Harmon Industies, Inc.

National Labor Relations Board - Board Decisions

Oct 15, 1976

226 N.L.R.B. 432 (N.L.R.B. 1976)

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harmon Industries , Inc. and Dale E. Cox. Case 17-
CA-6753
October 15, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 6, 1976, Administrative Law Judge Nancy
M. Sherman issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting -brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified .2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge,jts modified
below, and hereby orders that the Respondent, Har-
mon Industries, Inc., Grain Valley, Missouri, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
herein modified:
i Although we agree with the Administrative Law Judge's finding that
Cox was not a supervisor within the meaning of Sec 2(11) of the Act, we do
not adopt her narrow definition of that section as encompassing only "the
supervisor vested with such genuine management prerogatives as the right
to hire or fire, discipline, or make effective recommendations with respect to
such action," citing N L R B v Bell Aerospace Company, Division of Textron,
Inc, 416 U S 267, 279-283 (1974) It is clear that the Supreme Court was
not defining the term "supervisor" but was simply quoting from an early
Senate Report on the Senate version of the bill in 1947
Sec. 2(11) reads as follows
The term "supervisor" means any individual having authority in the
interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment
2 In par 1(b) of her recommended Order, the Administrative Law Judge
uses the narrow cease-and-desist language, "like or related," rather than the
broad injunctive language, "in any other manner," the Board ordinarily
provides in cases involving serious 8(a)(3) discrimination conduct, such as
that found here See Springfield Dodge, Inc, 218 NLRB 1429 (1975) Ac-
cordingly, we shall modify the recommended Order to require Respondent
to cease and desist from in any other manner infringing upon employee
rights
I. In paragraph 1(b) of the recommended Order
substitute the words "In any other manner" for "In
any like or related manner,"
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United- States Government
After a hearing at which all parties had the opportu-
nity to present their, evidence, it has been decided
that we violated the law by discharging Dale E. Cox
because of his union activity. We have been ordered
to post this notice. We intend to carry out the order
of the Board and abide by the following:'
WE WILL NOT discharge or otherwise discrimi-
nate against any employee to discourage mem-
bership in Brotherhood of -Railroad Signalmen
or any other union.
WE WILL offer Dale E. Cox reinstatement to
his old job or, if that job no longer exists, to a
substantially equivalent job, and WE WILL make
him whole, with interest, for loss of pay resulting
from his discharge.
The National Labor Relations Act gives em-
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tivees of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from any such activities.
Our employees are free to exercise any or all of
these rights, including the right to join or assist
the Brotherhood of Railroad Signalmen or any
other union. Our employees are also free to re-
frain from any or all such activities, except to
the extent that union membership may be re-
quired by a collective-bargaining agreement as a
condition of continued employment as permit-
ted by the proviso to Section 8(a)(3) of the Act.
WE WILL NOT in any other manner- interfere
with, restrain, or coerce employees in the exer-
cise of these rights.
HARMON INDUSTRIES, INC.
226 NLRB No. 75
HARMON INDUSTRIES, INC. 433
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard at Kansas City, Kansas, on January
8 and 9, 1976, pursuant to a charge filed on September 19,
1975, and a complaint issued on November 17, 1975. The
question presented is whether Respondent Harmon Indus-
tries, Inc., violated Section 8(a)(1) and (3) of the Act by
discharging the Charging Party, Dale E. Cox, admittedly
because of his activities on behalf of the Brotherhood of
Railroad Signalmen (herein the Union), notwithstanding
Respondent's contention that Cox was a supervisor or a
managerial employee.
Upon the entire record,I including my observation of the
witnesses , and after due consideration of the briefs filed by
Respondent and by counsel for the General Counsel, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent maintains a facility in Grain Valley, Mis-
souri, where it manufactures and repairs railroad signal
equipment and other equipment and parts. Respondent an-
nually purchases goods and materials valued in excess of
$50,000 annually from points outside Missouri. I find that,
as Respondent concedes, it is engaged in commerce within
the meaning of the Act, and that exercise of jurisdiction
over its operations will effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. Cox's Discharge
Respondent does not recognize any union as the collec-
tive-bargaining representative of any of its employees.
Robert E. Harmon, who has been Respondent's president
since 1970, testified that to his knowledge Respondent has
never recognized a union as such representative.
About early August 1975, Cox telephoned Union Busi-
ness Representative Harwell in Mount Prospect, Illinois,
and asked him for information about the wage structure
and benefits called for by the union contract with electron-
ics firms and railroads. Cox made this telephone call by
dialing directly from a telephone in Respondent's Grain
Valley, Missouri, facility, about 500 miles from Mount
Prospect, and Respondent paid for the call. Harwell re-
plied that he could not give out this information over the
phone, but would be glad to discuss his union contract with
Cox if he gathered about 15 people to join in on the discus-
sion . Cox said that he would try to arrange the meeting.
Harwell replied that this would be fine.
Thereafter, Cox solicited 12 to 15 employees in the plant
to sign a petition indicating that they were interested in
finding out the wage and benefits provisions in the union
contract. He solicited some of these employees during his
own working hours and while they were working. He testi-
fied that he did not recall soliciting any employees more
than once, but that he may have done so. There is no-other
probative evidence about such alleged repeated solicita-
tions. About mid-August 1975, Cox telephoned Harwell,
again using Respondent's telephone, and said that Cox had
a group of employees who would like to discuss the union
contract with him. Harwell said that this was good, and
asked if they could arrange a convenient meeting time and
place. He and Cox agreed that Harwell would speak to all
of the employees on September 18 at a nearby motel.
While out of town on or about September 16 or 17,
Company President Harmon, who is also the chairman of
Respondent's board, received a telephone call from either
Production Supervisor James Maness, Plant ,Manager Da-
vid Eddy,2 or someone else that he had "substantial, reli-
able information" that Cox had been circulating a petition
to organize on behalf of a union. Harmon replied, "Wait
until [I] get back and we will look into the matter further."
