Hyster Co.

National Labor Relations Board - Board Decisions

Jan 26, 1972

195 N.L.R.B. 84 (N.L.R.B. 1972)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hyster Company and Arthur J. Wolfe . Case 38-CA-
1033
January 26, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On September 22, 1971, Trial Examiner Melvin J.
Welles issued the attached Decision in this proceeding.
Thereafter , the Respondent filed exceptions and a sup-
porting brief, the Charging Party filed an answering
brief and the General Counsel filed a brief in support
of the Trial Examiner 's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the Trial
Examiner ' s Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings , findings,' and conclusions and to adopt his
recommended Order except as modified below.'
As more fully set forth in his Decision , the Trial
Examiner found that the Respondent violated Section
8(a)(3) of the Act by a series of actions taken against
Arthur Wolfe both during and after his tenure as a
union steward , culminating in his discharge , and Sec-
tion 8(a)(1) by harassing Wolfe and another steward,
Robert Elliot , and by coercively interrogating a third
steward, Robert Wilkerson .' We affirm the Trial Ex-
aminer's ultimate conclusions , with the exception of
the interrogation of Wilkerson . However , certain as-
pects of the Trial Examiner 's Decision require clarifica-
tion in the light of the Respondent 's exceptions to
remove any possible ambiguity.
Respondent excepts to the Trial Examiner 's infer-
ence` that it knew Wolfe was likely to be removed as
a steward when it transferred him on September 21,
1970, in view of the Trial Examiner 's earlier findings
that there was no evidence that Respondent had such
knowledge and that the Union, not the Respondent,
removed him from office . There is, of course , no neces-
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board 's established policy not to overrule a Trial
Examiner 's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions were
incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d
362 (C A. 3) We have carefully examined the record and find no basis for
reversing his findings
The Respondent 's request for oral argument is hereby denied since in
our opinion the record in this proceeding , including the exceptions and
briefs , adequately presents the issues and the positions of the parties
In his conclusions of law the Trial Examiner inadvertently finds that the
interrogation involved Robert Elliot.
In the third paragraph of section 2(d) of the section entitled "Conclud-
ing Findings "
Section III , B, par 16
sary inconsistency between these findings . To the con-
trary , were there direct evidence of Respondent's
knowledge such an inference would be superfluous.
Nor is it necessary to find that Respondent had im-
mediate control over Wolfe 's status as steward. It is
enough that Respondent was aware of, and in the cir-
cumstances here may be presumed to have intended,
the likely consequence of its act.
Respondent also cites as error the Trial Examiner's
finding that certain actions taken against Wolfe , includ-
ing his discharge , were a consequence of his activities
as a union steward, since the actions were taken after
Wolfe was removed from office . Aside from the fact
that these actions were an outgrowth of Respondent's
hostility towards Wolfe which had its origin in his
vigorous and persistent pursuit of his duties as and
while a union steward , it is clear that this antipathy
persisted and grew , even as Wolfe persisted in filing
grievances against the Respondent, despite his loss of
office . There is no requirement , either in the Act or in
precedent , that concerted activities must only be pur-
sued under the aegis of official union status to warrant
protection under the Act. Moreover, as to the October
15, 1970, information report-conditioning Wolfe's fu-
ture employment status on whether he continued filing
repetitive grievances-Respondent 's action was unlaw-
ful even absent the finding that it was , in part , based on
his activities as a steward . On its face the report strikes
at a basic and important employee right under Section
7 of the Act and is inherently destructive of such rights,
since it specifically curtails Wolfe's right to engage in
protected concerted activity and has an obvious chill-
ing effect on the exercise of these rights by other em-
ployees. It would , as the Trial Examiner found , violate
Section 8 (a)(3) even if the Respondent , contrary to the
fact , had demonstrated a legitimate business purpose,
and was not unlawfully motivated . N.L.R.B. v. Great
Dane Trailers, Inc., 387 U. S. 483.
We do not reach , nor do we pass upon , the Trial
Examiner' s finding that Wolfe's June 29 suspension,
allegedly for counseling an employee not to perform
work, would have violated Section 8(a)(3) as well as
Section 8(a)(1) irrespective of motive had the Respond-
ent in fact , though erroneously , believed that Wolfe had
engaged in the conduct charged against him. Instead
we rely on the Trial Examiner 's alternate finding that
the Respondent was unlawfully motivated. However,
we specifically adopt the Trial Examiner 's factual
finding that Wolfe did not engage in the conduct al-
leged and thus , even supposing such conduct in the
course of concerted and otherwise protected activity
would support lawful discipline (which , like the Trial
Examiner, we do not reach or pass upon ), Respond-
ent's action did violate Section 8(a)(1) without regard
to motive . NL.R.B. v. Burnup & Sims, 379 U.S. 21.
195 NLRB No. 7
HYSTER COMPANY 85
As noted above, the Trial Examiner found that Re-
spondent violated Section 8(a)(1) of the Act by coer-
cively interrogating Robert Wilkerson, a union stew-
ard. Robert Lange, the plant manager, took a pen from
Wilkerson's pocket while Wilkerson was in the com-
pany of the Union president and the chief steward and
commented that he thought it would have "U.A.W."
written on it. Although this byplay might have been
slyly conceived to trick Wilkerson and the other union
officials into revealing their UAW sympathies, there
does not appear to have been any coercion. Even grant-
ing an intent to inquire, it may reasonably be doubted
that, viewed objectively, the participants would realize
they were being interrogated, much less coerced, par-
ticularly as the Trial Examiner found that evidence of
employer hostility towards the UAW was minimal. We
shall dismiss this allegation of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that Hyster Company, Danville, Illinois, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's recommended
Order as modified:
1. Delete paragraph 1(c) from the Trial Examiner's
recommended Order.
2. Substitute the attached notice for the Trial Ex-
aminer's notice.
MEMBER KENNEDY, concurring in part and dissenting
in part:
I agree with my colleagues that Respondent violated
Section 8(a)(1) and (3) of the Act by suspending Arthur
J. Wolfe for 9 days on June 29, 1970, and thereafter
discharging him on October 16, 1970.
