Hardwick Stove Co.

National Labor Relations Board - Board Decisions

Jun 10, 1969

176 N.L.R.B. 546 (N.L.R.B. 1969)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hardwick Stove Company and International Molders
and Allied Workers Union , AFL-CIO, CLC. Case
10-CA-7418
June 10, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
which the complaint was issued on October 1, 1968,
involves allegations that the Respondent, Hardwick Stove
Company, Cleveland, Tennessee, violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
29 U.S.C., Sec. 151, et seq. On November 19 and 20,
1968, I conducted a hearing at Cleveland, Tennessee, at
which all parties were represented. On December 16, 1968,
briefs were received from the General Counsel and the
Respondent, and have been considered. Upon the entire
record and my observation of the witnesses, I make the
following:
On March 3, 1969, Trial Examiner A. Bruce
Hunt issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged 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 Decision. He further
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision, with a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing, and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby crders that the Respondent , Hardwick Stove
Company, Cleveland, Tennessee, its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
'The Respondent excepts to some of the Trial Examiner 's credibility
resolutions . It is the Board 's established policy , however, not to overrule a
Trial Examiner's resolutions as to credibility unless, as is not the case here,
the preponderance of all the relevant evidence convinces us that they are
incorrect . Standard Dry Wall Products. ;nc. 91 NLRB 544, enfd. 188
F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. BRUCE HUNT, Trial Examiner : This proceeding, in
which the charge and amended charges were filed on July
15, August 12 and 19, and September 26, 1968, and in
FINDINGS OF FACT
1. THE RESPONDENT
Hardwich Stove Company, a Tennessee corporation,
has its plant in Cleveland, Tennessee, where it
manufactures stoves and ranges. The Respondent annually
ships products valued in excess of $50,000 directly to
points outside Tennessee. There is no dispute, and I find,
that the Respondent is engaged in commerce within the
meaning of the Act.
11. THE UNION
International Molders and Allied Workers Union,
AFL-CIO, CLC, is a labor organization which admits to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
At times material, the Respondent had about 500
production and maintenance employees and about 52
supervisors. For a period of 3 decades prior to 1968, there
was no union activity at the Respondent's plant.' On or
about June 1, 1968, the Union began organizational
activity there. Our issues are (1) whether, during July
1968, one supervisor, John Grubb, invalidly interrogated
and threatened one employee, Fred Crumley, and (2)
whether, during August, the Respondent invalidly
discharged Charles Wilson, Jr., and Donald Wilson.
B. The Conversation Between Grubb and Crumley
Crumley , a witness for the General Counsel, testified on
direct examination that about the middle of July 1968, at
his place of work, Grubb asked him if he was for the
Union, to which he responded affirmatively, and that then
Grubb said that "probably if the union went in there that
they would have a lay off, maybe a shut down, since the
place was privately owned." On cross-examination,
Crumley testified that he had been very friendly with
Grubb, that he and Grubb had had a series of
conversations about the Union, some of which he had
initiated , that he may have previously volunteered to
Grubb that he favored the Union, and that by mid-July
the subject of the Union had become "general
conversation" between them. Grubb' s version differs. He
testified that he never had a conversation with Crumley in
which the Union was mentioned. According to Grubb,
upon one occasion when Crumley was "kind of mad at
'The record discloses the absence of union activity for the period of 3
decades, but there is nothing in the record concerning such activity during
the 1930s.
176 NLRB No. 65
HARDWICK STOVE CO. 547
the company," Crumley said to him that "the men could
make the company" do as the men wished, to which
Grubb responded that it would be hard to make a
privately owned company, or any company, do anything
that it did not wish to do, that Crumley then said that
"the men could force the company," and that Grubb
expressed agreement that "they could close us down." I
was not favorably impressed by Grubb's version and I
believe that he did have a conversation with Crumley in
which the Union was mentioned. On the other hand, in
view of Crumley's testimony on cross-examination, I am
not satisfied that I can place the remarks of Crumley and
Grubb to each other in proper context or that I can
evaluate the likely impact, if any, of Grubb's total
remarks during the conversation about the middle of July.
In particular , I conclude that this isolated conversation
has no probative value in determining the issues
surrounding the discharges of Charles Wilson, Jr., and
Donald Wilson, discussed below.
