. Similarly, although I find that Couch said more than, "Yes, Mr Hearn," when Hearn told him how he wanted the job performed, and said at least that he was using his brain as much as Hearn was, it is unnecessary to go further, for if Hearn's instruc- tions were proper and not discriminatorily motivated, Couch's rudeness and insubordination were apparent in any case. Hearn's account of the incidents are otherwise substantially in accord with Couch's. He said he was "exas- perated" by seeing Couch openly defying previous instruc- tions and made the remarks Couch said he did He denied that he intended that Couch should perform the work in an awkward fashion, or lift heavy weights without assistance Hearn added that when Couch responded to his criticism by comparing the use of his brain to Hearn's use of his, Hearn replied, "Well, at least I will be able to tell you what to do," and walked away Hearn entered the office Employee Keeling testified credi- bly and without contradiction that after Hearn had entered the office, Couch walked by him, paused and said, "If that son-of-a-bitch comes out here one more time, I might deck him, I don't know." Later that afternoon, Keeling told Hearn what Couch had said about him. Keeling also said Couch had "temper tantrums" and seemed to get upset when things went against him. Respondent has changed its method of checking the accuracy of part deliveries They are no longer counted by hand, but are weighed. As bearing on the question of whether Couch's conflicts with his superiors are of his own making there is evidence that he was impulsive, quick to resent interference and somewhat short tempered before there was any union activity at Respondent's plant Changes in Couch's duties in the stock room over the years have already been alluded to. Couch mentioned "confusion" and "conflict" in the stock room and some of it from his own testimony appears to have offended him. He stated that there had been "consid- erable friction pertaining to the Shipping Department over the years." Hearn testified that in July 1969 Couch rammed a stock room clerk in the back with a string of boxes loaded on a conveyor, and another shipping clerk told him that Couch threw things in the stock room When another employee quit, she told Hearn that she was afraid that Couch would lose his temper and strike her with some parts. Former employee Lyn Thornton testified that Couch would lose his temper, swear, and throw things. Employee Miller gave specific examples of what he called Couch's "temper tantrums " Early in August 1969 Couch asked Hearn to come with him on a Monday morning to show him "what these damn people do to me." Hearn followed him to the conveyor area where he found 12 or 15 boxes neatly stacked on a pallet, ready to be taken to the stock room Couch complained to Hearn that, "these boxes clutter up my shipping area, and you're going to have to stop making them work on Saturdays around here or I'll have to work my whole weekend so that I can work on Monday and have the boxes out of the way." Hearn told Couch that it would take him only five minutes to move the boxes and solve the problem, but he said Couch became insolent for the first time and shouted that, "You couldn't move those boxes in two hours " Hearn said that Couch's tone was such that he told him that in his position he did not have to argue with him, but to just move the boxes. This testimony is uncontradicted. Shortly after the union activity began there was an occa- sion when Couch, thinking that the girls in the stock room were giving him a "rush act," blocked the conveyor so that they could not push more than a certain number of cartons out to him to band. Whiteman, who Couch had described as "shipping clerk No. 1" and his "superior," then pushed all the boxes out to the end of the conveyor, but Couch pushed them back so that he could do this work on the conveyor. There is no contention that this "conflict" had anything to do with union activity C. Alleged Threat to Letha Breed This incident was offered to establish an independent violation of Section 8(a)(1) of the Act and as bearing on Hearn's motive for his activities in Couch's case. It will also be recalled that during the desk painting incident in November 1969 Couch accused Hearn of trying to "run him off" like he did Brooks and Breed, meaning, in Breed's case, forcing her to quit. At the outset, however, it must be emphasized that General Counsel does not contend that Breed was harassed in any way or forced to quit. Breed started to work for Respondent in April 1969 as a machine operator She said she tried to promote the union by talking with other employees, signing a card, and attending the three meetings the union held for Respond- ent's employees. On October 23 (Breed thought it was October 16) after a conversation with Foreman Barfield about the way she was recording production, Breed said she decided to talk with Hearn about it. When Breed saw Hearn he asked her what her trouble was and she replied, "Well, I would like to continue to work here but I would like for you to pull Jeff off." Hearn replied that he had spent many hours and dollars on training supervisors and had no such intention Breed testified that she then said, "I'm sorry you feel that way Mr. Hearn. I know what it's all about. It's over the election. I think everybody is entitled to their opinion because this is the good old United States and you can say what you want." She said Hearn answered that he could not say what he liked or disliked, which caused her to ask, "In other words, you would like me to quit." Hearn replied, D W HEARN MACHINE WORKS 743 "I cannot fire you, but if you knew how I felt you would quit." Breed said she then commented that she was sorry that Hearn felt as he did, that she did not, and to prove that she had "no hard feelings, I will continue to operate the machine." Breed