Hunt Heater Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1954

108 N.L.R.B. 1353 (N.L.R.B. 1954)

HUNT HEATER CORPORATION 1353
extensive with the electrical department, 7, and there are certain
factors which tend to show that the controller assemblers
possess a substantial community of interest withthe other em-
ployees in the electrical department.' Under all the circum-
stances, we find that the controller assemblers may appro-
priately be represented either as part of the production unit
represented by the IAM or as part of a unit comprising the
electrical department represented by the IBEW.9 We shall
make no determination at this time but shall first ascertain
the desires of the controller assemblers in the election here-
inafter directed.
We therefore direct an election in a voting group composed
of the controller assemblers. If a majority vote for the IAM,
they will be taken to have indicated their desire to be a part
of the production unit, and the IAM may bargain for them as
part of its existing unit. If a majority vote for the IBEW, they
will be taken to have indicated their desire to be a part of the
electrical department unit, and the IBEW may bargain for
them as part of its existing unit.
[Text of Direction of Election omitted from publication.]
7 The IBEW contracts, though not clearly disclosing whether the unit intended to be covered
has been craft or departmentwide in scope, nevertheless have listed among the included
categories not only the journeymen electricians and apprentices but also the apparently
less skilled or unskilled categories in the department, such as coil winders and shop laborers.
Although for 2 years or more, the Employer has not employed coil winders or shop laborers,
such categories have in fact been employed by the Employer in the electrical department
during its representation by the IBEW
8In addition to the facts mentioned before, the record shows that the controller assemblers
and the rest of the employees in the electrical department are separately supervised, sepa-
rately located, perform a type of work not performed elsewhere in the plant, have separate
facilities, and carry out almost all of their duties within the confines of the electrical depart-
ment.
9Board Member Murdock would find that the controller assemblers may appropriately
be included in the production unit represented by the IAM but not in the unit currently
represented by the IBEW, for the following reasons: (1) The unit currently represented by
the IBEW includes only craftsmen and their apprentices, (2) the controller assemblers are
not craftsmen but perform the purely production task of assembling elevator controllers. In
these circumstances Member Murdock would find that the controller assemblers may not
be added to the craft unit represented by the 113E W and would direct an election only to deter-
mine whether or not these employees desire to be represented as part of the production unit
currently represented by the IAM.
HUNT HEATER CORPORATION and INTERNATIONAL UNION,
UNITED AUTOMOBILE WORKERS OF AMERICA, A. F. OF
L. Cases Nos. 10-CA-1616 and 10-CA-1749. June 18, 1954
DECISION AND ORDER
On March 15, 1954, Trial Examiner John H. Eadie issued
his Intermediate Report in the above-entitled proceeding,
108 NLRB No. 200.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor prac-
tices, and recommended that the complaint be dismissed with
respect thereto. Thereafter the Respondent and the Union filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in these cases , and hereby
adopts the findings , conclusions , and recommendations of the
Trial Examiner.
ORDER
Upon the entire record in these cases , and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the
Respondent , Hunt Heater Corporation, Dayton, Tennessee, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Union, United
Automobile Workers of America, A. F. of L., or in any other
labor organization of its employees , by discriminating in
regard to their hire or tenure of employment or any term
or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form , join , or assist International Union,
United Automobile Workers of America, A. F. of L., or any
other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or
all of such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to James B. Johnson , Benton Mooneyham, and
Dennis Mooneyham immediate and full reinstatement to their
former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and make
whole said employees and James Houston, Floyd Jewell, Austin
Bishop, Archie Harwood, and Arthur Thomas, all in the manner
set forth in the section of the Intermediate Report entitled
"The Remedy."
HUNT HEATER CORPORATION 1355
(b) Post at its plant at Dayton , Tennessee , copies of the
notice attached to the Intermediate Report as Appendix B.1
Copies of said notice, to be furnished by the Regional Director
for the Tenth Region, shall, after having been duly signed by
Respondent ' s representative , be posted by Respondent imme-
diately upon receipt thereof and be maintained by it for a period
of sixty (60) consecutive days thereafter inconspicuous places,
including all places where notices to employees are custom-
arily posted . Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced , or covered
by any other material.
(c) Upon request make available to the Board or its agents,
for examination and copying , allpayroll records , social - securi-
ty payment records, timecards, personnel records, and all
reports and other records necessary to determine the amount
of back pay due.
(d) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that except as otherwise
found herein , the complaints in these cases be, and they hereby
are, dismissed.
Member Peterson took no part in the consideration of the
above Decision and Order.
I This notice shall be modified by substituting the words "A Decision and Order" for the
words "The Recommendations of a Trial Examiner." In the event that this order is enforced
by a decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by international Union, United Automobile Workers of America,
A. F. of L., herein called the Union, the General Counsel of the National Labor Relations
Board, respectively called herein the General Counsel and the Board, by the Regional
Director for the Tenth Region, issued a complaint dated May 14, 1953, in Case No. 10-CA-
1616, and a complaint dated June 29, 1953, in Case No. 10-CA-1749, against Hunt Heater
Corporation , herein called the Respondent, alleging that the Respondent engaged in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3 ) and Sec-
tion 2 (6) and (7) of the National labor Relations Act, as amended, herein called the Act.