C. The Discharge of Charles Wilson, Jr.
The surname used in this section relates solely to
Charles Wilson who is not related to the other dischargee.
Wilson began work for the Respondent during 1946. He
was laid off during 1950. He was rehired during 1953 and
worked continuously until his suspension on August 12,
1969, which was followed by his discharge later that
month. He was "a stove mounter" with the duty of
putting insulation between the doors and liners of stoves
as the products moved on a production line. Over the
years, Wilson was never criticized on reprimanded about
his work until after his suspension . During 1965 he was
offered, but declined, a job as leadman which would have
entailed the duty of "setting up the jobs and moving men
from placement to where they were best qualified for the
job."
As recited, union activity began about June 1, 1968.
During June, Wilson joined the Union and began to
attend its meetings . He became a member of the Union's
organizing committee , and during July be began to wear
union badges , one of 1-1 /4 inches diameter reflecting his
adherence to the Union and another of 1-7/ 16 inches
diameter reflecting his membership on the committee. He
wore the badges while at work and did not conceal them
with clothing.
Before discussing the events on August 12, certain
earlier events must be recited. Production lines 1 and 2
are located on the plant's fourth floor, and employees who
work on those lines on the first shift are supervised by
Foreman Chester Perian. Lines 3 and 4 are located on the
third floor. The plant was closed for a vacation period of
1 week ending on Saturday, July 6. Ralph L. Parker, the
Respondent ' s production manager , testified that Wilson
was transferred from Line 3 to the first shift on Line 2 on
or about July 8 when operations were resumed. Parker
testified further that for several weeks after the plant
reopened, the production "rates dropped off considerably"
and that he asked Perian and other supervisors "to tighten
up and see if they" could increase production. The
Respondent contends that decreased production was the
result of the organizational activity . Perian testified that
he believed that union activity and conversations among
employees were the causes of the decrease in production,
that he began to watch the employees more closely, that
he observed groups of employees talking , but that he did
not overhear anything because, upon his approach to a
group , the employees would cease talking and resume
work. In support of its contention that there was a
decrease in production after the vacation period, the
Respondent produced figures showing the hourly earnings
of employees by workweeks. All employees on a
particular production line are paid at piece rates, and all
earn the same amounts. If the date of Wilson's transfer
from Line 3 to Line 2 was July 8, as indicated by Parker's
testimony, Wilson worked on the latter line for a period
of 5 weeks before his suspension. The figures show that
for that 5-week period the employees on Line 2 earned
about $2.83 per hour in contrast to their earnings of about
$3 hourly for a 5-week period preceding the shutdown of
the plant. Thus, the figures reflect a decline in production
on Line 2 during the period that Wilson worked on it. On
the other hand, during a 5-week period immediately
before the shutdown, when Wilson worked on Line 3, the
employees on that line earned about $2.76 hourly and,
therefore, Wilson' s earnings increased after his transfer to
Line 2.
We turn to the events on August 12. There is no
dispute that on that day and earlier, Wilson wore his
union badges. After noon on August 12, Perian went to
Wilson's place of work and sat behind him as Perian had
done upon occasion during the past 2 weeks. Wilson
turned from his work and looked back at Perian who was
smiling , Wilson said to Perian that the latter was
mistaken if he thought that he was scaring Wilson. Perian
walked away, but returned to sit behind Wilson. Again
Wilson turned to look at Perian who was smiling . Wilson
said , "Smile, you might be on Candid Camera. The
reference to Candid Camera was a reference to a
television program that was on the air in recent years.
Perian walked away, but returned. Again Perian sat
behind Wilson. Wilson turned and noticed that Perian was
smiling and chewing gum. Wilson commented, "The way
you're chewing your gum, you must be awfully nervous."
Perian walked away. Perian testified that he "wrote
down" Wilson's remarks, and I infer that he did so upon
leaving Wilson's place of work after each remark. About
3:20 p.m., 5 minutes before quitting time, Perian told
Wilson to punch out and to go to the personnel office.
Wilson refused to punch out, so Perian punched his
timecard. Wilson went to the personnel office. Perian's
acts in sitting behind Wilson and smiling were noticed by
other employees. Wilson was not asked whether he or
anyone laughed during the afternoon, but the other
testimony is clear that there was laughter and it is also
reasonable to infer that other employees, who heard
Wilson's remarks to Perian, were prompted by the
remarks to laugh.'
