Monroe Auto Equipment Co.

National Labor Relations Board - Board Decisions

Jun 17, 1966

159 N.L.R.B. 613 (N.L.R.B. 1966)

MONROE AUTO EQUIPMENT COMPANY 613
WE WILL NOT threaten loss of.jobs, employment, economic benefits or other
reprisals because of our employees' union activities, union membership, or
sympathies.
WE WILL NOT solicit our employees to report on the union activities of their
fellow workers.
WE WILL NOT offer or grant better jobs or other benefits to our employees
for the purpose of influencing their union support or activities.
WE WILL NOT interrogate our employees concerning their union membership,
activities, "or sympathies in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the above-named, or any other, labor organiza-
tion, to bargain collectively through their representative of their own choosing,
or to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any, or all such
,activities.
WE WILL offer those named below immediate and full reinstatement to their
former or substantially similar positions without prejudice to their seniority and
other rights and privileges and make them whole for any loss of pay suffered
as a result of our discrimination against them.
Royce Lee Baker Richard Womack
Leroy Ivey Wilford Jewell
Eugene Hurlbert
All our employees are free to become, or remain, or refrain from becoming or
remaining, members of the above-named, or any other, labor organization.
PROCTOR-SILEX CORPORATION,
Employer.
Dated-----------°------- By-------------------------------------------
(Representative) (Title)
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.
If employees have any question conecrning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101,
Telephone 723-2911.
Monroe Auto Equipment Company and International Union,
United Automobile, Aerospace & Agricultural Implement
Workers of America (UAW) AFL-CIO. Cases 10-CA-5835 and
5952. June 17,1966
DECISION AND ORDER
On March 18, 1966, Trial Examiner Stanley Gilbert issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged 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 Respondent had not engaged in other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the General Counsel, Charging Party,
and Respondent filed exceptions to the Trial Examiner's Decision
and supporting briefs.
159 NLRB No. 65.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 these cases 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 these cases, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the modification
noted below.
We do not agree with the Trial Examiner that a press release
issued by Respondent shortly after the petition was filed on July 1,
1965, and read over radio station WKLY, contained a statement
which, when read in light of all the surrounding circumstances,
constituted a threat of economic reprisal should the Union become
the employees' collective-bargaining _representative. On the con-
trary, we find that Respondent's statement was in the permissible
area of fair comment and did not violate Section 8(a) (1) of the Act.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraph 1(a) of the Trial Examiner 's Recommended
Order and renumber paragraphs 1(b) and (c) as 1(a) and (b),
respectively. In new paragraph 1(b), delete the words "In any
other manner" and substitute the words, "In any like or related
manner . . ."
[2. The Appendix attached to the Trial Examiner's Decision
shall be amended by deleting therefrom the first and second para-
graphs. In addition, in the fourth paragraph delete the words "in
any other manner" and substitute the words "in any like or related
manner ..."]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On August 18, 1964, the International Union , United Automobile , Aerospace &
Agricultural Implement Workers of America (UAW) AFL-CIO, hereinafter
referred to as the Union or UAW, filed a charge in Case 10-CA-5835 alleging that
the Monroe Auto Equipment Company, hereinafter referred to as the Respondent
or Company , engaged in conduct violative of Section 8(a)(1) and ( 3) of the Act.
On December 30, 1964 , the Union filed a charge in Case 10-CA-5952 alleging that
the Company , through its agents the "Hart County Betterment Association" and the
Association 's president, Tommy Meyers , engaged in conduct violative of Section
8(a) (1) of the Act. On June 11, 1965 , the charge in Case 10-CA-5952 was
amended by deleting the references to the parties alleged to be the Company's
agents and restating the conduct by which the Company allegedly violated Section
8(a)(1) of the Act. On June 18, 1965, the Regional Director for Region 10
issued an order consolidating said cases and also issued the complaint in this pro-
MONROE AUTO EQUIPMENT COMPANY 615
ceeding. Said complaint alleges that the Respondent violated Section 8(a)(1) and
(3) of the Act. By its answer, as amended at the start of the hearing in this pro-
ceeding, Respondent denies that it committed the unfair labor practices alleged in
the complaint.
Pursuant to notice , a hearing was held in Hartwell , Georgia, on August 18, 19,
and 20, 1965 , before Trial Examiner Stanley Gilbert . All parties appeared and
were given full opportunity to offer relevant and competent evidence . Briefs were
received ' from General Counsel , Charging Party, and Respondent within the time
designated therefor.
Upon the entire record in this case and upon observation of the witnesses as
they testified , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Michigan corporation with an office and plant in Hartwell, Geor-
gia, is engaged at said location in the manufacture , sale, and distribution of auto-
motive shock absorbers and related products . During the year preceding the issu-
ance of the complaints herein, a representative period, Respondent sold and shipped
products valued in excess of $50 ,000 from its plant in Hartwell, Georgia, directly to
customers outside the State of Georgia.
As is admitted by Respondent , it is, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent , International Union , United Automobile, Aero-
space & Agricultural Implement Workers of America (UAW) AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background and Summary of Undisputed Facts
In the middle of 1963 the Union started a campaign to organize Respondent's
employees . Beginning in October 1963, The Hartwell Sun, a weekly newspaper in
Hartwell , Georgia, with general circulation in said locality , published a number of
editorials and articles , as well as an extra edition , referring to the organizational
efforts of the Union and to the election on July 23 and 24, 1964, in which said
organizational efforts culminated . Said extra edition which was published on July 23,
1964, contained the following notice- "This EXTRA is a publication of The
Hartwell Sun and was published at the request of, and paid for by, citizens of Hart
County who desire a healthy industrial climate for the betterment of this area and
its people ." Tommy Myers , as head of a loosely knit committee , arranged for the
publication of the extra edition and an advertisement which appeared in The Ander-
son Independent, a newspaper published in Anderson , South Carolina , with general
circulation in the area where Respondent 's employees live. In addition , Myers had
printed and distributed literature bearing on the election . Also, prior to the elec-
tion, radio station WKLY, serving the Hartwell area, transmitted statements and
news reports with respect to the election. One of said transmissions , on or about
July 10, 1964 , included a verbatim reading of a press release issued by Respondent.
On July 1, 1964 , the Union filed a petition in Case 10-RC-5690 for certification as
the collective -bargaining representative of a unit of Respondent 's employees. A
consent election was conducted by the Board on July 23 and 24, 1964 , which the
Union lost . The Union filed timely objections and the Board set aside said elec-
tion. A second election has not been held pending this proceeding.
The Issues
1. Whether, by failing to disavow certain statements which appeared in The Hart-
well Sun, which were contained in the advertisement and literature arranged for
and distributed by Myers' committee and which were transmitted by radio station
WKLY, Respondent violated Section 8(a)(1) of the Act.
2. Whether , by its press release which was broadcast over radio station WKLY
on or about June 10, 1964, Respondent violated Section 8(a)(1) of the Act
3. Whether, by the conduct of Respondent's foreman , John W. Osley, and other
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action of Respondent with respect to a mock funeral held in the town square on
July 24, 1964, apparently to celebrate the Union's loss of the election, Respondent
violated Section 8(a)(1) of the Act.