Harmon testified that, until management's discharge con-
ference about September 17, his knowledge of Cox's union
activity was limited to what he was told during this tele-
phone call. Immediately after returning to Respondent's
facility on or about September 17, Harmon telephoned
Eddy, Tom Davis (Cox's immediate supervisor), and Oper-
ations Vice President Don Rentz, and asked them to come
to a conference to discuss the Dale Cox situation.3 At this
conference, Harmon said that he had heard that Cox had
been circulating a petition on behalf of a labor organiza-
tion, and asked each of the others his knowledge of the
situation. Davis and Eddy each said that he had been in-
formed this had been going on. Rentz said that he had
been out of town, but that he had heard the same thing
during the few hours since his return. Davis, Eddy, or
Rentz said that he had been told that one employee, whose
name was not mentioned during the conference, had been
approached by Cox three separate times. The persons pres-
ent at the conference discussed the question of whether
Cox was a supervisor and decided that he was. They con-
cluded that Respondent had to discharge him because, if it
did not, Respondent would be in violation of the Act. The
conference then broke up.
Thereafter, about noon on September 18, Cox was called
into the conference room where Harmon, Eddy, Davis,
and Rentz were present. Harmon said that he had heard
rumors that Cox had been in contact with the Union. Cox
said, "Not entirely true." Harmon asked whether Cox had
been talking with the Union. Cox said yes. Harmon then
opened a book and, read a statement that said that manage-
ment could not organize against themselves. Cox said that
he had never heard of that law. Harmon asked him wheth-
er he considered' himself a supervisor. Cox replied that he
had not before, but as of late, had considered, himself part
1 The unopposed motion of counsel for the General Counsel to correct 2 Respondent's answer admits the supervisory status of Harmon, Maness,
the record in certain respects is hereby granted The record is also corrected and Eddy
to show that witness Dale E Cox affirmed rather than being sworn 3 Respondent's answer admits Davis' supervisory status
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of management 4 Cox also said that he did not want to
cause any trouble, and that he could go back and stop the
union meeting if Respondent wanted him to. Harmon said
that because Cox was a supervisor Respondent had no al-
ternative under the Act but to discharge him. Harmon gave
Cox his paycheck, and asked him whether he had a plant
key. When Cox said that he did, Harmon told him to turn
it over to Davis .and to be out of the plant in 30 minutes.
Cox turned over the key and left.5
Harmon testified that the discharge decision "was a col-
lective decision by this group, but I would have to take
responsibility. Obviously the buck stops with me, and I
would take the responsibility for making the final deci-
sion." As to the reason for Cox's discharge, Harmon testi-
fied, "Well, as we understand the National Labor Rela-
tions Act, somebody that is a part of management is not
allowed to participate in organizational activities. It was
our determination at that time that he was a part of man-
agement and later by his own admission, so we determined
at that point that we had no recourse but to take the action
that we took." Harmon further testified that the foregoing
was "the only reason" for the discharge.
At the outset of the hearing, Respondent's counsel as-
serted that Cox violated an alleged no-solicitation rule "in
the sense that he was soliciting a petition for the Union
during-working time in working areas." Immediately, there-
after, Respondent's counsel moved to amend the answer so
as to allege as a defense that, assuming Cox were an em-
ployee rather than a supervisor, he "would have, nonethe-
less, been discharged as an employee protected by the Na-
tional Labor Relations Act in violation of the
no-solicitation, no-distribution rule of the respondent Har-
mon Industries, Inc." The motion was granted without ob-
jection. However, when I later asked Respondent's counsel
whether he contended that Cox was discharged for viola-
tion of a no-solicitation or no-distribution rule, counsel re-
plied no. Respondent produced no evidence that any such
rule existed.6 Harmon did not testify that he decided to
4 As set forth in detail infra, during the preceding week Supervisor Davis
(Cox's immediate superior) had been on vacation, and in his absence Cox
had attended some management meetings , initialed the timecards of Davis'
subordinates , and handled problems which arose in Davis ' departments
5 My findings as to the contents of the discharge interview are based on a
synthesis of the testimony of Cox and Harmon Cox was a remarkably
impressive witness, and I accept his testimony to the extent that it is incon-
sistent with Harmons
Harmon testified that he told Cox that Respondent had reliable informa-
tion that Cox was engaging in union activity during company time I discre-
dit Harmon's testimony in this respect Such testimony was not corroborat-
ed by Cox; Eddy, Davis, and Rentz failed to testify, and Harmon's detailed
accounts of his prior conversations about Cox contain no reference to any
information regarding the company time aspect of Cox's union activity
6 Company President Harmon testified that collections were sometimes
made at the plant for ill or bereaved employees , and that an annual collec-
tion was made to' buy a crippled employee a wheelchair as his old one wore
out Harmon testified that he was not sure when the donations were made,
and that "it could be during working time " When coupled with Harmon's
knowledge that these collections occurred, his ignorance about whether do-
nations were made during working hours renders unlikely the existence of
an enforced no-solicitation rule Cox's credible testimony establishes that
such solicitation 's, as well as betting pools and a solicitation for a birthday
gift to Supervisor Davis, went on during working hours , although Cox did
not know whether any member of management was aware of this activity
Cox also credibly testified that "quite often" during working time he talked
with employees about subjects unrelated to work , and that , on occasion, he
and repair department employees Davies and Chapman visited other de-
discharge Cox in whole or in part because of any breach of
any such rule, or because of the fact that part of Cox's
union activity took place during working hours.
B. Cox's Job Duties and Responsibilities
Cox was hired by Respondent about December 1971. He
was initially assigned to the carrier department, which tests
and repairs new railroad signaling equipment which has
dust been built by Respondent. His first job was to make
such repairs. Two years later, he was named senior-techni-
cian of the carrier department and was given a raise of $75
a month. In January or February 1975, Cox was transfer-
red to the repair department, which repairs faulty railroad
signaling equipment returned to Respondent by customers.
During the entire period here involved, Cox spent most of
his time physically making such repairs.
Respondent contends that in May 1975 Cox became a
supervisor over the employees in the repair department.
That month, the then plant manager, Roy Wilson called
together the four people, including Cox, who then worked
in the repair department; informed them that Cox was "in
charge" of that department; and asked the others to give
their cooperation to Cox. Wilson told Cox that Wilson was
putting him "in charge" of the department, told him that
he would be running it, told him to get the work out, and
asked him to make the department more efficient. There is
no evidence that Cox, who had last received a wage in-
crease in 1973, received an increase on this May 1975 occa-
sion. After Wilson made this announcement, repair depart-
ment employees Hugh Davies and Dorothy Chapman
probably came to Cox with work-related problems. Repair
department employee Gregg Sullivan, who was hired after
this meeting, also came to Cox about work problems.