'These findings are based largely upon Wilson's testimony. Perian's
version is that he was about 40 feet from Wilson when his attention was
attracted by a very loud, unnatural laugh by Wilson, that he walked
toward Wilson and inquired what was wrong, and that Wilson continued to
work and did not respond. Somewhat later, according to Perian, he passed
by Wilson's place of work three or four times, and upon each occasion
Wilson gave a loud, unnatural laugh. Still later, so Perian testified, he
walked by Wilson who said that Perian had been watching him for 2 weeks
in an effort to find something wrong, to which Perian responded that he
had not been watching Wilson more than any employee, following which
Perian walked away. Still later, according to Perian, when he was about 25
fact from Wilson, the latter called out in a loud voice, "Smile, you might
be on Candid Camera." Perian testified further that Wilson said that
Perian did not scare him, that Perian could only "smile and bear it," that
Perian should "[c]hew that chewing gum, you look awfully nervous," and
that Perian "took it as long as [he] could," following which he reported to
Production Manager Parker. Additional testimony by Perian establishes
the inaccuracy of his version He acknowledged that he sat behind Wilson
for a total of 15 to 20 minutes, and his testimony is that he sat in order to
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parker testified for the Respondent that he directed
that Wilson be suspended and be told "that he would be
laid off pending a complete investigation of the charges."
If Parker gave such direction, it was not followed. When
Wilson went to the personnel office, he spoke with
Coleman Sawyer, the superintendent. Sawyer was not a
witness, and Wilson testified without contradiction, and I
find, that Sawyer said to him that he would be "let .. .
off for a while," to which Wilson responded by asking the
reason, that Sawyer replied, "pending an investigation,"
that Wilson asked, "what investigation," and that Sawyer
answered, "You'll find out." Wilson testified further, and
I find, that Sawyer refused to give him the necessary
paper to enable him to draw unemployment
compensation , saying that Wilson was not being laid off
or discharged. On the following day, Wilson sought
unemployment compensation and he took a form to
Sawyer who refused to fill it out. Wilson said to Sawyer
that, since he had not been discharged, he would return to
work, but Sawyer refused to let him work "until after this
investigation ," the nature of which Sawyer again refused
to disclose Several days later, Wilson sought
reinstatement by talking with Norman Jordan, the
personnel director. Jordan was not a witness . Wilson
testified without contradiction, and I find, that Jordan
refused to reinstate him "until after this investigation,"
the nature of which Jordan said that he did not know.
During the period of Wilson' s suspension , the Respondent
made inquiries , which if characterized as an investigation,
concerning Wilson's conduct on August 12, but no inquiry
was made of Wilson. On August 22, Wilson was
discharged upon the ground that he had engaged in
"[p]lanned and premeditated harrassment [sic] and
belittling [of] foreman [Perian] in presence of other
employees." Notice of the discharge was mailed to
Wilson.'
I find that Wilson was discharged because of his union
membership and activity. He had worked for the
Respondent for a total of 19 years. His efficiency is
demonstrated by the absence of criticism during the years
and by the Respondent's offer to make him a leadman
during 1965. Soon after he began to wear union badges,
however, he was watched by his foreman, Perian, and on
August 12 Perian engaged in conduct that was intended to
annoy Wilson. On that day Perian sat behind Wilson,
smiling . Perian was not seeking to ascertain where there
might be points of slowdown in production. Instead, he
was seeking to irritate Wilson who was not behind in
production. Perian was motivated, I am convinced, by the
presence of the union badges on Wilson's clothing,
particularly the badge that reflected membership on the
organizing committee. Perian's efforts at annoyance
listen "to what [Wilson] had to say" although minutes passed when Wilson
continued at work and said nothing Additionally, Perian acknowledged
that he had no reason to speak to Wilson concerning the latter's
production because Wilson was up in his work On the other hand,
according to Perian, Wilson's laughter and remarks, while not slowing
Wilson's production, caused other employees to laugh and to slow down in
their work, but Perian did not speak to the other employees because
"Wilson kept [him] occupied" by talking. It is clear, however, that Wilson
made few remarks to Perian and that Wilson made them because Perian
sat behind him, smiling. I do not doubt that Perian's attention may have
been attracted originally by Wilson's laughing, but laughter is not unusual
among the employees
'Parker testified that upon advice of counsel Wilson was suspended, an
investigation was made, and thereafter Wilson was discharged. The fact
that the Respondent received legal advice does not alter my conclusions
below concerning the Respondent's motive in discharging Wilson
succeeded. Wilson's first reaction was to say that Perian
was not frightening him. His other reactions were to say
jokingly, "Smile, you might be on Candid Camera," and
to say, "The way you're chewing your gum, you must be
awfully nervous." Surely, there were laughs by employees
who heard. But the fault was Perian's. He had sought to
provoke conduct by Wilson that would serve as a pretext
for discharge. Moreover, the use of the pretext after
Wilson' s suspension is reflected by Wilson's inability to
learn from Sawyer and Jordan why he had been
suspended and by the Respondent's failure to seek
Wilson's version of the events on August 12. I find that
Wilson' s suspension and discharge violated Section 8(a)(3)
and (1) of the Act.
