Marmon Group, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1975

219 N.L.R.B. 102 (N.L.R.B. 1975)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marmon Transmotive, a Division of the Marmon
Group, Inc.' and Calvin N. Braden, Roger Thomas
Helms, and Edward N. Cooper . Cases 10-CA-
10825-1, 10-CA-10825-2, 10-CA-10914-2, and
10-CA-10914-1
July 14, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On February 26, 1975, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the counsel for the
General Counsel filed limited exceptions with a brief
in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,3 as modified herein.
In agreeing with the Administrative Law Judge
that Cooper and Helms were discharged for engaging
in union or protected concerted activity, in violation
of Section 8(a)(3) and (1) of the Act, we find it un-
necessary to rely on the Administrative Law Judge's
findings of disparate treatment. The record does not
show that the Respondent had ever discharged any
other employees for leaving the plant, as did Cooper
and Helms, without clocking out either on a daily or
on the regular weekly clock, and thus there is no ba-
sis for comparing the Respondent's treatment of
1 The name of the Respondent appears as amended at the hearing.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Watt Products, Inc, 91
NLRB 544 (1950), enfd 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
The Administrative Law Judge, in his remedy and conclusions of law, did
not make the specific finding that Roger Thomas Helms was refused pro-
motion because he engaged in union and protected activity We hereby
make that finding.
7 The counsel for the General Counsel excepts to the failure of the Ad-
minis trative Law Judge to find that Helms and Braden would have been
promoted at a date certain . Although we have agreed that Helms and Bra-
den were refused promotion for discriminatory reasons, we find that the
record does not demonstrate with any specificity when such promotions
would have occurred had it not been for the Respondent 's discriminatory
action . Accordingly, we adopt the Administrative Law Judge's recommen-
dations that the date such promotions would have occurred and the amount
of backpay due these individuals should be left for compliance proceedings.
Helms and Cooper and other employees in this re-
gard.
However, we find that the Administrative Law
Judge's conclusion that the bases for the discharge of
Helms and Cooper were not for the reasons stated,
but were pretextual and to rid the Respondent of two
active union adherents, is supported by a preponder-
ance of the evidence: (1) the Respondent's animus
toward Helms and Cooper was clear and was vocally
expressed by Respondent's supervisors consistently
and continually during approximately 6 months prior
to their discharges; (2) a reason stated at the hearing
for the discharges, that the two individuals were at-
tempting to cause a "wildcat" strike, was clearly an
afterthought, since it was not stated as the reason at
the time of the discharges; (3) the alacrity with which
the Respondent assumed Helms and Cooper had
"quit"; and (4) the complete disinterest of the Re-
spondent in investigating or checking Cooper's ex-
cuse that he left because of illness and that Helms
was required to leave to drive him home.
The Chairman argues that it was not "inherently
implausible" for the Employer to have discharged
Cooper and Helms for leaving work without notify-
ing their supervisors and without clocking out. From
this she concludes that the General Counsel has not
sustained his burden of showing that the discharge
was discriminatory, citing P. G. Berland Paint City
Inc., 199 NLRB 927 (1972). Yet it is plain, as noted
above, that this departure of Cooper and Helms was
not the reason for their discharge, but was an after-
thought, a pretext, whose only relevance is to supply
an inference that the Employer was concealing the
true reason. It is therefore a non sequitur to conclude
that, because the pretextual reason could have prop-
erly justified the discharge had it been the real rea-
son, the General Counsel's proof has failed. The lan-
guage in Berland on which the Chairman relies does
not mention the "pretext" issue; we consider the de-
cision to embrace that point in its "unsupported by
credible evidence" language, and thus regard the
Chairman's reliance on it as misplaced. Unless it is so
read, Berland does not correctly state the law.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Marmon
Transmotive, a Division of The Marmon Group,
Inc., Knoxville, Tennessee, its officers, agents, suc-
cessors , and assigns, shall take the action set forth in
the said recommended Order, as so modified:
219 NLRB No. 12
MARMON TRANSMOTIVE 103
1. Substitute the following for paragraphs 2(a) and
(b):
"(a) Immediately promote all employees who have
not been promoted by reason of their having filed
grievances or engaged in other activity , such promo-
tion to be made in conformity with the section of this
Decision entitled `The Remedy,' and make each such
employee whole for any loss of earnings such em-
ployee may have suffered by reason of such discrimi-
nation in the manner set forth in the said section of
this Decision.
"(b) Offer to Roger Thomas Helms and Edward
N. Cooper immediate and full reinstatement to their
former jobs or, if those jobs no longer exist , to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges previous-
ly enjoyed, and make each whole for any loss of
earnings he may have suffered by reason of the dis-
crimination against him in the manner set forth in
the section of this Decision entitled `The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
Although I agree with my colleagues in adopting
the Administrative Law Judge's findings of unlawful
conduct by Respondent in threatening employees
with reprisals for filing a grievance , refusing to pro-
mote employees Helms and Braden because they
filed a grievance over their eligibility for promotion
under the contract, and reprimanding Helms in retal-
iation for his union activity , I dissent from my
colleague's finding that the subsequent discharge of
employees Cooper and Helms was discriminatorily
motivated.
The Administrative Law Judge found and it is un-
disputed that at approximately 2 p.m. on September
3, 1974, employees Cooper and Helms left their jobs
for the day without notifying their immediate super-
visors and without clocking out. The Administrative
Law Judge further found that they left their jobs with
the intent to engage in a wildcat strike in violation of
the no-strike clause in their collective -bargaining
agreement . Notwithstanding these findings , the Ad-
ministrative Law Judge concluded that Respondent
discharged them the following day for discriminatory
reasons , relying in large part on his finding of dispa-
rate treatment in Respondent 's discipline of another
employee who also left work early that same day and
who was only disciplined with a loss of holiday pay
for the day before and was not discharged as were
Cooper and Helms. My colleagues properly disavow
that finding of disparate treatment since it is clear
that this employee claimed he was sick , notified his
supervisor that he was leaving and clocked out, and
there was no other evidence in the record that any
employee who left work for the day without permis-
sion and failed to clock out was treated any differ-
ently from Cooper and Helms. They nonetheless
adopt the Administrative Law Judge's conclusion of
unlawful discharge relying on other evidence of ani-
mus which Respondent harbored against these two
employees . In short , they find the reasons assigned to
the discharge by Respondent to be pretextual. I dis-
agree because I do not believe that the evidence is
sufficient under the circumstances here to establish
that the asserted reasons were not the real reasons for
the discharge of the two employees.
It is well established that , where an employee en-
gages in misconduct which would provide the em-
ployer an independent reason to discharge him, the
fact that the employer welcomed the opportunity be-
cause of the employee 's prior union activities does
not make the discharge violative of Section 8(a)(3) of
the Act . As the Board stated in P. G. Berland Paint
City, Inc., 199 NLRB 927, 927-928 (1972):
On the record it is fair to assume that the Re-
spondent entertained a desire to get rid of Rob-
bins, whose union activities it resented , and was
pleased to have an opportunity present itself for
doing so. But that alone is not enough to estab-
lish that the discharge was in violation of Sec-
tion 8(a)(3). The mere fact that an employer
may want to part company with an employee
whose union activities have made him persona
non grata does not per se establish that a subse-
quent discharge of that employee must be un-
lawfully discriminatory . If the employee himself
obliges his employer by providing a valid inde-
pendent reason for discharge-by engaging in
conduct for which he would have been dis-
charged anyway-his discharge cannot properly
be labeled a pretext and ruled unlawful.
Save where the reason itself is unlawful, it is
not for the Board to substitute its judgment for
that of management as to what constitutes prop-
er cause for discharge . Unless the ground ad-
vanced is inherently implausible , is unsupported
by credible evidence , or is proved by the record
to have been used disparately on the basis of
unlawful considerations , its rejection by the
Board is unwarranted... .