The repair department occupies a space of about 15 by
25 feet. It is bounded on one side by a wall, on a second
side by shelves and an environmental chamber, on the
third side by test benches, and on the fourth side by a
hallway big enough for a forklift truck to drive down be-
tween the repair department and a cleanup line in another
department. During the period here involved, the admitted
employees in this department were Davies, Chapman,
Mary Ficht, and (between June and mid-August) Sullivan.
The repair department received 300 to 500 units a
month. When a unit came into the department, Ficht
would give it a repair tag number based on the order of its
receipt, and then set it on a shelf. Most of the repair work
was performed by one of the technicians-that is, Davies
(who, however, was still in training), Sullivan, or Cox.
However, Chapman could do some repair work.- Ficht
cleaned circuit boards, but did not do any repair work.5
The repair work on any particular job was ordinarily
handled by a single worker, who himself had to determine
what the problem was and, inferentially, what test equip-
ment would have to be used to repair the module. A mod-
ule might take as little as an hour or as long as 5 hours to
partments without permission-although Cox sometimes went after the
others and fetched them back
r Occasionally , people from other departments came into the repair de-
partment to use its test equipment or enviornmental chamber or to get parts
8 She also did some bookkeeping work
HARMON'INDUSTRIES, INC.
repair, depending on what kind it was and what was wrong
with it. The initial determination as to whether a particular
module was repairable was made by the person who
worked on it. Cox made this -determination with respect to
the equipment he worked on, but not with respect to other
equipment.
All equipment which came into the department, was
checked to see if it needed updating and modification-
that is, adjustment of still-functioning components which
past experience showed might fail. Modifications were usu-
ally done by-Chapman, but if she had no time, Cox, Da-
vies, and (inferentially) Sullivan would themselves do the
modifications on the units -which they had repaired. Ficht
also did modifications. As to each unit, a decision had to
be made whether the unit was modifiable or retunable. The
former decision and, inferentially, the latter decision, were
initially made by the person who was to perform the opera-
tion. -
When anyone in the repair department made an initial
determination that a particular-unit could not be repaired,
modified, or (inferentially) retuned, Cox took the equip-
ment to Eddy or Davis and asked what to do with it.
After a person had finished repairing a particular unit,
he would put it on a; shelf to be cleaned by Ficht, and
would go to- the to-be-repaired, shelves for another unit to
repair. The order in which units were repaired was basical-
ly determined by the repair tag-numbers. However, I infer
that a technician would sometimes skip the oldestjobs if he
felt that he could not do them or that others could do them
better .9 Moreover, jobs were performed out of numerical
sequence when the customer .brought the, unit in himself
rather than following the usual practice- of mailing it in. In
an effort to complete the repair while the-customer was still
there, Cox would take someone off the job he was doing in
order to repair the unit brought in by the waiting customer.
In order to finish such a job faster, Cox would sometimes
assist the person-who was performing the job, or ask anoth-
er person for help.1°
Every Friday, the repair department would receive from
the repair office a list of uncompleted jobs which were
more than 5 days old. This list was always a little out of
date, and was brought up to date in the repair department
by -using the records maintained in that department. Cox
testified that he sometimes did this himself, Chapman oc-
casionally-did this, and, possibly, he occasionally assigned
this task to Ficht. He then-,Answered,, "Yes," to the inquiry
9 Thus, Cox testified that upon arriving in the morning, "I turned on
my test equipment and checked the shelf for the oldest repair tag for the
type of equipment that I worked on If at any time there was no equip-
ment [on the to-be-repaired shelves] that I was familiar with, I would take
equipment from a shelf that needed repair and set up to do the testing of it
Normally I would ask-Hugh Davies to give me assistance on it if I was not
familiar with it," In addition, Cox testified that he and-Davies, but not
Sullivan, sometimes repaired digital motion detectors, and that others in the
department were more familiar than Cox with particular kinds of equipment
(infra, fn. 10) Cox also testified that units were sometimes moved out of
repair tag sequence on the to-be-repaired shelves because "we would sort
through the equipment, that I would work on or that Hugh Davies would
work on " Also, Cox testified that Davies was still being trained as a techni-
cian and, in effect, that Chapman's repair abilities were limited
1s "I would assist, or if it was equipment that I was unfamiliar with, they
would-assist me"-'
435
of Respondent's counsel, "It really depended on who was
busy and who wasn't as to what work you assigned individ-
uals in your department?" Respondent's policy, not
claimed to be set by Cox, called for special priority to units
on this 5-day list." On occasion Cox would conclude that
overtime was needed in order to get some of these units
out. He then told Eddy or Davis that the department was
getting behind in the repairs and overtime was needed. If
Eddy or Davis deemed the overtime necessary, he would
schedule it. -On one occasion, Cox asked Plant Manager
Eddy that the overtime work be scheduled on a Sunday
because Cox, for religious reasons, does not work on Satur-
days. The overtime for him, Chapman, and Davies was in
fact scheduled for a Sunday. Cox's presence aside, no man-
agement people were there that day.
After a unit was repaired, it went to the quality assur-
ance department, which was headed by Ted-Aldrich. When
that department was responsible for Respondent's failure
to return the unit to the customer within 5 days as called
for by Respondent's policy, Cox made this lag known to
Aldrich and others. On -occasions where it transpired that
the repair department- and the quality assurance depart-
ment were testing equipment under different-conditions,
Cox obtained the proper specifications from the engineer-
ing department and showed them to -Aldrich. Cox also
went to the, engineering department to get prints on equip-
ment, specifications on equipment that had been lost or
mislaid, and special specifications for certain modifica-
tions.
Cox occasionally received visits and telephone calls from
the field service personnel, who worked under sales, about
the repair of their equipment to the customer's satisfaction.
Repair department employees Davies and Chapman also
sometimes talked with field personnel.