said that she and Hearn both mentioned earlier more difficult times, and she assured him that before she "would see your business go down, I would crawl on my hands and knees out of this building" But, again to prove to him that she held no resentment against him, she said she "would continue to work." According to Breed, at that time Mrs. Hearn walked in and said, "What do you have to prove to us? You don't have to prove nothing to us. The machine is stopped out there, and it should be in operation. I think you should go to work." Breed went back to her machine and decided to quit. She asked Barfield for her check and W-2 forms. Later that day, Barfield asked her for a written statement of her reason for leaving. She signed a statement that she had quit voluntarily, and Barfield gave her a written recom- mendation. Hearn's version of their conversation is much like Breed's except that he testified that Breed indicated that Barfields' treatment of her was based on her union activity and Hearn told her he did not know what she was talking about. Breed then asked him if he wanted her to quit, and he told her he had no intention of asking her to quit Breed said, "How can I make it up to you?" and Hearn told her he did not know what she had to make up to him. Breed asked him again what she could do, and he said, "Do anything you like," and walked out of the room. I credit Hearn's version and I find that he did not tell Breed that if she knew how he felt she would quit her job. Breed was not harassed by Barfield as she said she thought she was, for it appears that the conversation she had with Barfield just before she went to see Hearn was about her desire to take a week off from work to go hunting Barfield indicated that the request would not be granted, but offered to let her see Hearn about it. The conversation that followed with Hearn, therefore, was triggered by Respondent's refusal to accede to Breed's request. This finding is based on Barfield's credited testimo- ny on this point, Breed's admissions on cross-examination that her conversation with Hearn that day included a request for time off to go hunting, Shoal's credited testimony that Breed told him on the day she quit that she intended to get time off to go hunting or quit, Miller's testimony to the same effect, and Breed's almost immediate resignation when she returned to her station. In my opinion, Breed's disappointment in not having been permitted to take time off caused her to give an erroneous interpretation to Bar- field's conversations with her and to the meaning of Hearn's conversation with her thereafter. D Analysis, Additional Findings and Conclusions in Couch's Case The foundation for Couch's case must be that he was treated differently after Respondent learned that he had helped Brooks organize Respondent's employees. As in any other case of alleged employee discrimination by dis- charge, rather than harassment as in this case, certain factors, such as, the nature of the treatment viewed in the light of ordinary employment practices, its timing, how it compares with the way Respondent treated this employee before he became active in the union, how Respondent deals generally with other employees, Respond- ent's attitude toward unionism at its plant and, of course, any admissions of motive are relevant considerations in deciding the ultimate issue. In Couch's case, General Counsel bases his case primarily on changes in Couch's work assignments and withdrawal of the better parts of his job content after he became active in the Union He also points to Hearn's attitude toward Couch when he came in contact with him in the many incidents on which General Counsel builds his case of discrimination, and, of course, he does not overlook Hearn's alleged threats to fire Couch and get Breed to quit as admissions of what really motivated him. After careful analysis of all of these contentions and the evidence, including the evidence in Brooks' case, I find that basic parts of the foundation needed to support General Counsel's theory are not present. Additionally, although certain actions of Respondent are suspicious and Hearn himself might seem to have overreacted in connection with certain inci- dents in which Couch was involved, his actions and state- ments in regard to Couch when considered in the light of Couch's own actions and statements do no appear odd or unreasonable enough to warrant drawing an inference from them alone that union considerations motivated them. The assignments which Respondent made to Couch after August 15, which General Counsel contends were the kind of menial tasks that he had not performed after he was promoted from custodian and must, therefore, have been imposed on him in retaliation for his union activity, were in some cases exactly the same and in others substantially like the jobs he continued to do when directed to after he was made shipping and receiving clerk and before he engaged in any union activity Emptying a barrel of waste, cleaning tables, rearranging the storage area, and painting, which purported to dramati- cally portray the demeaning assignments with which Respondent harassed Couch, had admittedly been done by him after his promotion. As found earlier, Couch contin- ued to do those chores when he was told to, and after he was moved out of the stock room, which was a long time before any union activity started, he concededly did them "more frequently." It was not a departure from past practice and abnormal on its face, therefore, for Respondent to ask Couch to empty a barrel, clean two drill press tables and store them, rearrange the storage area, and paint a desk after he became active in the Union. Even after Couch was promoted to shipping and receiving in 1966 the content of his job was not fixed and unchanging, but was in fact altered in certain respects before the advent of the Union. As