I do not agree with my colleagues, however, that
Respondent violated the Act by transferring Wolfe to
the final assembly department on June 29, 1970 (prior
to his suspension), or transferring him to the "load
arm" department on September 21, 1970. In my opin-
ion, the evidence is insufficient to support a finding that
these transfers were discriminatorily motivated. Simi-
larly, I disagree with my colleagues' conclusion that
Respondent acted unlawfully when it informed Wolfe
on September 17, 1970, that he was not to leave his area
to transact union business without informing super-
vision. Respondent advised Wolfe that if he needed to
see anyone in connection with a grievance matter a
meeting place would be provided in an office and the
person sent to the office to see him. Wolfe was a depart-
ment steward and not a steward for the entire plant.
The incident occurred after Wolfe had absented himself
from his work area for an hour and a half. I view the
incident as no more than an attempt to impose a rea-
sonable restriction on the worktime Wolfe was devot-
ing to union matters.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, suspend, or issue ad-
verse reports to any employee for engaging in un-
ion activities.
WE WILL NOT in any way restrict employees
who are lawfully performing union business.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of rights under Section 7 of the Act.
WE WILL offer Art Wolfe his former job and
pay him for losses he suffered as a result of his
discharge in October 1970, and his suspension in
June 1970.
WE WILL remove from Art Wolfe's personnel
files the information reports unlawfully given to
him, and give them no effect.
HYSTER COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named in-
dividual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
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, Savings Center Tower, 10th Floor, 411 Hamil-
ton Blvd., Peoria, Illinois 61602, Telephone 309-673-
9061, Extension 282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner . This proceeding was
heard at Danville , Illinois, on February 24, 1971, pursuant to
a charge filed October 27, 1970, and a complaint issued
December 7, 1970, alleging that Respondent violated Section
8(a)(1) and (3) of the Act.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by the
General Counsel, the Respondent, and the Charging Party,
I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Hyster Company is a Nevada corporation with places of
business located in Danville, Kewanee, and Peoria, Illinois,
where it is engaged in the manufacture and sale of lift trucks.
Its annual sale and shipment of products to points outside the
State of Illinois are valued in excess of $50,000, and its annual
purchase of materials from outside the State of Illinois are
also in excess of $50,000 . I find that Respondent is engaged
in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Independent Lift Truck Builders Union, herein called the
Independent, and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
herein called the UAW, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
This case centers on the activities of Art Wolfe, a company
inspector and union steward , and a series of transfers , adverse
reports , harassments , and finally discharge , which allegedly
befell Wolfe because of his activities. The General Counsel
contends that the Company was motivated in each of the
actions taken by the nature and extent of Wolfe's stewardship
and presentation of grievances, both on his own behalf and
that of other employees, as well as by his leadership in a
movement to have the Independent affiliate with the UAW.
The Company takes the position that some of the above
actions were normal business decisions , not even detrimental
to Wolfe let alone illegally motivated, that the suspension and
discharge were each for good cause , and that in any event
Wolfe's conduct during the last few months of his employ-
ment was such as to "cause any employer to resolve his
doubts against him." The only alleged violations which do
not actually involve Art Wolfe are two incidents of interroga-
tion, by French, of Elliott, and by Lange, of Wilkerson, and
alleged harassment and surveillance of Elliott (along with
Wolfe) by Brooks and Dixon. ,
B. The Facts
Arthur Wolfe was hired by Respondent October 1963. In
September 1966, after he had worked as a line assembler in
the final assembly department , as a line assembler again, and
then as a line assembly floater , he became an inspector in the
assembly department . He was transferred to the final assem-
bly department as an inspector about 2 years later, and in
February 1970 became a "troubleshooting" inspector.'
On June 29, 1970, Wolfe was transferred to a different unit
as a final assembly inspector, and on September 21, 1970, he
was transferred to the load-arm unit as an inspector. These
two transfers are alleged by the General Counsel to have been
discriminatorily motivated.
' Wolfe testified that he obtained this transfer "through a grievance "
Quality Control Manager Paul Shore testified , however, that the grievance
was denied , but Wolfe was later transferred to the job No crucial conflict
requiring resolution is presented by this difference.
The testimony shows, and Respondent does not deny, that
at least until about June 1970 Wolfe was a highly competent
employee. He received a number of monetary awards for
suggestions he had made , diplomas for attending schools and
taking various courses, and his transfer to "troubleshooting"
itself attests to his competence. He received no complaints or
warnings in that time about the quality of his work.'
Wolfe became a steward for the Independent in May 1968.
Between then and September 1969 he filed about 15 griev-
ances. Between September 1969 and June 30, 1970, when
Wolfe was suspended for 9 days, he filed 20 grievances, and
between June 30 and October 16, when he was discharged, he
filed 15 more grievances.'
Wolfe was quite active in seeking to have the Independent
affiliate with the United Auto Workers. He had spoken to
several UAW representatives about setting up meetings, and
a meeting for the purpose of discussing affiliations with the
UAW was scheduled to be held June 30. Prior to that, Wolfe
had spoken to approximately 50 employees of Respondent on
the premises, as well as by telephone, concerning the meeting,
which was held, and attended by about 150 employees.
On June 30, 1970, as noted above, Wolfe was suspended for
9 days. The events leading u to this suspension are in some
dispute, although what Wolfe actually did, based on his own
credible testimony, and fully corroborated by employee
Clyde Darnell, also a union steward at the time, is not in
dispute at this time.
On June 26, 1970, Wolfe was approached by employee
Ronald McConkey, with Darnell present. McConkey said he
had just been fired by his foreman, Jim Staub, for refusing to
carry parts, a refusal grounded on McConkey's belief and
assertion that this was a "parts man job." McConkey asked
Wolfe if the Company could require him to carry the parts,
and Wolfe replied "Well, it is a parts man classification."
When McConkey said that Staub had told him to punch out
and go home, Wolfe replied "Well, before you leave and go
home, wait and I'll see if I can get hold of your steward and
your chief steward." Shortly afterward employee Jim Ingram
told Wolfe essentially the same thing, that Staub had ter-
minated him for refusing to carry parts, and Wolfe told In-
gram to wait until he, Wolfe, could get hold of Elliott and
Cushman, two union officials, to iron out the situation.
