Murray-Ohio Mfg. Co.

National Labor Relations Board - Board Decisions

Oct 5, 1964

148 N.L.R.B. 1541 (N.L.R.B. 1964)

MURRAY-OHIO MFG. CO. 1541
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623.
Murray-Ohio Mfg. Co. and International Union , United Auto-
mobile, ; Aerospace & Agricultural Implement Workers of
America, UAW-AFL-CIO. Case No. 26--CA-1650. October, 5,
1964
„DECISION AND ORDER
On June 12, 1964, Trial Examiner Alba B. Martin issued his Deci-
sion 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 Decision. Thereafter,
the Respondent filed exceptions to the Decision and a supporting,
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act,,the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was omitted. The
rulings are hereby affiirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record' in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modifications.
Although we agree with the Trial Examiner's ultimate disposition
of the issues herein in adopting his conclusion that Tarkington was
,discharged in violation of Section 8(a) (3) and (1) of the Act, we
rely solely upon his finding that Respondent utilized Tarkington's
activity in attempting to compile or secure a list of names of em-
ployees as a pretext to cloak its actual motive in discharging him
because of his activity on behalf of the Union. Accordingly, we find
it unnecessary to pass upon his finding that the lists of employees'
names were not of a confidential character or upon his further finding
that Tarkington did not ask or necessarily contemplate that the lists
be compiled from company records.
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 Order recommended by the Trial Examiner , and orders
148 NLRB No. 153.
1542 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
that Respondent, Murray-Ohio Mfg. Co., its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order, with the following addition :
The following is added to paragraph 2(a) of the Trial Examiner's
Recommended Order : "Notify Malcolm Tarkington if presently serv-
ings in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented by counsel, was heard before Trial
Examiner Alba B. Martin in Lawrenceburg, Tennessee, on February 19 through 24,
1964, on complaint of the General Counsel and answer of Murray-Ohio Mfg., Co.,
Respondent herein .1 The issues. litigated were whether Respondent unlawfully dis-
'charged Richard M. Tarkington on'August 15, 1963, and whether in'July and'August
1963, Respondent unlawfully interrogated employees in violation of Section 8 (a) (1)
of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein
'called the Act. After the hearing the General Counsel and Respondent filed briefs
which have been carefully considered
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Ohio corporation with its principal office and place of business in
Lawrenceburg, Tennessee, is engaged in the manufacture and sale of velocipedes,
bicycles, and wheel toys. During the 12 months prior to the issuance of the complaint
on November 26, 1963, Respondent manufactured, sold, and shipped finished products
valued in excess of $100,000 directly to customers located outside the State of Ten-
nessee. Respondent admitted and I find that it is now, and has been at all times
'material herein, an employer engaged in commerce within the 'meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, UAW-AFL-CIO, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
This is the fifth in a series of unfair labor practice proceedings against Respondent 2
since Respondent moved its plant from Cleveland, Ohio, where its employees were
represented by the Union, to the small town of about 8,000 to 12,000 inhabitants,
Lawrenceburg, Tennessee.
The Union has made efforts to organize the employees of the Lawrenceburg plant
from time-to-time ever since the Company moved there, but the organizational efforts
have been more intense at certain times than at others. One of the more intense
efforts occurred in late July and early August 1963 when the Union passed out union
authorization cards and undertook to have them signed by the employees.
1 The charge was filed, by the Union on October 4, 1963
2122 NLRB 136, enfd. 46 LRRM 2888 (C.A. 6) ; 128 NLRB 184; 134 NLRB 175, enfd.
denied 326 F. 2d 509 (C.A. 6) ; 134 NLRB 141, enfd . denied 326 F. 2d 509 (C.A. 6).
MURRAY-OHIO MFG. CO. - 1543
Asked what the Company does to oppose union organizational campaigns, Plant
Manager and Vice President Flesher testified:
We tell the people and tell our superintendents and our supervisors to tell the
people what we can do for the people without a union. We can run our plant
more efficiently. We can give the people equal rights and say-so without a union,
without a few people doing the dictating for them. We can give them all their
rights. We can give them everything that a union can get for them and more so.
Flesher added that they advise the employees through speeches "and sometimes we
have some publications that we get from associations that we belong to, newspapers,
and things like that." "Our position concerning the Union," explained Personnel
Director Smotherman: "We feel very strongly that we can administer an employee
relations program, which will be in the best interests of Murray, Ohio, as well as being
in the best interests of our employees, and we have approached it that way ever since I
have been connected with the Company", which was ever since the Company moved
to Tennessee. Flesher testified that he had the feeling that Union Representative
Wright was watching him when he went downtown-in stores, in gasoline stations, at
the bowling alley, around the town square, down by the theatre. Asked, "Would you
say you watch each other?" Flesher replied, "I'd say it was not a very compatible
deal."
During the 1963 intensive organizational period (employee Tarkington testified it
was read to him in late July) Plant;Manager Flesher and Personnel Director Smother-
man.decided to have, re`produced.and_made available to employees some paragraphs
it had received from an employer association.3 This one-page leaflet reproduced an
authorization card of the Union and explained, purporting to quote from a letter from
a Board agent, that under some circumstances, the authorization cards were used not
only to obtain an election but as proof of a majority in an unfair labor practice case.
Smotherman had many copies of this document reproduced and distributed to depart-
ment heads to be given to foremen to communicate to employees. Tarkington testi-
fied he saw foremen showing this document to employees.
B. Interference, restraining, and coercion
1. On or about July 30 and August 8, 1963, according to the credited testimony of
L. V. Kelley, who by his demeanor impressed me as a credible witness, in two con-
versations his foreman, Hollis Umphrey, asked him how he felt about the Union.
Umphrey told Kelley that he had heard that the latter was "for the Union" and he
asked him if Kelley thought the Union had any chance of getting into the plant.
Although Umphrey initiated both conversations Kelley used the opportunity to con-
tend that some of the jobs were rated unfairly and the men were treated unfairly in
their department. In the second conversation Umphrey said that it was impossible to
adjust the jobs and suggested that if Kelley did not "like the way things are run back
here, why don't you just quit and get another job? ... I don't see why you want to go
against your employer and try to get a union . . . you are either for us or against
us . . . . I like your work and I like you but I just want to see you on our side."
Kelley had signed a union card shortly before.
Although Foreman Umphrey admitted much of the substance of the Kelley testi-
mony, he denied asking any questions or making any references to the Union. On
cross-examination Umphrey appeared to me to be very reluctant and very evasive.
He denied ever seeing one of the propaganda leaflets distributed by the Company to
the supervisory staff for communication to employees-except that he allegedly saw
one on the ground outside the gate. He said he had no discussion with management
people about this document and that he had no knowledge of this document being
read to employees. This testimony was contrary to Respondent's other witnesses and
contrary to a stipulation to the effect that this leaflet was given supervisors by the
Company and was shown to employees by supervisors at the Company's direction
and that supervisors were instructed to talk to employees about it. Under these cir-
cumstances it is inconceivable that Umphrey would not have seen these leaflets in the
plant, would not have discussed them with other supervisors, including his own super-
visor, and would not have had,knowledge that the document was read to employees
by the supervisory force. For all these reasons, Umphrey did not impress me as a
credible witness.
s Smotherman testified he receives literature from the American Management Associa-
tion, the Tennessee Manufacturers Association, the National Right-To-Work Committee,
The Southern Industrial Relations Conference, and the United States Chamber of
Commerce.
1544 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. In about the middle of August, according to the credited testimony of Walter
Webb, a credible witness, Foreman Umphrey went up to Webb' s press where he was
working and said that he would like to ask him a question; that he had heard that
.,all the guys in the car that I rode in at that time had signed cards." Webb replied
that he hadn't seen them sign cards and didn't know definitely if they had or not.
