Mayrath Co.

National Labor Relations Board - Board Decisions

Aug 31, 1961

132 N.L.R.B. 1628 (N.L.R.B. 1961)

1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order , therefore , to make effective the interdependent guarantees of Section 7 of the
Act, thereby minimizing industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act , it will be recommended that Respondent cease
and desist from infringing in any manner upon the rights guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record; the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union and the Employees Committee are labor organizations within the
meaning of Section 2(5) of the Act.
2. By dominating and interfering with the administration of the Employees Com-
mittee and by contributing support to it, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a)(2) of the Act.
3. By (1 ) interrogating its employees about their union affiliations and sympa-
thies, (2) interrogating its employees regarding the union affiliations and sympathies
of their coworkers, ( 3) threatening to close its plant if the Union successfully or-
ganized their employees , and (4 ) promising its employees , provided they abandoned
the Union , improved working conditions, increased wages, more advantageous job
classifications , and improved vacation and sick leave plans, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
4. By discriminating in regard to the hire and tenure of employment of Anthony
Rojas, thereby discouraging membership in the Union , Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Mayrath Company and U.A.W., AFL-CIO. Case No. 13-CA-
2862. August 31, 1961
DECISION AND ORDER
On August 5, 1960, Trial Examiner Thomas S. Wilson issued his
Intermediate Report' in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
Respondent filed exceptions to the Intermediate Report and briefs in
support thereof.'
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 [Members Rodgers, Leedom, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 A previous Intermediate Report issued in this case by another Trial Examiner was set
aside by order of the Board , and the case was remanded for hearing de novo.
2 The Respondent has requested oral argument herein This request is denied as the
record, the exceptions , and the briefs adequately present the issues and the positions of
the parties.
132 NLRB No. 132.
MAYRATH COMPANY 1629
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the exceptions hereinafter set
forth .3
1. We agree with the Trial Examiner that Respolident on May 30,
1958, discharged Elmer Barnes, Millard Cummings, Charles Tedder,
Harold McGregor, Don Woodrum, John Siefkin, and Robert Monto-
van, in violation of Section 8(a) (3) and (1) of the Act.
The Trial Examiner found that on May 30, 1958, some of Respond-
ent's employees, including all of those named above, wore union but-
tons at work. This'was the first time this was done on Respondent's
premises. President Mayrath testified that the wearing of the but-
tons and other union activity, in his opinion, were interfering with
production and that'employees were congregating in groups instead of
working. He further testified that during the afternoon of that day,
in an attempt to further production, he went through the plant and
asked each employee he saw wearing a button either to take off the
button or leave. The Trial Examiner found that some employees re-
moved their buttons, but that the employees named above refused
and left the plant .4
Addressing ourselves to Respondent's contention that the wearing
of the buttons was interfering with production and that it had a right
to take such steps as it did to insure production, it is certainly true
that an employer may take reasonable steps to insure full production
of his product or maintain discipline. However, the wearing of union
buttons by employees while at work has long been recognized as an
employee right. In Republic Aviation Corporation v. N.L.R.B., 324
U.S. 793, at 802, the Court quoted with approval the Board's finding
in that case :
... that the right of employees to wear union insignia at
work has long been recognized as a reasonable and legitimate
form of union activity, and the Respondent's curtailment of that
right is clearly violative of the Act.
The Board has therefore held that rules which interfere with this
right ". . . are presumptively invalid in the absence of special cir-
' We find that the Trial Examiner inadvertently stated that Joseph Sims supervised a
crew of 18 to 20 welders The record shows that his regular crew consisted of.five to
seven welders However, the record also shows that at various times laborers were
assigned to the Sims' crew , sufficient in number to bring the crew up to the figures stated
by the Trial Examiner . We find the misstatement immaterial to the issue of the super-
visory status of Sims
4 Alayrath denied he asked Tedder and McGregor to remove their buttons or leave,
claiming Tedder voluntarily left and that McGregor was discharged for cause . For the
reasons stated by the Trial Examiner , we agree with the Trial Examiner 's findings that
these employees also were told to remove their buttons or leave the premises
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances which make them necessary to maintain production or
discipline."'
Though we agree with the Trial Examiner that Respondent did
not prove the special circumstances which might warrant its orders
to remove the buttons or leave the plant, we also are of the opinion
that, even assuming such special circumstances existed, it was in-
cumbent upon Respondent to advise the employees why it was order-
ing them to give up a protected right. Instead, Mayrath, without
advising the employees as to his alleged reasons, peremptorily
ordered them to remove the buttons or leave. The reasonable infer-
ence from this is that if the employees did not remove the buttons,
they would be discharged. By such peremptory order, we find,
Mayrath conveyed to the employees the idea that they had no right to
wear the buttons at work and gave them a Hobson's choice of either
foregoing the protected right or being discharged s
Therefore, under the circumstances of this case, we conclude that
Respondent, on May 30, 1958, discharged the employees named above
in violation of Section 8(a) (3) and (1) of the Act.'
2. We find merit in Respondent's exceptions to the Trial Exam-
iner's findings that Respondent discriminatorily discharged Cecil
(sometimes referred to as James) Barnes on May 30, 1958, and Wil-
bur Montovan on October 4, 1958, and that it discriminatorily re-
duced the wages of Wilbur Montovan on July 15, 1958.
a. The alleged discharge of Barnes
The record clearly shows and it was conceded by the General
Counsel that Cecil Barnes quit his employment on May 22, 1958. It
appears that Kettley, a fellow employee, told Barnes on the night of
May 29 to come back to work on May 30. The Trial Examiner as-
sumed that Kettley "must have had" the authority to invite Barnes
back to work. The record, however, shows that Kettley was a rank-
and-file employee with no supervisory authority. Kettley testified,
without contradiction, that he had not been authorized by any repre-
sentative of management to invite Barnes back, but that he had sug-
gested to Barnes that he come back because he though Barnes needed
the job. The record further shows that as soon as Mayrath learned
that Barnes was working on May 30, he ordered Barnes off the prem-
s Boeing Airplane Company, 103 NLRB 1025, 1026, enfd. with mod. 217 F. 2d 369
C.A. 9).
9 Mayrath's order can reasonably be interpreted to mean that the employees could not
wear the buttons during their free time or rest periods. So interpreted, as we do, it was
clearly unlawful. Texas Aluminum Co., Inc., 131 NLRB 443; Floridan Hotel of Tampa,
Inc., 130 NLRB 1105.
'Floridan Hotel of Tampa, Inc., supra; Puerto Rico Rayon Mills, Inc., 117 NLRB
1355; Kimble Glass Company, 113 NLRB 577, enfd. 230 F. 2d 484 (C.A. 6) cert. denied
352 U.S. 836.
i MAYRATH, COMPANY 1631
ises and refused to pay 'him for the several'hours worked. Accord-
ingly, we find that Barnes was not an employee of Respondent on
May 30, 1958, and was not discriminatorily discharged.
b. The alleged discharge of Wilbur Montovan
Montovan left work August 24 , 1958 , due to illness . On Septem-
ber 3 he reported to work but after several hours he became in again
and left. A day or two later, he presented a doctor 's statement, dated
September 3, 1958 , that he would require a 10- to 14 -day leave of
absence . On September 20, he appeared at Respondent 's office and
collected his check for. the hours worked on September 3, but said
nothing about any intent to return to work thereafter.
No further communication was had by him with Respondent until,
according to his testimony , he went to the plant on October 24, 1958,
and asked Foreman Heikes for his job. He testified Heikes told him
he was fired . Heikes denied he saw Montovan on that day or any time
or that he had fired Montovan . The Trial Examiner credited Mon-
tovan and found he was discharged by Heikes because he had worn a
union button.
The undisputed evidence shows that Respondent had no sick leave
program, and that after an employee had been absent a week or two
because of illness , he was automatically terminated on the company
records. Montovan was so , terminated . When an employee is so
terminated , he is required , if he seeks to be reemployed, to report to
the office to be reinstated on the payroll . It is conceded that Montovan
did not do so . It therefore follows that Montovan was not an em-
ployee of Respondent on October 24 and was not unlawfully
discharged.
Nor do we find a discriminatory refusal to reinstate on that day.
It was undisputed that Respondent customarily terminates its seasonal
operation in October and at that time lays off the majority of its
employees . The payroll records of October 1958 support this fact.
Moreover, it was uncontradicted on the record that Heikes had no
power to hire or reinstate an employee . The few instances when he
contacted an employee for reemployment were on occasions when he
was expressly authorized to do so. Furthermore , even were we to
assume Heikes had the power to rehire Montovan , we would not neces-
sarily infer that he was denied reinstatement because he had previ-
ously worn a union button . Equally, if not more plausible, is the
inference that Heikes would have refused Montovan reemployment
because the Respondent was curtailing its operations 'and because
Montovan had been away for 2 months due to , illness . We therefore
find Montovan was not discriminatorily 'refused reinstatement on
October 24, 1958.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The reduction in wages of Wilbur Montovan
The complaint alleged that on July 16, 1958, the wages of Wilbur
Montovan were reduced because, as contended by the General Counsel,
Montovan, for the very first time, had worn a union button at work
on that days Respondent contended that Montovan had voluntarily
requested the- reduction. The Trial Examiner concluded that Mon-
tovan's wages were reduced because Montovan had worn a union
button. His conclusion rests principally upon two main premises:
(1) a prior "sudden" transfer of Montovan; and (2) the discrediting
of Respondent's witness, Heikes, on the basis of what the Trial Ex-
aminer termed "intrinsic evidence." 9 We disagree with the Trial
Examiner's conclusions finding, as we do, that his premises will not
withstand close scrutiny.
As to Montovan's "sudden" transfer from the paint shop to the
yard, which occurred on July 4 or 5, we note first that the complaint
did not allege the transfer to be discriminatory. Secondly, the
transfer was made at the request of William Hampton, a leadman
who took over direction of the paint shop in April or May. Hampton
testified, without contradiction, that he had found Montovan to be
unsatisfactory, and that he had requested Montovan's transfer. We
note further that Hampton was and had been a union member while
in Respondent's employ and that at the time of the hearing, Hampton
was not an employee of Respondent. In these circumstances, the facts
of Montovan's transfer do not appear to have material bearing on his
wage reduction.
As to the discrediting of Heikes, a foreman, the facts are these :
Heikes testified, without contradiction by Montovan, that on or about
July 15, 1958, he had "really chewed out" Montovan for his work,
had pointed out to Montovan other employees doing like work for less
money, and had asked Montovan if Montovan thought he was worth
more money than the other employees. On July 16, according to
Heikes, Montovan gave him a memorandum showing his wages as
$1 per hour-an hourly reduction of 40 cents. The memorandum,
which was in evidence, was dated July 15, and was in Montovan's
handwriting. Heikes testified that he asked Montovan to explain the
memorandum. In reply, according to Heikes, Montovan stated that
he could not do production work, that he was 59 or 60 years of age,
that the work was too hard for him, and that he wanted an assignment
to a lighter maintenance job, specifically to cleaning up the yard.19
8 Contrary to the contention of the General Counsel , the Trial Examiner apparently
found that Montovan began to wear a union button very early in July.
9 The Trial Examiner also relied on Respondent 's knowledge that Montovan had worn a
union button , a fact not disputed by Respondent . We have taken that factor into
consideration.
io Heikes further testified that he took the memorandum signed by Montovan to Book-
keeper Olson who was in charge of the payroll. Olson testified that because of the
MAYRATH COMPANY 1633
Montovan, a rebuttal witness, admitted that he had written and
signed the memorandum in question, but asserted that he had been
forced to write it by Heikes under threat of immediate discharge.
He further testified that Heikes had dictated the memorandum to him,
and that it was written by him in Heikes' office at the plant.ll
On the basis of "intrinsic evidence" alone, the Trial Examiner "re-
jected Heikes" testimony and "credited" Montovan's. This "intrinsic
evidence" was dual in nature: (a) the kind of paper on which the
memorandum in question was written; and (b) the quality of Monto-
van's handwriting.
The paper on which the memorandum was written was a tariff form
used in connection with the export of goods to Canada, the back thereof
being used for the disputed writing. The Trial Examiner concluded
that Montovan could not have prepared the memorandum in advance
of its presentation to Heikes because-"The tariff form is one which
would have been in use in the Respondent's business. It is not the
type of form an employee would have."
We reject as untenable the Trial Examiner's treatment of the tariff
form. There is no evidence in the record whatever to show that the
form was used in the Respondent's business; nor is there even evi-
dence that Respondent was engaged in foreign commerce. Equally
speculative is the Trial Examiner's statement that an employee would
not be likely to have in his possession the form in question.
As to the quality of Montovan's handwriting on the document in
question, the Trial Examiner found that because the handwriting of
Montovan was "hardly decipherable," whereas his "signature shows
that he had a good clear handwriting," the memorandum was unlikely
to have been ". . . prepared in the quiet of his [Montovan's] home."
In this connection, we note, however, that Respondent did not assert
that Montovan wrote the memorandum in his home; Respondent's
only contention was that it was not written in Heikes' office. As to
Montovan's signature, we note that his signature appears on no docu-
ment in the record other than the memorandum in question. In any
event, we refuse to speculate as to whether the signature actually re-
flects the general quality of Montovan's handwriting; we also refuse
to infer from Montovan's handwriting or signature that the memo-
randum in question was actually prepared in Heikes' office.
"special circumstances" he undertook to question Montovan ; and that when he ascertained
from Montovan that it was a voluntary request and that Montovan was "agreeable to
having his wages reduced ," Olson put the reduction through. Montovan was thereupon
assigned to the maintenance job he had requested . Montovan did not contradict Olson's
testimony . The Trial Examiner does not, however , refer to Olson 's testimony in this
respect.
11 Montovan was a witness for the General Counsel in both hearings in this case. We
note that the first time he mentioned the memorandum in question, or the alleged threat
by Heikes which allegedly forced him to write the memorandum , was when he was called
as a rebuttal witness in the second hearing.
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noting, therefore, that the Trial Examiner's' so-called credibility
finding `was not based upon the witnesses' demeanor, but instead was
based upon so-called intrinsic facts to which we cannot attribute
decisive weight, we do not adopt, the - Trial- Examiner's conclusion
that the'memorandum in question was not what it purported to be-a
voluntary agreement by Montovan for a wage deduction. We accord-
ingly conclude that the General Counsel has not shown that Monto-
van's wages were discriminatorily reduced.
Accordingly; we shall dismiss the allegations of the complaint with
respect to the discharges of Cecil Barnes and Wilbur Montovan and
the reduction in wages of Wilbur Montovan.
3. Respondent contended that it had offered reinstatement to cer-
tain of the employees found to have been discriminatorily discharged
herein. In particular, it alleged offers to Elmer Barnes, Woodrum,
and Siefkin which those employees failed to accept, and it further
alleged it fully reinstated Cummings and Robert Montovan. The
Trial Examiner found to the contrary. We agree with. the Trial
Examiner, for the reasons stated by him, that no valid offer was made
to Elmer Barnes. However, we find merit in Respondent's exceptions
to the Trial Examiner's findings with respect to Woodrum, Cummings,
Robert Montovan, and Siefkin, for the reasons set forth below.
Woodrum: In our opinion, the record is clear that Respondent, on
September 3, 1958, made an offer of substantially equivalent employ-
ment to Woodrum and that Woodrum refused the offer, for the sole
reason, as he testified, because he had another job. We so find.
Cummings : The Trial Examiner found that Cummings was not re-
called to employment substantially equivalent to that he was perform-
ing when he was discriminatorily discharged. We do not agree.
Cummings was a common or general laborer who worked wherever
necessary, though he usually was assigned, to the yard crew loading
machinery on trucks. He had done digging work at the plant and
pushed wheelbarrows. While working, he had received the same rate
of pay, regardless of the particular labor assignment. Cummings was
discriminatorily discharged on May 30, 1958. On June 26, Stauth,
yard foreman, requested Cummings to report to work. At 1:30 p.m.
Cummings reported. Stauth told him that there was an opening on
the yard crew loading machinery. Cummings stated he could not
start that day as he had to go to a neighboring town, but he agreed to
report on the next day. Stauth testified that though he had intended to
put Cummings on the yard loading crew for the next day, in making
up the work assignments for the next day, which he did between 6 and
6:30 p.m., he forgot that Cummings was to report and he made work
assignments which filled that crew without Cummings. Cummings
reported the next day, June 27, at 8 a.m. though the reporting time
was 7 a.m. Stauth thereupon assigned Cummings to cutting thistles in
MAYRATH COMPANY 1635,
the yard. The evidence shows that Respondent is required by law to,
cut and kill these thistles under penalty of fines and certain employees,
were regularly assigned to this task. At times the entire yard crew was
so assigned. Cummings worked until noon at the thistle assignment.
Lage, yard boss under Stauth, testified that he needed a laborer to
dig a trench in which.a one-half inch propane gas line was to be laid-
He asked Stauth for help and Stauth told him to get Cummings. Lage
then took Cummings off the thistle job and assigned him to digging
the trench. The trench to be dug was approximately 34 feet long,
6 inches wide, and 8 inches deep. As the Trial Examiner found, after
Cummings had been working on the trench for about 2 hours and had
completed only about half of the trench Stauth ordered him to com-
plete the trench in half an hour or to quit. Cummings chose to quit.
The job on the trench was then finished by another employee in 16
minutes.
The Trial Examiner concluded that the offer of reinstatement to.
Cummings was not bona fide. His premises were that Cummings was
not offered substantially equivalent employment and that his rate of
pay was not the same as he had been paid prior to his discharge. As to
the latter premise, the Trial Examiner was clearly in error, as it was
neither contended nor shown that Cummings was reinstated at a,
lesser rate of pay. As to the type of work involved, Cummings, we
find, as a general laborer had no special assignment, the assignments,
of June 27 are explained by what transpired the preceding day and
the jobs of digging the trench or cutting thistles do not appear to have
been any more arduous than loading farm machinery on trucks. Nor-
did Cummings contend that he quit because of the nature of the assign-
ments of June 27. His testimony was that he quit because he could not
finish the assigned work in the allotted time. However, it does not
appear that Stauth's direction to finish the trench in half an hour was.
unreasonable. The trench was being dug in soft dirt, and it was not
shown that there were any difficulties in the digging. In fact, the•
trench was completed in just over a quarter of an hour by another
employee after Cummings quit. Under all the circumstances herein,,
we find Cummings was offered substantially equivalent employment
and that he voluntarily quit his job on June 27.
Robert Montovan: Montovan also worked as a general laborer.
After his discharge, he was recalled on September 2 by Heikes by tele-
phone conversation. The Trial Examiner found that Montovan re-
ported "a day or two later," and that Heikes then stated to him that
there was no work 'available but that he, Heikes, "would make work
for him." The Trial Examiner further found that Montovan was
then assigned to various jobs and that he quit on the third day after-
"harassment" by Respondent. The Trial Examiner concluded that
the offer of reinstatement to Montovan was not bona fide because he
614913-62-vol 132-104
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not put to work "at substantially equivalent employment"; be-
cause no work was available for Montovan when he reported, thus
indicating that Respondent had no work for Montovan when he was
offered reinstatement; and because, when reinstated, Montovan re-
ceived 10 cents an hour less than when he was discharged. We do not
agree with the Trial Examiner's conclusion that Montovan did not
receive a bona fide offer of reinstatement.
We note that the Trial Examiner misstates the fact when he finds
that Montovan reported for work "a day or two later"-that is, a day
or two after the September 2 telephone conversation with Heikes.
Montovan stated on the phone that he could not report until September
3. However, as the company records show, Montovan did not report
until September 9. It is undisputed that Montovan did not communi-
cate with Respondent between September 3 and 9. Nor did he ex-
plain at the hearing his failure to either report on September 3 or his
failure to communicate with Respondent.
We note further that when Montovan was recalled on September 2,
he was recalled to fill a specific job, that of jigsetting. In this con-
nection, Heikes testified that the job to. which he had recalled Mon-
tovan was filled when Montovan reported on September 9, and that he
thereupon assigned Montovan to other jobs.
In these circumstances we accept the Respondent's contention that
it offered, in good faith, substantially equivalent employment on Sep-
tember 2. In view of Montovan's failure to report, or communicate
with Respondent until September 9, we likewise accept Respondent's
assertion that Montovan did not report until after the jigsetting job
had been filled. We accordingly find that Respondent was under no
obligation to keep the jigsetting job open for Montovan, and it dis-
charged its obligation to Montovan by giving him available employ-
ment when he did report on September 9. Further, in our opinion
the evidence upon which the Trial Examiner relied to find that Re-
spondent harassed Montovan is not weighty. Moreover, in view of the
fact that on September 9 Montovan was given such job as was available
appears as an adequate explanation for the fact that he received a
lesser rate of pay than he had received before his discharge.
Under all these circumstances, we conclude that the offer of rein-
statement made to Montovan on September 2 was made in good faith.
John Siefkin: We agree with the Trial Examiner, for the reasons
stated by him in the Intermediate Report, that no valid offer of rein-
statement was made to Siefkin on September 3, 1958. However, as
contended by the Respondent, the evidence clearly shows that on or
about August 1, 1959, Siefkin received a registered letter from Re-
spondent, requesting him to report to work by August 12, 1959. Sief-
kin testified that he did not accept this offer because he had another
job. No contention was made by the General Counsel that this second
MAYRATH COMPANY 1637
offer of reinstatement was not a valid offer. Though the Trial Ex-
aminer found the fact of the offer, he made no finding as to the effect
of the offer, but recommended full reinstatement for Siefkin. Re-
spondent excepted to this recommendation. In the circumstances we
find merit in the exception . Accordingly, we shall not order the rein-
statement of Siefkin.
4. The Trial Examiner recommended the reinstatement of Cecil
Barnes, Millard Cummings, Don Woodrum, Robert Montovan, John
Siefkin, and Wilbur Montovan and that they be made whole. As we
have found that Barnes and Wilbur Montovan were not discharged
discriminatorily, we shall not order their reinstatement nor shall we
award them any backpay. Likewise, we shall not order the reinstate-
inent of Cummings, Woodrum, Siefkin, or Robert Montovan, who, as
we have found, either were reinstated previously, as in the cases of
Cummings and Montovan, or refused reinstatement, as in the cases of
Woodrum and Siefkin. However, we shall order the Respondent to
make whole these four employees for the periods of time between May
30, 1958, the date of their discharges, and the respective dates when
either they were reinstated or failed to accept reinstatement."
We shall also require Respondent to cease from interfering with the
right of its employees to wear union buttons, badges, or other union
insignia while at work. However, nothing contained in our Order
shall be construed to prevent Respondent from enforcing reasonable
and nondiscriminatory rules concerning the wearing of such insignia,
in the interest of maintaining plant production or plant discipline.13
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Mayrath Com-
pany, Compton, Illinois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Discouraging or attempting to discourage membership in, or
activities on behalf of, United Automobile Workers of America,
AFL-CIO, or any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or by discrimi-
nating in any other manner, in regard to their hire or tenure or any
term or condition of their employment, in violation of Section 8 (a) (3)
of the Act.
(b) Discharging, or threatening to discharge, employees or visiting
reprisals on them for wearing union buttons while at work.
"The dates we have found to be , as follows : Cummings , June 27, 1958; Robert
Montovan and Woodrum , September 3, 1958; Siefkin , August 12, 1959.
13K,mble Glans Company, supra ; Floridan Hotel of Tampa, Inc, supra
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening its employees with reprisals of any nature because
of their membership in or activities on behalf of United Automobile
Workers of America, AFL-CIO, or any other labor organization, or
promising them benefits if they cease such activities.
' (d) In the absence of unusual circumstances affecting plant produc-
tion or plant discipline, making or enforcing any rule prohibiting its
employees from wearing union buttons, badges, or other insignia while
at work.
(e) Interrogating, or polling its employees concerning their mem-
bership in, or sympathies or activities on behalf of, United Automobile
Workers of America, AFL-CIO, or any other labor organization, in a
manner constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist United Automobile Workers of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Offer to each of the employees named below immediate and full
reinstatement to his former or substantially equivalent position of
employment, without prejudice to his seniority or other rights and
privileges previously enjoyed, and make each of them whole for any
loss of pay suffered by him as a result of the discrimination against
him, in the manner described in the section of the Intermediate
Report entitled "The Remedy."
Elmer Barnes Lynn Richards
Charles Tedder Max Wells
Harold McGregor Frank Marrisett
(b) Make whole immediately, in the manner described in the sec-
tion of the Intermediate Report entitled "The Remedy," the follow-
ing employees, for the periods of time from May 30, 1958, to the date
opposite each name, respectively.
Millard Cummings, June 27, 1958
Robert Montovan, September 3, 1958
Don Woodrum, September 3, 1958
John Siefkin, August 12, 1959
MAYRATH COMPANY 1639
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and compute the amounts of
backpay due under the terms of this Order.
(d) Post at its office in Compton, Illinois, copies of the notice
attached hereto marked "Appendix." 14 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days. thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint with
respect to the discharges of Cecil Barnes and Wilbur Montovan, the
reduction in wages of Wilbur Montovan, and the layoffs of George
West, Dallas West, and Robert Stevens, be, and they hereby are
dismissed.
141n the event that this Order is enforced by a decree of 'a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage or attempt to discourage membership
in, or activities on ' behalf of, United Automobile Workers of
America, AFL-CIO, or any other labor organization of our em-
ployees, by discharging or refusing to reinstate any of our em-
ployees, or by discriminating in any other manner in regard to
their hire or tenure or any term or condition of employment, in
violation of Section 8(a) (3) of the Act.
WE WILL NOT discharge or threaten to discharge our employees
or visit reprisals on them for wearing union buttons at work.
WE WILL NOT threaten our employees with reprisals of any
nature because of their membership in, or activities on behalf of,
the Union, or any other labor organization , or promise them
benefits if they cease such activities.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT make or enforce any rule prohibiting our em-
ployees from wearing union buttons, badges, or other insignia
while at work, in the absence of unusual circumstances affecting
plant production or plant discipline.
WE WILL or interrogate or poll our employees concerning
their membership in, or sympathies or activities on behalf of, the
Union, or any other labor organization, in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1)
of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist the above-
named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from engaging in any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer Elmer Barnes, Charles Tedder, Harold Mc-
Gregor, Lynn Richards, Max Wells, and Frank Marrisett
immediate and full reinstatement to their former or substantially
equivalent positions of employment, without prejudice to their
seniority or other rights and privileges.
WE WILL make whole the above-named employees and Millard
Cummings, Robert Montovan, Don Woodrum, and John Siefkin
for any loss of wages they may have suffered by reason of our
discrimination against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union, or of
any other labor organization.
MAYRATH COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on June 5, 1958, and thereafter amended i by U.A.W.,
AFL-CIO , hereinafter referred to as the Union , the General Counsel of the National
1 The third and last amended charge was filed January 16, 1959.
MAYRATH COMPANY 1641
Labor Relations Board, herein called the General Counsel 2 and the Board, respec-
tively, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued
his complaint dated October 14, 1958,3 together with a notice of hearing thereon,
against Mayrath Company, hereinafter referred to as the Respondent or Mayrath.
The complaint alleged that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Labor Management Relations Act, as
amended, 61 Stat. 136, hereinafter called the Act. Copies of the charges and
amended charges, the complaint, and a notice of hearing thereon, were duly served
upon the Respondent and the Charging Party.
The Respondent duly filed its answer admitting certain allegations of the com-
plaint but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at Mendota, Illinois, from Feb-
ruary 9, 1960, to and including February 18, 1960, before the duly designated Trial
Examiner.4
All parties appeared at the hearing, were represented by counsel, and afforded full
opportunity to be heard, to produce, examine, and cross-examine witnesses, to
introduce evidence material and pertinent to the issues, and were advised of their
right to argue orally upon the record and to file briefs and proposed findings and
conclusions or both. Oral argument at the conclusion of the hearing was waived.
Briefs were received from the Respondent and the General Counsel on June 6, 1960.
On May 27, 1960, the attorneys for the General Counsel and the Respondent en-
tered into a stipulation making numerous corrections in the record and on May 31,
1960, the attorney for the Respondent submitted two further corrections of the
record by motion to this Trial Examiner. The stipulation is hereby approved and
the motion is hereby allowed and the transcript is hereby ordered corrected as set
forth therein. It is further ordered that the said stipulation be marked and admitted
in evidence as "Trial Examiner's Exhibit No. 1" and that the motion of the Re-
spondent be marked and admitted as "Trial Examiner's Exhibit No. 2."
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
Mayrath Company is now, and at all times material herein has been, a corpora-
tion duly organized under and existing by virtue of the laws of the State of Illinois,
having a plant and its principal office at Compton, Illinois, and also operating a
plant at Dodge City, Kansas, and a warehouse at Monmouth, Illinois. The facility
here involved is located at Compton, Illinois, where Respondent is engaged in the
manufacture of corn, hay, and grain elevators, grain augers, and related products.
The Respondent in the course, conduct, and operation of its business causes, and
at all times material herein has continually caused, large quantities of its finished
products described above to be shipped in interstate commerce into and through the
States of the United States other than the State of Kansas. During the calendar year
1957, the value of finished products so sold and transported by Respondent was in
excess of $1,000,000 of which in excess of $500,000 was shipped from the State of
Illinois directly to customers located outside the State of Illinois.
The Respondent admits, and the Trial Examiner finds, that at all times material
herein the Respondent is and has been engaged in commerce.
IT. THE LABOR ORGANIZATION INVOLVED
U.A.W., AFL-CIO, is a labor organization admitting to membership employees
of the Respondent.
2 This term specifically Includes the attorney appearing for the General Counsel at the
hearing
8 Certain oral amendments to this complaint were allowed without objection at the
present hearing
' A hearing was held on this complaint in February 1959 , at Mendota , Illinois, before
another Trial Examiner who issued his Intermediate Report on May 1, 1959. By order
dated November 5, 1959, the Board ordered this Intermediate Report set aside and the
case remanded for a hearing de novo.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The facts
As found heretofore, Respondent is a manufacturer of farm equipment, especially
grain elevators for raising bailed hay and corn to specified heights. Respondent's
plant at Compton, Illinois, consists of a 5-acre tract of land having about a 2-percent
-slope from its highest point on which in 1955-56, Respondent constructed a 70- by
160-foot building where various types of welding, machine work, and pipe bending
are done both inside and outside the building. From this nerve center other types of
production radiate out on various lines which make use of the slope in transporting
parts to subsequent operations. _ Thus on one such production line there is a chain
shack where endless belts are made, on another is the paint shack, etc. In addition
there is another smaller office building where the necessary paperwork and book-
keeping is done and where Mayrath has his office. Some 400 to 800 feet away is
another building known as the "farm house" which apparently is used as a dormitory
for some of the employees. Two or three acres of this tract are and can be used for
-storage of materials and finished products.
As is to be expected, the Respondent's business in farm equipment is a seasonal
one where the busy season extends from April 15 to July 15 during which the Re-
spondent employs some 70-odd employees. During the rest of the year the Re-
spondent employs approximately half the number of employees.
As is carefully pointed out in the Respondent's brief, Respondent's operational
procedures and methods are not comparable to those of General Motors. Martin
Mayrath, the Respondent's president and treasurer, and Respondent's only salaried
employee, retains in himself the final authority to make all decisions relating to the
plant and its operations even to the extent that all 5- or 10-cent wage increases for
individual employees must be acceptable to him. However, he is absent from Comp-
ton plant for as much as two-thirds or three-quarters of the year. While away from
.the plant and, indeed, even when present at Compton, Mayrath acknowledges that
he must rely upon the judgment of those employees under him in whose judgment
he has confidence in arriving at final decisions. While insisting that his is the only
authority in the plant , as a witness Mayrath was fond of saying that in his absence
the Respondent was operated by its "seven bosses" with whom he would consult by
telephone from his headquarters in Dallas, Texas, or whatever other part of the
'country he happened to be at the time, before making the final determination on the
problem involved. When asked to name the "seven bosses," Mayrath insisted that
the term was merely "symbolic" of the large number of his "associates" with whom
he consulted before arriving at a final decision. He described these "seven bosses"
as consisting of "the foreman," together with innumerable "checkers, leadmen," etc.,
who enjoyed the privilege of exercising some slight supervisory functions and upon
whose judgment he relied in making final decisions. Mayrath's testimony, if be-
lieved, indicates that the Compton plant operated in his absence as a communal,
joint venture between himself and his employees whom he was fond of referring to
as his "associates," all of whom were of equal rank and none of whom had any
authority.
Common sense indicates , and the evidence proves, that no manufacturing plant,
even as small as Respondent's, can operate without supervision on the ground as
Mayrath would have us believe. Of course Mayrath, as owner, president, and
treasurer of the Respondent, exercised final authority for the Respondent. Mayrath
acknowledges that in 1958 during the three-quarters of the time he was absent from
Compton as well as during his presence in Compton he had to rely upon the judg-
ment of the "seven bosses." When asked to name these "seven bosses," Mayrath
acknowledged that in 1958 he consulted with Sam Stauth, Respondent's purchasing
agent and for a time, at least, in charge of the yard; Olson, in charge of the office;
Paul Heikes, who carefully described himself as "shop foreman" but whose duties
showed him to be in charge of plant production; Harold Pierson, in charge of tool-
ing and experimental work; Robert Horman, in charge of the yard; and Frank
Hendricks, in charge of shipping. In one such enumeration of the "seven bosses,"
Mayrath also included the name of Cleve Pogue, who the evidence later disclosed
was in charge of the welders working inside the large building. Mayrath never was
able to name seven.
Omitted from all enumerations of the "seven bosses" was the name of one Joe
Sims. Joe Sims was, in the words of Mayrath, a "sort of leadman" of the welders
"with whom" Sims worked on the outside of the building-just as Pogue was the
leadman of the welders working inside of the building. As such leadman, Sims was
given production figures for the day by Heikes and thereupon assigned the work to
the 18 or 20 welders under his direction so as to achieve that production. Thus the
MAYRATH COMPANY 1643
18 or 20 welders worked under Sims' orders. Sims set the wages for any new welders
employed. He determined which welding applicants should be hired and set their
wages. He transferred the workers under his jurisdiction as his judgment indicated.
His authority was recognized by both the employees and management in the welding,
machine operations, and pipecutting department where 20 of the Respondent's 70 em-
ployees were employed and which was one of the key departments of the plant. In
addition, on orders from Heikes, Sims kept the attendance record for the employees
"with whom" he worked. Sims had the authority to reduce an employee's wages
apparently without the approval of Mayrath.5 Even Mayrath conceded that recom-
mendations made by Sims were followed about 80 percent of the time.
In view of the authority given Joe Sims by the Respondent and the duties per-
formed by Sims, the Trial Examiner must find that Joe Sims, as leadman over the
welding, shipping, machine operations, and pipebending, was at all times material
herein a supervisor within the meaning of Section 2(11) of the Act.
Sometime in the month of May 1958, the Respondent's employees became in-
terested in organizing in the UAW, began signing authorization cards for the Union,
and, indeed, holding union meetings at Wilbur Montovan's garage located about
one-quarter mile from, but in view of, the Respondent's plant.
It was not long before this organizational activity came to the Respondent's atten-
tion and notice. One afternoon while such a union meeting was being carried on at
the garage, Paul Heikes approached Wilbur Montovan at the plant and requested
permission from him to attend this union meeting. In fact, Heikes took it upon him-
self to appear at the garage during one such meeting and to attempt to enter the
meeting in order to "see what was going on," as he put it. Such permission was not
granted Heikes by those in attendance at the meeting. In addition to these meetings,
organizational letters from the UAW also came to the Respondent's attention.
On the evening of May 29, Respondent's employees held a union meeting at which
Millard (Alabam') Cummings was elected chairman of the organizing committee.
UAW buttons were distributed to the employees in attendance and it was decided to
wear those buttons at work the next day, Decoration Day. The employees were
instructed by the organizer present to report to him immediately if anything un-
toward occurred at work that following day. Pamphlets to the same effect were
distributed at the plant.
As attendance at work on Decoration Day was optional, only some 35, or about
half, the employees appeared for work on the morning of Decoration Day. A large
majority of those appearing for work were wearing UAW buttons displayed upon
their persons. Mayrath himself estimated that 27 of the employees at work on
Decoration Day morning were wearing UAW buttons.
In addition to the buttons, there were a number of UAW pamphlets at the plant.
Heikes secured such a pamphlet and became upset upon reading it because, accord-
ing to him, his rights were so restricted by the portions of the Act set forth in such
pamphlets that neither he nor Respondent could do anything without violating one
or another section of the Act as he read the pamphlet. When Mayrath reported
for work at some indefinite time early that morning Heikes informed him of his
concern over these pamphlets. Other unnamed 6 supervisors reported the presence
of UAW buttons on the employees and, according to Mayrath, a lack of production,
which Mayrath considered to be the result of "stupidity and sabotage." 7
Promptly upon the receipt of these reports, two events occurred: (1) Joe Sims
polled all Respondent's employees regarding their union sympathies and recorded
their reactions in his working notebook; and (2) Mayrath toured the plant property
talking to a number of employees wearing union buttons .8
5 According to Mayrath, wages of the employees were reviewed every 2 weeks or a month,
during which time all leadmen, checkers, and even fellow employees who had anything to-,
do with the employee whose wages were in question were asked for recommendations.
Sims was consulted on such occasions but apparently had authority to decrease wages on
his own
6 Characteristically Mayrath was unable to recall the names of any such supervisors
Mayrath's testimony throughout the hearing was characterized by its vagueness and'
generality.
7 Others might have considered the fact that only one-half the staff was working that
Decoration Day holiday to be at least partially responsible for the "commotion and con-
fusion" which Respondent 's witnesses purported to observe that day. Commotion and
confusion almost necessarily result from such widespread dislocation of a working staff.
s Due to an almost studied indefiniteness on the part of Respondent 's witnesses it is
almost impossible to make a clear determination as to which of these events oeeurre(T
first or if they occurred simultaneously.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The poll
As found heretofore, Joe Sims was the supervisor of the welders, machine operators,
and shippers, a group up to 20 employees whose working place was located along
the south wall and outside the 160- by 70-foot building. He promptly noted the
appearance of the UAW buttons on many of the employees. Subsequently he
undertook to poll all Respondent's employees (regardless where situated) on whether
they were for or against the Union. As Sims noted the presence of union buttons on
an employee or received a positive or negative answer to his inquiry, Sims noted
the employees' sympathy in his working notebook by marking a "U" for those em-
ployees who wore buttons or answered in the affirmative or an "A" standing for
"against" for those employees answering in the negative. These notations were made
by Sims for the employees "with whom" he worked, as it was phrased, in the same
tabulation in his work notebook where he recorded their daily attendance at work
that week, one of the duties which had been assigned to him by Heikes.9 For em-
ployees not in his department, Sims recorded their names and union sympathies in
a separate list.
About 10 a.m. Sims approached employee Millard Cummings, and, upon noting
his union button, remarked, "I see you are for the Union," and marked a "U" oppo-
site Cummings' name on the daily attendance record in his notebook. At the same
time, Sims went to employee Charles Tedder, who worked near Cummings, and
inquired if Tedder had a union button on, which caused Tedder to turn around so
that Sims could see the button he was wearing. About a half hour later, Sims re-
turned and remarked that Tedder looked like a "good union man," asked for the
spelling of Tedder's name which he then wrote in his notebook with an accompany-
ing "U" and remarked, "I don't see what you want a union for . . . the Union is
no good anyway." When Sims noted the oversized UAW button which employee
Don Woodrum was wearing that morning, he remarked that "[Woodrum] was wear-
ing a union badge and working [his] ass off." Sims then placed the usual "U" oppo-
site Woodrum's name on his appearance record in the notebook. Sims went to the
welding booth where employee Frank Marrisett was working and said, "I see you
are wearing one of those buttons." After replying in the affirmative, Marrisett said,
He have an extra one, Joe, if you want one." Sims answered that he "wasn't wearing
the damn thing" even if Marrisett gave him one. Upon seeing a union button on the
clothing of Welder George West, Sims informed West that "if he wanted to work
here, he had better take off the button." io
Sims also approached employees Elmer Barnes, Robert Stevens, and Ketchum,
who, as a team, were working a machine bending and cutting pipe under Sims' direc-
tion, and asked them if they were for the Union. Stevens inquired if the men were
getting a raise to which Sims replied "No. The old man wants me to find out how
the fellows feel about the Union." Ketchum answered that he was against the
Union; Stevens that he was a democrat and was for anything that would help him.
Then seeing the UAW button on Barnes, Sims stated that "I see you've got a button
on and are for the Union." When Barnes answered that he was 102 percent for
the Union, Sims replied, "I had put you in for a 20 cent raise but you won't get it
wearing that damn union badge. In fact, if you want to work here, you had better
take that damn thing away, get rid of it, throw it away." Sims recorded Barnes and
Stevens as prounion and Ketchum against."
Sometime that day Joe Sims went into the paint shop which was not under his
jurisdiction and declared, "All right, you guys, who is scab and who is union? If
you got a union button in your pocket, I want you to get it out because I want to
see it ." When Lynn Richards, a painter, answered that he thought that the Union
was "O.K.," Sims marked a "U" after Richards' name in his notebook. Sims also
inquired of Painter Wilbur Montovan if he had his union button in his pocket but
accepted Montovan's answer that if the rest of the employees wanted a union and
voted it in, he, Montovan, would go along with them.ia Sims recorded an "A" for
Wilbur Montovan.
9 Each of Respondent 's employees kept his own time and reported his daily hours of
work on a time slip which each turned in to the Respondent on Saturdays . Respondent
used the record kept by Sims to check the accuracy of these weekly time reports of the
individual employees.
10 West did remove his button later that afternoon upon seeing some of the union
employees leaving the plant.
11It is noteworthy that Ketchum was the only one of these three who was neither
discharged nor laid off by Respondent.
12 Wilbur Montovan was not at this time wearing a UAW button
MAYRATH COMPANY 1645
In his peregrinations around the plant property searching for union adherents,
Sims went to the chain shack over which he had no jurisdiction . As he approached
the six employees in the chain shack, Sims announced , "Boys, this is for my record.
Are you for or against the Union?" As the employees gave their answers or as he
saw union buttons on their clothing , Sims made the usual notations in his notebook.
In addition , upon seeing a button on employee Cecil Barnes, Sims remarked that he
"was going to give [Barnes ] a raise . But I can't now. You are wearing a union
button."
Although the General Counsel did not produce witnesses from other portions of
the plant than the welding , paint , and chain departments , Sims acknowledged that
he approached every man in the Respondent 's employ and required him to express
his preference for or against the Union. Sims testified that when anyone would ask
why he was taking the poll, he would answer, "You don't know , maybe I am
getting $5 apiece out of everyone I can get to join. Although Heikes denied
the fact , Sims admitted that Heikes saw his notebook on either May 30 or 31.13
2. Olson-Heikes interrogations
Upon learning of the appearance of union buttons on the morning of May 30,
Claude Olson, admittedly a supervisor and one of the so-called "seven bosses," also
took occasion to do a little checking on buttons himself . One of the first buttons
he saw was on Millard Cummings of the welding group . Olson asked Cummings
what the button meant and was told that the employees were trying to organize
a union . Although Cummings was busily at work chipping wheels at the time, Olson
took Cummings away from his work for a private conversation about why the
employees thought they needed a union , after which Olson sent him back to work.
This conversation apparently took place even before Sims got around to Cummings
on his poll.
Olson also spoke to Don Woodrum, who was also at work , asking if Woodrum
was the "ringleader of the Union" on account of the extra large UAW button Wood-
rum was wearing at the time. Olson wanted to know who was the "headman" of
the organizational attempt and threatened that it was a "pretty shady deal" to try
to bring the Union into the Respondent 's plant.
Olson also told Elmer Barnes , who was busily at work with employees Ketchum
and Stevens bending pipe , "I see you got one of those d ____ union buttons on" and,
when Barnes offered to give him a button , stated that they were "no d____ good."
Employee John Siefkin of the shipping department was getting a drink at the
water fountain about 11 o'clock that morning when Olson and Heikes walked up
and asked what was behind the union buttons and if Siefkin believed in unions.
Siefkin answered that he was not supposed to discuss the Union during working
hours and thereupon returned to his work which ended the conversation.
3. Mayrath's activities
Upon receipt of the intelligence regarding the presence of pamphlets and buttons
in the plant, Mayrath promptly began his peregrinations through the plant. His
first visit was to the chain shack where he noted three or four employees with union
buttons on. He noticed some endless chain which he considered to be poorly
bundled and proceeded to "bawl out" button-wearing employee Harold McGregor
who was working on the riveting machine and had nothing to do with the alleged
improper bundling and employee Marvin Hartley who was actually doing the bun-
dling but who also was wearing a union button he had been given earlier that morn-
ing. To employee Max Wells who was 'also doing work other than bundling and
who was wearing a union button , Mayrath said , "Get that d____ button off or go
home." Wells removed the button and remained at work.14 He also ordered tighter
bundling.
13 Sims testified that no representative of the Respondent ordered him to take this poll
but that he did it for his own personal use in determining whether or not to spend a
great deal of money to help bring the Union in. In view of the derogatory remarks of
Sims towards the Union, his refusal to accept a button , together with his statement to
employees that "the Old Man" had ordered him to take the poll, the Trial Examiner is
unable to accept this attempted explanation In view of the supervisory status of Sims
and the admitted order by Mayrath to Sims "to find out what this is all about," the Trial
Examiner must also find that this poll was taken by Sims on orders of the Respondent
14'In his testimony Mayrath indicated great uncertainty as to the identity of the em-
ployees who were wearing the three or four buttons he had noted in the chain shack
Mayrath appeared almost intentionally vague and indefinite in his testimony.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On his return to the office from the.chain shack Mayrath took occasion to stop and
speak to Sims for 10 or 15 minutes some 60 feet south of the main building. Al-
though Mayrath testified that he "does not think" he spoke to Sims at this time
about union buttons, he admitted that he did at this time order Sims "to find out
what was going on." Following this order Sims either began, or continued, the
taking of his union poll.15
During these peregrinations about lunchtime Mayrath stopped and spoke to Don
Woodrum, who, Mayrath testified, was busily chipping wheels at the time. Mayrath
asked Woodrum if he were the "Mad Hatter" 16 because of the extra large button
Woodrum was wearing on his cap. Mayrath stated that Woodrum must be the
"ringleader" of the movement because of his button. But Woodrum denied being
such whereupon Mayrath asked who was the "head man in the outfit" which
Woodrum refused to divulge. Mayrath then inquired regarding Woodrum's ambi-
tions and whether he was performing his work satisfactorily. After Woodrum
answered that his boss was not complaining, Mayrath said, "All right, if you ever
[fall down], your ass is out," and departed.17
According to Mayrath, 27 of the employees were wearing union buttons during
the morning and he acknowledges that he spoke to 13 to 15 of these employees without
speaking to a single employee who was not wearing a button.
At luncheon that day Mayrath, Heikes, and Olson talked over the situation as it
then existed. Heikes was considerably upset by the union pamphlets which, according
to the way he understood them, indicated that the employees had some inalienable
rights under the Act which could not be abrogated so that the Respondent would
have to be "careful" as to how they approached the employees, on the subject of
unions and because he could not see how he could say anything to the employees
without violating one or another section of the Act. There was also some talk
apparently about the alleged lack of production. It was decided by the group, in
the words of Mayrath, "Well, this has got to stop. We have got to get the fellows
back to work, either get some production or let them go home." 18
On this point Mayrath testified as follows:
Therefore, it became the responsibility. of myself and Paul Heikes to get
production, if we were going to get it, or close the shop.
He and 'I, during the morning and during lunch, we had been unable to
figure any way to get things in production, with these pamphlets and group
discussions, without risking my getting beat up.19
Apparently the whole thing was deliberate; first they're not going to work,
that was deliberate; and next, whatever they did was going to be screwed up.
's Due to the indefiniteness as to the time of this conversation , the Trial Examiner is
unable on this record to determine whether this conversation occurred before or after
Sims commenced taking his poll.
36 This reference Mayrath explained was to "Alice in Wonderland."
17 Mayrath's explanation for this conversation was that, as he knew that Woodrum had
had an aptitude test higher than normal, be, Mayrath, was questioning Woodrum a bit
in order to see "if he knew how much 86 and 23 was, and so forth" impliedly for the pur-
pose of determining if Woodrum should not be promoted. This explanation appears hollow
in view of Mayrath's orders to Woodrum later that day "to take off the button or leave,"
and the fact that neither witness mentioned any reference to mathematics in the
conversation.
18 The testimony of the Respondent and Its witnesses was to the effect that everyone
was standing around and talking about the Union or, as Mayrath described it, "making
slow motions like being at work" or "doing nothing impressive." On the other hand, the
witnesses for the General Counsel testified only that there was little, if any, more loafing
or commotion that day than was usual at the plant. Respondent produced no production
figures in its effort to prove this alleged lack of production on May 30. In addition,
Heikes claimed that on the next working day, June 2, the paint department was swamped
with axles made by the welders who were supposedly loafing on May 30. Thus the
alleged slowdown of May 30 appears to have been more Imaginary than real . Respond-
ent's failure to produce, or attempt to produce, any production records to confirm the
oral descriptions of the so -called slowdown confirms this finding . Also Mayrath testified
that Respondent 's inventory was "so low" in May that Respondent was hiring every em-
ployee it could find. But he also testified that by June 9 Respondent 's inventory was
"way up"-and this, despite the alleged slowdown and discharge of a number of em-
ployees. Mayrath's testimony was not notable for its consistency.
>e Like his accusation of "deliberate sabotage" in the chain shack, Mayrath had to
admit subsequently that his fear of being beaten up was also without foundation or proof.
MAYRATH COMPANY 1647
I couldn't send Paul out there to find out, and decided I would have to close
up the plant or get something done, and that is why I went out and said
whether the man is wearing a button or not, that I want some production or
please go home.20
That afternoon Mayrath wandered over the Respondent's plant speaking to vari-
ous employees, all of whom were wearing union buttons and all of whom had been
recorded by Sims in his notebook as being prounion.
Mayrath's first stop was once again at the chain shack where, accompanied by
Harold Pierson, upon allegedly seeing some more poorly bound chain, Mayrath
said to Max Wells, who had had nothing to do with bundling chain, "I thought I
told you to go home." 21 Wells answered, "No, you said take the badge off or go
home. . . I took the badge off, but if you want me to go home, I will go home."
Mayrath replied in one word "stay."
Mayrath then turned to Cecil Barnes and said, "Barnes, I want you to leave and
leave now.22 Go to the office and pick up your check." Barnes inquired if he
could get his check "now." Pierson reminded Mayrath that Barnes was not then
on the payroll so Mayrath replied, "You don't get no pay for this day, because
you are not on the payroll." 23
Thereupon, Mayrath turned to Harold McGregor, who like the other two em-
ployees interviewed, was wearing a union button, and asked where McGregor's
union button was. McGregor answered that the button was on his hat, to which
Mayrath said, "Get out now," turned on his heel, and left the shack. Marvin
Hartley, the employee responsible for bundling the chain incorrectly, still apparently
remained an employee.
From the chain shack Mayrath and Pierson went to the welders who were work-
ing under Sim's jurisdiction along the south side of the building where he saw
Millard Cummings, pointed to the UAW button Cummings was wearing, and asked
what it represented. When Cummings stated that it represented the UAW, AFL-
CIO Union, Mayrath inquired if Cummings thought the employees needed a union
to which Cummings answered in the affirmative. Mayrath rejoined that he "didn't-
need no union to tell him how to run the business, that he'd have to ask [Cummings]
to take off his button or leave." Cummings refused to remove his union button
and left.
Thereupon Mayrath approached employee Charles Tedder who was working
alongside Cummings, inquired what his button was for, and, upon being told that
the employees were organizing a union, Mayrath stated that "We didn't need a
union there" and ordered Tedder to "take the button off or go home." When
Tedder stated that he though that order meant him also but that he could not take
the union button off, Mayrath ordered Tedder to go to the office and pick up his
check. Tedder did so.
At approximately the same time Mayrath acknowledges that in the paint shop
he told employee Robert Montovan, who was also wearing a union button, "Please
get to work or leave, or take off the button." 24 According to Montovan, however,
20 In speaking to the employees, however, Mayrath only mentioned union buttons-not
production.
21 This remark referred to Mayrath's order that morning to Wells to "Take off your
union button or go home."
22 The actual statement, according to Mayrath , was for Barnes "to get the hell out of
there "
23 James Barnes had voluntarily quit the Respondent's employ about May 22, when he
received his second 10-cent-per-hour decrease in wages. On the evening of May 29,
Kettley, leadman in the chain shack, drove out to Barnes' home and invited Barnes to
return to work the next morning . In accordance with this invitation , Barnes had re-
turned to work in the chain shack on the morning of May 30 and thus was working there
at the time of Mayrath's morning visit. Mayrath made no objection to Barnes' working
at this time.
As a witness Kettley denied that either Heikes or Olson had ordered him to visit Barnes
on the evening of May 29 and ask him to return to work, although there is evidence in the
record that Kettley had told the employees before the visit that Heikes had ordered him
to get Barnes back to work. Kettley's explanation for doing this was that he personally
thought Barnes "needed the work." No leadman would offer employment at Respondent's
plant unless he either had the right to hire or was acting on orders of his superiors.
Accordingly, the Trial Examiner finds that Cecil Barnes was an employee on May 30.
24 This is one of the few instances where even Mayrath contended he mentioned produc-
tion to the employees.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mayrath asked about the button he was wearing and then said, "Well, you can't
wear that and work around here." When Montovan said that he thought he had
the right to wear the union button, Mayrath answered, "Enough of this. You go
up to the office. You are fired" and added , smilingly , "Don't get mad about it. I
believe in unions myself."
Mayrath approached employee Don Woodrum who was working at his drill and
asked Woodrum what his ambition was. Woodrum answered that it was to bring
in the Union. Mayrath then ordered Woodrum to "take off his union button, put
it in his pocket where it belonged or leave." When Woodrum told Mayrath that
he could not take his union badge off, Mayrath told him that he was fired and to
go to the office which Woodrum did.
That afternoon employee Elmer Barnes was moving some barrels on direction
of Joe Sims when Mayrath approached him and said, "Mr. Barnes, I don't know
you very well. But I know you are a good worker. You worked for me lots."
After Barnes acknowledged that this was his third summer working for the Re-
spondent, Mayrath added, "Your union badge hurts my feelings. You either have
to take it off, throw it away or leave." Barnes refused to remove the badge so
Mayrath told him that he was to go to the office and get his check which Barnes did.
Sometime about 2 o'clock in the afternoon Mayrath appeared' in the shipping
department where employee John Siefkin was working with Leadman Frank
Hendricks whom Mayrath often included among the so-called "seven bosses."
Mayrath called Siefkin over to him and told Hendricks that he had better come
over and listen to the conversation too. Mayrath then told Siefkin that Hendricks
had been very sure of Siefkin while recommending Siefkin for work in the shipping
department and then asked Siefkin if that was a union button which he had on his
cap. Siefkin admitted that it was. Mayrath inquired if Siefkin would remove the
button which Siefkin refused to do. After asking if Siefkin believed in unions and
receiving an affirmative answer, Mayrath granted that unions had done some good
but had their bad points "like politics and religion" and requested Siefkin to re-
consider and "back down" about removing his button. Siefkin again refused.
Mayrath remarked that he had just cut the wages of four men as much as 50 cents
per hour and then continued by saying that he, Mayrath, had "placed a trust in"
Siefkin but that Siefkin had "broken that trust" by joining the Union. After Siefkin
had replied that he did not believe that he had broken any trust by joining the
Union, Mayrath concluded the conversation by stating, "I am so mad right now I
can't speak to you. . . . You go home and go home right now. . Some day
when I feel like talking this over with you, why, we will sit down and talk it over
if you feel like talking it over with me." At some point in this conversation
Mayrath had added that he had been in business for 12 years and "No union,
nobody was going to tell him how to run his business." Siefkin went home as
ordered but has never been called for the suggested further interview 25
About that same time Mayrath saw employee Millard Cummings walking to his
automobile after having been told to "take off your button or leave," as found above.
Mayrath went over to Cummings, borrowed a cigarette from him, and requested him
to pull off his button and go back to work . Cummings again answered that he
Pe Mayrath recalled certain selected portions of this conversation as testified to by
Siefkin According to the Mayrath version he, Mayrath, remarked to Hendricks and
Siefkin in the shipping department something to the effect that "This is a hell mess,"
to which Siefkin made, according to Mayrath, the incongruous answer that "I am not
allowed to discuss the Union while on duty " Whereupon Mayrath asked "If you want me
to fire you so we can talk about it." Mayrath recalled that he was "after" Hendricks
for having recommended Siefkin for the shipping department position because, according
to Mayrath's explanation, Siefkin had refused to talk about the Union with him during
working hours But still, when, according to Mayrath, Siefkin "volunteered" to tell him
the names of all the union leaders and members, he testified that he himself equally
incongruously said, "I don't want to hear about it, I can't talk about it while you are
working, don't bother me about this " Mayrath recalls seeing a union button on Siefkin's
hat and that Siefkin left work right after the above conversation Mayrath implied that
he did not understand why Siefkin had left work but "did not think" that he had told
Siefkin to "take off his union button or leave," a remark which Mayrath acknowledged
he made to many of the employees to whom he spoke that afternoon Mayrath's testi-
mony regarding this conversation is so selective as to make the conversation both in-
congruous and meaningless, a trait not uncommon throughout Mayrath's testimony.
Accordingly, the Trial Examiner has accepted the version of that conversation given by
Siefkin who appeared to be an honest witness
MAYRATH COMPANY 1649
could not do so. It was agreed that Cummings would come back to the office and see
Mayrath later that day.
About 6 or 6:30 p.m., Cummings was at Suzy's Tavern in Compton when Super-
visor Harold Pierson came in and told Cummings that Mayrath wanted to see him
at the office. When Cummings arrived at the office in response thereto, he found
Olson, Hendricks, and Heikes there with Mayrath. Mayrath then asked Cummings
again to pull off his union button and return to work but Cummings continued to
refuse. Mayrath suggested other and better jobs for Cummings if he would take
off his union button but Cummings remained adamant. Finally Mayrath became
angry when Cummings refused to accept the proposition and ordered him from the
office.26
On the evening of May 31, Mayrath sent word to Elmer Barnes that he wanted to
see Barnes at the farmhouse so Barnes, his wife, and six children drove there. When
Mayrath drove in the driveway, Barnes asked Mayrath if he wanted to see him.
Mayrath answered, "Yes, I want you to come back to work. . . . If you will throw
your union badge away and come back to work, I will give you a 20 cent raise."
Barnes reiterated a couple of times that he would come back to work only it he
were allowed to wear his union badge. Mayrath ended the conversation by saying
that he would have no man working for him wearing a union badge. Barnes de-
parted and has never been reemployed 27
4. Events of June 2
On the morning of June 2, the next working day after Decoration Day, Max Wells
whom Mayrath had ordered to "stay" on the afternoon of May 30, after Wells had
reminded Mayrath that he, Wells, had removed his union button that morning in
response to Mayrath's thrice repeated order to him "to take off that damn badge or
go home," was called to the plant office over the loudspeaker system. Upon his
arrival at the office Mayrath engaged Wells in apparently friendly conversation about
Wells' brother whom Mayrath knew, about their mutual age of 49 years, and then
about the fact that a man of that age ought to get a "cleaner" job than the one in the
chain shack. Mayrath advised Wells to seek cleaner employment elsewhere. When
Wells asked, "This is all of it, is it?", Mayrath answered, "Yes, this is all of it," but
told Wells to finish out the day.28 Wells was given his final paycheck after work
that day.29
20 Again Mayrath testified that Cummings was the person who requested the evening
meeting while at the parking lot. However, Mayrath himself testified that he had gone
to Cummings and borrowed a cigarette from Cummings thereby initiating the conversa-
tion. That plus the fact that Respondent did not call Supervisor Hendricks for the
purpose of denying that he had carried Mayrath's invitation to Cummings at Suzy's
Tavern convinces the Trial Examiner that the evening meeting with Cummings was
initiated by Mayrath despite his testimony to the contrary
m The Respondent presented a totally different version of the above-found episode
Mayrath and twin brothers named Hendricks-no relation to Frank Hendricks, the super-
visor-testified that Barnes came into the farmhouse under the influence of beer and in
the farmhouse asked Mayrath for a job but that Mayrath refused, telling Barnes to come
back when he was sober. Obviously this and the testimony of Barnes are in absolute
conflict.
The Trial Examiner has resolved this conflict against the Respondent here, first be-
cause Elmer Barnes gave the appearance of a witness telling the truth and, second,
because, as indicated heretofore, the Trial Examiner has been unable to accept Mayrath's
testimony unless corroborated. Of course, in this instance, the Hendricks twins appeared
to corroborate him. However, the testimony of the Hendricks twins showed that they
had been hired by the Respondent on dates variously given as May 31 or June 1, 2, or 3,
1958, had just arrived at the farmhouse where they were busily engaged in watching tele-
vision in a darkened room at the time when an admittedly unknown individual came into
the farmhouse, that they "paid no mind" to this stranger for the 5 or 10 minutes he was
in the house, and did not even know his name.
Yet some 7 months after the occurrence and without having seen Elmer Barnes sub-
sequently, these twins were able to identify Elmer Barnes at the original hearing and a
year thereafter Ito again identify him at the present hearing. This memory 'and this
identification verges too close to the occult for the Trial Examiner to give it credence.
21 In view of the argument in the Respondent's brief, it must be noted that in dis-
charging Wells, for even Respondent admits that Mayrath discharged Wells on June 2,
Mayrath did not use the words "discharged" or "fired "
2D Wells had been originally hired by Olson on May 28, 1958. He had loaded trucks
and worked in the chain shack.
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also at or about the beginning of work at 7 a.m. on June 2, Frank Marrisett, a
-welder,30 Lynn Richards,31 a painter, Heikes, and Sims were standing along the
south wall of the building. As Marrisett started to turn on his welding machine in
order to weld some PTO parts as he had been doing the previous workday, Heikes
called to Marrisett and said, "I don't know if there is any use for you to start to work,
in other words you are fired." Marrisett was bewildered and asked, "Fired? What is
the reason? . . . Is that over the Union?" Heikes answered, "That is exactly right."
He then turned to Richards and said, "I guess ,you needn't turn yours on either. You
are fired." When Richards inquired, "Over the same thing?", Heikes answered in
the affirmative.32
5. The events of June 9 and 10, 1958
On June 9 and 10, 1958, the Respondent laid off some 20-odd employees from the
Compton plant apparently because of a drop in sales. Among those laid off were
Welders George West and his son, Dallas, and Jigsetter Robert Stevens.
Sims had listed each of these employees in his notebook as being prounion but
none of them were discharged on May 30 or June 2.
However, on June 9 Sims told Stevens that he would have to lay Stevens off be-
cause of a lack of steel at the plant but would recall him as soon as possible. Some-
time in August, Olson did call Stevens over the telephone and asked Stevens to return
to work but could not tell Stevens if the work would be steady or the rate of pay
when Stevens inquired about those subjects. Stevens by this time was working else-
where. He did not report for work and has never since been reinstated by the
Respondent.
On May 30, George West removed the UAW button from his clothing after Sims
had warned him during the taking of his poll that if West wanted to work for the
Respondent he had better take off his union button.
On June 9, George West suggested to Sims the possibility of his renting a vacant
trailer then on the Respondent's property so as to save himself and Dallas from the
long ride to work from his home but Sims advised against the idea because "The Old
Man has still got it in for the guys wearing the union buttons."
Later that same day Sims laid off both George and Dallas West because of the steel
shortage but stated that they would be recalled. Actually the Wests were recalled 4
.or 5 days thereafter but George chose not to report for work while Dallas failed to
return after working for the Respondent 1 day.
80 Marrisett had helped in the construction of the building in 1955 -56, had learned
welding while working for Respondent , and had been rehired in February 1958 as a
welder and given a 10-cent increase to $1.50 on May 31.
31Richards had been employed by Respondent from August to October 1956, from
March through December 1957 , and was rehired by the Respondent as a painter in
April 1958 in charge of the flow coat machine.
32The testimony of Heikes on this episode varies widely from the findings made above
which are made from the credited testimony of Marrisett and Richards , both of whom
impressed the Trial Examiner as being honest witnesses.
According to Helkes, "right at 7 o'clock " he, Heikes , ordered Marrisett to go to the
yard and then one-half or three-quarters of an hour later, upon finding Marrisett still
near his welding booth, discharged Marrisett when Marrisett insisted that he was a
welder and did not have to do yard work. Also , according to the testimony of Heikes,
he discharged Lynn Richards immediately after having discharged Marrisett when lticharas
refused to get to work on the flow coat machine, a refusal which, according to Heikes, held
up a "bunch of axles" which were ready for painting, thus preventing further welding
,operations.
If accepted , Heikes' testimony would justify a finding that both men had been dis-
,charged for good and sufficient cause.
However, Heikes' testimony regarding the "bunch of axles" awaiting Richards ' atten-
tion and thus holding up the welders , hardly coincides with the rest of his own and
•other Respondent 's testimony regarding the alleged "lack of production" in the plant on
May 30, the last previous working day , when they claimed little, or nothing, had been
-accomplished Nor did Heikes' further testimony, corroborated by Mayrath, that Marrisett
was discharged because he was such a poor and slow welder , coincide with the fact that
the Respondent had given Marrisett a 10-cent-per-hour wage increase effective as of
May 31. Thus Heikes appears to be a witness who not only was willing to, but in fact
did, tailor his testimony to the exigencies of the moment without regard to proven fact.
Heikes also gave provably false testimony regarding the discharge of Wilbur Montovan,
infra.
MAYRATH COMPANY 1651
In view of the fact that the Respondent's sales had slumped by this time, the fact
that a total of 20-odd employees were laid off at the same time for a few days, and
the fact that all 3 of these employees were promptly recalled, the Trial Examiner can
see no discrimination against them even though they were known to be prounion and,
therefore, will recommend that the complaint be dismissed as to the two Wests and
Robert Stevens.33
6. The discharge of Wilbur Montovan
Wilbur Montovan began working for the Respondent in the paint shop the latter
part of December 1957 at $1.30 per hour. He continued in the paint shop until
about July 4, 1958.
The Respondent had good reason to suspect that Wilbur Montovan was favorable
to the Union. His son, Robert, as the Respondent well knew, was a staunch union-
man. In fact Sims reported Robert Montovan "100 U" in his poll. Heikes well
knew that union meetings were being held in Wilbur Montovan's garage across the
field from the Respondent's plant and on one occasion in the latter part of May
asked Wilbur's permission to attend a meeting then going on at the garage.
However, despite this knowledge, the Respondent increased Wilbur Montovan's
wages from $1.30 to $1.40 per hour on May 31 and permitted him to work on,
unmolested, during the discharges of May 30 and June 2, as well as during the lay-
offs of June 9 and 10.
In view of the events of those days and the obvious suspicion of union activities
on Wilbur Montovan's part, it is somewhat of a mystery that he was left unmolested
at that time. This mystery is explained by two other facts: (1) Wilbur Montovan
was not wearing a union button at this time; and (2) Sims had listed Wilbur Mon-
tovan as antiunion in the notebook in which he recorded the results of his May 30
poll. Wilbur Montovan's answer to Sims' inquiry at that time was that he would
go along with the other employees if they wanted a union and voted it in the plant.
The Respondent produced a witness named William Roland Hampton who, ac-
cording to his own description, was made "a kind of a leader of the paint shop"
at some indefinite time in April or May 1958 while he was laid off from his regular
work at a steel mill . Hampton attempted to explain this transfer of Montovan
from the paint shop on the ground that at least from April on Montovan's work in
the paint shop had been very bad-Montovan just "couldn't get nothing done
right"-and that he, Hampton, therefore, demanded of either Mayrath or Heikes
that Montovan be transferred34 In view of Montovan's long and satisfactory service
in the paint shop and the fact that Montovan had received a 10-cent per hour wage
increase as of May 31, as well as Hampton's obvious efforts to testify as he recog-
nized the Respondent would like to have him testify, the Trial Examiner must find
Hampton's testimony to be worthless.
It is admitted that Wilbur Montovan did not wear a union button prior to May 30.
There is a dispute on the record as to just when Montovan finally did begin wearing
a union button. Montovan himself says that it was on July 16. However, the Re-
spondent produced witnesses who testified that Montovan was wearing a union but-
ton about the middle of June. The Trial Examiner is inclined to believe that the
correct date would be about half way between the two estimates. Regardless of the
actual date Montovan put on his union button, this evidence indicates that Respond-
ent at least thought that Montovan was wearing a button prior to the first of July.
On or about July 4 or 5, Heikes transferred Wilbur Montovan from the paint
shop and put him to work in the yard, allegedly because of Hampton's complaints.
On July 15, Heikes, in his own words, "really chewed" Montovan about his work
in the yard and asked Montovan if he really thought he was worth more than the $1
per hour Respondent was paying to a schoolboy doing the same type of work.
Respondent introduced in evidence a memorandum admittedly in Montovan's
handwriting which was dated July 15, 1958, and read "wages set 1 .00 per hour"
and signed by Wilbur Montovan together with a note in Olson's handwriting reading
"per Heikes." The record is clear that from that date on Montovan was paid at
the rate of $1 per hour.
There were, as usual, two stories regarding this memorandum. Heikes testified
that on the morning of July 16, Montovan "came in that morning with a piece of
13 The Trial Examiner has come to this conclusion despite the fact that the Respondent
offered no proof that there actually was a steel shortage and despite the fact that the
Respondent was in fact hiring a few employees while laying off the men on June 9 and 10
94 Hampton could not make up his mind to whom he had complained regarding
Montovan's work.
614913-62-vol. 132-105
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paper," i.e., the memorandum above described. Heikes' testimony then continued
as follows:
Q. What morning was that?
A. This was the 16th, as I remember, the paper was dated the 15th, where
he wanted his wages cut to $1 an hour and put on nonproduction work.
Q. What did you say to him and what did he say to you?
A. I asked him why, you know, he wanted to do that, and he gave me a lot
of reasons why he wanted to work on nonproduction work, I mean, this other
work as too hard for him and he thought I was being unfair about putting him
on hard work.
Q. Do you have that slip of paper?
A. The slip of paper that I wrote down the reasons why he wanted it, I
don't have it, but I do have the slip that he wrote out where he wanted his wages
cut to $1 an hour.
On the other hand Montovan testified that on July 16 he wore his union button
for the first time and that on that morning Heikes called him into the tool crib and
dictated the memorandum to him on the threat that he would be fired unless he
wrote and signed it . Admittedly the memorandum was written by Montovan.
The intrinsic evidence forces the Trial Examiner to reject the testimony of Heikes
and to credit the testimony of Montovan. The memorandum in question was written
on a pink sheet of paper. The reverse side of this pink sheet of paper used for this
memorandum was a portion of a printed tariff form for use in taking advantage of
the "Most Favored Nation Tariff" for the export of goods (such as those manufac-
tured by the Respondent) directly to Canada. This pink printed form had been cut
and made into a pad for use as scratch paper, just as other old letterheads of the
Respondent had been. The tariff form is one which would have been in use in the
Respondent's business. It is not the type of form an employee would have. Con-
sequently the Trial Examiner has no hesitation in holding that the memo was not
brought in to Heikes on the morning of July 16, all written out by Montovan as
testified to by Heikes or in finding that, as testified by Montovan, the memo was
written out in the Respondent's shop by Montovan as dictated by Heikes. The hand-
writing of the memo confirms this in that, if this memo had been prepared in the
quiet of his home as implied by Heikes, Montovan, whose signature shows that he
had a good clear handwriting, would not have had the messy, hardly decipherable
line which apparently reads: "Wages set at 1.00 per hr." In addition there is also
the human element which would make it highly unusual for an employee to volun-
tarily request that his employer slash his hourly wage from $1.40 to the minimum
rate of $1.
On the other hand Respondent points to Montovan 's testimony that the first day
he ever wore a union button at the plant was July 16 as an egregious falsehood com-
pletely discrediting Montovan. Respondent produced several witnesses who testified
to having seen Montovan wearing his button during the middle or latter part of
June 1958. Wilbur Montovan acknowledged that during his employment with
Respondent employees had made fun of his union badge and on one occasion smeared
it with paint. This last testimony, however, does not prove or disprove anything
regarding the time element because Montovan had worked steadily for the Re-
spondent from December 1957, to August 30, 1958, so that he could have worn a
union button at any time during that whole period, and especially before or after
July 16. Experience has proved that human beings are especially prone to err
regarding the element of time, both dates and hours and minutes. Such mistakes
generally are not considered egregious falsehoods-nor, in most cases, intentional.
Nor does the Trial Examiner consider it so in the present instance because, if we
believe the Respondent 's evidence , it only means that the Respondent became con-
vinced of the prounion sympathies of Wilbur Montovan during the latter part of
June, and in time to explain Montovan 's sudden transfer from the paint shop where
he had worked so long as well as showing the necessity for the testimony of William
Roland Hampton in his attempt to explain that transfer on demonstrably false
grounds.
Wilbur Montovan worked for the Respondent at $1 per hour from July 16 to
August 24, when he became sick and had to be taken to the hospital. On September
3, Montovan presented Heikes with a doctor's certificate stating that the doctor had
advised Montovan to take a leave of absence for 10 to 14 days.
When Montovan next reported for work in October, Heikes demanded a doc-
tor's certificate of physical fitness for Montovan while stating that there was plenty of
MAYRATH COMPANY 1653
work at the plant. The following day when Montovan presented Heikes with such
a certificate of fitness Heikes told Montovan that he had no work for Montovan.
Montovan has never since been reinstated.
B. Conclusions
1. In general
It seems to the Trial Examiner that the facts herein make out violations of Section
8(a)(1) and (3) as charged in the complaint so clearly through the statements and
the actions of the Respondent on and after May 30, 1958, that anything written
further by this Trial Examiner amounts to nothing more than mere surplusage and
serves only to extend unduly an already too detailed Intermediate Report. The facts
alone and by themselves prove the General Counsel's case far better than can any
essay on his reasons or rationale by this Trial Examiner.
However, two facts compel the further extension of this Intermediate Report:
(1) By order dated November 5, 1959, the Board set aside the Intermediate
Report of May 1, 1959, by Trial Examiner Arthur E. Reyman, following the previous
hearing held before him in February 1959, and remanded this matter for hearing
de novo before another Trial Examiner with the sole explanation for such action
being that: ". . . the Board finds the Report is not in conformity with Section 8(c)
of the Administrative Procedure Act, nor with Section 102.45(a) of the Board's
Rules and Regulations, which latter section, in part, requires that: . . . Such report
shall contain findings of fact, conclusions, and the reasons or basis therefor, upon all
material issues of fact, law, or discretion presented on the record, .... and
(2) Respondent has filed a carefully prepared brief containing a number of inter-
esting arguments, some ingenious, some disingenious, which probably should be
answered.
The main arguments raised by Respondent in its brief seem to be that:
(a) When Mayrath ordered the employees on May 30, 1958, to "take off the
union badges or leave," he only meant for the employees to get out more production
and was using the term "union badges" as synonomous with the phrase "lack of pro-
duction." Respondent's brief refers to this a "a game of semantics."
(b) The Respondent discharged two employees, McGregor and Wells, for cause,
while the others who left work on May 30 and June 2 voluntarily quit Respondent's
employ for reasons unknown to the Respondent and were so recorded on the
Respondent's records.
(c) Joe 'Sims was not a supervisor within the meaning of the Act and only took
his poll of the sympathies of the employees, which Respondent refers to as a
"opinion survey," on May 30 in his individual capacity and for his own use. The
similar inquiries made by Olson and Heikes, whom Respondent concedes were
supervisors, were made to employees without threat or promise of benefit and, there-
fore, are not actionable.
,(d) Assuming arguendo that the employees were discriminatorily discharged,
reinstatement may not be ordered here because Respondent has offered each of them
substantially equivalent employment which they have either refused or from which
they have been discharged for cause after acceptance.
2. The semantics argument
The facts here show that, when Mayrath reported for work on the morning of
May 30, he was promptly informed that the employees were wearing union buttons
at work; that there were union pamphlets around the plant which indicated, as
Respondent read them, that the employees had certain inalienable rights respecting
their right to join a union which the Respondent could do nothing about without
"violating one section of the Act or another" so that the Respondent would have to
be very careful about how it approached the employees on that subject; and that there
was a lot of "commotion" with little, if any, production as well as a "mess" in the
chain shack.
Of course Mayrath testified that his sole interest on May 30 was this alleged lack
of production and that, when he told the employees on his peregrinations of that day
to "take off the union badges or leave," 35 he only meant that the employees should
get to work and give the Respondent an honest day's work for the wages they were
receiving, and that he used the phrase "union buttons" only as a "symbol" for "lack
of production."
85 Respondent's brief concedes that on May 30 Mayrath used this phraseology to 5 of
the 10 employees who left work on May 30.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of May 30, the matter uppermost in the minds of the people at
the plant was the temerity of the employees in openly wearing union buttons at work
and attempting to join a union organization. This was a new and a bold step. But,
if Mayrath is to be believed, the thing uppermost in his mind was the alleged lack
of production which was not even in the minds of the employees who agreed that
the "commotion" and/or "lack of production" was no worse on May 30 than usual.36
So if 'Mayrath indeed chose to communicate his ideas to the employees in symbols,
it became incumbent upon Mayrath to make sure that his listeners understood the
symbols in which he chose to express his intended meaning. This Mayrath did not
do.37 When Mayrath told the employees to "take off the union badge or leave," his
hearers understood him to mean exactly what his words meant-take off the union
badge or leave. Communication of ideas comes exclusively from the meaning of the
words used. If his listeners misunderstood Mayrath's intended meaning, the fault
lies with Mayrath-not with his listeners.
Furthermore the facts here make it unmistakably clear that on May 30, Mayrath
intended to convey the same idea that the employees understood him to be conveying,
i.e., the idea conveyed by the common meaning of the words he chose to use-"take
off the union badge or leave." As an example, the second conversation Mayrath
held with Max Wells in the chain shack is proof of that for Mayrath's first remark
to Wells in the afternoon was "I thought I told you to leave." Yet when Wells
pointed out to Mayrath that he had in fact obeyed Mayrath's order of that morning
by removing his union button, Mayrath told him to "stay." Obviously Mayrath was
not here talking in symbols. The 'Cummings' episode in the parking lot and subse-
quently that evening in the office is another example. Mayrath urged Cummings a
number of times "to pull off the union button and return to work" until finally
angered by Cummings' persistent refusal to return to work without his union button,
Mayrath ordered Cummings out of the office. Further confirmation of the fact that
Mayrath was not talking in symbols was the telephone conversation between Mayrath
and Cummings in the latter part of June when Mayrath offered Cummings work
but, upon again being told by Cummings that he would have to wear his union button
at work, Mayrath ended the conversation by saying "if that is the way you feel, I
don't have anything for you." 38 A further example that Mayrath meant "union
buttons" when he said "union buttons" was Mayrath's undenied statement to Siefkin
requesting him to reconsider Siefkin's decision not to remove his union button as a
condition for staying at work as requested by Mayrath, that Siefkin had "broken the
trust" which Mayrath had placed in him when Siefkin joined the Union, and that
no union, nobody was going to tell him how to run his business "
The evidence is also quite clear that on May 30 Mayrath was not seriously con-
cerned about the so-called lack of production. It is undisputed that Mayrath per-
sonally stopped Siefkin (and Hendricks) from working so as to be able to order
Siefkin to remove his union button and even going as far as to suggest "firing" Siefkin
in order to enable Siefkin to talk to him about the Union when Siefkin at first
refused to talk to Mayrath about the Union during working hours. It is also note-
worthy in this connection that Mayrath stopped work not once but twice in the
chain shack in order to order the employees to remove their union buttons. Even
Mayrath had to admit that Cummings was hard at work when Mayrath stopped him
and ordered the removal of his union button. The same thing is true of almost all
the other button wearers to whom Mayrath spoke that day. Thus one can only
conclude that production on May 30 was not as important to Mayrath as was the
wearing of union buttons.
The facts force the Trial Examiner to conclude that Mayrath was not talking to
the employees in symbols on May 30 and that, when he said to remove the union
buttons or leave, he meant just exactly that and nothing else and that this action of
Mayrath interfered with, restrained, and coerced the employees in violation of Sec-
tion 8(a)(1) of the Act even as Mayrath intended it to do.
"In fact the Trial Examiner has been unable to find any "lack of production" on
May 30 upon the evidence produced here by Respondent.
87 In fact only once during May 30, did Mayrath even so much as mention "production"
to an employee. It seems that this idea of a lack of production was an unprovable
afterthought
38 Respondent Supervisor Sam Stauth was in a position to deny an important part of
Cummings ' testimony and thus corroborate Mayrath's implied denial thereof but , although
he testified on the Cummings' matter, failed to do so. Accordingly the Trial Examiner
has had to credit the testimony of Cummings, who, in addition, impressed the Trial
Examiner as being an honest witness.
MAYRATH COMPANY 1655
3. The theory the employees "quit"
The above finding and conclusion also takes care of one of the more disingenious
arguments advanced by the Respondent to the effect that employees Elmer Barnes,
Millard Cummings, Charles Tedder, Robert Montovan, Don Woodrum, and John
Siefkin voluntarily "quit" Respondent's employ after having had conversations with
Mayrath during many of which Mayrath admits having used the phrase "take off the
union badge or leave." The Respondent's testimony was to the effect that the above-
named employees just walked off the job after these conversations with Mayrath for
reasons unknown to the Respondent and were recorded as having "quit" on company
records. In this connection the Respondent made much of the fact that Mayrath
never used the words "fired" or "discharged" to the employees. Once again the
Respondent has resorted to sematics or to symbolism.
The facts show that Mayrath knew why these employees were leaving work after
he had talked to them. He was not surprised when they departed. Upon seeing
Cummings in the parking lot on his way to his automobile and home, Mayrath did
not ask him why he was leaving work but, on the contrary, he urged him to remove
his union button as he had been requested so that he could return to work. Mayrath
was under no allusions as to what was going on or why. In fact he was told.
Thus this argument deserves little or no attention . There is no magic in the
use of the words "discharged" or "fired." The meaning of Mayrath's order to "take
off the union badge or leave," as understood by both Mayrath and the employees,
conveyed the ordinary meaning of the simple words used, i.e., "you can either wear
the union button or work for the Respondent, but you can not do both." The choice
given by Mayrath to the employees is proof of the discriminatory character of the
discharges. It is the classic example of the discriminatory discharge of employees
for having engaged in union activities or becoming union members which Section
8(a)(3) of the Act was designed to prevent. It was so understood by Mayrath
and it was so understood by the employees. The Trial Examiner so finds.
Accordingly the Trial Examiner must find that on May 30, 1958, the Respondent
discriminatorily discharged Elmer Barnes, Millard Cummings, Charles Tedder,
Robert Montovan, Don Woodrum, and John Siefkin because each of them was
wearing a union button , engaging in union activities , and/or was a union member
in violation of Section 8(a)(3) and (1) of the Act.
4. Sims and his personal "opinion survey"
a. His supervisory status
According to the Respondent's brief the operations and procedures of the Re-
spondent's plant were very informal with employees setting their own wages, coming
and going almost at will, and doing practically what they wanted to do. Respondent
used this informality of operations and procedures to explain M^ayrath's contention
that there is actually no "chain of command" at the plant, by which he meant that
there were no supervisors at the Compton plant but that he alone made the final
decisions on all matters, big and small, after advising in person or by telephone
with a group of his "associates" whom he chose to refer to as "the seven bosses." 39
But it is self-evident that even a small plant like the Respondent's can operate-
regardless of efficiency-only if there is some authority in control to supervise its
activity. As Mayrath spends only one-third or one-fourth of his time in Compton
and while it is true that he could make all final decisions by telephone, it is also
true that there must be some authority on the ground in Compton to keep operations
moving and to put such decisions into effect. This authority must reside in the
"seven bosses."
The "seven bosses" was another of Mayrath's symbolic expressions used by him
to designate those "associates," i.e., the foreman, leadmen, checkers, and other
knowledgeable employees, with whom Mayrath consulted on plant problems. Never
once during the hearing did Mayrath mention the name of Joe Sims in his several
attempts to enumerate the individuals included in the phrase "seven bosses." Nor
did Mayrath ever reach the magic number of seven names.
ae On the other hand the Respondent's brief abandons this posture of informality in the
case of Elmer Barnes who was working for the Respondent on May 30 at the invitation
of the Chain Shack Leadman Kettley but whom the Respondent claims was not an em-
ployee because he was busily working that day before having gone to the office to have
his name formally placed upon Respondent's payroll. Apparently there were limitations
to the Respondent 's informality
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mayrath did admit that, as the best welder in the plant, Sims was considered
"sort of lead man" of the welders working outside the big building while Cliff
Pogue was the leadman of those welders working inside the building, that both of
these men worked under Paul Heikes whom Mayrath referred to as a "foreman"
but who was responsible for plant production and who, under General Motors'
classifications , would qualify as "plant superintendent."
Despite attempts to obfuscate the question of the "chain of command," the
evidence disclosed that each day Heikes would notify Sims the number and type of
production expected of the welders that day, that Sims thereupon determined the
number of welders, chippers , machine operators , and helpers who would be re-
quired to produce that much, that Sims transferred the employees and assigned
the work among the 18 to 20 employees "with whom," to use the Respondent's
phrase, Sims worked according to his judgment as to how best to secure the amount
of production ordered . It was Joe Sims who determined the qualifications of an
applicant for work as a welder. It was Joe Sims to whom the successful applicant
was assigned for work . It was Joe Sims who determined his wage rate, subject
of course to Mayrath's approval . It was Joe Sims who could decrease a welder's
wage rate-apparently without Mayrath 's approval . It was Joe Sims who recom-
mended transfers of employees from welding work . It was Joe Sims who kept the
attendance record of those employees with whom he worked on the orders of
Heikes who then checked the time records made by the individual employees with
Sims' record . It was Joe Sims who gave the orders to up to as many as 20 of the
Respondent 's full complement of 70 employees . Mayrath himself acknowledged
that 80 percent of the recommendations made by Sims were accepted by Respondent.
Both the Respondent and the employees recognized Joe Sims as the supervisor of
the welders , the chippers , the machine operators , and their helpers, etc.
Accordingly the Trial Examiner must find that Joe Sims at all times material
herein was as supervisor within the meaning of Section 2(11) of the Act as well as
the fact that Joe Sims was a very important supervisor.
b. The Sims opinion survey
The Respondent refers to the actions of Joe Sims on May 30 , as found above,
wherein he systematically interrogated each of the Respondent 's employees de-
manding to know from each whether he was for or against the Union and then
ostentatiously recorded that preference into a permanent record in his work note-
book as an "opinion survey," another use of the symbol.
This effort by Sims was no more nor no less than a systematic polling of the
sympathies of all Respondent 's employees regarding the Union accompanied by
threats of discharge , decrease of wages, or promises of benefits , and then recorded
for any use Respondent might care to make of it in the future . Furthermore the
poll was conducted and recorded as a permanent record by a supervisor in an
atmosphere tending to coerce the employees.
Sims attempted to explain that he took this poll surreptitiously for his own
personal use in making up his own mind as to whether to "spend a lot of money"
to help bring the Union, and that his record was never used by the Respondent.
Sims' own actions as well as his warnings , threats, and refusals to accept proffered
union buttons prove that Sims was quite violently opposed to the Union even
before he commenced on his so-call opinion survey . The facts disprove the ex-
planation.
As for the Respondent 's claim that Sims took this poll on his own , it must be
recalled that sometime rather early on the morning of May 30, even before Mayrath
had asked any of the welders or machine operators about their union buttons,
Mayrath conferred for about 15 minutes with Sims while watching some of the
employees who were wearing union buttons at work and that he admittedly con-
cluded this conversation by instructing Sims to "find out what is going on ." It was
only after these instructions that Sims went to the employees of the welding de-
partment and of the paint shop , at least, demanding that- the employees there tell
him their union preference and show him any union buttons they might have hidden
in their pockets as well as chiding at least one for not publicly displaying his button.
Because of the indefinite testimony in regard to times, it is possible that Sims had
polled the employees of the chain shack even before his conversation with Mayrath.
Although Heikes denied , Sims admitted that the permanent record he made of the
statement of preference was shown to Heikes on either May 30 or 31.
Furthermore the facts prove that Sims' record was used by Respondent in se-
lecting the employees who were discharged on June 2 at least. That same permanent
record explains the mystery of why Wilbur Montovan at whose garage union
MAYRATH COMPANY 1657
meetings were known by the Respondent to have been held was not discharged at
that time. Sims had listed each man discharged or laid off as a union sympathizer
but he had Wilbur Montovan listed as being against the Union.
Thus it appears that a part of the Sims poll was taken directly following the
orders of Mayrath to find out what was going on. The record was shown to the
Respondent. The men discharged were all listed as being union sympathizers while
Wilbur Montovan whom Respondent suspected of being a union sympathizer was
listed by Sims as unfavorable to the Union and was not discharged at that time.
Consequently the Trial Examiner must find as alleged that the Sims "opinion sur-
vey" was the act of the Respondent.
Also in view of the atmosphere in which the poll was conducted, the threats and
promises of benefit made by Sims during the interrogations, together with the fact
simultaneously Mayrath was threatening employees to "take off the union badges
or leave," the Trial Examiner must also hold that by having this poll taken the
Respondent interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act.
The same finding must also be made in regard to the similar interrogation of em-
ployees by Olson and Heikes for the same reasons.
5. No reinstatement argument
Respondent's final argument is that reinstatement cannot be ordered for any of
the discriminatees here because each of them has been offered and refused reinstate-
ment to a substantially equivalent position or else accepted such reinstatement but
subsequently quit or was discharged for cause.
Technically this issue would be more appropriately considered at the compliance
stage of this proceeding but Respondent raised the issue and fully litigated this mat-
ter here. Therefore, the Trial Examiner will rule on it.
One of the first discriminatees offered reinstatement was Millard Cummings, which
offer was made by Mayrath over the telephone in the latter part of June 1958. The
offer at this time was illegally conditioned upon Cummings' removal of his union
button. The offer was withdrawn by Mayrath upon Cummings' refusal to accept that
illegal condition. Some days later, however, Stauth succeeded in securing the agree-
ment of Cummings to return to work the following day. But a few hours after se-
curing this agreement Stauth "forgot" that Cummings was to return the next day
and assigned his crews for the following day without assigning Cummings so that,
according to Stauth, there was "no work" for Cummings when he reported for work
as agreed the following morning. Stauth consequently assigned Cummings a job of
chopping down thistles in the yard and later that day to digging a 34-foot trench in
which to place a gasline running to the office. After Cummings had taken a couple
of hours to complete one-half of this ditch with Stauth standing over him most of
the time, Stauth ordered Cummings to finish the other half of the trench in 30 min-
utes or quit. Cummings chose to quit this type of employment sometime during
the afternoon.40 According to Stauth and other witnesses presented by the Respond-
ent another employee finished this 17-foot (no more and no less) trench in exactly
16 (no more and no less) minutes.41
Sometime in August 1958, Olson offered Stevens, a machine operator, reinstate-
ment. When Stevens inquired whether the work would ,be steady and what his rate
of pay would be, Olson answered that he would have to find out and would call
Stevens back. This record fails to indicate that Olson ever called Stevens back with
the answers to Stevens' questions. This does not amount to a bona fide offer.
Apparently on September 3, 1958, Heikes offered reinstatement to Don Woodrum,
a machine operator; to John Siefkin, a shipping clerk; and to Robert Montovan, a
painter.
Although at this time the testimony indicated that the Respondent was in need
of machine operators of which Woodrum was one, Heikes' notes indicate that during
40 Something is wrong with the Respondent's records on this matter for those records
indicate that Cummings was paid for 81/3 hours' work on June 27, 1958, apparently the
day in question, despite the fact that all parties agreed at the hearing that Cummings
did not work the full day.
41 The unanimity with which the Respondent's witnesses used these exact measurements
of distance and time caused one of Respondent's attorneys to joke about it on the record
For once human error seemed to have been eliminated from the testimony of these Re-
spondent witnesses. The testimony was just too pat to be convincing except of one thing :
If Cummings had not "quit," the Respondent was duly prepared with witnesses to prove
a discharge for cause.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this telephone offer Heikes offered Woodrum a job as a common laborer which
Woodrum refused . This would not have been the same or substantially equivalent
employment.
According to Heikes and his memorandum , he also telephoned John Siefkin and
offered him the same jobs as he had previously offered to Woodrum despite the fact
that Siefkin was a shipping clerk at the time of his discharge . The memorandum
states, as Heikes testified , that Siefkin had another job and therefore refused Heikes'
offer. On the other hand , Siefkin testified that prior to August 12, 1958 , Olson tele-
phoned him and asked if he would like to come back and work for the Respondent
"when business picked up" to which Siefkin answered by asking how business was.
Olson ended the conversation by saying that business was pretty good but not answer-
ing any question as to pay rates, steady work , or his right to wear a union button.
Siefkin chose to remain at the job he then had.
Siefkin denied having received any offer of work from Heikes. He did receive a
letter from Sam Stauth telling him that, if he wanted to work for the Respondent,
he must report for work prior to August 12, 1959. In view of the strange testimony
of Heikes in which he practically read the memorandum and in view of the 1959
Stauth letter to Siefkin , the Trial Examiner must accept the testimony of Siefkin over
that of Heikes. The Olson offer at best was only conditional.
Heikes then telephoned Robert Montovan and offered him the same job at $1.20
per hour.42 Montovan accepted the job but stated that he could not come in for a
day or so because he had to take his father to the hospital. When Montovan re-
ported for work a day or two thereafter Heikes testified that the Respondent had
"no work" available for Montovan so Heikes "made" work by having Montovan fix-
ing roofs and repairing a broken down windmill . When that was completed , Heikes
had Montovan wheeling sand from the plant to the farmhouse some distance away
across open fields and gulleys. After wheeling a few wheelbarrow loads of sand
to the farmhouse , Montovan asked if that would be enough and got the answer "you
take it down there and if you get too much down there, you can bring it back."
On the second day of this wheelbarrowing sand to the farmhouse Heikes in person
"assisted" Montovan by following the wheelbarrow urging Montovan to greater
effort and in general impeding the work. One and a half days of this type of har-
assment was sufficient for Montovan who quit and was duly recorded on company
records as having quit his employment.
Respondent refers to these offers of reinstatement or actual reemployment as
"reinstatement to substantially equivalent employment ." In the first place the
evidence leads but to the conclusion that the offers were not bona fide when made
for the reason that when Cummings and Montovan reported for work as offered,
the Respondent did not put them to work at substantially equivalent employment
In the case of Cummings the Respondent 's excuse was that Stauth had "forgotten"
that Cummings was to report for work the next morning and, therefore , had assigned
the work the afternoon before to other employees . In the case of Montovan,
according to the testimony of Heikes , the Respondent had no work for Montovan
when he reported as promised a day or two after the Heikes ' offer-which would
indicate that the Respondent did not have enough work for him to have offered
him reinstatement . Furthermore , the treatment of these two men by both Stauth
and Heikes indicated that the Respondent had an ulterior purpose of forcing them
to quit Respondent 's employ or discharging them as rapidly as possible . Upon the
evidence presented here the Trial Examiner cannot find that these or the other offers
of so-called reinstatement were made by the Respondent in good faith.
Also there can be no question but that neither the type of work nor the pay
offered by the Respondent amounted to substantially equivalent work to that which
any of the dischargees had enjoyed prior to their discharge . A job at $1.20 per
hour cannot be held to be substantially equivalent to one paying even $1.30 per
hour and the Respondent 's own record shows that the lowest paid man at the time
of the discharge was Robert Montovan at $1.30 per hour.
The other contentions made by the Respondent to the effect that James Barnes
was not even an employee and that Charles Tedder voluntarily quit have been
decided adversely to the Respondent 's contention herein before.
The Trial Examiner finds no merit in this defense advanced by the Respondent
Respondent 's contentions in regard to the other employees can be disposed of here
very quickly.
42 It must be noted here that at the time of their discharges Don Woodrum and John
Siefkin were earning $1 .50 per hour whereas Robert Montovan at that time was earning
$1 30 per hour.
MAYRATH COMPANY 1659
As to Cecil Barnes in the chain shack, Respondent contends that he was not even
an employee on May 30, and hence Respondent could not fire him but merely
ordered him off its property. The evidence, however, shows that on May 30,
Barnes was an employee as found above and that he was discharged because he
was wearing a union button . The Trial Examiner so finds.
As to Harold McGregor, Mayrath claimed he was discharged because of the poor
quality of his work at every job at which Respondent had tried him 43 The immediate
cause of McGregor's discharge was supposedly the poor bundling at the chain shack
on the morning of May 30. The evidence proved that Hartley, not McGregor, had
been responsible for that poor bundling-but Hartley was not discharged. For the
Trial Examiner to find that McGregor was discharged for poor bundling, the Trial
Examiner would also have to find that in this instance Mayrath had modified his
symbol so that, when he said, "Take off the union badge," he really meant this time
"Improve the bundling which you have not been doing." This the Trial Examiner
cannot do. Accordingly the Trial Examiner must find that, like the others dis-
charged on May 30, Mayrath meant exactly what he said and that he discharged
McGregor for engaging in union activities in violation of Section 8(a) (3) and (1).
Max Wells was discharged twice on May 30, but Mayrath repented when Wells
proved to him that he had complied with Mayrath's orders by removing the offending
union button. However, on June 2, Mayrath completed the discharge with the
statement that a man of Wells' age should have "cleaner" work, a matter which had
never bothered Mayrath before, but allegedly, according to Mayrath, because Wells
had failed at every job he had been given. Once again as in the McGregor case,
Respondent failed to prove Wells' incompetence.
It suffices to destroy Respondent's contention that it discharged Frank Marrisett
on June 2, 1958, because he was a "poor nand slow" welder to point out that, contrary
to Respondent's claim on June 2, it had granted Marrisett a 10-cent per hour merit
increase on May 31, 1958, only 2 days before.
Consequently the Trial Examiner can only conclude that Respondent discharged
Elmer Barnes, Cecil Barnes, Millard Cummings, Charles Tedder, Robert Montovan,
Don Woodrum, John Siefkin, and Harold McGregor on May 30, 1958, and Lynn
Richards, Max Wells, and Frank Marrisett on June 2, 1958, and Wilbur Montovan
on or about October 24, 1958, because of their union activities and membership
in violation of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operation of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in numerous unfair labor prac-
tices, it will be recommended that it cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of the employees found above to have been discharged on
May 30 and June 2, 1958, as well as Wilbur Montovan, by discharging each of
them, the Trial Examiner will recommend that the Respondent offer to each of
them immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or rights and privileges, and make each
of them whole for any loss of pay he may have suffered by reason of said discrimi-
nation by payment to him of a sum of money equal to that which he would have
earned as wages from the date of the discrimination against him to the date of the
offer of reinstatement , less his net earnings during such period , in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289.
In addition the Trial Examiner will recommend that Respondent also pay to
Wilbur Montovan the further sum of 40 cents per hour for each hour said Wilbur
Montovan worked for the Respondent from on and after July 16, 1958, when the
Respondent discriminatorily reduced his wages by said amount.
93 Respondent relied as proof of this on hearsay reports allegedly made by Yard Fore-
man Robert Horman to Mayrath. Respondent, however, failed to produce Horman as 'a
witness to prove that alleged poor workmanship or to account for his nonappearance.
Hence the proof of poor workmanship is lacking
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that the Respondent has also engaged in acts of interference,
restraint, and coercion, the Trial Examiner will recommend that the Respondent
cease all such activity.
Because of the variety of the unfair labor practices engaged in by the Respondent,
the Trial Examiner senses an attitude of general opposition to the purposes of the
Act in general, and, hence, the Trial Examiner deems it necessary to order that the
Respondent cease and desist from in any manner infringing upon the rights guaran-
teed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. U.A.W., AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discharging Elmer Barnes , Cecil Barnes, Millard Cummings , Charles Tedder,
Robert Montovan , Don Woodrum , John Siefkin , and Harold McGregor on May 30,
1958 , and Lynn Richards , Max Wells, and Frank Marrisett on June 2 , 1958, and
by discriminatorily decreasing the wages of Wilbur Montovan on July 16, 1958, and
thereafter discharging him thereby discriminating in regard to their hire and tenure
of employment and discouraging union activity among its employees , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (3) and ( 1) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7 ) of the Act.
5. The Respondent did not violate Section 8(a)(3) or ( 1) of the Act by laying
off George West, Dallas West , and Robert Stevens on June 9 and 10, 1958.
[Recommendations omitted from publication.]
Sinclair Refining Company and Oil , Chemical and Atomic
Workers Union , AFL-CIO. Case No. 923-CA-1087. August 31,
1961
DECISION AND ORDER
On April 5, 1961, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the 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 Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following additions and
modifications.
132 NLRB No. 129.