Respondent's "version" of what Wolfe did has Wolfe tell-
ing McConkey, who merely sought Wolfe's advise, as to
whether he should perform the task as instructed by Staub,
not to do the work. The testimony adduced by Respondent
in this respect does not contradict the testimony of Wolfe and
Darnell, for it consisted entirely of hearsay in that connec-
tion. For example, Supervisor Staub testified in effect that he
was informed by McConkey that Wolfe told him not to per-
form the work. Obviously this does not prove that Wolfe did
so. Nor, of course, does Staub's testimony that he saw
McConkey conferring with Wolfe before the refusal leading
to McConkey's discharge, particularly since Staub testified
that he did not hear what was said . Finally, a statement given
to Respondent's Industrial Relations Manager French at a
' The only complaint about Wolfe before his transfer from the trouble-
shooting job was in a conversation with then Inspection Foreman Paul Shore
in September 1969. Shore told Wolfe at that time that his union business was
interrupting his production too much, and that if Wolfe continued to have
as much union business as he had in the past he would have been transferred
to another department Employee Glenn Burress, also a steward, was
present at and confirmed this conversation Shore testified that he did not
recall the specific incidents I credit Wolfe and Burress as against the "I am
not positive, I don't recall" of Shore.
' From September 1969 to October 1970 there were about 250 griev-
ances filed under the contract between Respondent and Independent. There
were about 40 independent stewards all told
HYSTER COMPANY
subsequent interview with McConkey was to the effect that
Wolfe had told him not to do the work. Aside from the fact
that McConkey modified his story subsequently to French,
and refused to sign the original statement he had given to
French on that very basis, French's testimony to this effect
is again clearly hearsay with respect to what Wolfe actually
told McConkey. McConkey himself, as noted, was not called
as a witness at all. I discuss the testimony adduced by Re-
spondent further in my resolution of this particular allegation
of the complaint, as Respondent argues that its motivation
was its belief that Wolfe had so instructed McConkey.
Subsequently, a meeting was held, with French, Union
Steward Elliott, and other company and union representa-
tives present. Wolfe was not present at this meeting as a union
representative. French called McConkey and Ingram into
this meeting to give their stories, and then requested written
statements of them, having them repeat their earlier state-
ments. When repeating his statement for the purpose of hav-
ing French reduce it to writing, McConkey in effect changed
his earlier statement, again according to French, as to what
Wolfe had told him. The first version, according to French's
testimony, was that Wolfe told McConkey that he did not
have to do the job. The second version, however, was that
Wolfe told him that it was a "parts man job" and he should
"get a hold of his steward." Wolfe was subsequently called
into the meeting, and he explained that he had not told either
McConkey or England not to carry the parts. He also asked
the Company to speak to Clyde Darnell, because Darnell had
been a witness to the situation.
A later meeting was held about June 29 or 30 at which time
French told Wolfe that he was going to be suspended because
he had instructed the men not to do the work and to be
insubordinate. According to Wolfe's testimony, Wolfe again
denied that he had so instructed the men, and again requested
French to conduct another meeting, to bring Darnell in as a
witness, and to have Ingram and McConkey present at the
meeting. French refused this request and the suspension took
place.
Just before the incident leading to his suspension Wolfe
had been transferred to the final assembly department as an
inspector, being removed from his troubleshooting job. In his
new position his unit manager was Roger Brooks and his
immediate supervisor Gene Dixon. As noted, this transfer is
alleged by the General Counsel to have been discriminatorily
motivated. The General Counsel contends that Respondent,
by eliminating the troubleshooting job and transferring Wolfe
to the inspection job in final assembly, thereby reduced Wol-
fe's mobility so that he would be working in only one-third
of, rather than throughout, the assembly plant, and also
placed him under the supervision of Brooks, who, the Gen-
eral Counsel asserts, "proved himself more adept than other
supervisors in monitoring the activities of union representa-
tives." At the time of this transfer Wolfe was informed by
Foreman Sanders that the troubleshooting job was being dis-
continued as a result of a work reduction. Quality Control
Manager Joe Barcroft testified that Wolfe was transferred as
a part of a reduction in the building schedule at that time. An
exhibit prepared by Barcroft shows the number of transfers
made during 1970 of inspectors still employed by the Com-
pany at the time of the hearing. Without going into any detail
at this point, the exhibit does not show that some nine inspec-
tors in addition to Wolfe were transferred during June of
1970.
A few days after Wolfe returned to his new position follow-
ing the suspension, Roger Brooks came up to him and told
him that any time he left the area he was first to inform
Brooks and also was to let Brooks know the nature of the
business for which he had to leave, that if it was union busi-
87
ness Wolfe was to let Brooks know what it was about and how
long he was going to be gone. Brooks also told Wolfe that his
union business had been interfering with his production.
According to Wolfe he had never been required to make
this type of report to any supervisor before that time. Wolfe
also testified that from about July 15 until he left that unit on
September 21, the same type of thing occurred two or three
times a day. Wolfe's immediate supervisor, Gene Dixon, had
a conversation with him about 3 or 4 days after the first
conversation with Brooks. Dixon told him "about the same
thing that Roger did; that they needed more production out
of me." Dixon said approximately the same thing to Wolfe
on two other occasions within the ensuing 2-week period.
A final incident involving Brooks and Wolfe occurred
about 3 or 4 days before Wolfe was transferred on September
21. Wolfe told Brooks that he had to go somewhere on union
business, and he also mentioned this to Dixon. He then pro-
ceeded to go to the nurse's office in another building and to
the union office and returned to his department, according to
him, in about an hour or an hour and a half. When he
returned Brooks told him that in the future if he had to go
on union business he was to inform Brooks that it was union
business, and that he, Brooks, would set up a meeting in Paul
Moore's office. Brooks also said that Wolfe was no longer to
go to the fabrication building or the union office, that he
would not be allowed to leave the assembly building any
more, and added that if Wolfe had to contact anyone for a
grievance meeting either Brooks or Paul Moore would do the
contacting and a meeting held in their office. Wolfe testified
that several of the aforementioned conversations with Brooks
occurred with Union Chief Steward Bob Elliott present after
he had come to talk with Wolfe about union problems. Ac-
cording to Elliott's credible testimony, on a number of occa-
sions when he came into the area to talk to Wolfe, Brooks
would come over, ask if the conversation had been okayed
with the foreman, whether it involved union business,
whether there were any grievances, and if so whether they
pertained to Brooks. This sort of conversation occurred three
or four times a week until Wolfe was transferred to the load
arm plant.