Applying those principles to the facts here, it is
certainly not "inherently implausible" to discharge
employees because of their conduct in intentionally
leaving their work stations without permission or
even prior notification to their immediate supervisors
and leaving the premises for the day without clocking
out. And since I agree with my colleagues that there
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no evidence of disparate treatment in the discipline
meted out to these employees, I would find that Gen-
eral Counsel has failed to satisfy its burden of prov-
ing the discharges were discriminatorily motivated
and would accordingly dismiss the complaint allega-
tions relating to their discharge .4
4 See also Formed Tubes Southern, Inc., 188 NLRB 12 (1971).
APPENDIX
privileges, and we will make each whole for any
losses he may have suffered as a result of our
discrimination against him.
WE WILL immediately promote any employee
who has not been promoted by reason of filing
grievances or engaging in any protected or con-
certed activity.
WE WILL make employees who have been un-
lawfully refused promotion whole for any losses
they may have suffered as a result of
Respondent's discrimination against them.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees that we
will not promote any employees who file griev-
ances through United Steel Workers of America,
AFL-CIO-CLC, or any other union.
WE WILL NOT threaten our employees that it
will be futile for them to file grievances through
said union.
WE WILL NOT refuse to promote any of our
employees because they engage in union and
protected concerted activities such as filing
grievances or any or all protected concerted ac-
tivities.
WE WILL NOT give written reprimands to any
of our employees because they file grievances
through the Steelworkers or any other union or
because our employees may engage in other
union or protected concerted activities. We
hereby withdraw the written reprimand given to
Roger T. Helms and will clear from our records
any and all reference to said reprimand.
WE WILL NOT discharge any of our employees
because they engaged in union and protected
concerted activity such as filing grievances or
any other similar activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to form, join, or assist , or be repre-
sented by, the above-named union , United Steel
Workers of America, AFL-CIO-CLC, or any
other labor organization, to bargain collectively
through representatives of your own choosing or
engage in other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Roger T. Helms and Edward
N. Cooper immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
MARMON TRANSMOTIVE, A DIVISION OF THE
MARMON GROUP, INC.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
proceeding was heard on October 23 and 24, 1974, at
Knoxville, Tennessee, on the complaint in Case 10-CA-
10825-1 and 10-CA-10825-2 issued by the General Coun-
sel on August 30, 1974, which complaint was based upon a
charge filed by Calvin N. Braden, an individual, in Case
10-CA-10825-1 filed July 22, 1974, and a charge in Case
10-CA-10825-2 filed July 22, 1974 by Roger Thomas
Helms , an individual, and a complaint issued by the Gen-
eral Counsel in Cases 10-CA-10914-1 and lO-CA-10914-
2 based upon an original charge in Case 10-CA-10914-1
filed September 13, 1974, by Edward N. Cooper and a
charge in Case 10-CA-10914-2 filed September 13, 1974,
by Roger Thomas Helms and an amended charge in Case
lO-CA-10914-2 filed September 26, 1974, by Roger Thom-
as Helms . The complaints, consolidated for hearing by or-
der dated October 2, 1974, allege, in substance, that Mar-
mon Transmotive,I herein called the Respondent or
Company, threatened employees that it would not promote
employees who filed grievances with the Union, told em-
ployees that it would be futile for them to file grievances,
refused to promote Calvin N. Braden and Roger T. Helms
because they engaged in union and protected concerted
activities, issued a written warning to Roger Helms because
he engaged in such activities and, finally, discharged Roger
T. Helms and Edward N. Cooper because they engaged in
the foregoing activities, all of which violated Section
8(a)(3) and (1) of the National Labor Relations Act, herein
called the Act. The Respondent's duly served answer, while
admitting certain allegations of the complaints, denies the
commission of any unfair labor practices. At the close of
the hearing, the parties waived oral argument but thereaf-
ter submitted briefs in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration giv-
en to the contentions advanced by the parties in their
briefs, I make the following:2
1 The name of the Respondent appears as amended at the hearing
2 To the extent that I credit a witness only in part , I do so on the evidenti-
MARMON TRANSMOTIVE 105
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Marmon Transmotive, herein called the Respondent or
the Company, is an operating division of The Marmon
Group, Inc., a Delaware corporation qualified and doing
business in the State of Tennessee . During the calendar
year immediately preceding the issuance of the complaints
herein , a representative period , the Respondent purchased
and received supplies of a value in excess of $50,000 direct-
ly from suppliers located outside the State of Tennessee.
It is admitted, and I find , that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO-CLC, here-
in called the Union, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
According to the complaint and contentions of the coun-
sel for the General Counsel, the Respondent sought to dis-
criminate against the employees mentioned heretofore be-
cause of a grievance filed by certain employees and
processed by the Union over the fact that the Respondent
failed to promote certain employees at the time that such
employees requested promotion. The General Counsel fur-
ther complains and contends the Respondent not only
threatened employees with failure to promote because they
filed grievances, but actually carried out this threat. Addi-
tionally , the Respondent , according to counsel for the
General Counsel , gave employee Helms a written repri-
mand for his part in the grievance filing and processing
and, ultimately, discharged employees Cooper and Helms
for a like reason.
The Respondent defends, contending in the first place
that the employees had no absolute right to promotion but
that such promotion was within the purview of the
Respondent's discretion under its contract with the Union,
and, furthermore, that when it was determined by the Em-
ployer that progression from one classification to another
constituting promotion became necessary by reason of the
Respondent 's workload , such promotions were made. Ad-
ditionally, the Respondent defends and states that the writ-
ten reprimand given to employee Helms was for cause in
that Helms was not performing up to standard and was
not, in fact , performing at all times while he was supposed
to be working. Additionally, the Respondent defends the
discharges of Helms and Cooper on the ground that they
violated a company rule in that they left their work without
ary rule that it is not uncommon " to believe some and not all of a witness'
testimony." N.L.R.B. v. Universal Camera Corporation , 179 F.2d 749, 754
(C.A. 2).
permission and without clocking out as required of all em-
ployees and, furthermore, because they were seeking to in-
fluence and force other employees to engage in a walkout
in violation of the aforesaid collective-bargaining agree-
ment.
B. The Facts
1. The contractual provisions and the history of
promotions in the Respondent's plant
It is undisputed that before the current collective-bar-
gaining agreement between the Respondent and the
Union, the effective date of which is March 9, 1973, pro-
motions within the plant from lower to higher classifica-
tions were automatic after a 30- to 60-day probationary or
trial period. This promotion, of course, included a raise in
hourly wage rates. This procedure resulted in an imbalance
in the assembly department so that as of November 20,
1972, there were no assemblymen class II in that depart-
ment but only assemblymen class I, the higher classifica-
tion.
According to the Respondent, it sought to rectify this
situation by the agreement between the Respondent and
the Union dated March 9, 1973. Section 10, job promotion,
of the said agreement would seem to indicate that from
that date on, movement from classification II to classifica-
tion I is not to be automatic, but in the event an employee
applied for promotion and was denied the same, the em-
ployee could file a grievance. However, since that date, the
Union and employees have maintained that automatic pro-
motion is still in effect or, at least, some of the employees
maintain automatic promotion is still in effect. The Com-
pany maintains that promotions are to be made only on
qualification of the employees by their work and acquired
skill and the decision by the Respondent that employees in
the next higher classification are actually needed for the
Respondent's production purposes.
2. The request for promotion in October 1973 and the
resultant grievance
Roger T. Helms who was employed by the Respondent
on August 27, 1973, as an assemblyman class II, requested
of his foreman, William C. Duncan, around the first of
November 1973 to help him get a promotion to a position
as assemblyman class I . Duncan consented, stating that he
thought Helms could do the work and would speak to
Plant Manager Donald Durben. Later that day, Duncan
reported back and told Helms that Durben had said that
the Respondent was in the process of changing its name
and it would be January 1974 before anyone could be pro-
moted to assemblyman class 1.3 Thereupon, Helms told
Duncan that Helms would file a grievance through Shop
Steward Edward Cooper. Accordingly, a grievance was
timely filed by Cooper on November 26, 1973 , raising the
issue as to whether the advancement from assemblyman
7 The name of the Respondent on March 9, 1973, the date of the collec-
tive-bargaining agreement between the Union and the Respondent was
Long-Airdox Company, a division of The Marmon Group, Inc The change
in name did not affect the contractual relationship.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
class II to assemblyman class I was automatic or required
first that the assemblymen class II be qualified for the class
I position, and secondly, depending on whether the Re-
spondent, in its judgment, needed class I assemblymen.
This grievance , filed November 26, 1973, was signed by
employees Helms , Calvin N. Braden, one of the Charging
Parties herein, and two other employees, Allen Mynatt and
Ronald Munsey.
Before Cooper filed the grievance on behalf of the four
employees, he spoke to Supervisor Duncan and told the
latter that there was no reason why the men could not be
"set up" until January ("set up" means "promoted").
Cooper said that the contract had nothing to do with the
Respondent changing its name . He thereupon told Duncan
that he would have to file a grievance on behalf of the
complaining employees. Duncan then told Cooper, "Coop-
er, now there you go again. Now you have filed a grievance
and now you are going to make the old man mad and then
they won't never get set up." Evidently, the term "old
man" refers to R. C. Crosby , general manager of the Re-
spondent. In any event, the grievance filed by Cooper was
processed through the various grievance steps. It ultimately
went to arbitration which arbitration matter was heard on
June 3, 1974.°
David Gray Munsey had a conversation with Duncan 2
to 3 weeks after the grievance was filed. Duncan told Mun-
sey that if the employees had not filed the grievance and
had waited until the time (probably after the first of the
year) the employees probably would have been promoted.
However, because they filed a grievance and made the "old
man" angry, they would not be promoted because the "old
man" did not like to be pushed into anything.5
In about the middle of March 1974, Shop Steward Coop-
er had a conversation with Duncan. This was shortly after
the Union and the Respondent had gone through the third
step of the grievance procedure. At that time, Duncan told
Cooper "You know what will happen to that grievance, it
will end up just like the rest of them, in the garbage can." 6
Employee Ted Myers who was promoted to stockman
class I shortly after the arbitrator's decision on the griev-
ance was handed down on July 3, 1974, testified that some
time in May of that year, in the stockroom, Stockman
Foreman Samuel Stallings told Myers that Stallings was
trying to get the latter "topped out" for quite a while but
that Durben, plant superintendent, was afraid to "top out"
Myers because of the grievance that had been filed by
Cooper.'
° All of the foregoing from credited portions of the testimony of Helms,
Braden , and Cooper Duncan did not deny making this statement . In fact,
on cross-examination , Duncan admitted that it was possible that he made
such statement.
S From the testimony of Munsey who is still working for the Respondent
as an assemblyman class I and who was subpenaed to testify. Again, Dun-
can did not specifically deny this conversation but, rather , admitted that it
was possible he made the statement to Munsey.
6 From the credited testimony of Cooper Here again , Duncan's admis-
sion that he might have made such statements to employees does not consti-
tute a denial of the statement to which Cooper testified.
r From credited testimony of Myers who was still working for the Re-
spondent at the time of the hearing herein , was subpenaed to testify. and
had nothing to gain by this testimony . Stallings admitted that he did make
a statement that if he could , he probably would wait until after the decision
In addition to the foregoing, Cooper also credibly testi-
fied to the same incident involving Myers and Stallings.
During that conversation, Stallings told Cooper that if
Cooper had not filed the grievance "a lot of the boys could
have been topped out now."
Shortly thereafter, employee Ronnie Joe Williams, who
has been employed by the Respondent for approximately 9
years and is an assembly electrician class II, pay grade 2, at
approximately the middle of June 1974 had a conversation
with Duncan in the assembly department. Duncan told
Williams that "If the boys hadn't filed a grievance then
some of them would be set up by now" or words to that
effect.'
Williams also had two conversations with assistant fore-
man of the assembly department, Julius W. Peffley. The
first conversation took place during the first or second
week of July in the assembly department. Peffley told Wil-
liams , ". . . If the boys had not filed the girevance .. .
then some of them would be set up by now."
The second Peffley conversation took place approxi-
mately July 19. Present also were Edward Cooper and
Helms . Helms was talking with Peffley and Williams heard
only the last part of the conversation in which Peffley stat-
ed that if the boys had not filed the grievance some of them
"would have been set up by now."
Again, on July 19 in the stockroom, employee Myers,
whom I have heretofore credited, told Peffley that it looked
as though Peffley could help Helms get promoted. Peffley
answered that he probably could have done so before the
grievance was filed but not since. Peffley added that when
the employees filed the grievance, they took the matter out
of his hands.10
In the same vein, Charging Party Braden had a conver-
sation with Foreman Duncan of the assembly department.
This occurred on August 7, the day after Braden was pro-
moted from assemblyman II to assemblyman I. Duncan
told Braden that if the latter had not filed a grievance,
Duncan could have gotten him promoted sooner."
of the arbitrator to recommend promotion. On the basis of the foregoing
and on my observation of the witness , I credit Myers.
8 Again, Duncan did not deny making this above statement to Williams,
but, rather, merely testified that he could not recall it On my observation of
both of these individuals, and inasmuch as this testimony as given by Wil-
liams is similar to that given by other employees whom I have credited, I
credit Williams. Moreover, Williams is still employed by the Respondent
and still subject to whatever pressures Respondent could legally place upon
him Additionally, Williams was subpenaed to testify at the hearing and is
not a member of the Union
9 From the credited testimony of Williams as corroborated by Helms and
Cooper.
10 All of the foregoing from credited portions of the testimony of Helms,
Cooper, Williams, and Myers Peffley did not specifically deny these con-
versations but stated that he could not recall them However, in testifying.
Peffley did admit that when employees were asking what he could do to get
them promoted he had told them that since the grievance had been filed it
was no longer in his hands to say who should or should not be promoted
11 From the credited testimony of Braden Duncan again did not specifi-
cally deny this conversation but merely stated that he could not recall hav-
ing made such statement to Braden. I credit Braden, not only on the basis of
the fact that I have heretofore discredited Duncan, but also on the basis of
Braden 's demeanor while testifying and because of the fact that Braden had
already been promoted and could not gain anything by this testimony
MARMON TRANSMOTIVE 107
3. Respondent's defense regarding promotion matters
The Respondent argues that, in the first instance, the
above set forth expressions and statements by its various
low level supervisors were nothing more than opinions
which did not express a policy of the Respondent and did
not set forth the Respondent's actual reasons for failing to
promote the individuals who filed grievances until after
June 3, 1974, the date the grievance was ultimately heard
by an independent arbitrator. Instead, the Respondent sets
forth its economic defense through documentary evidence
and the testimony of General Manager Crosby and Plant
Superintendent Durben together with the explanatory testi-
mony of Comptroller J. I. Oglesby. As claimed by Crosby,
the Respondent does not recognize under the existing con-
tract that promotions are automatic but, rather, are made
only when (a) the Respondent has a need for persons in the
classification to which promotions may be made and (b)
the individuals who desire promotion into that classifica-
tion are qualified to fill the higher classification. Then, ac-
cording to both Crosby and Durben, at the time in 1973
when Helms and the others requested of Duncan that they
be made assemblymen class I there was no need for class I
assemblymen because, in fact, the Respondent's business
at that time was such, and its projected production sched-
ule was such, that for the time being, at least, there was no
necessity to create additional assemblymen class I jobs. In
support of this testimony, the Respondent submitted in evi-
dence three documents.
The first document is a production schedule which, al-
though Respondent's testimony sought to explain, is mean-
ingless by reasons of various symbols that do not explain
what work is required in each department and how much
time is involved by that department of any particular item
of manufacture. Actually, according to Crosby, this docu-
ment is a scheduling sheet or order sheet, which represents
the dates in 1974 upon which the items are scheduled to be
completed. This sheet shows the names of the company
and the items themselves which are represented by symbols
rather than names and are therefore unintelligible to the
reader unfamiliar with the meaning of the symbols and,
moreover, does not indicate in what department or how
many production hours in that department will be required
to produce any specific item . Nor does it show in any re-
spect what classification of employees are necessary or the
number of employees so classified which would be neces-
sary to complete the respective items in accordance with
the requested delivery dates on the orders for those items.
