Monroe Auto Equipment Co.

National Labor Relations Board - Board Decisions

Jun 30, 1965

153 N.L.R.B. 912 (N.L.R.B. 1965)

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from becoming or remain-
ing members of Sheetmetal Workers International Association, AFL-CIO, or any
other labor organization.
ARDUINI MANUFACTURING CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone
No. 523-8100, if they have any questions concerning this notice or compliance with
its provisions.
Monroe Auto Equipment Co., and Midwest Employers Council,
Inc., and John E. Tate and International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers of Amer-
ica, AFL-CIO. Case No. 17-CA-2463. June 30, 1965
DECISION AND ORDER
On March 15, 1965, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that Respondent
Monroe Auto Equipment Co. (Monroe), had engaged in and is engag-
ing in certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. He also found that
Respondents Midwest Employers Council, Inc., and John E. Tate had
not engaged in certain unfair labor practices alleged in the complaint.
Thereafter, Respondent Monroe filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The Charging Party
filed exceptions to the Trial Examiner's Recommended Order dis-
missing the complaint with respect to Respondents Midwest Employ-
ers Council, Inc., and John E. Tate.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
153 NLRB No. 69.
MONROE AUTO EQUIPMENT CO., ETC. 913
in the case , and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Respondent, Monroe Auto Equipment Co., Cozad, Nebraska, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.2
It is further ordered that the allegations of the complaint charging
Respondents Midwest Employers Council, Inc., and John E. Tate with
violations of Section 8(a) (3) and (1) of the Act by, and they hereby
are, dismissed.
'We agree with the Trial Examiner's recommendation to, dismiss the complaint as to
Respondents Midwest Employers Council, Inc, and John E. Tate We thereby reject
the Charging Party's contention, raised by its exceptions, that Schwenk's undenied testi-
mony establishes a violation on the part of these Respondents. Schwenk, who was then
employed by Monroe as a supervisor, testified to a conversation he had with a number
of other supervisors during the Union's organizational campaign, in which they told him
that Tate (vice president of Midwest which was acting as Monroe's counsel on labor mat-
ters ) had outlined a plan for defeating the Union by discharging certain active union
adherents, among them Slack, shortly before the election. The Trial Examiner relied on
Schwenk's testimony as to this conversation with other supervisors as relevant back-
ground evidence in establishing Monroe's true reason for discharging Slack, but refused
to predicate an unfair labor practice finding against Midwest and Tate solely on such
hearsay evidence. Schwenk's testimony, unobjected to and undenied, as to what was re-
ported to him about a meeting he had not attended may be given its natural probative
effect. Diaz v. United States, 223 U S. 442, 450; American Rubber Products Corporation
v. N.L.R.B., 214 F. 2d 47, 52 (CA. 7) ; Local 84, International Association of Bridge,
Structural and Ornamental Iron Workers, APL-CIO (South Texas Building Company),
129 NLRB 971, 979. We agree, however, with the Trial Examiner that without further
corroboration Schwenk's testimony is not sufficiently probative to justify a finding that
Midwest and Tate are equally guilty with Monroe in violating Section 8(a) (3) by the
discharge of Slack.
2 The telephone number for Region 17, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 221-2732.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge 1 filed by International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO,
herein called Union or UAW, against Monroe Auto Equipment Co., herein called
Employer or Monroe, Midwest Employers Council, Inc., herein called Council, and
John E. Tate, the Gentral Counsel of the National Labor Relations Board, by the
Regional Director for Region 17 (Kansas City, Missouri), on July 29, 1964, issued
a complaint and notice of hearing. On September 4, 1964, the General Counsel
issued an amendment of the aforesaid complaint. The complaint and the amend-
ment thereto set forth the specific respects in which it is alleged that the Respondents
violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,
herein called the Act. On August 8, in separate answers, the Employer on the one
' The charge was filed on June 10, 1964, and the amended charge on July 17, 1964
79 6-02 7-66-v of 153-59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand, and the Council and Tate, on the other, denied all unfair labor practices with
which they were charged. No formal answers were ever filed to the amendment of
the complaint which the General Counsel subsequently issued.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E.
Mullin at Lexington, Nebraska, on September 15, 1964. All parties appeared at the
hearing and were given full opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally at the close of the hearing, and to file
briefs. The General Counsel and the Respondents engaged in brief oral argument
with respect to the allegations as to the Council and Tate. The parties waived oral
argument with respect to other allegations in the complaint. Subsequent to the
hearing, briefs were submitted by the General Counsel and the Respondents.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT EMPLOYER HERE INVOLVED
Monroe is a Michigan corporation licensed to do business in the State of
Nebraska. In addition to facilities elsewhere it has a plant located at Cozad, Ne-
braska, where it is engaged in the manufacture, reconditioning, and wholesale distri-
bution of automotive shock absorbers. At the Cozad plant the Company receives
products, goods, and materials valued in excess of $50,000 annually, from outside
the State of Nebraska. Upon the foregoing facts the Employer concedes, and I
find, that Monroe Auto Equipment Co. is engaged in commerce within the meaning
of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Respondents concede, and I find, that the Union is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Union began its organizational efforts at the Employer's Cozad plant in 1963.
In Monroe Auto Equipment Company, 146 NLRB 1267, issued on May 4, 1964, the
Board found that during 1963 the Company had engaged in an antiunion campaign
wherein it had committed extensive violations of Section 8(a)(1) of the Act. The
present case is based on the events which transpired during the months of April, May,
and June, 1964. About May 1 a Board hearing was held on a union petition to
represent the employees of Monroe. Thereafter, and pursuant to a Decision and
Direction of Election by the Regional Director on June 5, 1964, an election was
held at the Employer's plant which the Union lost. The day before that election
Burton Slack, an employee, was discharged. According to the General Counsel, his
dismissal was designed either to bring about a postponement of the election and/or
to intimidate the employees to vote against the Union. These allegations were
denied in their entirety by the Employer, according to whom Slack was terminated
because of his contemptuous conduct toward Ollie Goa, his foreman. The matter
of Slack's dismissal is the principal issue in this case.
B. Contentions of the parties with respect to the alleged violations of the Act by
the Respondent Monroe; findings of fact and conclusions with respect thereto
Burton Slack, an inspector on one of the production lines, was hired in January
1962, and remained in the Company's employ until his discharge on June 4, 1964.
During his first year of employment he worked on the third shift from 3:30 p.m.
until midnight. Thereafter, he was transferred to what was known as the second
shift from 7 a in. to 3 30 p in and remained on that shift until his termination.
Slack was an early supporter of the UAW and was a member of the plant organiz-
ing committee. His foreman on the second shift was Ollie Goa, quality control
manager at the factory. Slack's union activities came to the attention of Goa
soon after the employee became interested in the UAW. This was evident from
the testimony of Joseph Schwenk. Occasionally, Slack would exchange his place
on the second shift with an employee on the third shift. When on that shift, his
foreman was Joseph Schwenk. The latter testified that during the period from
mid-1963 to April 1964 when he was a night supervisor, Slack worked for him on
from 12 to 15 occasions. According to Schwenk, whenever this occurred, and prior
MONROE AUTO EQUIPMENT CO., ETC. 915
to the time that Slack was to report for work on the evening shift, Goa emphasized
to him that he was "not to let him [Slack] roam around and talk to the women
and if I caught him in any union activities whatsoever to fire him."
Schwenk further testified as to an incident which occurred at the plant late on
the afternoon of a day during the last week in March 1964. According to Schwenk,
on this occasion, a group of supervisors including some on both the day and night
shifts, were gathered around a coffee table in the plant lunchroom Included in
the group, in addition to Schwenk, were Lyle Bartlett, night superintendent at the
plant, Red Kloepping and Paul Kjar, both foremen on the night shift, and Wayne
Fyfe and Gene Peterson, the latter being foremen on the day shift. Schwenk testi-
fied as follows with respect to the conversation at this time'
Gene Peterson and Wayne Fyfe were talking, one just about as much as
the other, about the meeting that had been held that day with Mr. Tate in
the office, and they were supposed to relay the message to the night foreman
and the night superintendent, and in the course of the meeting, Wayne Fyfe and
Peterson said that Mr. Tate had said that we were supposed to ignore all union
employees as much as possible, just don't pay any attention to them unless it
was strictly business. He also said that there would never be an election in
the Monroe Auto Equipment Company for two reasons, one that as they posted
the notice of the election, they would go right down the line and start firing
union employees, for instance, Burt Slack and Keith Schmit, Bill Kuefelt That
way the UAW would file charges against the company and that would hold
the election off again and we could go through this rigamarole that we did the
time before, which meant nothing, or if the UAW didn't file charges, it would
scare the people so bad knowing that Burt and Keith and the other fellows
got discharged for union activities, they would be afraid they would get dis-
charged for union activity and they would vote the opposite of what they
would vote in the first place.
Schwenk voluntarily left Monroe for other employment in April 1964. He testified
that subsequent to the foregoing conversation he did not discuss the subject of it
with any of the employees until after he had secured a job with another company.
According to Schwenk, at some point during the early part of May 1964 he related
the substance of this conversation to both Slack and Schmit.
Of all the supervisors mentioned in Schwenk's testimony, Respondent Monroe
called only Goa to the witness stand. The latter testified with respect to the
circumstances surrounding Slack's termination, but in no way contradicted or
denied any of Schwenk's testimony and at no time was asked any questions as to
the subject of that testimony by counsel for Monroe. Neither Fyfe nor Peterson
took the stand and no explanation was offered for the failure to call them. Schwenk
was a credible witness whose testimony withstood an extended cross-examination.
In view of this fact, and the further and most important consideration that the
Respondent Monroe did not offer any witness who denied or contradicted it in any
way, the testimony of Schwenk must be, and is, found by me to be a credible account
of the incidents about which he testified
On about May 1, 1964, the Regional Director held a hearing on the Union's
petition for a representation election in Monroe Auto Equipment Co., Case No.
17-RC-4157. Slack and a coworker, Keith Schmit, appeared at the hearing and
sat with the union representatives during the proceeding. According to Galen
Gengenbach, an inspector in Goa's department, the next morning Foreman Goa
commented to him "that both Keith Schmit and Burt Slack, who were representing or
supporters of the UAW, thought they were pretty smart sitting down there with the
other union men and [that] he felt like getting up and busting both Keith Schmit
and Burt Slack." Gengenbach testified that during the last week in May, Foreman
Goa warned him about associating with Slack, told him that he was spending too
much time in Slack's company, and concluded the conversation with the declaration
"that I was a good man and that I shouldn't associate with a no-good union
Gengenbach was a completely credible witness and his testimony
as to these conversations was never contradicted, denied, or even referred to by
Goa when the latter was on the stand.
A foreman's desk was located about 25 feet from Slack's normal work station
Gengenbach testified that prior to May 1, Goa and Plant Superintendent Smith came
to this location once or twice an hour and then only for a brief period on each -.isit_
Subsequent to that date, however, according to Slack, throughout the month of May
and early in June, both Goa and Smith spent long periods of time at this desk each
day. In so doing they kept Slack under almost constant surveillance. Goa denied
that his practice with respect to supervising the operations of his shift varied in any
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner after May 1 from what it had been prior to that time. Smith was not called
as a witness. Gengenbach, however, testified that there was a narked change in
the supervisors' practice after the representation hearing. Thus, according to
Gengenbach, in the weeks immediately before Slack's termination, both Goa and
Smith spent a far greater amount of time in the area around Slack's work station
than they ever had before.
Slack was terminated on the morning of June 4. The employee testified with
respect to the events of that morning as follows. About 8 a m. and after he had
been on the job for about an hour he told Gengenbach, who was nearby, that he
would be gone for a few minutes to get a doughnut and a carton of milk in another
area of the plant. As he was returning, having been gone from his work station for
from 5 to 7 minutes, he noticed that Goa was nearby. When the latter saw him,
Goa called out, "Get the hell down heie on the line." As Slack reached his work
station, Gerald Cumpston, a material handler, gave him a tube to inspect and
measure. Slack began to perform this operation when Goa, who had begun to
walk away, returned to the scene and declared to Slack with a vulgar expression
"keep your down here on the line. You got all the line shut down."
Slack looked around at that moment and, not seeing any line that had stopped,
made a rejoinder to the foreman's order with an epithet that was even more vulgar
than the expression which Goa had uttered.'' On hearing this comment, Goa turned
around and asked Slack what he had said. Slack thereupon repeated the remark
The foreman then told him that he did not have to endure such language from
"anybody like [Slack]" and immediately discharged him.
Cumpston, the material handler, testified that on the morning in question he was
working with what was known as a reseive tube which had to be inspected. Accord-
ing to Cumpston, it was not unusual for him to check such a tube himself. On this
occasion, however, when he asked Foreman Gene Peterson as to the whereabouts
of Inspector Slack, Peterson told him that Slack had gone off for a few minutes,
but that Cumpston was not to use the tube until he had had it inspected This
employee testified that Peterson immediately made a telephone call and shortly
thereafter Goa appeared. At the same moment, Slack returned to the line and
began inspecting the tube for Cumpston. The latter testified that after Slack had
inspected the reserve tube for him he heard Goa tell Slack to stay on the line and
in doing so the foreman used the expression which Slack in his testimony had
attributed to Goa. According to Cumpston, immediately thereafter Slack responded
with a vulgar comment and then Goa told the latter that he was fired
Foreman Goa testified that he dismissed Slack for the insubordination displayed
by the epithet which the employee applied to him on June 4 He testified that on
that morning he had been in a supervisors' meeting when Plant Manager LaVerne
Fisk received a telephone call to the effect that the assembly line had stopped.
According to Goa this meant that about 150 employees were not working and Fisk
ordered him to ascertain the source of the trouble and get the line moving Respond-
ent Monroe offered no convincing testimony that at this moment all of the produc-
tion lines had come to a halt while awaiting the return of Inspector Slack. There
was testimony that there were actually seven production lines at the plant, four of
them being parallel to each other. Russell Ambler, a welder on the line near the
point where Slack was stationed, testified that because of what he described as a
"mixup on tubes," one line had been stopped for a short while. Gerald Cumpston,
another inspector, testified that this line was run for about 3 minutes without reserve
tubes during the incident involving Slack. He did not testify that the line ever
stopped. Nor did Goa himself so testify with respect to what he observed on
returning to the line at the time in question. Nevertheless, it was undenied that after
telling Slack to "get the hell down here on the line" and having emphasized this
order with a vulgar comment, Goa accused Slack of having caused the entire produc-
tion line to be shut down. Slack's testimony was undenied that at that moment the
line was not actually stopped. After noting this fact, the employee made the remark
which served as the alleged basis for his termination
On direct examination by counsel for the Employer, Goa voiced numerous com-
plaints about Slack's working habits. Thus, according to the foreman, Slack never
came to work until 7 a.m., although inspectors were supposed to report at 6:30
to prepare their schedules for the day. Goa testified that he never did anything
about this matter because Plant Manager LaVerne Fisk had told him to stay away
from employees such as Slack, whom he described as "union pushers," and also
because the extra half-hour in the morning would have required Slack to be on
overtime and Fisk told him that no one could be discharged for refusing to work
overtime.
2 Slack's remark appears at page 59 of the transcript.
MONROE AUTO EQUIPMENT CO., ETC. 917
Goa also testified, while on direct examination, that he had had problems with
Slack leaving his work area to drink coffee and that this had occurred in January
to April 1964, at the end of which period the employee had to be treated at a veterans'
hospital. On cross-examination, however, Goa conceded that it was in December
1963 that Slack had been hospitalized Goa further testified that Slack was con-
stantly late and Respondent Monroe endeavored to introduce testimony as to the
employee's record for tardiness After I ruled that this line of inquiry was irrelevant
unless the Respondent was urging that tardiness was one of the reasons for Slack's
dismissal, counsel for Monroe abruptly abandoned his attempt to put in any further
evidence on this issue.
At some point about a year before his termination Slack had been suspended for
7 days because he had permitted another employee to punch his timecard Upon the
expiration of the 7 days he returned to duty and worked regularly until his discharge
a year later At the hearing, Goa testified that if the matter had been left entirely to
him for his decision he would have fired Slack for tardiness and for having permitted
someone else to punch out for him. According to Goa, the only reason that no such
disciplinary action was taken was because these matters occurred on the eve of a
Board election 3 and Plant Manager Fisk told him "to stay away from the union boys
and especially [Slack]."
The wide variety of complaints which Goa voiced at the hearing as to the working
habits of Slack were obviously in the nature of afterthoughts,4 for the foreman initially
testified that he dismissed Slack for the insubordination displayed when the employee
made the obscene comment to him on June 4. Of equal significance is the fact that
Goa did not contend that on the morning in question Slack had been away from his
post without permission immediately before the incident. Moreover, he conceded
that it was permissible and not unusual for inspectors, such as Slack, to take off time
for a cup of coffee during their shift.
The coarse remark which the employee made to his foreman could undoubtedly
serve as a justifiable ground for dismissal. And if that was the real cause for Slack's
discharge it is not within the province of me or the Board to inquire as to whether
such a sanction was harsh, unwise, or an exercise of poor business judgment On the
other hand, as is well known, the vocabulary of workmen on an assembly line is not
always that of the parlor or polite society. Thus, it is pertinent to recall a statement
of the Court of Appeals for the Eighth Circuit that under the Act here involved "a
justifiable ground for dismissal is no defense if it is a pretext and not the moving
cause " N.L R B. v. Solo Cup Company, 237 F. 2d 521, 525 (C.A. 8).5
The only issue, therefore, with which we are here concerned, is whether the true
motivation for Slack's discharge was his obscene comment to Foreman Goa or his
union activity. In assessing the record and the testimony of the witnesses to determine
the reason for Monroe's dismissal of this employee, the following must be considered:
Slack's activities on behalf of the UAW over a long period of time which were well
known to the Respondent and which had caused Goa to characterize him as one of
the "union pushers"; Goa's instructions to Night Supervisor Schwenk that Slack was
to be discharged if "caught ... in any union activities whatsoever"; the statement of
Foremen Peterson and Fyfe, in March 1964, that as soon as another election was
scheduled, Monroe "would go right down the line and start firing union employees,
for instance, Burt Slack and Keith Schmit...... ; Goa's remark to Gengenbach after
3 This, however, was a representation election that was scheduled to be held at the
plant in April 1963
4 Cf. N.L.R B. v Schill Steel Products, Inc., 340 F 2d 568 (C.A. 5), decided January 11,
1965, where the court stated. "The Company's vacillation and the multiplicity of its
alleged reasons for firing Caldwell renders its claims of nondiscrimination the less
convincing."
i See also a recent restatement of this rule by the Court of Appeals for the Seventh Cir-
cuit in Nachman Corp. v N L.R.B., 337 F 2d 421, 423-424: "It is well settled that the
presence of valid grounds for an employee ' s discharge does not legalize it where other
circumstances reasonably indicate that the union activity weighed more heavily in the
decision to fire him than did dissatisfaction with his performance N.L R.B. v. Whitin
Machine Wor18 , 1 cir., 204 F . 2d 883 , 885. In accord are many decisions including Sun-
shine Biscuits, Inc Y. N.L R B , 7 cir, 274 F 2d 738, 742; N L R B. v. Vail H fg , Co.
7 Cir., 158 F. 2d 664, 606. This Court stated the applicable rule in N.L R B. v. Howe
Scale Co 7 Cir., 311 F. 2d 502, 505, where we said: ' . . [E]ven though a valid ground
for discharge exists , there is nevertheless an unfair labor practice if in fact the reason
for the discharge was union activities on the part of the employee '" Cf. N.L.R.B. v.
C & J Camp, Inc ., et al., d/ b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113, 115
(C.A. 5).
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,Slack and another employee had appeared with the UAW representatives at the Labor
Board election hearing on May 1, 1964, that these two workers "thought they were
pretty smart sitting down there with the other union men and [that] he felt like getting
up and busting both Keith Schmit and Burt Slack"; and Goa's subsequent advice to
Gengenbach, only a few days before Slack's termination, that Gengenbach should not
associate with the latter whom Goa characterized as "a no-good union
The foregoing testimony plainly establishes that for a long while
Slack's union activities had been known to Respondent Monroe and that as early as
March 1964, two foremen, Fyfe and Peterson, described to the other supervisory
personnel a plan by Monroe for the discharge of Slack and other union advocates in
the event the UAW forced it into another election campaign. Of equal significance
is the fact that the testimony as to Goa's knowledge of Slack's organizational inter-
ests and the foreman's open and vindictive dislike for these activities was neither
denied nor contradicted either by Goa himself or by any other witness produced by
the Respondent Monroe. In addition to the above testimony, there is substantial evi-
dence, set forth earlier herein, that during the month prior to Slack's termination,
Goa and Plant Superintendent Smith had frequented Slack's work area and kept him
under close surveillance throughout the course of his workday.
From the foregoing it is apparent that by the end of May 1964, Respondent Mon-
roe had made manifest its opposition to the Union and that Goa had publicized his
bitter, personal resentment at Slack's efforts on behalf of the UAW. On the morning
of June 4, 1 day before the Board election scheduled for June 5, when Goa found
that Slack was away from the production line for a few minutes, he used profanity
in ordering him back to the line. Thereafter, as Slack resumed his work, Goa warned
him to stay there, coupling his remark with an obscene expression and accusing Slack
of having stopped the line. When Slack observed that the line had not, in fact,
stopped, he responded to his foreman with a comment that was even more vulgar and
obscene than Goa's remarks On the basis of the foregoing findings, it is my con-
clusion that, although standing by itself the comment which Slack made to his fore-
man on June 4 could well have served as complete justification for his peremptory
dismissal, the real motive for this employee's summary discharge was not the fact that
during a vulgar exchange with his foreman he made the last and more obscene
remark,6 but rather his activities on behalf of the UAW, which activities so plainly
had irked and annoyed Foreman Goa over a long period of time. Under these cir-
cumstances , I find that by the termination of this employee Monroe violated Section
8 (a) (3) and (1) of the Act.7 I also find that: (1) the remarks of Foreman Goa to
e Gengenbach testified that shortly after Slack was discharged the latter told him that
at the time of the incident "he was trying to provoke [Goa] to hit him, he thought that
was what he could do " In its brief, the Respondents apparently contend that this testi-
mony demonstrates that Slack was the aggressor at the scene of his discharge. This
testimony has been considered in the light of the other evidence as to what occurred on
the morning of Slack's termination and the events of the preceding months. It is my
conclusion of the Trial Examiner that Gengenbach ' s testimony has none of the significance
that the Respondents would now accord it in this connection . Insofar as Goa was con-
cerned, Slack had every reason to believe that he was a marked man. For months Goa
had had Foreman Schwenk under standing instructions to fire Slack if the employee
engaged in any union activities while on the night shift Early in May, Goa publicized
his desire to beat up Slack for having appeared at the representation hearing with the
union agents. In mid-May Schwenk told Slack about the discussion among company
supervisors of a plan to discharge him and other union leaders prior to the Board elec-
tion . Thereafter, Goa and the plant superintendent kept Slack under close surveillance
and on the morning in question Goa profanely and obscenely ordered Slack to stay on
the production line That Monroe's conduct could have prompted Slack to make a trucu-
lent response to his foreman and to display a belligerent reaction is not difficult to com-
prehend "It is a well recognized rule in labor relations law that a man is held to intend
the foreseeable consequences of his conduct." The Radio Officers' Union of the Commer-
cial Telegraphers Union, AFL (A H. Bull Steamship Company) v. N L R.B., 347 U.S.
17, 45 ; cited in N.L R B v. Tennessee Packers, Inc , Frosty Mom n Div., 339 F. 2d 203,
204-205 (C A. 6) See also N.L R B. v. Oklahoma City General Drivers, Warehousemen
and Helpeis, Local Union 886, International Brotherhood of Teamsters, etc. (Chief
Freight Lines Co ), 235 F. 2d 105, 107 (C A. 10).
7 In its brief the Respondent Monroe contends that the fact that Keith Schmit, another
well-known union adherent , is still in its employ constitutes evidence that it did not dis-
criminatorily discharge Slack. There is no merit to this argument. It is well settled
that a discriminatory motive otherwise established is not disproved by an employer 's show-
ing that he did not eliminate every union adherent . N L R B v. Link-Belt Company, 311
U.S. 584, 602 ; N.L.R B. v. Shedd-Brown Mfg Co , 213 F. 2d 163, 174-175 (C.A. 7).
MONROE AUTO EQUIPMENT CO., ETC. 919
the effect that he would like to inflict physical violence on employees Slack and
Schmit for having participated in the representation hearing, (2) the suggestion of
Goa that employee Gengenbach stay away from a union adherent such as Slack, and
(3) the harassing of Slack that was imposed through the constant surveillance of his
workday by Foreman Goa and Plant Superintendent Dale Smith, constituted inter-
ference, restraint, and coercion of the employees' organizational rights within the
meaning of the Act. By such conduct the Employer further violated Section 8 (a) (1)
of the Act.
C. The allegations as to Midwest Employers Council and John E. Tate;
findings and conclusions with respect theieto
The General Counsel alleged that at all times material Respondent Council and
Respondent Tate were authorized by Respondent Monroe to conduct all matters con-
nected with the Board, the Union, the employees, unfair labor practice charges, and
Monroe's campaign during the Union's organizational effort and, as such, the Council
and Tate have been agents of Monroe within the meaning of the Act. The General
Counsel further alleged that the Council and Tate were responsible, along with Mon-
roe, for the discriminatory discharge of Slack and the other acts of interference,
restraint, and coercion attributed to the Employer. In a separate answer to the com-
plaint, Tate and the Council did not deny their agency relationship with Monroe,
but attacked the complaint for lack of specificity as to the unfair labor practices with
which they were charged
In his brief, the General Counsel contends that during the course of the Union's
organizational efforts an unlawful plan to combat the UAW was announced by Tate
and thereafter effectuated by Respondent Monroe through Foreman Goa. It is the
further contention of the General Counsel that Tate, in the course of his agency
relationship and by this conduct, participated in the actual commission of an unfair
labor practice and that, through him, the Midwest Employers Council must be charged
with similar responsibility.
The evidence on which the General Counsel relies is the testimony of one-time
foreman, Joseph Schwenk. The latter testified, it will be recalled, that late in March
1964, Day-Shift Foremen Peterson and Fyfe told him and other night-shift super-
visors that earlier that day Tate had met with them and outlined a plan to combat
the Union which they (Peterson and Fyfe) had been instructed to relay to the mem-
bers of the night supervisory staff. Schwenk testified that, according to Peterson and
Fyfe, Tate had told the day-shift foreman that prior to any election held at the plant
Monroe would proceed to terminate Slack and other prominent union supporters so
that, as a result of such intimidation, the employees would be fearful of discharge and
vote against the Union instead of for it. As noted earlier, this testimony by Schwenk
was never contradicted or denied. Moreover, neither Peterson nor Fyfe were called
to testify and no explanation was offered for their failure to appear. Consequently,
Schwenk's credible testimony as to their conversation on this occasion has been con-
sidered by me as relevant background evidence in connection with the discharge of
Slack which occurred less than 3 months later and on the very day before a Board
election at the plant.
Notwithstanding the failure of Tate to take the stand and deny any of the statements
attributed to him in the foregoing testimony, this testimony is, of course, no more
than hearsay as to him and the Respondent Council. For this reason, it is my con-
clusion that such testimony will not support an independent finding that Tate and the
Council violated the Act. Accordingly, it will be recommended that the complaint
be dismissed as to these last named Respondents. On the other hand, it should be
pointed out that the injunctive provisions of the remedial order hereinafter recom-
mended, phrased in the conventional manner and directed against not only Respond-
ent Monroe, but its officers, agents, successors, and assigns, will apply with equal
force to John E. Tate and to the Midwest Employers Council to the extent that they
fall within the definition of the term "agents" of Monroe.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Monroe set forth in section III, above, occurring
in connection with the operations of that 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 com-
merce and the free flow of thereof.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent Monroe has engaged in certain unfair labor prac-
tices, it will be recommended that it be ordered to cease and desist therefrom and take
certain affirmative action of the type conventionally ordered in such cases as provided
in the Recommended Order below , which I find necessary to remedy and to remove
the effects of the unfair labor practices and to effectuate the policies of the Act.
Having found that Respondent Monroe discriminatorily discharged Burton Slack
on June 4 , 1964, I will recommened that the said Respondent be ordered to offer Slack
immediate and full reinstatement , without prejudice to his seniority or other rights
and privileges , and make him whole for any loss of earnings that he may have suf-
fered from the time of his discharge to the date of the Respondent Monroe's offer
of reinstatement The backpay for the foregoing employee shall be computed in
accordance with the formula approved in F W. Woolworth Company, 90 NLRB 289,
with interest computed in the manner and amount prescribed in Isis Plumbing &
Heating Co, 138 NLRB 716, 717-721 It will also be recommended that the said
Respondent be required to preserve and, upon request , make available to the Board
or its agents , payroll and other records to facilitate the computation of backpay due.
As the unfair labor practices committed by Respondent Monroe are of a charac-
ter striking at the root of employee rights safeguarded by the Act, it will be recom-
mended that the said Respondent be ordered to cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent Monroe is engaged in commerce and the Union is a labor organiza-
tion, all within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Burton
Slack, thereby discouraging membership in the Union, the Respondent Monroe has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent Monroe 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 com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The General Counsel has not proved by a preponderance of the evidence that
Respondents' Council and Tate engaged in any action independently violative of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, it is recommended that the Respondent, Monroe Auto Equipment Co.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America, AFL-CIO, or any other labor
organization of its employees, by discriminating in regard to their hire, tenure, or
any terms or conditions of their employment.
(b) Harassing employees because of their exercising rights specified in Section 7
of the Act.
(c) Threatening employees with physical violence, discharge, or any other form
of reprisal because of their membership in, sympathy for, support of, or activity on
behalf of any labor organization.
(d) In any manner interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Offer Burton Slack immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other rights and privi-
leges, and make him whole in the manner set forth in the section of the Decision
entitled "The Remedy."
MONROE AUTO EQUIPMENT CO., ETC. 921
(b) Notify the above -named employee if presently serving in the Armed Forces of
the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to analyze the amount of backpay due.
(d) Post at its plant in Cozad , Nebraska , copies of the attached notice marked
"Appendix " 8 Copies of said notice , to be furnished by the Regional Director for
Region 17 , shall, after being duly signed by a representative of Respondent Monroe,
be posted immediately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the said
Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(e) Notify said Regional Director , in writing , within 20 days from the receipt of
this Decision and Recommended Order, what steps the Respondent Monroe has taken
to comply herewith.°
It is further ordered that the complaint be dismissed as to Midwest Employers
Council, Inc , and John E Tate , and, further , that the complaint be dismissed insofar
as it alleges any unfair labor practices other than as herein specifically found.
8 In the event that this Recommended Order be 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 be enforced
by a decree of a United States Court of Appeals , the words " a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words " a Decision
and Order".
O In the event that this Recommended Order be adopted by the Board , the provision
shall be modified to read "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent Monroe has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership of our employees in, or activities on
behalf of , International Union , United Automobile , Aerospace & Agricultural
Implement Workers of America, AFL-CIO, or any other labor organization, by
discharging or otherwise discriminating against any of our employees.
WE WILL NOT harass any of our employees because of their exercise of rights
guaranteed in Section 7 of the Act.
WE WILL NOT threaten our employees with physical violence, discharge, or
any other form of reprisal because of their membership in, sympathy for, sup-
port of, or activities on behalf of International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America, AFL-CIO, or any
other labor organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce employ-
ees in the exercise of the rights to self-organization , to form, join , or assist the
above-named Union, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted
activities for the purpose of collective -bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities
WE WILL offer Burton Slack immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges enjoyed, and make him whole for any loss of pay suffered
as a result of discrimination against him.
MONROE AUTO EQUIPMENT CO.,
Employer.
Dated----------- -------- By-------------------------------------------
(Representative ) ( Title)
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200 Rialto
Building, 906 Grand Avenue , Kansas City , Missouri , Telephone No. Baltimore 1-7000,
Extension 2733, if they have any question concerning this notice or compliance with
its provisions.
The Singer Company, Wood Products Division and United Broth-
erhood of Carpenters and Joiners of America , AFL-CIO. Cases
Nos. 26-CA-1731, 26-CA-1789, and 26-CA-1823-2-3. June 30,
1965
DECISION AND ORDER
On January 28, 1965, Trial Examiner Robert E. Mullin issued his
Decision 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 attached Trial Examiner's Deci-
sion. He also found that Respondent did not engage in other alleged
unfair labor practices and recommended that the complaint be dis-
missed as to them. Thereafter, both the Respondent and the General
Counsel filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial.
Examiner 's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations, except as modified herein.
1. In January 1964, the Union began an organizational campaign at
Respondent's plant. The Trial Examiner found, and we agree, that the
Respondent violated Section 8 (a) (1) of the Act when numerous super-
visors thereupon interrogated employees about this campaign and their
reaction to it, and criticized and threatened them with reprisals for
supporting it.1
'In view of our ultimate findings herein , we find it unnecessary to decide whether Re-
spondent also violated Section 8 ( a) (1) of the Act when it asked employees to remove
union steward buttons. For the same reason , we find it unnecessary to decide whether
the crew leaders are supervisors within the meaning of Section 2(11) of the Act or
whether they acted as agents of the Respondent.
153 NLRB No. 82.