As indicated above, Dixon did not testify. Brooks, who did
testify, did not specifically deny Wolfe's version of the various
conversations concerning Wolfe's union business. Brooks tes-
tified that he did ask Wolfe on at least six occasions what he
was doing while he was not performing inspection duties. But
he said that although he required Wolfe to tell him whether
he was in fact on "union business," he did not inquire as to
the specific subject of conversation or the particular business
involved. I credit Wolfe, who was in effect corroborated by
Chief Steward Elliott in this respect, as against Brooks, and
find that in fact Brooks did ask for the details as to the nature
of the business and specific subject involved when Wolfe was
performing his steward functions. Brooks also testified that
Wolfe's production was lower than that of the other inspec-
tors. Since Wolfe was a union steward, and since, according
to Brooks' own testimony, he spent approximately an hour a
day on his steward functions and this was perfectly legitimate
under the agreement, it is obvious that Wolfe's production
would be lower than that of the other inspectors, particularly
the bulk of the inspectors who were not union stewards at all.
Furthermore, according to Brooks' testimony, his view that
Wolfe's production was low was based on a "visceral reac-
tion." Brooks attempted to explain his testimony that Wolfe's
production decreased by a method of computation called
"least squares." I was frankly unable to understand this tes-
timony; nor did the Company produce any records, although
Brooks testified that they existed, with respect to Wolfe's
production. Also, the method of computing production
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seemed to vary from department to department, and I was
not satisfied by Brooks' explanation of the difference between
the way he based production and the way Quality Control
Engineer Shore based it.
On September 21, 1970, Wolfe was transferred from the
"final assembly" to another department, called "load arm."
There is no indication in the record that his duties as an
inspector in the load arm department were any different or
any more onerous than had been his duties as a final assembly
inspector, nor that he received any less pay or other benefits
in his new position. One effect of the transfer, however, was
that Wolfe was no longer a union steward, since the load arm
department already had a union steward. Essentially on this
basis, the General Counsel alleges this transfer as having been
motivated by Wolfe's continued vigorous union activities as
a steward for the Union. Respondent adduced testimony
from Joe Barcroft, its quality control manager, to the effect
that approximately six inspectors were transferred about the
same time, in the middle of September 1970, as was Wolfe,
and that these transfers were for training and development
purposes. Wolfe, on the other hand, testified that, aside from
a 2- or 3-hour indoctrination by the quality engineer, he
received no other training other than the kind of general
access to the quality engineer for assistance that was available
to all inspectors. There is no evidence to show that the Re-
spondent knew that Wolfe would be removed as a union
steward by nature of the transfer. He was actually relieved of
his duties as steward by the Union, according to Wolfe's own
testimony, because the Union said he was no longer needed
as it already had a steward in that department.
After his transfer to the load arm department, Wolfe re-
mained active in seeking to have the Independent affiliate
with the UAW, and he filed a number of grievances. On
September 23, 1970, Supervisor James Mariage filed an infor-
mation report on Wolfe for being away from his work for too
long a period. The information report indicates that Wolfe
left his department at 12:45 p.m. and returned at 1:10 p.m.
and this reflects the testimony of Manage. Wolfe testified that
this absence began at 8:55 a.m., and ended at 9:13 a.m. He
thus placed the absence at 18 minutes whereas the informa-
tion report stated a 25 minute absence. However, Supervisor
Manage in his testimony indicated that he told Wolfe at the
time that he had been out of the department for "20 to 25
minutes." I am inclined to believe that Wolfe's testimony as
to the amount of time he was gone is the more accurate in the
light of his recollection that he had looked at his watch and
noticed that it was almost his "break time." It is, in my
opinion, clear that Wolfe made a mistake in placing the inci-
dent as beginning 5 minutes before his morning break and
that it actually occurred in the afternoon, 5 minutes before
his 1 p.m. break. However, this mistake does not go to the
elapsed time involved in his absence.
Shortly after Wolfe came to the load arm department Qual-
ity Engineer Kenneth Parsons told him, among other things,
to stamp the load arm that he approved one hundred percent.
According to Parsons, Wolfe told him he did not want to
stamp every fork that he passed if he could not perform all
the inspection tests on the part. That, according to Parsons,
was the full conversation at that time. Subsequently, about
October 13, Parsons spoke to Wolfe again about stamping all
the forklifts that he inspected, whether he had inspected them
visually or with the various equipment available for more
thorough inspection procedures. Wolfe questioned this proce-
dure, asking Parsons why he had to stamp load arms that
were only visually inspected, Parsons replied that Manage
had told him to tell that to Wolfe. Wolfe then went to Ma-
riage , with Union Steward Cliff Oliver present, and asked him
why each load arm had to be stamped. Mariage replied, "Just
because I told you so." Wolfe pressed Mariage for a more
complete answer, and Mariage then told Wolfe that he was
to be responsible for every load arm inspected, and that
stamping them would indicate that Wolfe had inspected all
the load arms, and Mariage would know which ones had been
inspected by him. The next day Mariage wrote an informa-
tion report reflecting the substance of this incident. The infor-
mation report was handed to Wolfe, who refused to sign it.
Wolfe said that there was no need for such an information
report, that Manage should have it in the job description so
that the inspector could refer to it and know what his job was,
or "should have made a man aware of this before you put it
into an information report." Mariage said that he was going
to keep the matter in the information report filed in Wolfe's
personnel records. Wolfe continued to disagree, and told Ma-
riage he would have to write a grievance on the issue, and that
he wanted to see Chief Steward Dick Marlatt.
About half an hour later Marlatt came over and another
discussion ensued. At this time Mariage told Wolfe that if he
found any one mistake in his work he would fire him for it.
Marlatt said "Do you mean to tell me that you are going to
fire this man for any one mistake and he is going to be in
constant fear of his job?" Mariage replied "Well what I meant
was that if I find any crack or anything like that in his work
that I will fire him for that." Wolfe asked essentially the same
question Marlatt had asked previously, and Mariage again
replied "That's what I said, I'm going to fire you if I find a
crack or anything like that in your work." Wolfe said "Well
I'll have to write a grievance on this issue too then." This
ended the meeting at that time.
Mariage's testimony was not in substantial conflict with
that of Wolfe and Marlatt. According to Manage's tes-
timony, Wolfe "kept baiting me," and Mariage finally said if
you "miss a crack that is visible to the naked eye I would
probably terminate you." I credit the testimony of Wolfe and
Marlatt, and find that it was Mariage who first brought up
the question of making one mistake in checking the load arms
as being a cause for discharge.
The next day, October 15, at the outset of a grievance
meeting between Wolfe and Mariage, Wolfe handed Mariage
three more grievances. Mariage questioned Wolfe whether he
was going to continue to write grievances of that nature in his
unit, and Wolfe replied that he would if he deemed it neces-
sary. Shortly after Wolfe returned from this meeting , Mariage
came to him with another information report. The informa-
tion report states:
You have continually filed a repetitive grievance of this
nature. The problem associated with this is presently
being negotiated between the Union and the Company
for the purpose of reaching an agreement concerning an
employee being temporarily assigned out of his classifi-
cation. Your continuing to file grievances with reference
to temporary assignment, in view of the above negotia-
tions constitutes harassment, wasting Company time
and abusing your privilege as an employee under the
terms of Article III, Section I, Paragraph A.
You have continued to file this same type of grievance
which has taken you off your job for a considerable
amount of time, and has caused the Company a loss of
production. Should you continue this practice relative to
the above issue, you will be subject to more serious disci-
plinary action which will include suspension and/or dis-
charge.
After Wolfe read the report he told Manage that it consisted
of an unfair labor practice and he would have to file charges
about it. Manage responded "Well, you do what you like but
this is going to go in your file too."
HYSTER COMPANY
Shortly before 3 p.m. that same day Manage approached
Wolfe and Cliff Oliver and told them to come with him.
Wolfe and Oliver went with Manage to the wheelabrader
area on the opposite side of the plant . Manage said "You see
that crack in that load arm? You inspected those, didn't
you?" Wolfe replied "Yes I guess I did." Manage repeated
"Do you see that crack on that load arm?" and Wolfe said
"No, I'm sorry, I don' t." Manage then asked Oliver if he saw
the crack, and Oliver also replied no, that he did not see it.
Then Manage pointed directly to a crack on the load arm and
said "Now do you see it?" And Wolfe replied "Well, yes I do
now." Manage then said "Well just leave it there. You might
as well go get your tools and pack them up and go home
because I don't want anybody working in my unit that would
pass stuff like that."
There is no doubt that there was a crack on this particular
load arm, as photographs introduced into evidence do show
this crack. Wolfe indeed did not deny that he failed to dis-
cover the crack. His testimony was to the effect that the crack
in question was in a most unusual place , where he had never
seen a crack before, although he had rejected some 11 load
arms for cracks in other parts of the load arm. Wolfe also
explained that because of the scale and rust on the load arm
and the fact that the crack was concave, he believed that is
why he was not able to see it.
There were four load arms on the skid which contained the
load arm with the crack. Wolfe had inspected them once, and
rejected all of them for varying reasons . These four load arms
had been sent by Wolfe to the welding department for weld-
ing work and to be ground. At the particular time the area
where Wolfe was located was full of load arms, and Wolfe
was unable to have the particular skids come back to his area,
so it was necessary for him to go to the welding department
to check the four load arms there in order to see that they had
been welded and ground as he had directed. He went there
and "o.k.'d" them and the truckdriver then picked them up
and took them over to the wheelabrader.
According to Quality Engineer Ken Parsons, the type of
crack in question does occur from time to time, and is some-
times discovered by people other than the inspector, who
work on the load arm before it reaches the inspection stage.
Parsons said that as many as 20 operators might have han-
dled the load arm before it came to Art Wolfe. He added that
depending on when the crack occurred, between 2 and 20
operators would have looked at it. Had the crack been in the
raw material , all the operators working on the particular load
arm would have looked at it. Had the crack occurred after the
quenching operation, then only two operators would have
seen it before it reached the inspector. Although Parsons
testified that he was unable to see the crack in the load arm
when he went to view it, he came having already been told
that the load arm did contain a crack, and he indicated that
this particular type of load arm had had that kind of defect
before, so that when he approached it he immediately began
to look in the area where the crack was. Parsons did say that
this was the first crack of that type he had seen since Wolfe
came into the department. Supervisor Manage testified that
in his belief Wolfe had deliberately passed the cracked load
arm. It was Manage who discovered the crack. He first no-
ticed it when standing near the wheelabrader with the
wheelabrader operator next to him. When he noticed it he
asked the wheelabrader operator if he could see it . The opera-
tor looked at it from a distance of approximately a foot, and
said that he thought it was a crack. At that point Mariage
looked at it again to make sure that it was a crack.
Employee Robert Elliott testified concerning a meeting
held in September 1970, not too long before the incident
involving Wolfe, in which Foreman Sanders told an inspector
89
named Bill Murray that he was giving him an information
report because of bubble holes in the upright weld of an
upright. Murray said that he knew about the truck and had
seen the bubble holes when he passed it as an inspector.
Sanders then told Murray that he was going to have to give
him an information report. Elliott also testified that other
than the receipt of an information report, he had never known
an inspector to be disciplined or discharged in any way be-
cause of passing a defect.
Quality Engineer Parsons testified on cross-examination
that he had known defective load arms to be returned both
from the field and other areas of the plant, and that, he had
seen defects in these load arms that had gone through inspec-
tors, and that the inspectors involved had been talked to, but
not received any form of discipline or discharge or even an
information report.
The day after the cracked load arm was discovered, a
union-management meeting was held, and Wolfe was called
in and told by David French that he was being discharged.
French told Wolfe at that time that although he had had a
good work record until he was suspended, his attitude had
changed quite drastically at that time, he had since received
several adverse reports, and finally he had passed the cracked
load arm, and that he was being discharged for all these
reasons.
