Merz Engineering Co.

National Labor Relations Board - Board Decisions

Nov 15, 1967

168 N.L.R.B. 245 (N.L.R.B. 1967)

MERZ ENGINEERING COMPANY 245
Miklos Sperling , an Individual , d/b/a Merz Engineer-
ing Company , Special Products Division and
International Union , United Automobile,
Aerospace , and Agricultural Implement Workers
of America , UAW-AFL-CIO. Case 25-CA-2702
November 15, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 21, 1967, Trial Examiner Arthur E.
Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that he cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion.The General Counsel filed a limited exception
with respect to an alleged omission from the Trial
Examiner's Conclusions of Law, and a brief in sup-
port of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of'the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. In the absence of exceptions by
the Respondent, the Board adopts the findings, con-
clusions, and recommendations of the Trial Ex-
aminer, with the limited modification noted herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, his agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified.
1. Add the following as paragraph 1(b) of the
Order, the present paragraph 1(b) being relettered
1(c):
"(b) Threatening employees that he would close
the Shadeland Avenue plant if he heard a union at-
tempting to organize it, or otherwise threatening
employees with reprisals to discourage their union
membership or activities." -
2. Add the following to paragraph 2(a) of the
Order:
"Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
3. Delete from paragraph 2(d) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided ...."
4. Add the following paragraph to the notice to
all employees as the second paragraph therein:
WE WILL NOT threaten to close the Shadeland
Avenue plant if we hear that a union is attempting
to organize that plant, or otherwise threaten our em-
ployees with reprisals to discourage their union
membership or activities.
I The General Counsel's exception relates to the apparently inadver-
tent failure of the Trial Examiner to make a conclusion of law and recom-
mend a remedy with regard to his finding that Sperling threatened to close
the Shadeland Avenue plant if he heard of a union attempting to organize
the plant We find, in agreement with the General Counsel, that Sperling's
threat violated Section 8(a)(I) of the National Labor Relations Act, as
amended, and have appropriately revised the Trial Examiner's Order and
Notice to All Employees
TRIAL EXAMINER'S DECISION
ARTHUR E. REYMAN, Trial Examiner: On January 17,
1967, International Union, United Automobile,
Aerospace, and Agricultural Implement Workers of
America, UAW-AFL-CIO, herein sometimes called the
Union, filed a charge against Miklos Sperling, an in-
dividual, d/b/a Merz Engineering Company, Special
Products Division, herein sometimes called the Company
or the Respondent, the basis of the charge being that the
Respondent "has engaged in and is engaging in unfair
labor practices" within the meaning of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq., herein called the Act. Thereafter,
on March 20, 1967, the General Counsel of the National
Labor Relations Board, on behalf of the Board, by the
Regional Director for Region 25, pursuant to Section
10(b) of the Act, and the Board's Rules and Regulations
Series 8, as amended, Section 105.15, issued a complaint
and notice of hearing against the Respondent, alleging
that Respondent had engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. The
Respondent filed timely answer to the complaint, effec-
tively denying that it had engaged in or was engaging in
the unfair labor practices set forth in the complaint.
Pursuant to notice, this case came on to be heard at In-
dianapolis, Indiana, on May 10, 1967, and was closed on
the following day. At the hearing, the General Counsel
and the Respondent each was represented by counsel and
the Charging Party, the Union, was represented by an In-
ternational representative. Each party was afforded full
opportunity to call and examine witnesses, to cross-ex-
amine witnesses, to present evidence relevant to the is-
sues of the case, to engage in oral argument, and to file
briefs. Briefs have been filed on behalf of the General
Counsel and the Respondent and have been carefully
considered.
From my observation of the witness, and upon the
whole record in the case, I make the following:
168 NLRB No. 37
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now , and has been at all times
material herein , a sole proprietorship engaged in the
manufacture of machine tools, aircraft parts, and defense
materials . In the course and conduct of its operations it
maintains plants in Indianapolis , Indiana, including one
on Shadeland Avenue. The Respondent , during the
period immediately preceding the issuance of the com-
plaint which period is representative at all times material
herein , manufactured, sold, and shipped from its Indi-
anapolis plants finished products valued in excess of
$50,000 to points outside the State of Indiana; and during
the same period of time Respondent, in the course and
conduct of its business operations , manufactured and sold
equipment and products valued in excess of $50,000 to
the United States Government for use in the National
Defense . Respondent is now , and has been at all times
material herein , an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile, Aerospace,
and Agricultural Implement Workers of America,
UAW-AFL-CIO, is, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The complaint alleges and the answer is intended to
deny that since or about January 11, 1967,' and continu-
ing to date , the Respondent has interfered with,
restrained , and coerced and is interfering with, restrain-
ing, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act by having threatened
to discharge and otherwise discriminate against em-
ployees for engaging in union and concerted activities; by
ejecting employees from the Shadeland Avenue plant
because they engaged in union and concerted activities;
by having discriminatorily promulgated and enforced a
rule prohibiting solicitation and distribution of literature
on behalf of the Union on Respondent ' s Shadeland
Avenue property; by having discriminatorily refused to
reinstate certain employees upon their unconditional
offer to return to their former or substantially equivalent
positions of employment after such employees have
ceased work concertedly and went on strike; and by
discharging , refusing to reinstate or reemploy , and con-
tinuing to refuse to reinstate or reemploy, eight
discharged employees because they were engaged in
union activities or joined or assisted the Union or en-
gaged in concerted activities for the purpose of collective
bargaining and mutual aid or protection.
The primary questions to be answered here are
whether a walkout on January 11 was protected con-
certed activity under Section 7 and the subsequent
All dates hereinafter mentioned are for the year 1967 unless otherwise
specifically noted
2 Newman testified that the product manufactured at the plant is a
discharges of eight employees were discriminatory within
the meaning of Section 8(a)(3) of the Act. By amendment
to the complaint allowed at the hearing , it must be de-
cided too , whether the Respondent by its owner
threatened , on a day between November 9 and 19, 1966,
to close the Shadeland Avenue plant and to replace em-
ployees if they joined , supported , or assisted the Union.