After telling Cox that he was "in charge" of the repair
department, then Plant Manager Wilson made some sug-
gestions to Cox about rearranging that department's physi-
cal layout. "Through the suggestions made by" Wilson,
Cox moved some tables, added shelves, and rearranged the
equipment. He also, changed the logging, system in that he
prepared a new repair logging form by taking a sheet of
paper 8 inches by l I inches, drawing lines across it so that
20 repair tags would fit on 1 page, xeroxing copies, punch-
ing them, and putting them in the repair log book.12 Cox
also rearranged the repair tag form. After -he rearranged
the form, it contained Respondent's name, address, and
logo; squares to be checked to show whether, the module
had been returned for repair or for retuning; and spaces
for the insertion of the repair tag number, the customer's
name and address, the date repaired, the date received, the
number of the module, its serial number, its date of pro-
duction, its frequency, its retune frequency, the corrective
action taken, the cost of parts, the cost of labor, the ship-
ping date, the identity of the person who made the final
These jobs would, of course, be the oldest in numerical sequence
However, in some cases , they had not been worked on in turn because they
had been shifted out of numerical sequence on the to-be-repaired shelf In
other cases , they were not being worked on, or were unfinished, because
they had been returned by the quality assurance department as inade-
quately repaired, or because jobs with newer repair numbers had been phys-
ically brought in by the customer
12 The record fails to show what the previous logging form was like.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
check , and the amount due .13 Cox had Beverly Coble, an
employee in the repair office, type up the original form.
Cox attended a daily management meeting to discuss rede-
signing this form . In addition, Cox drafted a form letter to
be sent to customers to tell them that the trouble symptoms
which they had reported in the equipment they had sent in
could not be duplicated in the plant. When no trouble was
found , Cox signed this letter and returned it to the custom-
er.
Around mid-July, repair department employee Hugh
Davies came to Cox to discuss a jury duty problem. There
is no evidence about what that discussion was. On or about
July 28, Cox-asked repair department employee Chapman
to prepare a memorandum to the personnel department
regarding Davies' jury duty, status. Chapman prepared the
following handwritten memorandum in pencil : "As of to-
day Hugh is on Jury Duty (Jackson County)." The memo-
randum names, Cox as the sender , and bears his initials.
In late July 1975, Cox went to Plant Manager Eddy (who
at that time was Cox's immediate superior), discussed with
Eddy some problems in the repair department , and said
that Cox needed more authority . At that time, Supervisor
Davis (whose office was on the second, floor), headed the
voltmeter department which was also on the second floor,
and the carrier department , which, like the repair depart-
ment, was on the first floor.' On August 11, Cox and Davis
met with Eddy in-his office. Eddy said that the problems of
the repair department would possibly be resolved by the
naming of Cox as leadman and Davis as "supervisor," with
Cox reporting to Davis, and Davis, directly, to Eddy.14 That
same day,_ Davis gave Cox the following memorandum,
from and initialed by Eddy:
MEMO TO: All Department Heads
SUBJECT: Repair Department
Effective immediately Tom Davis will assume Su-
pervisory Responsibility of the Repair Department.
Dale Cox has accepted the position of Lead' Man
for the Repair Department..
Your Congratulations and Cooperation to both will
be greatly appreciated.,
This increase in Davis' authority meant that he supervised
about 18 hourly paid employeesa5 Eddy further told Cox
that Eddy was making him leadman of the repair depart-
ment and told him that he was in charge and had the au-
thority to run it , but Cox was never told what his duties,
responsibilities , and authority would be as a leadman. In
addition , Eddy told him that he would receive a $75-
per-month increase, to $832 a month, because he was being
made a leadman "and more or less because it was the peri-
od of time that [he] was due a raise." Cox was a technician,
and he testified that at that time he 'was the only salaried
13 The record fails to show what the previous form was like
14 Cox testified that he had felt someone needed more authority in the
repair department, and that after Davis was put over Cox "[T]he problems
were transferred from me to Tom Davis "
15 My finding as to the number of hourly paid employees under Davis is
based on the number of timecards initialed by Cox during the week ending
September 14, 1975 , when Davis was on vacation and Cox initialed the
cards Davis would otherwise have initialed The plant employs about 300
people
person in the department, although all the technicians per-
forming Cox's job in other departments were also salaried.
Cox further testified that-Davies (a technician in training)
was at that time receiving about $3.30 an hour (that is,
about $571 amonth for 4- 1/3 weeks of 40 hours each). Cox
credibly testified that he did not know the wage scale of
anyone else in the department, including technician -Sulli-
van. The record fails to show what they-were paid.
After Eddy put Cox under Davis, Davis told Cox that
Davis was looking to Cox to control the repair department,
that Cox was in charge of it, and that he was going to be
responsible for it. Also, Davis told Cox to call the repair
department personnel to Davis' office, informed them that
Cox was in charge of and would be running the depart-
ment , and told them to "come to" Cox.
About early August 1975, Cox told employee Davies
that Cox would try to get him transferred from an hourly
to a salaried basis. Then, Cox made such a recommenda-
tion to Supervisors Davis and Eddy, citing as the reason
that all the other technicians performing Davies' particular
job were on salary. Davis ,replied that'he was aware of the
situation, that he had already, put in a request for such a
change, but that Cox should say nothing to Davies because
Davis did not know whether the change would go through.
The change did go through, and in effect gave Davies a
raise.
When a repair department employee ran out of work, he
would ask Cox for work. If work was available in the repair
department, Cox would say so. Otherwise , Cox would go to
a department head or a' leadman-"whichever one was
handy or that [Cox] saw, at the time"-and ask him-wheth-
er he had work for the idle repair department employee. If
the reply- was "yes," the employee would work there until
the repair department again had work for him. After Cox
became leadman, the repair department ' occasionally' had
no work for Davies' or . Chapman. ' Cox then- brought the
problem to the attention of Davis; his own supervisor. Da-
vis did not testify, and Cox could not, recall what Davis
said on these occasions : Possibly without first mentioning
the problem to Davis, or Eddy, Cox also approached Pro-
duction Supervisor Maness and; perhaps, certain leadmen
and asked whether they could use the idle repair depart-
ment employees. Members of 'management consulted by
Cox told him to check with other members of management
to see if they had work for such ' employees. When thereby
advised that work was available in anotheri department,
Cox assigned the idle employee to work there.
