Allen Hayosh Industries, Inc.

ALLEN HAYOSH INDUSTRIES Allen Hayosh Industries, Inc., and its Subsidiary A H I Machine Tool & Die , Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 7-CA-6761 and 7-RC-8901 June 6, 1969 DECISION AND ORDER BY CHAIRMAN MCCULI.OCH AND MI•MBERS BROWN AND ZAGORIA On February 6, 1969, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. In Case 7-RC-8901, the Trial Examiner further recommended that 1 challenge be sustained and that the challenges to the remaining 5 ballots be overruled. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed a brief in support of the Trial Examiner'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 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 and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, A H I Machine Tool & Die, Inc., Mt. Clemens, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: 'These findings are based, in part , upon credibility determinations of the Trial Examiner to which the Respondent has excepted. After careful review of the record , we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence . Accordingly, we find no basis for disturbing these findings . Standard Dry Wall Products, 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). 'The Respondent has requested oral argument . This request is hereby denied as the record, the exceptions and briefs adequately present the issues and positions of the parties. 439 Add the following as paragraph 2(b), and reletter the following paragraphs accordingly: (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of their 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. IT IS HEREBY FURTHER ORDERED that the Regional Director for Region 7 shall, pursuant to the Rules and Regulations of the Board, within 10 days from the date of this Order, open and count the ballots of Richard Cartwright, William B. Emerick, Peter R. Osterman, Gerald Theriault, and Donald Eller in Case 7-RC-8901, and prepare and cause to be served upon the parties a revised tally and the appropriate certification. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner : Upon a charge filed in Case 7-CA-6761 on May 20, 1968, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, herein called the Union or UAW, and an amended charge filed by UAW on June 5, 1968, the Regional Director for Region 7 of the National Labor Relations Board, herein called the Board, issued a complaint and notice of consolidated hearing on July 30, 1968, on behalf of the General Counsel of the Board against Allen Hayosh Industries, Inc., and its subsidiary A H I Machine Tool & Die, Inc., herein called the Company or the Respondent, alleging violations of Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, el seq.), herein called the Act. On July 30, 1968, the said Regional Director issued his report on challenges in Case 7- RC-8901 in which he found that the challenges to the ballots of eight voters raised questions of fact which could be best resolved by hearing. On the same day, July 30, 1968, the Regional Director issued his order consolidating for hearing, ruling, and decision Cases 7-CA-6761 and 7-RC-8901. In its duly filled answer to the complaint in Case 7-CA-6761 the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, as aforesaid, the hearing of the consolidated cases was held before me in Detroit, Michigan, on October 8, 1968. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Briefs were filed by the General Counsel, the Respondent, and the Charging Party. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Allen Hayosh Industries, Inc., hereinafter called Respondent Allen Hayosh, is a Michigan corporation 176 NLRB No. 57 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which is engaged in the city of Warren, Michigan, in the manufacture, sale, and distribution of tools and dies During the year immediately preceding the issuance of the complaint herein, a representative period, Respondent Allen Hayosh sold and distributed at its plant in Warren, Michigan, products of a value in excess of $100,000, of which products valued in excess of $50,000 were furnished to General Motors Corporation, Ford Motor Company, and Chrysler Corporation, each of which annually manufactures, sells, and distributes at its installations in the State of Michigan products valued in excess of $500,000, which are shipped from said installations in the State of Michigan directly to points located outside the State of Michigan. A H I Machine Tool & Die, Inc., hereinafter called A H 1, also a Michigan corporation, is engaged at the city of Mt. Clemens, Michigan, in the manufacture, sale, and distribution of tools and dies. During the year immediately preceding the issuance of the complaint herein, a representative period, A H I sold and distributed at its plant in Mt. Clemens, Michigan, products valued in excess of $100,000, of which products valued in excess of $50,000 were furnished to General Motors Corporation, Ford Motor Company, and Chrysler Corporation, each of which annually manufacturers, sells, and distributes at its installations in the State of Michigan products of a value in excess of $500,000 which are shipped from said installations in the State of Michigan directly to points located outside the State of Michigan. Respondent Allen Hayosh and Respondent A H 1, its subsidiary, are affiliated businesses with common offices, ownership, directors, and operators and constitute a single-integrated business enterprise and a single employer within the meaning of Section 2(2) of the Act, the said directors and operators formulate and administer a common labor policy for the aforenamed corporations, affecting the employees of said corporations. It is admitted, and I find that Respondent Allen Hayosh and Respondent A H I are individually and collectively an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.' 11 THE LABOR ORGANIZATION INVOLVED The UAW is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Pleadings and Issues The complaint alleges, in substance, that on March 18, 1968, four employees of A H I concertedly ceased work and walked out to protest the fact that on that day A H I discharged a fellow employee and that A H I thereafter discharged the four employees who walked out in concert because they engaged in the concerted work stoppage. The General Counsel contends that the walkout of the four employees was concerted protected activity within the meaning of Section 7 of the Act because the employees engaged in the said activity for their mutual aid and protection. The General Counsel further contends that the In accordance with a stipulation entered into at the hearing herein, it was agreed that the remedy, if any, be assessed only against A H I and not Allen Hayosh, the parent corporation alleged discriminatees were coerced into signing termination slips by agents of A H I and were thereby constructively discharged as a result of their protected activities The Respondent's answer to the aforesaid complaint generally denies all the material allegations thereof The Respondent, on its part, contends that the activity was not protected and that the employees quit and were not discharged. In connection with the challenges to the ballots in the representation proceeding, there are eight individuals whose ballots are contested. The Union challenged the ballots of Donald Eller and Louis Hypnar on the grounds that these individuals are supervisors within the meaning of the Act. The other six individuals challenged were the four individuals who walked out on March 18, 1968, plus the individual who was discharged on that day and in sympathy for whom it is alleged the other four walked out, and another individual who evidently was named in the original charge as a discriminatee but who was not named in the complaint. During the hearing the individual who was discharged, Virgil Jolly, and the individual who was not named in the complaint, William Terry, were stipulated to be ineligible to vote. Thus there remains for consideration the two alleged supervisors and the four alleged discriminatees. Thus, the issues presented by the pleadings and by the report on challenges are as follows. 1. Are Louis Hypnar and Donald Eller supervisors as defined in the Act? 2. Was the walkout of the alleged discriminatees protected concerted activity within the meaning of Section 7 of the Act? 3. Were the alleged discriminatees constructively discharged because of their protected concerted activities? B. The Events The events of the morning of March 18, 1968,' are not contested. The Respondent offered no testimony to contradict the testimony of the four alleged discriminatees. On that Monday, not long after work began at 7 a.m., Louis Hypnar, who General Counsel alleges is a supervisor, but who the Respondent contends is merely a head leader, came over to the workbench of employee William Emerick to look over work being performed by Emerick. At that time, Emerick told Hypnar that Emerick wanted to leave work at 9:30 a.m. to which request Hypnar assented. Shortly thereafter, Hypnar approached employees Richard Cartwright and Peter Osterman who were discussing a work problem at Cartwright's desk. Using profanity, Hypnar accused Osterman and Cartwright of not being attentive to their work. At that point Osterman left and returned to his own workbench. About a half hour later, Gene Jolly, another employee, came to Cartwright's bench and asked for a tool. While Jolly was there Hypnar approached and again using profanity told Jolly that the latter was "goofing off" on his job. Jolly asked, "Are you accusing me of goofing offs" Hypnar answered in the affirmative and, with that, Jolly grabbed Hypnar by the shirt and pushed the latter over a set of workhorses. With that, several of the employees came over, grabbed Jolly by the arms and 'All events herein occurred in 1968 unless otherwise specified ALLEN HAYOSH INDUSTRIES 441 assisted Hypnar to his feet. Immediately thereafter, Hypnar told Jolly that he was fired and to get his tools and to get out. Hypnar then went into the plant office from which he emerged a few minutes later. When Hypnar appeared, Art Jernburg, a leader, said to Hypnar, "I think we should meet with Al Ferns (executive vice president and manager of Respondent). Have a meeting and discuss this." To which Hypnar answered, "Nothing doing, there is nothing to discuss. He's fired." Then Hypnar turned to the rest of the employees who were gathered around and said, "If any of you guys think I can't run this plant without you, you can pack your boxes and get out too." At this point Emerick went back to his bench and Osterman asked Emerick what the latter was going to do. Emerick answered, "I don't know what you're going to do, but I've had it." Emerick then gathered up his tools, shut his toolbox, and proceeded along with Jolly, Osterman, Cartwright, and Gilbert Theriault to the timeclock. They each punched out and left the plant. This was about 8:30 in the morning. It was not the planned leaving that Emerick had spoken about to Hypnar earlier than morning.' In connection with the walkout, each of the four discriminatees testified as to their individual reasons for walking out. Thus, Emerick stated that the reason he walked out was that he had received harassment from Hypnar in regard to the manner in which he should work and the performance of the work. Also, Emerick testified that he walked out because Hypnar refused to discuss with the men the incident involving Jolly. Cartwright testified that he left because of Hypnar's actions including the profane language and the fact that Hypnar would not meet with the men to discuss the Jolly incident. Osterman testified that he left because there was just too much harassment going on for quite a period of time and Osterman felt that the situation was such that if it had not been Jolly who had been involved with Hypnar it would have been Osterman or somebody else. Theriault's reason was somewhat different than the reasons of the other men. He testified that he left with the other men because they were all his friends and he was going to "stick with them" no matter what. He felt that he was supporting the other men by walking out. In connection with his reasons for walking out, Theriault also stated that the other men all disliked Hypnar. It should be noted that when the men walked out of the plant they did not inform any representative of management as to their reasons for walking out. The testimony of what occurred in the days following the walkout is conflicting. According to Emerick and Osterman they returned to the plant the next morning, Tuesday, March 19, to go to work at the regular starting time. Osterman remained at the employees' entrance. However Emerick went into the plant and found that the timecards of the four who walked out the day before had been removed from the card rack at the timeclock. Emerick saw that Jernburg was working and upon Emerick's asking, Jernburg told Emerick that they had "pulled" Emerick's card and that Emerick was fired. Shortly thereafter, Vice President Ferns came in and Emerick asked Ferns what had happened. In reply Ferns told Emerick, "As soon as Ed Jewell comes in, he'll check out your tools." According to Emerick this was the entire conversation between the two and Emerick and Osterman left the plant and drove away. On the same morning, according to Cartwright, he drove to the plant parking lot at approximately the time of the beginning of the work shift and observed that none of the cars of the employees with whom he walked out were parked in the lot. Cartwright thereupon left the vicinity of the plant and later that morning met with Emerick and Osterman who told Cartwright that their cards had been pulled, that they were fired, and that there was no point in going back to the plant. According to Emerick, the next time he made contact with A H I was on Thursday, March 21, when he phoned the office to see if his paycheck was ready and was advised that his check had not yet arrived from the parent corporation. On Friday, March 22, Emerick went to the plant office and asked the office girl if he could have his paycheck., She told Emerick that he would have to speak to Ferns, who was then summoned on the intercom. Ferns told Emerick that the latter would have to take his tools out of the plant if he wanted his paycheck. Upon being thus informed, Emerick went into the plant and began gathering up his tools when he was approached by Ed Jewell, the toolcrib man, who gave Emerick a quit slip and instructed Emerick to sign . Emerick refused, whereupon Ferns was summoned. Ferns informed Emerick that not only would Emerick have to remove his tools but would have to sign the quit slip before he could receive his check. Finally, Emerick did sign the quit slip but it was only under protest that he did so. He explained this to Ferns. He indicated to Ferns that the signature was being placed on the slip under protest because he, Emerick, had not quit. Emerick further testified that the only portion of the quit slip that bore his handwriting was his signature thereon. The rest of the quit slip was filled in by someone else. On the slip were written the words "walked off job without authorization." The quit slip is also signed by Ferns and Jewell and is dated March 18, the day the employees walked out. After Emerick signed the quit slip he took his toolbox and was leaving the plant when he encountered President Dale Smith who had come into the plant. Emerick told Smith that he was sorry that it had happened and Smith said, "Well, we're sorry it happened too but your timing was off." Emerick further testified that at no time did anyone offer him his job but finally admitted that Smith did say to him that sometime in the future if Emerick wanted employment he should see Al Ferns. Emerick additionally testified that at the time of the events the tool-and-die employees did not have any bargaining representative in the plant nor was there any established grievance procedure. Insofar as the grievance procedure is concerned, Emerick and the other employees testified that at one time, some time before the events herein, they had gone to speak to Smith and Ferns with regard to getting additional working hours to increase their take-home pay. As noted above, on Tuesday, March 19, Cartwright met with Osterman and Emerick and was told by them that their cards had been pulled and that they had been fired. According to Cartwright, the next time Cartwright went back to the shop was on Thursday, March 21. When he arrived there he was informed that he could not have 'Because of the date of deposit on Emerick's paycheck this meeting must 'A11 of the foregoing from the uncontroverted credited testimony of have occurred on the 22d and not on the 23d as originally testified by Emerick, Cartwright, Osterman, and Theriault. Emerick. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his paycheck unless he checked out his box. This was told to him by the office girl. At that point Cartwright left and did not return until Saturday, the 23rd. On Saturday, Cartwright returned with Jolly and Terry, another employee who walked out but who was not named as a discriminatee in the instant proceeding . The three proceeded to the office and again asked for their paychecks. The office girl again said that they could not get paid unless they signed the quit slip. Cartwright asked at whose orders it was necessary to sign the slip and the girl answered that it was Ferns' and Smith's orders. Thereupon Cartwright left the plant again and returned on the following Tuesday with Terry and Jolly. He went directly to his toolbox and started to check it over to see if everything was in there. Ed Jewell went to the box with him and presented Cartwright with the quit slip which was an exact duplicate of the quit slip signed by Emerick. Cartwright signed the slip telling Jewell that he was signing it but that he did not want to sign it. It should be noted that at the bottom of this slip signed by Cartwright and of the slips signed by the other discriminatees are the words "This must be returned to office for payroll clearance." Like Emerick, Cartwright testified that at the time of the events herein the employees had no bargaining representative. Nor was Cartwright aware of any grievance procedure having been established at the plant. As heretofore set forth, on Tuesday, March 19, Osterman returned to the plant with Emerick and was told by Emerick that their cards were not in the rack and that they had been fired. Thereafter Emerick proceeded with Osterman to a meeting place with Cartwright where they told the latter that they had been discharged. Osterman testified that on either Thursday or Friday of that week, he returned to the plant to get his paycheck and went directly to the front office where he talked to Ferns and Smith. The conversation lasted about 15 minutes. Ferns and Smith stated that they had liked Osterman's work and that they were very sorry to see this happen but they "could not afford to have this pressure going on in the shop." At the same time, when Osterman asked if he could get his paycheck, either Ferns or Smith told him "check your tools out and sign a quit slip and you can have it." At that time Osterman refused to do what was requested and left. Approximately a week later Osterman finally ran out of money and he decided to pick up his paycheck. When he returned to the shop he was again informed that he had to remove his tools and sign the quit slip in order to get his paycheck. Ferns informed him of this. Osterman finally capitulated in order to get his money . His slip was the same as the slip of Cartwright and Emerick . The only thing that he placed on that slip was his signature although the slip was filled out to the effect that he had walked out without authorization. As did the other employees, Osterman testified that at the time of the incidents herein the tool-and-die employees at A H I plant had no bargaining representative nor was there any established grievance procedure in the shop. According to Theriault, he returned to the plant on Thursday, March 21. He went into the office where he saw Dale Smith, Respondent's president. Theriault told Smith that he wanted his paycheck and Smith told Theriault that the latter would have to clear his toolbox and sign a quit slip before he could receive his check. Theriault thereupon had his toolbox checked out, signed the slip, and did receive his paycheck. As in the case of the other employees, Theriault merely signed his signature on the slip