The Regional Director consolidated Cases Nos. 10-CA-1616 and 10-CA-1749 by order dated
June 29, 1953.
With respect to the unfair labor practices, the complaints allege that the Respondent (1)
discharged the employees listed in Appendix A, attached hereto, on the dates shown opposite
their names, and thereafter failed and refused to reinstate them, except those who have dates
of reinstatement shown opposite their names , because of their membership in and activities
on behalf of the Union, and because they engaged in concerted activities with other employees;
and (2) engaged in certain acts which interfered with , restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent filed answers in which it admitted the jurisdictional allegations of the com-
plaints, but denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held atDayton, Tennessee, starting on September 8, 1953,
before the undersigned Trial Examiner. At the opening of the hearing, the General Counsel
moved to amend the complaint in Case No. 10-CA-1749. The motion was granted without
objection. At the conclusion of the General Counsel's case, the Respondent moved to dismiss
the complaints. The General Counsel joined in the motion to dismiss with respect to employees
Austin Wilkey and Carl Dillard. The motion to dismiss the complaint in Case No. 10-CA-1616
insofar as it related to Wilkey and Dillard was granted; otherwise ruling was reserved on the
motion. The Respondent renewed its motion to dismiss the complaints at the close of the
hearing. Ruling was reserved. The motion to dismiss is disposed of as hereinafter indicated.
Counsel did not present oral argument at the hearing. The Respondent has filed a brief with
the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Hunt Heater Corporation is a Tennessee corporation, with its principal office located at
Nashville, Tennessee. It operates a plant at Dayton, Tennessee, where it is engaged in the
manufacture and sale of wall and floor space heaters.
During the calendar year ending December 31, 1952, the Respondent manufactured and sold
finished products to the United States Army, havinga value of approximately $300,000. During
the same period, the Respondent manufactured and sold to other customers outside the State
of Tennessee, finished products valued in excess of $ 50,000.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile Workers of America, A. F. of L., is a labor organi-
zation which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent was incorporated in March 1948. Production started at the Dayton plant in
May 1949. In January 1952, the Respondent was awarded a Government contract. This contract
was completed on July 3, 1952. Immediately after its completion, the Respondent began work
on a backlog of unfilled orders for heaters. The record indicates that at about this time the
Respondent also repaired its plant, one-third of which had been damaged by fire.
Starting on about October 15, 1952, the Respondent laid off a number of employees. It con-
tends that these layoffs were caused by economic necessity. In this connection, William B.
Hunt, Jr., Respondent's vice president, testified to the effect that when the backlog of orders
had been filled and the repairs to the plant had been completed, the Respondent had more
employees than it needed for its normal production.
The record shows that in January 1952, at the start of the Government contract, the Re-
spondent had 66 employees; that employment reached a peak of 110 in May; that it dropped
to 98 in September; and that only 60 persons were employed in December 1952. During 1953,
the Respondent had 72 employees in January, 65 in February, 62 in March, 64 in April, 69
in May, 73 in June, and 94 in July.
B. The discharges on about October 15, 1952
Employee James B. Johnson worked for the Respondent for about 2 years before his dis-
charge on October 15,,1952. He was employed as a spotwelder on the night shift under Fore-
man Thomas Calbaugh.
For a few months before his discharge, Johnson and some other employees talked about
organizing the Union during their lunch period. On October 10, 1952, a representative of the
HUNT HEATER CORPORATION 1357
Union called at Johnson's home and gave him some union authorization cards. Johnson worked
on Saturday, October 11. At lunch that day he solicited other employees to join the Union,
obtaining signed cards from employees Bruce Tharpe, Max Haun, Austin Bishop, Archie
Harwood, and James Houston. On or before October 15, employees Arthur Thomas, Floyd
Jewell, Willard Morgan, and Robert Olinger also signed authorization cards of the Union
when solicited by Johnson. Morgan gave employee Glenn Whitfield an authorization card
which he signed on or before October 15.
On Sunday, October 12, Charles Vaughn, Respondent's acting plant superintendent,' called
Foreman Calbaugh to the plant. Concerning his conversation with Vaughn, Calbaugh testified
without contradiction as follows:
He asked me did I know anything about the Union.... He said he had two or three
cards turned in to him and Johnson was the one giving them out . He asked me if that was
right. I said , yes.... He just said ... something about he wanted to keep his job....