Plant Organization
The Special Products Division of the Company,
located at its Shadeland Avenue plant, began operations
in the late summer of 1966, and at the time of the filing of
the charge herein employed some 80 persons at that
plant . Roger Newman is vice president in charge of
manufacturing and maintains his office at 200 South
Hardy Street, some 12-1 /2 miles across town from the
Shadeland Avenue plant and about 21 miles around the
expressway . Joseph E . Stein is the plant manager of the
Shadeland Avenue plant. Newman and Stein assumed
their respective duties on December 19, 1966 . Other su-
pervisors at this plant included Ed Egnell, Foremen Bob
Reed , John McKenna, and Johnny Wilford ; and Francis
Herbie in charge of quality control. On the basis of the
testimony of Stein , one Roger Gayer, whose activities
were mentioned during the course of this hearing, is not
a supervisor . Operations at this plant include (I take it
principally if not entirely) work performed under a
Government defense contract ,, a progress schedule
calling for the shipment of about 3,000 units of products
manufactured for use in connection with Viet Nam.2
Up until January 11 none of the employees of Respond-
ent employed at the Shadeland Avenue plant was
represented by a union, nor had any union made an effort
to organize the plant employees . On that day, as alleged
in the complaint , "certain employees ... ceased work
concertedly and went on strike ...."
The Cessation of Work
On January 11 discontent among employees growing
out of their failure to have received wage increases or
shift differential pay resulted in a morning discussion
between certain employees , who decided that after lunch
they would leave their work in protest against working
conditions and the failure of the Respondent to fulfill al-
leged promises for night differential pay and pay raises.
Testimony of certain employees to the effect that they
were promised raises after 30 days' employment and a
differential in pay if they worked at night , and that they
never received such increases in pay, stand unrefuted
upon the record . The Respondent apparently stands on
the fact that increases promised employees at the time of
their hire were not binding upon the Respondent as such
because made by predecessors of Newman and Stein who
had originally hired these employees.
Patricia Warren testified that she first was employed
around the first of September 1966, and continued in her
employment until January 12. She said she was hired by
one John Anderson who fixed her starting wage at a $1.65
per hour , informed her that within 90 days she would
receive a 10-cent -an-hour increase , which she never
bomb dispenser used on the bottom of airplane wings and that the Com-
pany makes deliveries to several Army depots including one at Doyline,
Louisiana , and another at Milan , Tennessee
MERZ ENGINEERING COMPANY 247
received during the course of her employment. She
worked from 7 a.m. to 5:30 p.m., and also worked on
Saturdays . Employee Mary Capps testified that she was
employed on August 26, 1966, by John Anderson at a
$1.65 per hour and at that time was informed by Ander-
son that within 30 days she would receive an increase of
10 cents an hour , "and the rest of it was on my own
merits." She testified that she was about the third among
the women hired at the plant , worked on the day shift,
was under the supervision of Don Roberts , a foreman,
and that a few days before January 11, she had been ad-
vised by Roberts that he had recommended her, together
with Mrs. Warren , for an increase in wage and that "I was
entitled to more than just a dime."
Patricia Ann FreiJe testified that she was employed on
or about September 20, 1966 , by John Anderson at an
hourly rate of $1.65 with a promise of a 10 -cent increase
in 30 days. She, like Warren and Capps, worked a 7 a.m.
to 5:30 p . m. stint , and worked on Saturday . Meda Amber
Hillman testified that she started work on about
November 1, 1966, was hired by a person named Paul for
work on the night shift "and I signed a piece of paper that
said a $1 . 65 an hour , but he said that this is with the night
bonus, it was an agreement he said everyone would
receive it. And he also said that there would be a 15-cent
raise in 30 days." She testified that she worked on the
night shift for about 2 weeks at a $1 65 an hour , did not
receive the 10-cent differential , was laid off by Foreman
Egnell , who at the time told her that she was to be laid off
because the night shift had been discontinued . After a 3-
day layoff she was hired back by Cain , then plant
manager, at $ 1.75 on daywork.
Mrs. Avas Howard was employed on about October
10, 1966, being hired by one Paul, or Cain, plant
manager , after referral by the Indiana State Employment
Office, at a $1.65 an hour plus 10 cents an hour night
premium . She testified that she was at that time told that
she would receive a 15-cent raise at the end of 30 days.
She worked nightwork for approximately 4 weeks, when
she was informed by Egnell that she was being laid off;
she expressed her unhappiness at being laid off; took the
matter up with Cain, who told her that he did not know
why she was being laid off , and instructed her to report at
8 a.m. on the following day, to be paid at a rate of a $1.65
an hour . She testified that she never had received the 10-
cent differential for night work , although she had worked
more than 30 days ; that she never had received the 15-
cent hourly increase promised to her.
Mrs. Sharon Ropp testified that she was employed on
about September 25, 1966, by Bill Hudson , a supervisor
at the main plant of the Company on Hardy Street, at a
$1.65 an hour, to work from 7 a.m. until 5:30 p . m. In re-
gard to her conversation with Hudson concerning wages
she said-
Well, I forget what he said to me, they were just
starting the plant and they didn't have too many em-
ployees. I started before a lot of these people got out
there. And he said that there would be raises but he
didn't say just when ; he just said when the plant got
on its feet is about what it amounted to. That's not
word for word.
At the time of her discharge on January 12, she had
received no increase in pay.
There was a considerable amount of discontent among
the employees other than their dissatisfaction with the
failure of the Company to increase their wages, which
they said had been promised to them . Sharon Ropp
summed up the major matters which the employees com-
plained about . She said that when she first was employed
they had but one restroom for the ladies with one com-
partment , and that although they later installed another
one, the room always was flooded with water on the floor
and the toilets were not maintained properly; that the
machines in the plant which employees operated caused
them difficulty ; that the plant was not properly heated:
. and then they had, when I first went in there they
kept the windows open all the time because they
didn't have any ventilation over the alodine tanks
and they had to keep the fumes out of there, and then
they didn't get the fan in at first . At first they put up
like a wooden shield to hold back the fumes, and later
on they eventually put in fans , and they put in the
rest of the alodine tanks and they put in fans. Then
for a while you were gagging in cold , and the dust
would get down your throat.