shipping and receiving clerk, Couch was also in charge of the stock room, but sometime during his career another employee was hired to do the same work and he was gradually deposed He also had some inspection duties at one time, but these also evaporated, and, more importantly, in his own words, although he 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was at one time "shipping clerk number one," Kay White- man gradually superceded him and became "number one " This lack of permanence and continuity of job content, taken with the variety of other tasks which Couch continued to perform after he was assigned to shipping and receiving, blunts the charge that the transfer of the rest of his shipping department duties to another employee in late December, 1969, was based on new, that is to say, union considerations It also appears that Shoals , the employee who apparently is now doing as part of his duties the banding and stacking of boxes that Couch used to do in shipping and receiving, was hired by Hearn to assist Couch. I credit Hearn's and Shoal's testimony that Couch has been uncooperative with Shoal, and this "conflict" and Couch 's loss of the rest of his shipping duties is reminiscent of his displacement of another employee in the stock room in 1967. In 2 of the 12 or more incidents which it is argued demonstrate harassment , General Counsel contends that Couch was unfairly criticized for an error for which he was not responsible In the Perfection American incident, however, the evidence , as I have set it out above, shows that Hearn did make some investigation to determine who was responsible for the lost shipment , that he first thought that Whiteman, another employee, had erred , that Couch did not tell him that Whiteman "had assumed the responsi- bility" for the shipment and that it was possible that Couch had improperly addressed the shipment from memo- ry In these circumstances, whether another employee had in fact made the error is irrelevant Hearn 's motive, not his judgment , is in issue, and since his criticism of Couch does not appear to be unreasonable in the light of the facts he had at hand , his action is not evidence of discrimina- tion . It also must be noted that an extension of this episode which it was claimed showed a type of whipsawing, that is, thereafter depriving Couch of shipping information in order to make his job more difficult , has been found not to be the fact Similarly, in the Freedco incident where a box of parts was misplaced and never found, it is not "obvious," as General Counsel contends, that the loss was not Couch's fault But in any case, Hearn took no action against Couch, but said, perhaps caustically , that he supposed that this was not one of Couch's errors. Couch and Hearn had had a few words between them before, and Hearn's comment does not seem out of character or seriously offensive In any case, Couch had handled the box and Hearn reasonably could have believed that he was at fault in this instance too Couch was reprimanded by Hearn in January 1970 because he was not counting parts the way Hearn wanted them counted, but Couch admitted that this was so and that Hearn had reprimanded him before for doing the same thing. I have also found that the record will not support a finding that Hearn intended that his procedure would require Couch to stand or bend uncomfortably Any annoyance expressed by Hearn during this episode was adequately explained , justified by the facts and in harmony with the remarks that Couch made to Hearn. During the course of certain of the incidents involving Couch statements were made to him indicating that Hearn wanted him to quit or hoped to get rid of him, and from this it is argued that Hearn revealed that his motive was improper However, since Hearn's testimony that Couch had been making derogatory remarks to one of Hearn's vendors was uncontradicted , his explanation that he had in mind taking Couch off the truck if this continued cannot be brushed aside. Although I thought Foreman Barfield blew up the truck incident into almost unrecognizable pro- portions , Hearn's simple request, as the owner of the firm, that Couch get a requisition for anything other than gas and oil, cannot be magnified, and Couch did not seem to think it too important either. Hearn's criticism of Couch for drinking coffee on company time when at least some of the machine operators occasional- ly drink coffee while their machines are running, and his direction to Couch not to wash up before the final bell rang, although a few other employees appear to have beaten the bell, seemed to be the kind of overreactions which needed explaining . Hearn did explain his position, however, and whether or not his explanations completely dissolved the question mark which hung over his actions, Couch's own conduct and reactions in other areas and in other contacts with Hearn must be weighed in evaluating Hearn's motives Two weeks before Hearn told Couch he should continue to work until the final bell rang, Couch and Hearn had had their most dramatic confrontation in what Hearn described as a "disgraceful" shouting match which followed Couch's refusal to repaint a desk As found above, Couch had done work of this kind before without protest, but this time he waved a union pamphlet in Hearn's view, as he had in Barfield's and, in a loud and hostile voice reiterated his refusal . If this kind of conduct was not enough to make Couch stand out from other employees and attract Hearn 's attention, on November 14, Couch decided that he would not clean tables as directed to by Barfield Barfield informed Hearn who told him to try and get along with Couch to avoid additional labor problems, and thereafter he took no action in regard to Couch's insubordination . It is apparent from the record, and it must have been apparent to Hearn, that on November 4 Couch had decided to put in