Herbert E. Orr Co., Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1970

185 N.L.R.B. 1002 (N.L.R.B. 1970)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herbert E. Orr Co., Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW). Case 8-
CA-5685
October 13, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On May 28, 1970, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in other unfair
labor practices alleged in the complaint and recom-
mended that these allegations be dismissed. Thereafter,
the Respondent filed exceptions to the Trial Examin-
er's Decision and 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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner.
' Inasmuch as the record and briefs adequately reflect the issues
and the positions of the parties, Respondent 's request for oral argument
is hereby denied
' Like the Trial Examiner , we find that the two strikes that occurred
here were protected concerted activity, rather than wildcat or unprotected
strikes One of the essential elements of an unprotected strike is that
it interferes with bona fide bargaining activity in progress between the
employer and the designated bargaining representative If such strikes
are not in derogation of the union 's bargaining activities on behalf of
the unit , they are protected See, e g , Lee A Consaul Co , 175 NLRB
No 93 From the record herein, it is clear that the strikes were protected,
since neither sought anything counter to the Union 's position in negotia-
tions or any commitments it had made, and , in fact, neither strike
was for the purpose , in whole or in part, of putting pressure on either
the Union or the Employer in connection with such negotiations
In any event , with respect to the September 2 strike , neither designated
as protected nor unprotected , the employee action cannot be urged
as a defense by Respondent to its discharge of the discnmmatees herein
For the Respondent 's subsequent agreement with the Union , during a
meeting shortly after September 2, that the incident would be forgotten
and they would "start anew with a clean slate" constituted condonation
of that conduct. Cf American River Constructors, 163 NLRB 551, 552
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner , and orders
that Respondent , Herbert E . Orr Co., Inc., Paulding,
Ohio , its officers , agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner. On the basis
of a charge filed December 3, 1969,' by International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), referred to herein as the
Charging Party or the Union, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 8 (Cleveland, Ohio), issued complaint
on December 30 against Herbert E. Orr Co., Inc., referred
to herein as Respondent. The complaint alleges violations
of Section 8(a)(1) and (3) of the Act. Respondent's answer,
duly filed, admits certain allegations of the complaint and
denies others, including the allegation that Respondent
has committed unfair labor practices.
Pursuant to due notice, hearing was held before me
in Paulding, Ohio, on March 19, 20, and 27, 1970. The
principal issues litigated were (1) whether Respondent dis-
charged Jerry Mansen, Donald Akom, Rex Patterson, and
Ronald Robson because they were engaged in a strike
and (2) if so, whether they were discharged for engaging
in a protected concerted activity. All parties appeared and
were given full opportunity to participate, to adduce relevant
evidence, to examine and cross-examine witnesses, to argue
orally, and to file briefs. Upon the entire record, including
briefs filed by Respondent and the General Counsel, and
from my observation of the demeanor of the witnesses while
testifying under oath, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, manufactures jack han-
dles at its plant in Paulding. It annually ships jack handles
valued in excess of $50,000 directly to customers outside
the State of Ohio On the basis of these admitted facts,
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
' Dates are 1969 unless otherwise specified
185 NLRB No. 141
HERBERT E ORR CO
III. THE UNFAIR LABOR PRACTICES
A Facts
The Charging Party was certified as bargaining representa-
tive of a unit of Respondent 's production and maintenance
employees on September 4 as the result of a consent election
held on August 27 The vote was 12-0 Jerry Mansen
was the leader of the employees during the organizing
campaign , which began in July and culminated in a demand
for recognition on July 30. After certification, he became
chairman of a three -employee negotiating committee. Don-
ald Akom served as the Union 's observer at the election
The other two discriminatees named in the complaint
engaged in no union activities which distinguished them
from other prounion employees either before or after the
election Respondent made no efforts to dissuade its employ-
ees from voting for the Union . Respondent supplies jack
handles to the Big Three of the automobile industry. Herbert
Orr, founder and president of Respondent , was pleased
to have his employees organized by the Charging Party
in order to preclude trouble in the future which might
result from being a nonunion supplier in a highly organized
industry.
On the morning of September 2, Wayne Atkins, an
employee not otherwise involved in this case , had a run-
in with Ben Kraft , plant superintendent , and Orr. Orr
told Atkins to "get out of here ." Atkins interpreted these
words to mean he had been fired. He told the other employ-
ees he had been fired Orr walked into the lunchroom
where the men were waiting to go to work and told them
they were not to take any more breaks. Tempers flared.