At a subsequent meeting after Wolfe's discharge French
had said, according to the testimony of Dennis Hicks, secre-
tary of the Independent Union, that Wolfe's attitude had
changed some time in May or June, about 6 months prior to
Wolfe's termination. From the testimony of David French, it
is clear that the most critical factor considered by manage-
ment in discharging Wolfe was the fact that Manage believed
Wolfe had intentionally passed the cracked load arm. Ac-
cording to French's testimony, management , at the meeting
in which it decided to discharge Wolfe, also considered the
fact that Wolfe was suspended 3 months earlier for "en-
couraging insubordinate action" (the incident involving
McConkey referred to earlier) and that for the period of time
that he worked under Mariage in the load arm plant Wolfe
had continually questioned Mariage, arguing with him, filing
grievances, and being out of his unit an excessive amount of
time . For all these reasons, according to French , management
felt that Wolfe was no longer a reliable inspector. On cross-
examination , French stated that Wolfe 's "change in attitude"
was one of the reasons for his discharge, although on direct
examination he had stated to the contrary. On being pressed
in cross-examination , French, who initially stated that the
volume of grievances filed by Wolfe had nothing to do with
the Company's view about Wolfe's change in attitude,
conceded that the filing of the excessive number of grievances
was "part of the whole story of Art Wolfe." Finally, French
indicated, also on cross-examination, that he did not know of
any problem other than the cracked load arm, and the prob-
lem of stamping each load arm by Wolfe, that did not relate
to the filing of grievances by Wolfe.
C. Concluding Findings
1. The interrogation
I cannot find that the short conversation between French
and Chief Steward Robert Elliott violated Section 8(a)(1) of
the Act. I refer to the June 16 occasion when French re-
marked to Elliott, "I hear we have a U.A.W. petition in the
plant ," and, when Elliott responded "Oh, we have?," French
added "You don't know about it?" and Elliott replied "No."
I find nothing coercive in this conversation, nor do I conclude
that in the circumstances French was really questioning Elli-
ott about the petition. He was more, in my view , indicating
some surprise that Elliott had not yet heard of it.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 27 Plant Manager Roger Lange approached
employee and union steward, Robert Wilkerson, who was
standing with Chief Steward Marlatt and Union President
Mitton. Lange removed a pen from Wilkerson's shirt pocket,
examined it, returned it to the pocket, and said he thought it
would at least have had UAW written on it . This, in my
opinion , was not an innocuous comment, but was, as the
General Counsel contends, designed to elicit Wilkerson's
sympathies regarding the UAW affiliation movement, and, in
all likelihood, the sympathies of Marlatt and Mitton as well.
I therefore conclude that this statement constituted coercive
interrogation, and that Respondent thereby violated Section
8(a)(1) of the Act.
2. The discrimination against and harassment of Wolfe
As noted above the General Counsel alleges that Respond-
ent violated Section 8(a)(3) and (1) or 8(a)(1) alone with
respect to Art Wolfe on various dates starting June 29, 1970,
and culminating in Wolfe's discharge on October 16, 1970.
Within this less than 4-month period, Respondent transferred
Wolfe twice, suspended him for 9 days, issued a number of
information reports concerning his conduct, allegedly
harassed and threatened him, and discharged him. Although
as to most of these actions by Respondent the question of
motive is of critical importance, as to some of them a viola-
tion exists irrespective of Respondent's "motive." I will treat
first with these latter incidents or conduct.
a. The suspension of June 29
As found above , the facts as to what occurred just prior to
Wolfe's suspension show without any question that Wolfe
had not told either McConkey or Ingram not to perform
work ; he had , when approached by them and told that they
had been fired for refusing to do the work , advised them to
see their steward before they left the plant to go home. There
is no question but that this advice by Wolfe , who was a union
steward , was a protected activity . Accordingly, even had Re-
spondent in good faith believed that Wolfe had instructed the
two men not to do the parts work, and assuming that had he
done so this would have constituted valid ground for sus-
pending or otherwise disciplining Wolfe, a violation of Sec-
tion 8 (a)(3) and (1) of the Act has been made out here.
N.L.R.B. v. Burnup & Sims, 379 U.S. 21; Hugh H. Wilson
Corp. v. N.L.R.B., 414 F.2d 1345, 1351 (C.A. 3); Crown
Central Petroleum Co. v. N.L.R.B., 430 F.2d 724, 729 (C.A.
5).
b. The October 15 information reports
This information report, which is quoted in full above,
threatens Wolfe with disciplinary action, possibly including
suspension or discharge, if he continued to file a particular
type of grievance. As in the case of the June 29 suspension,
Respondent's motive in issuing this report cannot alter the
fact that on its face it threatens Wolfe for the exercise of
protected activity under the statute-his pursuit of his duties
as a union steward and his filing of grievances. Accordingly
the issuance of this information report is plainly violative of
Section 8(a)(1) and (3) of the Act, and I so find.
Even though, as I have indicated, Respondent's motive is
of no significance in determining whether the suspension of
June 29 or the information report of October 15 violated the
Act, because motive is important with respect to the unfair
labor practice allegations herein, and because in my view the
two incidents shed considerable light on Respondent's atti-
tude toward Wolfe and its motivations in connection with
those other incidents, I shall consider the suspension and the
adverse notice from that standpoint as well.
The General Counsel convincingly points out in his brief
a number of reasons for concluding, as I do, that Respondent
did not believe when it suspended Wolfe on June 29 that he
had told McConkey or Ingram not to do the work. Thus, the
largely undisputed facts recited above show, aside from
McConkey's original statement, which he indicated had been
in error and had refused to sign, Respondent had every reason
to know that Wolfe had not instructed McConkey and In-
gram not to perform the work, but rather had told them after
they said they had been discharged to see their steward before
leaving the plant. Ingram's statement to French at the time
of the investigation was to this effect, and specifically states
that Staub told McConkey to punch out, making it extremely
likely that McConkey's later, rather than first, statement was
the correct one. Further Respondent at the time refused to
accede to Wolfe's request that Darnell, who had been present
at the occasion, be consulted. Also, French contradicted him-
self on the stand by first testifying that Wolfe' s suspension
was based on McConkey's and Ingram' s statements (in
McConkey's case the repudiated one), and then stating that
Ingram's statement was not given any consideration. French
also testified that he relied in part, in deciding to suspend
Wolfe, on the fact that McConkey's testimony was "altered"
the second time when it was reduced to writing. Revealingly,
both as to this incident and other conduct at issue in this case,
French also testified that he reached his conclusion that
Wolfe told McConkey and Ingram not to do the work in
question because "it had been Art's experience to continu-
ously question and criticize and be involved in grievances
where people were being temporarily assigned to work in
other areas, and on this basis the decision was made that Art
was involved to the degree that he encouraged the insubordi-
nate action on the part of the employee...... All these cir-
cumstances satisfy me, and I find, that Respondent suspended
Wolfe because of his zeal as a union steward. Alternatively,
therefore, I would find for that reason that Respondent vi-
olated Section 8(a)(1) and (3) of the Act by suspending Wolfe.
The October 15 information report which I have found
violative of Section 8(a)(1) and (3) of the Act also establishes
Respondent's animosity toward Wolfe because of his union
stewardship, and the vigor of his activities in connection with
that post.
c. The discharge of October 16
As the facts related above show, Wolfe was discharged on
October 16, allegedly (by Respondent) for intentionally pass-
ing a cracked load arm on October 15. The General Counsel
contends that this discharge violated Section 8(a)(3) and (1)
of the Act in that it culminated Respondent's campaign
against Wolfe , a campaign engendered by his union activities.
As I have already indicated, the undisputed facts demon-
strate without any question Respondent's strong resentment
of the nature, the quantity, and the vigor of presentation, of
the grievances filed by Art Wolfe. This is shown by the ex-
plicit language of the information report of October 15 the
day before Wolfe's discharge, and by the facts surrounding
his suspension for 9 days on June 29.
Respondent in its brief to me states "it is Mr. Mariage's
belief that the load arm was approved intentionally, that is
the first concern." Even if Respondent did actually believe
that Wolfe had intentionally passed the cracked load arm,
and for reasons I will set forth subsequently I do not find that
it did so believe, it is plain from the testimony of French that
such a belief was engendered by Wolfe's protected activities
as a union steward. According to French, management felt
Wolfe was no longer a reliable inspector based on his en-
couraging insubordinate action (the incident which led to the
September suspension), Wolfe's continual questioning of
HYSTER COMPANY 91
company procedures, including arguing with the supervisor
about them, filing grievances, and being out of his unit an
excessive amount of time on union business , and in particular
the fact that in Respondent's view, Wolfe, the day before the
incident involving the cracked load arm, had proceeded to
"fling the gauntlet" at Mr. Manage by asking him "what if
we missed a crack in the load arm?" I have already indicated
that I credit Mr. Wolfe's version of the conversation the day
before with Mariage, and that Wolfe did not bait Manage in
this respect. Indeed, the amazing coincidence of a crack in a
load arm appearing the day after Wolfe allegedly made such
a remark to Mariage itself satisfies me that he could not have
made the statement as Manage testified . Assuming arguendo,
however, that the Company really did believe that Wolfe
passed the load arm intentionally, since such a belief was
essentially founded on Wolfe's protected activities as a union
steward, a discharge resulting therefrom would have violated
Section 8(a)(1) and (3) of the Act. It is well settled that a
discharge partly motivated by the union activity of the dis-
criminatee is violative of the Act even if there are valid rea-
sons for discharge. See, for example, Branthaven, Inc., 192
NLRB No. 159; N.L.R.B. v. Eastern Illinois Gas Co., 440
F.2d 656 (C.A. 7). And French's testimony clearly establishes
that a substantial basis for management 's determination to
discharge Wolfe was his "change in attitude," stating on
cross-examination that the filing of an excessive number of
grievances was "part of the whole story of Art Wolfe."
In any event, I am convinced that Respondent did not and
could not have believed that Wolfe intentionally passed the
cracked load arm. In the first place, as the General Counsel
persuasively argues, the theory that Wolfe passed the load
arm intentionally "just does not make sense." To do such a
thing would have obviously been only detrimental to Wolfe,
he could have gained nothing by such an action. Secondly,
even the testimony of Manage indicates that both he and the
wheelabrader operator with whom he had looked the load
arm when he thought he had discovered the crack did have
some difficulty finding the crack. Even after the wheelabrader
operator was told by Manage to look for a crack and placed
his face about a foot from where the crack was supposed to
be, he told Mariage only that he "thought" it was a crack.
And only then, with Manage again looking at the place, did
he decide that there was a crack on the load arm.
Furthermore, either as many as 20 employees or at the very
least 2 employees had handled this load arm before it came
to Wolfe for inspection. Yet no other employee saw this
crack, or plainly, they would have informed somebody about
it. A third reason why I cannot believe that Respondent
thought Wolfe deliberately passed the cracked load arm is the
fact that if anything Respondent was somewhat upset with
Wolfe for rejecting, in his role as inspector, more load arms
for defective work than Respondent apparently thought was
necessary. It seems more likely to me that the crack in the
defective load arm was probably covered by scale and rust at
the point of what was actually a visual and somewhat hurried
inspection of the skid containing the defective load arms
along with others. Perhaps jarring the load arms by moving
the skid from where Wolfe inspected them to the wheela-
brader area was just sufficient to jar loose some of the scale
and rust, enough to show this crack to a careful and close
look.
I am inclined to believe that the reason Respondent took
the position that it discharged Wolfe because of intentional
passing of a load arm rather than merely for passing a defec-
tive load arm, was the fact that the Respondent had not in
the past ever disciplined, let alone discharged, any inspector
for passing a defective part. Indeed, the record shows that just
a few weeks before Wolfe's discharge another inspector re-
ceived only an information report for a very similar passing
of a defective load arm. Based on all of the above, I am
convinced that the dominant motivating factor in Wolfe's
discharge was the nature and extent of his union activities as
a steward for the independent.'
d. The other alleged violations
Wolfe's suspension in September, the information report of
October 15, and the discharge of October 16, as well as
French's testimony, all demonstrate Respondent's hostility to
Wolfe because of Wolfe's activities on behalf of the employees
and his extensive and vigorous presentation of grievances.
The suspension began and the discharge ended a less than
4-month period during which, as noted, Respondent twice
transferred Wolfe, issued several information reports con-
cerning his conduct, and questioned both Wolfe and Chief
Union Steward Elliott about their stewardships, as well as
placing certain restrictions on Wolfe in this connection. In
the circumstances, I infer, particularly in the absence of con-
vincing explanations by Respondent of business reasons for
the various action taken, that they formed part and parcel of
a campaign designed to curb Wolfe's union activities.
Respondent's claim that the transfers were business moti-
vated and the information reports justified does not withstand
scrutiny. Thus, although Quality Control Manager Barcroft
testified that Wolfe's transfer from the troubleshooting job
was part of a work reduction, the record shows that the
functions of troubleshooting continued to be performed. Fur-
ther, Barcroft conceded that only two inspectors were dis-
placed at the time, that one returned to inspection activities
in less than a month, and the other on October 12, and that
no inspector was laid off. In the light of the almost contempo-
raneous discriminatory suspension and the subsequent
harassment of Wolfe by Brooks and Dixon, I find the General
Counsel's position that the transfer was discriminatorily
motivated and designed to limit Wolfe's mobility by remov-
ing him from a position where he could roam throughout the
plant well taken. I conclude accordingly that Respondent
violated Section 8(a)(1) and (3) of this transfer.
The September 21 transfer of Wolfe to the load arm depart-
ment stands on the same footing . Respondent 's claim that
this transfer was part of a training program is belied by the
lack of training Wolfe received, less, the credible testimony
of Wolfe and Oliver shows, than is normally given in such a
situation. I infer, from all the facts in this case, that Respond-
ent transferred Wolfe at that time as part of its unlawful
campaign to curb his union activities, and, although obvi-
ously Respondent could not control what the Union did, I
also infer that Respondent did know that Wolfe was likely to
lose his status as steward as a result of this transfer. I find
accordingly that the transfer of September 21 was violative of
Section 8(a)(1) and (3) of the Act.
The information reports of September 23 and October 14,
and the conduct of Brooks and Dixon with respect to Wolfe's
activities during his tenure in that department, fit into the
pattern of the other violations I have found. As to the Sep-
tember 23 report, I have found that Wolfe overstayed the
normal breaktime of 15 minutes by only 3 minutes.' While,
'I do not find sufficient evidence to support the General Counsel's conten-
tion that the discharge and certain other acts of discrimination against Wolfe
were also motivated by Wolfe 's activities in connection with the indepen-
dent's affiliation movement with the UAW. The evidence of company hos-
tility to such an affiliation is minimal, and there is no direct evidence of
knowledge by the Company of Wolfe's activities in this connection.
' Even Manage's testimony was that he told Wolfe he had been gone
between "20 and 25 minutes-or from 5 to 10 minutes over the allowable
time
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of course, the Company obviously has a right to discipline or ORDER6
issue adverse reports even for a very short period of lateness,
in this instance , particularly considering Wolfe 's explanation
to Manage of what he had been doing, I am convinced that
Respondent was not concerned with the 3 minutes , but rather
was motivated by Wolfe 's union activities , and thereby vi-
olated Section 8(a)(1) and (3) of the Act.
The October 14 report on its face suggests that Respondent
took the adverse action to intimidate Wolfe , for the report is
to the effect that Wolfe questioned some of the company
procedures . The next day , October 15 , when Supervisor Ma-
nage gave another information report to Wolfe (the one
found violative above) Mariage ended the conversation by
saying "Well, you do what you like, but this is going to go
in your file too." The lack of any substantial basis for issuing
an adverse report on October 14, the general pattern already
indicated, and this statement , demonstrate the merit of the
General Counsel 's contention that this report was part of the
campaign against Wolfe , part of the "build up of evidence in
Wolfe 's file." I find therefore that Respondent violated Sec-
tion 8(a)(1) and (3) by the October 14 report.
Finally , the General Counsel , as noted above , specifically
alleges harassment of both Wolfe and Chief Steward Elliott
of the Independent Union as violative of Section 8(a)(1) of the
Act. The facts relating to the conduct of Brooks and Dixon
are fully reported above . The nature of Brooks ' and Dixon's
conduct , which was almost entirely concerned with the per-
formance by Wolfe and Elliott of their functions as stewards,
again viewed in the light of Respondent 's manifest attitude
toward Wolfe in particular for his grievance handling pro-
clivity , convinces me that this conduct was designed to and
in fact did constitute harassment of both Wolfe and Elliott in
violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Art Wolfe on October 16, 1970, by sus-
pending him from work on June 29, 1970, by transferring him
on June 29 , 1970, and on September 21, 1970, and by issuing
adverse reports against him on September 23, October 14,
and October 15, 1970, all because of his concerted activities
on behalf of the Independent Union , Respondent engaged in
unfair labor practices affecting commerce within the meaning
of Sections 8(a)(3) and ( 1) and 2(6) and (7) of the Act.
2. By coercively interrogating employee Robert Elliott on
August 27 , and by harassing employees Art Wolfe and Rob-
ert Elliott on various dates between June 29, 1970, and Sep-
tember 21 , 1970, Respondent engaged in unfair labor prac-
tices affecting commerce within the meaning of Sections
8(a)(1) and 2 (6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist from
its unfair labor practices, that it offer reinstatement to Art
Wolfe, with backpay , computed as provided in F W. Wool-
worth Co., 90 NLRB 289 , and Isis Plumbing & Heating Co.,
138 NLRB 716, for losses sustained by Wolfe as a result of
his discharge on October 16 and his suspension on June 29,
and that it rescind and delete from the personnel files of
employee Art Wolfe the information reports given him on
September 23, October 14, and October 15, 1970
Respondent Hyster Company , its officers , agents , succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Discharging , suspending, or issuing adverse reports to
any employee for engaging in concerted activities protected
by Section 7 of the National Labor Relations Act.
(b) Harassing employees for engaging in concerted activi-
ties protected by Section 7 of the National Labor Relations
Act.
(c) Interrogating employees concerning their union mem-
bership or activities in a manner interfering with , restraining,
or coercing employees in the exercise of their rights under the
Act.
(d) In any like or related manner interfering with , restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer Art Wolfe immediate and full reinstatement to his
former job or, if that job no longer exists , to a substantially
equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole for any loss
of earnings he may have suffered , in the manner set forth in
the section hereof entitled "The Remedy."
(b) Notify Art Wolfe, if presently serving in the Armed
Forces of the United States, of his right to full reinstatement
upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948
as amended after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examining or 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
Order.
(d) Rescind and delete from the personnel files of employee
Art Wolfe the information reports heretofor given him on
September 23, October 14, and October 15, 1970, and give
them no effect.
(e) Post at its plant at Danville, Illinois , copies of the
attached notice marked "Appendix ."' Copies of said notice,
on forms provided by the Regional Director for Region 38,
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 con-
spicuous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be
taken by the Respondent to ensue that said notices are not
altered , defaced or covered by any other material.
(f) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision, what steps the Re-
spondent has taken to comply herewith.'
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 , 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 "
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 38, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "