Martin Sprocket & Gear, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1962

135 N.L.R.B. 333 (N.L.R.B. 1962)

MARTIN SPROCKET & GEAR, INC. 333
In the situation before us, it is clear that the situs of the dispute was
the school jobsite and that the picketing occurred at that location.
Further, the evidence shows that the picket signs clearly stated the
dispute was with Wyckoff and that the picketing occurred only while
Wyckoff's employees were on the job and engaged in the normal busi-
ness of their employer. Consequently, the picketing here fell within
the standards set forth in Moore Dry Dock. Thus, as there are no
factors present and independent of the picketing demonstrating that
the picketing had, in fact, an unlawful purpose, we find that Re-
spondent's picketing of Wyckoff at the school jobsite did not violate
Section 8(b) (4) (i) and (ii) (B).
CONCLusIONs of LAW
1. Beacom Construction Company, together with Leo E . Murray,
an individual , d/b/a Wyckoff Plumbing are engaged in commerce and
in operations affecting commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. Plumbers & Pipefitters Local No . 471, United Association of
Journeymen & Apprentices of the Plumbing & Pipefitting Industry of
the United States & Canada , AFL-CIO, is a labor organization with-
in the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in the unfair labor practices
alleged in the complaint.
[The Board dismissed the complaint.]
MEMBER LEEDOM , dissenting :
I believe that the Respondent 's dispute with Wyckoff could have
been adequately publicized at or near the Company 's main place of
business and that the purpose of its actions at the school jobsite was
to enlist the unwilling aid of neutrals in its actions against Wyckoff.
Consequently , for the reasons set forth in my dissenting positions in
the Stephens Company case (supra, footnote 3) and Plauche Electric
Company ( supra , separate opinion ) I would find the Respondent by
its threat to picket and its picketing at the school site violated Sec-
tion 8 (b) (4) (i) and ( ii) (B), as alleged.
Martin Sprocket & Gear, Inc. and United Steelworkers of
America, AFL-CIO. Case No. 16-CA-1488. January 18, 1962
DECISION AND ORDER
On October 10, 1961, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
135 NLRB No. 46.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
labor practices, and recommending that-it cease and desist therefrom
.and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record. The Board affirms the Trial Exam-
iner's rulings and adopts the findings and conclusions.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification of Section 2(d) to read : "Notify the said Re-
gional Director, in writing, within 10 days from the date of this.
Order, what steps the Respondent has taken to comply herewith." I
IIn the notice attached to the Intermediate Report marked "Appendix," the words
"A Decision and Order " are hereby substituted for the words "The Recommendations of"a
Trial Examiner" ; the second indented paragraph Is modified by deleting all of the
language therein following the word "activities" in the 8th line thereof ; and the final
paragraph Is modified by deleting all of the language therein following the word
"organization" in the 2d line thereof. In the event that this Order is enforced by a
decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint charged that the Respondent had interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and had thus violated Section 8(a) (1) of the Act, and also charged that the
Respondent has discriminatorily discharged Jefferson Davis King, one of its em-
ployees, in violation of Section 8(a)(3) of the Act. In its answer the Respondent
denied the commission of the alleged unfair labor practices.
On August 23 and 24, 1961 , I held a hearing with respect to these charges at
Fort Worth , Texas. At the conclusion of the taking of testimony , counsel for the
Respondent and for the General Counsel waived oral argument . Subsequent to the
hearing, however, they filed briefs , which I have duly considered.
Upon the record so made , and based upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, Martin Sprocket & Gear , Inc. (hereinafter referred to as Martin,
Sprocket ) is a Texas corporation which has its principal office and place of business
at P.O . Box 206 , in the city of Arlington , State of Texas, where it is engaged in the
manufacture , sale , and distribution of sprocket , gears, and related products.' The
Martin Sprocket plant is now in its 11th year of operation . During the current
year, in the course and conduct of its operations , the Respondent has sold goods,
and materials valued in excess of $500 ,000, of which more than $50,000 worth have
been transported to States of the United States other than the State of Texas.
1 However, 95 percent of the business of the Respondent Is In sprockets.
MARTIN SPROCKET & GEAR, INC . 335,
H. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO (hereinafter referred to as the
Union), is a labor organization that has sought to organize the employees of the
Respondent. They had never before been represented by a union.
III. THE UNFAIR LABOR PRACTICES
A. The violation of Section 8(a) (1) of the Act
Early in May 1961,2 a small (group of Martin Sprocket employees consisting of
Jefferson Davis King, Billy Gene Clark, his brother-in-law, Josh Ray Allen, and
perhaps another employee, started to discuss the desirability of having a union in
the plant. Tins discussion took place in the plant during the lunch hour, and
James Payne, the leadman of these employees, was present during the discussion.
King and Clark asked Allen if he knew anyone who had had dealings with the
Union. It so happened that Allen had some friends who know Bennie McCrary, a
union organizer, who worked for the American Can Company. When they all met
at a softball game, they went to McCrary's house, where Allen talked to the latter
about passing out union literature at the Martin Sprocket plant.
On May 11 or 12, however, before such literature had yet been distributed at the
plant, King and Allen talked to most of the employees on the day shift in an effort
to interest them in the Union. Among the few employees who indicated on this
occasion that they would not support a union was one Eli Casey, who told King
and Allen that he wanted to talk to Otis Russell, the assistant foreman, "to see what
he thought about it." Lasey later told Allen that he had talked to Russell.
On May 15, which was a Monday, Billy G. Howard, who was the shop foreman
on the day shift, approached Allen at the machines on which he was working and
engaged him in conversation. Howard asked Allen how things were going, and
Allen replied, "Fine." Howard then asked Allen whether he had heard any rumors
about a Union, and Allen replied in the negative. Howard then remarked to
Allen: "I don't thing that the company needs a union out here," and also added:
"We don't want any rumors about one going on."
About 4:30 p.m. on May 15, which would be at the end of the working day,.
Howard had concrete proof that the rumors about a union were true, for union
representatives passed out union literature and authorization cards to the employees
of Martin Sprocket as they were leaving the plant, or entering the plant to work on
the night shift. This activity was observed by Howard who reported it to Joe R.
Martin, Jr., the president of the Respondent, who went out of his office and intro-
duced himself to Henry M. Rabun, the staff representative of the Union who was
directing the distribution of the union literature and cards. "He did not give me a
card," Martin testified, "but he gave me the literature." King himself did not have
advance information that the Union would be distributing literature and cards that
day. He learned what was going on from one of the night shift employees and,
when he emerged from the plant, he received one of the union pamphlets and a
union organization card which he took home with him. He signed the card and
mailed it immediately to the Union.
Having mailed the union authorization card, King, who was president of a
bowling league in which the Martin Sprocket employees had a team, repaired that
same evening-May 15-to the Meadowbrook bowling alley in Fort. Worth. There
appears to have been considerable bowling enthusiasm at the Martin Sprocket
plant, and it was not confined to rank-and-file employees. Both Martin, the presi-
dent of the Company, and Howard, the shop foreman, bowled on occasion with
the employees.
On the evening of May 15, King was engaged in bowling a practice game with
three other Martin Sprocket employees, Terry Armstrong, Billy Clark, and J. C.
Givens, when Howard, who was also a member of the team, arrived and, while he
was getting ready to bowl, he asked the four employees how many of them had
signed their union cards and sent them in. King spoke up and told Howard that he
had signed his union card when he got home and mailed it, and` that the mailman,
had already picked it up The other three employees sought to evade Howard's
question, however, by telling him that they had not yet made up their minds as
to what they were going to do Howard was not joking when he put his question to,
the four employees. King, Clark, and Armstrong all testified that Howard gave
them no such impression There was, however, some joking after the bowling
°The date was probably May 10. King himself testified that the discussion took place
"the first part of May" but both Clark and Allen testified that It occurred about a week
before King's discharge by the Respondent which was effected on May 17:
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
game actually got underway. Thus, as Clark testified: "Several times during the
night when Bill Howard was fixing to try to pick up a spare I told him that if he
didn't pick the spare up I would send in two or three union cards."
The morning after the bowling alley incident, namely, the morning of Tuesday,
May 16, Howard again approached Allen while he was working, and remarked to
him: "About that union that I asked you about yesterday. Apparently, you knew
something about it." Allen replied: "Yes, Bill, I knew something about it. You
didn't expect me to tell you though, did you?" Howard's comment on this was:
"Well, sir, I usually tell you what you want to know." But Allen had the last
word. "Well," he said, "I think you tell me just about what you want me to know."
On May 16, Martin, the president of the Respondent, also engaged Terry Arm-
strong in one of their perennial conversations. Indeed, the two of them, who ap-
pear to have been on first-name terms with one another, talked so incessantly that
Armstrong could well be described as Martin's talking boy. When first employed by
the Respondent in November 1957, Armstrong had worked in the shipping depart-
ment of the plant, and had apparently acquired a wide acquaintance among the
Martin Sprocket employees. In August 1959, he had been transferred, however, to
the office, where he worked as an order clerk and took all the long-distance tele-
phone calls. This work brought him into close contact with Martin, who super-
vised the office force, leaving production to be handled by P. E. Trout, the executive
vice president of Martin Sprocket, who thus functioned in effect as plant superin-
tendent . Because of his background-not to mention his fondness for conversa-
tion-Armstrong appears to have been particularly valuable as a source of in-
formation concerning the attitudes of the employees, and Martin sometimes talked
to him in a general way even about personnel problems.
On the occasion of the May 16 conversation, Martin approached Armstrong
and asked the latter "what's the scuttlebut down in- the shop, you know, how did
the men feel about it, do they think the union would do good or not. ." Arm-
strong replied that he did not know but thought "it would probably go about 20 per-
cent for the union." Martin then asked Armstrong: "How does Jeff King feel about
it?" Armstrong did not answer this question, for, although he knew how King felt
about the Union, he was not disposed to enlighten Martin. In the course of the
conversation, Martin also asked Armstrong how Billy Clark and another employee
by the name of Harry Heflin felt about the Union.
King was discharged by the Respondent on Wednesday, May 17, which was the
close of the week for payroll purposes. The decision to discharge King was made
by Trout, but communicated to King by Howard, his foreman, at the close of the
working day. As King was in the grinding room cleaning up and getting ready to
go home, Howard came up and told King that he wanted to talk to him and asked
him to step outside. When they were out of earshot of the other employees, Howard
took King's paycheck out of his shirt pocket, handed it to him, and told him that
he was fired. King asked Howard: "Bill, what's the reason you are firing me?"
Howard replied: "Mr. Trout said that you wasnt giving us a day's work." King
protested: "Bill you know that I am doing just exactly what you told me to do."
Howard then told him: "Yes, Jeff, I know you are, but that Gene is my boss and I
have to do what he tells me to do."
At least two of the Respondent's employees, Clark and Armstrong, were so puzzled
by the discharge of King that they questioned Howard about it. Allen-wanted to know
why King had been kept on so long if he was not putting in a day's work, and all
that Howard could tell Allen was that "they had kept him on that long for a sym-
pathy matter." The other employee who put the embarrassing question to Howard
was the talkative Terry Armstrong. When Howard explained that King "wasn't
doing the work out there," Armstrong indignantly declared that that "was the stupid-
est damn thing I ever heard of in my life." Being put upon the defensive, Howard
agreed that "it was a matter of bad timing." A few days later Howard told Clark,
King's brother-in-law, that "if Jeff wanted a recommendation for another job he
would give him one" but that he wanted King to come to his house, rather than to
the plant, to get it.
A representation election was scheduled at the Martin Sprocket plant for June 16.
About a week before the election was to be held, Andy Anderson, one of the
Respondent's foremen, and William Bryant Benson had a conversation in which the
Union was discussed. The latter who is no longer employed by the Respondent, was
the cleanup man around the plant at that time, and, like Martin and Armstrong,
the cleanup man and the foreman were accustomed to talk a lot to each other. On
this occasion, Anderson asked Benson how he felt about the Union. Benson told
Anderson that he was "for the union all the way." Anderson thereupon commented:
"Well, if you are for the union, then your brother is." "No," Benson replied, "he's got
MARTIN SPROCKET & GEAR , INC. 337
a mind of his own. Whatever he feels that's way he'll vote ." There ensued some
further discussion about the Union in the course of which Anderson observed that
"as far as he was concerned the unions just stink."
Sometime before the election the approaching event was also the subject of a
conversation between Armstrong and Howard . It seems that Howard had been con-
ducting a sort of Gallup poll of his own, and he expressed the opinion to Armstrong
that only 20 to 25 of the employees would vote in favor of the Union ( the Martin
Sprocket plant has a complement of approximately 100 employees ). Armstrong
disagreed with Howard 's estimate , and told the latter that he thought the election
would be close . Indeed , Armstrong expressed the opinion that if the election had
been held the day after the discharge of King , 90 percent of the employees would
have voted in favor of the Union . Howard conceded that "if we hadn 't fired Jeff,
he thought it would have gone in favor of the union."
Howard proved the truer election prophet . When the election was held on
June 16 , a majority of the employees voted against the Union.
Counsel for the Respondent seeks to make light of the conversations of its super-
visory employees and president with their rank -and-file employees , and seeks to
represent these conversations as protected employer activities , so to speak . Doubt-
less the mere presence of James Payne , the leadman (whatever his status ), at the first
discussion of the Union was not a violation of Section 8 (a)( I) of the Act, since his
presence was wholly accidental and there is nothing to show that he participated in
the conversation in any way ; nor was it unlawful for Otis Russell, the assistant
foreman , to give advice ( whatever it was) to Eli Casey, since his opinion was solicited
by this employee ; and in and of themselves Howard 's remarks about the Union and
his speculations on the outcome of the election , as well as Andy Anderson 's opinion
concerning unions, however unflattering , would represent only instances of protected
free speech . The evidence relating to the conversation indicates , however, that they
were part of a concerted effort on the part of the Martin Sprocket management to
interrogate employees concerning their attitude towards and activities on behalf of
the Union under circumstances which were inherently coercive, since the conversa-
tions in which the questioning occurred were not casual but were initiated in every
instance by a representative of management obviously seeking information. The
chief offender was undoubtedly Howard , for in his first conversation with Allen he
not only sought information about the Union but plainly intimated to him that a
union would be unwelcome . Moreover, if there could be said to be any doubt
concerning the coercive nature of Howard 's remarks to Allen , the foreman effectively
removed any such doubts the next day by taking Allen to task for not telling him
what he wanted to know the previous day. As for Howard 's interrogation of the
employees in the bowling alley, it was nonetheless coercive because it did not occur
at the Martin Sprocket plant . Whether an unfair labor practice has been committed
is not to be judged solely in terms of the locus in quo. Howard must have realized
this or he would not have attempted to pass the whole incident off as a joke.
As the Respondent did not call Andy Anderson as a witness , it must be assumed
that the accuracy of Benson 's evidence is not challenged . I am aware that Howard
and Martin took refuge , as is not unusual in such circumstances , in the vagueness of
their recollections about the conversations in which they had been engaged. But
how, if they remembered so little, they could also deny that they did not initiate any
of the conversations, is not easy to understand . It is particularly incomprehensible
how Howard could distinctly remember the humorous remark Billy Clark made in
connection with picking up the spare , and wholly fail to remember whether he had
asked the employees on the bowling team whether they had sent in their union cards.
That he did ask this question , and received an informative answer from King, is,
however, attested not only by the evidence of King himself but also by the evidence
of Clark and Armstrong . I have no reason to doubt the veracity of these witnesses
in whose memory Howard 's questioning was clearly fixed by the discharge of King
2 days later. There is ample reason , however , to doubt the veracity of Howard, as
well as of Trout, the vice president of the Respondent , in view of the nature of the
testimony given by them with respect to this very event , to which I now turn.
B. The violation of Section (8) (a) (3) of the Act
Jefferson Davis King , known familiarly as "Jeff" not only to his fellow employees
but also to Trout and Howard , had been employed by the Respondent in October
1955 as a machine operator in the gear -cutting department of the plant . When first
employed he was on the night shift , and worked under the general supervision of
Howard who was then foreman on the night shift. While working on the night
634449-62-vol. 135-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift, he was promoted to leadman. This promotion occurred when the leadman on
the day shift quit, and the leadman on the night shift took the latter's place. In the
latter part of 1956, however, King was transferred to the day shift at his own request,
and worked on the day shift until he was discharged on May 17.
When first employed by the Respondent, King's hourly rate of pay was $1.15. When
promoted to leadman on the night shift, King's hourly rate of pay was a $1.55 or $1.60,
which was the top wage in his classification. When discharged, King was receiving
$2 an hour (his last wage increase was in March 1960). When he received his last
wage increase, only James Payne, his leadman, was receiving more than King.
(Payne was receiving $2.35 or $2.40 an hour.) Certainly there is nothing in this
employment record which suggests in itself that King was an unsatisfactory employee.
On December 24, 1957, however, King sustained the first of a whole series of
injuries while working on the job. While he was loosening the nut on. a 72-inch
Brown-Sharpe machine with a wrench, the wrench slipped off the nut, and hit
him on the side of the head, cutting a gash in it, which required stitches. X-rays
showed no fracture, and the doctors merely advised King to stay away from work
until he felt better. However, King developed bad headaches and was unable to
work regularly, although the doctors could no longer perceive any good medical
reason for his difficulties. Between the time of his injury and July 1958, King
reported for work several times, not only in the gear department but in the shipping
department. However, his headaches proved so severe that he would have to quit
work. From April to July 1958, he did not work at all, and in an effort to rehabili-
tate him he was even sent to a psychiatrist for treatment.
Although he was still taking medication, King went back to work in July 1958,
and worked until August 11, 1959, when he sustained the first of a series of back
injuries in tightening the nut on a Brown-Sharpe machine-this time he was pulling
up instead of down. Although he was able to finish out the day, he was unable
to get out of bed the next morning without help. However, after receiving heat
treatments, and going to a chiropractor at the suggestion of Howard, he was able
to return to work on September 10, 1959, although on lighter Barber-Colman ma-
chines, and with some degree of absenteeism.
On January 7, 1960, King sustained a second back injury while loosening the
heads on one of the Barber-Colman machines, and underwent treatment again. The
doctor advised him to go back to work if he could get lighter work than operating
the Barber-Colman machines. As no such work appears to have been available at
this time, he was temporarily laid off. But this layoff lasted only until February 15,
1960, when Howard sent Billy Clark, King's brother-in-law, to tell King that they
had something lighter for him to do, and that he could come back to work. When
he reported for work, he was put on a job which was to consist of sharpening the
cutters for the gear-cutting department on the day shift and of operating ,the smallest
Barber-Colman bobbing machine, which was known as the "Peewee." On the
morning that he returned to work, Howard told King that he did not want him to
lift anything heavier than a beer bottle, and that if he had to lift anything to get
someone to help him.
On June 23, 1960, King reinjured his back for the third and last time. King
testified that, if he remembers correctly, he hurt his back while picking up out of
the rack a 3-inch cutter weighing about 15 pounds, in order to sharpen it. Back to
the doctors for treatment went King again. He returned to work in July 1960, after
being away from work for a period of about 4 weeks, and resumed the job of
sharpening cutters and operating the "Peewee" machine. In September 1960, King's
doctor advised him to wear a corset, while working or driving a car, and King has
worn the corset since then. At the time of his discharge, King was still on the job
of sharpening cutters and operating the peewee machine.
However satisfactory an employee King may otherwise have been, it is apparent
that he was so accident-prone that it would have been readily understandable if the
Respondent had decided to dispense with his services altogether. But, actually,
except for the brief layoff early in 1960, which appears to have been due to the
temporary lack of any work which King could do, both Trout and Howard treated
him with an unwonted degree of solicitude and consideration. Indeed, Trout in
particular behaved toward King as an indulgent father toward a troublesome son.
When, after King's head injury the doctors kept telling Trout that they were baffled
by his inability to get back to work, Trout told one of the doctors: "Well, we need
to do something to help Jeff so that he can get back on the job." It was as a result
of this conversation that King was sent to a psychiatrist for treatment. Despite the
fact that King was suspected of malingering, Trout, with rare generosity, also paid
his full wages (on the basis of a 40-hour week) up to the month of April 1958.
This was, of course, considerably in excess of what King would have received under
the workmen's compensation law. Trout also knew that King was wearing a corset
MARTIN SPROCKET & GEAR, INC. 339
but he obviously did not regard the necessity for this support as disqualifying him
for employment Moreover, despite the fact that King was put on progressively
lighter work, his pay was not reduced by Trout. As for Howard, his solicitude
toward King is apparent alone from his beer bottle remark, and his favorable dis-
position toward him is even more manifest from the fact that it was he who recom-
mended to Trout the raise received by him in March 1960, which, it should be noted,
was granted between the occurrence of the two last back injuries sustained by him.
Moreover, when King asked Howard for raises both in January and April 1961,
Howard tried to get Trout to agree to them, and he failed only because Trout
thought that King was already getting such a high rate of pay that other employees
whose rates of pay were less should receive prior consideration.
King who is a stalwart 6-footer and who weights about 210 or 215 pounds, ap-
pears to be an engaging personality, and, when I observed him at the hearing, which
was more than a year since his last injury, he manifested a brooding anger 3 but he
did not appear to show any ill effects from his accidents. There was not even a
visible scar from his head injury. There was certainly no sigh of physical weakness.
King's employment record for 1961, which is in evidence, shows that in the period of
almost 5 months preceding his discharge, he lost virtually no time from work. In-
deed, he worked some overtime in almost every week during this period.
The principal witness with respect to the cause of King's discharge was Trout
himself, a soft-spoken and reflective man, who by his actions had already demon-
strated his soft-heartedness. He now offered various explanations of his patience
and 'forbearance. True, he sometimes suspected that King's injuries were not genu-
ine, or that he was making too much of them, but then he was never 100 percent
sure that such was the case. King was having too many accidents but if he fired
him for this reason, the other employees would draw the conclusion that any man
who was hurt on the job would be fired, and this would be undesirable. Moreover,
if he fired King, it would alienate Billy Clark, his brother-in-law, and this was
something he wished to avoid. As for the raise which King got m March 1960,
Trout maintained that it was by no means an indication of satisfaction with King's
work. As a matter of fact, he testified Howard had been opposed to recalling King
after his layoff but, after King had returned to work, Howard told him that King
was "unhappy and disgruntled" and a raise "might inspire him to do abetter work."
Trout claimed that on a number of occasions he had given unsatisfactory employees
raises in order to inspire them to do better work, and so, as he testified, he told
Howard: "Well, you are bribing him, but maybe it will work."
Trout's explanation seems highly dubious. To be sure, if King had been dis-
charged after his first injury, the employees might have been resentful. But, when
the first injury was followed by three others in a period of less than a year, King's
fellow employees, including even his brother-in-law, could have understood why
Trout should want to terminate King's employment. After all, King had no ordinary
accident record. Moreover, Trout's patience and forbearance toward King was
manifested although, in his opinion, King had never been more than " an average
worker," and although, according to him, he was receiving more and more disturb-
ing comments and reports about him, not only from Howard but also from Payne,
King's leadman. There are indications in the record that in testifying about King's
work and character, Trout subjected his real views to a considerable degree of re-
visionism.4 But the more his views are accepted at their face value, the more in-
explicable does his conduct become. As for rewarding King by giving him a raise
when 'his work was unsatisfactory, this would hardly be regarded as normal in any
industrial establishment.
In the last analysis, however, Trout could not have discharged King merely be-
cause of his past deficiencies or his past record 5 Even if an accumulation of de-
ficiencies and misdeeds could be said to constitute an adequate basis for a discharge,
there must have been some particular incident to trigger the action. Trout himself
fully realized this, and undertook to supply such an immediate incident to explain
King's discharge.
3Wlien Howard discharged King, the latter declared* "By God, you'll be hearing
from ine."
'Thus, although lie thought, apparently, that King was only an average worker, lie
expressed the opinion at one point that despite the worn character of the Machine of
which King was working, it could have done a satisfactory job "with a man of Jeff's skill
and ability and experience." [Emphasis supplied ]
5 There was also some testimony that King had been making too many unwarranted
insurance claims but if they were too many, they had been made a considerable time before
his discharge, and they could not constitute, therefore, the immediate cause of his
dismissal. - '
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Trout, the immediate cause of King's discharge was a complaint
which he received the evening of May 10 from Norman Bradley Runyon, the lead-
man on the night shift in the gear-cutting department. Trout gave Runyon, whom
he familiarly referred to as "Norm," a tremendous buildup as a very conscientious
and hard worker, who knew what it took to do a good day's work. Well, it seems
that on the evening of May 10 Runyon had come to Trout and not only complained
that King had sharpened two cutters defectively but had brought proof of his
dereliction. To quote Trout himself:
I was working--4 normally work from about 9:00 or 9:30 to 6:00 or 7:00
at night, and on this particular night, Norm, we call him, brought a couple of
cutters into my office and he was very much irritated and upset and made the
remark to me that he could not make a good showing if he was going to have
to do Jeff's work over and have to correct it and straighten it up.
And we discussed the general situation for a few minutes and I told him,
I says, "O.K. Norm, I'll see what I can do about it."
Trout was then asked some additional questions, which he answered as follows:
Q. Did you look at those cutters that Norm brought in with him?
A. Yes, I did.
Q. What kind of shape were they in?
A. Well, they were sharpened with a negative rake, in other words, they were
not sharpened on center and they were not done properly.
Having related his interview with Runyon, Trout went on to explain, as follows,
his reaction to what the night leadman had told him:
Well, as I said, it made me mad and I thought that if Jeff, Jeff knew how
to do a better job than that, and if he was doing that kind of a job that it
appeared to me that he wasn't trying, and if he was going to set a bad example
for the other people plus that it was something going to cost money for him to
improperly sharpen cutters that would do an improper job on the machine.
All these things went through my mind, so I thought, well, I have done my
best to help him, if he doesn't want to be helped, then I guess I might as well
let him go. That was what went through my mind.
In response to further questioning, Trout went on to explain that a missharpened
cutter could cause serious trouble. The cheapest cutters cost $60 or $70, and the
cost of a cutter might run as high as $400. An improper sharpening job on a cutter
might shorten the life of the cutter; decrease the amount of work which the cutter
could do; affect the quality of the work done; or cause the cutter itself to break,
which would render it useless.
Trout further testified that he decided to discharge King without discussing the
matter with the culprit himself. It is also a fact that Trout decided to discharge
King without consulting Payne, who was King's own leadman, although he main-
tained close contact with his leadmen , and talked freely with them. Trout did talk
to Howard, however, about King the morning after his interview with Runyon, and
told Howard that in view of what Runyon had told him, it did not seem to him that
"Jeff was trying to do a day's work, and was setting a bad example for the other
fellows, if nothing else.. " According to Trout, Howard then mentioned that
"a few days before that he had asked Jeff to run another machine in addition to
what he was doing and Jeff never did run the machine. Trout added, however, that
he didn't know whether King refused to run the machine or just didn't get around
to it." Apparently, his mind being made up, Trout was not curious enough to ask.
In any event, he testified that Howard "had no objection to letting King go." They
decided, however, not to discharge King immediately but allow him to finish out
the week.
Howard also testified about King's employment and about his discharge, and in
general he did not contradict Trout in any important particular, although he pre-
tended to having an even worse opinion of King's work and character than Trout
supposedly entertained. He spoke of King's laxity in maintaining his machines, and
of his uncleanliness, and expressed the opinion that "the particular job he was doing
wasn't equal to that of other men who were drawing less pay." After stating that
he knew in general that several cutters had been broken during the time that King
was sharpening cutters, he added that, prior to King's discharge, it had been brought
to his attention by James Payne, King' s leadman , that "a better job could be done
sharpening the cutters." After delivering himself of these rather vague innuendos,
Howard testified that he agreed with Trout's decision to let King go at the end of
the week. Howard was also called upon to explain his contradictory recommenda-
tion of a raise for King in March 1960, and did so in the same terms as Trout.
MARTIN SPROCKET & GEAR, INC. 341
However , Howard was not even called on to deny that he had twice attempted to
secure raises for King in January and April 1961 , or that he had told King's brother-
in-law , Billy Clark, that he would recommend King for a job elsewhere ; nor was
Howard called on to deny his conversations with Ray Allen and Terry Armstrong
subsequent to King's discharge.
The explanation which Trout and Howard gave of the immediate occasion for
King's discharge raises a good many troublesome doubts and questions. In the
course of his own direct examination , King had testified that in the latter part of
1960, he had been taken to task about a cutter that had broken on one of the 72-inch
Brown-Sharpe machines because it had not been sharpened straight . Trout, Howard,
and Payne talked to King about it , and King explained to them that the corners on
the cutters had been rounded off because the grinder did not have a diamond setup
on the face side of the rock , so that it was necessary to sharpen the cutters on the
beveled side of the rock. Trout and Howard promised to have the machine fixed
but the repair had not yet been made at the time of King's discharge. Nobody
threatened to fire King on this occasion , and he further testified that he could recall
no other instance of anyone speaking to him about cutters being ground off center,
although this could undoubtedly have occurred. A defectively sharpened cutter may
be, moreover, the fault of the machine rather than the fault of its operator. The
machines were old and , while it was possible , nevertheless , to sharpen a cutter on
them true to center , it required a high degree of skill . This, in sum , was Trout's
own testimony. In addition, Ray Allen, who was the employee who took over
King's grinding machine after the latter 's discharge , testified that the machine was
in bad shape and needed repair . Yet Trout testified that Allen was doing a good
job on it. Furthermore, it was not always easy to identify the particular employee
who was responsible for the missharpening of a particular cutter. The cutters were
sharpened on the night shift , as well as the day shift , and they were stockpiled in a
rack. It was not possible to tell from one shift to another who had sharpened what
cutter last.
However, if Trout was really convinced that it was King who was responsible
for the defectively sharpened cutters, it is strange that he and Howard should decide
to allow him to work another whole week before carrying the decision into effect.
Trout and Howard contended that it was not customary to fire an employee in
the course of the workweek, except in the case of a serious offense. But Trout
testified that King would sharpen 10 to 20 cutters in a single day, and that by allow-
ing King to finish out the week, he was exposing the Company to financial risk.
James Payne, King's own leadman, who, allegedly, had also complained about
him, was not called as a witness by counsel for the Respondent but he did call
Runyon as his last witness, and Runyon's testimony conclusively established that
Trout's explanation of the immediate cause of King's discharge was pure fiction.
When Runyon came to see Trout the evening of May 10, he did not bring with
him two cutters that had been defectively sharpened off center by King. He testified
that the two cutters which he showed to Trout were ones that he had found in the
rack with some teeth missing. Runyon's object in taking them to Trout was to
show him the defect in the material in the cutter, and not to complain of the way
the cutters had been sharpened. In fact, Runyon conceded, he had no way of
knowing who had sharpened the particular cutters; and that he had never taken any
cutters to Trout to complain that they had been improperly ground by King. While
Runyon did testify that King's name was mentioned in the course of his conversa-
tion with Trout that evening, he could not even remember in what connection King's
name was brought up. While Runyon did have a gripe against King, it was that
he left too many cutters in the rack to be sharpened on the night shift but this was
a more or less standing gripe. Runyon had mentioned the subject on several occa-
sions to Trout but he was extremely vague about timing them.
Since Trout's alleged reason for deciding to discharge King was shown to be pure
fiction , the conclusion becomes inescapable that his real reason was King's union
activity. King had not only been among the few employees who had taken the
lead in contacting the Union but he had brazenly admitted to Howard that he had
hastened to sign a union authorization card on the very day that the union literature
and cards had been first distributed. Trout had endured- almost everything from
King but the Union was, evidently, an unpardonable sin.
Of course , Trout maintained that when he made the decision to discharge King,
he was wholly ignorant of his union activity. But there is relevant here the old
maxim , falsus in uno, falsus in omnibus . The Respondent 's representatives had
demonstrated that they believed that vigilance is the eternal price of industrial liberty.
The Respondent's president had not lost a moment when he was told about the
distribution of union literature. It is hardly to be supposed that Trout and Howard
would be any the less vigilant . It is difficult to understand how they could remain
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ignorant of King's activities when he was conducting them openly in the plant-talk-
ing about bringing the Union in in the presence of his leadman, and subsequently
soliciting a good many other employees in the plant. Trout could have learned
about King's activities as early as May 10, which would be prior to his conversa-
tion with Howard during the morning of May 11. But if he did not learn of them
then, he certainly learned of them before the afternoon of May 17 when King
was discharged, for prior thereto King had admitted his union affiliation and sup-
port to Howard, who could hardly have kept this disturbing information to himself.
If Trout had knowledge of King's union activities by May 11, his testimony that he
then decided to discharge him may be true. But if he did not obtain his knowledge
of King's union affiliation until after the bowling alley incident, this testimony
must be regarded as untrue, and it must be assumed that the decision to discharge
King was made shortly before it was communicated to him. In any event, since
Howard undoubtedly knew about King's union affiliation before the decision to dis-
charge him was made, and since in agreeing to his discharge, he was influenced by
this knowledge rather than by his allegedly low opinion of King's value as an em-
ployee, the Respondent would be responsible for King's discharge even if it were
to be assumed that Trout remained in a state of complete ignorance.
Counsel for the Respondent concedes that the timing of King's discharge was
"bad," as indeed it was. The evidence establishes convincingly, however, that the
motive was also bad. This is so apparent that counsel for the Respondent has been
left to argue that the discriminatory discharge of King cannot be established by
circumstantial evidence. But, as Thoreau, the sage of Walden, put it: "Some cir-
cumstantial evidence is very strong, as when you find a trout in the milk."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in section III of this report,
occurring in connection with the operations of the Respondent described in section I
thereof, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
The scope of the Respondent's unfair labor practices in the present case seem
sufficiently extensive to justify a broad form of cease-and-desist order, and I
shall recommend an order designed not only to prevent the repetition of the specific
unfair labor practices in which the Respondent has engaged but also to effectuate
all the guarantees of Section 7 of the Act.
So far as affirmative relief is concerned, I shall recommend that the Respondent
make whole Jefferson Davis King for any loss of pay he may have suffered by reason
of the discrimination against him by payment to him of a sum of money equal to
the amount which he normally would have earned as wages from the date of his
discharge to the date of the Respondent's offer of reinstatement, less his net earnings
during said period, said backpay to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively interrogating employees with respect to their union affiliations
and activities, and by attempting to restrain their union activities, the Respondent
has violated Section 8(a)(1) of the Act
4. By discriminating with respect to the hire and tenure of employment of Jeffer-
son Davis King, the Respondent has violated Section 8(a)(3) and (1) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, Martin
Sprocket & Gear, Inc., its officers, agents, successors, and assigns shall:
1: Cease and desist from:
(a) Discouraging membership in United Steelworkers of America. AFL-CIO.
or any other labor organization of its employees, by discharging or in any other
manner discriminating against employees with respect to their hire or tenure of
employment or any term or condition of employment.
(b) Interrogating its employees coercively with respect to their union affiliations
or activities, or attempting to restrain such activities, or in any other manner inter-
MARTIN SPROCKET & GEAR , INC. 343
fering with, restraining, or coercing its employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the policies of
the Act:
(a) Offer to Jefferson Davis King immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him in the manner and to the
extent set forth in section V, entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all records necessary for the determination of the amount
of backpay due under these recommendations.
(c) Post at its plant in the city of Arlington, State of Texas, copies of the notice
attached hereto marked "Appendix." Copies of the said notice shall be furnished
to the Respondent by the Regional Director for the Sixteenth Region, and after being
signed by the president and vice president of Respondent shall be posted immediately
upon receipt thereof and remain posted for 60 consecutive days in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that the copies of the said notices are not
altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, -within 20 days from the date
of the receipt of this intermediate report, what steps the Respondent has taken to
comply with its requirements.
It is further recommended that, unless within 20 days from the date of the
receipt of this intermediate report, the Respondent notifies the said Regional Director
that it will comply with the foregoing recommendations, the Board issue an order
requiring the Respondent to take the aforesaid action.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees, by discriminat-
ing in regard to the hire or tenure of their employment or any term or condition
of their employment.
WE WILL NOT coercively interrogate our employees with respect to their union
affiliations or activities, or attempt to restrain such activities, or in any other
manner interfere with, restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations, to join or assist the above-
named labor organization, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, or to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as authorized in Section 8(a) (3) of the Act.
WE WILL offer to Jefferson Davis King immediate and full reinstatement to
his former or substantially equivalent position without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay he may
have suffered as a result of our discrimination against him.
All our employees are free to become, remain, or refrain from becoming or remaining
members of any labor organization, except to the extent that such right may be
affected by pan agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a)1(3) of the Act.
MARTIN SPROCKET & GEAR, INC.,
Employer.
Dated------------------- By-------------------------------------------
President.
By-------------------------------------------
Vice President.
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.