There were complaints about there being only one drink-
ing fountain located in the office, and the opening of doors
to allow the ingress and egress of trucks , which allowed
cold air to pour in where the girls were working during the
winter season . The record shows, by testimony other
than that of this witness, that there was widespread com-
plaint caused by physical discomfort and poor working
conditions.
On January 11, employees Sandy Thomas, Frances
Newman , and Fayetta Adair initiated a movement among
the employees , urging them to leave their work because
of dissatisfaction with wages and other working condi-
tions. Foreman Reed reported to the plant manager,
Stein , that the employees desired a meeting with Stein to
discuss their grievances , whereupon Stein called Vice
President Newman , at the Company's Hardy Street
plant , informed him of the situation and received New-
man's authority to promise all employees who had been
in the plant for at least 90 days a 5 -cent hourly increase in
pay. The discussion among the employees occurred be-
fore lunch on that day ; and the employees , after lunch,
decided to stage a walkout in protest of working condi-
tions and the failure of the Company to grant promised in-
creases.
When Avas Howard was asked if she intended to join
the walkout, she suggested that either Miklos Sperling,
the owner , or Stein , be given a chance to talk to the em-
ployees. When Foreman Reed was told by Howard that
the Company could be expected to meet trouble if the
meeting with Stein was not arranged, a meeting with Stein
was set up for 3:30 that afternoon. After Reed told
Howard that Stein would meet the employees at 3:30 that
afternoon , other employees expressed a suspicion that
Stein intended to have them clock out from work at 3:30,
that being the end of the 8-hour day. Consequently, most
of the employees called at Stein's office at 2:30 p . m. when
Mrs. Howard, at the suggestion of other employees,
presented their grievances to Stein , and suggested the for-
mation of a bargaining committee to present the em-
ployees' grievances to the Company . According to Stein,
he was told that employee Annie Mason had said that all
the employees wanted to talk to him and that he told the
leadman to tell the employees he would speak to them at
3:30. However , that may be, some 70 or more employees
came to Stein ' s office at approximately 2:30 p . m., after
which Stein explained that while he could not speak for
prior supervisors, he had the authority to announce a 5-
cent increase in pay.
In connection with the events of the morning of Janua-
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ry 11, Newman testified that at approximately 1 p.m. he
had been called by Stein who had informed him that the
employees at the plant wanted to have a meeting to
discuss raises, wanted to know what steps he intended to
take and what information he could give Stein concerning
raises, that he told Stein that he would call him back; and
later he did and informed Stein that the Company would
grant each employee a 5-cent-an-hour increase if they had
been working there for a period of 90 days or more, and
that he would schedule the proposed wages over a period
of weeks in January. After that, he said, Stein called him
back a little after 2:30 p.m., said he had had a meeting
with the employees, that the general trend of the meeting
was that they were unhappy with what Stein had told
them, that they were promised 10-cent to 25-cent-an-hour
increases and that Stein had informed him, Newman, that
if he did not come out to the plant within a half hour's
time the employees were going to walk out at 3:30. New-
man said he told Stein he wanted a few minutes to think
about the situation and would call him back; subsequently
he did return Stein's call and told him "that at the present
time the best we could do for the employees was give
them a nickel an hour raise, and if they decided to walk
out at 3:30 to let them go, but to inform them that we
would open the doors for work tomorrow at 7 o'clock in
the morning." That evening, according to Newman, he
and Stein met with their attorney, and upon his advice
considered the actions of the employees to be a walkout
or form of a strike, and he decided that no action could be
taken at that time; then it was decided that "we would call
a meeting in the morning of all the employees and discuss
the management position on the matter to all the em-
ployees." Newman said that on the following morning he
arrived at the Shadeland Avenue plant about 6:40 a.m.,
asked Stein to call the supervisors in the office, and then
told the supervisors present (Stein, Roberts, Reed,
McKenna, Egnell, Wilford, and Herbie) to tell the em-
ployees that there would be a meeting at 7:15 a.m. in the
quality control room.
On January 11, after the afternoon meeting with Stein,
employees including Sandy Thomas, Frances Newman,
and Fayetta Adair talked to other employees, mentioned
their dissatisfaction with the result of the meeting, and
urged the employees to clock out. At that time Mrs.
Howard thought that the employees should first talk to
Newman or Sperling before leaving, that she thought
Stein was a fair man and she did not believe the em-
ployees were being fair to him since he had been plant
manager for a comparatively short time. When Stein
learned that employees were not working he walked out
into the plant, and observed four or five girls at the bur-
ring table who were not at work. He testified that when he
approached the table, Carla Marcum told him that the
employees needed a 10-cent raise since 5 cents was not
enough, and Mrs. Howard informed him that the em-
ployees were going to walk out if they did not receive a
10-cent raise. Stein replied that he did not have authority
to give the 10-cent increase but would talk to Newman;
Mrs. Howard, he said, informed him that if Newman was
not at the Shadeland Avenue plant in half an hour, the
employees would walk out. It was then that Stein again
called Newman, who said that he could not possibly be at
the plant by 3:30 p.m. and that if the employees decided
to leave to let them go. Stein was told to notify the em-
ployees that the plant would be open for work at 7 a.m.,
January 12. After that, many of the employees left the
plant approximately 3:30 p.m., 2 hours prior to their
scheduled quitting time, a number of them leaving at that
time because they would not have rides if they stayed
until 5:30, while others left with the consent of their lead-
men who had advised them that they might as well go
home since there were not enough employees to run the
plant. According to Stein, when he told the employees
that the plant would be open the next day at the usual
time, no employee indicated that he or she would not
return for work on the following morning.
The great majority of the employees clocked out about
3:30 p.m. As they were leaving the plant, Mrs. Howard
told Foreman Egnell and Reed that the employees in-
tended getting in touch with the Union and possibly the
National Labor Relations Board.
The testimony of Stein does not differ in material
respect from the employees called to testify on behalf of
the General Counsel and the Union. He said that on the
morning of January 11, he was informed by one of the
leadmen at approximately 1:05 p.m. that two of his girls
had asked to get off early because all of the girls were
going to walk out at 1:30, whereupon Stein asked him to
go back and to try to find out what it was all about. Later
the leadman, Reed, returned with Don Roberts, leadman
in the alodine tank department, reported back to him,
whereupon Stein telephoned Newman, and told him what
was taking place. He requested Newman to give him a
definite answer concerning wage policy and reminded
Newman that "we had been waiting for it for approval
from Mr. Sperling for this wage policy that was worked
up, and I asked him if he couldn't give me approval so
that I could talk to these girls at 1:30, and told him so far
as I knew they were going to walk out at 1:30, so I needed
to know pretty quick." Stein went on to relate that about
1:20 p.m. one of the leadmen informed him that employee
Anna Mason had talked to him and said that she and the
girls wanted to see him; Stein said that he would talk to
the employees at 3:30 and asked the leadman to inform
the other leadmen of the fact. Stein said that Newman
called him back and told him that he, Stein, had the
authority to grant the 5-cent increase based upon the
schedule given to Stein, and that as to those who had al-
ready been with the Company for 90 days, they would be
given a 5-cent increase provided their foreman thought
they merited it. This was about 2:30 in the afternoon;
Stein was in the heat treating department, and said, "I
suddenly looked up and noticed there wasn't anybody in
the processing department. And so I started walking up
through the plant and noticed the employees streaming
into the front door. So I walked up, and pushed my way
through, and asked everyone that was still on their way to
come on in, so that they all could be in the office ahd hear
whatever was going to be said." The employees crowded
in the lobby just outside Stein's office door. He said that
when he asked them what "this was all about, as though
I didn't know," Avas Howard said "they were in there
because they had been promised raises by former plant
managers, that they were getting tired of it, and that they
now wanted a definite answer from me." In reply Stein
testified he said:
Well, I said I was sorry they had jumped the gun
because, Newman and I have been working ever
since we arrived there on a wage policy, and that we
had hoped to make an announcement this week, but
they had beaten me to the punch. So I then told them
about the 5-cent increase. First I said that I couldn't
vouch for the statements that were made by former
plant managers, I didn't know whether former plant
MERZ ENGINEERING COMPANY 249
managers had promised them anything, or to whom,
or how much, or if they had promised them. So then
I related the wage schedule that we had formulated.
And as I was reading it there was a murmur of dis-
sent when I talked about a nickel. And then after I
was completed Anna Mason said, "well, 10 cents
isn't enough," that they had been promised more;
Carla Marcum said that she has to pay a babysitter,
she couldn't live on the wage; and I said, well, I was
sorry and sympathetic, but at the moment this was
felt the best the Company could do. And then I took
a little time to tell them about the high cost of startup,
and the fact that we were getting to the contract on a
lower price, and that it was incumbent upon us to
show what we could do, and to lower our price of
producing this equipment because we knew there
was going to be additional I.F.B.'s or invitations to
bid on future contracts, and the same product, and if
we could get our price down so that we were the suc-
cessful bidder we could keep this operation going,
and that our goal should be to make this a permanent
division of the Merz Engineering Company. Also
there were some complaints about the cold in the
plant. And I took some time to talk about that, that
the reason for the cold was not that we didn't have
enough heat in the plant, but that the door had to be
open for so long to take the material in and out, and
that we were at that time waiting for a proposal on
providing remote controls for opening and lowering
the doors so that the towmotor driver when he was
on his way out, before he got to the door he could
press a button, open the door, as soon as he got out
there would be another button out there so that he
could close the door, and I felt that with this device
it would eliminate the cold air blowing in, that
anything else we did was really, it wouldn't solve the
problem. Avas said that she had trouble with her
tools. And I said, "we've only been here a short time,
we've already made some changes, and we're cer-
tainly going to keep after this, and we'll make all the
changes that are necessary to allow you people to do
a good job."
Stein went on to testify that after the meeting and
within the next half hour, after being informed that a
group of girls were not working but were talking in the
processing department at the burring tables, he went out
immediately, observed only four or five girls who were
not working but were talking, whereupon he asked "well,
what's the trouble now - what's the problem." Marcum
then said they would have to have 10 cents, that 5 cents
was not enough, to which he replied that he had told them
what the Company could give at the time, that Howard
said "well, we're going to have to have 10 cents or every-
one is going to walk out" and when he replied that he
would have to talk to Newman, Howard replied that he
had better talk to Newman and had better get him over
there in half an hour. Stein pointed out that a half hour did
not give him much time but he would convey the message
to Newman and that when he left the girls Howard in-
formed him in a loud voice to tell Newman that he had
just half an hour to get over to the plant or "we're all
walking out." He said he did call Newman, that Newman
returned his call and told him that he, Newman, could not
get to the plant in a half hour, and instructed Stein to in-
form the employees that the Company could not grant a
larger increase, and to inform the employees "that we
would be open for work in the morning." At this point, ac-
cording to Howard, Stein said that if she wanted to leave
that she could, that he could not stop her, that she could
punch out the timecard to which she replied that if she
punched hers out she felt sure a lot more would do the
same thing; that Stein replied he could not stop them, but
the factory would be open for work the next morning.
Howard said "and upon that, why, the other girls were
standing around and heard him, they all starting circulat-
ing, and they all walked out, down to the very last person
in the plant left." Stein agreed that he told Howard that he
hoped she would not walk out but if she did he could not
stop her but that if she was going to stay she would have
to work or have to punch out. Stein returned to the front
office after this, and while he did not observe the em-
ployees punching out he did notice people beginning to
walk towards the timeclock area.
Stein testified to a meeting he had with his leadmen that
afternoon after the employees left:
Well, I thought originally they had all left for the
same reason, but after we had this discussion it
became evident to me that there had been some mis-
understanding between me and the group leaders and
probably between the group leaders and some of
their people, because they said many of their people
for one thing had rides or riders and therefore they
had to leave, they had no other way to go home, and
other people came to their leadman and would say,
"well what should we do? Most of the people are
going home." So their foreman said, "well, there
won't be enough here to run the department, so go
ahead."
On the afternoon of January 11, after leaving the plant,
Mrs. Howard first communicated with a representative
of the National Labor Relations Board and later with
Lewis Strickland, an International representative of the
Union. Howard and Sharon Ropp met that evening with
Strickland at the home of Mrs. Howard, when Strickland
furnished them with blank union authorization cards and
agreed to meet with them at the plant on the following
morning to assist them in their effort to organize the em-
ployees of the plant.
The Events of January 12 and Subsequent
Discharge of Employees
On the morning of January 12 Avas Howard drove to
the parking lot at the plant where she met International
Representative Strickland about 6.10 a.m. Sharon Ropp
arrived about the same time as Howard, who had picked
up another girl to bring to work. Howard, Ropp, and
Meda Hillman then passed out union authorization cards
and solicited signatures in the parking lot. Strickland left
about 6:40 a.m. to return to and open the union hall. The
girls continued passing out cards for perhaps 15 or 20
minutes, according to Howard, and while the girls were
standing in the parking lot talking she observed Foreman
Egnell come to the door, saw some of the employees start
to go in, and was told by one of the girls that there was
going to be a meeting "and so we all went in then at 7
o'clock." As Howard entered the plant, she held some
union cards in her hand. She encountered Roger Gayer,
he asked her if "we" had clocked in and she answered
"no," whereupon he told them they had better stand by
the timeclock. Included in the group were Meda Hillman,
Sharon Ropp, Mary Capps, Patty Warren, and Patty
Freije, none of whom had clocked in. They saw Sandy
Thomas clock in; Thomas previously had signed a union
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card in the parking lot and after she had clocked in "she
stood there smiling and tore her union card up." She is
said to be the fiancee of Bob Reed . 3 Howard told Thomas
she did not know why she bothered to sign the card and
while the group of girls was standing there, she said, Stein
and Newman appeared and told them if they were not
going to work they would have to leave the premises;
Howard said "we wanted to hear the meeting " and New-
man replied " you are just a trouble maker ; leave the
premises." Howard further testified that she agreed and
as she started to leave, walking toward the door, Stein
took her by one arm and Newman by the other and
"shoved me out the door ." She, together with Capps,
Ropp , Warren , Freije, and Hillman left the plant and went
to the union hall.
Avas Howard and Sharon Ropp signed union
authorization cards and gave them to Strickland at
Howard ' s home on January 11. Patricia Freije, Mary
Capps, Patricia Warren , and Meda Hillman signed
authorization cards on January 12 in the parking lot at the
plant. Each employee authorized "UAW to represent me
in collective bargaining ," the obverse of the card carrying
the statement , "this card will be used to secure recogni-
tion and collective bargaining for the purpose of negotiat-
ing wages , hours, and working conditions . YOU HAVE THE
RIGHT UNDER FEDERAL LAW TO ORGANIZE AND JOIN A
UNION BY JOINING THE UAW-AFL-CIO YOU HAVE THE
SUPPORT OF ONE OF THE WORLD'S LARGEST UNIONS."
As above noted , Sandy Thomas also signed a card on the
morning of January 11, but tore it up in the presence of
other employees.
Sharon Ropp testified that she arrived at the plant
about 6:30 a.m., that people start coming to work just
shortly after , and she assisted in passing out cards for per-
haps 15 or 20 minutes. She said that they had passed out
almost all of the cards they were able to when Egnell
came out, saw a group of girls standing in the parking lot,
and said "anybody who is going to work today get in there
and clock in . If you don ' t get in there and clock in and go
to work , and stop milling around in the parking lot, you
will be fired ." He told them that he wanted them in the
plant , not on the parking lot. Ropp testified , in connection
with the occurrence at the timeclock, that:
Well, we stood there by the timeclock , it was kind
of crowded there, they had boxes piled up all around
there, and there were several people there, and a lot
of us stood there, and a lot did clock in , I seen several
clock in, and we were all milling around wonder-
ing-we heard in the parking lot there was going to
be a meeting , and we were wondering about the
meeting, we were just more or less milling around
wondering what it was all going to be about. There
was a few that went to where they were supposed to
be. The work areas.
We were standing there, and one of the guys in heat
treat , Lyn [Howard ] come in, one of the guys in heat
treat asked Lyn for one of those cards, I don't re-
member if this was before Mr. Newman and Mr.
Stein came out or after, but I think she was handing
him a card when Mr. Stein or-whichever one seen
9 Thomas had been one who was most active on the morning of January
I I in her urging the employees to take concerted action concerning their
wages and working conditions
4 Avas Howard denied specifically that she solicited or obtained the
her ... because they started escorting her out the
door on either side of her, Mr. Newman was on the
one side, Mr. Stein was on the other side.
They were at a fast trot around the plant, they
weren 't running or anything but they were coming,
they did come back there to the time clock pretty
fast, and he waved his arm . Mr. Stein waved his arm
and said , "get out; get out," and I don 't remember if
he said anything else , if he did I don 't remember, it
was kind of confused with all the people there, but I
know he said , "get out," I remember that real well.
At the time Howard and the other employees , at least
some 15 to 20 in number , were standing around the
timeclock , Mrs. Howard had authorization cards in her
hand . It appears that some employee notified Stein and
Newman as she was out at the timeclock distributing
union literature during working hours, and it was then
that they went to the timeclock area where, they said,
Howard was observed passing out a card to an employee.
According to Stein , he told her that she would have to
leave since she was not permitted to distribute union
literature during working hours ; that Mrs. Howard ar-
gued that she had a right to do this and began walking
toward the main part of the plant ; that he told her that she
would have to leave by the back door and began to escort
her out of the plant. After Stein released her , Stein said
that she passed out still another union card to an em-
ployee who had come over from another area of the plant,
whereas Howard said that on the way out one of the men
in the alodine department asked for a card and she handed
it to him . It was then that both Stein and Newman physi-
cally escorted Mrs. Howard immediately out of the back
door of the plant . Outside the plant , there was some
discussion between Stein and Howard and she again as-
serted , according to Stein , that she was within her rights
and Stein replied that she could not distribute cards or
union literature during working hours on the Respond-
ent's premises, and told her she could go out on the
public street if she desired . Seven of the employees who
were standing near the timeclock area when all of the
above occurred left the plant with Mrs. Howard. These
employees included Sharon Ropp , Meda Hillman,
Patricia Warren, Patricia Freije, Mary Capps , Carla Mar-
cum, and Carolyn Farr.4
It appears that after the eight employees had left the
plant four of them got into one automobile and three into
another, while Mrs Marcum remained outside the second
car talking to its occupants.
James M. Arbuckle , at that time quality control
manager and presently assistant program manager and
director of quality control for Metz , testified that he ar-
rived at the plant on January 12 at approximately 6:55
a.m., entered the plant by the front door , observed no em-
ployee activity outside the plant, opened his office and
then went out into the shop . He said that he noticed some
of the employees were busy and some of them were not
and that a few people were in the back end of the shop.
He started toward the back end and met Newman coming
through the receiving-inspection area, walked with him to
the backdoor and noticed an automobile there with four
women and a man in it and that he observed.
signature of any cards while she was in the plant and that she gave a card
to the employee who asked her for one , that while in the plant, the em-
ployees gathered there did not discuss the Union but were talking about
the meeting that was supposed to be held that morning
MERZ ENGINEERING COMPANY 251
Carla was standing, as I recall, standing to the side of
the car, and she was standing on one leg with the
other leg resting on the edge of the car. And Mr.
Newman spoke to her, and then asked - she kind of
bent over actually, and asked the entire group, of
course excluding the man, if they would reconsider
and come into the shop and listen to the meeting.
*
Mrs. Ropp in particular said that, no, because they
would be fired, and at this Mr. Newman said, "no, I
assure you you will not be fired."
* * * * *
Mr. Newman turned around after he told the girls he
would assure that they would not be fired, and
started back into the building. And just right after
that Carla said, "well,- come on Carolyn, let's go to
the meeting," and Carla did there take her foot off
the car and started in, and Carolyn followed her.
Arbuckle recalled hearing Mrs. Howard ask Newman if
they could assume that they were being fired because of
their union activities or because they did not attend the
meeting and because of union nature or something of that
nature and that' Newman responded no, that they were
not. He related:
And he said specifically the girls that had come to the
meeting, or had come to Shadeland Plant to go to
work and did not go to work, and left without permis-
sion , and without telling anyone that they were leav-
ing, they were being terminated for that cause. How-
ever, in Avas' particular case, she was being fired
because she was passing out union cards on company
property on company time, and would not discon-
tinue doing that when she was asked to do so.
On the way out of the parking lot, on their way to the
union hall, the car driven by Howard encountered em-
ployees Hess and Garten, who agreed to meet at the
union hall with the other employees. The eight employees
who were at the union hall conferred with Strickland,
telling him they would be fired if they went back to the
plant, and he telling them that they would not be fired, in-
structing them to go back, punch in their cards, and at-
tempt to organize the employees outside of company
time. After waiting at the union hall for something over an
hour, these employees returned to the plant, found their
timecards removed from the rack, and they then (with the
exception of Capps) met with Newman, Stein, and Ar-
buckle in Stein's office, where they were told that they
were terminated
At the meeting called by Newman with the employees
about 7:15 a.m. on January 12, he explained the position
of the Company and his various problems connected with
the operation of the Shadeland Plant encountered during
the few months it had been in operation. He testified that
nothing whatsoever was mentioned about the Union at
5 Mary Capps did not enter the plant after returning from the union hall
because she became ill and remained outside
6 Robert L McLaughlin , an attorney of record in this case , testified
with respect to an attempt by him to interview Avas Howard at her home
on May 3, at approximately 7 30 p.m He said that he had informed Mrs
Howard that he was an attorney for Mertz Engineering Company, that he
was investigating an unfair labor practice case , and would like to ask her
a few questions , that he told her she did not have to talk to him if she
didn't want to, that Mrs Howard told him that she was having company
that meeting, and it was not until after that that he,
together with others, arrived at a decision with respect to
the employees who had left the plant. After the meeting,
he said, he decided to discharge the eight employees who
had left the plant. This decision was made, he said,
because of the important Government contract involved
and because the Company felt it could not afford to have
employees leave the plant when they felt like it without
giving any explanation as to why they were leaving or
whether or not they would return.
During the course of his discussion with the em-
ployees, Newman mentioned the war effort and ex-
pressed his belief that when the employees left the plant
that morning it was a form of sabotage. The employees,
at this meeting, maintained they had left because they
were told to leave. Their claim was denied by Stein and
Newman, who said that the only person who was told to
leave was Mrs. Howard. According to Newman and
Stein, one of the girls, speaking for the others, said that
the employees had been told that they would be
discharged if they punched their cards in late; that New-
man said this was not the fact, as shown, because two of
the girls had returned to the plant when he had talked to
them on the parking lot, and that the greater number of
the employees had remained and punched in and were
then engaged at work in the plant. At this same meeting,
as above related, Newman placed the position of the
Company on his expressed belief that when the em-
ployees left the plant without permission they had en-
gaged in a form of sabotage; that Howard was being
discharged because she was passing out union literature
on company premises during working hours in violation
of a company rule and that she had objected to stopping
the practice when told to do so. The other employees
were informed that they were discharged because they
left the plant without permission , had given no reason for
leaving, and did not say where they were going or if and
when they would return.5
Avas Howard, Meda Hillman, Sharon Ropp, Patricia
Warren, Mary Capps, and Patricia Freije all testified at
the hearing, and I accept them as most credible witnesses
in connection with the facts above related.',
I consider the following testimony of Howard, substan-
tially undisputed, to be of significance.7
Q. [By Mr. Zasas] Once again, tell me what was
said at this meeting.
A. Well, Mr. Newman said that in his opinion that
when we had walked out that we had committed an
act of sabotage. And I don't believe it is sabotage. I
think Mr. Newman needs to look up the meaning of
the word sabotage.
Q. That's what you told him at the time:
A. Yes, I did say it.
Q. All right. What else did he say9
A. And he said, well, it was a regrettable situa-
tion, and an unpleasant task that he had to perform,
that we hadn't told him that we were calling in a
union . And I told him that we had let it be known,
right then to which he replied he just wanted to ask a few questions and
would take only a few minutes, that they walked into the house when Mrs
Howard told him that it was all a matter of record "down at the Labor
Board, I gave them a statement" and that after a few minutes Mrs
Howard's husband told her she did not have to talk to anyone from Merz
and if "this man is not from the Labor Board he can get out " Why
McLaughlin was called as a witness I do not understand
' Cross-examination.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I said we had asked for a bargaining committee
which had been literally refused in a sense, and I said
we had told the foreman that the union was going to
be out there, so if he hadn't been notified of it it was
his foreman's fault, not ours.
Q. Now, how did this discussion of the union
begin, can you tell me that?
A. Well, Mr. Newman said he thought we was un-
fair in calling in the union, that we hadn't told him
anything about it.
Q. And then you explained that you felt you had.
A. Yes, sir.
Q. Now, how did the subject of-when he said
that he felt you were being unfair because you hadn't
told him you were calling in the union, but that the
first mention of the word Union in that meeting?
A. Well-
Q. Or had you said something about the union,
that you had been to the union hall, or something of
that sort?
A. I don't recall whether I had or not.
Q. Do you believe that just sort of out of thin air
he said "it was unfair because you didn't tell me you
were calling in the union?"
A. Well, we were arguing, I mean you don't re-
member everything exactly that you say when you're
arguing, or how it comes about.
Q. All right. You don't remember how that came
about.
A. No, I do not, sir.
Q. But at some point he was in effect saying to
you that he had not been informed that you were
seeking the help of the union.
Q. And he felt that it had been unfair that he
hadn't been told that.
A. Yes, sir.
Q. All right. Then after that was anything further
said about the Union?
A. Well, he kept coming over, kept going over the
fact that it was regrettable situation, and an un-
pleasant task that he had to perform, and all that, and
he had repeated it three or four times. And finally I
asked him, I said, "well, then, are we to assume that
you are firing us for this and the union?" and he said
yes.
Q. What is "This?"
A. Well, for walking out.
Q. All right. Anything else?
A. No.
Q. Do you remember any other mention of the
Union during this meeting other than the two state-
ments'you have told me about?
A. Well, he was talking to the others; we were all
talking about the union, about a bargaining commit-
tee, and everything.
Q. This referred to the thing of the previous day,
wanting to get a bargaining committee, etc.
A Yes.
Taking this cross-examination in connection with the
purpose of Newman's morning speech which, he said,
was to "talk to the employees to get them to understand
the Company's viewpoints on this before they decide to
take any action," and his feeling that by having the meet-
ing they could talk to the employees and reason with
them, in conjunction with all of the other facts developed
concerning the circumstances and occurrences of January
II, leads me to believe that the Company, through its top
management, engaged in interference with the right of
employees to concerted union activity. It is undenied that
Egnell told the employees in the parking lot on the morn-
ing of January 12 that they would be fired if they did not
clock in. On the previous evening, when the employees
walked out of the plant, Stein told them that the plant
would be open at 7 a.m., with the implication that the em-
ployees would be required to report back to work on the
following morning. The walkout on the afternoon of
January I 1 was only because of the concern of the em-
ployees about broken promises concerning wages and
shift differentials and their protest against poor working
conditions.
At Newman's meeting with the employees on the
morning of January 12, he called the roster of employees
by calling off their names on timecards given to each em-
ployee as he or she came up to put his or her card in the
timecard rack. Among the persons who did not answer
their names was one Lloyd Backemeyer, and Newman
endorsed on his card "dismissed 1/ 12/67 for not reporting
to work on time." Backemeyer had punched out early on
Wednesday, apparently did not work Thursday, January
12. Later an excuse given by him was accepted and his
discharge was rescinded. It should be noted that the eight
employees went to the union hall on January 12 were
discharged. Backemeyer, before his reinstatement, had
explained to Newman that he had not been to the UAW
hall on January 12.
The testimony of Howard to the effect that she told
Foreman Egnell and Reed on the evening of January 1 1
that the employees intended to take the matter up with
the Labor Board or the Union is unrefuted. There is a
strong, if not unrebuttable presumption, that Newman
knew where the employees were bound when they left the
plant on the morning of January 12, he having testified
that the employees met employees Hess and Garten driv-
ing in, that they stopped and talked to the two men, "and
then I was told the two fellows turned around and fol-
lowed them back out." From this he said he assumed that
they came to work that morning a little bit late, and then
when they found out where the female employees were
going, they followed.
The "No-Solicitation" Rule
The contention of the Respondent, supported mainly
by the testimony of Stein, is to the effect that Avas
Howard violated a no-solicitation rule on the morning of
January 12, when she was in the plant, near the
timeclock, holding union authorization cards in her hand.
There is no showing made by the Respondent that there
was such a rule, either narrow or broad, in effect until it
was asserted by Stein during the course of the hearing
that Howard had been fired for violation of such rule. It
appears, too, that Stein was not sure that the reason for
the discharge of Howard was for violation of a rule
against solicitation. Even were such a rule ever in effect,
it becomes meaningless as a basis for the discharge of
Howard in the whole context of this case.
The Threat to Close the Plant
In support of the amendment allowed to the complaint
at the hearing, counsel for the General Counsel called
Meda Hillman, who testified to the overhearing by her of
a conversation between Miklos Sperling and employee
Mary Frances Goostrie during which conversation Goos-
MERZ ENGINEERING COMPANY
trie asked Sperling about a 10-cent increase in pay; she
said that Sperling asked her "what dime?" and that Goos-
trie said then that "if we got a union here , we would get
our dime raise and we could probably get more than a
dime." Further , according to Hillman , Sperling became
angry and told Goostrie that if he ever heard anything
about a union coming into the plant he would close the
plant down , fire employees , and probably hire new girls
to take their place . According to Hillman , Goostrie "was
just kind of joking"; that after Sperling had said that he
would close the plant , fire "you girls and I ' ll just get new
girls probably," walked away. On behalf of the Respond-
ent, proof was offered to show that Sperling was absent
from Indianapolis during the 3 days when Hillman and
Goostrie were at work at the same time, these days being
November 9, 10, and 11 , 1966. Security reports offered
do not cover the entire time worked on all shifts on work-
days, so that if Sperling visited the plant on any one of the
3 days when both Hillman and Goostrie were at work on
the same shift , any visit to the plant during all parts of the
whole time would not have been recorded by the security
officers. Ina Joanne Schube, employed as Sperling's
secretary , testified that Sperling was out of the city during
the times he was supposed to have been at the plant and
at the time he was supposed to have made the alleged
threat . She identified certain airline statements which on
their face show the purchase of tickets to points outside
of Indianapolis for the use of Sperling and his wife on the
dates mentioned . The airline records in themselves are in-
conclusive , since they show only the dates on which
charges for tickets were made; they do not show the dates
of actual use of the tickets. Goostrie did not appear as a
witness. Sperling did not testify directly on the point. The
evidence , therefore , is inconclusive beyond resolving the
question of credibility as between Hillman and Schube.
After hearing and observing the witnesses , and giving due
weight to the conflicts involved in the testimony, I am
inclined to credit Hillman and find that she did overhear
a conversation to the general effect as testified to by her.
Concluding Findings
The employees of the Respondent on January 11 and
12, it is found , by engaging in the activities described
above, engaged in concerted protected activity within the
meaning of Section 7 of the Act; and the Respondent, by
discharging some of them by reason of such activities, en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act. The walkout involved here
grew out of a "labor dispute" within the meaning of Sec-
tion 2(a); and assuming that the Respondent did have an
established rule for bidding employees to leave their work
without permission , it was notjustifiable "cause" for their
discharge The appearance of the employees at the plant
after their meeting with Strickland on the morning of
January 12 constituted clear notice to the Respondent of
their readiness to return to their jobs ; and the statements
of Newman at the subsequent meeting was a plain rebuff
to an unconditional offer to return to work.
The activities and statements of Newman and Stein, in
Stein ' s office, and the speech of Newman at the time
made constitute interference and coercion within the
meaning of Section 8(a)(1) of the Act . I so find.8
253
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship 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 cer-
tain unfair labor practices it will be recommended that it
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent had discriminated
in regard to the tenure of employment and by refusing to
reinstate or reemploy the above-named employees it will
be recommended that the Respondent offer them im-
mediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges , and that each be
made whole for any loss of pay he or she may have suf-
fered by reason of the discrimination , by payment to him
or her of a sum of money equal to that to which he or she
would normally have earned as wages from the date of the
discrimination to the date of the Respondent 's offer of
reinstatement , less his or her net earnings during such
period, with backpay computed on a quarterly basis in the
manner established by the Board in F . W. Woolworth
Company, 90 NLRB 289, 294 , and with interest thereon
as prescribed by the Board in Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the foregoing findings of fact, and upon the whole
record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is now, and has been at all times
material herein , an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is, and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminating in the tenure of employment and
the discharge of Patricia Freije, Meda Hillman, Mary
Capps, Patricia Warren , William J . Hess, Charles W.
Garten, Avas A. Howard , and Sharon Ann Ropp, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of the Act and by such dis-
crimination is thereby interfering with , restraining, and
coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, and has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8 (a)(1) and (3) of the Act.
4. Since on or about January 12, 1967, the Respond-
ent, by refusing to reinstate the above -named employees
upon their unconditional offer to return to their former or
substantially equivalent positions of employment, and by
continuing to fail and refuse to reinstate said employees
to their former or substantially equivalent positions of
" N L R B v Washington Aluminum Co , 370 U S 9, reversing 291
F2d869 [ 126 NLRB 1410]
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment , or to reemploy said employees has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
5. The Respondent by promulgating and enforcing a
rule prohibiting solicitation and distribution of literature
on behalf of the Union since January 12, 1967, has en-
gaged in and is engaging in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
6. The Respondent , on January 12, 1967, by threaten-
ing to discharge and otherwise discriminate against em-
ployees for engaging in protected concerted activity
within the meaning of Section 7 of the Act has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The unfair labor practices mentioned herein are un-
fair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
signed by the Respondent ' s representative , shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
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 Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.10
IT FURTHER IS RECOMMENDED that unless the Re-
spondent complies with this Recommended Order, an
Order be entered by the Board requiring the Respondent
to comply with the provisions of the Recommended
Order.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclu-
sions of law , and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended , I recommend that Miklos Sperling, an
individual , d/b/a Merz Engineering Company, Special
Products Division , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees
by discriminatorily discharging any of its employees, or
by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of
employment.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their right to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities except
to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment, as authorized by 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, it is
found, will effectuate the policies of the Act:
(a) Offer to Patricia Freije, Meda Hillman, Mary
Capps, Patricia Warren, William J. Hess, Charles W.
Garten, Avas A. Howard, and Sharon Ann Ropp im-
mediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their
seniority or other rights and privileges, discharging if
necessary any employees hired to replace them.
(b) Make whole said employees in the manner set
forth in the section of this Decision entitled "The
Remedy" for any loss of pay they may have suffered by
reason of the Respondent 's discrimination against them.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant on Shadeland Avenue in Indi-
anapolis, Indiana, copies of the attached notice marked
"Appendix."9 Copies of said notice, to be furnished by
the Regional Director for Region 25, after being duly
0 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 25, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage concerted activity by
discriminatorily discharging any of our employees or
in any other manner discriminating against them in
regard to their hire and tenure of employment or any
other term or condition of employment.
WE WILL NOT in any like or related manner inter-
fere with , restrain, or coerce our employees in the ex-
ercise of their right to engage in concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection , and to refrain from any and all
such activities except to the extent that such right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act, as
modified by the Labor -Management Reporting and
Disclosure Act of 1959.
WE WILL offer Patricia Freije, Meda Hillman,
Mary Capps, Patricia Warren, William J. Hess,
Charles W. Garten, Avas A. Howard, and Sharon
Ann Ropp, immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to any seniority or other rights and
privileges previously enjoyed , and make them whole
for any loss of pay suffered as a result of the dis-
MERZ ENGINEERING COMPANY 255
crimination, discharging if necessary any persons presently serving in the Armed Forces of the United
hired to replace them . States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
MIKLOS SPERLING, AN IN- Universal Military Training and Service Act, as
DIVIDUAL, D/B/A MERz EN- amended, after discharge from the Armed Forces.
GINEERING COMPANY, SPE- This notice must remain posted for 60 consecutive
CIAL PRODUCTS DIVISION days from the date of posting and must not be altered,
(Employer) defaced, or covered by any other material.
If employees have any question concerning this notice
Dated By or compliance with its provisions, they may communicate
(Representative) (Title) directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana
Note: We will notify the above-named employees if 46204, Telephone 633-8921.