issue and challenge his employer's authority to direct his work, and that on Novem- ber 14 he was extending his challenge . Couch told Barfield to take the matter to the Labor Board for a test if he did not like his conduct, and he candidly admitted that, since he thought he was being harassed and that certain things he was being asked to do were not part of his regular duties as set forth in certain job descriptions, he would made a judgment in each case as to whether an order was proper or not. In his words, "Well, in the ultimate decision its for me to decide and it's for Mr. Hearn or I to either-him to fire me or me to quit." In this context, Hearn's quiet and mild suggestion at quitting time, as he and Couch approached the area where employees received their pay checks, that Couch work until the final bell rang no longer seems to contain any ulterior meaning. For essentially the same reasons, I find no threat on Hearn's part to fire Couch because of his union activity during the desk painting incident and no statements by him which would validly support a finding that his treatment of Couch in that case or in other instances was based D W HEARN MACHINE WORKS on illegal considerations. The entire episode has been set out before and need not be repeated at length Couch had twice refused to comply with Barfield's and Hearn's orders and accused Hearn of trying to get him to quit. "One word led to another," as Couch said, and both men became angry Each questioned the other's manhood, and Hearn reminded Couch of past favors, suggesting that Couch was returning evil for good The question of whether Couch should quit or Hearn should fire him became an issue, and Hearn indicated that he would fire Couch if it were not for the Board or the Act I accept basically Hearn's version that he told Couch that if he fired him, "you'd probably go down to the UAW and file charges against me for unfair labor practices" and that Couch replied that, "he sure would, he wouldn't even go home." I also accept Hearn's logical explanation that he did not want an additional charge filed against him and for that reason he later told Barfield to overlook Couch's insubordi- nation. As indicated earlier, Hearn signed a settlement agreement with the Board in the Brooks case on November 14, the same day that Couch refused to clean the tables and urged the company to "take it to the National Labor Relations Board " Having found earlier that Respondent did not threaten Breed with discharge because of her union activity, that incident is removed from the case as evidence of Respond- ent's motive in Couch's case. I have also examined the evidence in Brooks' case very carefully, and I have concluded that even assuming that Hearn discriminatorily decided to accept Brooks' earlier resignation as soon as he learned that he was the leader in organizing the plant, despite the fact that earlier in the week he had agreed to let Brooks stay on indefinitely, the addition of this factor as background would not establish the illegality of Hearn's motive in Couch's case. I have concluded that General Counsel has not established by a preponderance of the evidence that Respondent har- assed and assigned Couch less desirable work on account of his union activity, and this conclusion has been influenced by one other consideration besides those already stated Couch's and Hearn's actions and statements cannot be divorced from their distinctive personalities Both are proud and very determined individuals, fully confident that they know best. Couch probably thinks that counting parts Hearn's way is silly, but it is Hearn's shop, and Hearn knows it and acts like it Hearn is on the quiet side, Couch is very articulate, but both are very candid and 745 outspoken if they honestly believe the situation warrants it. Couch, as the evidence shows, is somewhat short tem- pered, but Hearn does not easily and happily accept any challenge, real or imagined, to his ideas or authority He and Brooks also had a heated discussion about how a particular job should be performed before Brooks started the Union only because Brooks questioned the validity of Hearn's own procedures. Finally, Hearn is younger than Couch, built this business himself, runs it himself, and is obviously proud of it. He and Couch clash, and they did before Couch joined the Union. Couch is sincerely disappointed by the loss of work which was cleaner and which he clearly considered more important and prestigious, and he may resent the rise of others. In any case, he may have been quick to see discrimination where it actually did not exist, although it would be foolish to believe that Hearn was not to some unmeasurable extent offended when he discovered that Couch was helping Brooks circulate union cards. The point is that besides the many factors alluded to, these personality styles and differences made it doubly difficult to evaluate motivation and determine whether the two were reacting toward each other without regard to the new element of unionism which had been introduced into the relationship. It may be trite to say, but although the case is not free from doubt, General Counsel has not established discrimination as alleged by a preponderance of the evidence, and Couch's attitude and statements when in contact with supervision contributed to this to some extent. Having found that Respondent did not engage in any independent unfair labor practices after the execution of the settlement agreement, I shall recommend that the consol- idated complaint be dismissed in its entirety and that the settlement agreement be reinstated CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2 The Union is a labor organization within the meaning of the Act. RECOMMENDED ORDER It is hereby recommended that the consolidated complaint be dismissed in its entirety and that the Board reinstate the settlement in Case l6-CA-3720