4. Whether, by the conduct of Respondent's foreman, Cleo B. Sanders, at said
mock funeral, Respondent violated Section 8(a)( I) of the Act.
5. Whether Respondent laid off or discharged its employee Guy C. Alewine, in
violation of Section 8(a)(3) and (1) of the Act.
6. Whether Respondent constructively discharged its employee, Hoke H. Smith,
in violation of Section 8(a)(3) and (1) of the Act.
7. Whether, by suspending its employee, Charles Cleveland, from on or about
August 11, 1964, until on or about August 18, 1964, Respondent violated Section
8(a)(3) and (1) of the Act.
1. The failure to disavow
It is the contention of the General Counsel and the Charging Party that various
statements and other material which appeared in The Hartwell Sun, which were
contained in the advertisement and literature arranged for and distributed by Myers'
committee, and which were broadcast by radio station WKLY constituted threats
that the plant would be closed or other economic reprisals would be taken, if the
employees elected to have the Union as their collective-bargaining representative,
and that, by failing to disavow such threats, Respondent violated Section 8(a) (1)
of the Act. It was neither alleged nor contended that The Hartwell Sun, Myers'
committee, or radio station WKLY acted as an agent of the Respondent within the
meaning of the Act.' Furthermore, the record discloses that the parties therefore
agreed and I understood that the question of agency was not an issue to be liti-
gated herein. The argument of General Counsel and Charging Party appears to be
that, even though the aforesaid statements and material (which, it is found, consti-
tuted threats of economic reprisal should the employees elect to have the Union
represent them) cannot be attributed to the Respondent or its agent, that it may
be presumed that Respondent had knowledge of the statements and material, that, by
remaining silent, Respondent benefited therefrom, and that, by failing to disavow
the threats, it violated the Act. While it appears appropriate to infer that Respond-
ent did have knowledge of such statements and material in view of the smallness of
the community, and that it benefited therefrom, said inferences are of no aid to the
argument that Respondent's failure to disavow the threats expressed constituted a
violation of the Act.
In his brief General Counsel cites editorials by N. S. Hayden, editor of The
Hartwell Sun, which were published on October 24 and November 14 and 21,
1963. General Counsel states, in his brief, that, while he does not urge that any
violation of the Act can be based upon said editorials because of the 6-month
limitation provision of Section 10(b) of the Act, they "serve, however, to show
Hayden's intense opposition to the Union and his determination to insure its defeat
at the Respondent's plant." This opposition and determination on the part of
Hayden are disclosed not only by the aforesaid editorials, but also by subsequent
editorials published within the "10(b) period," as well as by Hayden's candid admis-
sion thereof in his testimony.
General Counsel also cites the publication on November 21, 1963, of an inter-
view in The Hartwell Sun with Respondent's plant manager, Charles Gordon, con-
cerning the Union's organizational efforts. Again, the General Counsel does not
contend that the interview can be relied upon as a basis for finding a violation of
the Act, because of Section 10(b), but argues that it "served to show" that the
newspaper "was used as a vehicle through which the Respondent expressed its poli-
cies concerning the Union to its employees and to the citizens of Hartwell and Hart
County." The same argument (of use as a "vehicle" of communication) is appar-
ently made by General Counsel with respect to Myers' committee and radio sta-
I In Section 2 of the Act which contains definitions, there are the following provisions :
(2) The term "employer" includes any person acting as an agent of an employer,
directly or indirectly . . . .
O i / i k ♦ s
(13) In determining whether any person is acting as an "agent" of another person
so as to make such other person responsible for his acts, the question of whether the
specific acts performed were actually authorized or subsequently ratified shall not
be controlling.
MONROE AUTO EQUIPMENT COMPANY 617
tion WKLY, based on the fact that the extra edition of July 23, 1964, which was
"requested and paid for" by Myers' committee, contained what the General Counsel
characterized as a "communication from the Respondent to its employees," and that
Respondent furnished a press release to WKLY which was read over the air. It
is not clear whether this argument is an attempt on the part of the General Coun-
sel to raise obliquely the issue of agency by using as a synonym, "vehicle of com-
munication." Clearly the granting of an interview to a newspaper or the issuance
of a press release to a radio station by a corporation, absent evidence of any other
relationship or affirmative action, does not establish either the newspaper or the
radio station as the corporation's agent in communicating with its employees. As
for the so-called "communication" from Respondent contained in the extra edi-
tion, it constituted a reprint of a pamphlet in the form of questions and answers
which the Respondent had previously distributed to its employees. There is no
showing or basis for inferring that it had been furnished by the Respondent for
inclusion in the extra edition. Therefore, it is concluded that there is no merit in
General Counsel's argument on this point. The matter of the Union's attempt to
organize the Respondent's plant was of general interest to the community and,
therefore, it cannot be said that the interview, the radio broadcast, or the reprint of
the questions and answers established the newspaper, the committee and the station
as Respondent's vehicles of communication with its employees.
- Within the 6-month period preceding the charge filed in Case 10-CA-5835 there
were a number of editorials published in The Sun, radio broadcasts over station
WKLY, and pieces of literature arranged for and distributed by Myers' committee
(including the extra edition of The Sun on July 23, 1964) which unmistakably
threatened that Respondent's plant would be closed, or employment there adversely
affected, if the employees selected the Union as their collective-bargaining repre-
sentative. There is no need to set forth the details of the exhibits received in evi-
dence upon which this conclusion is based, for, not only are the threats apparent,
but also there is no contention upon the part of the Respondent that such a con-
clusion would be inappropriate. Respondent's defense is simply that, there being
no proof that such exhibits emanated from it or any agent of it, they do not consti-
tute evidence of a violation of the Act by Respondent and, therefore Respondent's
failure to disavow the threats expressed in said exhibits does not constitute interfer-
ence, restraint, and coercion by it of its employees within the meaning of Section
8 (a) (1) of, the Act. Neither the General Counsel nor the Charging Party cited
any authority for finding that a failure to disavow threats made by a person or an
entity other than the employer or its agents, is a violation of the Act, absent a show-
ing of -the employer's ratification of 'the threats.2 -In order to find' that an employer
has violated the Act, it is unambiguously provided therein that it must be conduct
engaged in by the employer or its agent. The Board has stated in both the unfair
labor practice proceedings and representation proceedings, that an employer is not
responsible for conduct which would have constituted an unfair labor practice had
it been that of the employer or his agent, if an agency is not established or ratifica-
tion, express or implied, has not been proved. Byrds Manufacturing Corp., 140
NLRB 147, 155 3 Monarch Rubber Co., Inc., 121 NLRB 81, 83.
In Bibb Manufacturing Company, 82 NLRB 338, 340-341, the Board held the
employer responsible for threats published in a "newspaper" upon a finding that the
employer did more than passively enjoy the benefits of the antiunion statements and,
therefore, in effect, should have disavowed the threats. There is nothing in the
record herein upon which a conclusion can be based that the Respondent did any
more than passively enjoy the conduct of The Sun, Myers' committee, and station
WKLY. It did not ratify the threats, and neither the General Counsel nor the
2 Indeed, in their briefs, the General Counsel indicated and the Charging Party candidly
admitted that there is no precedent for such a finding.
3 The Board adopted the findings, conclusions and recommendations of the Trial Ex-
aminer. Among his conclusions were the following :
The responsibility of an employer for the conduct of an outsider is established
only when agency is established. The outsider must be acting under the direction or
control of the employer or, if the conduct is originally unauthorized, it must be
ratified expressly or impliedly. It is not sufficient (to establish the employer's re-
sponsibility) to show that the employer enjoys the benefits of the outsider's actions zs
[Emphasis supplied ] -
20 N.L.R.B. v. Cherokee Hosiery Mills, 196 F.2d 286, 290 (C.A. 5).
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charging Party contends that there was ratification 4 The Board will set aside an
election because of the coercive atmosphere engendered by "editors and other . .
third parties ," even though there is no showing that they were acting as agents of
the employer . Universal Manufacturing Corporation of Mississippi , 156 NLRB
1459 However , the Charging Party argues that , in the circumstances of this case,
the setting aside of the first election is of little value. It points out that, if an elec-
tion were held in the future in the Respondent 's plant, the Hartwell Sun, Myers'
committee , and radio station WKLY will probably repeat the conduct they engaged
in prior to the first election which, again , the Respondent can passively enjoy, and
the Charging Party implores that a remedy be designed to counteract the effect of
such repetition . As desirable as it seems to be to require the Respondent to disavow
future coercive conduct of The Hartwell Sun, Myers ' committee , and radio station
WKLY,5 I am forced to conclude that there is nothing in the Act which would per-
mit me to recommend such a remedy in this proceeding . However, it would appear
that the reassurance 6 to the employees provided in the remedy and the notice to
remedy the threat of Respondent found hereinbelow to be violative of Section
8(a)(1) of the Act should offset to a large extent the effect of future threats by
"outsiders."
2. Respondent 's press release
Shortly after the Union filed its aforesaid petition on July 1, 1964 , a press release
issued by the Respondent was read over the air in a broadcast by radio station
WKLY. The press release contained the following:
Mr. McIntyre said that he felt like the employees and townspeople understood
and appreciated that the $20,000,000 spent by Monroe in payroll in Hartwell,
Hart County and surrounding counties was evidence of its confidence in the
people of Hart County and surrounding counties . He said that he had no
doubt that employees would vote to continue its fine relations and employment
in the area.
The last sentence in the above -quoted statement , considered in the context in which
it appears , clearly implies that , if the employees voted to have the Union represent
them, the effect would be a discontinuance of Respondent 's "fine relations and
employment in the area ." This can only be reasonably construed to mean that a
majority vote for the Union would adversely affect Respondent 's employment. It
is concluded that this constituted an implied threat of economic reprisal should the
Union become the employees ' collective -bargaining representative and constituted
interference, restraint, and coercion within the meaning of Section 8(a)(1) of
the Act.
3. The mock funeral
Apparently in celebration of the Union's loss of the election, a mock funeral was
staged in the Hartwell town square, mid-day on June 24, 1964. There is no show-
ing in the record that the Respondent played any part in its instigation, planning, or
staging. It is alleged in the complaint that the Respondent violated Section
8(a) (1) of the Act by the conduct of its foreman, John Osley, in that he "encour-
aged . . . employees to attend" the mock funeral and by the fact that Respondent
"paid . .. employees who attended" it.
In support of the allegation that Osley encouraged employees to attend the mock
funeral, General Counsel relies on the testimony of employees Ernest Beebe, Mar-
vin Bryant, and Donald Alewine. According to Beebe's testimony he (Beebe)
asked Osley if he were going to the funeral, and, when Osley replied in the affirma-
tive, Beebe requested a "ride" with him, which request was granted. Bryant testi-
fied that he heard of the funeral from Osley, who told him that he could go to it,
if he wanted to do so. According to Alewine's testimony, Osley told him about the
funeral shortly before the noon hour, and informed him that he could go to it,
4 Although it is found hereinbelow that Respondent did violate Section 8(a)(1) of the
Act by a press release which was read over station WKLY, it was not urged, nor is it
deemed , that this constituted ratification by Respondent of the editorials, literature of
Myers' committee, or other WKLY broadcasts.
5To furnish an atmosphere sufficiently devoid of coercion as to permit employees to
express their free choice in a second election.
9 That it will not inflict economic reprisals upon its employees should they select the
Union as their collective-bargaining representative.
MONROE AUTO EQUIPMENT COMPANY 619
but, if he did not want to go, he did not have to do so. The record discloses that
the mock funeral was widely discussed by the employees throughout the plant on
the morning of July 24.
The regular lunch period extended from noon to 12.30 p.m. and, it appears, that
customarily there was strict observance of the time allowed for lunch. According
to the testimony of all three of said employees, the production line did not start
at 12:30 that day, apparently because there were not enough employees present to
man the line. According to the testimony of employee Tommy Hendrix, resump-
tion of work that day was delayed 20 or 25 minutes beyond the normal period. It
appears that no employee suffered a loss of pay because of the delay in the resump-
tion of work. When testifying, Osley stated that he could recall "no conversations"
with employees regarding the funeral prior to the lunch period. He further testified
that he returned to the plant at 12:30. However, he also testified that he did not
hear the whistle for the resumption of work and, when questioned whether produc-
tion started immediately at 12:30, he avoided a categorical answer indicating that
he was not in a position to testify one way or the other.
The above outlined testimony of Beebe, Bryant, Alewine, and Hendrix is credited,
inasmuch as the testimony of Osley, insofar as it contradicted their testimony, was
nof convincing. - It does not appear that said credited testimony would support a
finding that Osley encouraged employees to attend the funeral. At the most, it dis-
,closes that he informed two employees that the celebration was going to take place
(which apparently was widely known and discussed among the employees that
morning); told one of them that he could go to it, but did not have to, if he did
not want to; and granted a request of a third employee of a ride to the celebration.
The total of these facts falls far short of an aggregate which can be characterized
as "encouragement."
As for the payment by Respondent to employees for the period of 20 or 25 min-
utes during which resumption of work was delayed, the General Counsel contends
that such action "conveyed to the employees the expression of the Respondent's
approval of the Union's defeat and presented a situation from which the employees
could easily conclude that they might be rewarded similarly for a future defeat of
the Union." The General Counsel cites the case of Edro Corporation, 147 NLRB
1167, in which it was found that the employer therein violated Section 8(a)(1) of
the Act by allowing a party to be held on its property to celebrate the Union's loss
of an election and by paying employees for their time spent at the party. It does
not appear that the cited case can be equated with the conduct of the Respondent
in this proceeding. The funeral was not held on the Company's property and the
employees were paid for only 20 or 25 minutes of time in which they did not work,
in contrast to the Edro Corporation case where the employees were paid for loss
of a half-day's working time. It is my considered judgement that the failure of
Respondent to deduct from employees' wages an amount corresponding to the 20 or
25 minutes lost working time was de minimis and could not reasonably have had
the effect upon the employees which General Counsel contends.
Therefore, it is concluded that General Counsel has failed to prove by a prepon-
derance of the evidence the allegations in the complaint that Respondent violated
Section 8 (a) (1) of the Act by encouraging employees to attend the funeral and by
paying them for time spent at it.
4. Sanders' participation in the mock funeral
It is alleged in the complaint that Respondent by its supervisor and agent, Fore-
man Cleo B. Sanders, participated in the mock funeral by his pronouncement that
the Union was dead and by delivering an eulogy for the Union. Sanders testified
that he was present in the square at the time of the mock funeral, that he had no part
in planning the funeral, that he left the plant at the start of the regular lunch- hour,
and returned prior to the expiration of the regular lunch hour. He further testified
that shortly after he arrived at the square, "someone yelled for a coroner"; that he
was the elected coroner for Hartwell; that there was a "dummy" (apparently an
effigy of the Union) in the square; and that he pronounced it to be dead. Sanders'
above testimony is uncontradicted and credited. General Counsel contends that
Sanders' conduct "served to demonstrate to the employees Respondent's approval"
of the funeral and "clearly conveyed to the employees the futility of organizational
efforts at Respondent's plant." It appears that the employees present could not
reasonably have considered Sanders' participation in the "funeral" as a "coroner"
was intended to convey to them Respondent's position with respect to the Union.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event, his participation could not have reasonably had the coercive effect
which General Counsel contends. In view of this conclusion, it does not appear
that there is any merit in General Counsel's contention as to the effect of Sanders'
conduct on Respondent's employees. Therefore, it is further concluded that Gen-
eral Counsel has not proved by a preponderance of the evidence that Respondent
violated Section 8(a) (1) of the Act by the conduct of Sanders, as alleged in the
complaint.
5. The alleged discrimination against Guy C. Alewine
It is alleged in the complaint that on or about June 12, 1964, Respondent laid off
and thereafter failed and refused to recall Guy C. Alewine in violation of Section
8(a)(3) and (1) of the Act. In its answer as amended, Respondent alleged that
Alewine was terminated on said date, but denied that such action was violative of
the Act. Alewine was employed by Respondent for a period in 1959 and entered
the employ of Respondent again in August 1960. In 1963, while he was working
as a material handler, he, according to his testimony which is credited, became
active on behalf of the Union and talked to employees during nonworking time at
the plant and at their homes. According to further testimony of Alewine, which is
uncontradicted and credited, he was approached in October or November 1963
by Talmadge Dove who offered him a badge bearing the legend "no union for me";
Alewine told Dove that he would not wear it and that he would vote for the Union;
at another time, Dove told him that if he did not wear the badge both of them
"would get into trouble"; and on a third occasion, in November 1963, Dove told
Alewine that he would be transferred to the "oil line" if he did not "quit" his union
activities? It appears that there is a dispute as to whether Dove is a supervisor
within the meaning of the Act. According to the testimony of Alewine, Dove
responsibly directed the work of 40 employees. The testimony of Respondent's
witnesses in support of its contention that Dove was not a supervisor was vague and
unconvincing. Therefore, Alewine's testimony as to the duties and responsibilities
of Dove is credited and it is concluded that Dove was a supervisor within the mean-
ing of the Act at the time material herein.
Alewine testified that, in February 1964, he was told by Dove that he was wanted
by Bennie Reid, general plant foreman for the third shift, in the office of Grove
Dudley, the plant superintendent; that he went into Dudley's office where Reid and
Foreman Rufus Barnes were present; that he asked Reid if he wanted to see him;
that Reid told him "yes . . . you're fired"; that he asked Reid for the reason; that
Reid refused to give him an explanation and told him that, if he wanted to, he
could return the next day and "see.somebody higher up"; that he Alewine, then
"got mad and cussed him out and left."
Reid testified that, in January 1964, he observed Alewine "being off the job, talk-
ing to and interfering with another operator"; that he asked Alewine to come to
"the office"; that he then reprimanded Alewine for his conduct; that Alewine apolo-
gized and assured him that it would not happen again; and that the next day he
gave Alewine a warning slip for his said conduct. Reid further testified that subse-
quently, in February 1964, he observed Alewine engaging in the same conduct
about which he had previously warned him and instructed Dove to send Alewine to
Dudley's office; that, when Alewine came in he told Alewine that he had observed
him committing the same offense he had committed in January; that Alewine "flew
mad," picked up a poston-rod assembly and raised it to strike him with it; that he
told Alewine that he was discharged and if he was not satisfied with the decision he
could come back the next day and "talk it over with anybody that he would like
"; that Alewine called him what may be characterized as vile names and threat-
ened to kill him; and that he told Alewine to punch out and "come back tomor-
row." Reid further testified that he did not give Alewine a discharge slip at that
time, but sent the discharge slip through channels. On cross-examination. Reid
admitted that he had intended to discharge Alewine when he summoned him to
Dudley's office. There is little substantial conflict in the testimony of Alewine and
Reid as to the incident. Reid supplied details as to Alewine's conduct which pre-
cipitated the incident and Alewine's actions when he "got mad," which testimony
was not contradicted. The testimony of Reid is credited with respect to the inci-
dent and the events which precipitated it.
IIt appears that a job on the oil line is far from as desirable as that of a material
handler . These statements by Dove were prior to the "10(b) period" and are only con-
sidered as background information.
MONROE AUTO EQUIPMENT COMPANY 621
The next day there was a meeting in the office of Charles Gordon, Respondent's,
general manager. There is no substantial variation in the testimony of the wit-
nesses with respect to what then occurred. The facts may be summarized as fol-
lows: Alewine went into Gordon's office where there were various supervisors pres-
ent besides Gordon; 8 Gordon reviewed the matter of Reid's decision to discharge
Alewine; Alewine apologized for losing his temper; and Gordon reversed the deci-
sion to discharge Alewine and reduced the disciplinary action to a 7-day layoff.
Summarized hereinbelow is the uncontradicted and credited testimony of Ale-
wine. Before Alewine returned to work at the conclusion of his suspension, he
asked Dudley whether he could get a transfer to another job, so as to "get out from
under the supervision of Bennie Reid." Dudley told him that he did not think
there was any chance of it, that he and Reid would "just have to get along together."
When Alewine started to leave, Dudley told him that Gordon wanted to see him.
He then went to see Gordon who offered him the job of budget clerk. When he
told Gordon that he did not know whether he wanted to take the job, or whether
he was capable of handling it, Gordon told him he would have ample time to train
for it and that he did not think he would have trouble with the job. Gordon then
told him he did not have to make up his mind at that time, that he could return to
his regular job the next day and gave him approximately 10 days to decide whether
to take the budget clerk job. Alewine returned to his regular job the following day
and, at the end of the time which he was given to make up his mind, he informed
Gordon that he was willing to accept the budget clerk job. At that point Gordon
stated to him, "The Union will have a lot to say about this, you being fired, and
now me putting you back and giving you a better job." Alewine commenced his
job as a clerk toward the end of February and received an increase in pay approx-
imately 4 or 5 weeks thereafter. As a clerk Alewine worked under the supervision
of Eugene Cleveland.. Alewine testified that "on more than one occasion" Cleve-
land talked to him about "being off" his job. On one such occasion, after he gave
Cleveland an explanation, Cleveland said to him that he was "doing a good job,"
and that somebody had reported that he was off his job. On the morning of
June 13, 1964, he and another clerk were informed by Cleveland that they were
discharged as of the end of their shift on that day. The other clerk had been
employed approximately a month or a month and a half. Alewine asked Cleveland
why he was being discharged in view of the fact that he had "plant seniority over
all of the factory clerks . and job seniority over half of them," and whether it
was because of his work. Cleveland informed him that he had orders to discharge
him "from higher up." The record discloses that Alewine did have seniority over
many of the clerks who were retained in Respondent's employ.
That night Alewine went to Gordon's home and talked to him about the action
that was taken in regard to his employment. Both Alewine and Gordon testified as
to their conversation. Alewine testified that he asked Gordon whether he was fired
or laid off and that Gordon replied that he was laid off, but "the best thing he
could do" was to find another job. Gordon testified that he told him that he was
discharged and to look for another job. This variation in their testimony appears
to be of no significance.
According to the credited testimony of Gordon, around June 1964, he received
orders from the head office in Monroe, Michigan, to reduce his work force and cut
down on production from 17,500 shock absorbers a day to 12,500. Accordingly,
the work force was reduced from approximately 900 employees to 700. The work
force remained at substantially the same reduced figure up until the time of the
hearing. According to the further credited testimony of Gordon, the number of
employees on hourly salary was controlled by him and the number of salaried
employees was controlled by the head office in Monroe. However, the selection of
those who were to be retained and those to be laid off or terminated was under his
control. It also appears from his credited testimony that the established policy was
to terminate or lay off the hourly group of employees on a seniority basis and that
with respect to the salaried employees (which included the clerks) those tempo-
rarily employed "go first and after that the selection is based upon performance." 9
Gordon testified that it was, he who ordered the discharge of Alewine, that he
selected him for termination because he had complaints from Alewine's supervisor,
8 It is noted that Dove was also present.
0It is deemed that this credited testimony explains the uncontradicted and credited
testimony of Alewine that shortly before June 13 a notice was posted announcing that
there would be a reduction - in force and that it would be on a seniority basis.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cleveland, that Alewine was not "staying within his area," that he had personally
observed Alewine out of his area, and that he had instructed Cleveland to tell Ale-
wine to stay within his area, but that thereafter Cleveland reported that he still had
trouble with Alewine on that score. The above testimony of Gordon as to his
reason for his selecting Alewine for discharge is credited. Not only was Gordon
an impressive witness but also Alewme corroborated his testimony with respect to
complaints about his being out of his area. As above noted, Alewine testified that
"on more than one occasion" Cleveland spoke to him about it.
The record supports a finding that Respondent's management was aware of Ale-
wine's prounion attitude, based upon Alewine's uncontradicted and credited testi-
mony of statements made to him by Dove and of Gordon's speculation as to what
the Union's reaction would be to his (Gordon's) action in giving him the better job
of budget clerk. Nevertheless, it is concluded that General Counsel did not prove
by a preponderance of evidence that the selection of Alewine for termination in the
extensive reduction in force was discriminatorily motivated. It would appear that,
had Gordon desired to be rid of Alewine because of his prounion attitude, he could
very well have sustained Reid's discharge of Alewine instead of reducing the disci-
plinary action to a 7-day suspension and accepting Alewine's apology for his con-
duct in threatening Reid. Shortly thereafter he gave Alewine, who desired to get
away from working under Reid, a job in another department which apparently was
considered better than the one Alewine had had. There is no evidence that there-
after the Respondent had any knowledge or suspicion of union activity on the part
of Alewine, and it appears that, as a salaried employee, he was not within the unit
which the Union was seeking to represent . The reduction in force was for eco-
nomic reasons and occurred prior to the filing by the Union of its petition for certi-
fication. Therefore, there was nothing suspicious about the timing, nor is there any
contention to that effect. (There is no contention that the selection for the reduc-
tion in force of any of the other employees, approximately 200 in number , was dis-
criminatorily motivated.) Consequently it is my considered judgment that it would'
not be appropriate to find that the selection of Alewine in the reduction in force-
was discriminatorily motivated.
6. The constructive discharge of Hoke Smith
It is alleged in the complaint that on or about July 27, 1964, Respondent dis-
criminatorily discharged Hoke H. Smith. Respondent, in its amended answer,
denied that Smith was terminated on July 27, and alleged that he quit his employ-
ment on August 24, 1964. The charge as to the discrimination against Smith was
filed on August 18, 1964. The undisputed facts are that Smith's regular job, as of
July 24, was on the "A line" putting such things as springs, washers, and nuts on,
shock absorbers. The election was held on July 23 and 24 and Smith served as a
union observer. The last day that Smith worked on the A line was on Friday,
July 24 On the following Monday, July 27, shortly after he started working on
the A line, Smith was transferred to the job of "pulling shocks" on the "main line.
On July 31, 1964, about the middle of his shift, which was from 4:30 p. m. until 1
a in., Smith became ill and was permitted to go home. A few days later he was
hospitalized and remained in the hospital for 9 days. He reported back to work
on August 24, but left that day without doing any work. The circumstances in
which he left will be considered hereinbelow.
It is apparently the contention of the General Counsel and the Charging Party
that Smith was constructively discharged in violation of the Act for the following-
reasons• that the job of pulling shocks was more arduous than that of working on
the A line, that Respondent transferred Smith to pulling shocks on July 27, despite
the fact that he was 58 years old, and insisted that he continue on the job of pull-
ing shocks on August 24, despite his age and recent illness, in order to cause him to
refuse to do the job or to become ill again ; and that Respondent's discrimina-
tory motive is further demonstrated by various other factors which are considered
hereinbelow.
Hoke began his employment with the Company in May 1960, and worked at
various jobs starting with a short time on a "bushing machine," then about 2 years
on the "tallow tank" and thereafter on "running the Henry & Wright." While
working on that machine he applied for and was given a- job as night watchman-
until the job was abolished. He was then transferred to the job of "straightening-
up shocks." From there he was transferred to the "off line" and then put back on,,
the "Henry & Wright" until the plant-wide layoff in June 1964. About that time
MONROE AUTO EQUIPMENT COMPANY 623
Smith cut his hand on a piece of scrap steel and could only work with one hand, so
he was given the job of running the "burr roller and the tumbler" for 2 or 3
weeks. Thereafter , when he was again able to use his injured hand, he was trans-
ferred to the A line either shortly before or after the plantwide vacation of 2 weeks
which started on July 1 . 10 Therefore , it appears that Hoke Smith worked on the A
line approximately 8 working days before he was transferred to pulling shocks.
The job of "pulling shocks" consists of extending the shock absorbers by pulling
them down as they ride on a moving line, so that they can be painted. The follow-
ing are descriptions of the process by General Counsel's witness , Ernest Beebe, and
Respondent 's witness , Lander Downs. Beebe testified as follows:
Q. (By Mr. BRANDON .): Tell me the process by which you extend the shock,
please, Mr. Beebe.
A. Well, if they have a loop on the bottom, we got a hook we can put our
feet in, you know, extend them out Or , if they have got a stem , they have
made us a gadget over there on the off line , a little old nut we can stick up on
them and pull them out. On the main line, we don 't have time , it's moving so
fast, so they have to pull them out with their hands.
Downs testified as follows:
TRIAL EXAMINER : How do you pull the shocks?
The WITNESS. Pull it down with a hook. I have-I put the hook in my
foot and you got to have a hook on top that I hook in. The shocks that has
loops on 'em, I pull them out with a hook, what we call a hook , or a shock-
pulling hook . And some, that you pull with your hand , that you don't use a
shock-pulling stick for.
A considerable amount of testimony was elicited by all of the parties with respect to
the physical effort required to pull shocks to demonstrate , on the one hand, that it
was an arduous job for a 58 -year-old man , and, on the other hand, that it was not.
It is my opinion , based upon the testimony of said witnesses as to the process, that
the job of pulling shocks required a considerable amount of physical effort and was
a great deal more arduous than the job on the A line.
It appears that on occasions Smith pulled shocks on the "off line" and "main
line" prior to the election . However, it further appears that Smith only did this
for comparatively short intervals to furnish additional help. In addition , it appears
that the working conditions on the main line were rigorous not only because of the
physical effort but also because of the heat that was engendered in the area due to
the process of preheating the shocks . In the absence of medical testimony, how-
ever, it does not appear appropriate for me to conclude that the heat and physical
effort of pulling shocks caused Hoke Smith to become ill in the middle of his shift
on July 31. When General Manager Bennie Reid passed by , Smith told Reid of his
illness and Reid instructed him to wait until his supervisor , James E. Smith also
referred to as Ed Smith ), came in . When Ed Smith came in, Hoke Smith reported
his illness to him, and he told Hoke Smith to "check out" and go home. A few
days later Hoke Smith was hospitalized and remained in the hospital for 9 days.
When Hoke Smith returned to work on August 24 , he reported early to Ed
Smith. Hoke Smith 's testimony as to what then occurred is as follows:
I said, "where do you want me to go tonight ?" and he said "Up there pulling
shocks" and I said, "Ed, are we going to have any help ?" and he says , "You'll
have to see Grover about that. Do you want to see him ?" and I said , "Yeah."
I had time before the whistle blowed , and I went up and talked to Mr. Grover
Dudley and I said, "Grover , are we going to have any help on that line when
it's full?" and he said, "I'm not allowed but two men" and I said "Mr. Dudley,
I've been back there helping pull when there was three all the time in the day-
time, and three to five when the line's loaded ." and I said "Two men cannot
pull them." I said, "I spent nine days in the hospital and I 'm not going back
out there on account of that." And he says "It 's up to your Foreman." He
never did say I could have help or I couldn't have help. He says , "It's up to
your Foreman , where he works you."
I went back down there and I told Ed Smith what he said . And I said, "Ed,
I'll go up there and pull the shocks , as many as I can and let the rest go by."
He says, "If you can't pull them, I don 't need you ." I said, "Well , Ed, I'll pull
10 The supervisor In charge of the A line , James E Smith, testified that Hoke Smith
came into his department either just before or just after said vacation.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what I can, now. I'm willing to pull that many, but I can't keep up with it
when the line's loaded." He said, "If you can't pull them, I don't need you."
I said, "Well, you don't need me."
So, he carried me to the office and wrote out a note. And I didn't know
what it was; if I had, I wouldn't have accepted it. I'd have went back there
and pulled shocks. Later on, they mailed it to me and it said I refused to
do the job assigned to. I didn't refuse to do it; I said I couldn't do it by
myself, and they didn't need me.
Ed Smith testified as to the incident and there is no substantial contradiction"
between his testimony and the above-quoted testimony of Hoke Smith. The above-
quoted testimony of Hoke Smith is credited:
Respondent points out, in its brief, that the complaint alleged the discharge to
have occurred on July 27 and that the charge upon which it was based was filed on
August 18. Respondent further points out that Hoke Smith's employment was not
terminated until August 24, after both the date alleged in the complaint and the
date of filing of the charge, and argues that the charge should, therefore, be dis-
missed . It appears that this argument is of little merit. The constructive discharge
on August 24 was fully litigated and it is sufficiently related to the allegation in the
complaint and the charge so that the Respondent cannot seriously contend that it
was misled. It is my conclusion that Smith was discriminatorily transferred on
July 27 and constructively discharged on August 24 in violation of Section 8(a)(3)
and (1) of the Act. This conclusion is predicated on the factors set forth
hereinbelow.
The job of pulling shocks was considerably more rigorous than the job from
which Hoke Smith was transferred, particularly in view of Smith's age. The trans-
fer occurred almost immediately after Smith served as observer for the Union at the
election. Respondent contends that it had no knowledge of Smith's union activities.
It is my conclusion that the Respondent must have reasonably inferred or suspected
that Smith was active on behalf of the Union, or a strong adherent thereof, from
the fact that he was selected by the Union as one of its observers. Respondent
elicited testimony to show that the reason Smith was transferred from his job to that
of pulling shocks was because he was of unsatisfactory performance on the A line.
This testimony was from Ed Smith, foreman of the A line, and Tommy Brown, who
apparently worked under Smith and, to some extent, supervised the work on the A
line including that of Hoke Smith. Brown's testimony was not convincing. Brown,
who testified that he was a leader on the A line, was extremely vague and frequently
indicated that his recollection was poor as to the events which preceded Hoke
Smith's transfer. Ed Smith's testimony was not convincing. According to his testi-
mony, Hoke Smith only worked on the A line for approximately 8 days. He fur-
ther testified that he received five or six complaints from Tommy Brown about Hoke
Smith's performance in that short interval. However, Hoke Smith testified without
contradiction that he received no reprimands for his performance during the time
that he worked on the A line. Furthermore, Ed Smith did not impress me as a
candid witness when questioned as the relative difficulty of pulling shocks. For this
reason and from my observation of them while they were testifying, I do not credit
their testimony that Hoke Smith's work performance on the A line was unsatisfac-
tory and that it was Hoke Smith's unsatisfactory work performance which motivated
his transfer to pulling shocks.
To continue with the factors upon which the aforesaid conclusions of Respond-
ent's violations of Section 8(a)(3) and (1) of the Act are predicated it is noted that
Smith replaced at the job of pulling shocks, Weyman Risner who, Hoke Smith testi-
fied without contradiction, was a considerably younger man in his "30's." Ed Smith
testified that he sent Risner to "putting up parts for the welders" and that he did not
place Hoke Smith at that job because he did not have time to train him for it. In
his testimony, Ed Smith attempted to demonstrate the difficulty of the job to which
he transferred Risner. This testimony of the knowledge and physical effort it
requires was unconvincing and failed to establish said difficulty. It is also noted that
Risner returned to the job of pulling shocks during Hoke Smith' s absence between
July 31 and August 24 which would indicate that Risner could have been kept at
said job. A further example of Ed Smith's unreliability as a witness is demon-
strated by his testimony as to Hoke Smith's work performance on the A line on
July 30 where Hoke Smith worked temporarily for 41 hours. Ed Smith first testi-
u Although, at first, Ed Smith testified that Hoke Smith stated he "would not pull
shocks," he later alternated between "could not" and "would not."
MONROE AUTO EQUIPMENT COMPANY 625
fled that Hoke Smith did not perform satisfactorily at that time . However, after
further questioning , he admitted that he did not "specifically remember" that Hoke
Smith 's performance was unsatisfactory on that day . As to the refusal to give Hoke
Smith additional help and insisting that he pull every other shock on August 24, it is
noted that a witness for Respondent, Lander Downs, who worked for considerable
periods at pulling shocks , testified that he was always given extra help when he
asked for it and that whenever two were working on the line, instead of each man
pulling every other shock when they become too difficult, they laid aside those they
were unable to pull until they got help. The record indicates that prior to the elec-
tion the Respondent followed the practice of being cooperative , with Hoke Smith, as
well as with other employees , in granting requests for transfers to other jobs and
giving them an easier job when appropriate . The record further discloses that Dud-
ley and Smith were aware on August 24 that Hoke Smith had just returned from an
illness for which he had been hospitalized . Management did not follow its custom-
ary practice of cooperativeness with and consideration for its employees but instead
insisted that he return to a job which they must have realized, because of the physi-
cal effort it required and the beat in the area , was too demanding on a 58 year-old
man who had just reported back to work after a long and apparently severe illness.
It is my conclusion that this callous treatment , in contrast to its customary practice,
was an attempt on the part of Respondent to induce Hoke Smith to quit, or to
attempt to perform a job which would have overtaxed his strength , because of his
union activities , or suspected union activities . It is further concluded that thereby
Respondent constructively discharged Hoke Smith on August 24, 1964, in violation
of Section 8(a)(3) and ( 1) of the Act . As indicated above , it is also concluded
that Respondent discriminatorily transferred Hoke Smith to the job of pulling shocks
on July 27, 1964.
7. The 7-day suspension of Charles Cleveland
Charles Cleveland , who at the time of the hearing had been in the employ of
Respondent almost 7 years , was given a 7-day suspension by Respondent from
August 11 to 18, 1964. It is alleged that his suspension was discriminatorily
motivated . At the time of his suspension Cleveland had the job of paint operator
under the supervision of Respondent 's foreman , John Osley. Osley testified that,
on August 10 about an hour before quitting time, he asked Cleveland "to clean
up," and at quitting time he "saw that it hadn 't been done." He further testified
that the next morning he went to see his supervisor , Grover Dudley, and told him
that Cleveland had been instructed to clean up his area but had failed to do it,
and that he asked for and received permission to give Cleveland a 7-day suspen-
sion. He then wrote out a "reprimand " which indicated that Cleveland was laid
off for 7 days and stated as reason therefor , "has not kept area around painter
cleaned as instructed ." Cleveland was given the notice of his suspension when
he reported for work at lunch time that day, August 11.
Respondent contends that the suspension was not discriminatorily motivated
and, as one of the reasons in support thereof, argues that there is no showing that
Respondent had knowledge of Cleveland ' s attitude toward the Union . However,
there appears to be little merit in this reason, in view of the fact that , shortly
before the suspension, Cleveland acted as an observer for the Union at the election
held on July 23 and 24. It is concluded that Respondent must have reasonably
inferred from his selection by the Union as an observer that Cleveland was either
active on behalf of the Union or a strong union adherent.
Respondent further argues in support of its contention that the suspension was
not discriminatorily motivated as follows: "And it was not denied at all that he
left a pile of trash in the middle of the floor when only a moment would have
been required to put it in a trash can . This could have angered his supervisor
enough to cause the suspension ." Cleveland did testify that he had swept the trash
into a pile but did not put the pile into a trash can , that the pile was about 3 or 4
inches wide and about one-half inch high and that he did not put the trash in the
can because the whistle had blown and it was the practice to stop whatever was
being done at that time . The existence of this practice was not only corroborated
by other witnesses of the General Counsel but also by Osley. Osley, on the other
hand , testified that he saw more than a pile of trash , that trash was "scattered in
the area." Osley further testified that he did not see Cleveland with a broom in
his hand . Certain of the salient features of Osley's testimony were contradicted
not only by Cleveland but also by employees Ernest Beebe and Marvin Bryant,
243-084-67-vol. 159-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who worked in areas next to that in which Cleveland worked . All three of them
testified that Osley asked them to clean up a short time before the whistle blew
(varying from 2 to 3 minutes to 10 to 15 minutes prior thereto ). It appears from
the testimony of all of -the witnesses including Osley that cleaning up was done
during the last 5 minutes of the work day. It further appears that there were no
standing instructions about cleaning up and that it was done upon instruction.
Osley gave no explanation as to why he gave Cleveland instructions to clean up a
full hour before quitting time as he testified . I credit the testimony of the three
employees as to when they were told to clean up the area.
It appears from the testimony of said three employees that after they received
instructions to clean up , Cleveland started sweeping , Beebe picked up some papers
off the floor , and Bryant just sat down. Therefore , it is my finding that Cleveland
did sweep up the area . From his testimony , it appears that Osley was present just
before quitting time and must have observed Cleveland sweeping and Bryant sit-
ting down . However, there is no showing that any disciplinary action was taken
against Bryant . The record discloses that Cleveland had never been warned about
possible disciplinary action for not cleaning up his area and that no other employee
has ever been disciplined for such reason . Osley attempted to show as a further
reason for the disciplinary action that Cleveland had failed to clean up the painter
bin. However, this appears to have been an afterthought in view of the state-
ment on the notice of suspension.
Considering all the circumstances ( including the minor nature of Cleveland's
offense, if any; the disciedited testimony of Osley in which he attempted to exag-
gerate the offense; and the credited testimony that Cleveland did comply with the
instructions and only failed to complete the cleaning up in accordance with the
practice of ceasing work immediately at the time the whistle blows ), it is my con-
sidered judgment that the 7 -day suspension was excessive and was not motivated
for disciplinary reasons. Therefore, it is concluded that the reason ascribed by
-Respondent for the suspension was merely pretextual , that it was in reprisal for
Cleveland 's adherence to the Union , and was violative of Section 8(a)(3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in section III, above,
occurring in connection with the operations of Respondent described in section I,
above, have a close, intimate , and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
It having been found that Respondent engaged in several unfair labor practices,
it will be recommended that Respondent be required to cease and desist from such
unfair labor practices and take certain affirmative action designed to effectuate the
policies of the Act.
It having been found that Respondent discriminated against Hoke H. Smith by
transferring him on July 27, 1964, from his then job to a more arduous job and
by constructively discharging him on August 24, 1964, it will be recommended that
Respondent be ordered to offer him full reinstatement to the job he held before
said discriminatory transfer , or to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges . It will be further recom-
mended that Respondent make said employees whole for any loss of earnings he may
have suffered because of its discrimination against him by payment of a sum equal
to the amount he normally would have earned as wages from August 24, 1964, to
the date an offer of reinstatement is made to him, together with interest thereon
as provided below. The loss of pay should be computed in accordance with the
formula and method prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and the interest , payable in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716, should be computed at the rate of 6 percent per annum on
the amount due for each calendar quarter (under the Woolworth formula ) begin-
ning with the end of the first calendar quarter and continuing with each succeed-
ing calendar quarter until payment of such amount is properly made.
It having been found that Respondent discriminated against its employee Charles
Cleveland by suspending him from August 11 to 18, 1964 , it will be rec-
ommended that Respondent make him whole for any loss of earnings he may
MONROE AUTO EQUIPMENT COMPANY 627
have suffered because of said discrimination against him by payment of a sum
equal to the amount he normally would have earned as wages during the period
he was suspended.
Inasmuch as certain of the unfair labor practices committed by the Respondent
are of a character striking at the root of employees' rights safeguarded by the Act,
it will be further recommended that the Respondent be ordered to cease and desist
from infringing in any manner upon the rights guaranteed its employees in Section
7 of the Act.
In view of the finding hereinabove of a threat by Respondent violative of Sec-
tion 8(a)(1) of the Act in the circumstances of parallel threats by "outsiders,"
and by its violations of Section 8(a)(3) of the Act, it is deemed necessary to
effectuate the policies of the Act that Respondent make clear to its employees that
it will not carry out its threat.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent interfered with, restrained, and coerced its employees within the
meaning of Section 8(a)(1) of the Act by threatening that, if they selected the
Union as their collective-bargaining representative, the employment at Respondent's
plant would be adversely affected.
2. Respondent discriminated against its employee Hoke H. Smith in violation of
Section 8 (a) (3) and (1) of the Act by transferring him on July 27, 1964, from
his then job to a more arduous job and by constructively discharging him on
August 24, 1964.
3. Respondent discriminated against its employee Charles Cleveland in violation
of Section 8(a)(3) and (1) of the Act by suspending him from August 11 to 18,
1964.
4. General Counsel failed to prove by a preponderance of the evidence that
Respondent violated Section 8(a)(1) of the Act by the conduct alleged in para-
graphs 11, 13, and 14 of the complaint.
5. General Counsel failed to prove by a preponderance of the evidence that
Respondent violated Section 8(a)(3) and (1) of the Act by the conduct alleged
in paragraph 15 of the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclusions of law, and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended , it is recommended that Monroe Auto Equipment Company, its
officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed under Section 7 of the National Labor Relations Act, as amended,
by threatening that, if its employees should select the International Union , United
Automobile, Aerospace & Agricultural Implement Workers of America (UAW)
AFL-CIO, as their collective-bargaining representative , employment at its plant
would be adversely affected.
(b) Discouraging membership in said Union , or in any other labor organization
if its employees , by discriminating in regard to their hire or tenure of employment
or any term of condition of employment.
(c) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right to self-organization , to join, form, or assist labor
organizations , including the above -named labor organization , to bargain collec-
tively through representatives of their own choosing , and to engage in other con-
certed activities for the purpose 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 it is deemed will effectuate the
policies of the Act:
(a) Offer to Hoke H. Smith immediate and full reinstatement to the job he
held prior to his discriminatory transfer on July 27 , 1964, or to a substantially
equivalent position , without prejudice to his seniority or other rights and privileges
and make him whole for any loss of earnings he may have suffered as the result
of Respondent 's discrimination against him in constructively discharging him on
August 24 , 1964, as provided in the section of this Decision entitled "The Remedy."
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make Charles Cleveland whole for any loss of earnings he may have
suffered as a result of the discrimination against him as provided in the section of
this Decision entitled "The Remedy."
(c) Notify Hoke H. Smith 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, as amended , after discharge from the Armed Forces.
(d) 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 to determine
the amount of backpay due under the terms of this Recommended Order.
(e) Post at its plant in Hartwell , Georgia, copies of the attached notice marked
"Appendix ." 12 Copies of such notice , to be furnished by the Regional Director for
Region 10, shall, after being signed by an authorized representative of the Respond-
ent, be posted 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 such notices are not altered , defaced, or covered
by any other material.
(f) Notify said Regional Director , in writing , within 20 days from the receipt
of this Decision , what steps the Respondent has taken to comply herewith.13
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it relates to
the unfair labor practices alleged in paragraphs 11, 13, 14, and 15 thereof.
12 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 . If the Board 's Order is enforced by a decree of a United
States Court of Appeals , the notice will be further amended by the substitution of the
words "a Decree of the United States Court of Appeals , Enforcing an Order" for the
words "a Decision and Order "
13 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 10 , in writing , within
10 days from the date of this Order , what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To ALL EMPLOYERS
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
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT interfere with, restrain , or coerce our employees in the exer-
cise of rights guaranteed under Section 7 of the National Labor Relations
Act, as amended , by threatening that, if our employees should select the Inter-
national Union, United Automobile , Aerospace & Agricultural Implement
Workers of America (UAW) AFL-CIO, as their collective -bargaining repre-
sentative , employment at our plant would be adversely affected.
WE WILL NOT inflict any economic reprisals upon our employees should they
select said union as their collective -bargaining representative.
WE WILL NOT discourage membership in said union, or in any other labor
organization of our employees , by discriminating in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to join, form, or
assist labor organizations , including the above-named labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer to Hoke H. Smith immediate and full reinstatement to the
job he held prior to his discriminatory transfer on July 27, 1964, or to a sub-
stantially equivalent position , without prejudice to his seniority or other [rights
and privileges , and make him whole for any loss of earnings he may have
suffered as a result of our discrimination against him in discharging him on
August 24, 1964.
WE WILL make Charles Cleveland whole for any loss of earnings he may
have suffered as a result of our discrimination against him.
GRUBER'S FOOD CENTER, INC. 629
All our employees are free to become or remain members of International Union,
United Automobile, Aerospace & Agricultural Implement Workers of America
(UAW) AFL-CIO, or any other labor organization, or to refrain therefrom.
MONROE AUTO EQUIPMENT COMPANY,
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 applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, 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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building , 50 Seventh Street NE., Atlanta, Georgia 30323,
Telephone 526-5741.
Gruber's Food Center, Inc. and Retail Food Clerks and Managers
Union Local 1357,-Retail Clerks International Association,
AFL-CIO. Case 4-CA-3772. June 17, 1966
DECISION AND ORDER
On March 2, 1966, Trial Examiner John F. Funke issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended
dismissal of these allegations of the complaint. Thereafter, the
Respondent and Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs. The General Counsel
filed cross-exceptions and a supporting brief, and the Respondent
filed an answering brief.
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 in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified herein.
1. The Trial Examiner found that Respondent's general interro-
gation of its employees concerning their union membership and
sympathies was not coercive, but that the interrogations of three
159 NLRB No. 49.