For an undisclosed period of time before Cox became
leadman , an unused typewriter had been standing-in the
quality assurance department , headed by Aldrich, and a
spare desk had been standing in another, department, prob-
ably the one headed by Production Supervisor Maness. Af-
ter becoming leadman , Cox asked Plant Manager Eddy
and the heads of the two departments with this equipment
whether the repair department could have it. This equip-
ment was transferred ] to the repair department for use in
filling out repair tags.
As the leadman in the department, Cox handled custom-
ers' telephone calls, visits; and correspondence about the
problems customers were having with the equipment. He
extensively used the telephone in the front office. Others in
HARMON INDUSTRIES, INC.
the repair department could not use that telephone without
permission . He may have made as many as 10 long-dis-
tance calls on that telephone which were charged to Re-
spondent.
On August 4, 1975, employee Sullivan sent a memoran-
dum to Cox, Plant Manager Eddy, and Personnel Manager
Betty House that he was quitting on August 15 to return to
school . Sullivan also gave this message to Cox orally. Dur-
ing Sullivan 's last week with Respondent , Cox felt that in a
few instances Sullivan was not putting forth his best effort
to repair the equipment. Cox testified, "There were in-
stances when there was work to be done and he was play-
ing around , so to speak, and I asked him to do the work.
He more or less agreed or disagreed , but the work got
done." After Sullivan quit, Cox told Davis that Cox did not
want Sullivan rehired back in the repair department. The
record fails to show Davis' reply, if any, or whether any
entry was made in Sullivan 's personnel file. There is no
evidence that Sullivan ever again applied to Respondent
for a job.16
Between August 4 and 14, Cox recommended to Plant
Manager Eddy that Respondent obtain a replacement for
Sullivan. On August 14, Respondent advertised for a tech-
nician . Between August 15 and 19 , about eight applicants
were individually interviewed for 15 to 30 minutes each.
Davis and Cox were both present during all these inter-
views. Davis told the applicants that the job was for repair
of railroad signaling equipment, described the purpose of
and standards for such equipment, and asked each appli-
cant about his work experience and training. Cox's ques-
tions-were limited to the applicant's experience with digital
circuitry, on which Davis had about as much experience as
Cox. At the conclusion of all these interviews, Davis asked
Cox who he thought would be best suited for the job. Davis
said that he agreed with Cox's answer. About a week later,
Davis,told Cox that "the decision had been made by higher
management that the position would not be filled at this
time." There is no direct evidence about the extent of Da-
vis' authority with respect to hire.
In mid-August 1975, Supervisor Davis asked Cox to
make and give him a list of any equipment needed in the
repairdepartment, including catalog page numbers and all
pertinent information , so Davis could put these items on
the capital budget which was coming due. Cox said that he
would, and that the department needed a new oscilloscope,
power supply, and benches. As Cox knew when recom-
mending the purchase ; the oscilloscope would have cost
about $2,200 and the power supply about $600. The record
fails to show whether this equipment was ever listed on the
capital budget or whether it was in fact bought. The oscil-
loscope and the benches had been on the previous year's
budget but had not been bought.
Supervisor Davis was on vacation during the week end-
ing September 14. On 4 or 5 days during this week, Cox
attended staff meetings which Eddy held every morning at
9:30, and which Davis attended when he was at work. The
discussion ran from customers ' orders to part shortages
and equipment that had to be got out in a hurry. Not all
16 At the time of the hearing , the 1975-76 school term was still in progress.
Sullivan had previously worked for Respondent between school terms
437
members of management attended these meetings . The rec-
ord fails to show who else attended them. On three or four
other occasions in 1975, Cox attended these daily manage-
ment meetings . 17 While Davis was on vacation , Cox took
care of any problems that arose in Davis' departments, but
did not run these departments. At the end of Davis' vaca-
tion week, Cox initialed the timecards of Davis' subordi-
nates (including repair department personnel), which Da-
vis usually initialed.
At least after becoming leadman, Cox was the only per-
son in the repair departmeet who did not punch a time-
card. At least after becoming leadman, Cox initialed the
timecards of the employees in the repair department when
they came in late, so that they would be paid for the time
they started rather than having to wait for the next incre-
ment hour.
In early July 1975, repair department employee Dorothy
Chapman told Cox that she would like to take a vacation
between September 22 and 26. He replied that he would
have to check to see if this request was all right with the
supervisor . On August 26, she prepared a written request
for this vacation period, directed to Cox and to Tom Davis,
who had become Cox's supervisor on August 11. She gave
this document to Cox, who gave it to Davis and said that
this was the period of time Chapman would like to have.
Davis read the memorandum, said that the requested vaca-
tion would be all right, and wrote "OK" with his initials on
the memorandum. Cox then told Chapman that her vaca-
tion had been approved.
On an occasion between August 11 and 31, 1975 (see
infra, fn. 18), repair department employee Ficht asked Cox
if she could leave work early for personal business. Cox
replied that he would check on it. Cox then went to Davis
and told him that Ficht needed to leave work early for
personal business. Davis said that it was all right for her to
leave as long as she had 40 hours on her timecard. Cox
then told Ficht that it was all right for her to leave as long
as she put in her 40 hours that week. On another occasion
between August 11, and September 18, repair department
employee Davies told Cox that Davies needed to leave
work early. Cox replied that he would check with the su-
pervisor. Cox went to Supervisor Davis and told him that
employee Davies needed to leave work early for personal
business . Davis said that this was all right as long as Davies
had 40 hours on his timecard, that he would not be docked
any time . Cox then returned to Davies and told him that it
was all right as long as he had 40 hours on his timecard.ls
Cox could not recall any other conversations with any of
the employees about a need to leave early, or that any
employee on any occasion talked with him about the
employee's not being able to come to work, on any other
day. Nor is there any evidence that such conversations ever
took place.
The following events occurred sometime between Au-
17 As previously noted, on one of these occasions the meetings discussed
the repair tags redesigned by Cox.
18 Davis became Cox's supervisor on August 11 Cox testified that the
Ficht incident occurred sometime in August Cox testified that the Davies
incident occurred in July 1975. However , Supervisor Davis failed to testify,
and Cox's testimony about the substance of the Davies incident is undemed.
I conclude that he erred about the date of the Davies incident.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gust 11 and September 19 (infra, fn. 19). Management de-
cided that an additional supply of repair forms was needed.
Cox told Davis that the machine which reproduced this
form was used by another department throughout the regu-
lar workweek but was available on a weekend. Davis asked
Cox to ask repair department employee Ficht to come in
on Saturday and run some copies. Ficht did so. Cox did
not adjust her timecard to ,reflect her Saturday work, but
he told Supervisor Davis about it. She was paid -for this
work, inferentially at overtime rates.19 On previous occa-
sions after May 1975, but the date of which is not other-
wise shown by the record, Cox had asked Ficht to run off
copies of such forms and she had done so. Ficht had al-
ready been trained to operate the duplicating machine.
There is no evidence as to whether anyone else in the re-
pair department knew how to operate it.
As a leadman in the repair department, Cox was free to
go anywhere in the building without seeking permission.
He went to the front office occasionally, and also visited
the other departments as he chose. Repair department em-
ployees Davis and Chapman also visited other departments
without asking permisssion.. Occasionally, Cox went to
them and got them back into the repair department,20
On a date not shown by the record, Cox got some equip-
ment from the carrier department, and put it on a table in
that department so it could be photographed for Respon-
dent's annual report. Also on a date not shown by the
record, Cox set up a digital motion detector for viewing by
a tour of students from a nearby high school, Cox also
briefed the students on what happened in the repair de-
partment.
On a date "sometime back," not otherwise shown in the
record, Cox attended a supervisory training program, paid
for by Respondent, which was also attended by Davis and
Maness, both of, whom were admittedly supervisors in
1975.
It is undenied that no member of management or super-
vision at anytime prior to the date of Cox's discharge ever
told him that he, had the authority to hire, fire, lay off,
suspend, or recall from layoff any employee, or effectively
to recommend that such be done. Cox testified that at no
time while he was in the repair department did he ever hire
any employee, or recommend the hire of any person who
was thereafter hired, or fire any employee, or recommend
that any employee be fired, or suspend or lay off any em-
19 The foregoing paragraph is based on Cox's undenied testimony Davis
did not testify Cox was unable to estimate the date of this incident Respon-
dent produced timecards establishing that Davis was on vacation during the
week ending September 14 and that Ficht worked on Saturday, September
13. However, Cox did not testify that his conversations with Davis and
Ficht occurred during the week she performed this work Moreover, Re-
spondent failed to produce Ficht's timecards for the remaining period be-
tween the date Davis became Cox's supervisor (August 11) and Cox's Sep-
tember 18 discharge Nor does the evidence otherwise exclude the
possibility that Ficht performed this job assignment on a Saturday other
than September 13 Moreover, when Respondent's counsel suggested to Cox
that Davis was on vacation when (according to Cox's initial testimony) he
assertedly talked to Davis about the matter, Cox testified that he may have
had this conversation with Plant Manager Eddy instead Eddy did not testi-
fy. I accept Cox's uncontradicted and unimpeached testimony as to this
incident -
20 It is unclear from the record whether this paragraph also accurately
describes Cox's activities before he became leadman
ployee, or recommend that,any_employee be suspended or
laid off, or recall any employee from layoff, or recommend
that any employee be recalled from layoff, or discipline
any employee, or recommend that any employee be disci-
plined, or participate in the processing of any grievance
filed by any employee. Cox's testimony in this respect is
undenied, except that Respondent contends that Cox disci-
plined employee Sullivan (a, contention rejected for the rea-
sons set forth infra, sec. II,C, l,a(6) ), and that Cox adjusted
grievances-relying, in the latter connection, on testimony
that repair department employees came to him with "work
problems" -or "work-related problems." -However; -there is
no evidence that these problems amounted to grievances
rather than, for example, problems about how to repair a
particular module. I credit the foregoing testimony by Cox
about his failure to exercise the specified supervisory pow-
ers.
C. Analysis and Conclusions
1. Whether Cox occupied employee status
a. Whether Cox was a supervisor within the meaning, of the
Act.
It is undisputed that Cox spent most of his time perform-
mg repair work of the same type performed by other repair
department personnel whose employee status is unchal-
lenged. In contending that Cox was at all material times a
supervisor, within the meaning of Section 2(11) of the Act,
and hence outside the protection of Section 7, Respondent
relies in part on the evidence that management told him
that he was "in charge" and in "control" of, was-"responsi-
ble" for, and would be "running," the repair department,
and that he was to get the work out. However, Section
2(11)'s definition of the term "supervisor" does not extend
to "strawbosses, leadmen, set-up men and other minor su-
pervisory employees." Rather, Section 2(11) encompasses
only "the supervisor vested with genuine management pre-
rogatives as the right to hire or fire, discipline, or make
effective recommendations with respect to such action."
N.L.R.B. v. Bell Aerospace Company, Division of Textron,
Inc., 416 U.S. 267, 279-283 (1974). See also Howard John-
son, Company, 174 NLRB 1217, 1221-22 (1969). Moreover,
when giving Cox a raise and the title of "leadman" for the
repair department in August 1975, Respondent concomi-
tantly announced that Davis "will assume Supervisory Re-
sponsibility of the Repair Department."
Furthermore, it is uncontradicted that no member of
management ever told Cox that he had the authority to
hire, fire, lay off, suspend, or recall from layoff any em-
ployee, or effectively to recommend that such be done. Nor
is there any testimony by Cox's superiors or any documen-
tary evidence (such as, for example, a job description), re-
garding Cox's powers. In short, there is no evidence that
Cox possessed any supervisory authority which he failed to
exercise. Moreover, at no time while Cox was in the repair
department did he ever hire any employee, or recommend
the hire of any person who was thereafter hired, fire any
employee, recommend that any employee be fired, sus-
pend, or lay off any employee, non did he recommend that
HARMON INDUSTRIES, INC. 439
any employee be suspended or laid off, or recall any em-
ployee from layoff, or recommend that any employee be
recalled from layoff, or recommend that any employee be
disciplined, or participate in the processing of any gnev-
ance filed by any employee. Accordingly, the issue in this
case is whether Cox in fact exercised any of the other pow-
ers set forth in Section 2(1 1)'s definition of the term "su-
pervisor." For the reasons set forth below, I conclude that
he did not,
1. Respondent contends that Cox made an effective rec-
ommendation in connection with the interviews for em-
ployee Sullivan's replacement. However, Respondent never
complied with Cox's recommendation that it fill the vacan-
cy left by Sullivan's resignation, Supervisor Davis did not
testify about the weight (if any) he gave to Cox's recom-
mendation about whom to hire, and there is no evidence
about the weight (if any) Davis' superiors gave to Davis'
recommendation, let alone Cox's, about whom to hire.21 I
conclude that Cox's conduct in connection with these job
interviews did not constitute effective recommendation
with respect to hire, within the meaning of Section 2(11).
Grey Nuns of the Sacred Heart, 221 NLRB 1215, 1217
(1975) (Gary Eller); Howard Johnson, supra, 174 NLRB at
1221, fn. 15; Schott Metal Products Company, 129 NLRB
1233, 1234-35 (1961).
2. Respondent contends that Cox effectively recom-
mended to Supervisor Davis, Cox's immediate superior,
that Sullivan not be rehired back into the repair depart-
ment. However, there is no evidence that Sullivan ever
asked Respondent to rehire him; nor is there evidence that
Davis, who did not testify, arranged for any responsive
entries in Sullivan's personnel folder, relayed Cox's com-
ments to other members of management, or even gave in-
ternal weight to Cox's statement.
3. Respondent also contends that Cox responsibly as-
signed work within his department, in the exercise of inde-
pendent.judgment. The credited evidence on which Re-
spondent relies consists of (a) evidence that where a
customer had brought in the defective unit, in order to
complete the repair while the customer was still there, Cox
would transfer an employee or employees to that job from
the job they had been doing; (b) Cox's -testimony that
"[W]e would try to expedite" the jobs whose pendency ex-
ceeded Respondent's 5-day policy and, in this connection,
he sometimes had someone else in the department check
the department list against the list submitted by the repair
office; (c) the evidence that Cox sometimes successfully
asked employee Ficht to run off copies of repair forms on
a machine outside the department; and (d) the evidence
that on one occasion Cox instructed repair department em-
ployee Dorothy Chapman to prepare a -one-sentence,
handwritten memorandum to the personnel department
stating over his initials that employee Davies was on jury
duty that day. I do not regard any of Cox's functions in
this respect as, involving the use of independent judgment.
I reach the same conclusion with respect to Cox's rear-
rangement of the repair tag and logging. forms and the
drafting of a form letter to be sent to the customer where
21 Indeed, there is no evidence that Davis recommended to his own supe-
riors that Respondent should hire any particular person
the shop could not duplicate his reported trouble with the
unit. In any event, Cox's action in these respects, and his
rearrangement of the department's physical layout, in-
volves equipment rather than personnel and, accordingly,
are not supervisory even if independent judgment were in-
volved. The Baltimore Transit Company, 92 NLRB 1260,
1264 (1951). Moreover, even if such functions were super-
visory, their exercise was too sporadic to render Cox a su-
pervisor. Westinghouse Broadcasting Company, Inc. (WBZ-
TV), 215 NLRB 123 (1974).
4. Respondent contends that Cox exercised independent
authority with respect to overtime work. However, the evi-
dence shows that all such overtime work was scheduled by
Cox's superior.
5. Respondent contends that Cox's role in the tempo-
rary transfer of repair department employees to jobs out-
side the department involved the use of independent judg-
ment. However, the evidence shows that Cox exercised no
independent judgment in determining which departments
they would be transferred to or what jobs they would per-
form there. Rather, Cox simply checked with the depart-
ment heads or leadmen (or, perhaps, otherwise unidenti-
fied members of management), without exercising any
independent judgment about which ones to check with or
in what order, and transferred idle repair department em-
ployees to the department which first expressed a need for
the employee's services. Moreover, the record indicates
that Cox made arrangements for such transfers only when
there was no repair department work for the transferee to
do, and rescinded the transfer when the repair department
again had work for the transferee.
6. Respondent contends that Cox disciplined employee
Sullivan in a manner involving the exercise of independent
judgment. Respondent relies on an undisclosed number of
instances where Sullivan, who was then working out his
notice, "when there was work to be done ... was playing
around . . . and [Cox] asked him to do the work. He more
or less agreed or disagreed, but the work got done." I re-
gard this incident as merely evincing Cox's powers to act as
a "leadman" or "strawboss." In this connection, I note the
absence of evidence that these incidents led to any entries
in Sullivan's personnel file.
7. Respondent contends that Cox effectively recom-
mended a "monetary promotion" for Davies. However, the
evidence shows that before Cox recommended to Supervi-
sor Davis that employee Davies be changed from an hourly
to a salaried basis (and thereby receive a wage increase)
Davis had already made this recommendation to his own
superior.
8. Respondent contends that Cox had and exercised the
authority to grant employees time off. The Company relies
upon the incidents regarding Chapman's vacation schedule
and Davies jury duty. However, neither of these incidents
involved the exercise of independent judgment by Cox. As
to Chapman's vacation, Cox told her that he would have to
check to see if her request for a particular vacation period
was all right with the supervisor, did in fact refer the re-
quest to Supervisor Davis without (so far as the record
shows) expressing or being asked any opinion about
whether the request should be granted, and did not tell
Chapman that her vacation had been approved until after
440
V
DECISIONS OF NATIONAL.LABOR RELATIONS BOARD
Davis had approved it. Although Cox did. discuss Davies'
jury duty problem with him, there is' no evidence about
what was said; and Cox's only other connection with the
matter was to ask Chapman to prepare a memorandum to
the personnel department stating over-his initials that Da-
vies was on jury duty "As of Today." 22
b. Whether Cox was a managerial employee
Company counsel's opening statement indicates a con-
tention that Cox was a managerial employee because he
talked and corresponded with customers about the prob-
lems presented by their repair jobs, devised new repair tag
and logging forms and a new form letter to be sent to
customers, and attended some of the daily management
meetings-more specifically, one session discussing , his
rearrangement of the repair tags, two or three more for
undisclosed reasons, and four or five sessions (during Su-
pervisor Davis' vacation) when Plant Manager Eddy and
other unidentified personnel discussed customers' orders,
part shortages, and equipment that had to be got out in a
hurry.23 I do not regard the evidence thus specifically relied
upon as establishing that Cox was a managerial employee;
nor does other evidence point to such a conclusion. See,
generally, Bell Aerospace, supra, 416 U.S. at 275-290; Gen-
eral Dynamics Corporation, Convair Aerospace Division, San
Diego Operations, 213 NLRB,851, 857 (1974); American
Federation of Labor and Congress of Industrial Organiza-
tions 120 NLRB 969, 973-974 (1958). -
c. Conclusion
For the reasons stated, I conclude that Cox was at all
material times an employee within the meaning of Section
2(3) of the Act, and'protected by Section 7.
2. Whether Cox's discharge was unlawful
Company President Harmon admitted that Cox was dis-
charged because of his activities on behalf of the Union.
Accordingly , my conclusion that Cox occupied employee
status when discharged compels the further conclusion that
his discharge violated Section 8(a)(3) and (1) of the Act.
Contrary to the suggestion in Respondent 's brief, Respon-
dent's belief that he may have approached one employee-,
three separate times-even though this belief was not
shown to be erroneous 24 -does not constitute a defense to
his discharge . Such action does not amount to misconduct
22
Respondent also relies on the fact that Sullivan orally told Cox he was
quitting, and that Sullivan's August.4 written resignation was directed to
Cox as well as to Plant Manager Eddy and Personnel Manager House. I am
unable to perceive the relevance of this evidence to Respondent's conten-
tion that the repair department employees "coordinated their time off
through" Cox Nor does such evidence indicate that Cox was "the depart-
ment head," a contention difficult to square with Eddy's August 1 I memo-
randum to "All Department Heads" stating that Cox was not the depart-
ment "Lead Man."
23
Respondent's brief renews the managerial employee contention, but
does not particularize in this connection the evidence relied on.
24 See Dallas General Drivers, Warehousemen and Helpers, Local Union No
745, IBT [Farmers Co-operative Gin Association] v N.L R B, 389 F.2d 553,
554-555, fn 5 (C.A D C., 1968), and cases cited therein.
withdrawing Cox's union activity from the-Act's protection
and, in any event, the record shows that Respondent would
have discharged Cox for his union activity even absent a
belief that such repeated contacts occurred. -
I regard as immaterial the fact that some of Cox's union
activity occurred during working hours. There is no evi-
dence "that Respondent had a rule forbidding such activi-
ties during working hours, or that such activities during
working hours appreciably interfered with the work of Cox
or his fellow employees; nor is there any credible evidence
that, when discharging him, Respondent knew or suspected
that such activities occurred partly during working hours.
See Greentree Electronics Corp. 176 NLRB 919 (1969),
enfd. 432 F.2d 1011 (C.A. 9, 1970).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Dale E. Cox was not at any relevant time a supervisor
within the meaning of Section 2(11) of the Act.
4. Dale E. Cox was not at any relevant time a manageri-
al employee. -
5. At all relevant times, Dale E. Cox was an employee
within°the meaning of Section 2(3) of the Act.
6. On September 18, 1975, Respondent discharged Dale
E. Cox because of his protected union activity, in violation
of Section 8(a)(3) and (1) of the Act.
7. This unfair labor practice affects commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent had violated the Act in
certain respects, I shall -recommend that it be required to
cease -and desist therefrom. Because the unfair labor prac-
tice found consists of the discharge of an employee for his
union activity, a broad order would normally be called for
by Board precedent. SKRL Die Casting, Inc., 222 NLRB
85 (1976); Brom Machine and Foundry Co., 222 NLRB 74
(1976). However, as to the breadth of cease-and-desist or-
ders, -the underlying determinant is whether the unfair la-
bor practices committed by the Respondent are potentially
related to other ' unfair labor practices proscribed by the
Act, and whether' the danger of their commission in the
future is to be anticipated from the Respondent's conduct
in the past. Highland House Nursing Center, Inc., 222
NLRB 134, fn. 2 (1976). In the instant case , Respondent
discharged Cox in the belief (which was expressed to him
aLthe' time, and whose sincerity I-see no reason to doubt)
that he was a supervisor who could not properly 'engage in
union organizing activity.25 Under these circumstances, I
25 The discharge decision was made by laymen and without consulting an
attorney I need not and do not consider the correctness of their view that
the Act required Cox's discharge assuming him to be a supervisor . See Sec.
14(a) of the Act, Jerstedt Lumber Company, Inc., 209 NLRB 662, fn 2
(1974); N L R B v Vapor Boast Manufacturing Company, 287 F.2d 402, 405
(C A 7, 1961), cert denied 368 U S 823. Cf N L R B v Burnup and Sims,
Inc., 379 U S 21 (1964), N L R B v. J Weingarten, Inc, 420 U S 251, 264-
267(1975)
HARMON INDUSTRIES, INC.
do not regard his discharge as carrying with it the same
potentiality of future unfair labor practices as does the dis-
criminatory discharge of someone whom the. employer re-
garded as a rank-and-file employee. Accordingly, I shall
recommend that Respondent merely be restrained from
like or related conduct.
I shall also recommend that Respondent be required to
offer Cox immediate reinstatement to the job from which
he was unlawfully discharged, or, in the event such job no
longer exists, a substantially equivalent job, without preju-
dice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him by pay-
ment to him of a sum of money equal to that which he
would have earned, but for the discrimination against him,
from the date of his discharge to the date of a valid offer of
reinstatement, less his net earnings during this period, to be
computed in the manner described in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest as described
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In
addition, I shall recommend that Respondent be required
to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER26
Respondent Harmon Industries, Inc., Grain Valley, Mis-
souri, its officers, agents, successors, and assigns, shall:
1. Cease and-desist from:
(a) Discouraging membership in Brotherhood of Rail-
26 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
441
road Signalmen, or- any other labor organization, by dis-
charging employees, or otherwise discriminating in any
manner in regard to their hire or tenure of employment or
any term or condition of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Dale E. Cox immediate reinstatement to his
former job, or if his former job no longer exists, to a sub-
stantially equivalent job, and make him whole for any loss
of pay he may have suffered by reason of the discrimina-
tion against him, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its-agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful to analyze the amount of backpay due under
the terms of this Order.
(c) Post at its place of business in Grain Valley, Missou-
ri, copies of the attached notice marked "Appendix." 27
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by Respon-
dent's representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous plates, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
the-Respondent has taken to comply herewith.
27 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "