Ertel Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 5, 1964

147 N.L.R.B. 312 (N.L.R.B. 1964)

312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, meet and bargain with Hotel-Motel , Restaurant Em-
ployees Union , Local 200, Hotel and Restaurant Employees . and Bartenders In-
ternational Union , AFL-CIO, as the exclusive bargaining representative of our
employees , without engaging in coercive or intimidating conduct during or in
connection with such bargaining . The appropriate unit is:
All of our employees at The Coachman 's Inn, Little Rock, Arkansas,
including telephone operators , office clerical employees , food checkers, reg-
ular party waiters, janitors , and nonsupervisory cashiers ; but excluding
engineers , confidential secretary , auditor , extra party waiters, leased depart-
ments' personnel , watchmen , professional employees , guards, and supervi-
sors as defined in the Act.
All of our employees are free to become or remain , or to refrain from becoming
or remaining , members of Hotel-Motel , Restaurant Employees Union , Local 200,
Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO,
or any other labor organization.
THE COACHMAN'S INN,
Employer.
Dated----------------- -- By-------------------------------------------
(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.
Employees may communicate directly with the Board 's Regional Office , 746 Fed-
eral Office Building, 167 North Main Street , Memphis, Tennessee , Telephone No.
534-3161, if they have any question concerning this notice or compliance with its
provisions.
Ertel Manufacturing Corp . and International Union , United
Automobile , Aerospace and Agricultural Implement Workers
of America, UAW, AFL-CIO . Case No. 2,5-C21-1757. June 5,
19641
DECISION AND ORDER
On March 9, 1964, Trial Examiner Leo F. Lightner issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and rec-
ommended dismissal as to them. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case ton three-member
panel [Chairman McCulloch and Members Leedom and Brown].
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 Ex-
aminer's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
147 NLRB No. 39.
ERTEL MANUFACTURING CORP.
ORDER
313
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent Ertel
Manufacturing Corp., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
and that the complaint with respect to any alleged unfair labor prac-
tices other than those found by the Trial Examiner is hereby
dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Indianapolis.
Indiana, on September 17, 18, and 19 and November 12, 1963, on the complaint of
General Counsel, as amended, and the answer of Ertel Manufacturing Corp., herein
referred to as Respondent. The issues litigated were whether the Respondent violated
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor Management Rela-
tions Act, 1947, as amended, 61 Stat. 136, herein called the Act.' The parties waived
oral argument. Briefs filed by the General Counsel and Respondent have been care-
fully considered. During the hearing I reserved rulings on several motions, includ-
ing Respondent's motions to dismiss the complaint; these motions are disposed of in
accordance with findings and conclusions herein set forth.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Indiana corporation , maintaining a plant and place of business
at Indianapolis , Indiana, where it is engaged in the business of manufacturing, sell-
ing, and distributing automotive parts. During the 12 months preceding the issuance
of the complaint , a representative period, Respondent manufactured , sold, and shipped
from its Indiana plant finished products valued in excess of $50,000 to points outside
the State of Indiana . The complaint alleges, the answer admits , and I find that Re-
spondent is engaged in commerce within the meaning of Section 2 ( 6) and (7) of the
Act.
IT. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aerospace and Agricultural Implement
Workers of America, UAW , AFL-CIO, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The principal issues raised by the pleadings, as amended, and litigated at the hear-
ing are: (a) Whether the Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, in violation
of Section.8(a)(1), in May 1963, by interrogation, threats, warnings of surveillance
and discrimination, or by the promulgation and enforcement of a rule prohibiting the
solicitation of union membership or distribution of union literature on Respondent's
property at all times; or (b) whether specified layoffs, demotions, discharges, sus-
pensions, and failures and refusals to recall, reinstate, or reemploy employees named
in the complaint were discriminatorily motivated and were unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act. Respondent generally denied the.
'A charge, amended charge, second amended charge, and third amended charge were
filed on May 22 and 24, June 6, and July 17, 1963, respectively. The complaint herein
was issued on July 19, 1963.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commission of any unfair labor practices and denied certain named individuals were
agents of the Respondent or supervisors within the meaning of Section 2 (11) of the
Act.
B. Supervisory personnel
The complaint alleges that the following named persons, occupying the positions
indicated, are and were, at all times material, agents of the Respondent and supervi-
sors within the meaning of Section 2(11) of the Act: J. C. Ertel III, president; Frank
M. Hopper, personnel manager; Carl B. Enochs, plant superintendent; Harold Carr,
foreman; Carl Longworth, foreman; Herschel Zigler, foreman; and Edwin Aurs,
foreman.
Respondent, by answer, admitted the alleged capacity relative to Ertel, Hopper
and Enochs, but denied the allegations relative to the other four named. At the
outset of the hearing, Respondent acknowledged the alleged capacity of Harold Carr,
general foreman. The supervisory status of Longworth, Zigler, and Aurs is next
considered.
General Superintendent Enochs asserted that there were no supervisory personnel
under General Foreman Carr. Enochs estimated the total number of plant em-
ployees in May 1953 as approximating 355. Carr has no jurisdiction over the
departments identified as foundry, heat treat, toolroom, and maintenance. Carr is
directly in charge of the following departments, with the approximate number of em-
ployees in each indicated: An automatic department (using multiple spindle ma-
chines), 20 employees; a production department (described as second operation
machines, containing hand machines used to finish materials following work on an
automatic), 100 employees; a Warner and Swazey department, 5 employees; a grind-
ing department, 30 employees; an aluminum piston department, 47 employees, prior
to the May group layoff with which we are herein concerned; a cast iron piston
department, 6 to 10 employees; and a shipping department, 2 employees. It thus
appears that 210 or more employees were under the direct supervision of Carr, in 7
different departments. Prior to the layoff on May 29 and 31, the 47 employees in
the aluminum piston department were divided between a day shift and a night shift,
26 being on day shift and 21 on the night shift. This total includes seven, four on the
day shift and three on the night shift, who Respondent contends were all setup men,
and includes Zigler and Longworth, who General Counsel contends were supervisors?
There was'also a night shift in the production department, although the division of
employees in that department, between the two shifts, is obscure. Enochs acknowl-
edged that the day shift ends at 4:30 p.m. and that Carr goes home at 5 p.m.
Enochs asserted that no one was in charge of the aluminum piston department at
night.
Enochs related that the night men came in 15 minutes ahead of time and "Carr
gets with them and lines up the work and tells them what (is) to be run and that's
all there is to it." It may be inferred from Enochs' testimony that it was Longworth
who received the instructions from Carr .3
It is undisputed that the individuals under consideration, and all steup men, were
on an hourly rate. Enochs estimated these rates as: Zigler $2.45; Longworth $2.40;
Hook $2.40, Maddox $2.35. The hourly rate of the other setup men in the alumi-
num piston department does not appear in the record, except that of John Sweet,
who received $1.80 per hour as setup man prior to his demotion. Enochs asserted
that the starting rate for employees was $1.30 an hour and that the average of the
operators in the piston department was within a range of $1.35 to $1.50 an hour.
The evidence indicates some increments, of 5 cents per hour each, were granted
after given periods of time.
It appears undisputed that when a new employee reports for work initially he
reports to the personnel director. The presonnel director, Frank M. Hopper, and
previously his predecessor, Steve Helton, took the new employee to the •timeclock,
2 The four on the day shift are identified as Zigler, Hook, Maddox, and Sweet. The
three on the night shift were identified as Longworth, Thompson, and Russell.
8In answer to a question of whether Longworth, Russell, and Thompson, the three night
setup men, had equal authority, Enochs responded, "It would be much easier to lay the
work out just with one man." Enoc'hs then asserted that Longworth got together with
Zigler, the day man . Enochs , at variance with his first assertion then stated there was no
need for getting with anybody because they have a regular production board on what is
supposed to run , and the night shift is merely advised as to the status of the production.
ERTEL MANUFACTURING CORP. 315
showed him how to ring the timeclock , advised him as to the time to ring in and
out, then took him to Zigler , Longworth , or Aurs, introduced the new employee,
and advised the new employee "Now, this is the man that will show you what to do." 4
It was Zigler , on the day shift in the aluminum piston department , Longworth,
on the night shift in the aluminum piston department , and Aurs, on the day shift
in the production department , who gave work assignments each day to the employees
working on their shifts in their department , told -them what machine to work on,
transferred them during the day to other work under varying circumstances, cor-
rected and initialed errors on production - cards, and entered and initialed omissions
on a -timecard when an employee failed to punch in or out. It appears undisputed
that Zigler, Longworth , and Aurs, upon request by an employee , granted permission
for the employees to leave work early, by reason of illness or for a variety of
personal reasons , without obtaining clearance or approval . The three named also
were the ones who advised employees of layoffs, in some but not in all instances,
however , they did not make the decisions on layoffs.5
John Sweet related that Maddox was foreman on the day shift in the aluminum
piston department when Sweet was first employed . Thereafter , in the early part of
1962 , Zigler replaced Maddox as foreman , subsequently, Maddox was returned to his
job as foreman for approximately 3' months, thereafter Zigler was again placed
in charge . At the latter time Sweet was setup man for a group of three machines,
two lathes and a borematic . Sweet asserted that Zigler advised Sweet at that time
that Zigler was not to do setup work but merely to supervise, however , if Sweet
needed help Zigler would help him .6 Sweet asserted that only Zigler and Maddox
wore shop coats on the day shift in the aluminum piston department . The other
setup men wore blue pants and blue shirts. Donica corroborated this testimony.
Sweet credibly testified that in April 1963 he had seen Zigler reprimand employees,
advising them that they had to straighten out or they would be dismissed. On
June 2 , after Sweet was demoted, Sweet refused to make adjustments on his ma-
chine, advising Zigler that he was no longer a setup man . As a consequence he
was advised by Enochs , "If Zigler says for you to sharpen your tools , you sharpen
them."
Pemberton initially worked on various machines , including borematics, drill
presses, and gages for inspecting and checking . Later he was assigned to working on
"group No . 4" which permitted the earning of a bonus. He inquired of Longworth
if there was a possibility of his obtaining Saturday work . Longworth assured him
that if it were possible Longworth would have him work on Saturday . Pemberton
described missing work by reason of illness. On each occasion he telephoned in to
the plant . He related that when he returned to the plant there would be a yellow
slip attached to the timecard . He took the yellow slip to his supervisor , Longworth.
who inquired as to the reason for the absence . Longworth then signed the yellow
slip and sent it to the office. -
* Composite of the testimony of: John Sweet , who was hired August 8, 1959 , when Steve
Helton was personnel director and Clarence Maddox was foreman, as predecessor of
Zigler ; Raymond Daniel Pemberton , who was advised by Hopper that Longworth would be
his foreman ; Lynndal L. Donica, whom Hopper advised that Zigler would be the man that
he would be working for; Ware, whom Helton introduced to Aurs, advising Ware that
Aurs was his acting foreman and that Ware would he working under him ; and Billy C.
Greer , whom Hopper introduced to Aurs, advising Greer that Anrs would show him what
to do , what jobs he was to do, and what he was to learn . Hopper, a witness for Re-
spondent , did not dispute most of this testimony . Hopper acknowledged that he might
have told the new employee " this is the man that will 'tell ' you what to do," however, be
preferred to use the word "show " rather than " tell."
5 A composite of the testimony of James It . Hoskins, Larry Knight, -Charles Pettypiece,
Robert K. Mobley, John Sweet , Pemberton , R. Edward Beck , Donica, Ware, Ray S.
Edwards, Fred Elmer Haley , Jr., and Greer . Plant Superintendent Enochs did not dis-
pute the bulk of this testimony . However, Enochs denied that the individuals named had
a right to grant a request for time off or early departure . In view of the pattern which
the record establishes of these individuals granting time off, upon request, I do not credit
Enochs. Enochs' denial that it ever came to his attention that Zigler , Longworth, and
Aurs were granting employees permission to leave the plant , I find implausible . In fact,
to the contrary, Respondent stipulated that if Haley wanted time off lie would obtain
permission from Longworth without Longworth going to anyone else, that Longworth
assigned him work , switched him from machine to machine , corrected production cards,
and would instruct him from time to time if something was wrong with the finished product.
6 Zigler did not appear as a witness.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pemberton related that one evening he was working on a bonus job when Long-
worth advised him that he was being transferred to a job of inspecting. Pemberton
objected because he would be deprived of a bonus that he could earn on the ma-
chine. Longworth explained that the other employee's machine required repair,
that the other employee did not know inspection work, and therefore it was neces-
sary for Longworth to transfer Pemberton to inspection work and transfer the other
employee to Pemberton 's machine , in order that both employees could be kept
working.
Pemberton related that in February or March 1963 , when Pemberton reported
for work, an employee named White advised him that White had been discharged
at Longworth 's request . The same evening Pemberton asked Longworth what had
happened . Longworth responded that White "was not performing his duties in the
proper manner and he was saying that (Longworth) was not his foreman and he
couldn 't tell (White ) what to do." 7
Beck and Sweet credibly testified that when work in the aluminum piston depart-
ment was slack they were transferred , by Zigler, to the production department.
Sweet asserted that he worked, under Aurs, in the production department for as
much as 3 consecutive days on such occasions..
Ware related that Aurs "chewed him out" on four or five occasions in a 3-week
period, advising Ware that he was not turning out enough work. Greer related
that in May 1963 Aurs asked him if he wanted to come in and work on Saturday,
which he did . At noon , Greer advised Aurs that Greer had to see a doctor at 2 p.m.
Aurs responded , "Well, sure, you can have the rest of the day off." The response
immediately followed the request . Greer asserted that Aurs advised Greer that
Aurs' pay was $2.25 an hour . Greer's pay was $1 .25 an hour e
It is undisputed that on occasions Zigler , Longworth , and Aurs did setup work.
It is also undisputed that they did not do production work.
The testimony of Cloyd that there were petitions from floor to ceiling between
departments is undisputed.
Section -2(11) of the Act sets forth the definition of the term "supervisor," and
provides:
The term "supervisor " means any individual having authority , in the interest
of the employer , to hire , transfer , suspend, lay off, recall , promote , discharge,
assign, reward , or discipline other employees , or responsibly to direct them, or
to adjust their grievances , or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
It appears undisputed that Zigler , Longworth , and, Aurs did not have authority to
hire, suspend , lay off , recall , promote , or discharge employees . The evidence clearly
indicates however that these three did assign work, did transfer employees from one
assignment to another , and in the case of Zigler transferred employees from one
department to another . There is also evidence that these three granted time off, upon
request of an employee , and Aurs granted an employee 's request for Saturday work.
Longworth transferred an employee from a bonus -paying job to a nonbonus-paying
job. Errors on production cards and timecards were corrected by all three. It is
patent that all three issued reprimands . The resultant question is whether such
authority is of a merely routine or clerical nature, or , in the alternative , whether it
required the use of independent judgment.
The court in the Beaver Meadow case 9 said: "We quite agree that Section 2(11)
must be read disjunctively , that the possession of any one of the Section 2(11) powers
will make one a supervisor , and that it is the fact of possession of the power regard-
less of its nonexercise that is determinative."
"Long-worth did not appear as a witness . General Counsel issued a pretrial subpena.
Longworth filed a letter requesting that it be "cancelled ," asserting, "I do not think that
I have any information about this case and I do not think I should be required to testify."
The request was denied.
8 Greer related that in May 1063 an employee was using only one hand to wash valves.
Aurs "jumped" the employee and told him to use two hands. The employee responded that
he could wash as many with one hand as he could with two hands . Aurs left and re-
turned, inferentially , with Carr . Aurs and Carr then left with the employee, who did not
return thereafter . While a reprimand by Aura may be inferred , there is no evidence that
Aurs did or did not recommend a discharge.
9N.L.R.B . v. Beaver Meadow Creamery, Inc. 215 F. 2d 247, 251 ( C.A. 3).
ERTEL ' MANUFACTURING CORP. 317
The Board has held in Capital Transit Company, 114 NLRB 617, 618:
It is well settled that the mere title of supervisor as applied to certain positions
does not establish supervisory status under the Act. Rather, it is the functions,
duties, and authoriy of the individual which must be determinative according to
statutory standards . And the power or authority bestowed must not "be `routine'
in the natural sense of that word." Nor may the discretion accompanying the
duties be so circumscribed by limitations , either in the authority granted or in
the specific conditions placed upon the exercise of such authority , as to negate
the use of independent judgment. Further , it may not be a sporadic assumption
of a position of command and responsibility . On the other hand , the real
existence within an individual 's regularly assigned duties of any of the powers
enumerated in Section 2(11) will make a man a supervisor even though the
necessity for the exercise of such power is infrequent . But where the issue is
the actual existence of a supervisory power, the absence of any exercise of
authority made negative its existence . Thus , there is precedent for the position
that frequency or infrequency of the exercise of authority becomes irrelevant
only where there is no question that the authority conferred is supervisory.
General Counsel urges that the testimony reflects that new employees are intro-
duced to Zigler, Longworth , and Aurs as their foreman : That these individuals direct
the work of the employees , including changing jobs, inspecting work , instructing
employees, stopping an operation , and shutting down a machine ; that they discipline
employees , including reprimands and sending employees to higher authority; that
these three do no production work; and that they grant time off to employees with-
out clearing with anyone else, and have authority to alter and initial timecards and
production cards. General Counsel urges that Enochs ' assertion that only Enochs
and Carr are in a supervisory capacity in the plant of more than 300 employees, di-
vided into at least 11 departments is "absurd ," particularly in view of the admission
that there is no one to supervise on the night shift, yet Longworth is responsible for
the flow of production on the night shift in his department.
Respondent urges that in an earlier case involving this Respondent the Board found
that "setup men" were nonsupervisory personnel . I have taken official notice of
Case No. 35-RC-1437.10 In that case the Board found there were approximately
190 employees in the , unit. It was undisputed that the plant superintendent and
general foreman had supervisory authority . The Board found five leadmen , in iron
foundry, toolroom , aluminum foundry , packaging , and maintenance departments,
were supervisory personnel . The facts considered by the Board were:
It is the leadman's responsibility to get the work done and to see that it is prop-
erly done; and to check the piece count which he turns in with the tine cards.
Although all hiring is done by the personnel office and these leadmen have no
authority to discharge , they may make assignments of work within the depart-
ment and shift employees around to where they are needed . The superintendent
stated that they had no authority to discipline an employee , but that they would
report such matters to him and he would make the final decision which would be
reached either by investigation or by accepting the leadman 's recommendation.
Raises for the most part are automatic , but when reviewed , a leadman 's opinion
is sought . Leadmen are not present during the greater part of the night shifts,
but remain subject to call at any time . In view of the above , and on the record
as a whole, we find that the leadmen responsibly direct the work of the em-
ployees in the departments and are supervisors within the meaning of the Act.
The Board further held:
There are 18 setup men , of whom 14 work in the machine shop . There are
about 110 employees in the machine shop which is under the supervision of the
general foreman who is present throughout the first shift and at the beginning of
the second shift. The setup men set up the machines for the machine operators
who are not sufficiently skilled for that operation . Occasionally , when work
is slack or there is a small or a rush job, a setup man may operate a machine; he
may also relieve a man in order to keep production moving. Setup men are
responsible for seeing that quality is maintained by machine adjustment. A dis-
charged employee testified that a setup man on the second shift authorized him
to take time off, and that he had seen other setup men on that shift authorize
timecard corrections when an employee was late or had forgotten to punch in,
and twice pull the timecard of employees . It further appears that setup men on
-Reported in 118 NLRB 1338.
.318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the second shift are authorized to use the telephone to call the general foreman
if something unusual occurs. The plant superintendent stated that the setup
-amen are hourly rated, and have no authority to hire, discharge, or change the
status of any employee. As we deem the evidence relating to the duties and
:responsibilities of the setup men on the second shift of the machine shop insuffi-
cient upon which to base a finding as to their status, we shall permit them to
vote under challenge. As to the other setup men, we find that they are not
supervisors. [Emphasis supplied.]
The Board has held that a finding in an earlier representation case that an em-
ployee is not a supervisor "did not finally and conclusively resolve that issue for the
purpose of this case involving alleged violation of Section 8 (a) (3) and (1) of the
Act." Leonard Niederriter Company, Inc., 130 NLRB 113, and footnote 2 thereof.
This record reflects duties exercised by Zigler, Longworth, and Aurs not recited in
the Board's finding in the prior case as duties performed by setup men. These duties,
in fact, were not performed by all setup men but were duties exercised by the three
named, in addition to whatever setup duties they may have performed. These duties,
in fact, included duties performed by the "leadmen" in the earlier case, whom the
Board found were supervisory personnel.
In view of the evidence set forth, and on the record as a whole, I find that Zigier,
Longworth, and Aurs responsibly direct the work of the employees in their respec-
tive departments, on their respective shifts, and are supervisors within the meaning of
Section 2(11) of the Act.ii
C. Background and sequence of events
In April 1963, the Union undertook an effort to organize Respondent's employees.
Lewis Strickland, International representative, related that on Tuesday, April 30,
1963, about 7:30 p.m., a meeting of the day-shift employees was held at the local's
headquarters. A meeting of the night-shift employees was held on Thursday, May 2,
1963. At each meeting employees were requested to, and did, sign authorization
cards and were given a pin containing the legend "Join UAW vote." The pin is
approximately 11/4 inches in diameter. Employees were also requested to volunteer
as members of an organizing committee. Those volunteering were given a pin con-
taining the same legend as indicated, and in addition, the words "organizing" and
"committee" appear at the top and bottom, respectively. This pin approximates
11/2 inches in diameter. It is undisputed that thereafter, at all times material, the
employees who received these buttons wore them clearly displayed while at work.
Of 21 alleged discriminatees listed in the complaint, all but 4 were members of the
organizing committee.12 It is patent that Respondent knew who the members of
the "organizing committee" were from the display of the "organizing committee"
badges. Not all members of the "organizing committee" were appointed at the
meetings of April 30 and May 2; however, all were members, for varying periods,
prior to the layoffs of May 29 and 31. Where layoffs occurred at an earlier date
the individuals involved were members of the organizing committee on that date,
if the record reflects that they were in fact members of said committee. Subsequent
union meetings were held each week, one an afternoon meeting, and another an
evening meeting. At the first meeting, and subsequent meetings, authorization cards
were distributed to the employees to obtain the signatures of additional employees.
Literature, combs, and pencils were also distributed. Committee members were
instructed not to solicit on company time, but to do it during lunch periods and other
nonwork time.13
It is undisputed that the organizational campaign continued at all times material
herein.
11 In so finding I am not unmindful of Enochs' testimony that the duties of setup men
had not changed since the earlier case. If this assertion is accurate the Board was not
fully advised of the duties of Zigler, Longworth, and Aurs.
sa Members of the organizing committee listed in the complaint were: Beek, Cloyd,
Edwards, Greer, Haley, Hilton (or Helton), Holliday, Hoskins, Johnston, Knight, Lay,
Mobley, Pemberton, Pettypiece, Plymate, Smith, and Sweet. The other four are Blackburn,
Donica, Lakes, and Ramsey.
ss Respondent does not deny knowledge of the existence of the organizational campaign,
or that perhaps half of the employees wore union buttons.
ERTEL MANUFACTURING CORP.
D. Interference, restraint, and coercion
Evidence and Findings
319
The complaint contains five separate specifications of barring solicitation of union
membership, prohibiting distribution of prounion literature , interrogations , threats,
and a warning of surveillance and discrimination, some of the specifications allegedly
having been engaged in by more than one of Respondent's supervisors, on one or
more separate dates. These are considered seriatim.
1. Solicitation of membership and distribution of literature
It was stipulated that the Respondent promulgated "Shop Rules" on June 6, 1957,
and these rules were still in effect at the time of the hearing. There are 31 numbered
rules . We are here concerned only with those numbered 22 and 23 and a state-
ment of -the penalty for infractions.
Rule 22 provides:
Soliciting or collecting contributions for any purpose whatsoever on Com-
pany time, without the specific approval of Management.
Rule 23 provides:
Distributing literature, written or printed matter of any description • on
Company premises, without the specific approval of Management.
At the end of the rules the following appears:
The commission of any of the above infractions will be sufficient grounds
for disciplinary action ranging from reprimand to immediate discharge,
depending upon the seriousness of the offense in the judgment of the
Management.
John Sweet credibly testified that on Friday, May 3, 1963, Zigler advised Sweet
that Enochs wanted to talk to him in the office. Enochs advised Sweet, "You
know you are subject to immediate dismissal." Sweet inquired 'as to the reason
and Enochs advised that it was for passing out "illegal literature," and asked Sweet
if he had read the company rules. Enochs then read rules 22 and 23. Sweet
advised Enochs that the only thing he had ever solicited or distributed was union
authorization cards. Enochs advised him "one more time" or "one more report
against you" and he would be immediately dismissed. Sweet asserted that he had
started soliciting employees' signatures on authorization cards on May 1, and that
he did his soliciting before work hours and during lunch hours, never on company
time. He obtained between 35 and 40 signatures. It is undisputed that the Com-
pany posted its "shop rules" on the bulletin board on Monday, May 6. Subsequently,
on May 16, Sweet was suspended for 1 week for passing out "illegal literature" on
the company parking lot. These events are considered infra.
Billy M. Cloyd, an employee in the cast iron piston department and a setup man,
asserted that he solicited authorization cards mostly in the parking lot -after he got
off work; however, he also solicited in the plant, but not on company time. Cloyd
credibly testified that on Friday, May 3, he was advised by his foreman, Olin Mc-
George, that Enochs wanted to see him in Enochs' office. Upon his arrival, Enochs
inquired if Cloyd knew that he was subject to immediate dismissal, then asked
if Cloyd was familiar with the company rules. Enochs then read rules relating to
taking up collections on company property without the Company's approval, and
soliciting or passing out literature on company property 'without the express ap-
proval of the Company. Enochs then advised Cloyd that if he was caught violating
the rules he would be dismissed.
Sweet related that he attended a union meeting on Tuesday, May 14. The fol-
lowing morning he was in the aluminum piston department about 6:45 a.m. Cecil
Russell (not setup man Russell, who worked on the night shift) was standing with
Sweet. Russell had union authorization cards in his hand. Zigler came up and
told Russell, "Put those g- d- cards out of sight." Sweet advised Zigler
that the employees were within their rights to solicit for the Union on their own
time. Zigler responded, "It's not my rule. It's the Company's." It is undisputed
that worktime commenced at 7 a.m.
Enochs, plant superintendent for 30 years, first testified that there was a rule against
soliciting on company time without specific approval of management, and a rule
on distributing literature on company premises without specific ;approval of manage-
ment . He was then contradictory when asked if the employees were permitted to
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicit on company property on their own time by responding, "I believe we said
on premises they had to have approval." In explaining the reason for the adoption
of the rules, Enochs asserted, "It was generally observed that there was standing
around and discussing and, on occasion of the solicitation and distribution, and it
'caused a serious interference with their required attention to work." 14
Rule 22, as written, does not preclude soliciting by employees on their own time.
The thrust of Enochs' statements about "illegal literature" to Sweet and Cloyd,
coupled with Zigler's admonition to Russell, must then relate to the rule 23 prohibi-
tion against "distributing-written or printed matter," to wit: authorization cards.
There is no evidence of any other activity by Sweet, Cloyd, or Russell.at the time of
these events.
The Board has held in numerous cases, with court approval, that an employer
may make and enforce a rule forbidding his employees to engage in union solicita-
tion during worktime. However, a broad no-solicitation rule, in the absence of
special circumstances making such a rule necessary in order to maintain production
or discipline, is presumptively "an unreasonable impediment to self-organization and
is therefore presumptively invalid." 15
Accordingly, I find rule 22, as written, is confined to the matter of soliciting dur-
ing worktime and it is valid. However, the evidence is clear that Respondent at-
tempted to, and did, enforce said rule as applying to nonworktime, and to that
extent its enforcement constituted interference, restraint, and coercion in violation
of Section 8 (a) (1) of the Act.
Respondent's effort to apply the proscriptions of rule 23's provision relative to
"written or printed matter" as encompassing distribution of union authorization
cards during nonworktime is in fact an effort to restrict solicitation during the
employees' free time. In addition, as set forth infra, section E, 2, it was applied
to distribution of literature on the Respondent's parking lot. Respondent introduced
no evidence of "special circumstances" making the rule as written and enforced
necessary in order to maintain production or discipline.
The Board in the Minneapolis-Honeywell case 16 held the presumption of invalid-
ity was unrebutted. The Board in that case, distinguished between a rule which had
application limited to areas where the employees have their work stations. The
Board asserted that it: ". . . unanimously adheres to the Walton view 17 that a ban
on distribution of literature is presumptively invalid, in normal circumstances, if
and insofar as it precludes employees from distributing union literature when they
are on nonworking time and also in nonworking areas of the employer's establish-
ment."
Accordingly, for the reasons stated, I find that Respondent's maintenance and en-
forcement of its rule 23, and it seffort to prevent solicitation during nonworktime,
and the conduct of Enochs, set forth supra, relative thereto, constituted interference,
restraint, and coercion in violation of Section 8(a)(1) of the Act.
I find no evidence that President J. C. Ertel III engaged in the conduct described
in paragraph 5(d) and (e) of the complaint, or that Zigler engaged in the conduct
alleged. in paragraph 5(e) of the complaint. Accordingly, I will recommend dis-
missal of those allegations.
2. Interrogation
It is alleged that Edwin Aurs interrogated employees concerning their own and
other employees' union membership, activities, and desires on or about May 20, 1963.
Billy C. Greer credibly testified that he wore the two union buttons, described
supra, while at work, commencing May 3. On that day or the following day, Aurs
inquired, "What are you doing with them on." Greer responded, "Well I just
14 Enochs was asked if the Company would stop an employee from solicitine for the
Union provided both employees were on their lunch period or rest period. He replied vari-
ously, first asserting, "My answer is yes,", then asserting, "We never had an occasion
like-no, I don't believe they would." I do not credit Enochs.
15 See Peyton Packing Company, Inc., 49 NLRB 828, cited with approval in Republic
Aviation Corporation v. N.L.R.B., 324 U.S. 793; Twenty-eighth Annual Report of the
National Labor Relations Board, page 66; Idaho Potato Processors, Inc., 137 NLRB 910,
enfd . 322 F. 2d 573 (C.A. 9).
16 Minneapolis-Honeywell Regulator Company, 139 NLRB 849.
17 Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (C.A. 5). See
Southwire Company, 145 NLRB 1329.
ERTEL MANUFACTURING CORP. 321,
stuck them on. . I signed. one. of the cards. Greer asserted that Aurs on a number
of days talked about what the Union would do and what the Union would not do;-
Aurs asserted that the hours would be cut down by 4 hours a week and this would
offset any increase the Union could obtain. Greer asserted that each day for a-
number of days Aurs would greet him with a salutation, "Hello union bee." Aurs.
said that the Union would not do any good if it did come in. Aurs inquired if
Greer did not enjoy his Christmas bonus and the 4 hours extra during the week.
At one time Aurs is alleged to have stated, "I see you're still wearing your badges.
You must have plenty of money or don't want no job." Aurs did not testify.
I find, from the recited testimony, no evidence of interrogation. I will recom-
mend dismissal of the allegations of paragraph 5(a) of the complaint.
In paragraph 5(b) of the complaint, Aurs is named as one of Respondent's.
supervisory personnel who engaged in various threats. The threat of loss of 4 hours.
a week or a Christmas bonus if the Union was successful does constitute inter-
ference, restraint, and coercion in violation of Section 8(a)(1) of the Act. I so find.
3. Threats
It is alleged that Longworth, Aurs, and Zigler threatened employees with a closing
of the plant, discharge, layoff, or other reprisals if they became or remained mem--
bers of the Union, or assisted or supported it.
Raymond Daniel Pemberton credibly testified that in the early part of May he had
a conversation with Longworth relative to a union button he was wearing. Long-
worth advised that a safety pin would hold whatever he was trying to hold in his.
pocket as well as the union button. Pemberton related that about May 15, while in
the aluminum piston department, he said to Longworth, "Let's go fishing." Long-
worth responded that if the union activity continued, or if the Union should happen
to be able to get into the plant, they would all be able to fish all summer. I find
that the statement constituted a threat of reprisals and as such was violative of Section
8 (a) (1) of the Act.
R. Edward Beck credibly testified that on approximately May 7, at 4:30 p.m., he
had a conversation with Longworth, with other employees present. Longworth
advised Beck that if he continued to wear the union button, from Longworth's past
experience, he would probably be out of work before the month was up. Beck de-
scribed this as being the first day that he had worn a union button. Fred Elmer
Haley, Jr., corroborated the testimony of Beck asserting that Longworth said if the
Union did get in the Respondent "will just close the doors." I find these statements
constituted a threat in violation of Section 8(a)(1) of the Act.
There is no evidence in the record of any statements constituting interference,
restraint, and coercion being made by Zigler on May 31, 1963; accordingly, I will'
recommend dismissal of that allegation of the complaint.18
4. Warning of surveillance and discrimination
The complaint alleges that Longworth, on or about May 13, 1963, warned em
plovees that they would be under surveillance and discriminated against for engaging
in union activity or supporting the Union. As I find no evidence in support of this.
allegation, I will recommend its dismissal.
Raymond Daniel Pemberton related that he was absent on Friday, May 10. On,
Monday, May 13, his timecard was missing from the rack. He was advised by
Hopper to see Carr or Enochs, he was uncertain which individual he talked to, from
whom he obtained clearance. When he reported the fact of clearance to Hopper,
he was advised by Hopper that he should be careful, that he was wearing a union
button and they would be watching him.19 I do not find a threat of surveillance in
the normal usage of that term. However, Hopper's statement is a threat of possible
discrimination by reason of Pemberton's union activity and thus violative of Section
8 (a) (1) of the Act. I so find.
is General Counsel urges consideration of an incident related by Beck. On May 21, just
prior to the end of the first shift, 3 or 4 minutes before 4 : 30 p.m ., Beck related he talked'
to Sweet about the Union. Zigler called Beck over and told him not to talk to the day-
shift employees as he was "disturbing them ." Since the record reflects that Sweet was-
suspended on May 21 , the asserted date of this event, and in view of other findings herein,.
I find it unnecessary to'evaluate this testimony.
Ie Hopper 's denial that he ever discussed the Union with Pemberton is not credited.
756-236-65-vol. 147-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Alleged discriminatory layoffs, discharges, suspensions, and demotions
Evidence and Findings
1. May 15, 1963, layoffs
It is undisputed that on May 15, 1963, about 9 a.m., Zigler advised John Sweet, R.
L. Ramsey, Robert Mobley, Harold R. Holliday, Donald R. Smith, and Paul Helton
that they were to go home and call back after 7 a.m. on Friday. General Counsel
contends that these layoffs were discriminatory.20
it is undisputed that the asserted reason for this layoff was low air pressure. Plant
Superintendent Enochs asserted that it requires three air compressors to maintain
adequate pressure and volume, that Respondent had a new compressor ordered but it
had not been installed . There were four air compressors. Enochs asserted that on
May 15 an oil line became clogged, causing a piston to seize , due to lack of lubrica-
tion and a piston and liner had to be replaced. Enochs related that it requires 90
pounds of pressure to operate the "groups," otherwise the work will slip, the tools will
break, and personal injury could ensue. Accordingly, Enochs asserted the group
men, the setup men, and the man that operated an air drill were sent home. Enochs
asserted that the master gauge in the engineroom showed less than 80 pounds' pres-
sure. In support of its contention Respondent introduced a receipted bill from
Scherer Electric Company, which reflects that there was emergency service to replace
a motor on the No. 1 compressor on May 15, 1963.
John Sweet related that when Zigler asserted that they were being sent home be-
cause of low air pressure, then he checked the pressure and found it to be approxi-
mately 100 pounds on all the groups. Sweet's testimony is undisputed that normal
operating pressure • is between 80 and 100 pounds, that they have operated the ma-
chines with air pressure as low as 75 pounds. However, when the pressure fell below
80 pounds Sweet went to Zigler, advised Zigler that the air pressure was down, and
Zigler would call maintenance and they would "kick in" another auxiliary motor
(compressor). Mobley corroborated the testimony of Sweet relative to the pressure,
asserting that it was approximately 95 pounds and that normal operating pressure
is between 80 and 100 pounds.
Sweet asserted that he, Donald Smith, and Mobley were working on machines
which did not require air pressure at the time they were sent home. Mobley asserted
that he was running a drill press which did not require air pressure. This testimony
is undisputed. Mobley related that it was Enochs who pointed out to Zigler which
employees were to be sent home.
Sweet related that there had never been a layoff while he was employed (he was
employed August 8, 1959) because of lack of work. He related that when work be-
came slack the employees were transferred to the production department until the
piston department became normal again. It was under these circumstances that on
several occasions he and others were sent to the front end by Maddox, when Maddox
was foreman, to work for Edwin Aurs.
Sweet related that the group that was laid off on May 15 went to the union hall,
returned to the plant about 2 p.m., and passed out union literature "in front of the
plant on the sidewalk at the change of shift." Sweet explained that part of the
foundry got out at 2:30 p.m., and the regular shift change was at 4:30. About 3:30
p.m., Personnel Director Hopper approached the group and advised them all to report
at the commencement of work on Thursday, May 16.
To the extent Enochs' testimony, relative to this layoff, is at variance with the
testimony of Sweet and Mobley, I credit the latter. Respondent made no effort to
explain the reason for the layoff of employees whose operations were not related to
the use of air pressure, even were it assumed that Respondent had difficulty with the
air pressure. Neither does the record explain the failure to lay off other employees
whose machines, inferentially, required air pressure. Most notable, however, is the
undisputed testimony of Sweet that on prior occasions when work in the aluminum
piston department was low the employees were transferred to the production depart-
ment. Respondent made no effort to explain its failure to follow this course of
action on this occasion. I have found supra that prior to 7 a.m., on May 15, Zigler
told Russell to gat union authorization cards out of sight before worktime that
morning.
20 The complaint was amended to conform to the evidence which establishes that all of
those named, except Sweet, returned to work on May 16. 1963, and that the subsequent
layoff of Helton. Holliday, and Mobley occurred on May 31 not May 15. 1963, as alleged
in the complaint. The complaint was also amended to reflect the subsequent layoff of
R. L. Ramsey was on May 31 not June 3, 1963. as alleged. The name of Paul Hilton is
corrected to Paul Helton. All, except Ramsey, were members of the organizing committee.
ERTEL MANUFACTURING CORP. 323
Under the circumstances , particularly Respondent's failure to explain its course of
conduct on this occasion , and in the light of other events in the record , I find the
alleged problem with the air pressure was in fact a pretext and that these layoffs on
May 15 were discriminatorily motivated and a violation of Section 8 (a) (3) and (1)
of the Act 2'
2. The suspension of John Sweet-May 16, 1963
It is undisputed that Sweet was suspended for 1 week commencing May 16 and
returned to work on May 23, 1963.
When Sweet reported on May 16, he noticed that the timecards for the others who
had been laid off the prior day were in the rack but his card was missing. Sweet
went to Personnel Director Hopper and inquired if they had forgotten to put his
card in the rack or if he was laid off or fired. Hopper responded that Sweet would
have to talk-to General Foreman Harold Carr. Thereafter, Can came to the per-
sonnel office and read from a piece of paper he was holding, advising Sweet that he
was being suspended for a week for insubordination, vile language, and passing out
illegal literature. Sweet requested a copy of the statement, which request Can re-
fused. Sweet denied ever having disagreed with a supervisor in heated terms, denied
challenging the authority of any supervisor, and denied refusing to do anything re-
quested by a supervisor. Sweet denied that he had ever been reprimanded for in-
adequate work and asserted that he had never previously been laid off for disciplinary
reasons. Sweet asked Carr to specify the nature of the insubordination charge.
Carr responded that he did not know, that maybe Sweet should go to see Enochs.
Hopper then advised Sweet that Enochs had said, "By God, he didn't want to see
me or talk to me or want me on the Company property." Hopper then advised that
Sweet was not to enter the company property and that Hopper would obtain Sweet's
lunch pail and Thermos jug for him. A copy of the letter from which Can read,
acknowledged by Sweet as an accurate recitation of what Carr read to him, indicates
that the suspension was for the following reasons: (1) insubordination; (2) viola-
tion of company rules; (3) distribution of literature on company property; (4) "You
have been warned previously and you have deliberately ignored previous instruc-
tions on the above matter"; and (5) "Your actions have. created an untidy parking
lot." Also provided is "Any further actions will result in an immediate discharge.
You are to report to work on Thursday, May 23." 22
I have found supra, section D, 1, that on Friday, May 3, 1963, Enochs read Re-
spondent's rules 22 and 23 to Sweet and advised him that he would be dismissed if
there was another report against him. I have also found that Sweet's activities
:prior to that time had been confined to soliciting signatures on union authorization
cards. It is patent that the suspension on May 16, for I week, was the result of
Sweet's activity in distributing union literature on May 15 in front of the Company's
plant. Whether the distribution was in fact on the parking lot or not, I find of no
consequence. It is clear, and undisputed, that the distribution was made during a
period of nonworktime, and occurred outside the plant.
The Board has found that the application of a no-distribution rule to the distribu-
tion of union literature, by employees on the company parking lot; placed an un-
reasonable impediment on the freedom of communication essential to the exercise of
its employees' right to self-organization. The Board held that a suspension for viola-
tion of such a rule under these circumstances constituted discrimination. Le
Tourneau Company of Georgia, 54 NLRB 1253. In affirming, the Supreme Court 23
noted the record was barren of showing of "special circumstances" or "unusual con-
ditions" differing from those occurring normally at any large establishment. Simi-
larly, this record is barren of any showing of special circumstances.
Accordingly, I find, for the reasons indicated, and on the record as a whole, that
the suspension of Sweet constituted discrimination in regard to his hire and tenure
of employment and was violative of Section 8(a)(3) and (1) of the Act.
211 have noted the undisputed testimony of Billy C. Greer, an employee of the produc-
tion department, who related that on May 15, as these aluminum piston department em-
ployees were leaving the plant, they came through the section where Greer worked. At
that time Foreman Aurs, whom I have noted supra, was heckling Greer'about^his union
activities, asserted "there goes some more of your union buddies going out, you see."
21 Carr was not called as a witness . While Enochs and Hopper appeared as witnesses
they were not questioned about the layoff of Sweet on May 16.
23Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Layoffs of 'May 29 and 31, 1963
It is undisputed that the night shift in the aluminum piston department was dis-
continued about 8:30 p.m. on the night of May 29. However, the resultant layoffs
were made from both the day shift and night shift, some night-shift employees being
transferred to the day shift. General Counsel contends that these layoffs were dis-
criminatorily motivated. '
Prior to this layoff there were 47 employees, including 7 setup men, in the alumi-
num piston department: 22 employees and 4 setup men worked on the day shift,
18 employees and 3 setup men worked on the night shift. A total of 21 employees
were laid off, and 2 setup men were demoted to operators, leaving the day-shift com-
plement at 21 employees and 3 setup men. Those laid off from the night shift in-
cluded R. E. Beck, Wiley R. Johnston, Jr., Johnie Lakes, Raymond D. Pemberton,
and Charles H. Pettypiece. Those laid off from the day shift included Eugene
Blackburn, Lynndal L. Donica, Ray S. Edwards, Fred E. Haley, Jr., Paul Helton,
Harold R. Holliday, James R. Hoskins, Larry Knight, Robert K. Mobley, R. L.
Ramsey, and Donald R. Smith. I have found, supra, section C, that all those named,
except Blackburn, Donica, Lakes, and Ramsey, were members of the organizing com-
mittee, the others were union members.24
It thus appears that at least 17 of the 21 laid off were union members, and 13 of
those were members of the union organizing committee. It is undisputed that a sub-
stantial number of employees throughout the plant, possibly as many as one-ha.f,
wore union buttons at the time of this layoff. The evidence also establishes that in
the aluminum piston department all but approximately 10 of the total of 47 em-
ployees were wearing union buttons.
No claim is made that the employees were forewarned about the pendency of this
layoff. Larry G. Knight related that he returned from vacation on June 3, 1963,
the Monday following the layoff, and inquired of Zigler, his foreman, the reason for
the layoff. Zigler sent him to Personnel Director Hopper. Hopper advised him the
layoff was due to "lack of work." The testimony of Mobley that he was advised
of his layoff by Zigler, about 15 minutes before quitting time, on May 31, and that
Zigler had a list of the men to be laid off at that time, is undisputed. Also un-
disputed is the testimony of several witnesses that they were advised by Zigler that
the layoff was due to "lack of work."
Enochs related that Respondent did not follow seniority in determining which
employees would be laid off. Enochs asserted, "We tried to keep'the best men."
Enochs acknowledged that "in most instances the older men are the best men."
Enochs asserted that either he or General Foreman Carr made the decision as to,
which employees were to be kept on and which were to be laid off.
Sweet credibly testified that two men were laid off who had over a year of experi-
ence on a "group." It affirmatively appears that employees were promoted from
machine operators to group operators. Sweet related that two men, Elliot and
McNerty, were retained, even though they could not read a micrometer and thus
could not check their production for accuracy. Elliot and McNerty were on the
night shift prior to the layoff. Sweet asserted that Mobley had been a group opera-
tor for a year and a half prior to his layoff. Enochs did not dispute these assertions.
General Counsel asserts that the claim of "lack of work" is in fact a pretext, since
simultaneously Respondent started placing orders for aluminum pistons to be manu-
factured by McQuay Norris Manufacturing Company.
Howard L. Rau, manager of the special accounts department of McQuay Norris
Manufacturing Company related the circumstances under which his company pro-
duced aluminum pistons for Respondent. On May 16, Rau received a telephone call
from W. B. Ertel requesting a quotation on a group of alloy pistons. Rau asserted
there were 11 items, various sizes, on which bids were requested in lots from 500 to
1,000 on some items, up to 5,000 on other items. Price quotations were submitted
on May 29. An order for 10,546 pieces was placed by Respondent on June 3, with
delivery to commence on June 17. An order for an additional 17,333 pieces, cover-
ing 5 different items was placed on June 20. Additional orders and the dates they
21 It appears that in addition to the 16 named in the complaint the following were also
laid off either on May 29 or 31, although the evidence is not clear as to which date:
William L. Mahaney, whose name appears on the list of members of the organizing com-
mittee, Charles E. Reeves, Dave Kilgore, Jr., Clyde Jessie, and 'Robert P. Hill. While
there is testimony that all those laid off wore union buttons, there is no reliable evidence
that the last four named were or were not members of the Union. Sweet could not
identify the four last named.
ERTEL MANUFACTURING CORP. 325
were placed were: 15,217 pistons, July 10; 12,254 pistons, July 17; 5,526 pistons,
July 26; 23,647 pistons, July 29; 5,940 pistons, August 14; 18,265 pistons, August 28;
3,249 pistons, September 13.25 Rau has been in his present position for 7 or 8 years.
Rau related that his company had sold aluminum pistons to Respondent in the
past, but not of the numerical size or frequency of the orders placed in 1963. Rau
asserted that they had furnished 500, 1,000, or 2,000 pieces of a particular part
number 2 or 3 years ago. Rau also stated that on prior orders McQuay Norris
furnished the castings, while on the 1963 orders Respondent furnished its own
castings. Respondent did not dispute the accuracy of Rau's testimony.
Respondent did not seek to establish "lack of work" as the reason for the dis-
continuance of the second shift and the layoff of 21 employees, even though this was
the reason stated to the. employees. Enochs related that Respondent purchased
the physical assets of Ohio Piston Company of Cleveland, in February 1963. As
part of" its purchase Respondent undertook to fulfill pending- commitments of the
seller. Enochs asserted that some 200 machines were included in •the purchase; 7
of which were installed for operation at Respondent's plant. Ohio. Piston Company
had employed 23 employees, of whom Respondent sought to retain 3 setup men.
Enochs explained that 75 percent of Respondent's production was 'replacement
pistons, while the Ohio Company's production was for original equipment. The
Ohio pistons were of a much larger diameter and in a line which was not too com-
petitive. Enochs explained that there are 14 companies who make replacement
pistons which do not exceed 5 inches in diameter, while the larger pistons measure
up to 14 inches in diameter. Enochs first asserted there were three men that were
to come to Indianapolis, to "set the jobs up and train operators but there were only
two who came and the one, that did come he has since left." 26
Enochs explained that the equipment was installed by Respondent's use of its own
employees and outside millwrights. In April, a setup man was transferred from
the production department but did not have enough experience and, according to
Enochs,,it was necessary to transfer two setup men from the piston department. It
appears undisputed that Longworth, night-shift foreman, and-Hook, day-shift setup
man, were transferred from the aluminum piston department to the Ohio equipment,
inferentially, early in June 1963. Enochs asserted that it was as a result of this
contemplated transfer that it was decided to lay off the night shift. The night shift
has not since been restored. Russell, night-shift setup man, was transferred to the
day shift, inferentially to replace Hook. However, Thompson, the third night-shift
setup man and Sweet, day-shift setup man were simultaneously demoted, leaving
only three day-shift setup men in the aluminum piston department. Enochs asserted
that it was not the initial thought to purchase the Ohio operation at the expense of
reducing its piston production, but since they did not get the setup men from Ohio
they had to use their best setup men on the Ohio operation and it was for this reason
that they decided to lay off the night shift.
Enochs related that Respondent has a turnover of 40 to 50 employees a month,
and hires 40 new employees a month.27 According to Enochs the bulk of this turn-
over is in the piston and production departments. Enochs related that, at the time
of his testimony in November 1963, Respondent had approximately 305 employees,
while in May 1963, total employment approximated 355, and- in early 1963, total'
employment was approximately 320.
Enochs asserted that the night shift was never restored because they did not have
sufficient setup men. Enochs related that recall letters were sent to the laid-off em-
ployees. Enochs made no explanation of why, at the time of the layoff and in the
recall letters, the employees were advised that the reason for the layoff was "lack
of work." Neither did Enochs attempt to reconcile his assertion that the reason
for the demotion of Sweet was "simply because we did not need that many setup
men after we started the Ohio operation," with his assertion that the reason for the
layoff of the night shift was the lack of setup men. In addition, Enochs explained
25 Sweet estimated daily production as approximating 3,000 pistons on the day shift.
His estimate was not disputed.
- Enochs later denied having stated that there were two setup men that came from
Ohio Piston. He asserted that only one came and that he advised the Respondent about
May 15 that lie was not going to stay. The individual was identified as Chormansky,
whom Enochs asserted left Respondent August 1. However, in its brief, respondent
acknowledged that two Ohio Piston setup men cane to Indianapolis.
Enochs related new employees "without much previous experience" are assigned
eithe"• *o the production department or to the piston department.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Sweet 's demotion was due to the fact that he was the least in seniority and "we
kept the ones with the highest seniority ," while Enochs asserted that seniority was
not a factor in determining selection for layoffs . Enochs was unimpressive and
unconvincing . I do not credit his testimony.
Accordingly, I find on the record as a whole that Respondent asserted "lack of
work" as the reason for the discontinuance of the night shift , at the time the
employees were advised of the reason for the layoff, on May 29 and 31. The same
reason was ascribed as the reason for the layoff in recall letters sent to employees,
in July 1963 . I further find that immediately prior to the layoff, on May 16, Re-
spondent sought quotations from McQuay Norris Manufacturing Company for the
production of substantial orders of aluminum pistons, to replace part-of Respond-
ent's normal production . The layoffs followed acts constituting interference, re-
straint, and coercion by Respondent 's top hierarchy , including Enochs, which I
have found supra , section D. Included are threats of loss of work as a result of
the employees union activity . The layoff followed other acts of discrimination by
Respondent set forth supra and infra . Substantially all these events occurred within
30 days of the first evidence of the Union 's effort at organization . That Respondent's
attitude was one of animus toward the union effort appears beyond dispute. I find
that Respondent's explanation of the transfer of Longworth and Hook as a justifica-
tion for these layoffs, constitutes an afterthought to justify the layoff. I find that
it was not, in fact , the reason for the decision to discontinue the night shift. Respond-
ent's assertion that it did not have sufficient setup men to continue the night shift,
at the same time that it reduced two setup men to operators , stands in sharp
contrast and without explanation . I find this asserted defense implausible. In
addition , Respondent acknowledges that it did not follow seniority in selecting
individuals for these layoffs. While this record does not establish how many piston
department employees were members of the organizing committee the list of that
committee contains only 39 names . It is reasonable to assume that many of the 39
did not work in the aluminum piston department . Yet, of the total of 21 selected
for layoff in the piston department , 13 were members of the organizing committee
and at least 17 were members of the Union. What the result would have been if
seniority had been followed is obscure, but it may be presumed the senior employees
in terms of service who were organizing committee members ' would have been
retained.
Accordingly, for the reasons enumerated, and on the record as a whole, I find
that the layoffs of May 29 and 31 were discriminatorily motivated, that the reasons
advanced by the Respondent are in fact pretexts , and that said layoffs were violative
of Section 8(a) (3) and (1) of the Act.
4. The demotion of Sweet May 31, 1963
It is undisputed that on May 31, 1963 , John Sweet was demoted from a setup man
to machine operator. General Counsel contends that this demotion was
discriminatory.
Sweet was first employed on August 8, 1959 . He was a machine operator for
approximately 21/2 years and was promoted to a setup man in the piston department
sometime in April 1962. He continued as a setup man until his demotion on
May 31, 1963. Sweet related that he was called to the office of Enochs about
3:30 p.m. on May 31, and advised that he was being demoted to a machine operator
and would be reduced 25 cents an hour from $1.80 to $1.55 per hour. This event
corresponded with Zigler's advice to day-shift employees of their layoffs.
I have noted in the preceding section that Enoch 's explanation of this demotion
was that Sweet was lowest in seniority . I have found, supra, that prior to the layoff
the day shift was comprised of 26 employees, including 4 setup men, namely Zigler,
Hook, Maddox, and Sweet. At the time of the layoff Longworth and Hook were
transferred to the Ohio Piston operation, Russell was transferred from the night shift
to the day shift, Thompson was simultaneously demoted. Thus, after the layoff,
there were still 24 employees on the day shift, of whom only 3 were setup men,
namely, Zigler , Maddox, and Russell . Respondent made no effort to explain the
adequacy of three setup men to do the work that had been performed by four setup
men for more than a.year prior to this demotion.
Accordingly, on the basis of the record as a whole, I find the demotion of Sweet
was discriminatorily motivated and thus a violation of Section 8(a)(3) and (1) of
the Act.
It appears that Sweet quit on July 19, 1963.
ERTEL MANUFACTURING CORP . 327
5. The layoff of Beck from May 21 to 27, 1963 '
It appears undisputed that R. Edward Beck was laid off on May 21 and recalled
on May 27. General Counsel contends that this layoff was discriminatorily
motivated.
Beck credibly testified that he was initially hired by Respondent on March 7, 1963,
as a production worker, receiving $1.30 an hour. He was a member of the Union
and a member of the organizing committee, and wore both union buttons while at
work. Beck's particular assignment in the aluminum piston department, at the time
in question, was that of packing pistons on the night shift. Beck related that when
he reported there were usually 12 to 15 skids, sometimes as many as 30, each
containing up to 500 pistons, for packing. Beck first asserted that he packed
approximately 250 pistons per hour, but later modified this to, an approximation of
1,000 each day. Beek related that his duties were to make boxes, stencil the boxes,
weigh the pistons, oil the pins, and do other things.
Beck related that when he reported for work on May 21 he was advised by Zigler
that he was laid off. The reason assigned by Zigler was "lack of work." Beck's
testimony that there were approximately 30 skids sitting on the floor, awaiting
packing, and that this was more than the normal amount of 10 to 15 skids is un-
disputed. Beck was recalled, and worked, on Monday, May 27. When the night
shift was laid off on May 29, Beek was among those laid off.
Respondent made no effort to explain or justify the layoff of Beck between
May 21 and 27.2$ Respondent did not challenge Beck's recitation of the work on
hand when Beck was advised the layoff was due to "lack of work."
Accordingly, on the record as a whole, I find the layoff of Beck, between the dates
specified, was discriminatorily motivated and ia violation of Section 8(a)(3) and
(1) of the Act.
6. The discharge of Plymate-May 17, 1963
It is undisputed that James E. Plymate was discharged on May 17, 1963. General
Counsel asserts that this discharge was discriminatorily motivated. Respondent
asserts that it was for cause.
Plymate was initially employed on December 13, 1962. He worked in the cast
iron piston department, as distinguished from the aluminum piston department.
Plymate signed a union authorization card on May 1, 1963, and was a member of
the organizing committee. It is undisputed that he wore both union buttons at work.
On May 17, 1963, Plymate was advised by Personnel Director Hopper that he was
not needed anymore. Hopper asserted, "Mr. Enochs has informed me that you have
been fired and for me to make out your check."
Plymate acknowledged that about 2 weeks before his discharge he had driven a
discharged former employee of Respondent to an area with which he was not fa-
miliar, which, in fact, was in the vicinity of Respondent's warehouse. Plymate ex-
plained that his passenger had advised Plymate that someone owed him $10 and
asked Plymate to drive him to the location. It may be inferred that the former em-
ployee asked Plymate to wait for him, and proceeded into Respondent's warehouse
where a burglary was committed. Upon inquiry from the police, Plymate explained
his presence to them and was not held. The following morning, before work, Ply-
mate went to Personnel Director Hopper and advised Hopper that he wanted to talk
to William Ertel, when Ertel arrived. About 10 o'clock, the same morning, Hopper
advised Plymate that Enochs wanted to see him. Enochs advised Plymate that
Plymate did not have to explain, that Enochs knew why he was there. Plymate then
gave Enochs the same explanation he had given the police. Enochs then inquired
if Plymate expected to tell his story and not get fired. Plymate responded that he
did not expect to get fired, but acknowledged there was not anything he could do
about it. Enochs then advised him to return to work.
Plymate asserted that he was never arrested or charged with any crime in con-
nection with this matter.
Enochs explained the retention of Plymate as resulting from a request by the
police. Enochs asserted that Plymate was under suspicion of robbery.29 Enochs
28 Beck acknowledged that he was given pencils and combs by the Union, and if some-
one asked him for a pencil during work hours he might have given them one. Respondent
asserted that it was not making any contention that the layoff was for misconduct.
' Enochs' precise explanation was "He took a man to our warehouse while he robbed
the warehouse vending machine and the man was caught but Plymate was not caught be-
cause he did not actually participate in the robbery, he was only waiting on the man to
come back and the police asked us to keep him for awhile before we let him go because they
might want him."
•328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted the reason Respondent decided to discharge Plymate on May 17 was that
the.police advised Respondent that they were not going to "press the case." Enochs
asserted the reason for the discharge was that the president of Respondent did not
like having an employee "that was a potential robber." I do not credit Epochs' as-
sertion of the reason for the discharge.
The timing of this discharge appears significant. It was 2 days after the layoff
of five employees because of alleged difficulties with the air pressure, which layoff
I have found was discriminatorily motivated. It was the day following the suspen-
sion of Sweet for alleged violation of the company rules relative to distribution. It
is undisputed that Plymate was a member of the organizing committee and Re-
spondent had knowledge of this fact. There is no evidence, and obviously the police
found none, that Plymate knowingly aided or abetted the robbery. Obviously, had
Respondent believed otherwise, it is reasonable to assume that it would not have
continued Plymate's employment for a period of 2 weeks. There is no evidence as
to when the police advised Respondent that it was not pressing any charges against
Plymate and in fact no corroborative evidence that such advice was ever given.
Accordingly, on the record as a whole, I find the reason given for the discharge of
Plymate was in fact a pretext and that the real reason and moving cause was the
union activity of Plymate, and said discharge was discriminatorily motivated and a
violation of Section 8(a) (3) and (1) of the Act.
7. The layoff of James F. Lay-May 22, 1963 30
Lay was hired by Respondent March 8, 1963, and worked in the production de-
partment on the night shift. It appears that Lay signed a union authorization card
on May 2, 1963, and was a member of the organizing committee. It is undisputed
that Lay wore both union buttons at work.
The record is confused as to the precise date when Lay was separated from Re-
spondent's employment. General Counsel contends that Lay was discriminatorily
laid off, while Respondent contends that Lay was discharged for cause.
Lay related that on a Friday morning, apparently May 17, but possibly May 10,
:about 6 a.m., he was in a fight with two other employees, somewhere away from
Respondent's premises, during which Lay was stabbed. Lay went to Personnel
Director Hopper's office about 10:30 or 11 o'clock the same morning and advised
Hopper that he would not be at work that evening. Lay related that he advised
Hopper that they had all been drinking; but Lay denied that he had been drunk or
so stated to Hopper. Lay asserted that he did not give Hopper any explanation of
the stabbing and Hopper did not request one. On Wednesday, May 22, Lay returned
to Hopper's office to obtain some insurance forms. At that time, according to Lay,
Hopper advised him that he was laid off. Lay asserted that Hopper advised him
that he was being laid off because he had a fight with another employee.31
Lay admitted that Hopper also told him that he was being laid off because of the
scrap or fight he was in. Lay acknowledged he did not admit being told by Hopper
that the fight was one reason for the discharge until Respondent's counsel had ob-
tained Lay's pretrial statement. I do not credit Lay's testimony relative to Hopper's
assertions about the Union, which were denied by Hopper.
Lay testified that Hopper advised him that he was being laid off, as distinguished
from being discharged. Hopper did not dispute this statement. Lay requested a
layoff slip, which was refused by Hopper. Lay acknowledged that he was unable
to return to work prior to June 17 because of the stab wound. It is undisputed that
he has never been recalled.
Enochs testified that Lay was in a fight one Friday night with two other employees
of the Company, received a bad cut, that before they sewed it up they removed his
appendix, and he was out for about 10 days. Enochs summarized that since the
three of them had been in a fight and the other two had quit, "we dropped him from
the payroll because we cannot depend on that type of help."
30 The complaint alleged that Lay was laid off on May 31. This allegation was
amended to conform to the testimony that the discharge was May 22.
11 In so finding, I am not unmindful of the evasiveness and confusion in the testimony of
Lay. Lay first related that when he was told of his layoff he advised Hopper that he
figured it was coming, and, Lay asserted, Hopper responded that he should have, that
"when you first hired in here we told you we didn't want no union in here and you guys
come with those badges on." Lay later related that when Hopper told Lay that he was
laid off, Lay responded that he figured it was coming on account of the Union. Lay
asserted that Hopper responded, "If I figured it was coming why was I wearing out the
union badge, when he hired me in there they strictly didn't want no union."
ERTEL . MANUFACTURING CORP. 329
While the timing of this discharge, in consideration of the record as a whole,
raises strong suspicions that it may have been discriminatorily motivated, I am un-
able to so conclude. This record leaves no doubt of the willingness of Respondent
to eliminate from its employment members of the union organizing committee. Lay
was a member of that committee. However, Lay was unimpressive as a witness and
was evasive and contradictory relative to the conversation he had with Hopper at
the time of his layoff. Accordingly, I will recommend ,a dismissal of the allegations
of the complaint relative to Lay.
8. The discharge of Billy C. Greer-June 3, 1963
The complaint alleges that Billy C. Greer was discriminatorily discharged on
June 7, 1963. Respondent contends that Greer, by reason of a failure to report for
3 consecutive days, was considered to have quit.
Greer testified that he was initially employed by Respondent in March 1963.
He was uncertain if he was separated from ,employment on Tuesday, June 4, or
Monday, June 10; he then asserted that it was June 3. Greer worked in the produc-
tion department on the day shift. I have found, supra, that Greer was a member of
the organizing committee and wore both union buttons. I have also found that
Foreman Aurs made statements to Greer which I have found to be violative of
Section 8 (a) (1) of the Act.
Greer acknowledged that he was ill and off work for several days the early part
of June. Greer admitted the dates might have been June 11, 12, and 13. Greer
asserted that he sent word to the plant, relative to his illness, by way of an employee
with whom he rode to work. Greer explained that he did not have a telephone at
home and did not feel like walking four blocks to a telephone booth. The following
day he was still ill and went to a doctor, but did not call the plant. Greer asserted
that on the third day he did call in and talked to Hopper.32 Greer asserted that
when he returned to the plant his timecard had been pulled. Greer went to Hopper's
office and was given his check. Greer said that Hopper advised him, "I don't know
whether you are laid off, fired or what not."
Greer admitted having told a Board agent, in a pretrial statement, that Hopper
advised him that Greer was supposed to call in each time he was not going to be at
work. Greer acknowledged having asserted than he advised Hopper that he did
not know that he was supposed to call in, but testified that this was an incorrect
statement. Greer acknowledged that Hopper advised him that since Respondent
had not heard from Greer they assumed that he had quit.
Respondent's "shop rules" provide that "the performance of any of the following
acts shall constitute an infraction of shop rules":
6. Habitual absenteeism
7. Absence without notification to the Company
Greer first asserted that he was absent on only one other occasion, on a Saturday,
from noon until quitting time, then admitted that he was absent on a Monday before
that Saturday, then admitted that he had been absent 6 days, in addition to the
Saturday afternoon, out of 63 working days.
Enochs asserted that the separation of Greer was not a layoff. He was absent
3 days without reporting, and "he came in and quit." 33
I find that Greer did not, as related by Enochs, come in and quit. Rather, I find
that Greer was absent 3 days. I do not credit Greer's assertion that he called
Hopper in the light of his admission that in his pretrial statement he asserted that
he did not know he was supposed to call in.
There can be no question of an employer's right to discharge an employee for
absenteeism, or for failure to report the reason for, or during, an unexcused absence.
While the record as a whole, particularly Aurs' conduct toward Greer, gives rise to
strong suspicions that Respondent may have had mixed motives in releasing Greer,
I am unable to find that Respondent acted discriminatorily in concluding that Greer
quit. Accordingly, I will recommend a dismissal of the allegations of the complaint
relative to the termination of Greer.
32 Greer asserted "Wien he (Hopper) answered the phone, I told him I was disabled to
come to work, that I would be in just as soon as I got able to."
3 While Hopper appeared as a witness he was not questioned relative to the circum-
stances surrounding the separation of Greer, or whether Greer did, in fact, call him and
advise him of Greer's illness. -
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. The demotion of Billy M. Cloyd-June 24, 1963
Cloyd was initially hired by Respondent in May 1959. He was hired as a ma-
chinist and worked in the cast iron piston department. Cloyd asserted that his fore-
man was Olin McGeorge. Cloyd was promoted to a setup man in April 1962, and
simultaneously given a raise from $1.45 an hour to $1.75 an hour. He continued as
a setup man until he was demoted on June 24, 1963. Cloyd had signed a union
authorization card on April 30, 1963, and was a member of the organizing com-
mittee. Cloyd credibly testified that he wore his union buttons at work every day.
Cloyd related that he solicited the union authorization cards, principally in the park-
ing lot, at the end of the first shift.
.It is undisputed that on June 24, 1963, Cloyd. was advised, by General Foreman
Carr that he was being demoted from a setup man: to a machinist. No reason for
the demotion appears in the record. Cloyd's assertion that he was wearing union
buttons at the time of the demotion is undisputed. Subsequently, on a date not
specified, Cloyd was laid off under circumstances which are obscure and with which
we are not here concerned.
Accordingly, on the basis of the record as a whole, I find the demotion of Cloyd
was discriminatorily motivated and a violation of Section 8(a)(3) and.(1) of the
Act.
F. Summary and concluding findings
The record reflects the following summary of events, in sequence. On Tuesday,
April 30, and Thursday, May 2, 1963, the Union held, organization meetings,, ob-
tained volunteers to serve on an organizing committee , and distributed buttons iden-
tifying the members of the organizing committee and other buttons identifying those
who had joined the Union. These buttons were worn visibly in the plant. Enochs'
response to this union organizing effort was immediate and forceful. On Friday,
May 3, he read Respondent's rules concerning solicitation and distribution of litera-
ture to Sweet and Cloyd, separately, advising each that if they were caught violating
the rules they would be dismissed. There is no evidence that either Sweet or
Cloyd, up to that time, had done anything more than distribute union authorization
cards during nonworktime. Commencing approximately May 3. Foreman Aurs pre-
dicted to Greer that if the Union were successful in its effort the hours of work
would be reduced and the Christmas bonus might be discontinued. On approxi-•
mately May 7, Foreman Longworth advised Beck that if he continued wearing a
union button he would probably be out of work before the month was up. Long-
worth voiced a threat that the plant would be closed to Pemberton on May 15.
Foreman Zigler advised Russell on May 15 that he could not distribute union
authorization cards in the plant, prior to worktime, without violating Respondent's
rules. On May 13 Personnel Director Hopper advised Pemberton that since he was
wearing a union button he should be careful as they would be watching him, in-
ferring potential discrimination.
Commencing May 15, 1963, there were a series of discriminatory layoffs, a dis-
ciplinary suspension, and demotions, all but one of which occurred between the dates
of May 15 and 31, as set forth under section E, supra.
The United States Supreme Court in Universal Camera Corporation v. N.L.R.B.,
340 U.S. 474, 477, defines the "evidence" required by Section 10(e) of the Act as
"such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Accordingly, it must do more than create a suspicion of the fact to be
established . it must be enough to justify, if the trial went to a jury, a refusal to
direct a verdict when the conclusions sought to be drawn from it is one of fact for
the jury."
The Board has found a discharge discriminatorily motivated by reason of the un-
convincing character of the reasons adduced to support the discharge, including the
timing of the discharge. Pacemaker Corporation, 120 NLRB 987, 991.. See also
United Fireworks Mfg. Co., Inc., 118 NLRB 883, 885.
Respondent asserts that the layoffs of May 15 were the result of low air pressure,
and the need to repair a compressor. I have found no merit in this defense for
several reasons: Only one of four air compressors was involved, the evidence estab-
lishes that the plant normally operated on three compressors; Respondent attempted
no explanation of the layoff of three men whom the evidence indicates were not
working on machines requiring air pressure; Respondent made no effort to explain
its failure to follow past practice in transferring these employees to the production
department; four of the five laid off were known to be members of the organizing
committee. The following day, May 16, Sweet was discriminatorily suspended for
engaging in protected concerted activities . On May 17 , 1963 , Plymate , a member of
ERTEL MANUFACTURING CORP. 331
the organizing committee, was discriminatorily discharged. On May 29 and 31, Re-
spondent laid off 21 employees in the aluminum piston department, at least 17 of
whom were members of the Union, and 13 of whom were members of the organiz-
ing committee, of a total organizing committee membership of 39. Enochs admitted
that the selection for layoff, determined by Enochs and Carr, was unrelated to
seniority. The reason for the layoff announced to the employees was "lack of work."
Simultaneously, Respondent was in negotiation with McQuay Norris for the produc-
tion and purchase of large quantities of.aluminum pistons. Respondent asserts that
the layoff was necessitated by reason of the need to transfer two setup men to an-
other department. However, Respondent acknowledges that simultaneously with the
layoff two other setup men were demoted to operators, inferentially because they
were ,not needed : as. setup men. Under these circumstances I find no merit in Re-
spond'ent's contention that the layoff was necessitated by reason of the transfer of
two setup men.
Speaking for the court, Medina, C.J., has said "the unexplained coincidence of
time with respect to the principal events was really no coincidence at all, but rather
part of a deliberate effort by the management to scotch the lawful measures of the
employees before they had progressed too far toward fruition . . . . If employees
are discharged partly because of their participation in a campaign to establish a
union and partly because of some neglect or delinquency, there is nonetheless a vio-
lation of the .. . Act." N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725
(C.A. 2).
The existence of some justifiable ground for discharge. or layoff is no defense if
it was not "the moving cause." ' Wells, Incorporated v. N.L.R.B., 162 F. 2d 457,
460 (C.A. 9).
In view of the above facts, and upon the entire record as a whole, I find that Re-
spondent's purported reasons for: the layoffs of John Sweet, R. L. Ramsey, Robert
Mobley, Harold R. Holliday, Donald R. Smith, and Paul Helton, on May 15, 1963;
the suspension of John Sweet from May 16 to 23, 1963; the discharge of James E.
Plymate on May 17, 1963; the layoff of R., E. Beck, from May 21 to 27, 1963; the
layoffs of R. E. Beck, Wiley R. Johnston, Jr., Johnie Lakes, Raymond D. Pemberton,
and Charles H. Pettypiece, on May 29, 1963, and of Eugene Blackburn, Lynndal
Donica, Ray S. Edwards, Fred E. Haley, Jr., Paul Helton, Harold R. Holliday,
James R. Hoskins, Larry Knight, Robert K. Mobley, R. L. Ramsey, and Donald R.
Smith,'on' May 31, 1963; the demotion of John- Sweet on May 31, 1963; and the
demotion of Billy M. Cloyd on June 24, 1963; were pretextuous, and that the real
reason and "moving cause" was the known union and concerted activities of said
employees and said layoffs, suspension, discharges, and demotions constituted dis-
crimination with respect to the hire and tenure of employment of said employees to
discourage membership in the Union in violation of Section 8(a)(3) and (1) of
the Act.
G. Recall letters-offers of reinstatement
On July 18, 1963, Respondent sent the following letter to 20 of the 21 employees
laid off on May 29 and 31, 1963.34
The Ertel Manufacturing Corporation found it necessary to lay off a number
of piston machining employees as of May 31, 1963. for lack of work. This is
your notice that. you are being recalled for work and that you should report to
work at 7:00 A.M., Monday, July 22, 1963.
It is understood that this is no guarantee of permanent employment as you
will be treated like any other employee.
Respondent, in its brief, acknowledges that the question of Respondent's sincerity
(or the bona fides of the offers of reinstatement) has been raised because some re-
called employees were not immediately put, to work upon reporting in response to
said letters. Respondent asserts that the evidence disclosed that Respondent had
checked the Indiana Employment Security-Division, in regard to these employees,
and found that many had not applied for benefits, thus indicating that they were
working elsewhere. Respondent asserts that to avoid potential subsequent disputes
in regard to backpay as well as to fulfill production needs it was a reasonable and
proper action under the circumstances for Respondent to send a number of letters
slightly "in excess of actual immediate need."
84 One letter was sent , by error , to Richard C.' Johnson . No letter was sent to Wiley R.
Johnston, Jr.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence relative to the failure of Respondent to reinstate recalled employees.
on July 22, 1963, is next considered.
Larry G. Knight credibly testified that he appeared on July 22 , pursuant to Re,
spondent 's letter advising him to report for work, and that he was not put to work.
Knight quoted Personnel Manager Hopper as advising that Hopper had checked with
the unemployment office, that the employees had not been drawing compensation
from the unemployment bureau , and Hopper figured that they had found other jobs.
Hopper advised that they "just would not have enough work for all of us." Knight
related that four were put to work at that time. He identified Donald Smith as one
who was put to work.35
Raymond Daniel Pemberton called Hopper on Monday, July 22 , advising him that
he had received the letter at home late. Pemberton also advised Hopper that he
was working , and advised where he was working. Hopper responded that if he had
a job he should stay where he was. Hopper also stated "that some of the men had
been there that morning that had received letters and they did not have enough work
to go around and as far as he ( Hopper ) was concerned my name was still on the
list, if they had recalls again I would be forwarded another letter :" No further letter
was forwarded to Pemberton.
Charles Pettypiece related that he reported on July 22 and was present when
Hopper arrived . Hopper accused him of having arrived 10 minutes late. Hopper
said that since Pettypiece was not there on time "that was my job, if I didn 't think
enough of it, or something to that effect, it was too bad ." Pettypiece credibly testified
that he was not in fact late.
While Hopper appeared as a witness for Respondent he was not questioned relative
to the events concerning the recall letters, and did not deny the assertions set forth.
Enochs confined himself to an assertion that the recall letters were sent out' on the
instruction of the president of Respondent, while Enochs was on vacation, and that
all who had been laid off were recalled. Enochs asserted that at the time of the
recall Respondent was "very low in the piston department ." Enochs asserted that
there had been some employees quit in the piston department , and the reason for the
letters was that the Respondent was going to replace those who had left.36
In summary, it thus appears that Respondent sent 20 letters offering 'reinstate-
ment , at a time when it in fact had only 4 jobs available.
While there is a presumption that letters which are mailed are delivered to the
addressee this presumption is rebuttable . Fred Elmer Haley, Jr., credibly testified
that he had moved from the address to which Respondent 's letter was sent, in April
1963 , prior to the time he was laid off, and that he advised Hopper of his new address
prior to the time of the layoff. Haley acknowledged that he had not put a forwarding
address card in th" nost office and a letter could have been returned to Respondent
marked "moved-left no address ." I credit Haley's denial that he ever received a
recall letter.37
On July 26, 1963 , Respondent sent a second recall letter, identical to the letter
recited supra , except as to dates, advising the following employees to report for work
on Monday , July 29 , 1963: James R. Hoskins , Larry G. Knight, Ray G. Edwards, and
Charles H. Pettypiece . James R. Hoskins related that he was recalled on July 29,
worked 2 weeks , and was laid off again . While Hoskins was not questioned relative
to Respondent's July 18 , letter, a copy of which was sent to him, it would appear rea-
sonable to infer that he was among those who reported and was not hired at that time,
since Respondent 's letter of July 26 inferentially went only to the employees who re-
sponded to the earlier letter and were not then rehired . There is no contention that
Hoskins' second layoff was discriminatory . Edwards was reinstated on July 29 and
later again laid off. No claim appears that the later layoff was discriminatory. Larry
G: Knight denied receiving ,the second letter. Knight acknowledged that he had
moved prior to the receipt of the first letter, which was forwarded to him. Knight
asserted that he did not believe that he had advised Hopper of his change of address.
I find that Pettypiece did not respond to Respondent 's letter of July 26.
35 Knight was obviously in error in identifying John Sweet as one who went to work at
that time. Sweet had not been lhid off. and had voluntarily quit on July 19.
3REnochs' assertion that none of the dischargees had been replaced on Jul,- 22 is not
credited. Enochs estimated the monthly turnover as 40 to 50 employees, and new hires
as approximating 40 a month. Enochs related that both, quits and new hiring was largely
in the production department and piston department, 100 and 24 employees, respectively.
97 Lynndal Donica asserted- that he had never been recalled and- never received a recall
letter. Donica asserted that he lives with his parents, that a lot of letters arrive that lie
does not read, that the letter might have been received and his faker did not tell him about
it I do not credit Donica's assertion that he did not receive the letter,
ERTEL MANUFACTURING CORP. ' 333
R. L. Ramsey credibly testified that he had not been recalled and had not received
any letter from the Company. offering, reinstatement. Ramsey related that he
learned from another employee that some of the employees had been recalled. He
promptly called Hopper on July 29, advised Hopper that he had not received the
July 18 letter, that he was not working, and he asked Hopper about coming to
work. Ramsey quoted Hopper as asserting that they did not need anyone and that
Hopper would contact him.if they ever needed anyone else. There is no evidence
that Respondent further contacted Ramsey. Neither Enochs nor Hopper .disputed
Ramsey's testimony.
On August 12, 1963, Respondent sent a letter, identical to the letter recited supra,
to Wiley R. Johnston, Jr., offering reinstatement effective August 19, 1963. Johnston
did not appear as a witness at the hearing. The record is obscure as to whether he
was or was not reinstated on August 19.. I find Respondent's offer of reinstatement to
Johnston a bona fide offer.
Respondent's asserted offer of reinstatement was made to 20 employees on July 18,
when in fact only 4 jobs were available. While Knight asserted that four were hired
he was able to identify only Donald R. Smith. Harold R. Holliday testified he was
one of the others reinstated on that date. The identity of the other two is obscure.
William M. Mahaney, Charles E. Reeves, Dave Kilgore, Jr., Clyde Jessie, and Robert
P. Hill, all of whom are not named in the complaint, and Eugene Blackburn, Paul
Helton, and Johriie' Lakes, alleged discriminatees, did not-appear as witnesses. All
presumably received Respondent's letter of July 18, but the reinstatement of any, or
all, of them is not established.
We are here concerned with aRespondent whom it has been found laid off em-
ployees for discriminatory reasons. I have found, supra, section E, 3, that in July
and August Respondent continued to order pistons from McQuay Norris, at the
time of these alleged recalls and efforts at reinstatement, when Respondent asserts
it did not have enough work to reemploy all of the discriminatees. Patently, Re-
spondent sent the July 18 letters offering reinstatement to 20 employees at a time
when it did not have work for' them. It thus seeks to toll the backpay period and
relieve itself of further responsibility of reinstating those employees who did not
respond to this offer. Similarly, Respondent's letter of July 26 offered work to
four employees commencing. July 29. Only two responded, but on the same day,
July 29, Hopper advised Ramsey that Respondent did not need anyone.
The Board has held that an offer of reinstatement must be made in good faith.
The Red Rock Company and The Red Rock Cola Company, 84 NLRB 521, 529. The
Board has also held that where a reinstatement was not made in good faith, or with
the intention of fulfilling Respondent's obligations under the Act, it did not constitute
reinstatement within the meaning of the Act. Selig Manufacturing Company, Inc., 79
NLRB 1144, 1145.
The Board has held that knowledge that discriminatees had employment elsewhere
does not relieve an employer of his duty to reinstate except where a valid offer has
been made and unequivocally rejected. Leo Rosenblum, d/bla Crown Handbag of
California, and d/bla Soft Touch. Shoe Co., 137 NLRB 1162, 1164.
In a recent case 38 the Board held that an employer was not required to reinstate
an employee who did not reply to the employer's unconditional offer of employment,
and that the offer tolls backpay as of the last day on which the employee could have
notified the employer of the employees' willingness to return to work. The Board
further held that there was no indication that the employee was aware that he would
be treated any differently or be assigned to different work than before the layoff
if he had accepted the offer of reemployment, and his failure to respond within the
time allowed constituted an implied rejection. I find the circumstances in the instant
case clearly distinguishable. The Board's finding in the Eastern Die case is predicated
upon a valid offer of reinstatement. The law does not require a futile act.
Accordingly, I find Respondent's offers of reemployment on July 22 and 29 were
bona fide only to the extent that they resulted in reemployment of discriminatees.
I•find the first offer was bona fide as to Holliday and Smith, and the July 29 offer was
bona fide as to Edwards and Hoskins, and such others as may be determined in a
supplemental proceeding to have been rehired on-,either date or, alternatively, to the
extent that it may be demonstrated in such supplemental proceeding that a discrimi-
natee unequivocally rejected either offer.
Next considered are the instances where the record reflects Respondent's offers
of reinstatement were not received by the addressees. to wit: Fred E. Haley, Jr., letter
of July 18; and Larry Knight, letter of July 26. The Board has held that a letter
which did not reach the addressee cannot constitute a valid offer of reemployment.
39 Eastern Die Company, 142. NLRB 601.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board also held that where the respondent made a bona fide effort to offer rein-
statement, respondent's backpay liability would be tolled as of the date of the at-
tempted delivery of the letter ; however, respondent 's backpay liability was reinstated
as of the date the addressee learned of the offer and informed the respondent of his
availability for work, but was denied reinstatement . Jay Company , Inc., 103 NLRB
1645, 1647 . Having found that Respondent 's letters were not bona fide offers of rein-
statement , except as indicated , I will not recommend the tolling of backpay of Haley
and Knight.
Respondent during the hearing inquired of Pettypiece as to whether he desired
reemployment, however, counsel declined to affirm or deny whether his inquiry con-
stituted an offer of reemployment. I find Respondent did not make an unqualified
offer of reinstatement to Pettypiece on September 17, 1963, when he testified.
Respondent during the hearing queried Pemberton as follows:
Q. As far as I am concerned, they're hiring out there all the time, we have
nothing against you, if you want your job back there tomorrow you can have.
it. Right now on the open stand you can go back tomorrow if you ,, want it.
A: - Well, as V said , "sir, I am not in a position,. I mean this . •would take time.
Q. You don't have to go out tomorrow , you can go out Monday if you like.
I find Respondent , on September 1, 1963 , made a bona fide offer to reemploy
Pemberton on or before Monday, September 23, 1963. See R. J. Oil & Refining Co.,
Inc., 108 NLRB 641.
Respondent inquired of Ramsey , during the hearing:
Q. If we need people in the next few weeks or so, would you want to come
back to work for us?
A. Yes, sir.
Q. Why don't you go out to the personnel department sometime and let them
know you are available?
I find Respondent . did not make an,unqualified offer of reinstatement to Ramsey on
September 18, 1963.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ' UPON COMMERCE
The activities of the Respondent set forth in section III , above , occurring in con-'
nection with Respondent's operations described in section I, above, have a close,
intimate , and substantial relationship to trade , traffic , and commerce among the sev-
eral States , and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging 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.
Respondent having discriminatorily laid off John Sweet , R. L. Ramsey, Robert
Mobley, Harold R . Holliday, Donald R. Smith, and Paul Helton on May 15 for a
portion of that day, because of their union and concerted activities , I recommend that
Respondent make them whole for any loss of pay each may have suffered by reason'
of Respondent's said discrimination. Respondent having discriminatorily suspended
John Sweet, commencing May 16 until May 23 , 1963 , and having discriminatorily
laid off R . E. Beck commencing May 21 , and ending May 27, 1963 , because of their
union and concerted activities , I recommend that Respondent Make them whole for
any loss of pay suffered by-them during said. periods. Respondent having disgrim-
inatorily laid off R. E. Beck , Wiley R. Johnston , Jr., Jbhnie Lakes, Raymond D.
Pemberton, and Charles H. Pettypiece on May 29, 1963, and Eugene Blackburn,
Lyndal L . Donica, Ray S . Edwards, Fred E . Haley , Jr., Paul Helton, Harold R.
Holliday, James R. Hoskins, Larry Knight, Robert K. Mobley, R. L. Ramsey, and'
Donald R. Smith on May 31 , 1963 , I recommend that Respondent offer, to those
who have not been reinstated or rejected reinstatement, immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice to
their seniority and other rights and privileges, and make each of them, whole for
any loss of pay each may have suffered 'by reason of Respondent's discrimination
against each, by a payment to each of a sum of money equal to that which each would
normally have earned as wages from the date of the discharge of each , to the date
when , pursuant to the recommendations herein contained , Respondent shall offer
each of them reinstatement , less net earnings of each during said period . However,
having found "that some of said discriminatees have been 'reinstated , and others have
ERTEL MANUFACTURING CORP. 335,
received a valid offer of reinstatement, impliedly declined, and being unable to de-
termine the identity of others who may have been reinstated, or impliedly declined
valid offers of reinstatement, the period of backpay is terminated on July 22 as to
Holliday and Smith, on July 29 as to Hoskins and Edwards, on August 12 as to
Johnston, and on September 18 as to Pemberton, all dates being 1963. In addi-
tion, I recommend that Respondent make whole John Sweet, for any loss of pay
he may have suffered by reason of his discriminatory demotion, commencing May 31,
1963, and ending upon his separation from Respondent's employment on July 19,
1963, and that Respondent make Billy M. Cloyd whole for any loss of pay he may
have suffered by reason of his discriminatorily motivated demotion on June 24, 1963,
to the date when he was separated from Respondent's employment. Said backpay
shall be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed
in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that Respondent be ordered to make available to the
Board, upon request , payroll and other records to facilitate checking of the amount
of earnings due.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of the
Act.
Upon the foregoing findings of fact, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2., International Union, United.-Automobile,' Aerospace and Agricultural Imple-
ment Workers of America, UAW, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct set forth in the section entitled "Interference, Re-
straint and Coercion," to the extent therein found, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discriminating with respect to the hire and tenure of employment of the
employees named supra, by discriminatory layoffs, discharges, suspensions, and
demotions, as found in section E, thereby discouraging the free exercise of the
rights guaranteed by: Section 7 of the Act and discouraging membership in and
activities for the above-named labor organization, the Respondent has engaged. in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of ,the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record of the case , and pursuant to Section 10(c) of the Act, I recommend
that the Respondent, Ertel Manufacturing Corp ., its officers , agents, successors, and
assigns, shall :
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of , International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America,
UAW, AFL-CIO, or any other labor organization of its employees, by discharging,
suspending , laying off, demoting, or refusing to reemploy or recall employees on
layoff, or in any other manner discriminating against them in regard to their hire
and tenure of employment or condition of employment.
(b) Threatening economic retaliation if any employee engages in organizational
activities.
(c) Promulgating or enforcing any unlawful no-solicitation rule.
(d) Maintaining , promulgating , or enforcing any unlawful no-distribution rule.
(e) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right of self -organization , to form labor organizations , to join
or assist the above-named Union or any other labor organization , to bargain col-
lectively through representatives of their own choosing , and to engage in any other
concerted activity for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to R. E. Beck, Eugene Blackburn, Lynndal L. Donica, Fred E. Haley,
Jr., Paul Helton , Larry Knight, Johnie Lakes , Robert K. Mobley, Charles Pettypiece,
James E. Plymate, and R. L. Ramsey , immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority or
other rights and privileges previously enjoyed, and make them whole for any loss
of pay they may have suffered by reason of Respondent 's discrimination against each
in accordance with the recommendation set forth in the section entitled "The
Remedy."
(b) Make John Sweet, Harold R. Holliday, Donald R. Smith , James R. Hoskins,
Ray S. Edwards , Raymond Pemberton , Wiley R. Johnston , Jr., and Billy M. Cloyd
whole for any loss of pay each may have suffered by reason of Respondent's dis-
crimination against them in accordance with the recommendations set forth in the
section entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents for
examination and copying , all payroll records, social security payment records, time-
,cards, personnel records and reports, and all other records necessary to analyze the
.amounts of backpay due and the right of employment under the terms of the
Recommended Order.
(d) Post at its place of business in Indianapolis , Indiana, copies of the attached
notice marked "Appendix ." 39 Copies of said notice, to be furnished by the Regional
Director for the Twenty -fifth Region , shall, after being duly signed by the Respond-
ent, be posted by it immediately upon receipt thereof , and be maintained for 60 con-
secutive days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that such notices are not altered , defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty -fifth Region , in writing, within
20 days from the date of the receipt of this Report, what steps Respondent has taken
to comply with the foregoing Recommended Order.
It is further recommended that unless, within 20 days from the date of the receipt
of the Trial Examiner 's Decision , the Respondent shall notify the said Regional
Director , in writing , that it will comply with the foregoing Recommended Order,40
the National Labor Relations Board issue an order requiring Respondent to take
the aforesaid action.
It is further recommended that the following allegations of the complaint be dis-
missed: paragraph 5(d) and (e) relative to J. C. Ertel III; paragraph 5(c) relative
to Herschel Zigler; paragraph 5(a); paragraph 5(b) relative to Herschel Zigler;
paragraph 5(c) relative to Carl Longworth ; and paragraph 6(g) relative to James F.
Lay and Billy C. Greer.
ag In th(P event that this Recommended Order be 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 be enforced
by a decree of a United States ' Court of Appeals , the words "a Decree of the United States
Circuit Court of Appeals , Enforcing an Order" will be substituted for the words "a Deci-
sion and Order."
40 In the event this Recommended Order be adopted by the Board , this provision shall
be modified to read: "Notify said Regional Director , in writing, within 10 days from the
date of this Order , what steps the Respondent has taken to comply therewith."
APPENDIX
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 Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of, Inter-
national Union, United Automobile , Aerospace and Agricultural Implement
Workers of America, UAW, AFL-CIO, or any other labor organization of our
employees , by discharging , suspending , laying off, demoting, or refusing to re-
employ or recall employees on layoff, or in any other manner discriminating
against them in regard to their hire or tenure of employment or any term or
condition of employment.
MOBIL OIL COMPANY 337
WE WILL NOT promulgate or enforce any rule which prohibits our employees,
during nonworking time, from engaging in solicitation on behalf of International
Union , United Automobile , Aerospace and Agricultural Implement Workers of
America, UAW, AFL-CIO, or any other labor organization.
WE WILL NOT promulgate , maintain , or enforce any rule which prohibits our
employees , during nonworking time, from distributing handbills or literature on
behalf of International Union , United Automobile , Aerospace and Agricultural
Implement Workers of America, UAW, AFL-CIO, or any other labor organiza-
tion, in nonworking areas of our plant properties.
WE WILL NOT threaten economic retaliation if any employee engages in or-
ganizational activities.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization , to join Or assist
the aforementioned or any other labor organization , to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
WE WILL offer to R. E. Beck , Eugene Blackburn , Lynndal L. Donica , Fred E.
Haley, Jr., Paul Helton, Larry Knight , Johnie Lakes, Robert K . Mobley, Charles
Pettypiece , James E. Plymate, and R. L. Ramsey immediate and full reinstate-
ment to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make them whole for any loss
of salary or pay suffered as a result of the discrimination against them.
WE WILL make whole John Sweet, Harold R . Holliday, Donald R. Smith,
James R. Hoskins , Ray S. Edwards , Raymond Pemberton , Wiley R. Johnston,
Jr., and Billy M. Cloyd for any loss of pay each may have suffered by reason
of the discrimination against them.
All our employees are free to become, to remain , or to refrain from becoming or
remaining , members of a labor organization of their own choosing.
ERTEL MANUFACTURING CORP.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE.-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 applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921, if they have any questions concerning this notice of compliance with its
provisions.
Mobil Oil Company and Oil, Chemical and Atomic Workers
International Union , Local Union No. 7-644, AFL-CIO. Case
No. 14-CA-3013. June 5, 1964
DECISION AND ORDER
Upon charges duly filed by the Oil, Chemical and Atomic Workers
International Union, Local Union No. 7-644, AFL-CIO (herein
called OCAW), the General Counsel of the National Labor Relations
Board, by the Regional Director for the Fourteenth Region, issued a
complaint, dated May 14, 1963, against Mobil Oil Company (herein
called the Respondent), alleging that the Respondent had engaged in
and was engaging in unfair labor practices within the meaning of
147 NLRB No. 43.
750-236-65-vol. 147-23