Words were exchanged. At one point employee Gayle Pearl
said to Orr, "Old man , you are crazy " Mansen told Orr
he had had enough of "this stuff and just to make out
my check ." Because they were fed up with Orr's domineering
treatment of them , all of the employees walked out. As
they left the plant John Higgins, Respondent 's recently
hired general manager and secretary , advised them to contact
the Union. They did so. They returned to the plant that
afternoon with a Mr. Fagen , the Union's International
representative , who had organized them . They met in the
lunchroom with Higgins and Kraft. While the meeting
was in progress , Furl Williams , another International repre-
sentative for the Union , showed up . Higgins informed Fagen,
Williams, and the employees that Orr had put him in
charge of Respondent 's labor relations and was going to
stay out of the shop , that he would begin bargaining with
the Union without delay ,, that Respondent would give a
raise and permit breaks, and that he had been instructed
to wipe the slate clean and start over again . All of the
employees2 returned to work the next morning. On Septem-
ber 2 Orr sent a telegram to his customers, as he had
promised them, informing them that he had labor trouble.
No orders were canceled.
On September 5, the day after the Board 's certification
issued , the Union wrote Respondent to inform it that
negotiations would be handled for it, temporarily , by Wil-
liams and then by Edward Brown , another International
' Except, apparently , Atkins
1003
representative Negotiations began shortly thereafter. By
early November , when the events which gave rise to this
case came to a head , the only issue still open was a
union shop . The Union wanted it . Respondent refused
to give it
Sometime in late October the employees almost walked
out again . This incident began with a run -in between Kraft
and Akom . Kraft told Akom to get rid of waste metal
at his machine. Akom told Kraft to hire a janitor. Later
in the day most of the men stopped working and began
to congregate . Ronald Robson said they were going to
take a strike vote and he was in favor of striking. Kraft
said to all within hearing distance , "Any man that walks
through that door is fired as soon as he steps out and
the only way he will get back is if Mr. Orr fires me
or takes him back himself " Kraft went to the machine
where Mansen was still working . He told Mansen what
was happening and what he had said . He told Mansen
that , as head of the negotiating committee , he had a responsi-
bility to prevent a strike. Mansen persuaded the men to,
go back to work . There was no strike.
Orr's concern over breaks the men took is related to
completion of an addition to Respondent 's plant around
the middle of June There are no regularly scheduled breaks.
It is customary for the men to stop work individually
for a few minutes morning and afternoon at a time which
does not interfere with production . On the forges, one
man of the three-man crew can usually get away when
he catches up with production while doing the painting-
packing chore . The two-man crews of the wedge presses
usually stop after they finish one 1,000 -piece load of steel
and before they start another. Part of the new construction
was an air-conditioned employees ' lunchroom When it
was opened the men began gathering there in groups for
breaks. Orr thought they were interfering with production
by all going at one time and staying away from their
,lobs too long.
As indicated , Respondent uses two types of machines
to produce jack handles . Wedge presses, utilizing one furnace
tender to heat the pieces of steel which are turned into
jack handles , and an operator to run the press itself, fashion
the screwdriver end. Forges , utilizing a furnace tender,
an operator , and a painter-packer , fashion a socket on
the other end. Both machines are operated from a treadle.
If the operator keeps the treadle depressed while moving
the piece of steel from position to position, there being
four operations on the wedge press and three on the forge,
the machine is said to be spinning or operating automatically.
If the operator lifts his foot from the treadle between
operations, the machine is operating manually, or on single
trip. Whether the machines are operated automatically or
manually may make no significant difference in the number
of jack handles which can be produced in a day, the
personal predilection of the operator and the dexterity
he develops apparently being more important factors in
that regard. Generally, the machines are operated automati-
cally. However, from time to time Orr had ordered them
operated manually in order to reduce scrape and protect
the dies. The last time this happened prior to November
10 was in July . At that time, after about a day and
a half, Orr permitted the men to go back to automatic.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notices posted in the plant which prescribed manual opera-
tion of the machines were taken down by Respondent
a few days before November 10 so that they could be
copied.
On the morning of November 10 the manual operation
notices reappeared on the bulletin board in the lunchroom.
Kraft told the men that Orr wanted the machines operated
manually. They did so, although they were not happy
about it. They are paid on a piece rate basis. They assumed
that Orr was trying to harass them by reducing the amount
of money they could earn.
They ate their lunch that day in the lunchroom and
left their lunch boxes there as usual when they resumed
work. Around 2:30 p.m. Orr had their lunch boxes placed
in the hall, locked up the lunchroom, and posted a notice
readable through its glass wall which said:
NOTICE
THIS IS NOT A LOCKOUT AS SUCH-BUT IS
TO EMPHASIZE-THAT YOU MUST WORK 8
(EIGHT HOURS) THIS LOUNGE WILL BE
CLOSED FOR ONE WEEK.-IN THAT TIME, TO
SHOW GOOD FAITH AND COMPLIANCE WITH
THIS DIRECTIVE, THERE MUST BE APPROXI-
MATELY 500 (FIVE HUNDRED) MORE PIECES
PER DAY PER MACHINE. WE MUST HAVE THIS
PRODUCTION, ADDITIONAL, IN ORDER TO
SUBSTANTIATE OUR ESTIMATED AND PRO-
JECTED CAPACITY. YOU MAY REST WHEN
TIRED, BUT TO REST WHEN THE CLOCK SAYS
REST, IS NOT IN MY CREEDFNCE [SIC]. TO
MOST OF YOU, THIS WILL NEED NO FURTHER
EXPLAINATION [SIC], THE REST CAN GO TO.
This also angered the men.
On the morning of November 11 they decided to strike.
Approximately 12 employees, led by Akom and including
Robson and Rex Patterson, walked out of the plant before
beginning work. Mansen warned them they would be "on
their own" if they left. Only four employees in the bargaining
unit, namely 14ansen, a member of the negotiating commit-
tee named Joe Wyandt, and two relatively new employees,
remained behind. Mansen, Wyandt, and one of the new
men operated one of the forges. Kraft placed the other
new man on cleanup chores. The lunchroom remained
locked all day except for the lunch period. Mansen and
Wyandt refused to eat there. Work moves from the wedge
presses to the forges. Therefore, when Mansen's crew began
to run out of jack handles to work on around midday,
Kraft and the man in charge of quality control started
up one of the wedge presses in order to give them something
to do. Mansen and Wyandt were scheduled to work until
3:15 p.m. However, around 2 p.m. they told Kraft they
were leaving on union business and walked out. All produc-
tion then stopped.
Edward Brown, the Union's chief negotiator, arrived
at the plant for a previously arranged meeting, having
nothing to do with the walkout, around the time Mansen
and Wyandt left.3 He met Orr for the first time, Higgins
3 The purpose of this meeting was to give Brown an opportunity to try to
persuade Orr to agree to the Union's demand for a union shop and to try to
resolve some of the men's grievances against Orr
having acted for Respondent in the one contract negotiating
session Brown had attended up to that time Brown was
also introduced to Jerry Gorrell, a Paulding real estate
man, and told that Gorrell was replacing Higgins as
Respondent's spokesman. Gorrell told Brown about the
walkout which had taken place that morning. When the
meeting was over, Brown went to the union hall in Paulding.
There he met the strikers, including Mansen and Wyandt.
He told the strikers they should go back to work. They
agreed. Brown returned to the plant with the negotiating
committee, Mansen, Wyandt, and Rod Wisner They saw
Higgins. Brown told Higgins the men were ready to come
back to work. Higgins referred them to Gorrell. They
proceeded to Gorrell's office in Paulding. Gorrell was out.
Mansen, Wyandt, and Wisner returned to Gorrell's office
that evening without Brown. They arranged to end the
strike and return to work the next morning.
The men returned to work on the morning of November
12 to discover a new sign posted on the lunchroom wall
which read:
Notice
No production today. You may stay around if they
[sic] want to. at NO pay. I will make a statement
[sic] at about 8:30
Around 8:30 a.m. Higgins announced that Orr was too
busy to make his promised statement and told the men
to come back the next day.
On the morning of November 13, as the men waited
to go to work, Orr handed a piece of paper to Kraft
and Kraft posted it on the lunchroom wall. This one
read:
November 13, 1969
No production today. So many labor lawyers, manage-
ment feel they should be equally represented. Being
unable to contact compentent [sic] legal advice, it
may be months before we can do so.
Tomorrow being opening of hunting season, the wealthy
sportsman will want the day off. So, Report Tuesday,
Nov. 18, 1969, if you like, be free to adjust to change
in shift and/or time to go to work.
I, Herb will be in charge of the floor. You will be
expected to obey, without question, such orders as
are given. Any quibling [sic] will not be tolereted
[sic].
While the men were reading the sign, Orr came out
of the office with a camera in his hand. As he moved
it into picture-taking position, Mansen waved. Orr said,
"I wouldn't waste a film on you." On told the men
they could pick up their checks in the office. All 15
or 16 of them went there.
As the men were waiting for their checks in the office,
Wyandt asked to speak to Orr in private about a debt
which Wyandt owed to Orr. Orr refused. In the course
of this conversation, Orr looked across the room at Mansen
and said, loudly enough for all to hear, that the little,
curly haired guy should be tarred and feathered because
he had his hand in their pockets and had cost them money.
Mansen is relatively short and has curly hair. At another
HERBERT E ORR CO.
point he referred to Robson as "Robie the Rat."4 The
men were given their checks.' They left the plant. Mansen,
Akom, Robson, and Patterson each received two pay checks,
the one they would normally have received on Friday,
November 14, for the week ending Saturday, November
8, and one for the day's pay they had earned on Monday,
November 10. Orr intended the two checks to signify
that Mansen, Akom, Robson, and Patterson were dis-
charged. However, he did not tell them so.
All the men reported for work on the morning of Tuesday,
November 18. When Patterson arrived he went looking
for Kraft to find out what the situation was. He found
Kraft with Orr. Orr said, "You don't work here any
more." Patterson said, "I don't understand, Herb. Why
not?" Orr said, "You have too big a mouth." Just then
Akom walked up. Orr said to him, "You don't work
here any more either. You have too big a mouth too."6
Patterson went to the lunchroom to retrieve his lunch
bucket. (The lunchroom was unlocked that morning and
thereafter.) He encountered Mansen. He told Mansen he
had just been fired. Mansen said, "You got two checks?"
Patterson said, "Yes." Mansen said, "There is no use for
me changing clothes, I will get it too." As Mansen walked
out of the lunchroom Orr yelled at him, "Get out. You
don't work here no more " Mansen, Akom, and Patterson
left the plant immediately. A few minutes later Robson
arrived to report for work. Kraft met him outside the
plant and told him he did not have a job. Robson asked
what that meant, was he fired? Kraft replied, "I guess."
Robson asked to go into the plant to talk to Mansen
Kraft gave his permission. Robson discovered Mansen had
already left. As Robson was leaving the plant, Orr asked
him where he was going. Robson said he was leaving.
Brown contacted Gorrell to attempt to get the four
men back to work. Gorrell referred him to Respondent's
attorney, Harvey Hyman. On the morning of November
24 Brown, Williams, Mansen, and Wyandt met with Hyman
in his office. At the end of the conference Hyman informed
them that Orr had agreed to take Mansen, Akom, Patterson,
and Robson back and had agreed to a union shop. That
afternoon Brown and Williams went to the plant to work
out the details with Orr In the course of a long discussion
Orr told Brown and Williams how happy he was that
the Union now represented his employees because it was
to his business advantage to have the Union in his plant.
He told them he had known Walter Reuther, president
of the Union, in the past and had even contemplated
calling Reuther to invite the Union into his plant before
Orr's version of the tar and feather quote is that he said the men should
have tarred and feathered the little guy, meaning Mansen, in the past because
he had stolen from them their living and cost them more than they would
make if they worked a lifetime I credit the version of various employee
witnesses that he spoke in the present tense Orr's version of the remark
directed at Robson was, "I told him rather, you are nothing but fun, fun, fun,
you are a clown What do they call you 'riot Robie'9' I credit the testimony
of the employee witnesses that Orr referred to Robson as "Roble the Rat "
' Mansen left without his, went to the sheriffs office, and complained that
Respondent had failed to pay him along with the other men A deputy sheriff
called Respondent He was told Respondent had no intention of not paying,
Mansen Mansen went back to the plant and got his checks
6 I do not credit Orr's dehial that he told Akom he had a big mouth He
admitted speaking those words to Patterson
1005
the employees had started their organizing campaign. How-
ever, Orr said, he did not really understand why the employ-
ees needed a union and he was not going to force them
to join. He said he was also not going to take Mansen,
Akom, Patterson and Robson back because they were bad
eggs and he could not imagine the Union backing them
against him. He said nobody was going to tell him how
to run his plant, including the Union and the four discharged
men. He referred to the latter as "self-styled labor lawyers."
Frustrated and amazed, Brown and Williams left. They
went back to Hyman's office. They told Hyman what
had happened Hyman telephoned Orr. Orr told Hyman
that he had only been having a little fun with Brown
and Williams and that he still agreed to everything he
had previously discussed with Hyman, except that he wanted
to hold up a little bit on the union shop. However, Mansen
Akom, Patterson, and Robson remained discharged No
contract has been consummated.'
B. Analysis and Conclusions
1. The motive for the discharges
Herbert Orr was a devious witness. When first asked
why he had discharged Mansen, Akom, Patterson, and
Robson, he replied:
Because of very arrogant disregard for the supervision
and instructions, both written and verbal.
He cited as the written instructions violated the posted
notices about running the machines manually. He cited
as the verbal instructions violated, instructions about heating
steel to the proper temperature before putting it in the
machines. He claimed an enormous increase in the number
of jack handles returned by his customers as defective
between July and November. A few minutes later, in answer
to a question whether he had intended to discharge the
four men on November 13 when he gave them their checks,
he replied:
Yes, sir, because I had reached a point economically
that my business was going down the drain....
When pressed to explain what he meant by this answer,
he replied:
I meant that we had lost a considerable amount
of business, and projection, if you please, because that
is important in this business also, that you have to
anticipate away ahead of time what your production
is going to be and provide for it. There are a number
of people in the forging business and the wheel wrench
[i.e., jack handle] business because it is, shall I say,
astronomical in numbers, and everybody that is in
the forging business 'would like to get in on it, and
when these people went on strike in September I
believe it was, Mr. Quigley, September 2nd-. . .
I sent a wire because I was under obligation to my
customers. I told them I was having a problem and
they said, well, Herb, you keep us briefed. As soon
' A companion Section 8(a)(5) charge filed by the Charging Party against
Respondent was dismissed by the Regional Director The Charging Party's
appeal to the General Counsel was pending at the time of the hearing in this
case
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as any problem develops you let us know immediately.
That day on the second of September or third of
September and sent a wire to all my buyers saying
the UAW-CIO had called a strike, and to alert the
other vendors to absorb our percentage. I had agreed
to do that.
TRIAL EXAMINER: You are saying your concern on
the 13th of November was due to the fact your
business was imperiled by labor troubles you had been
having Is that a fair statement?
THE WITNESS: It had already been imperiled
TRIAL EXAMINER: So your concern on the 13th grew
out of the strikes you had in the plant, is that correct?
THE WITNESS: Well, I had had-the attidude of
these peiple-I lost confidence in them.
TRIAL EXAMINER You lost confinence in these four
men, is that what you are saying?
*
Do I understand you fired Mr. Akom, Mr. Mansen,
Mr. Patterson and Mr. Robson on the 13th of Novem-
ber because you had lost confidence in those four
men?
THE WITNESS: It was a composite of the whole
thing, yes, sir. To spell it out, apparently, you are
asking me-I don't have what it takes to spell it
out at that point.
A few minutes later, as Respondent's counsel was ques-
tioning Orr about ceasing to pay a bonus because the
business had failed to make money, the subject came up
again, with this result:
Now here was it your opinion or your belief that
your failure to make the money which would have
permitted you to pay the bonus was somehow due
to Mansen?
*
THE WITNESS: Not altogether to Mr. Mansen.
Q. (By Mr. Quigley) In part?
A. In part.
Q. Mr. Mansen led the walk out on September 2nd?
A. Yes.
Q. And Mr. Mansen walked out about two o'clock
on November 11th, did he not? On November 11th.
A. I believe so, yes.
Q. These work stoppages particularly the one of Sep-
tember 2nd followed by the telegram to each of your
customers advising them of the problem had in your
judgment cost you business, had they not?
A. Oh, no question about it.
Q. And isn't it fair to state this is what you are
referring to, the loss of business, particularly as a
result of work stoppages and also as a result of shoddy
work being returned by your customers.
A Yes.
Q. And you are holding him in part responsible?
A Yes.
Q. How about these other gentlemen? How did they
and Mansen compare over-all with the performance
and following of instructions from supervision and
attitude with the employees you kept on your payroll
on November 13th?
A. In my opinion they were the four tops.
Q. Well, tops-
TRIAL EXAMINER: May I interrupt and ask one
more question?
MR. QUIGLEY: Yes
TRIAL EXAMINER: Is that the reason you discharged
these four men and not other men because you
grouped them together in your mind as some way
being the cause of the trouble which Mr. Quigley has
just so capably summarized?
THE WITNESS: Yes.
I interpret this testimony as an admission by Orr that
his motive for discharging Mansen, Akom, Patterson, and
Robson, at least in substantial part, was their participation
in the strikes of September 2 and November 11. A finding
that an employer acted for a reason which, in substantial
part, was discriminatory within the meaning of the Act
is, of course, sufficient to sustain a Section 8(a)(3) and
(1) violation.' Here, the four men's participation in the
strikes was the sole reason for their discharge.
Respondent cites a dropoff in production and an increase
in the amount of scrap between July and November as
justifying the discharges. All of the witnesses agreed that
a good day's production per machine was somewhere in
the 8,000 to 9,000 range. They differed vehemently as
to the effect changing from automatic to manual operations
would have on output, whether of good jack handles or
scrap. The General Counsel's witnesses all testified that
the change slows their total production appreciably to the
point that their wages are cut while scrap increases because
they have to move in an unnatural rhythm. Respondent's
witnesses said the opposite. Manual operation is not appreci-
ably slower than automatic, they said, since the machines
move at a limited speed even when the treadle is held
down and total production is higher since the more careful
placing of the steel in the machines which is the goal
of manual operation reduces scrap significantly. In my
view, the record neither permits nor requires a resolution
of this dispute. As far as total production of good jack
handles is concerned, no records, even though available,
were produced by Respondent. Absent such records, I
cannot find a decrease in production attributable to Mansen,
Akom, Patterson, and Robson on the unsupported and
denied statements of Respondent's witnesses.
The defense that Mansen, Akom, Patterson and Robson
were guilty of shoddy work as evidenced by the production
of scrap stands on the same footing. Respondent made
much of the fact that the temperature to which the steel
is heated before it is placed in the forges or the wedge
8 Film Inspection Service, inc , 144 NLRB 1040, and cases cited therein
HERBERT E. ORR CO
presses is an important element in producing usable jack
handles. In fact, each of the four discriminatees acknowl-
edged that Orr or Kraft had spoken to him on one or
more occasions about getting the steel to the right tempera-
ture But the record is clear that complaints were not
limited to Mansen, Akom, Patterson, and Robson. If there
was a problem, it did not suddenly apse in the July-
November period. As with production figures, no records
were produced to show that Mansen, Akom, Patterson,
and Robson suddenly produced significantly more scrap
than they had in the past or that they ever produced
significantly more scrap than employees who were not
discharged. At the time of their discharges, Akom had
worked for Respondent more than 10 years; Patterson,
8 years; Mansen, 2 years; and Robson, a year and a half.
There is no basis in the record on which to find that
they, but not other employees, suddenly began doing such
poor work_in_ the_ summer of 1969 that their discharges
were justified I can only conclude that their "very arrogant
disregard for the supervision and instructions, both written
and verbal," insofar as the quantity and quality of their
work was concerned, was a pretext invented by Respondent
after the event. The "arrogant disregard for the supervision
and instructions" Orr had in mind when he gave his answer
was the four men's failure to heed Kraft' s warning in late
October that, if they walked out the door on strike, they
were through. Therefore, I find that Respondent's sole
motive for discharging Mansen, Akom, Patterson, and
Robson on November 13, 1969, was their participation in
the strikes of September 2 and November 11.
2. The legal defense
Respondent's main reliance is on its contention that
this case does not fall under the broad, general rule that
engaging in a strike is a protected concerted activity for
which an employee may not be lawfully discharged. It
argues that the strikes of September 2 and November 11
were not protected because, not having been authorized
by the Charging-Party, they were wildcats. It cites N.L.R.B.
v. Sunbeam Lighting Co., 318 F.2d 661 (C.A. 7), and
N.L.R.B. v. Draper Corporation, 145 F.2d 199 (C.A. 4).
In Sunbeam the United States Court of Appeals for the
Seventh Circuit held that ". . . the action of the minority
of the employees in [striking] was not a protected activity
but on the contrary constituted interference with bona
fide bargaining activity in progress between the Company
and the employees' certified representative." It quoted and
followed the rationale of the United States Court of Appeals
for the Fourth Circuit in Draper, thus:
The purpose of the act was not to guarantee to
employees the right to do as they please but to guarantee
to them the right of collective bargaining for the purpose
of preserving industrial peace.
1007
their own hands and deal independently with the
employer.
*
No surer way could be found to bring collective
bargaining into general disrepute than to hold that
"wild-cat" strikes are protected by the collective bar-
gaining statute.
In Sunbeam, 50 employees out of approximately 120
in a unit of production and maintenance employees repre-
sented by the International Brotherhood of Electrical Work-
ers, AFL-CIO, struck because they were dissatisfied with
the company's final offer for a collective-bargaining agree-
ment 2 days before a ratification vote was scheduled. In
Draper, 54 employees out of approximately 164 in a bargain-
ing unit represented by the International Molders and
Foundry Workers of North America, AFL, struck because
they thought the company was stalling negotiations for
a new contract Here, all the employees in the unit struck
on September 2 because they were aggrieved by the discharge
of one of their number and by the conditions under which
they were working. On November 11 all but two, an
overwhelming majority of the bargaining unit, struck
because Respondent changed the conditions under which
they were working in ways that displeased them Therefore,
unlike Sunbeam and Draper, this case does not present
"the action of a minority of the employees in refusing
to [work]." Not a minority of the employees but a majority
is involved in each strike here. The Charging Party, it
is true, did not authorize either strike in advance. However,
neither did it repudiate either of them after they began.
Rather, it did its best to end them in a manner which
would protect the interests of the employees by getting
them back to work without delay.' Even if "wildcat" is
defined to mean any strike which is not authorized in
advance by the employees' certified bargaining representative
and even if, as Respondent argues, the principle of Sunbeam
and Draper applies to majority as well as minority wildcat
strikes, the result must still be against Respondent, for
the other essential element of that doctrine, namely, "inter-
ference with bona fide bargaining activity in progress
between the Respondent and the employees' certified repre-
sentative," is also absent here. On September 2, bargaining
had not yet begun. On November 11, it was apparently
in abeyance Nothing that the striking employees sought,
either on September 2 or on November 11, ran counter
to what the Charging Party sought in its negotiations
.with Respondent or to any commitments it had made
to Respondent. Therefore I find that when Respondent
discharged Jerry Mansen , Donald Akom, Rex Patterson,
and Ronald Robson on November 13 for participating
in the strikes of September 2 and November 11, it discharged
them for engaging in a protected, concerted, as well as
union , activity and thereby violated Section 8(a)(3) and
(1) of the Act.10
. . . there can be no effective bargaining if small
groups of employees are at liberty to ignore the bargain-
ing agency thus set up, take particular matters into
The Cincinnati Penthouse Club, Inc , 168 NLRB 969, 974 fn 26
0 Lee A Consaul Co, et al, 175 NLRB No 93, Artim Transportation
System, Inc , 166 NLRB 795, reversed on other grounds 396 F 2d 359,
Hoffman Beverage Co , 163 NLRB 981
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The independent Section 8(a)(1) violations
The complaint alleges Respondent violated Section 8(a)(1)
of the Act on November 10 when it "changed the method
of operating machinery in the plant from automatic to
manual operation, thereby reducing the wages of its employ-
ees, because of union membership, activities and sympathies
of its employees."' This allegation fails for two reasons.
In the first place, as already indicated, I cannot find on
the basis of the evidence presented that the employees,
in fact, turned out fewer pieces on November 10 because
they were ordered to operate the machines manually. The
burden of proof in this area was on the General Counsel,
dust as the burden of proof as to a drop in production,
advanced as a defense by Respondent, was on Respondent.
Records of each man's daily production are kept on his
timecard. Cards for November 10 and a representative
sampling of other days would have permitted a comparison
of production under automatic and manual operations. The
General Counsel made no effort to obtain them. In the
second place, the General Counsel has not proved that
Respondent ordered the change on November 10 because
the employees were engaged in union activities. This was
not the first time that manual operations had been ordered.
The previous time was in July, shortly before the men
began their efforts to organize. The reposting of instructions
on November 10 about how to operate the machines manual-
ly has no significance. The notices were orginally posted
long before the men turned to the Union for help. Therefore,
I find that Respondent did not violate the Act when it
changed from automatic to manual operations on November
10.
The result is otherwise with respect to the allegation
of the complaint that Respondent violated Section 8(a)(1)
on the same day by eliminating breaks and closing the
lunchroom "because of union membership, activities and
sympathies of its employees." In this area, the record
shows that a dispute over breaks first arose and, in part,
triggered the September 2 strike dust a few days after
the employees had selected the Union as their bargaining
representative Thus the dispute can be related to the men's
union activities, there being no evidence that it predated
them. Respondent did not order all breaks eliminated,
as the wording of the notice it posted on November 10-
"You may rest when tired, but, etc."-makes clear. But
when it locked the lunchroom so that the men could
not use it while on their breaks, Respondent changed the
manner in which they were permitted to take breaks. And
the evidence of an antiunion motive for this change, lacking
with respect to the method of operating the machines,
is supplied in this area by the tone and wording of the
November 10 and 13 notices. I rely especially on the
use of the word "lockout" in the November 10 notice
and the reference to "so many labor lawyers" in the Novem-
ber 13 notice. Therefore, I find that Respondent violated
Section 8(a)(1)" by locking the lunchroom on November
" The complaint does not allege an 8(a)(3) violation in this or the
machinery incident
10 in order to prevent its employees' using it on their
breaks as a reprisal for their union activities.
Finally, the complaint alleges that Respondent violated
Section 8(a)(1) of the Act on November 13 when Herbert
Orr "accused employees of betraying his interests, and
threatened to tar and feather an employee, because of
their union membership, activities and sympathies, and/
or their protected concerted activities." In his brief, the
General Counsel finds support for the allegation that Orr
"accused employees of betraying his interests" in the fact
that Orr, on November 13, referred to Robson as "Robie
the Rat." "Obviously," the General Counsel argues, "this
characterization of Robson by Orr was in reference to
Robson's statement [in the late October near-strike episode]
in which he indicated his approval of striking if the employ-
ees were in favor of such action. Moreover, it is contended
that Orr's intention was to imply that Robson had betrayed
his interests, in that he had stated his alliance with the
Union and not with Orr." I am unable to read any such
intention or meaning into Orr's simple epithet. Even though
the remark was uncalled for and clearly expressed Orr's
anger at Robson, I do not find in it any threat sufficient
to constitute an interference with the Section 7 rights of
Robson or any of Respondent's other employees. Therefore,
I find that Respondent did not violate Section 8(a)(1)
when Orr called Robson a rat.
Jerry Mansen's version of Orr's tar and feather statement
on November 13 can be read as an accusation by Orr
that the employees had betrayed him Mansen testified:
. . . and Mr . Orr came out of his office, and
started talking to Joe [Wyandt], and looked over at
me and he told me . He says you cost me more money
than I can make in a life time and I will remember
you if I live to be a hundred and he said you should
be tarred and feathered. [Emphasis supplied.]
However, I have credited Orr's testimony that he said
Mansen had cost the other employees money, not Respond-
ent, in arriving at the finding set forth above under "Facts"
as to just what Orr said on this occasion. Moreover, even
if I were to credit Mansen over Orr as to this detail,
I would not find a violation, for these words also contain
no threat such as would reasonably interfere with, restrain,
and coerce employees in the exercise of their Section 7
rights. Orr's admitted "tar and feather" statement is differ-
ent. He sought to take the sting out of it by emphasizing
that he meant the other employees should tar and feather
Mansen for what he had done to them. I find this to
be a distinction without a difference from Mansen's version
and have so found. Regardless of whether Orr meant that
he should do it or the other employees should do it,
his statement that Mansen should be tarred and feathered
for the trouble he had caused by leading the men in
their union activities is an implied threat which reasonably
did interfere with, restrain, and coerce Respondent's employ-
ees in the exercise of their Section 7 rights. Therefore,
I find that Respondent also violated Section 8(a)(1) of
the Act when Orr said it.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
HERBERT E. ORR CO. 1009
1. Herbert E. Orr Co., Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW)
is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discharging Jerry Mansen, Donald Akom, Rex
Patterson, and Ronald Robson on November 13, 1969,
because they participated in strikes, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By locking the lunchroom in its plant on November
10, 1969, in order to prevent its employees using it during
breaks and by threatening an employee with physical harm
on November 13, 1969, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The allegations of the complaint that Respondent
violated Section 8(a)(1) of the Act on November 10, 1969,
by changing the method of operating machinery in its
plant from automatic to manual operation and on November
13, 1969, by Herbert Orr's accusing employees of betraying
his interests because of their union or concerted activities,
have not been sustained.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent has violated Section 8(a)(3)
and (1) of the Act by discharging Jerry Mansen, Donald
Akom, Rex Patterson, and Ronald Robson. Therefore, I
will recommend that Respondent offer each of them immedi-
ate and full reinstatement to his former job or, if this
job no longer exists, to a substantially equivalent position,
without prejudice to any seniority or other rights and
privileges previously enjoyed and make each whole for
any loss of earnings he may have suffered as a result
of the discrimination against him by paying to him a
sum of money equal to that which he normally would
have earned as wages from November 13, 1969, until the
date of Respondent's offer of reinstatement, less net earnings
during such period, with backpay and interest thereon
to be computed in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Finally, the unfair labor practices which I have found
are serious violations of the Act which demonstrate
Respondent's disdain for the rights of its employees and
a likelihood that violations will be repeated in the future.
Consequently, I will also recommend that Respondent cease
and desist from interfering with the Section 7 rights of
employees in any manner.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act,
as amended, I hereby issue the following.
RECOMMENDED ORDER 12
Herbert E Orr Co., Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discriminating against its employees in order to dis-
courage membership in or activities on behalf of Internation-
al Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), or any other
labor organization.
(b) Barring its employees from using the lunchroom
in its plant on their breaks in reprisal for their union
activities.
(c) Threatening its employees with physical harm for
engaging in union activities.
(d) In any manner interfering with, restraining, or coercing
employees in the exercise of 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 to Jerry Mansen, Donald Akom, Rex Patterson,
and Ronald Robson immediate and full reinstatement to
their former jobs or, if these jobs no longer exist, to substan-
tially equivalent positions, without prejudice to any seniority
or other rights and privileges previously enjoyed, and make
each of them whole for any loss of pay suffered as a
result of the discrimination against him in the manner
set forth above under "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms
of this Recommended Order.
(c) Post at its plant in Paulding , Ohio, copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region
8, after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
't In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Section 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
" 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify Jerry Mansen, Donald Akom, Rex Patterson,
and/or Ronald Robson if presently serving in the Armed
Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.'°
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges that Respondent violated Section 8(a)(1)
of the Act on or about November 10, 1969, by changing
the method of operating machinery in its plant from auto-
matic to manual operation and on or about November
13, 1969, by Herbert Orr's accusing employees of betraying
his interests because of their union or concerted activities.
11 In the event that this Recommended Order is adopted h% the Board this
provision shall he modified to read Notilk the Regional Director for
Region If in writing thin 10 da\s Iron the date of this Order what steps
Respondent has taken to oomph herewnh
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT discriminate against you in order
to discourage membership in or activities on behalf
of International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), or any other labor organization.
WE WILL NOT bar you from using the lunchroom
on your breaks in reprisal for your union activities.
WE WILL NOT threaten you with physical harm
for engaging in union activities
WE WILL NOT in any manner interfere with you,
or attempt to restrain or coerce you, in the exercise
of the above rights.
WE WILL immediately offer to reinstate Jerry Man-
sen, Donald Akom, Rex Patterson, and Ronald Robson
to their former jobs or, if these jobs no longer exist,
to substantially equivalent jobs without any change
in their seniority or other privileges they enjoyed before
we discharged them, and WE WILL pay to each of them
any money he lost as a result of our discrimination
against him with interest at 6 percent per annum
WE WILL notify Jerry Mansen, Donald Akom, Rex
Patterson, and/or Ronald Robson if presently serving
in Armed Forces of the United States of their right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended, after dis-
charge from the Armed Forces.
Dated By
HERBERT E. ORR CO., INC.
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1695
Federal Office Building, 1240 East Ninth Street, Cleveland,
Ohio, 44199, Telephone 216-522-3715.