D. The Discharge of Donald Wilson
The use of the surname in this section is a reference to
Donald Wilson. He began work for the Respondent
during 1956. Ten years later, he became a leadman in
training to become a supervisor, and he continued as a
leadman until the date of his discharge, August 5, 1968.
During May 1968, R. B. Pruiett, a foreman, took a
vacation of 1 week, and during that period Wilson
performed some of Pruiett's functions. Subsequently, three
individuals, the Respondent's president, Reeves Brown,
the plant superintendent, Coleman Sawyer, and the
assistant superintendent, Ralph Stoffel, all said to Wilson
that he had done "a good job" and that they "appreciated
it."
About July 12, 1968, Wilson signed a union card and
began to attend union meetings regularly. He also became
a member of the organizing committee. On July 29,
Pruiett began another vacation of l week, and again
Wilson was assigned some of Pruiett's duties. On July 30,
when Wilson came to work, he began wearing on his
clothing two union badges of the types described above,
one reflecting his adherence to the Union and another
reflecting his membership on the Union's committee. On
the same day, Wilson expressed to General Foreman John
Swafford his dissatisfaction with his job as leadman and
with the heavy workload that he had to carry during
Pruiett's vacation. Wilson had told Swafford earlier of his
dissatisfaction with the job of leadman because, in his
view, the job was not of benefit to him. On July 30,
Wilson was outspoken in telling Swafford that he did not
want to continue as a leadman, partly because of
inadequate compensation, and also that he was being
overworked while Pruiett was on vacation. There is a
conflict in the testimony of Wilson and Swafford
concerning the former's choice of words in expressing
himself, but the conflict need not be detailed and resolved.
It suffices to find that, whichever version represents the
truth, or whether portions of each version represent it,
Wilson did not use words that are uncommon among
employees and supervisors in a factory.'
On August 5, Pruiett returned to work Swafford called
the employees in the department together and announced
that they should take future orders from Pruiett and
himself, not from Wilson.' At that time, Wilson was
'I was not favorably impressed by Swafford's denial that Wilson was
wearing union badges at the time of their conversation. Moreover, there is
uncontradicted testimony by Wilson that he was wearing the badges earlier
that day when he was assigned additional duties by Plant Superintendent
Sawyer
`This finding is based largely upon Wilson's testimony. On the other
hand , Swafford testified emphatically that he did not mention Wilson's
name . Swafford's testimony is contradicted by that of Pruiett, also a
HARDWICK STOVE CO. 549
wearing his union badges in plain view on his clothing, as
he had done since reporting for work on July 30. Upon
the completion of Swafford's remarks, Wilson began
working with other employees in moving enamel, but
within 20 minutes Pruiett told Wilson to assist him by
performing certain work that Wilson had performed
during Pruiett's vacation. During the afternoon of that
day, Wilson was discharged. Before the details are recited,
it is necessary to discuss certain practices in the plant
relating to the employees' lunch periods. One period is
from 11 to 11:30 a.m. A second period is from 11:30 to
noon. There is conflicting testimony concerning whether
each employee was assigned a particular period, but it
suffices to find that, by assignment or not, each employee
generally followed the routine of observing a particular
period. On the other hand, there were occasions when an
employee would vary his lunch period by "trading
periods" with another employee. The Respondent did not
object to such trades so long as there was no interruption
in the normal work at the factory. Pruiett's lunch period
was 11:30 to noon; Wilson's was a half hour earlier except
that, during Pruiett's vacations, Wilson had lunch between
11:30 and noon. On August 5, Wilson took the 11:30 to
noon lunch period, having traded with Larry Cross, a
college student who was employed during the summer.
Cross could not operate a vehicle called a tow motor or
forklift, and there was no employee on duty during that
lunch period who could operate one. According to Pruiett,
on August 5, he told Wilson to take the l l to 11:30 lunch
period, but Wilson did not answer, and later, at about
11:40 two trucks of another employer arrived at the plant,
one containing enamel and the other containing the same
product plus a die that weighed about a ton. Pruiett
testified further that he looked for Wilson in order to
direct Wilson to use a forklift and take the die to its
proper place in the plant, that he learned from Cross that
the two employees had traded lunch periods, that the
drivers of the trucks used a jack truck to remove the die
from the vehicle and to place it on the dock, that the die's
position on the dock interferred with the unloading of the
enamel, and that the die was not removed from the dock
until Archie Freeman, an employee who could operate a
forklift, returned to work at noon after having eaten his
lunch.' Finally, Pruiett testified that he recommended to
Personnel Director Jordan that Wilson be discharged for
having breached Pruiett's instruction earlier that day that
Wilson take the 11 to 11:30 lunch period.'
Pruiett's testimony is contradicted in material respects
by that of Wilson. According to Wilson, Pruiett did not
tell him to take the l l to 11:30 lunch period on August 5,
but instead asked whether Wilson intended to take that
period, to which Wilson replied that he would do so if he
did not trade with another employee. I credit this
testimony by Wilson. It impresses me as the much more
likely version of the remarks between Pruiett and him
witness for the Respondent . According to Pruiett , Swafford "called all the
boys together and told them that Don [Wilson] was taken out as a lead
man. He would be just one of the regular boys from there on out. They
could take all their orders from me ... "
•Pruiett is an hourly paid supervisor who punches a timeclock . Although
he can operate a forklift, he is not permitted to do so except during his
working hours.
'Pruiett also testified that , in recommending Wilson ' s discharge, he was
motiviated additionally by Swafford's recital to him of Wilson 's remarks
upon the occasion when Wilson expressed to Swafford dissatisfaction with
the job of leadman . It does not appear , however , that Pruiett told Jordan
of this additional alleged motivation.
concerning the lunch period. Moreover, Pruiett was unable
to recall any other instance when he had reminded Wilson
of a lunch period for the latter. Next, Wilson and Pruiett
were at work during the period that Pruett testified
Wilson should have been at lunch. Wilson credibly
testified that during that period Pruiett stopped at
Wilson's place of work while Wilson "was writing up a
ticket," but did not speak to Wilson. On the other hand,
Pruiett testified that he was seated at his desk during that
period, engrossed in paperwork, and that he did not notice
any employee at work. According to Pruiett, he is
"practically blind" in one eye and Wilson "could have
been all around" him without his having noticed Wilson
because of the defect in sight plus the concentration upon
his work. Again I credit Wilson, and find that Pruiett was
aware that Wilson was at work between 11:00 and 11:30
on August 5. Next, Pruiett's conduct toward Wilson
following lunch on that day was not the conduct of a
foreman who had found fault in a capable employee of 12
years' seniority. Wilson testified without contradiction
that he was never told that there had been a need for a
forklift operator while he was having lunch on August 5.
He testified also that from about 2:30 to 3:20 p.m., during
that afternoon he worked with Pruiett, and it is clear from
the testimony of each of them that Pruiett said nothing to
Wilson about an alleged dereliction of duty by the latter.
At about 3:20 p.m., Pruiett received a telephone call,
following which he and Wilson went to the personnel
office. Jordan, the personnel director, and Parker, the
production manager, were awaiting Wilson. Parker
directed Pruiett to return to work, following which Jordan
said to Wilson that the latter was discharged. Wilson
asked why, and Jordan replied, "insubordination." Wilson
asked for clarification, and Jordan said that Wilson had
disregarded a specific lunch period that had been assigned
to him. Wilson protested, but Jordan terminated the
conversation by saying that he would "rather not discuss
that."'
We turn to the alleged seriousness of Wilson's having
traded a lunch period with Cross so that a forklift
operator was not at work in the department between 11:30
and noon . Parker testified that dies are "very seldom"
delivered to the plant during lunch periods. Wilson was
aware that Cross could not operate a forklift, but he
testified that, in trading the lunch period with Cross, he
gave "no thought" to the possibility that a forklift might
be needed between 11:30 and noon. Wilson's lack of
thought was not unusual. During the preceding week when
Pruiett had been on vacation, Freeman twice took the
same lunch period as Wilson, leaving no one on duty in
the department who could operate a forklift. Freeman
used the 11 to 11:30 period three times that week and the
later period twice, and Cross did the same , but only once
did they simultaneously take the same period. Cross
testified that he was not assigned a particular lunch period
prior to Wilson's discharge and that upon occasion he
traded lunch periods without obtaining permission from a
supervisor. Freeman testified that he was not assigned a
particular lunch period and that he had occasionally
traded periods without permission or criticism.' The
'The findings concerning the conversation in the personnel office are
based upon Wilson's uncontradicted testimony
'Freeman is a young man of 22 years who did not complete grammar
school. He was frightened when on the witness stand I regard as credible
his negative answer to the last question asked of him , i.e., whether anyone
ever told him that there should be someone capable of operating the
forklift at all times in the enamel department.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent called General Foreman Swafford as a
witness in an effort to contradict Cross and Freeman and
to explain how it had happened that , upon two occasions
during the week before Wilson 's discharge , Freeman had
taken the same lunch period as Wilson leaving no one in
the department to operate the forklift during that period.
Swafford testified that during that week he gave Cross
and Freeman permission to trade lunch periods . Swafford
gave no details of his alleged conversation with Freeman,
and it is clear from Cross' testimony that the incident
related by Swafford occurred after Wilson ' s discharge
when Cross ' usual lunch period had been fixed at 11:00 to
11:30 and Cross wanted to take the later period. I
conclude that Freeman varied his lunch periods during the
week in question without permission and without thought
that a need might arise for a forklift operator when he
and Wilson were at lunch simultaneously. It is
appropriate , however, to continue the recital of Swafford's
testimony. When he was first asked why he gave
permission to Cross and Freeman to trade lunch periods
during the week before Wilson 's discharge , leaving no one
to operate the forklift upon two occasions when Freeman
and Wilson were at lunch at the same time, he answered
that he was on hand to operate the forklift. It was pointed
out to him that he too had taken the same lunch period
on those occasions . He then offered the- explanation that
he had believed that Cross, who was at work upon those
occasions , could operate a forklift . There was no basis for
such belief because Swafford acknowledged that he had
known little about Cross , a temporary employee during
the summer . It is more likely, I believe, that if Swafford
ever gave Cross and another employee permission to trade
lunch periods , leaving no one on hand to operate a forklift
if a need should arise , Swafford did so without thought of
such a possibility.
I find that the Respondent discharged Wilson because
of his union membership and activities. The defense is that
Wilson had been insubordinate in not following Pruiett's
alleged direction to take the first lunch period on August
5. 1 have found, however, that Pruiett did not so direct
Wilson . With respect to the Respondent 's contention that
two trucks arrived at the dock for unloading at about
11:40 a.m., Pruiett was the only witness to testify that the
trucks came , and in some instances I have found his
testimony to have been unreliable . Moreover , if the trucks
did arrive at the time related by Pruiett, the result was not
so serious as to warrant Wilson ' s discharge for having
traded a lunch period with Cross . Production Manager
Parker acknowledged that an employee ' s initial offense
does not automatically result in discharge and he listed as
serious offenses warranting prompt dismissal (a) fighting,
(b) stealing , and (c ) destruction of company property.
Finally, certain details surrounding the discharge are
inconsistent with a belief on the part of Pruiett and
Jordan that Wilson , a capable employee for 12 years, had
been so derelict in duty as to be disciplined by discharge.
No one told Wilson that there had been a need for a
forklift operator while he had been at lunch; indeed
Pruiett said nothing at all to Wilson about a dereliction in
duty although the two men worked together after the
alleged dereliction . Too, when Jordan discharged Wilson,
Jordan refused to discuss the matter other than to give a
bare reason . I conclude that the discharge violated Section
8(aX3) and (1) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices affecting commerce, I shall
recommend that it cease and desist therefrom and that it
take affirmative action to effectuate the policies of the
Act. I shall recommend that the Respondent offer Charles
Wilson, Jr. and Donald Wilson immediate and full
reinstatement to their former or substantially equivalent
positions (Chase National Bank, 65 NLRB 827), without
prejudice to their seniority or other rights or privileges,
and that the Respondent make each of them whole for
any loss of pay he may have suffered as a result of the
discrimination against him , by payment to him of a sum
of money equal to that which he normally would have
earned from the date of the discrimination (in one
instance, the date of the suspension; in the other, the date
of the discharge) to the date of a proper offer of
reinstatement , less his net earnings (Crossett Lumber Co.,
8 NLRB 440, 497 - 498) during said period, the payment
to be computed on a quarterly basis in the manner
established in N.L.R.B. v. Seven-Up Bottling Co, Inc.,
344 U.S. 344, with interest at 6 percent per annum , Philip
Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720 (C.A. 6).10 I
shall recommend also that the Respondent preserve and
make available to the Board or its agents, upon request,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts of backpay and the right to reinstatement under
the terms of these Recommendations.
In view of the nature of the Respondent's unlawful
conduct and its underlying purpose and tendency, I find
that the unfair labor practices found are persuasively
related to the other unfair labor practices proscribed and
that danger of their commission in the future is to be
anticipated from the course of the Respondent's conduct
in the past . N.L.R.B. v. Express Publishing Co.. 312 U.S.
426, 437. This is particularly true because the discharge of
employees for union membership and activity, striking as
it does at their means of livelihood, "goes to the very
heart of the Act," N.L.R.B. v. Entwistle Manufacturing
Co., 120 F.2d 532, 536, (C.A. 4). In order, therefore, to
make effective the interdependent guarantees of Section 7,
I shall recommend further that the Respondent cease and
desist from infringing in any manner upon the rights
guaranteed in said section.
Upon the basis of the above findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discouraging membership in a labor organization
through discrimination in employment , and by interfering
with , restraining , and coercing employees in the exercise
of their rights under the Act, the Respondent has engaged
in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a)(3) and (1)
and Section 2(6) and (7) of the Act.
"I have not included the usual provision concerning offers of
reinstatement to discruninatees upon thew discharge from the Armed
Forces because I think that such provision would be unrealistic in view of
the ages of Charles and Donald Wilson.
HARDWICK STOVE CO. 551
RECOMMENDED ORDER
Upon the entire record in the case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend that the Respondent,
Hardwick Stove Company, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Molders
and Allied Workers Union, AFL-CIO, CLC, or in any
other labor organization of its employees, by suspending
or discharging any of its employees because of their union
or concerted activities, or in any other manner
discriminating in regard to their hire or tenure of
employment or any term or condition of employment.
(b) In any other manner , interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Charles Wilson, Jr., and Donald Wilson
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, and make each
of them whole, in the manner set forth in "The Remedy"
section of this Decision.
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in said
"Remedy" section.
(c) Post, in conspicuous places, at its plant, including
all places where notices to employees customarily are
posted, copies of the notice attached hereto as Appendix."
Copies of said notice, to be prepared by the Respondent
on forms furnished by the Regional Director for Region
10, shall, after being signed by the Respondent's
representative, be posted by it promptly and maintained
by it for at least 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced or
covered by any material.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith.':
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges independent violations of
Section 8(a)(1) of the Act.
Dated By
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT suspend or discharge any of our
employees because they join or engage in activities on
behalf of International Molders and Allied Workers
Union, AFL-CIO, CLC, or any other labor
organization.
WE WILL NOT violate any of the rights that you have
under the National Labor Relations Act to join a union
of your own choice and to engage in union activities, or
not to join a union and not to engage in such activities.
WE WILL offer Charles Wilson, Jr. and Donald
Wilson immediate and full reinstatement to their
former jobs, or equivalent ones, and pay them backpay
to cover the earnings they lost because we discharged
them.
All our employees are free to become or remain
members of International Molders and Allied Workers
Union, AFL-CIO, CLC, or any other labor organization.
HARDWICK STOVE
COMPANY
(Employer)
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall be
substituted for the words "a Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 730 Peachtree
Street, NE., Atlanta, Georgia 30308, Telephone
404-526-5741.