On Monday, October 13, Vaughn questioned employee Edmond Bishop about the union ac-
tivities of the employees. With respect to this conversation, Bishop was questioned and
testified credibly as follows:
Q. As close as you can remember tell us.
A. He asked me if I knew anybody in the metal shop that signed the Union. I told him,
no, sir. He asked me if I had filed and I told him, no, sir. And he questioned about two
or three of the boys in there and I still couldn't tell him nothing but no, sir, because I
didn't know.
Q. Did he mention some of them by name?
A. Yes, he called Floyd Jewell and Archie Harwood and this here Houston boy, Jimmy
Houston.
Q. Did he mention Mr. Hunt in this conversation
A. Yes, sir. He told me he called Mr. Hunt the evening before, which would have been
Sunday evening, and told him about what was going on. The information he gave me that
Mr. Hunt told him to fire all that had anything to do with it because life was too short. It
was too short to be messed up in anything like that.
Q. Did he tell you what he intended to do?
A. Yes, sir. He said that was what he intended to do? 2
Employee Austin Bishop had a conversation with Foreman Cleo Wilkey on Monday, October
13.3 In this connection, Bishop was questioned and testified credibly as follows:
Q. Where was it he talked to your
A. We were there in the little office thing like in the back.
Q. How did you happen to go in there9
A. Well, he had called some of the boys in there and talked to them and he told them to
tell me to come.
Q. Someone who had been in there before told you he wanted you?
A. Yes, sir.
Q. When you went in there, what did he have to say?
A. He said he didn't know how come,--wanted to talk to me about the Union, what I
thought about it.
Q. Anything else9
'Vaughn did not appear as a witness at the hearing. Hunt testified that Vaughn became
superintendent within a few days after August 15, 1552, when there was "a shake up of
management."
2 Hunt admitted that Vaughn called him on Sunday. He denied that he directed Vaughn to
discharge the employees involved. Hunt testified, ". . , he [Vaughn] said that he wanted me to
know that there was ... possibly some Union activity going on at Hunt Heater and that he
wanted to discharge his duty as he saw it and he wanted to let everybody concerned know about
it..... He asked me what I thought he ought to do about it. My answer to that was he should
do nothing, just sit steady in the boat until we analyzed the thing and see what it was all about."
9Wllkey did not appear as a witness at the hearing.
13 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. And I told him as nearly right as I could, generalize as I could, I was kinda for it
myself.
Q. Did he ask you if you were for it?
A. He asked me what I thought about it.
Q. Can you state that first thing he said when you came in?
A. He said first thing when we went in, he says, "Don't know why they put it on me
to do this", wanted him to find out what we thought about the Union coming in.
Q. Did he say who told him to do that?
A. No, he didn't say who told him.
Wilkey also talked to employee Archie Harwood on Monday . Concerning this conversation,
Harwood was questioned and testified credibly as follows:
Q. Where did you talk to him or where did he talk to you?
A. In little comer office is what I call it, back in the rear, back behind the spot
welders.
Q. How did you happen to go in there?
A. He had me called in there.
Q. By whom?
A. Timekeeper.
Q. Who is that?
A. Austin Wilkey.
Q. When you went in there, what did he say?
A. We talked a minute and he says, "There's no use beating about the bush, I am
checking up on this Union business".
s
Q. Do you remember what you talked about?
A. He asked me what I thought about it and I told him if the majority of the men was
for it, I was for it. Asked him what he thought about it. He said he wasn't supposed to
tell what he thought about it, he was supposed to tell them what I thought about it.
Q. Tell who what you thought about it?
A. He never said.
Q. Just said "them'"?
A. Yes.
On October 15, 1952, Vaughn discharged or laid off employees Johnson, Houston, Tharpe,
Haun, Harwood, Jewell, and Austin Bishop$ In substance, Vaughn told them at the time that
due to a cancellation of orders the Respondent was reducing its force.
At about 6 or 7 p. m. on the night of October 15, a union meeting was held at "Cumberland
Springs Bible Camp," about 3 miles from Dayton. The camp had a gravel road leading to it
from the main highway, and was open to the public. The 7 employees who had been laid off
that day were present. Employees Arthur Thomas, Dennis Mooneyham, Benton Mooneyham,
Ernest Dillard, and Carl Dillard, and2 representatives of the Union also attended the meeting.
While the meeting was being held, a black Ford automobile in which Charles Vaughn and
another person were riding entered the camp grounds; turned around and left the premises
almost immediately 5
4 The complaint alleges that theRespondent also terminated the employment of Austin Wilkey
and Carl Dillard on the above date. As-related above, the complaint was dismissed as to them
at the close of the General Counsel's case.
5 A number of witnesses testified concerning the above incident. Some of them identified the
passengers in the car as Charles Vaughn and his brother, Julian Vaughn. William Wilson,
father-in-law of employee Johnson. testified that the gravel road leading to the camp was about
200 yards long, that the house in which he lived was about 20 feet from the road, and that he
saw Charles Vaughn and Julian Vaughn in the car as they drove by his house. Julian Vaughn.
an employee of Respondent, denied that he went to the meeting with his brother, but admitted
that he owned a black 1950 Ford and that he had loaned it to Charles Vaughn on the day in
question. I do not find it necessary to determine the issue with respect to Julian Vaughn.
HUNT HEATER CORPORATION 1359
Employees Thomas. Morgan, and Whitfield were discharged or laid off on October 16, 1952.
When Superintendent Vaughn notified Morgan of his termination of employment, he stated,
"We have had orders from Nashville to reduce the force."
On October 16, or shortly thereafter, Vaughn questioned employee Lester Walling con-
cerning the Union. He asked Walling if Johnson had called him and if he had signed a union
card. Walling admitted that Johnson had called him "on a Sunday." but told Vaughn that he
had not signed a card.
As of the time of the hearing herein. Johnson had not been reinstated to his job. Whitfield
was notified to report for work by a registered letter, dated January 29, 1953, which he
received on January 30, 1953. Haun and Harwoodwere reinstated on February 2, 1953; Bishop
on February 3, 1953; Jewell, Houston, and Tharpe on April 1, 1953;6 Thomas on April 2,
1953; and Morgan on April 6, 1953.
The Respondent contends that during the period from October through December 1952, it
laid off employees because of a lack of business. Vice-President Hunt testified to this effect.
The undisputed evidence shows that during the above time the Respondent reduced its working
force from 98 to 60 employees.
The complaint in Case No. 10-CA-1616 alleges that 16 employees were discriminatorily
discharged. As related above, at the hearing the Respondent's motion to dismiss was granted
as to 2 of this number. There is nothing in the record to show if the other 24 employees
involved in the reduction in force quit, were discharged, or were laid off. Nor does the record
disclose whether or not any of them or of the employees whom the Respondent retained were
adherents of the Union. However, the General Counsel does not contend that the Respondent
was discriminatorily motivated in reducing Its force during the fall of 1952. Therefore, the
issue to be resolved is whether or not the Respondent discriminatorily selected the 14 em-
ployees named in the complaint for layoff or discharge.
The undisputed evidence shows that on October 12 Vaughn knew that the employees were
attempting to organize the Union in the plant and that Johnson was the main instigator. The
testimony of Edmond Bishop concerning a conversation with Vaughn on October 13 indicates
that Vaughn knew that Jewell, Houston, and Harwood were adherents of the Union. Foreman
Wilkey interrogated employees Austin Bishop and Harwood concerning the Union on the same
day. Both indicated to Wilkey that they were in favor of the Union. With respect to Tharpe,
Hann. Thomas, Morgan, and Whitfield, there is no direct proof that the Respondent had
knowledge of their union membership or activities.7 However, Thomas was at the union
meeting on October 15, the night before he was laid off. It is found that Vaughn was engaging
in surveillance of the union meeting. Accordingly, I find that Vaughn knew that Thomas was
an adherent of the Union before he was laid off on October 16. I do not believe that the size
of the plant or the evidence in the case justify any inferences of knowledge insofar as Tharpe,
Hann, Morgan, or Whitfield are concerned. Since the General Counsel has not sustained the
burden of proof in this connection, it will be recommended that the complaint be dismissed
as to these four employees.
I find that the Respondent discriminatorily selected Johnson, Jewell, Bishop, Harwood,
Thomas, and Houston for layoff or discharge, In violation of Section 8 (a) (3) and (1) of the Act.
It is found that Johnson was discharged on October 15, 1952; and that Jewell, Houston, Bishop,
Harwood, and Thomas were laid off from work between the dates as found above.
Vaughn's conversation with employee Edmond Bishop on October 13, related above, shows
that he was discriminatorily motivated in the selection of employees for layoff. In substance,
he told Bishop that he "intended" to fire any employees who were in favor of the Union.
Vaughn took steps to discover the union adherents. The record indicates that he and Foreman
Wilkey extensively interrogated the employees. Further, Vaughn engaged in surveillance of
the union meeting on October 15. It is noteworthy that neither Edmond Bishop nor Lester
Walling were laid off. As related above, both of them told Vaughn that they had not signed
union cards.
Under the circumstances of this case, it is found that Vaughn's and Wilkey's interrogation
of employees Edmond Bishop, Austin Bishop, Harwood, and Walling concerning their union
6 The complaint alleges that Houston was reinstated on the above date. He did not appear as
a witness at the hearing.
7Foreman Jimmy Roody testified that Vaughn told him that Whitfield had been "naughty,"
and that the conversation took place at about the time of Whitfield's layoff. I do not believe or
find that this testimony is sufficient to show that Vaughn had knowledge of Whitfield's member-
ship in the Union.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership and activities constitutes interference, restraint, and coercion. Further, Vaughn's
statements to Edmond Bishop contained a threat of reprisal; and he engaged in surveillance
of the union meeting on October 15. It is found that by such conduct of Vaughn and Wilkey
the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
C. The discharges of Benton Mooneyham
and Dennis Mooneyham
Dennis Mooneyham and his brother, Benton Mooneyham, signed union authorization cards
at sometime before their employment was terminated on October 20, 1952. They had obtained
the cards from employee Bruce Tharpe. As related above, they both were present at the union
meeting which was held on October 15.