Respondent's Exhibit 2 and Respondent's Exhibit 3 are
comparisons, according to Crosby's testimony, which can
be compared to show a pattern of orders for manufactured
items during the period of July 1973 to December 1974, a
period of approximately 1-1/2 years and covering the times
during which the disagreement between the Union and the
Respondent occurred over the progression of employees
from a lower classification to a higher classification. How-
ever, here again, especially in Respondent's second exhibit,
although the exhibit shows monthly labor hours it does not
show by classification what employees are necessary and,
although it shows an increase of hours toward the end of
1974, which would indicate an increase in the number of
total hours of production within the Respondent's plant, it
does not show whose production by classification is neces-
sary to meet the increased demand for Respondent's prod-
ucts. Otherwise put, it does not show what man hours are
necessary for what classification. This being so it does not
reflect, with any degree of accuracy, the number of assem-
blymen class I which would be necessary to fill the orders
on hand and to be completed for the period from Novem-
ber 1973 until September 1974 during which the incidents
which are the basis for the alleged unfair labor practices
charged herein occurred.
Additionally, the same conclusion is made with regard to
the third document submitted by the Respondent
in support of its economic argument. Moreover, the
Respondent's second exhibit which shows labor hours for
certain months in 1973 is not broken down by departments
whereas Respondent's third exhibit shows labor hours for
months of 1974 broken down by departments so that, as a
result, no real comparison can be made because each ex-
hibit shows something different. Additionally, Comptroller
J. I. Oglesby, whom I credit and find to be a most reliable
and forthright witness, admitted in his testimony that these
exhibits were merely historical documents which can only
be compared to show productive hours and cannot be uti-
lized to estimate future productive hours or needs. Accord-
ingly, I find and conclude that these documents do not
support the testimony of Crosby and Durben to the effect
that there was no necessity to promote any of the individu-
als involved in the grievance until some time in July or
August 1974.
One other document was submitted by the Respondent.
This is an untitled "spread sheet" which shows, according
to Durben who prepared the document, the assembly de-
partment load or projected load by all open orders in the
house either as the Respondent had them scheduled
throughout the month or a customer's requested schedul-
ing date or delivery date. This sheet, according to Durben,
he prepared from what is called the monthly sheets which
were the first exhibit of the Respondent. Durben testified
that he prepared this document himself and prepares it
only for his own purposes and "only when I feel it would
necessary for my own beneficial use." It should be noted in
connection with this document that it was prepared only I
week before the hearing herein was held. Obstensibly then,
I find and conclude that this was prepared solely for the
purpose of the hearing herein and is therefore somewhat
suspect as a self-serving document. Since it is prepared
only when Durben feels it is necessary, it is not necessarily
a document kept in the regular course of business. Its evi-
dentiary value, therefore, is somewhat questionable.
Since the foregoing documents, in my opinion, do not
sustain the burden for which the Respondent introduced
them into evidence, I turn to the testimony, or the sub-
stance of the testimony of Crosby and Durben, and espe-
cially Crosby, to the effect that due to the energy crisis and
other problems, which could have been lack of production
on the part of Respondent's suppliers and other such items,
the buildup of orders in December 1973 through January
1974 did not materialize as fast as hoped for. Starting in
1974, however, the production forecast indicated enough
substantial orders to warrant an increase in the work force
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that therefore the buildup commenced in all depart-
ments including assembly . However , since assembly is nor-
mally the last department involved in the production of a
product it would be last to feel the effects of such a build-
up.
4. Conclusions with regard to the economic defense
Were this testimony to be accepted then it could explain
the reason that the Respondent did not fill the assembly-
men class I jobs until such became necessary in the assem-
bly department late in the spring of 1974. However, I must
assess Crosby's and Durben's testimony in the light of find-
ings heretofore made with regard to what was stated to the
various employees with relation to the reasons why they
were not promoted.
Duncan, the foreman and chief operating head of the
assembly department , as stated above , engaged in a num-
ber of conversations with various employees in which he
emphatically stated that were it not for the filing of the
grievance the employees would have received their promo-
tions long before they received them. Certainly, the chief
foreman of a department cannot be considered a minor
official who would not know why the principal officers of
the Company did certain things. Additionally, the fact that
Duncan worked closely with Durben is brought out, as
hereinafter set forth , in their alleged discussion as to why
Helms and Cooper were discharged or were to be dis-
charged on September 3, 1974. In addition to the fore-
going, there is also conflict between the testimony of Dur-
ben and Duncan. Duncan testified Durben told Duncan in
November 1973, when Duncan related the request for pro-
motion to Durben, that the Respondent would take up the
matter of promotions after the first of the year. However
Durben denies or rather could not recall making a "flat
statement" that there would be assemblymen first jobs af-
ter the first of the year; i.e., after the name of the Respon-
dent was changed . However, Duncan testified "I told them
the first of the year, that's what Mr. Durben said .. .
around the first of the year when we changed over." Be-
cause of the other matters which occurred between No-
vember 1973 and July 1974, I conclude that Duncan's ver-
sion of the conversation between Duncan and Durben with
regard to the promotions at the end of November 1973 is
the more reliable and that Durben did tell Duncan that
Respondent would reconsider the promotion matter in the
assembly department after the changeover of name imme-
diately after the first of the year 1974. It should be noted
that this conversation occurred before Helms and the
others protested to Cooper their failure to be promoted
from assemblymen II to assemblymen I and before Cooper
filed the formal grievance on behalf of these employees.
Accordingly, I find and conclude that at the time of the
first refusal of promotion in November 1973, Duncan re-
lated the Respondent's intention to reconsider the matter
after the first of the year but that after the grievance was
filed the Respondent decided that it would not make any
promotions until it was determined by an arbitrator that
such promotions would have to be made in accordance
with the terms of the contract. I, therefore, find and con-
clude that the statements made by the various supervisors
including Peffley, Duncan, and Stallings reflected the actu-
al promotion policy of the Respondent made after the No-
vember 27 grievance was filed and was made in retaliation
for the filing of such grievance. This being so, I find and
conclude that the Respondent, as set forth in the com-
plaint, did fail and refuse and continues to fail and refuse
to promote employees Braden and Helms because they en-
gaged in union and protected concerted activity of filing
grievances with regard to Respondent's failure to promote
them in November 1974. In so finding, however, I do not
find that promotions are automatic or that the contract
required automatic promotions. I find, however, that the
Respondent's refusal to promote these individuals was
based not on the terms of the contract but, rather, because
the employees filed the grievance pursuant to such con-
tract.
Additionally, I find that the statements above set forth
made by Duncan, Peffley, and Stallings were threats of
refusal to promote because the employees filed grievances.
Such threats constitute interference with employees' Sec-
tion 7 rights and are, therefore, violative of Section 8(a)(1)
of the Act.
C. The Written Reprimand of Roger Helms
As hereinabove set forth, Helms and Braden, together
with two other employees were the grievants in the griev-
ance filed by Cooper, the shop steward, in the latter part of
November 1973. It was Helms' impression, at that time,
that promotion from an assembly class II to assembly class
I was automatic . This was by reason of the fact that Helms
had been employed by the Respondent at an earlier time
and in that earlier employment he had been automatically
promoted from class II to class I after his original proba-
tion period. When Helms applied for reemployment and
was reemployed on August 27, 1973, there was no hesita-
tion to reemploy Helms. Therefore, it must be assumed
that during his first employment with the Respondent
Helms performed satisfactorily.
Hereinabove, the reactions of the various company offi-
cials and supervisors have been set forth, which reactions
clearly displayed the Respondent's officials' feelings with
regard to the filing of the November 1973 grievance. On
July 3, 1974, the arbitrator rendered his decision in the
foregoing grievance. In that decision, the arbitrator held
that although promotions under the then current collec-
tive-bargaining agreement were not automatic and the po-
sitions to be open for promotion were for the Respondent
to decide, nevertheless, he also decided that Braden and
Helms, both assemblymen class II, qualified for promotion
to assemblymen class I. Shortly thereafter, Braden was
promoted from class II to class I, but Helms was not.
Approximately the middle of August, Helms acted as
shop steward for a period of 2 weeks while Cooper, the
designated shop steward, was on vacation. During that
time, employee Donald Baker reported to Helms that Bak-
er had decided to file a grievance because Calvin Braden
had been promoted to assembly I and Baker had more
seniority than Braden. Thereupon Helms, in his capacity as
acting steward, informed Foreman Duncan. Duncan then
told Helms that Donald Durben, the plant manager, would
MARMON TRANSMOTIVE 109
handle the matter . Upon receiving this information, Helms
spoke to Alex Rhymer , president of the union local. As a
result a meeting was held between Helms , Durben , Baker,
and some of the union committeemen . However , the meet-
ing accomplished nothing and , as it broke up, Helms an-
nounced that "they" would file a grievance with regard to
the Baker matter.
On August 27, 1974, shortly after Helms had acted, or
perhaps during the time that Helms acted as shop steward,
and shortly after Helms stated that a grievance would be
filed with regard to the Respondent 's failure to promote
Baker , Helms received a written reprimand signed by Fore-
man William Duncan . Helms testified that he had never
been reprimanded in any manner prior to this date. How-
ever , the reprimand stated that in the recent past Duncan
had discussed with Helms the latter 's indifferent , careless,
and inefficient work habits . It further stated that the writ-
ten reprimand was a warning in confirmation of the verbal
admonitions which Helms had received for failure to deliv-
er the amount of work required of him and that if the
inferior performance continued it could result in additional
and further disciplinary action including layoff or possible
discharge.
In contrast to Helms ' testimony that he had never re-
ceived any verbal warnings , criticism , or reprimand or had
been counseled about his work, Foreman Duncan testified
that during the weeks before the written reprimand was
handed to Helms by Duncan , Helms had been warned
time and time again with regard to his work attitudes.
However , Duncan referred to only one specific matter. He
testified that he gave an oral reprimand to Helms within 2
weeks before the written reprimand . This oral reprimand
was given to Helms and to another probationary employee.
Duncan told them to get to work and stop "pecking" at a
chain which they were making . According to Duncan, they
were not hitting the links hard enough to have any effect
on the metal and, therefore , the work was not progressing.
Additionally, both Peffley and Duncan testified that at
the arbitration hearing on June 3 , 1974, they stated that
they did not consider Helms to be an assemblyman class I.
On the morning following the June 3 arbitration hearing,
according to General Manager Crosby and Assistant Fore-
man Peffley , they spoke to Helms when they saw him lean-
ing against a machine, doing nothing . Helms testified that
this was because he needed blueprints to do the work that
was assigned to him and he did not have a set of blueprints
to work from . According to Helms , at that time Crosby
told Helms that Crosby was going to make an example out
of Helms before all the other men of the Company. On the
other hand , Peffley testified that on the morning of June 4
Helms told him that if Helms was not promoted and re-
mained an assemblyman class II, he would require a fore-
man to tell him exactly what to do in detail. Helms did not
deny this, he merely testified that he had a conversation
with Peffley on that date and that he had a misunderstand-
ing with Peffley . Crosby denied that he ever made a state-
ment to Helms to the effect that he would make an exam-
ple of Helms.
Peffley further testified that a reoccurrence of this same
type of incident took place on the morning of June 5. At
that time , according to Peffley , he noticed Helms standing,
doing nothing again. Peffley asked what the problem was
this time . Helms answered that he was waiting for someone
to help lift a battery off a truck on to the floor. Evidently
the battery was to be used in the work that Helms was
assigned to perform. According to Peffley he .then told
Helms that Helms did not have to wait for Peffley to give
him permission to get someone to help him take the battery
off the truck; that there were able bodies nearby who could
have helped him if Helms had merely asked. Peffley testi-
fied further, in general terms without pointing to any spe-
cific incident, that during the entire period from that time
until the written reprimand was given to Helms, Helms'
work attitude was bad; he simply was not performing. Peff-
ley stated that Helms did not "put out" sufficient quality or
quantity of work, no matter what work was assigned to
Helms.
From the testimony of both Crosby and Duncan it is
apparent that it was Crosby, the general manager of the
Respondent's Knoxville facility who ultimately wrote,
worded and had typed the written reprimand given to
Helms. It was further testified by Duncan and Crosby that
they had a discussion with regard thereto because of the
fact that Crosby had earlier told Duncan and Peffley to see
what they could do to straighten out Helms' attitude to-
ward Helms' work.
Donald Durben, the plant superintendent, also had a
hand in the ultimate written warning to Helms. He testified
that failures on the part of employees to perform are al-
ways discussed with him by the various foremen of the
various departments. He further testified that when Peffley
and Duncan spoke to him about Helms' poor performance
in the early part of June around the time of the arbitration
hearing, he told Duncan and Peffley to keep notes on the
performance and warnings given to Helms. As a result,
Peffley made notes of the verbal warnings given by Peffley
to Helms with regard to Helms' behavior during that peri-
od. These were used by Peffley to refresh his recollection in
testifying and were ultimately received in evidence. These
warnings all pertain to the incidents which occurred a day
or two after the hearing before the arbitrator on June 3.
In addition to all of the foregoing, Duncan testified that
the employee with whom Helms was working on the chain
when they were allegedly reprimanded by Duncan for
merely pecking at the chain was discharged a few days
later by Duncan for failure to perform.
Respondent points out that it would seem rather peculiar
that although Helms testified he was told by Crosby on
June 4 that Crosby was going to make an example of
Helms , neither Cooper, nor any other employee, substanti-
ated this portion of Helms' testimony. Certainly, Cooper is
not only a friend, but was also the shop steward who would
have been told by Helms of the incident not only because
of the closeness between the two men but also because of
what had occurred the day before at the hearing and in the
months preceding the hearing . Certainly, at this time
Cooper and the other employees would have been very
much aware of the Respondent's attitude toward the griev-
ances and that the statement by Crosby to Helms would
have been a further indication of the Respondent's annoy-
ance , to say the least , with regard to the filing of the griev-
ances and toward the individual grievants, of whom Helms
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was one . Respondent argues that Cooper, who testified in
great detail with regard to many matters, did not even
mention the alleged threat by Crosby to Helms. But he was
not asked about the matter. I conclude, therefore, that
Crosby did make the threat to Helms. I conclude further
that Helms was merely "gilding the lily" by his testimony
relating to this incident.
After he received the written reprimand, Helms in-
formed Union President Rhymer about the matter and
Rhymer set up a meeting held 2 days later with General
Manager Crosby at which Helms, according to Helms' tes-
timony, told Crosby that Helms had never received any
verbal reprimands. According to Helms, Crosby said that a
further meeting would be held with Duncan and Rhymer
and that the reprimand would probably be dropped. But
when Helms asked if Cooper could represent him at the
meeting Crosby answered, according to Helms, "in no
way." Although Crosby did not deny this statement in his
testimony, he was not asked a question as to whether he
made such statement . With regard to that meeting held
after Helms had received the written reprimand, according
to Crosby the meeting was with an International represen-
tative of the Union and with members of the assembly
shop, the steward (Cooper), and other people, and Rhymer,
the local union president. The written reprimand was dis-
cussed and there was also a general discussion about the
lack of communication between the steward and the de-
partment foreman. At the International representative's
suggestion, Crosby then suggested that Helms and Duncan
get together either privately or with Crosby who would be
glad to participate and that the Union could participate
also to discuss how to iron out the differences between
Helms and Duncan. According to Crosby's testimony,
both Helms and Duncan stated that they elected to iron
the matter out between themselves.
I have heretofore found that the Respondent was ag-
grieved and annoyed at the filing of the November 1974
grievance regarding promotion, and have also found that it
refused to promote any individuals until after the grievance
was resolved and the arbitration decision was handed
down on July 3, 1974. I have further found that this refusal
to promote and the statements of the various supervisors
and company officials were violative of the Act. It is prob-
able and within the realm of human experience that after
Helms failed to receive his promotion as did Braden and
employee Myers, subsequent to the arbitrator's decision,
Helms would have been quite naturally disappointed and
disgruntled. This would be consistent with Helms admit-
tedly telling his supervisors that inasmuch as he was only
an assemblyman class II and not an assemblyman class I,
he was not going to do anything on his own initiative in
working for the Respondent, and would wait for specific
instructions on each item of work before he would perform
such work since no more was expected of a class II assem-
blyman. Moreover, at the times that Crosby and Peffley
allegedly discovered Helms doing nothing , when Helms
stated that he did not have instructions from his superiors
as to what to do, the matters to be performed by Helms
were of such trivial nature that even a new employee would
have known what to do. Thus, it is entirely possible that
Helms did not have the blueprints to do the work on one
occasion but could readily have found his foreman, Dun-
can, or his assistant foreman, Peffley, with ease because
when Crosby was informed by Helms that he did not have
instructions Crosby immediately was able to locate the
foreman to get the instructions to Helms. If Respondent's
witnesses are credited, Helms certainly could have ob-
tained the same instructions with minimal effort. Likewise,
when Peffley allegedly asked Helms on the following day
why the latter could not pick up the battery, or why he did
not ask for assistance from fellow employees, Helms dis-
played another indication of unwillingness to work to even
a normal or. average worker's standard.
However, I have considered this testimony in the light
that these foregoing incidents occurred early in June and
that the written warning was not given to Helms until after
Helms had been acting steward in Cooper's absence. This
was in the middle of August, approximately 2 months after
the above set forth incidents took place. I have further
taken into consideration the fact that the letter of repri-
mand was composed and ultimately typed in Crosby's of-
fice. While the record does not show how many employees
were employed in the Respondent's plant at the time, it
would seem that it was a large enough facility so that the
head of the entire operation would ordinarily not have had
to be consulted with regard to issuance of a written warn-
ing by a department foreman. Additionally, Foreman
Duncan could testify specifically to only the single "chain
pecking" incident as occurring during the 2-week period
before the written reprimand was given to Helms. There-
fore, on the basis of all of the testimony and all of the facts
above set forth, I find on the record as a whole that the
reprimand was given because Helms had threatened to file
a grievance on behalf of employee Baker, or had himself
filed as a grievant regarding the promotion matter the lat-
ter part of November 1973, and not because Helms might
have, in fact, failed to perform satisfactorily at all times.
Accordingly, because the reprimand was given for discrim-
inatory reasons, I find that the giving of the reprimand was
violative of Section 8(a)(3) and (1) of the Act.12
D. The Discharges of Helms and Cooper
It is undisputed that on September 3, at approximately 2
p.m., Helms and Cooper left the Respondent's plant with-
out clocking out either at the timeclock or on their daily
worksheets. It is further undisputed that when they arrived
at work the following morning, September 4, their time-
cards were not in the rack and that they were told by Shop
Superintendent Durben that inasmuch as they had not
clocked out before leaving, or without telling their fore-
man, that the Respondent considered that Cooper and
Helms had quit. There is further no dispute that Durben
then sent for Duncan who denied that Cooper had asked
him for permission to go home and that Durben then said
the Respondent considered they had quit and instructed
both Helms and Cooper to get their toolboxes and leave
the plant. However, there is considerable dispute as to
12 Helms denied that he told Peffley, in effect, he would do nothing unless
specifically instructed but admitted he and Peffley had a misunderstanding
that morning
MARMON TRANSMOTIVE 111
what actually occurred on September 3 before and after
Helms and Cooper left the plant.
I have heretofore discussed a number of incidents which
occurred and which involved employee Helms . To under-
stand fully the context in which they were discharged, it is
necessary to trace the relationship between Cooper and his
immediate superiors during the period from the autumn of
1973 until his discharge on September 3, 1974. As hereto-
fore noted , during this entire period Cooper was the desig-
nated shop steward. It was Cooper, who on November 26,
1973, filed the grievance with regard to the promotions of
the four employees among whom were Braden and Helms.
I have heretofore found violative Duncan's statement to
Cooper upon Cooper's filing the grievance on behalf of the
complaining employees to the effect that "Cooper, now
there you go again . Now you have filed the grievance and
you are going to make the old man mad and then they
won't never get set up." Cooper further testified that al-
though he and Duncan did not have personal problems,
whenever Cooper took anyone's part in his capacity as
union steward in the assembly department , Duncan would
act resentful and upon a number of occasions called Coop-
er a "troublemaker." Cooper further testified that Duncan
tried to make Cooper look small and additionally called
him an agitator and instigator. As an example, Cooper tes-
tified that an employee, David Munsey, was absent I day.
When Munsey returned, Duncan asked Munsey for a
doctor's excuse . Munsey and Duncan got into an argument
over the matter and Cooper, overhearing, stepped in as
shop steward and representative of Munsey. Cooper told
Duncan that, if the latter required one employee to bring a
doctor's excuse , he should require it of all employees. In-
stead of giving Cooper an answer, all Duncan replied was,
"Cooper, you're just a troublemaker."
That this incident occurred is affirmed by employee
Munsey who testified to virtually the same language as did
Cooper. It should be noted that Munsey was still in the
employ of the Respondent at the time of the hearing here-
in. Moreover, Duncan did not deny calling Cooper a trou-
blemaker and Respondent admits that in this instance, at
least , Duncan obviously lost his temper.
I have also found that, at another time , when they were
talking about the grievance filed on behalf of the four em-
ployees in the assembly department , Duncan stated that
the grievance would be thrown in the garbage can. That
the Respondent 's supervisory personnel and higher offi-
cials did not regard the entire matter of the grievance with-
out resentment is amply set forth, above, in this decision.
That Helms also was not very highly regarded by the Re-
spondent is demonstrated by the written reprimand.
We come then to the date of September 3, 1974, con-
cerning which there is much conflicting testimony. Accord-
ing to Cooper, during the early part of that day he told
Foreman Duncan that he was not feeling well and that if
he did not feel better later in the day he would be leaving.
He also testified that he told Duncan that he would ask
Roger Helms to drive him home in the event that he had to
leave. According to Cooper, he remained at work until just
after the afternoon break which was between 1:45 and 2
p.m. Before that , however , he had informed Helms that he
was ill and asked that Helms take him home and further
informed Helms that Duncan had given him permission to
leave and permission for Helms to leave with Cooper in
order to drive Cooper home. Helms confirmed the latter
part of this testimony and stated in testifying that he was
told by Cooper at that time that Cooper had received per-
mission from Duncan for Cooper to leave if he did not feel
well and for Helms to drive him home. According to both
Cooper and Helms they left the plant about 2 p.m. and
forgot to either sign out on their weekly sheet or to clock
out at the timeclock. According to both of them, they went
directly to Cooper's home stopping only a couple of times
when Cooper became nauseous and feared that he would
have to vomit. Both Cooper and Helms steadfastly main-
tained, in testifying, that this was their sole and only reason
for leaving. They further testified that they told no other
employee any different story. Cooper further testified that
he told some employees he was leaving because he was
sick.
However, there is no corroboration of this particular
phase of the incident by any of the employees whom Coop-
er allegedly told he was ill and was leaving. In fact, the
only employees who testified at all with regard to Cooper
and Helms leaving on September 3 were insistent in stating
that they were informed by either Helms or Cooper that
the two were leaving to strike and asked the individuals to
walk out with them and support their movement. Thus,
Luit McGinnis, whom I credit, and was subpenaed to testi-
fy and was not anxious to do so, testified that on that day,
which he remembered as the day after Labor Day, during
the afternoon break between 1:45 and 1:55 p.m., Helms
asked McGinnis if McGinnis would "go out with him."
McGinnis told Helms that he would not go. As a matter of
fact, McGinnis told Helms that it was the wrong thing to
do. McGinnis admitted that Helms did not mention Coop-
er to him at this time. 13
Also, employee Jack H. Marley testified, upon being
subpenaed, that after lunch on Tuesday, September 3,
Cooper made the statement that "We were going out at
break." Marley testified that he did not know who Cooper
meant by "we." He stated definitely that Cooper did not
tell him that Cooper felt ill.14
Another subpenaed employee, Vestal Newton, testified
13 I especially noticed McGinnis ' behavior on the witness stand He was a
most reluctant and frightened witness It was quite evident from his actions
and from his general demeanor on the stand that he did not happily testify
against Helms, his former fellow employee Nor was there anything in his
cross-examination which would indicate in any way that McGinnis was not
completely truthful . Moreover, employee Bill Foster testified that he was
standing by when Helms was having this conversation with McGinnis and
Foster's testimony in many respects supports McGinnis completely
14 Marley on cross-examination admitted that he did not tell the Compa-
ny about this particular incident until just before the arbitration proceeding
concerning the discharges which took place a few weeks before the hearing
in the instant case Moreover, when asked if he had left the plant immedi-
ately after the arbitration proceeding without clocking out, Marley admitted
that he did However, on redirect examination Marley testified without con-
tradiction that he left the plant to go on an assignment for the Respondent
in another State and that therefore he was still on company time when he
left and was not required to clock out under the circumstances . Although I
am not as certain of Marley's testimony as I am of McGinnis, I nevertheless
find nothing in either Marley's demeanor or in his testimony which would
indicate that he was not telling exactly what occurred insofar as he remem-
bered it
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had a conversation with Cooper on the afternoon
of September 3. This occurred some time around the af-
ternoon break . Newton testified that Cooper told him
"That he had worked hard for us and he was going out. We
could go out if we wanted to or we could stay in ." Newton
further testified that Duncan saw them having the conver-
sation and came over and asked them what was going on.
Newton answered that he did not know and, in testifying,
Newton stated that he still did not know what was going
on. However , when questioned , Newton further stated that
Cooper neither mentioned that Cooper was ill at the time
nor did he appear to be ill. On cross-examination Newton
remained adamant in his testimony and could not be shak-
en. He stated after being asked what Cooper's exact words
were "The only words he said to me is he has worked for us
hard and we could stay in here if we wanted to or we could
go out and he was going out." I credit Newton.
Duncan , who admitted in testifying that he had called
Cooper a troublemaker and other names when Cooper had
acted in his capacity as shop steward , testified that on the
afternoon of September 3 Helms was working down the
line in the assembly department near Assistant Foreman
Julius Peffley and Duncan was at the other end of the
assembly department near where Cooper was working on a
yard control project. About 5 minutes before 2 p.m. Dun-
can saw Cooper and Helms walking by, Cooper with a
paper lunchbag in his hand and Helms with his lunchbox.
Duncan further testified that he thought that they were
going to the washroom to put up their lunches . However,
when they did not come back out into the department he
went into the washroom , looked for them and could not
find them . He then went to Peffley and asked the latter if
he had given them permission to leave . Peffley answered in
the negative . He then went to Shop Superintendent Durben
and asked him if he had given Cooper and Helms permis-
sion to leave. Durben answered in the negative . At that
point, Duncan called the operator who said that they had
received no emergency calls. After this , Duncan went to
Crosby and told him that Cooper and Helms had walked
off the job without clocking out and that Duncan was
going to pull their cards. With that, Crosby gave his assent.
Duncan emphasized that neither Cooper nor Helms had
requested permission to leave.
The next time that Duncan saw Cooper and Helms was
the following morning when they came to him and asked
him why their timecards had been pulled. Duncan told
them that it was because they had walked off the job with-
out clocking out. Duncan further told them that as far as
he was concerned they had quit. Cooper insisted that he
had told Duncan that he was sick and Duncan told him
"that he was supposedly a preacher of the gospel and he
was sitting there telling a damn lie ." According to Duncan,
Cooper then answered that he did tell Duncan and said
that he had forgotten to tell Duncan that Helms was going
to take him home.
Employee Alex Rhymer, who is also the president of the
Local of the Union involved herein , testified that on the
night of September 3, during the night shift on which
Rhymer worked, he was called to the phone by Foreman
Goad and spoke to Roger Helms. Helms asked if Rhymer
knew who was on this phone with him and Rhymer an-
swered "Yes, this is Roger ." Helms then asked Rhymer to
pull the men out into the street . Rhymer said he could not
do that or he would not do it. Then Helms asked if the
Union would back him and Rhymer said there is no way
they could back this action . Then Helms told Rhymer that
at 5 o'clock in the morning there would be a picket line up.
However , Helms did not say who was going to establish the
picket line . Rhymer did tell Helms that if there was a pick-
et line that the men would not cross it. However he did say
that they would not support the strike.
Goad was standing nearby and testified that he heard
the conversation. Rhymer testified that Goad repeated to
Rhymer what he had heard Rhymer say over the phone.
Goad testified to much the same , namely, that he had
heard Rhymer's answers to Helms and that, moreover, he
knew it was Helms on the other end of the phone because
when he answered the phone he recognized Helms' voice
having spoken to him before on the phone on a number of
occasions . I credit Rhymer and Goad.
Rhymer that evening called Superintendent Durben but
first called Tom Johnson, the business representative of the
Steelworkers . Johnson advised Rhymer to take no part in
the action of Cooper and Helms . Rhymer also called Cros-
by and Durben . Crosby asked him what had happened and
Rhymer, believing that Durben had already told Crosby
what had happened, told Crosby that the way he under-
stood it was there was going to be a picket line in the
morning . He also told Crosby what Helms had said with
regard to pulling the men out . Durben confirmed the fact
that Rhymer had called him that evening and that, as a
result , he had called Crosby.
In connection with these discharges , the General Coun-
sel argues that the reasons assigned by the Respondent for
the discharges of Helms and Cooper are suspect . He fur-
ther states that the walking out without clocking out or
signing the daily worksheets was used as a pretext by the
Respondent to get rid of two active union adherents. To
support his contention , he argues first that the Respondent,
through Durben and Duncan, told Helms and Cooper on
the morning of September 4, when the two reported for
work, only that they were discharged for failing to clock
out and that therefore Respondent had considered that
they had quit. Secondly he argues that there was bad blood
between Duncan and Cooper and Duncan and Helms and
that only shortly before , Helms , as acting steward, had
filed a grievance on behalf of another employee. Addition-
ally, Duncan's longstanding disagreements with Cooper
which occurred by reason of Cooper's acting in his capaci-
ty as union steward indicates that the Respondent was
seeking a way in which it could rid itself of Cooper and
Helms and that by forgetting to clock out in their anxiety
to get Cooper home, the two provided the Respondent with
the pretext it needed . Thirdly, the Respondent contends
that it also discharged Cooper and Helms because they
were attempting to cause a "wild cat" strike . General
Counsel maintains that this was an afterthought and was
not told to Cooper and Helms at the time they were dis-
charged . Finally, General Counsel contends that Durben's
testimony was to the effect that Helms and Cooper, having
left without permission , were automatically considered
quits but when other employees left without permission
MARMON TRANSMOTIVE 113
they were not so regarded and that Durben's explanation
leads only to the conclusion that the Respondent was look-
ing for any reason to get rid of Helms and Cooper and
that, it follows, the reasons given for the discharges were
pretextual in nature.
Durben, in testifying on cross-examination, admitted
that on the afternoon of September 3, an employee named
Atkins left early without permission. For this, Atkins was
deprived of his holiday pay for the previous day, Septem-
ber 2, Labor Day. Durben also admitted that at the time of
the hearing a grievance over the holiday pay filed by At-
kins was in process. He also stated that "They did not have
permission to leave the plant" referring to other individuals
who had evidently lost their holiday pay because they left
the plant without permission. However, Durben insisted
that the other individuals including Atkins did not quit,
Durben explained this by the following question and an-
swer:
Q. Wasn't it the company policy that anyone that
left without permission quit?
A. Getting back to that individual, if a man come
up and says I am going to leave the plant and is not
given permission that is one thing, if a man leaves the
plant and says nothing that is a voluntary quit.
When asked what is the difference between the two situ-
ations, Durben answered that in the case where the man
asked permission and is not given permission but walks out
any way, the Company knows where he is, but in the case
where a man does not ask for permission at all, but merely
walked out, the Respondent has no way of knowing where
he is. When Durben was asked if they knew where Atkins
had gone on September 3, Durben could not answer.
The Respondent, in its arguments, makes no mention of
this testimony of Durben. Moreover, the Respondent did
not show through the testimony of any of its witnesses that
it had ever discharged any other employee for leaving the
plant without clocking out either on the daily timesheet or
on the regular weekly clock. Although, it is the burden of
the General Counsel to prove disparate treatment and to
show in this case that other employees who walked out
under the same circumstances that Helms and Cooper
walked out were not discharged, in view of Durben's eva-
sive answer to the questions as outlined above, I conclude
that Durben was not truthful with regard to the
Respondent's policy to the effect that it was applied evenly
to all employees.
Additionally, it would seem rather peculiar that, under
the circumstances, if the Respondent had discharged
Helms and Cooper for the reason that they had attempted
to provoke an organized "wild cat strike," neither Duncan,
Peffley, nor Durben, who spoke to Cooper and Helms on
the morning following the attempted or aborted strike,
mentioned the attempts of Cooper and Helms to organize a
walkout the day before. Accordingly, although I have
found that Rhymer and Goad were truthful in their relat-
ing, to Durben and Crosby, Helms' conversation with re-
gard to an attempted strike, I find that this was not a rea-
son why they were discharged. Durben emphasized that he
told Cooper and Helms on the morning of September 4
that since they had not clocked out at either of the two
required places, the Respondent had considered that they
quit. His failure to mention the attempted strike by Cooper
and Helms is ample proof that the Respondent had no
intention of discharging these two for that reason. This is
borne out by the fact that not a single employee did at-
tempt to strike or picket the Respondent on September 4,
the morning that Helms and Cooper were discharged.
Accordingly, I find and conclude that Duncan, Durben,
and other of Respondent's officials and supervisors were,
in fact, eager to seize on this alleged default of Cooper and
Helms in order to rid the Respondent of two individuals
who were, perhaps, overly zealous in their attempts to car-
ry out what they considered the proper performance of
their duties as steward and acting steward. The fact that
Duncan had admittedly called Cooper a troublemaker and
other similar names adds only to the conclusion that the
reasons for discharge were, in fact, pretextual. As noted
above, Durben's explanation as to why Atkins, who evi-
dently left under somewhat similar circumstances on the
day that Cooper and Helms left the plant, was not dis-
charged was so unsatisfactory and evasive that although
General Counsel did not offer further proof of disparate
treatment , I conclude that there was, indeed, disparate
treatment as evidenced by the difference in the disciplinary
action taken against Atkins and the disciplinary action tak-
en against Cooper and Helms.
Accordingly, I find and conclude that Cooper and
Helms were discharged for engaging in union or protected
concerted activities and that thereby the Respondent com-
mitted violations of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth 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 thereof.
V. THE REMEDY
Having found that the Respondent discriminatorily ter-
minated and has refused to reinstate Roger T. Helms and
Edward N. Cooper, I shall recommend that the Respon-
dent offer them immediate and full reinstatement to their
former and substantially equivalent positions without prej-
udice to any seniority, or other rights and privileges they
may enjoy. Respondent shall make each whole for any loss
of pay he may have suffered by reason of the discrimina-
tion against him by payment to each a sum equal to that
which he would have received as earnings from the date of
the discharge until each is fully reinstated, less any net
interim earnings. Backpay is to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
It having been found that the Respondent threatened
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it would not promote employees who filed grievances
with the Union in violation of Section 8(a)(l) of the Act
and having further found that the Respondent threatened
its employees that it would be futile for them to file griev-
ances through the Union, and that thereby Respondent has
restrained and coerced employees in violation of Section
8(a)(1) of the Act I shall recommend that the Respondent
cease and desist therefrom.
It having been found that Respondent has discriminato-
rily given to Roger Helms a written reprimand, I shall rec-
ommend that Respondent withdraw such reprimand and
expunge the same from Helms' record.
Having also found that the Respondent refused to pro-
mote Calvin N. Braden and other employees because they
engaged in union and protected concerted activity of filing
grievances, I shall recommend that the Respondent make
them whole for any earnings they may have lost by reason
of the failure of the Respondent to promote these individu-
als at the time when they ordinarily would have promoted
such individuals until these individuals were placed in their
classification after the resolution of the grievances filed by
these individuals. Inasmuch as the record in this case does
not show when these promotions would have occurred had
it not been for the Respondent's discriminatory action, it is
left for compliance proceedings to determine this date and
the amount of backpay due these individuals, such back-
pay to be computed as heretofore set forth above.
On the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Marmon Transmotive, A Division of The Marmon
Group, Inc., is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening its employees that it would not pro-
mote them because they filed grievances with the Union
and also that it would be futile for them to file grievances
through the Union, the Respondent has interfered with,
restrained and coerced its employees in the exercise of their
rights guaranteed said employees in Section 7 of the Act
and thereby Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By refusing and failing to promote employee Calvin
N. Braden and other employees because they engaged in
protected union and concerted activity, Respondent has
violated and is violating Section 8 (a)(3) and ( 1) of the Act.
5. By discriminatorily giving Roger T. Helms a written
reprimand , Respondent has violated and is violating Sec-
tion 8(a)(3) and (1) of the Act.
6. By discriminatorily discharging Roger T. Helms and
Edward N. Cooper because these employees engaged in
union or protected concerted activities, the Respondent
has violated and is violating Section 8(a)(3) and (1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended:
ORDER'S
Respondent , Marmon Transmotive, A Division of The
Marmon Group, Inc., its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening its employees that it will not promote
employees who file grievances with the United Steelwork-
ers of America , AFL-CIO-CLC.
(b) Threatening its employees that it will be futile for
them to file grievances through the said Union.
(c) Refusing to promote any of its employees because
they engage in union and protected concerted activities by
filing grievances or any other protected concerted activity.
(d) Giving written reprimands to Roger T. Helms or any
other employee for engaging in union or protected concert-
ed activity.
(e) Discouraging membership in United Steelworkers of
America , AFL-CIO-CLC, or any other labor organization,
by discharging any employee for engaging in union or
other protected concerted activity, or discriminating
against any employee in any other manner in regard to
their hire and tenure of employment or any term or condi-
tion of employment.
(f) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights to
form , join , assist , or be represented by the United Steel-
workers of America , AFL-CIO-CLC, or any other labor
organization , to bargain collectively through representa-
tives of their choosing or to engage in other concerted ac-
tivity for the purpose of collective bargaining , or other mu-
tual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately promote all employees who have not
been promoted by reason of their having filed grievances
or engaged in other activity , such promotion to be made in
conformity with the section of this Decision entitled "The
Remedy" and make each such employee whole for any loss
of earnings such employee may have suffered by reason of
the discriminatory failure to promote such employee as de-
scribed in the said section.
(b) Offer to Roger T. Helms and Edward N . Cooper
immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their
seniority or other rights and privileges previously enjoyed,
and make each whole for any loss of earnings he may have
suffered by reason of the discrimination against him in the
13 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
MARMON TRANSMOTIVE 115
manner set forth in the section of this Decision entitled
"The Remedy."
(c) Withdraw the written reprimand given to Roger T.
Helms and expunge the same from all company records.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records and reports, and
all other reports necessary to analyze the amount of back-
pay due under this Order.
(e) Post at its facility in Knoxville, Tennessee, copies of
the attached notice marked "Appendix." 16 Copies of said
notice on forms provided by the Regional Director for Re-
gion 10, after being duly signed by Respondent's represen-
tative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director of Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
16 In the event the Board 's Order is enforced by a Judgment of a United of the National Labor Relations Board" shall be changed to read "Posted
States Court of Appeals , the words in the notice reading " Posted by Order Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."