but all of the handwriting was placed thereon by someone else and contained the same wording that the other slips contained, namely, that Theriault had walked out without authorization. In his testimony, Theriault admitted that no member of supervision ever told him directly that he was fired. Nor did they ever tell him that he couldn't have his job. However, Theriault further testified that during the same period of time neither Smith nor Ferns ever suggested that he, Theriault, go back to work. Theriault further admitted that during the period of time in which the events herein occurred, A H I was working overtime and that most of the employees in the tool-and-die shop were working 58 hours a week. Theriault further admitted that during the same period of time skilled craftsmen in the tool-and-die industry were very scarce. It is noted that in connection with the testimony of all of the foregoing individuals, there was no testimony to the effect that any employee upon his return to the plant presented to either Smith or Ferns any grievance regarding Jolly's discharge or the working conditions in the tool-and-die shop before the walkout. It should also be emphasized, however, that during the same period of time and upon the employees' visits to the plant they were never told, according to their testimony, that they should return to work nor were they ever asked by any member of management why they had walked out or what their grievance was. President Smith and Vice President Ferns testified to the events which followed the walkout but their testimony directly contradicts the testimony of the four alleged discriminatees. Ferns testified that on March 18 Ferns was in his office when Hypnar came in and told Ferns that he thought Jolly ought to be let go. Hypnar said that he was tired of telling people to do things and not having them do it. He told Ferns that Jolly was working on a job and he was not getting it done. Ferns agreed that Jolly should go. After the conversation with Hypnar, Ferns went out to the shop and found that the four discriminatees had gone along with Jolly. Later that morning Ferns was approached by Jernburg who said that things had happened in the shop that upset him and that he wanted to go home. Ferns asked him to try to stick it out. At that point Ferns realized that something more serious had happened than Hypnar had told him. Ferns then realized that Hypnar's shirt had been dirty when the latter spoke to Ferns and that there were some scratches on Hypnar's face. This was the first inkling that Ferns had that Hypnar had been punched. Ferns then asked Hypnar why the latter had not told him about the incident and Hypnar said that he did not think that he had to tell Ferns. Then Ferns went back to his office and had hardly gotten back into his office when he heard the timeclock being punched. He went out into the shop and heard the door close. He looked out the window of the door and saw the four discriminatees and Jolly leaving. He then proceeded back to where Hypnar was working and asked the latter what was going on. Hypnar told him, "I guess they are going out in sympathy with Jolly." However, Ferns testified that none of the men protested the discharge of Jolly to him. To Ferns' knowledge they have never protested the discharge since March 1968. According to both Smith and Ferns, on Tuesday, March 19, Emerick and Theriault came into the shop to check out their toolboxes. Smith remembers this because ALLEN HAYOSH INDUSTRIES 443 he was out of town on March 18 , the day Virgil Jolly was discharged . He returned on the evening of the 18th. He went to the plant on the morning of the 19th about 9:30 a.m. He was told by Ferns what had happened the day before. Ferns told Smith that Jolly had hit Hypnar and that he had fired him. Smith then asked Ferns why the men had walked out and Ferns answered that they had just walked off the job. There wasn 't much time for discussion because that was approximately the time that Theriault and Emerick came into the plant. They were in there checking out their toolboxes and Ferns told Smith that they were leaving . Again Smith asked what were they quitting for and Ferns answered , "They're leaving, they're just quitting." With that Smith went over to Emerick and asked the latter what the problem was. According to Smith, Emerick said , "There's too much water over the dam for me." Emerick said further , "I've gone along this far and that's it, I'm leaving." Smith then said to Emerick, "Why don't you take off your coat and go to work." At that time Ferns was in the immediate area and Theriault was nearby. Theriault was near enough to overhear the conversation between Smith and Emerick. Then Smith turned to Theriault and asked the latter what his problem was and Theriault answered that he was going to quit anyway and this incident brought it to a head. Theriault did not explain further, he just said that he was quitting . Then Smith addressed both Theriault and Emerick and said , "Why don't you fellows go to work. You know we're satisfied with your work . We need help, we're in trouble with some of this work . We need men." However, his appeal to the men was unavailing and each of the men got their toolboxes out of the shop that morning . Smith stated that he never at any time told the men that they were fired nor did he ever tell them they could not come back to work for A H I. On the following Thursday, March 21, Theriault came into the shop and picked up his check . Theriault said he was sorry but he was leaving. The next time Smith saw any of the men who walked out was on the following Tuesday which would be March 26. Cartwright, Jolly, and Terry came into the plant. He was told about this by the office girl, Ferns was not present. Smith went out and asked Jolly what was the matter with him and Jolly said he was disgusted on the morning of the 18th and celebrating St. Patrick's day and that he felt tough; that Hypnar said a few things to him that he did not like and he hit Hypnar. Smith told Jolly that he didn't think that was a very nice thing to do whereupon Jolly walked over to Hypnar and Jolly apologized and they shook hands. While this was going on Cartwright and Terry went over to their toolboxes and had the toolcrib man check out their boxes . Jolly refused to sign for the tools and Smith said that it didn 't matter just so long as his box was clear. Jolly said that he knew he was done and it didn't matter because he could get a job anywhere but Cartwright had some children and he needed a job. So Smith said to Jolly, "Why doesn't Cartwright go back to work." Smith told Jolly that the only thing Cartwright had to do was to talk to Al Ferns. That was the extent of the conversation. According to Smith , the only time he had any conversation with any other of the men was on Saturday, March 30, when Pete Osterman came into the shop. Ferns and Smith were in the office when Osterman came in and sat down in the lobby . Osterman began to talk to Ferns and Smith. Osterman was slightly inebriated and he said that as soon as he got himself straightened out he was going to come back to work. Osterman finally went inside and picked up his tools and cleared out. Smith never told Osterman that he was fired. Nor did he ever tell Osterman the latter could not come back to work at A H 1. In fact, according to Smith, it was Smith's impression that Osterman was coming back to work. Osterman however never did come back after that Saturday that he came to pick up his tools. To Smith's knowledge no one ever protested the discharge of Jolly to him. Ferns' testimony was m conformity with that of the testimony of Smith as to the return of the men and the manner in which they picked up their tools and left the plant. Both Smith and Ferns testified that the quit slips were merely a formality. The signing of slips was merely a practice in the shop because the men are issued tools and the only control they have over the tools in the crib is the use of tool clearance. In the event that a man checks out and some of the tools are missing and he has them he has to give them back or pay for them before his final check is cleared. Smith further testified that therefore the only purpose for the slips is to verify to the office that all the tools have been cleared and that the men's boxes have been checked out. Any time an employee quits or leaves the employment of A H I the slips are used. A copy of the slip is only used for the crib man to communicate to the office that it is all right to issue the final check. Actually the only signature that has to be placed on this slip is the signature of the toolcrib man and not of the employee. With regard to the pulling of the timecards of the four dischargees, Ferns testified that he pulled the cards of the four dischargees after they walked out because he wanted to talk to them. This was the way in which he knew they would come to talk to him when they found that their cards were not in the rack in the usual place. Ferns insisted that this was his usual method of getting to talk to one of the men when he found it necessary to talk to the men. He also testified that this was common procedure in the tool-and-die industry. C. Concluding Findings Before considering the issue of whether the walkout of the four alleged discriminatees constituted protected concerted activity and the further issue of whether the four were constructively discharged, it is necessary that the issues of credibility be considered and disposed of. The General Counsel, of course, contends that the testimony of his witnesses is credible and that the events occurred as related by the four alleged discriminatees. As is usual, counsel for A H I claims the testimony of the General Counsel witnesses is, for the most part, fabrication and that the events really unfolded as related by the Respondent's witnesses . To support their contentions, both General Counsel and A H I counsel point to discrepancies in time and dates of their opposing witnesses . I have given due consideration to these discrepancies and find that with regard to dates, the witnesses of both parties were in error in some instances and, therefore , I cannot make credibility resolutions on this basis. However, I was very much impressed by the manner in which General Counsel's witness Theriault testified. He freely admitted that he did not walk out because of the Jolly affair but rather that he walked out in sympathy with his friends. He did not attempt to elaborate on the manner in which Hypnar treated those who worked under 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him. He did not in any way attempt to place any of the Respondent's officials in a bad light. He told forthrightly how he walked out and how he came back to get his paycheck and what was told to him. Thus, I find that Theriault was a reliable witness. What is of greater importance, his testimony supports and bolsters the testimony of Emerick who was, in many respects, the General Counsel's chief witness. Theriault's testimony also agrees in many respects with the testimony of other General Counsel witnesses. Theriault did not testify that he came back to the plant on Tuesday, March 19, but rather on Thursday, March 21. His testimony is supported by the testimony of both Emerick and Osterman who testified that they, alone, came back to the plant to go to work on Tuesday, March 19, and saw only Ferns. Thus I find and conclude that the testimony of Smith and Ferns to the effect that Emerick and Theriault came to the plant together on Tuesday, March 19, is not reliable and cannot be considered as the basis for my factual findings herein. This conclusion is bolstered by other factors. In the first place, noticeably missing from the testimony of both Ferns and Smith is any denial that the four discriminatees were asked to sign the quit slips before they could obtain their final check. Ferns did not testify as to the quit slips and Smith testified the quit slips were merely routine and used for the purpose of toolbox clearance so that checks could be issued. Smith further testified that there was no necessity for discriminatees to sign the quit slips that the only necessary signature was that of the toolcrib man. If this were so, the question could well be asked why it was necessary, then, for the slips to contain the statement that the four men had walked out without authorization and why did not only the signatures of the four appear on the slips but also the signature of Ferns? I cannot perceive that if these slips were merely routine why all this material appeared thereon. Accordingly, I find and conclude that the testimony of Ferns and Smith regarding the quit slips is not reliable. Another basis for the crediting of General Counsel's witnesses over the testimony of Smith and Ferns is the candor with which the General Counsel's witnesses readily admitted that (1) they gave no specific notice of their leaving to anyone in higher management and (2) they did not testify that they gave to management at any time the reasons for leaving . To the laymen, at least, this would appear to be a deficiency in their case. But, nevertheless, none saw fit to fabricate in this regard. Accordingly, and from my observation of the witnesses, I conclude that the General Counsel' s witnesses were generally more reliable and that the events occurred as related by these individuals. They walked out on the day and in the manner they related and each came back on or near the date each testified to. Each was made to sign the quit slip with the damaging notations thereon before each received his check. Moreover, each was told to check out his tools in addition to signing the quit slip so that each could obtain his check. The General Counsel contends that the facts as related by his witnesses show conclusively that the employees' walkout constituted protected concerted activity. The Respondent claims that the walkout was not protected. The undisputed facts establish that the walkout was concerted. After Jolly's discharge and Hypnar's refusal to act on Jernburg 's suggestion that they go to the office to talk over the matter with Ferns, all four alleged discriminatees, with Jolly and Terry, walked out together. There thus remains the question of whether the walkout was protected. The alleged discriminatees almost simultaneously made up their minds to walk out with Jolly upon a suggestion of Emerick. As noted, this came at a time after Hypnar had refused to permit the men to take up the matter with Hypnar's superiors. The record further establishes that the men were unhappy with Hypnar's conduct for some time and that the Jolly incident was the explosion that resulted from what the men considered the constant harassment visited on them by Hypnar. It should be noted that earlier that morning, Hypnar twice reprimanded employees for real or fancied failures to perform their work, each time using profanity in doing so. Thus I find and conclude that the walkout was the culmination of a series of incidents that affected the welfare and working conditions of the employees in A H I's tool-and-die shop. In N.L.R.B. v. Washington Aluminum Company, 370 U.S. 9, the Supreme Court established, after many Board decisions to the same effect, that a group walkout by employees for the purpose of protesting their working conditions is protected concerted activity. The facts of the instant case parallel the facts of that case to a marked degree. There, the employees walked out because of what they considered their employer's indifference to the frigid condition of their working quarters. Here, the employees in protest of harassment by their immediate superior and because of what they considered the unfair conditions which brought about the discharge of their fellow employee walked out. As in the case at bar, in the Washington Aluminum Co. case, the employees were unrepresented and there was no established grievance procedure.' Although in the cited case the employees involved had individually requested that the heating situation be corrected before the walkout, there was no specific demand made upon management at or after the time of the walkout. The Supreme Court held that the employees did not have to make such a demand at the time of the walkout but that demand may be made before, after, or at the time of the walkout. In the instant case there was no demand made at all. This would seem to be a fatal defect, but, it must be noted that the employees' attempt to air their grievances was blocked by Hypnar who refused to permit the men a hearing when he refused Jernburg's suggestion that the men take their case to higher management. Moreover, it cannot be claimed that A H I did not know what the cause or the purpose of the walkout was. As noted heretofore, Ferns admitted in testifying that Hypnar told Ferns in answer to the latter's question as to the reason for the walkout, "I guess they are going out in sympathy with Jolly." Thus, A H I knew that the walkout was in furtherance of its employees' efforts to make management more responsive to their demands for improvement in existing conditions. The Board has held that such a walkout for such purpose is protected.' The Respondent contends that, in any event, the walkout was unreasonable. It argues that Jolly struck Hypnar and, therefore, Jolly's discharge was based on good cause, and, therefore, the walkout in '1 do not find that testimony to the effect that on several occasions in the pact the employees had spoken to management concerning hours and wages is proof of an established grievance procedure 'See Electromec Design and Development Company, Inc., 168 NLRB No. 107. ALLEN HAYOSH INDUSTRIES 445 sympathy with Jolly was unjustified . It is not necessary to decide whether Jolly's striking Hypnar was a reasonable action . In the Washington Aluminum Co . case' the Supreme Court held "that the reasonableness of workers' decisions to engage in concerted activity is irrelevant...." ° In the Washington Aluminum Co . case the employer was attempting to correct the condition of which the men complained but the Supreme Court held that nevertheless the walkout was protected even if the conduct of the employees in leaving was unnecessary and unwise. In any event in the case at bar the striking of Hypnar by Jolly and the latter 's discharge were but the culmination of a series of disagreeable events . Therefore, it cannot be affirmatively held that the walkout was completely unreasonable. Accordingly, and by reason of all the foregoing, I find and conclude that the walkout by the four alleged discriminatees on March 18 was a concerted protected activity. There remains for consideration the question of whether the four alleged discriminatees quit their jobs or were constructively discharged. As set forth earlier in this Decision , on Tuesday, March 19, Emerick and Osterman reported for work . They found upon arrival at the plant that their cards were removed from the timecard rack and were told by Jernburg that their cards had been pulled and that they were fired. Cartwright also reported to work but observed that the cars of his coworkers were not in the parking lot and he therefore left the premises without talking to anyone. Later that morning he was advised by his coemployees that it was futile to return to the plant . Theriault refused to return until his fellow employees were permitted to return , a condition I find was certainly legitimate in view of all the circumstances . Then, when each of the employees finally sought their paychecks, the Respondent repeatedly insisted that they sign quit slips which the Respondent maintains were for the purpose of tool clearance. However, it should be noted , that President Smith admitted that the employee's signature was not necessary for tool clearance . Moreover, on the so-called quit slips, which were completed in advance and were dated the date of the walkout , was written the comment that the employees had walked off their jobs without authorization . These slips were signed not only by the employees themselves but also by Vi etPresident Ferns. In connection with the signing of the slips were the statements of management representatives that the employees' timing was off and that A H I could not afford to have this pressure going on in the shop. As found heretofore at no time during these visits to the shop were any of the discriminatees offered an opportunity to return to work . Moreover, the credited testimony of the alleged discriminatees establishes that they did not want to check out their tools much less sign their quit slips . It was only after they refused upon several occasions to abide by the demands of management and after each employee had become hard pressed for the paycheck that the alleged discriminatees finally capitulated and even then they stated their desire for work and that they were signing the quit slips under protest. The signing of a quit slip does not necessarily constitute a voluntary termination of employment .' Whether the signing of a quit slip constitutes a voluntary termination '370 U S. 9. 'Citing N.L.R.B. v. Mackay Radio & Telegraph Co.. 304 U.S. 333, 334. depends upon the circumstances leading up to and surrounding the signing . Thus, as in the instant case, the signing of such a slip in order to obtain a paycheck does not, by itself, spell out a voluntary quit.10 Here, the employees involved were coerced into signing the quit slips and to check out their boxes^at a time when they were in need of funds. As their credited testimony shows, they were not given an opportunity to return to work. Indeed, the quit slips are dated March 18, which demonstrates that A H I had no intention of putting the men back to work. These factors, in the light of the credited testimony of the alleged discriminatees to the effect that they stated to their superiors that they did not want to quit and that they signed the quit slips under protest, indicate that their termination was anything but voluntary. Because all of the men were told that they had performed satisfactorily and because A H I's witnesses did not recite a single reason why men should be discharged, it is evident that they were forced to sign the quit slips because they had walked out in protest of their working conditions and Jolly's discharge and for no other reason. Thus, I conclude that A H I constructively discharged Emerick, Cartwright, Osterman, and Theriault because they had engaged in protected concerted activity. This consitutes violations of Section 8(a)(1) of the Act." D. The Challenged Ballots 1. The ballots of the discriminatees Inasmuch as it has been found that William Emerick, Richard Cartwright, Peter Osterman, and Gilbert Theriault were discriminatorily discharged, they were, at the time of the election herein, eligible to vote. Accordingly, it is found that their ballots should be opened and counted. 2. The supervisory status of Louis Hypner and Donald Eller The uncontroverted testimony of the four discriminatees establishes that Manager Ferns, in August 1967, introduced Hypnar to the employees of the tool-and-die department as their foreman, indicating that the employees were to take orders from him; that Hypnar was in complete charge and that the employees were to work directly under him and give Hypnar their cooperation. At various times, and in the absence of Manager Ferns and President Smith, Hypnar interviewed applicants for employment at the Respondent's plant. Emerick testified that on an occasion in either December 1967 or January 1968 Hypnar interviewed a man by the name of Schernowski. Emerick knew Schernowski and while Schernowski was talking to Hypnar, Emerick went over the Schernowski and heard Hypnar tel Schernowski to come to work the following morning . Following this interview Schernowski reported for work. I credit this testimony of Emerick despite the testimony of Smith and Ferns to the effect that Hypner did not have the authority to hire or discharge or to effectively recommend the same. Each of the four employees testified credibly that they conversed with Hypnar five or six times every day during 'Detroit Gasket and Manufacturing Company, 78 NLRB 670, 674, set aside on other grounds 179 F.2d 241 (C.A. 6) "Burlington Industries , Inc, Vinton Weaving Co, 144 NLRB 245, 257-258. "N.L.R.B. v Washington Aluminum Co, 370 U.S. 9. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the course of employment concerning their work. Additiona ly, Cartwright and Emerick testified that during the course of their employment they were transferred from one operation to another within the tool-and-die department by Hypnar. This testimony is affirmed by lie testimony of Smith and Ferns to the effect that, as Smith admitted , Hypnar's work encompassed "doing all necessary to complete a job." Hypnar started from the beginning, which was the blueprint , the inception of the order when it first came into the shop, and oversaw the job until the job was completed and out of the shop. This testimony is further buttressed by President Smith's testimony that leaders assigned jobs on the basis of their evaluation of an employee's capability, and that they do this independently day by day based on the requirements and the need of the day. Hypnar' s overseeing the work of the employees is exemplified in one instance related by Emerick in which Hypnar , unsatisfied with a particular die which had been made by Emerick, required Emerick to correct the alleged deficiency specifically in accord with Hypnar's instructions and Hypnar personally supervised the corrections for approximately 7 hours while Emerick performed the work as Hypnar instructed. With regard to the claim by both President Smith and Vice President Ferns that Hypnar could not effectively recommend the hire or discharge of any individual, the Jolly incident, in and of itself, shows that Hypnar not only discharged Jolly on the spot, but that when he went into the office of the plant to confer with Ferns, Ferns gave Hypnar his immediate consent to discharge without Hypnar's telling Ferns that Jolly had struck Hypnar. Additionally, Hypnar effectively made recommendations relative to job assignments and also made job assignments in accordance with his judgment after considering individual employee's capabilities and job deadlines. Smith and Ferns admitted that they relied on Hypnar's judgment in this regard. Moreover, Hypnar did discipline employees as exemplified in his speaking to the four discriminatees regarding their alleged work lapses on the morning of the Jolly incident. In addition to all of the foregoing, the record shows that Hypnar oversaw the work of about 20 employees in the tool-and-die shop. Smith admitted in his testimony that he was absent from the plant the greater part of the time and that Ferns also was absent upon certain occasions. Ferns admitted that his absence usually amounted to several hours every week . This absence was for the purpose of calling on customers of A H I. During the times of the absence of both Smith and Ferns, Hypnar was the only one in charge of the tool-and-die shop. Moreover, Ferns in testifying stated that much of his work was in the office of the plant and that during those periods of time Hypnar was the only leader in the tool-and-die department. Thus, I find that Hypnar had upon occasion hired employees for the tool-and-die shop. Also, Hypnar had the power to effectively recommend discharge as exemplified in the case of Jolly. As noted above, the testimony of the four discriminatees established that Hypnar had the authority to change men in the tool-and-die shop from job to job and to make assignments as he saw fit and exercise independent judgment in the manner in which he did this . Moreover, Hypnar did from day to day discipline the men in their work and had the authority to change the methods of the men's work and to closely oversee the manner in which the work was performed. Additionally, Hypnar was in complete charge of the 20 employees in the tool-and-die department at times when Smith and Ferns were not in the plant. Moreover, I find and conclude that in light of the number of employees in the shop and the fact that Ferns was in the office and not in the shop a large portion of his working time, that Hypnar was in complete charge of the shop much of the working time of the employees. On the basis of all the foregoing indicia of supervisory authority, I find and conclude that Hypn It is a supervisor within the meaning of the Act. I therefore recommend that the challenge to Hypnar's ballot be upheld and that his ballot not be opened and counted.' 2 The record with regard to the supervisory status of Donald Eller is very meager. Eller is the leadman in the jig and fixture shop. None of the employees who testified worked in that department and therefore had little opportunity to observe the work performed by Eller. Emerick testified that at one time his brother worked for the Respondent in the jig and fixture department. One morning Emerick's brother came in late and wanted to know what to do because he failed to punch in. Emerick told him to see Eller. Thereafter Emerick's brother went to see Eller and Eller initialed his brother's card. Osterman testified that there is no physical division such as a wall between the tool-and-die shop and the jig and fixture shop. During the time that he worked for A H I Osterman noticed that Eller directed men in their work day after day. Osterman further testified that Eller held specific interviews with certain employees. For instance, a man by the name of Walter Burr was interviewed by Eller and the next day the man was hired. In Osterman's estimation , Eller's direction of the men at work under Eller is similar to that of Hypnar. On the other hand, Smith testified that Eller is a working leader. He is hourly rated and makes about 25 cents more per hour than do the other craftsmen. He testified that Eller does not have the authority to hire or fire and he punches a timeclock and performs manual functions between 80 and 30 percent of his time and sometimes even more. However, Smith did testify that as far as Eller's authority is concerned it is about the same as Hypnar's. Smith testified that neither could discipline any employees or lay them off nor could either promote employees or discharge them or effectively recommend such action. The foregoing represents all of the testimony with regard to Eller's supervisory authority. Although Smith admitted that Eller and Hypnar had approximately the same authority, it should be remembered that such testimony was with regard to both of these individuals. While I have found that Smith's denial of supervisory authority in the case of Hypnar is not reliable, there is little in the record to show that Smith's denial of authority with regard to Eller is not reliable. Accordingly, I cannot find on the basis of the record before me that Eller is a supervisor within the meaning of the Act. Accordingly, I find and conclude that Eller is not a supervisor within the meaning of the Act on the basis of the record before me and recommend that his ballot be opened and counted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE$ UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, "See Research Designing Service, Inc.. 141 NLRB 211, 212-213. ALLEN HAYOSH INDUSTRIES 447 intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that A H I has engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found the Respondent has discriminated in regard to the hire and tenure of employment of the above-named employees, it will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and that each be made whole for any loss of pay he may have suffered by reason of the discrimination against him , by payment to him of the sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement less his net earnings during such period . Backpay shall be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. The Respondent shall make available to the Board its payroll and other records to facilitate the checking of amounts due. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. A H I Machine Tool & Die, Inc., is an employer engaged in commerce within the meaning of the Act. 2. By discriminating in the hire and tenure of employment of William Emerick, Richard Cartwright, Peter Osterman, and Gilbert Theriault, A H I has engaged in and is engaging in unfair labor practices within the meaning of the Act and by such discrimination thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Richard Cartwright, William Emerick, Peter Osterman, and Gilbert Theriault immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges discharging if necessary any employees hired to replace them. (b) Make whole said employees in the manner set forth in the section of this decision entitled "The Remedy" for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in the city of Mt. Clemens, Michigan, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director fN Region 7, after being duly signed by the 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 pdste l Reasonable steps shall be taken by A H I to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.14 "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director Region 7, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX Upon the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that A H I Machine Tool & Die, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities of its employees by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any like or related manner , interfering with, restraining, or coercing its employees in the exercise of their right to engage in concerted activities for the purpose NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage concerted activity by discriminatorily discharging any of our employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Richard Cartwright, William Emerick, Peter Osterman, and Gilbert Theriault immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination, discharging if necessary any persons hired to replace them. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their 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. Dated By A H I MACHINE TooL & DIE, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.