Employee Joe Mooneyham, a brother of Benton and Dennis, had a conversation with Super-
intendent Vaughn on about October 15. Vaughn told him, "I been hearing some bad stories
on your brothers.... I hate to do this but I am going to have to." Joe Mooneyham told his
brothers of the conversation that same night.
Robert Mooneyham, father of Dennis and Benton Mooneyham, had a conversation with Vaughn
at sometime before October 17. Concerning this conversation, Robert Mooneyham testified
credibly as follows:
"Well," he said, "I have got some bad news on the boys."
I said, "Well, what was it? About the Union
He said, "Yes."
I said, "Well, I understood they filled out some cards and brought them in."
"Well," he said, "this won't affect you or Joe any at all about your working." He said,
"You can just go ahead and work like you have been."
s a m
... He said, "Now, I hate to do this, but" he said, "these boys that joined this union,
why, we will lay them off."
Well, I asked him why he didn't lay me off, I was the oldest man that they worked. He
just laughed and said, well, couldn't lay me off, that would make people think hard of
them....
He told Dennis and Benton of this conversation the following day.
Dennis and Benton Mooneyham worked on the3 to 11 p. m. shift under Foreman Sam Burton.
When they reported for work on Friday, October 17, Joe Mooneyham told them that they were
going to be laid off that night. They did not start work at 3 p. m., but remained in the plant,
waiting for Vaughn. They explained to Burton why they were not working, telling him that they
were going to be laid off that night. Burton replied that they could "just suit" themselves.
When Vaughn did not appear by about 5:30 p. m., they left the plant.
When Dennis and Benton Mooneyham reported for work on Monday, October 20, their time-
cards were missing from the rack. They were given separation notices, each of which listed
the reason for termination as "voluntarily quit." Benton Mooneyham entered the Army Forces
on November 6, 1952. As of the date of the hearing, neither Dennis nor Benton Mooneyham
had been recalled to work.
It is clear from the uncontradicted testimony ofboth Joe and Robert Mooneyham that Vaughn
intended to lay off or discharge Dennis and Benton Mooneyham because of their membership in
and activities on behalf of the Union. The reason given by the Respondent for termination of
their employment patently was a pretext. On October 17, they explained to Foreman Burton
why they were absenting themselves from work. Not having heard from Vaughn, they again
reported for work on October 20. It was not until after they reported to Foreman Wilkey
that their timecards were missing, that they were given the separation notices. From these
undisputed facts it could not be contended seriously that they had "voluntarily quit" their
jobs.
HUNT HEATER CORPORATION 1361
Accordingly, it is found that the Respondent on October 20, 1952, discharged Dennis
Mooneyham and Benton Mooneyham in violation of Section 8 (a) (3) and (1) of the Act. It is
also found that Vaughn's remarks to Robert and Joe Mooneyham constitute interference,
restraint, and coercion since they contained threats of reprisal.
D. The alleged discharge of Robert Mooneyham
Mooneyham worked as a painter's helper for about 10 months before his discharge on
January 5, 1953.
At sometime during the fall of 1952, Mooneyham told Superintendent Vaughn that he would
like t o be laid o f f through t h e winter " ... so I could draw my unemployment, probably
pick up a little work around, that it was cold in the plant, that I didn't like to work in there
through the winter." Vaughn did not give him a definite answer.8
Mooneyham signed a union authorization card during about the middle of November 1952.
The day after he signed it he had a conversation with Vaughn. Concerning this conversation.
Mooneyham testified without contradiction as follows: 9
... He come back there and called me back in the back back there and said, "Well, I
heard you joined the Union."
I said, "Yes, that's right and turned in my card." I said, "I told my wife when I left
home I would be back home for supper because I knew you would fire me when you found
it out."
And he said, "Oh, I ain't going to fire you, I am not going to have any more to do
with it."
Mooneyham's last day of work for Respondent was on December 19, 1952. The plant closed
down at that time and did not reopen until January 5, 1953. When Mooneyham reported for
work on January 5, Vaughn discharged him. Vaughn gave him a separation notice which did
not set forth the reason for termination of employment. As of the date of the hearing herein,
Mooneyham had not been recalled to work.
The Respondent's discharge of Mooneyham on January 5, 1953, is not found to be violative
of the Act. The evidence shows that Mooneyham asked to be laid off, and that the Respondent
apparently complied with his request. Accordingly, it will be recommended that the complaint
be dismissed insofar as it relates to Robert Mooneyham.
E. The alleged discharge of John L. Sullivan
Sullivan worked as a night watchman for the Respondent for about 2 years before his dis-
charge on December 19, 1952. While athomeand at sometime during November 1952, Sullivan
signed a union authorization card. After Sullivan signed the union card, he received a cut in
wages , amounting to $10.50 per week . It appears that his hours also were decreased at the
time. it
At sometime after Sullivan signed the union card he had a conversation with Foreman Cleo
Wilkey. Concerning this conversation, Sullivan testified without contraction "And he was
talking around about the Union and I told him that I wasn't scared. If I thought there was a
drop of scare blood in me, I would take it out and cut it out, Wilkey, and he left ...."
Sullivan was discharged on December 19, 1952. His check was brought to him by the
Respondent's timekeeper who told him that he would be notified when to return to work. As of
the date of the hearing herein, Sullivan had not been reinstated to his job. Employee Lester
Walling took Sullivan's place as night watchman at about the time of the latter's discharge. ii
8Mooneyham at first testified that he made the above request "before this Union started."
Later he testified that he could not recall whether or not the conversation took place during
December 1952
9The Union filed the original unfair labor practice charge against the Respondent on
November 4, 1952.
i9Sullivan's testimony concerning his hours was vague and indefinite. The complaint does
not allege that Sullivan was discriminated against in this respect.
n As related and found above, on or about October 16, 1952, Walling told Vaughn that he had
not signed a union card.
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1 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is found that the General Counsel has failed to sustain the burden of proving that the
Respondent had knowledge of Sullivan 's membership in the Union. In my opinion. Sullivan's
testimony concerping his conversation with Wilkey is meaningless , and is insufficient to
prove knowledge . Accordingly , it is found that the Respondent 's discharge of Sullivan was not
violative of the Act; and it will be recommended that this allegation of the complaint be
dismissed.
F. The alleged discharge of Robert Olinger
Olinger was employed as a machinist by the Respondent for about 15 months before he was
laid off on about January 5, 1953 . He signed a union authorization card on or about October 15,
1952. He did not attend any union meetings , but at times discussed the Union with other em-
ployees and solicited them to join it.
As related above, the plant was closed from December 19 to January 5, 1953 . When Olinger
reported for work on January 5, Foreman Wilkey told him that he was being laid off because
of lack of work . Olinger was reinstated to his job on April 27, 1953.
As in the case of Sullivan, I believe and find that the proof is insufficient to show that the
Respondent had knowledge of Olinger 's membership in and activities on behalf of the Union.
It is found that his layoff was not violative of the Act , and it will recommended that this
allegation of the complaint be dismissed.
G. The alleged discharge of Max Haun
on about February 18, 1953
As related and found above, Haun joined the Union on October 11, 1952, and was present at
the union meeting held at Cumberland Springs on October 15. He was laid off from work on
October 15 , 1952 , and reinstated on February 2, 1953 . He was one of the employees named
in the original unfair labor practice charge which was filed by the Union on November 4, 1952.
Haun was employed as a spotwelder under Foreman Howard Hinds . Haun was discharged
on about February 18, 1953.
Concerning his discharge . Haun testified that after going to the restroom , he stopped to
talk to employee Charlie Rethers ; that while he was talking to Rethers, Hinds came to him
and said, "Let's go and see Mr. Vaughn "; that when they found Vaughn , Hinds told him that
Haun "killed about two hours a day on the job"; that he (Haun) asked Hinds to give him
another chance; that Hinds refused; and that Vaughn said that Hinds' "word went, so, that
would be all of ii." When asked by counsel how much time he took off during an average
working day , Haun testified , "I guess all told about 20 minutes." He testified that he did not
"think " that he took more time off than other employees , and denied that he had received
any warning before his discharge.
Concerning the discharge of Haun, Hinds testified as follows:
When I went to him he wasn 't at his machine, he was over at one of the presses over
there and I went over there and told him , I said, "I have fooled with you long as I am
going to fool with you. I am going to have to let you go ." I took him in there to Mr. Vaughn
to get his check. I asked him , "Do you know any other plant you could do this like you are
doing here? " He said, "No." I said, "Well, you will just have to get your check."
Hinds also testified that Haun was a "goodworker" when he worked but that "he just wouldn't
stay at the machine and work"; that on about February 9 he warned Haun that he would be
discharged if he did not stay at his machine and work; and that he warned him 3 or 4 times
after that. Employee Lewis Brown testified that during Haun 's last employment" ... a few
times I have seen him away from his machine." Employee Claude Goins testified , "Well,
I don't know whether you would call it loafing or not, but I did see him [Haun ] walking around
a right smart I think."
While the Respondent's motive in discharging Haun is not free from suspicion , I believe and
find that the General Counsel has failed to sustain the burden of proving that the discharge was
violative of Section 8 (a) (3) of the Act. As between Hinds and Haun, the latter impressed me
as the more reliable and credible witness . Haun 's denial of any warning before his discharge
is credited . However, the testimony of Brown and Gouts, whom I credit , indicates that Haim
loafed on the job. The testimony of Haun himself was not too emphatic in this connection. He
HUNT HEATER CORPORATION 1363
testified that he did not think that he took more time off than other employees. 12 Accordingly,
I find -that the Respondent discharged Haun for cause; and it will be recommended that this
allegation of the complaint be dismissed.
H. The discharges of Neil Shelton, Marvin Webb,
John Webb, and Marvin McMillan on May 29, 1953
Shelton was hired by the Respondent on April22, 1953, Marvin Webb on April 28, 1953, John
Webb on May 4, 1953, and McMillan on May 5, 1953. Marvin Webb and Shelton worked on the
assembly line under the supervision of the former's brother, Foreman Dennis Webb. McMillan
worked as a press operator under Foreman Wilkey. '
John Webb was employed on odd jobs around the plant. It appears that he spent most of his
time helping to build a fence on the outside of the plant. About a week after he was hired, he
had a conversation with Superintendent Vaughn. Concerning this conversation. Webb testified
credibly and without contradiction as follows:
Me and him was out there around themixer getting ready to fill in the holes. He wanted
to know who I was riding with. I told him I was riding with Ray Pilsen. He said, "Have
they ever said anything to you about the Union? " I said, "No." He said, "I don't thunk
we need any , can tend to our own business."
It is found that under the circumstances of this case the above interrogation of Vaughn
concerning the Union constitutes interference, restraint , and coercion.
John Webb joined the Union about a week after his conversation with Vaughn. McMillan
joined on about May 19. Marvin Webb joined the Union at about the same time. He also solic-
ited several other employees to join the Union.
Shelton joined the Union on about May 15. He nad two conversations with Howard Hinds con-
cerning the Union. With respect to the first, Shelton testified credibly, "He [Hinds] said ...
he heard I was trying to beaunion man. I said, no. He said it came to him pretty straight." 13
Shelton's second conversation with Hinds took place about3 or 4 days before his discharge, or
on about May 26. Concerning this conversation, Shelton was questioned and testified credibly
as follows:
A. He asked me did I sign a Union card and I said, yes, sir, and he said--asked me
was Little Webb in on it and I said, yes, sir.
Q. And what did you answer?
A. I said, Yes.
Q. Who was Little Webb?
A. Marvin Webb.
Q. Did he have anything more to say?
A. He said it is between us and Charles now.
Q. Who was he talking about, do you know, by Charles?
A. Vaughn.
Shelton, McMillan, John Webb, and Marvin Webb were discharged on May 29, 1953. They
were given termination slips which stated, "Work failed to prove satisfactory during six-
weeks' trial period."
Foreman Dennis Webb testified credibly to the effect that Shelton and his brother, Marvin
Webb, performed their work "as good as any of the rest" of the employees under his super-
vision; and that he was never consulted by his superiors in the plant concerning their work.
Hinds testified without contradiction that at the time Shelton was working at the plant he
was a "parts man" and not a foreman . 14 Accordingly , his interrogation of Shelton , related
2 Employee Archie Harwood testified that "part of the time" he worked near Haun and at
other times "farther" away, and that he did not notice Haun away from his machine more than
other employees. On cross-examination he admitted that he worked with his back to Haun the
"biggest part of the time."
13Hinds denied that he had any conversations with Shelton about the Union. Hinds' testimony
heretofore has been discredited in connection with the case of Max Haun.
i4As related above, Hinds was foreman over the spotwelders when Haun was discharged
during February 1953. He testified that he again became a foreman about 2 months before
the hearing.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, is not found to constitute aviolationof Section 8 (a) (1) of the Act. Further, since Hinds
was not a supervisory employee at the time , the fact that Shelton admitted to him that he and
Marvin Webb had signed union cards does not prove that the Respondent had knowledge of their
activity. There is nothing in the record to show that the Respondent had knowledge of the union
membership and activities of John Webb and McMillan.
For the above reasons It is found that the General Counsel has failed to prove that the
Respondent discriminatorily discharged Shelton, McMillan, John Webb, and Marvin Webb,
and it will be recommended that the complaint be dismissed as to them.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection
with the operations of the Respondent , described in section I, above , have a close, intimate,
and substantial relation to trade, traffic , and commerce among the several States , and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices , the under-
signed will recommend that the Respondent cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act.
It has been found that the Respondent discharged James B. Johnson on October 15, 1952,
and Benton Mooneyham and Dennis Mooneyham on October 20, 1952, because of their adherence
to the Union . It also has been found that the Respondent discriminatorily laid off the following
employees between the dates listed opposite their names:
James Houston 10/15/52 4/1/53
Floyd Jewell 10/15/52 4/1/53
Austin Bishop 10/15/52 2/3/53
Archie Harwood 10/15/52 2/2/53
Arthur Thomas 10/16/52 4/2/53
It will be recommended that the Respondent offer James B. Johnson . Benton Mooneyham,
and Dennis Mooneyham immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights or privileges.
It further will be recommended that the Respondent make whole all of the employees named
above for any loss of pay they may have suffered by reason of Respondent's discrimination by
payment of a sum of money equal to that which they would have earned as wages during their
layoffs, or in the cases of Johnson and Dennis Mooneyham, from the date of the discrimination
to the date of an offer of reinstatement, less their net earnings during said periods. Said loss
of pay shall be computed on the basis of each separate calendar quarter, or portion thereof,
during the period from Respondent's discriminatory action to the date of the offer of remstate-
ment. The quarterly periods, herein called "quarter" shall begin with the first day of January,
April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that
which the employee would normally have earned for each such quarter or portion thereof, his
net earnings , ifany, in other employment during that period. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter. In order to ensure com-
pliance with the foregoing back-pay and reinstatement provisions, it is recommended that
Respondent be required upon reasonable request, to make all pertinent records available to
the Board and its agents.
As the record shows that Benton Mooneyham entered the Armed Forces of the United States
on November 6, 1952, and, accordingly, may not be available for immediate reinstatement,
I shall recommend that, in order to restore him to his position and thus effectuate the policy
of the Act, the Respondent, upon application by Benton Mooneyham, made within 90 days of
his discharge from the Armed Forces, offer him reinstatement without prejudice to his
seniority or other rights and privileges . I shall also recommend that the Respondent be
ordered to notify Benton Mooneyham that he will be reinstated upon application within 90 days
of his discharge from the Armed Forces; and that the Respondent make him whole for any
loss of earnings he may havesuffered becauseof the Respondent's discrimination against him,
by payment to him of a sum of money equal to the amount he would normally have earned as
HUNT HEATER CORPORATION 1365
wages during those periods (1) between October 20, 1952, and the date when he entered the
Armed Forces, and (2) between a date 5 days after his timely application for reinstatement
and the date of the offer of reinstatement by Respondent, less his net earnings during these
periods. I shall also recommend that the Respondent be ordered to pay him immediately that
portion of his net back pay accumulated between October 20, 1952, and the date when he
entered into the Armed Forces, without waiting a final determination of the full amount of
his award. Stationers Corporation, 96 NLRB 196.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
2. By discriminating in regard to the hire and tenure of employment of James B. Johnson,
Benton Mooneyham, Dennis Mooneyham, James Houston, Floyd Jewell, Austin Bishop, Archie
Harwood, and Arthur Thomas, the Respondent has engaged in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
3. International Union, United Automobile Workers of America, A. F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act.
4. The aforesaid unfair labor practices, are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
DATE OF DISCHARGE DATE OR REINSTATEMENT
James B. Johnson October 15, 1952
Floyd Jewell October 15, 1952
Bruce Tharpe October 15, 1952
Austin Wilkey October 15, 1952
Benton Mooneyham October 17, 1952
Dennis Mooneyham October 17, 1952
John L. Sullivan
Robert Mooneyham
Robert Olinger
Max Haun
December 20, 1952
January 5, 1953
January 5, 1953
October 15, 1952 ebruary 2, 1953
February 18, 1953
Austin Bishop October 15, 1952 February 2. 1953
Archie Harwood October 15, 1952 February 2, 1953
Carl Dillard October 15, 1952 November 11, 1952
Arthur Thomas October 15, 1952 April 2, 1953
James Houston October 15, 1952 April 1, 1953
Willard Morgan October 15, 1952 April 6, 1953
Glenn Whitfield October 16, 1952 February 2, 1953
John Webb May 29, 1953
Marvin Webb May 29, 1953
Neil Shelton May 29, 1953
Marvin McMillan May 29, 1953
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Relations Act, we hereby
notify our employees that:
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in surveillance of union meetings.
WE WILL NOT interrogate our employees concerning their union membership and
activities, or threaten them with reprisals because of such activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to join
or assist International Union, United Automobile Workers of America, A. F. of L., or any
other labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the
Act, as guaranteed in Section 7 thereof.
WE WILL offer to James B. Johnson, Benton Mooneyham, and Dennis Mooneyham,
immediate and full reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges previously enjoyed, and
make them and,the following employees whole for any loss of pay suffered as a result of
the discrimination.
James Houston
Floyd Jewell
Austin Bishop
Archie Harwood
Arthur Thomas
All our employees are free to become or remain members of International Union, United
Automobile Workers of America, A. F. of L., or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on behalf of any such labor
organization.
HUNT HEATER CORPORATION,
Employer.
Dated .. .............. By..................................... ........................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
MANCHESTER KNITTED FASHIONS, INC. and INTERNATION-
AL LADIES' GARMENT WORKERS UNION, AFL, Petitioner.
Case No. 1-RC-3607. June 18, 1954
DECISION AND DIRECTION OF ELECTION
Upon •a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before M. Alice
Fountain, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
108 NLRB No. 203.