Umphrey said, "Well, I thought you would know if anyone did." Webb testified that
Umphrey said "cards, and, of course, there was talk at that time, union talk." The
record did not suggest that any other cards than union cards were then being signed
or discussed by employees and supervisors. I find on the entire record that Umphrey
was referring to union cards.
Under all the circumstances of this case, Umphrey's interrogations of Kelley con-
-cerning the Union and of Webb concerning union cards reasonably tended to interfere
with, restrain, and coerce employees in the exercise of the rights guaranteed in Section
7 of the Act, Respondent' thereby violating Section 8(a) (1). In addition Umphrey's
interrogations and remarks reflected Respondent's hostile attitude toward the Union
and its attitude that an employee who wished to exercise his statutory right- to be
represented by a union was necessarily against and disloyal to the Company.
3. About September 1, according to the credited testimony of Walter Webb,
-General Foreman Jasper Sayre came up to his press where he was working and asked
him if he knew Runions. Webb replied that Runions was his brother-in-law. Sayre
-then asked him to speak to Runions "about the situation and see how he felt about
-the situation." About a week later 'Sayre came back and asked Webb if he had
-talked to Runions, and when Webb replied in the negative asked him why-he had not.
'Webb answered his question. As the Union and its organizational campaign were the
only taboo subjects in the record that supervisors and- management officials were
-shown to refer-to obliquely, I find on the entire-record that "the situation" referred
-to the Union and the organizational drive. Although Sayre denied Webb's testimony,
by his demeanor on cross-examination Sayre impressed me as an evasive and not
fully credible witness.
Upon the entire record considered as a whole, F find that Sayre's request that one
employee speak to another employee about the Union and find out how he felt about
the Union was company interference with employee rights guaranteed in Section 7
of the Act, Respondent thereby further violating Section 8 (a) (1). -
The Discriminatory Discharge of Malcolm Tarkington
Malcolm Tarkington worked for Respondent as a timekeeper for some 5i years
prior to his discharge on August 15, 1963. The record contained no suggestion that
lie was not a satisfactory employee.
In late July 1964, Tarkington signed a union card and passed out a number of other
union cards to be signed by employees. There was no specific proof of company
,knowledge of this specific union activity .4
In addition, Tarkington undertook, at the request of the union organizer, Hoyt
Wright, to obtain from a number of other timekeepers lists of company employees to
assist the Union -in making contact with employees. Tarkington was an employee,
and Section 7, of the Act gives employees "the right to . . . assist labor organiza-
tions ...." The record establishes conclusively that what Respondent learned of
Tarkington's requests for the lists was the precipitating cause for his discharge.
On the morning of August 14 timekeeper John Ingram volunteered to Personnel
-Director Smotherman that someone had asked him for a list of his employees.5 After
prodding as to who it was Ingram allowed only that it was a timekeeper on the first
-shift. Smotherman reported this to Plant Manager Flesher 6 who instructed Smother-
man to investigate further.7 Without success Smotherman then asked the heads of the
timekeeping department and a number of timekeepers for any information. Finally
4 According to the credited testimony of Tarkington, one day about this time, as
Tarkington was talking to another employee, Foreman Umphrey stood some distance
away staring at them.
5 The phrases "his employees," "their employees," etc, in this Decision refer to the
employees for whom a given timekeeper kept the time and records Respondent had about
35 timekeepers A timekeeper kept the time and records for one department, and possibly
.also for a second department or part of a second department, on his shift.
6 Robert A Flesher was also vice president in charge of production. -
7 Neither Smotherman nor Flesher asked if the timekeeper on the first shift requested
that the names be copied from company records. -
MURRAY-OHIO MFG. CO. 1545•
three other timekeepers admitted that they had been "contacted" for names of em-
ployees; and timekeeper Harley Holland said that timekeeper Charles Howell that
morning had borrowed his rate cards in order to make a list of his employees.
Smotherman then had Ingram sent in, and pressured and threatened him with dis-
charge unless he told; whereupon Ingram admitted that it was Tarkington who had
asked him for the list. Smotherman did not ask and Ingram did not say whether
Tarkington had requested that the names be copied from company records.
Next Smotherman had a supervisor of the timekeeping department, Parrino, get
from Howell the list the latter had made from Holland's cards, and armed with the
lists had Howell brought in for a long conference. Without telling Howell and
without Howell's knowledge Smotherman tape recorded this interview, the only
tape recording of a supervisory interview with an employee in the history of the
Company, according to company testimony. As I listened to this tape recording
during the hearing it sounded to me like the same conversation Howell testified about
for several hours on the witness stand. I received this tape recording in evidence as.
Respondent's version of this interview and a substantially correct transcription of the
tape recording is attached hereto as Appendix B. Upon thorough consideration of
Howell's testimony and of the tape recording, I credit the tape recording as the correct
version of the interview insofar as the tape recording goes. Howell's testimony as to,
a phrase allegedly used by Smotherman and not on the tape recording is set forth
below.
Personnel Director Smotherman testified that he tape recorded this interview be-
cause Plant Manager Flesher had told him that morning "that because of this thing,
he could put somebody in jail over this thing, or we could be in Court; and if that
was going to be true, I wanted to have a record of it." -Flesher testified he told
Smotherman that "if we have to we are going to send somebody to jail on this ...."
Flesher did not mention the "we could be in Court" idea. Smotherman testified that
he did not tape record his earlier interview with Ingram in his office "because I didn't
think Ingram had done anything wrong." It follows that at least one reason he tape
recorded the Howell interview was because he did believe Howell had done something,
"wrong." Smotherman testified that "during all this interview, I was trying to get to
the bottom of the extent of the involvement of Charles, himself .. . ." The question
arises as to what "involvement" and what "wrong" Smotherman was thinking of.
Upon the entire interview as reflected by the tape recording and the entire record
considered as a whole, I conclude that Smotherman was not only seeking confirma-
tion that Tarkington requested the names, but also was searching Howell for informa-
tion concerning the Union.
Smotherman's testimony as to his interviews with several timekeepers before his
August 14 interview with Howell suggested, if believed, that he was straightforward
and direct with them in searching for the identity for the timekeeper who requested
the lists of employees. In contrast, with Howell he was roundabout, indirect, and not
fully honest .9 At the beginning he did not forthrightly tell Howell that someone was
trying to get lists of employees, that Parrino (who was present during the interview)
had given Smotherman the list Howell,made up, and that Smotherman wanted to,
know for whom and for what Howell wanted the list. Rather, Smotherman opened'
the interview by telling Howell that "for several days 10 [in fact it was several hours]
we have been investigating something going on that are not right ... and you are in
trouble and if you want to tell us the full story on this thing ... well, will depend a
lot on the outcome of it as far as you are concerned and your job here." In another
moment Smotherman said, "You're not going to tell it to the point you're going to be
connected with the person, is that right?" Then, "Now if you don't tell your part in
this thing, well then you going to be linked with it ...." And then, ". . . that is
against the law, for the purpose it was intended." Shortly Smotherman told Howell,
"but now if you are not involved in it the thing for you to do is clear yourself." Then
Smotherman said, "I'm not asking you to squeal but I'm asking you your part in it."
8 This list included names but no clock numbers Smotherman testified that his original
timekeeper-informants told him they had been asked for lists of names and clock num-
bers ; but that at the time the decision was made to discharge Tarkington he understood
only names were involved, because he had seen only the list Howell made from Holland's
cards, which contained names but no clock numbers.
8 Smotherman's circumlocution with Howell and his pressure upon Howell are of added
significance in that before both went with Respondent Howell had been a student under
Smotherman when the latter was principal of Lawrence County High School.
10 All italics have been added for emphasis.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howell correctly understood that Smotherman was interrogating him not only
about lists of employees but also about the current organizing activities of the Union,
as witnessed by his statement: ". . . I didn't even know nothing was brewing like it
was in that department until I read that letter the other day. Far as knowing what
was up. First evidence I knowed of it anything about them trying to come back in."
"That letter" undoubtedly referred to the leaflet about union cards Respondent's
supervisors had shown and read to employees in July, which was the only written
propaganda used by the Company in the summer of 1963. "Them trying to come
back in" obviously referred to the efforts of the Union to organize the employees in
the summer of 1963.
Then, clearly referring to the Union, Smotherman asked, "But when this boy asked
you to get this list you didn't know why he wanted it?" When Howell admitted that
he didn't know why, Smotherman asked "and yet you were willing to do it" Then
Smotherman accused Howell of conspiring against the Company by knowingly plan-
ning to give "him " the list "to help him to use this against the Company ." When, a
moment later Smotherman first mentioned Tarkington's name and in substance asked
if Tarkington was the one for whom Howell had made up the list and Howell refused
to tell, Smotherman replied, "But you were going to tell the other people." In the
entire context of this interview, "other people" certainly referred to the Union; and
Howell so understood it, because he replied he didn't know about the other people or
anything about plans and that he had not signed a union card and was not for the
Union.
After again accusing Howell of conspiring against the Company Smotherman again
referred to the "persons that's giving confidential information to an outside source."
In the context of the entire coversation "outside source" referred to the Union.
Then for sometime Smotherman pressed Howell to "level with," to get "on the
square" with Smotherman, which to the latter meant that ". . . you are going to have
to be willing to plant your feet ... you are going to have to stand on your feet ...
are you willing to sink or are you going to stand? Are you going to go with the
other crowd, with this boy that's in trouble, or are you going to stand? .... So, what
I'm trying to get you to do, Charles, is to decide which side you are going to stand
on .... Now that's the choice you are going to have to make .... Where are you
going to place your loyalty? ... but you are going to have to take a stand, Charles
it is just that matter" During these remarks Smotherman observed, "You think you
got a pack out here among yourselves," and "this is not just the starting ... of the
conspiracy." His observations in this paragraph disclosed that Smotherman was
thinking and talking about the organizational efforts among the employees as well as
the efforts to obtain lists of employees.
Then Smotherman began instructing Howell how he could "clear his name" with
the Company. This could be accomplished by Howell's letting the Company know
that he had gotten "involved," that getting up the list of names was "all" he had done,
and that he was sorry. Smotherman's phrase "that this is all you have done" was
clear reference to all Howell had done to assist the Union . Soon Smotherman said
"... but you are in it ... if you link yourself there and you want to stay there. But
you're in it .... But I can tell the people that I am responsible to that you are honest,
you got talked into something, you are sorry and willing to stand up and be counted."
This obviously meant stand up and be counted against the Union and with the Com-
pany. "Now there are certain things of carrying loyalty to something that 's wrong
too far and if you want to level with me and reassure me that I know what I am
talking about."
When Howell raised the question as to why certain employees who were for the
Union and had signed cards in it became foremen , Smotherman explained , in part,
that all employees who "wanted to do the right thing" have an equal opportunity
"regardless of whether they made a mistake in the past." Here the "mistake in the
past" related solely to signing cards and being for the Union and not all to taking
confidential information and making lists of employees , for the latter was something
new and current and not something of the past. Smotherman added, "... what I'm
trying to get you to do is say you made a mistake here ... and what I want you to
do is have enough guts ... do you want to stand on the side of what's right or do you
want to stand on what's wrong? Now you know this is wrong ... there is always
a way of correcting a mistake ... I can clear your name." In the context of this part
of the conversation Howell could reasonably have understood that Smotherman was
referring to all of Howell 's assistance to and participation in the Union , and that for
Howell's name to be cleared with the Company it was necessary for Howell to give
MURRAY-OHIO MFG. co. 1547
assurance that he was through with-the Union. • This assurance he could give to the
Company, he was being told by Smotherman, by telling Smotherman the name of the
timekeeper who asked him for the list. "I want you to get on my side. The side
that's honest.... I want to prove .you're innocent, that you were talked into some-
thing. That you made a mistake and you are sorry . . . and you weren't giving that
information to an outside source.... I'm in the process of clearing some people's
names in this thing . . "
Smotherman ended the interview on the note that Howell should think it over and
Smotherman would talk with him again to see what he had decided, that "the out-
come is this, if you want to level with me and say ... I am a loyal employee. I got
involved in something I am sorry for, I don't want to have nothing to do with that
kind of conspiracy."
At the hearing Smotherman testified that during this conversation he grew to be-
lieve that it was Tarkington who had requested the information from Howell. He
got this idea from the fact that when Tarkington would "lead him to the point of
saying the name" Howell would never reply that it was not Tarkington but would
"refuse to state the name"; and these facts "led me to believe it was Malcolm."
Upon the above testimony as reflected by the tape recording, and upon the entire
record considered as a whole, I believe and find that Smotherman was interrogating
Howell not only about the lists of names of employees but also about Howell' s union
sympathy and activities and the union activities of other employees; and Smotherman
was also threatening Howell's job unless Howell abandoned all sympathy toward
and activity for the Union and indicated to Smotherman that he was doing so. At-
tempting to learn if someone was seeking information from company records would
not have been unlawful.11 But in this long tape recorded interview Smotherman
never once asked Howell if anyone was trying to get information from company
records; he just assumed it. Respondent cannot now, then, justify Smotherman's
interrogations and threats on the ground that Smotherman was seeking to learn who
was trying to get information from company documents. By Smotherman's interro-
gating Howell as he did concerning his and other employees' union sympathies and
activities, and by Smotherman's threatening Howell with economic reprisal unless
he abandoned the Union, Respondent interfered with, restrained, and coerced em-
ployees in the rights guaranteed in Section 7 of the Act, Respondent thereby further
violating Section 8(a) (1).
Howell testified that during the interview Smotherman said that it was a well-known
fact that Tarkington was working for Hoyt Wright (the union organizer). Respond-
ent strenuously contested this and introduced the tape recording to refute it. In view
of Smotherman's facile use of "right" and "wrong," and in view of the pressures,
intimidation, and innuendo to which Howell was subjected on this occasion, it is
little wonder that he left Smotherman's office with the impression that that was said.
However, in view of the above findings, observations, and conclusions, and upon all
the circumstances and the entire record considered as a whole, I conclude that it is
unnecessary for me to resolve this issue in the evidence.
On the afternoon of August 14 after the conference with Howell, Smotherman
reported what he had learned in his investigation to Plant Manager Flesher. Smoth-
erman testified that by the end of the interview with Howell he thought that the
names were wanted for the Union and that he so reported to Flesher. He also re-
ported that the first timekeeper-informant had identified Tarkington as the one who
requested the list. As he grew to believe in the Howell interview that it was Tarking-
ton who had also requested the list from Howell, and as he was making a full report
to Flesher, he surely must have reported this conclusion to his superior. So Flesher
then knew that Tarkington had asked one timekeeper for names, probably had asked
another, that several others had been asked by someone, and that probably the names
were wanted for the Union. Despite this Flesher incredibly testified that it never
occurred to him that there was any connection between Howell and Tarkington and
it never occurred to him that the names were wanted for a union or organizational
purpose. Flesher's testimony is not credited. Further, on cross-examination Flesher
admitted that after this conversation he telephoned his labor lawyer long distance;
which it is doubtful he would have done had he not suspected that the Union was
involved in Tarkington's activity.
Flesher testified in substance that after receiving Smotherman's report of his in-
vestigation thus far, Flesher told him ". . . there is more to this then we've got so far.
" See Montgomery Ward cE Co., Incorporated, 146 NLRB 76.
J
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I want you to get out there and really investigate this thing and see if there is anybody
else into it." [Emphasis supplied.] Under all the circumstances of this case and
upon the entire record, I believe and find that Flesher's instructions were intended
and understood to include union activities going on as well as requests for lists.12
Smotherman then had an assistant personnel director, Buck Knott, interrogate the
timekeepers on the second and third shifts for any further information about requests
for lists; and late that night Knott reported to Smotherman over the telephone that
one of the timekeepers admitted he had been contacted for a list by Tarkington.
The following morning, August 15, Smotherman reported this new fact to Flesher,
who directed the actions Smotherman then took; Smotherman discharged Tarkington,
suspended Howell for 3 days, admonished Holland, and called meetings of time-
keepers and spoke to them.
Smotherman had Tarkington sent in, read to him the reason for the discharge from
a discharge paper, and then handed Tarkington the paper. The stated reason for
the discharge was: "Attempting to obtain unauthorized and confidential data and
information from company records." Smotherman testified that at this time he was
certain that Tarkington had not actually obtained any lists of names but had only
tried to, and the record showed that this was in fact the state of Smotherman's
knowledge. Smotherman discharged Tarkington without asking Tarkington any
questions about the matter, and without asking him if he did what he was accused
of doing and if so why. Thus Respondent concluded its "investigation" and acted
upon its conclusions without ever getting the victim's version of the facts or giving
him an opportunity to give them. Had he been given an opportunity Tarkington
would have informed Smotherman, as he credibly testified, that in fact he did not
ask the timekeepers for confidential information from company records. What he
asked them for was a list of their employees. He knew, as all timekeepers knew,
that timekeeprs knew their names (and clock numbers, too) by heart, since they
worked with them all day long every day. Tarkington knew that the timekeepers
could make lists of their employees from memory and so it is unlikely that he would
have asked them to obtain the information from company records. At the hearing
the record established that timekeepers knew their names by memory. Flesher and
Smotherman surely knew this. Respondent did not contend otherwise.
After Tarkington had been discharged he asked Smotherman if Tarkington' s being
for the Union had anything to do with his discharge. Smotherman replied, according
to the credited testimony of Tarkington, that Smotherman did not know Tarkington
was for the Union. This was certainly not the full truth because, as seen above,
the afternoon before Smotherman had suspected that Tarkington wanted the lists of
names for the Union and had so reported to Flesher. Smotherman's nondisclosure
to Tarkington of what he suspected suggests that Smotherman was hiding something
from Tarkington. That he hid something from the discharge in the terminal inter-
view suggests that the reason given for the termination was but a pretext and not the
real reason for the discharge. If the stated reason was the real reason, it does not
appear why Smotherman should not have admitted to Tarkington that he suspected
the lists were wanted for the Union and suspected Tarkington was for the Union.
After discharging Tarkington, Smotherman again pressured Howell until this
time Howell admitted it was Tarkington who had asked him for the list; then Smoth-
erman suspended Howell for 3 days giving as the reason, according to the credited
testimony of Howell, assisting in giving confidential information to outsiders. Then
Smotherman admonished Holland and gave him an "incident report" for loaning
Howell his rate cards. The General Counsel did not contend that these acts by
Respondent were violations of the Act.
Respondent contends in substance that there was no discrimination against Tark-
ington because the two others were also disciplined. But Tarkington was treated
differently from all other employees in that he was discharged because he was suspected
of assisting the Union, and this was an act of discrimination by Respondent.
Then on August 15 and 16 Smotherman spoke to meetings of timekeepers on each
of the three shifts, telling them substantially the same things. He told them that
Tarkington had been discharged and gave as the reason, according to the credited
testimony of timekeeper Nix, that he gave confidential information to outsiders. He
told them their jobs were confidential and they should have known it. He told them
12 Flesher also verbally reprimanded Smotherman for tape recording the interview on
the ground it was against company policy and would embarrass the Company with em-
ployees if they learned about it. But Flesher did not consider discharging Smotherman
for this infraction of company policy even though it might have and may have seriously
affected the relationship between management and employees.
MURRAY-OHIO MFG. CO. 1549
that probably Tarkington or some outsider would contact them and ask them to make
a statement, that if they did they should tell the truth and that they were entitled to
,a copy of the statement. Smotherman testified he told them that if they had any prob-
lems or gripes they should talk them over with the heads of the timekeeping depart-
ment or come and see him. In view of this testimony, as in the tape recorded
interview where Smotherman used such phrases as "outside source," "other people,"
"used against the company," "other crowd," "conspiracy," and in the light of the entire
record, I credit the testimony of timekeeper Nix, who by his demeanor impressed me
as a reliable and truthful witness, that Smotherman also said that if any other time-
keepers had been doing anything they shouldn't, they should search their souls and
that if they signed a statement they would be "going against the Company." Smoth-
erman's reference to Tarkington's having given information to outsiders, to an out-
sider requesting a statement, that if they gave a statement they would be going against
the Company, and that if they have done anything they should not they should search
their souls, are further indications that in the Tarkington discharge a few hours before,
Respondent was motivated by its suspicion that the names were wanted for the Union.
His statement, in the context, that their jobs were confidential and that they should
have known it, indicated an awareness that they may not have known it, and a desire
to create evidence of confidentiality for defense of a Board case over the discharge
of Tarkington if one should eventuate. Smotherman's imperative that if they had
done anything "wrong" they should "search their souls" was not confined, in the
entire context, to giving out lists of employees, but went beyond that and could rea-
sonably have been construed by the timekeepers as including membership in or
assistance to the Union.
Respondent's contention in defense of the Tarkington discharge was in substance
that the timekeeper's job was confidential and that therefore it was a discharge for
cause. This defense falls for a number of reasons. In the first place the testimony
,established that no substantial changes have been made in the job of timekeepers since
1957, and in 1957 the Board included timekeepers in a production and maintenance
unit even though Respondent contended they should be excluded.13 In the second
place, confidentiality was not mentioned in the only written list of instructions given
timekeepers in recent years, which Tarkington credibly testified was given them
about'2 or 3 years ago: In- the third place the records showed that the only part of
their records some seven timekeepers were ever told by supervisors was confidential
was the wage rates 14 of employees and that they were not to give out rates except
to tell an employee what he himself made. This was to minimize bitterness and was
all these timekeepers understood was confidential. Fourth, although Plant Manager
and Vice President Flesher testified in substance that the Company did not want the
names of its employees to go to its competitors , the evidence shows, as has been seen
above, that 'Smotherman and Flesher suspected Tarkington wanted the names for
the Union , not for a competitor . Flesher admitted on cross-examination that one
of the reasons the Company attempts to keep names of employees confidential is to
thwart the efforts of unions. Fifth, many of the names of Respondent 's employees,
their occupations, addresses, and telephone numbers, were already public property
because they appeared in a city directly which included Lawrenceburg and two other
towns 5 and 7 miles distant; and also because Respondent publishes a house organ
monthly which contains, names and pictures of employees and discusses employee
activities such as basketball, bowling, hunting, etc. Further, names of bowling team
members appear in local newspapers. in view of all this disclosure it is doubtful if
Respondent regards the names as so secret after all, except for the purposes of this
case.15
Respondent's defense of confidentiality of company documents fall as a defense,
however, for the overriding reason that it discharged Tarkington allegedly for seeking
information from company records without ever investigating whether in fact Tarking-
33118 NLRB 1027, 1028, of which I take official notice The Board's Decision did not
indicate that there the Employer contended the timekeepers were confidential employees,
although here Respondent stated that there it did. Prior to this representation case hear-
ing.Respondent told its timekeepers it considered them as confidential employees
"In substance timekeepers Tarkington, Nix, Howell, Joe Brewer, Washburn, Price, and
Bradburn credibly so testified.
"There was much testimony as to whether names of employees could be seen from the
clock cards in the clock card racks without moving them Upon the entire record I find
it unnecessary to a solution of the issues for this testimony to be set forth or analyzed.
1550 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
ton had done that . Smotherman 's only evidence or basis of suspicion that company
records had been used was the fact that Howell had borrowed Holland 's rate cards
and presumably made the list Smotherman had in his possession from those cards.
No company agent ever asked Tarkington or any other timekeeper , including Howell,
if in fact Tarkington had asked him to make up a list from company records.' This.
case is therefore distinguishable from Clearwater Finishing Company, 100 NLRB
1473 (enforcement denied 203 F. 2d 938 (C.A. 4), where the requested information
necessarily had to be obtained from company records.
At the hearing Plant Manager Flesher testified he would not discharge an employee
for giving out a list of names of men he knew because he worked with them. But if
he learned the names from working with the names and knowing the men who went
with the names, as in the Tarkington case, Respondent contends it was discharge for
cause.
What Respondent really contends , without ever quite saying so, is that if a company
calls a given job confidential , then all information acquired on that job is confidential,
such that asking the knowledgeable employee to reveal any of it is good cause for
discharge . If this were the law a company could prevent all employees from reveal-
ing to a union the names of any fellow workers and thus thwart Section 7 of the Act
.by the simple device of telling all employees they were confidential employees and
that the names of fellow workers was confidential information.
Conclusions
In asking several timekeepers for lists of their employees to help the Union make
contact with employees,16 Tarkington was attempting to assist the Union, a right of
employees protected by Section 7 of the Act.17 Under all the circumstances of this
case, his was protected union activity. Timekeepers had been included by the Board
in the production and maintenance unit and permitted to vote , which facts Union
Organizer Wright (who had been on the scene since Respondent moved to Tennessee)
must have kown . " Timekeepers ' jobs had not changed . Tarkington engaged in no
disloyal act to the Company. He told the timekeepers he wanted the names'for:the
union organizer , and so he did not deceive them . He' did not ask timekeepers to
copy, the names from company documents. He engaged in no breach of trust in
asking for the names; he told Smotherman in the severance interview that he did not
know the names were confidential and he credibly testified that he did not know
that; Smotherman did not dispute this point with him. Tarkington had no intent to
injure his employer, but only to help the Union.
The entire record reveals, and I conclude, that Respondent suspected that Tarking-
ton wanted the names of employees for the Union , and Respondent discharged
Tarkington to make an example of him to other employees who might be inclined
to join , form, or assist the Union , and to thereby thwart the union organizational
efforts in the summer of 1963. Respondent is admittedly hostile to the Union and
does not accept the principle of collective bargaining . The entire record reveals
that names of employees suddenly became confidential because Respondent suspected
they were wanted for the Union , and that Respondent conducted an "investigation"
in order to establish a pretext for discharging the employee who sought the names
for the Union . By discriminatorily discharging Tarkington to defeat the organizing
efforts Respondent discouraged sympathy, membership, and activity in the Union,
Respondent thereby violating Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with- the operations of Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
1G I credit Tarkington's testimony that he told them he wanted the names for the union
organizer.
17 Cf. The Great Atlantic & Pacific Tea Company 123 NLRB 747, 756-757; Whstin
Machine Works, 100 NLRB 279, 284, enfd 204 F 2d 8S3 (C A 1) ; St. Loins Car Com-
pany, 108 NLRB 1523, 1524-1525
MURRAY-OHIO MFG. CO. 1551
Respondent having unlawfully discharged Malcolm Tarkington because of his
actual or suspected union activities, and not having offered him reinstatement, I rec-
ommend that Respondent offer to Tarkington immediate and full reinstatement to
his former or substantially equivalent position,18 without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay he may
have suffered by reason of the discrimination against him by payment to him of a
sum of money equal to that which he normally would have earned as wages from
the date of his discharge, August 15, 1963, the date of the discrimination against
him, to the date when, pursuant to the recommendations herein, Respondent shall
offer him reinstatement , less his net earnings during said period (Crossett Lumber
Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289. The backpay obligation of Respondent shall include the payment of
interest at the rate of 6. percent to be computed in the manner set forth in Isis
Plumbing & Heating C., 138 NLRB 716. As provided in the Woolworth case, I
recommend further that Respondent make available to the Board, on request, pay-
roll and other records in order to facilitate the checking of the amount of backpay
due.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act and the danger of their commis-
sion in the future is to be anticipated from the Respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order therefore to make more effective the interdependent guar-
antees of Section 7, to prevent a recurrence of unfair practices, and thereby mini-
mize industrial strife which burdens and obstructs commerce and thus effectuate the
policies of the Act, I shall recommend that Respondent be ordered to cease and
desist from infringing in any manner upon the rights guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Murray-Ohio Mfg. Co. of Lawrenceburg, Tennessee, is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, UAW-AFL'-CIO, is a labor organization within the meaning
of Section 2(6) and (7) of the Act.
3. By interrogating employees as to their and other employees ' union sympathies,
attitudes, and activities and whether certain employees have signed union cards, and
by threatening discharge unless an employee abandoned the Union, and by other
acts, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Malcolm
Tarkington, thereby discouraging membership in International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers of America, UAW-AFL-CIO,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case considered as a whole. I recommend that the Respond-
ent, Murray-Ohio Mfg. Co. of Lawrenceburg, Tennessee, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America, UAW-AFL-CIO, or any
other labor organization of its employees, by discriminating in regard to the hire
and tenure of their employment or any term or condition of employment.
(b) Interrogating employees as to their and other employees' union sympathies,
attitudes, and activities and whether certain employees have signed union cards.
(c) Threatening employees with discharge unless they abandon the Union.
"The Chase National Bank of the City of New, York, San Juan, Puerto Rico, Branch,
65 NLItB 827 r . „ •
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) In any other manner interfering with , restraining, or coercing its employees
in the exercise of their rights to self-organization , to form labor organizations, to
join or assist International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW-AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing , and to engage
in concerted activities for the purposes of collective bargaining or other mutual aid
or protection , or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer reinstatement to Malcolm Tarkington in accordance with the recommen-
dations set forth in the section entitled "The Remedy."
(b) Make whole Malcolm Tarkington for any loss of pay he may have suffered
by reason of Respondent 's discrimination against him in accordance with the rec-
ommendations set forth in the section entitled "The Remedy."
(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 records necessary to analyze the amount
of backpay due and the rights of Malcolm Tarkington under the terms of this Rec-
ommended Order.
(d) Post at its plant in Lawrenceburg , Tennessee , copies of the attached notice
marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional
Director for Region 26 (Memphis , Tennessee ), shall, after being signed by the rep-
resentative of Respondent , be posted by Respondent immediately upon receipt
thereof, be maintained by it for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to all employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 26, in writing, within 20 days from
the date of this Decision , what steps the Respondent has taken to comply herewith.20
"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 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 "
° If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 26, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
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, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aerospace,& Agricultural Implement Workers of America, UAW-AFL-
CIO, or any other labor organization by discriminating against our employees
in any manner in regard to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT unlawfully interrogate our employees concerning their or other
employees ' union sympathies , attitudes , and activities or whether certain em-
ployees have signed union cards.
WE WILL NOT threaten employees that unless they abandon the Union they
will be discharged.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of the rights to self-organization, to form labor or-
ganizations , to join or assist International Union, United Automobile , Aerospace
& Agricultural Implement Workers of America, UAW-AFL-CIO, or any other
labor organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain from any and all such
activities.-
WE WILL offer to Malcolm Tarkington immediate and full reinstatement to
his former or substantially equivalent position , without regard to his seniority
and other rights and privileges previously enjoyed.
MURRAY-OHIO MFG. CO. 1553
WE WILL make whole Malcolm Tarkington for any loss of pay suffered by
him by reason of the discrimination practiced against'him in accordance with
the Recommended Order of the Trial Examiner's Decision.
All our employees are free to become or refrain from becoming members of the
above-named labor organization.
MURRAY-OHIO MFG. CO.,
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.
Employees may communicate directly with the Board's Regional Office, 746 Fed-
eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any questions concerning this notice or if they have informa-
tion that its provisions are being violated.
APPENDIX B
Smotherman-Hello, Charles. I don't-know whether you know why I called you
in here or not, but for several days we have been investigating some things going on
that are not right and we are in the process now of talking with certain individuals
and you are in trouble and if you want to tell us the full story on this thing, Charles,
well, will depend a lot on the outcome of it as far as you are concerned and your job
here.
Howell-Well, I was asked to get the names of the people in department 58 and
59. Harley's department.
S. Who asked you?
H. I'm not going to tell that.
S. Well we know who it was and your job depends on what you tell me, Charles.
H. I'm not going to tell you.
S. You're not going to tell it to the point you're going to be connected with the
person, is that right?
H. . . . as far as the cards ... as far as my department is concerned there hasn't
been one made out, as far as I know. I wasn't asked to make out mine. I don't
know ... why I don't know. But if I could-have used sense and could have asked
Harley some questions like I did.
S. Well I know who asked you, Charles. Now if you don't tell your part in this
thing, well then you're going to be linked with it because.
H. It's as my part ... except for what.
S. I don't know whether you realize the seriousness of this matter that is against
the law, for the purpose it was intended. I've got your hand writing and I've got
evidence that you did it.
H. Sure I did it. I don't care. I don't lie because if I lied, I could have told Frank
a lie.
S. That's the reason I'm talking to you. I'm trying to help you, Charles, I want to
clear you.
H. Well, if I tell it still wouldn't clear me, would it?
S. There is always cases of leniency and the reason I'm talking to you-nobody
knows it but just this man (Frank Parrino) and myself and you. And Frank is con-
fidential. Frank won't say a word and I'm not going to say a word but now if you are
not involved in it the thing for you to do is clear yourself.
H. Not right now. I'm not going to squeal on nobody.
S. I'm not asking you to squeal but I'm asking you your part in it.
H. Well, that's my part.
S. Because I know who asked you.
H. As far as I'm concerned this is the truth of it. Far as I'm concerned I didn't
even know nothing was brewing like it was in that department until I read that letter
the other day. Far as knowing what was up. First evidence I knowed of it anything
about them trying to come back in.
S. But when this boy asked you to get this list you didn't know why he wanted it?
(Phone rings)
H. Right then I did. I know what that was for, what was up.
S. And yet you were willing to do it?
H. Well, he wanted it.
769-577-65-vol. 148-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. Did he offer.you money?
H. No.
S. Do you realize now the position this put you in?
H. Yes sir.
S. As conspiring against the company. You realize that?
H. Yes. As far as conspiring, I wasn't.
S. It's all right with you to conspire against the company, is that right?
H. Well I, far as the intention of my mind, I wasn't.
S. But you gave it to him-you were going to give it to him to help him to use this
against the company.
H. Yes, I guess that's right.
S. What did he tell you.
H. What he told me the other day?
S. What did he ask you?
H. Just asked me if I could get names for him in 58 and I told him I probably
could.
S. Have you talked to him since Frank talked to you?
H. Haven't talked to nobody.
S. Have you been approached by more than one person , about getting this list of
names?
H. No.
S. When did this happen? When did he talk with you?
H. Yesterday morning.
S. Yesterday? That was, yesterday was the Tuesday the 13th. Was this before
work or during work time or break time?
H. At break.
S. Now, Charles, Before you leave out of this room I just want to understand the
seriousness of this thing. Because you know that these records are confidential ...
this list of names of employees, you knew this was confidential. You knew this was
confidential.
H. So far as the company ....?
S. Yes, did you know it?
H. No. Not as far as names, because everybody knows who works here.
S. Why did you think he wanted it?
H. I know why he wanted it. But I mean as far as the rate cards are confiden-
tial.... If they are confidential, they should be kept locked up because I know they
cause a lot of disturbance in 45 and all over as far as I know. Look at the card and
put it in the rack.
S. Who let you get in there?
H. I helped myself. The desk was unlocked ... just laying in the drawer.
S. Did Richard Tarkington, Malcolm Tarkington sound normal to you? Do you
know Malcolm?
H. I'll be honest with you, even if it costs me my job. I'm not going to tell be-
cause it 's not any need of me doing like that, and I'm not going to ....
S. But you were going to tell the other people.
H. No. As far as the other people concerned, I don't know anything about it. I
don't know anything about plans, and I'm telling you the truth. Far as union cards,
I haven't signed no card ... far as I know never had. I'm not for the union.
S. I'm not accusing you of that. But you don't see how this links you to conspiring
against the comapny with this boy?
H. Well, not clear, I don't.
S. You don't see where you are connected?
H. Well, of course, he asked me. I didn't ....
S. Now, Charles, I called you in here to try to help you. Wanted to try and show
you the seriousness of this thing.
H. Far as that goes, you know there are men out there that's for the union ... by
working with them, but if I should tell it would not help matters none there is
some in the department ....
S. But this is a different case all together. I'm not talking about who is for the
union . I'm talking about the person that's giving confidential company information
to an outside source. Now, that's the situation you are a party to .... I'm not talk-
ing about who is for the union and who is not. That's another matter. Now, I
haven't accused you of being for the union, have I?
H. No, sir.
MURRAY-OHIO MFG. CO. 1555
S. But the thing that I want you to clear up, are you a party to a conspiracy to
reveal company's confidential records? Through another timekeeper for him to turn
over to an outside source?
H. Well, I probably didn 't realize-this is the first and the last.
S. Now you realize that your name is going to be involved.
H. Well, if I should tell it still would ....
S. But it puts me on a different basis with you. As long as you don't want to level
with me, when you know that I know, it leave me to believe , Charles, that you wanted
to stay with the boy that 's trying to conspire against the company . Now I'm in a
position to recommend leniency for you if you want to level with me.
H. Yeah , let's put it this way ....
S. But I know who it is. And-I 'm waiting for you to tell me the truth.
H. Yeah , but with a friend it 's a little bit different.
S. And I 'm not your friend?
H. Well, you 're my friend but not working ....
S. Am I not your friend?
H. And , if I should tell, well you would tell him.
S. I'm not going to tell him nothing.
H. You 'll have to.
S. I've got it from other sources . You're not the ony one involved .... See what
I mean ....
H. You 'll have to tell him.
S. I won't have to tell him your name because there are other people involved.
H. If it come to it you would have to tell him.
S. What's that going to mean ? There are other people involved with you.
H. With me?
S. Yes!
H. On the same thing? Same situation I'm in?
S. Right, right , right. And they caught the man and what I'm trying to do is get
you on the square . I mean , it's already been squared with me and other people.
H. It wouldn't be squared-with me. I'm not carrying tales. If I should tell-the`
office is intelligent-you all know things that are going on. Still if I should tell it
wouldn't help the situation as far as I'm concerned.
S. Yes, it will . Because it lets me know you are leveling with me, because I already
know, and you know I know, so you are not telling me nothing I don't know. Ex-
cept, I want you to level with me.
H. Well, if you know and I know you know well then you know.
S. That's right. Don't I know? Huh?
H. Well, I 'm not going to tell you right now.
S. I want to help you . I want to help you, Charles. If you go right out here and
ask this boy if it's all right for you to tell me his name you are just wasting time.
H. Why, of course, I know that . I'm not going to do that . First time ... far as
that goes, first time he ever asked me anything about it.
S. You see, you're not the only one involved . I've already talked to some other
boys.
H. Did they tell you? -
S. Huh?
H. Did they tell you?
S. Yes.
H. No, they never.
S. Don't you think I have any friends out here?
H. I hope I'm your friend.
S. You are, but you haven 't cleared yourself.
H. Well, I 'm not going to clear myself.
S. You think you got a pack out here among yourselves.
H. No, I ain't got no pack out there.
S. Charles, I don't want to see you hang.
H. I'm not going to hang.
S. Huh?
S. Is your job not important to you?
H. Well, of course, I appreciate the fact I got a job.
S. You realize what the statement that you would carry away from here in the way
of reputation as doing something that is dishonest would mean to you now and in the
future? You hadn 't thought of that, had you?
H. Well, not particularly. Well, actually , I wasn 't dishonest.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. This is not dishonest to pass out information that you know yourself is con-
fidential? That's not being dishonest? Now you don't want that kind of reputation
because when you leave here you are going to have to have a recommendation, boy
to get a job. What I'm trying to do is to help you. But you are going to have to be
willing to stand up regardless of what happens. You've got a brother working here,
haven't you?
H. Yes.
S. And you are going to have to be willing to plant your feet. Now, here you are
going to have to stand on your feet.
H. I know it.
S. Are you willing to sink or are you going to stand? Are you going to go with
the other crowd, with the boy that's in trouble, or are you going to stand?
H. Far as that goes, I'm in now anyway, probably.
S. Why do you think I'm talking to you? Haven't talked to the other guy?
H. I don't believe you have talked to the other individuals.
S. I wouldn't lie to you. I got no reason to lie to you.
H. I don't believe they told you all that.
S. I wouldn't lie to you. And I got friends out here. And this just didn't happen
today. This is not just the starting of this.
H. Well, my part is.
S. I know it is for your part but not the starting of the conspiracy.
H. I don't know about that. That's my part of it.
S. So, what I'm trying to get you to do, Charles, is to decide which side you want to
stand on. Are you going to stand on this side or are you going to stand on his? And
are you going to help me or are you going to help him? Now that's the choice you're
going to have to make.
H. I don't believe you talked to no timekeepers. I don't believe they told you.
S. Now I'm not going to tell you who I talked to because I don't think that's the
issue . But I'm telling you I know who it is. And the question is, Charles, are you
going to stand up in defense of this side? Are you going to stand up in defense of this
side? Or of the other side? Where are you going to place your loyalty? Are you
going to sink here or are you going to sink there ? But I 'm telling you I'm in a position
to help you.
H. I'm not going to call no names right now.
S. I've got enough evidence right here, boy, to fire you.
H. I know it, but as far as that goes , I can another job, as far as that goes.
S. But, why have the reputation that you would have with it?
H. You just don't need that word.' That don't clear me.
S. It clear you to this point that you realize the seriousness of it and come hell or
high water, you are going to try to make things right. Now, I'm not telling you that
you're not going to have to take a stand, you are. But you're going to have to take a
stand, Charles, it is just that matter. Now if I have to go down to court, you are
going to be subpoenaed and you are going to have to take a stand . Because you have
already told me in front of this man that a timekeeper asked you to get this.
H. No. I didn 't say it was a timekeeper.
S. Well, I know it was a timekeeper and you know it was a timekeeper. And I'm
telling you that I've already been told who it was that asked you.
H. By a timekeeper?
S. Pardon?
H. Don 't believe you been told by a timekeeper.
S. But I have.
H. Far as me telling you and you would go there and tell that Charles Howell said
that he did. So there you go. Would have to come out.
S. That's right. Going to have to come out anyway. Now, the way you can clear
yourself, Charles, is this and I want you to listen to me very carefully. That you got
involved, here's the evidence right here than you got involved but now you want to
clear your name. That this is all you have done and that you are sorry. If you have
to go down here on the witness stand you're going to have to say something. You
can't sit up there and not say nothing. Can you?
H. I know it. Some of the rest of them going to tell you too?
S. I've already been told. I've . keep trying to tell you.
H. I don't believe you. You can't pull the wool over my eyes.
S. Did I name the guy to you? Look at me. Didn't I name him to you?
H. I'm not going to say right now.
S. Do you think I would lie to you? Didn't I name the guy to you? Look at me.
H. I'm not going to say nothing.
MURRAY-OHIO MFG. CO . 1557.
S. But didn't I name him to you? How you think I found out? I've got friends.
H. Circumstantial evidence.
S. Not circumstantial evidence. Why did I send Frank Parrino over there to pick
this up from you.
H. Because I guess you knowed I made one out.
S. How did I know? Huh?
H. By Richard Krueger, I guess
S. Richard Krueger doesn't know about your business. He wouldn't know a thing
about your business. I tell you something else that's important far as you are con-
cerned. You need to try to set the records straight where we don't punish somebody
that's innocent. You got a responsibility in that too.
H. I, if I think I'm going to punish the wrong man out there, I'll tell you.
S. But you do realize the seriousness of this?
H. That's right. I understand that.
S. You don't want to say who?
H. No, not right now.
S. How long do you want to think about it?
H. Well-we'll think about-if I was to tell you and that would be it, I wouldn't
care-and that would be it.
S. Look! I'm in a position to help. I'm in a position to hurt you.
H. That right.
S. The only reason I called you in here was that. Now does that not mean any-
thing to you?
H. . . . That's right it does but if you know all these things .. . .
S. But you don't get the point.
H. Yeah, I do.
S. But I could clear you.
H. But look at my point.
S. You're trying to protect somebody that talked you into doing something wrong.
I'll tell you what you've done. I'm trying to talk you into doing something right.
That's a big issue. It's difference in right and wrong. You knew when this boy
talked to you that that was wrong. Now didn't you?
H. I probably knew it was wrong.
S. Let's stop right there.
H. But illegal, I didn't
S. But you knew it was wrong. All tight,. Now, what I'm talking to you about is
something that's right. And I'm saying if you want to get right; if you will tell me
who, then I will believe you I can clear you. But I cannot clear you as long as ....
H. The guy that told you that might not know what he was talking about.
S. Huh?
H. The guy that told you that might not know what he was talking about.
S. But this is evidence.
H. I know, far as that, I could have kept you from getting that if I had wanted to-
but.
S. But you are honest. I'm giving you credit for that. I'm not trying to high-
pressure you in anything but you are in it. You're in it so I can help you if you will
help me. But I can't help if you don't help me, because I'm gonna . . . . If you
link yourself there and you want to stay there. I can't help you. But you're in it
. But you're in it .
H. If I did tell you, if you would get mad it wouldn't matter and I would still be
in it.
S. But I can tell the people that I'm responsible to that you are honest, you got
talked into something, you're sorry, you're regretful and willing to stand up and be
counted. You see? So far as the other guy, when I talk to him, the guy that talked to
you, I would not use your name.
H. Well, you would. You would have to.
S. I don't have to use your name. Because he talked-to other people, and I know
he has because they told me he did.
H. Now, I don't believe they did.
S. Now why would I lie to you?
H. I don't know. I got no reason to . '.. I believe you did.
S. He made a slip. He made about two slips.
H. I don't know what that . .
S. I would say he made a third slip. But th long and tall of it is that you are in it.
Now let's go from there. Do you want to stand over here with me or do you want to
stand over here with him?
H. Well....
;1558 DECISIONS OF 'NATIONAL -LABOR RELATIONS BOARD
S. Now there are certain things of carrying loyalty to something that's wrong too
far (phone rings) . and if you want to level with me and reassure me that I
know what I'm talking about. Maybe there are two people involved. I know one
that's involved and I don't want to fire somebody that's not guilty.
H.
S. You know who asked you.
(Buzzer.)
S. (Phone conversation.) Hello uh pretty good. I'll be out in a few minutes.
All right sir. Fine.
H. As far as telling you who it is and he should be fired, then there is nothing to
assure me that I won't be either. Yeah, now I can't go by that.
S. I'm in a position to help you or hurt,you. And I called you in here to help you.
H. Now this is beside the point.
S. O. K.
H. I'm making right here, but there is a lot of men out there, now I'm not going
as we said before you who's for the union or against it.
S. That's right. That's right.
H. But there is a lot of them for the union, signed cards and all and today'they
are foremen . Now why?
S. We've tried to do this, Charles. We have tried to take the most qualified people
here and promote them, not only into jobs of management but to give every employee
that we have here an opportunity. Now the people that we have promoted into ranks
of management , or into other jobs such as timestudy and any other job-we have
tried to do it on a basis of qualifications . Now you talk to your brother, if we
didn't do that. But I also believe, Charles, that the people that work here that "want
to do the right thing, regardless of whether they made a mistake in the past or
whether they haven't, have an equal opportunity and I'm trying to give you an equal,
opportunity. Now have these people here been good to you? They haven't mis-
treated you, have they?
H. Naw. Fair.
S. I mean I'm not trying to judge whether we have made a mistake or not and I'm
not saying we haven't, because we are human, but what I'm trying to get you to do is
say you made a mistake here.
H. Sure, as far as that I probably, I mean I did. I guess ... .
S. You know you did. And what I want you to do is have enough guts.
H. That's not all there is to it. There's more.
S. What do you call it?
H. I don't know.
S. Do you want to stand on the side of what's right or do you want to stand on
what's wrong? Now you know this is wrong!
H. Yes, but if I stand on the side that's right, that doesn't mean nothing. Why ....
S. Means a whole lot. Your folks have taught you all your life to be honest and
to stand on what's right.
H. Yes, I know that.
S. Stand on what's right. But they never did tell you that you would never make
a mistake. There's always a way of correcting a mistake.
H. But if I should tell you, maybe I'm fired today, maybe I'm fired tomorrow.
S. I can 't guarantee you your job but I'm telling you if you want to get honest with
me that I can help you, I can clear your name. Don't you want to clear your name?
H. Well . . . . I don't ... .
S. All I want you to do is say yes or no. Am I right on the boy that I called his
name to you. Say yes or no.
H. If I was to say no or yes I still would not be the one to call his name.
S. That's right, you still wouldn't be calling his name but I'm giving you an escape
hatch.
H. Well, I'd say you are pretty close . . . but I . . . as far as .. . I don't want
to be the cause of nobody getting fired.
S. I don't either because I have to do the firing and that hurts me. You know how
much I loved boys and girls when I had you over there at school. But I used to have
to whip some of them's tails. I want you to get on my side. I want you to get on the
side that's honest.
H. But if I did , that wouldn't give me no assurance of nothing . If I'm going to be
fired over that.
MURRAY-OHIO MFG. CO. 1559
S. Does my word mean anything to you? Boy I'm trying to tell you that I'm
trying to clear your name. -
H. Yes, but what won't hold up tomorrow, maybe.' I mean-of course-if I lose
my job, of course there is other jobs besides this one,- far.as that goes.
S. But you don't want the reputation ....
H. But if I'm going to be fired tomorrow ... well,
S. I'm not going to fire you tomorrow.
H. Well, I mean, if he's going to be fired and you turn around'and fire me then I
might as well keep my mouth shut. ,
S. No. I want to prove your innocence.
H. But that wouldn't prove my innocence toward that.
S. I want to prove your innocence, that you were talked into something. That
you made a mistake and you are sorry.
H. But as far as-I mean-I know it. But as far as . . .
S. And you weren't giving that information to an outside source.
H. Far as that goes, you got evidence that will stand more than words would.
S. I want to know who. That's the only thing that stands between you and I.
H. If you have been told half a dozen times who, that ought to-be enough.
S. I want you to tell me.
H. I don't believe you've been told yet.
S. Didn't I call the boy's name to you?
H. Yeah. That's not fair.
S. Charles, I've got a lot to do.
H. I have too. That work's just piling up. I just can't tell you today. I can't say.
S. But I want to tell you this, I want you to go out here and remember it, that what
I say to you is the truth and I know who it is. I've been told. And I'm not through
investigating that department but I want to wind your case up today.
H. I'll tell you what to do.
S. O.K. -
H. You investigate from one end fo the other . . . sick . . . and in the meantime
you say nothing and I'll say nothing.
S. All right. Okay. So I'm going to level with you. You going to keep this quiet
and I'm going to keep this quiet and I'm going to talk to you after I complete my
investigation and I am going to see where you wanta stand. Is that fair enough?
This can be easy for you, Charles.
H. If the rest of them did too . . . but as far as that ... but I don't know who
the rest of them are.
S. But I do.
H. But there must be more than me.
S. There is. And I am in the-process of clearing some people's names in this thing.
It's not going to be easy for you, Charles, there is no way for it to be easy.
H. What is the outcome?
S. The outcome is this, if you want to level with me and say, "Cromer, I'm a loyal
employee. I got involved in something I am sorry for, I don't want to have nothing
to do with that kind of conspiracy."
H. . no need me telling you that. Right?
S. You may have to take a stand or you may not have to take a stand, but I'm
telling you that you aren't the only one that I talked to and I'm telling you I have been
told and I know who it is. Some of the others are willing to take a stand-on it and
I'm not telling you you won't have to take a stand but you may not have to. . But
again you might have to. It is not going'to be easy. But I'm telling you there is a
difference between honesty and dishonesty. There's a side of wrong and there's a
side of right.
H. Far as my conscience is concerned, I might not feel like it was wrong.
S. To do what you did?
H. Well, I'm not talking about that.
S. What you talking about? •
H. I'm talking about me-it's squealing on an individual.
S. If there is two people that's involved in something and of them is in it because he
is innocent and wants to tell the truth, and here's one over here that started it all and
he is conspiring. You are going to have to decide where you are going to stand. Do
you stand over here?
H. Well, far as that's concerned you don't know whether I'm conspiring or not.
I may have had that for my personal ... .
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. No you didn 't. But you have already told me. You know why he wanted it?
H. Certainly . As far as outsiders are concerned , far as knowing why , he knows I
didn't , as I still don 't know . . . far as know the fact of why, I don 't know.
S. I don 't know that we are going to fire the individual that started all of this.
I don't know because I don't make that decision by myself. But I do know I can
help you if you want to help me, but it requires your helping me.
H. If it 's just the timekeeping department you are interested in, I don't know who's
involved in that. Maybe you're right on it . . . I still don't know whether they told
you or not.
S. Okay, I'm going to leave it this way with you, Charles . You want to not say
anything about it and I'm not going to say anything about it and you let me go on
about my investigation and I 'm going to come back to you to see what you have
decided.
H. How long is it going to take you to get through?
S. It may not take me long because I'm not far from it. I haven 't told you every-
thing I knew.
H. You , you have done went to 30-35?
S. I been working on it several days . You just got in on the tail end.
H. You might not know what you knowed when you started.
S. What you talking about , boy? Now I've got friends out here.
H. I have too.
S. Whether you got the right kind or not.
H. I must not because you were told I had one and all that, but it doesn't matter
to me.
S. I'm not going to tell you how I found out you were involved . You don't know
how we found out.
H. Yeah, I do.
S. You think you do.
H. I know, but that doesn't matter . Probably just as bad.
S. Huh?
H. Cause firing somebody is bad . I don't want to make anybody mad or anything.
S. I'm not mad.
H. I know . I'm not talking about you. I 'm talking about me for one of them-
and . . . individuals . He didn 't tell you-you found out further didn't you?
S. Boy, I've been working on this for several days . ... Huh?
H. Not as far as concerning me.
S. You didn 't get started on it until this morning. But you would be surprised
how we found out you were involved.
H. That what I am talking about. I know how you found out.
S. No you don 't, you just think you do . You are just thinking now.
H. No, it don't take no F .B.I. agent to figure it out.
S. O.K., Charles.
H. O.K., you did what we said.
S. O.K., you do what I said.
H. I said , don't you make no rounds this evening . I said don't you make no
rounds this evening.
S. You want me to?
H. No. I don't want you to.
S. O.K., be talking to you.
Local 25, International Brotherhood of Electrical Workers,
AFL-CIO and Alexander M. Cutrone d/b/a A.C. Electric.
Case No. ?-CC--833. October 6, 1961
DECISION AND ORDER
On February 14. 1964, Trial Examiner William Seagle issued his
Trial Examiner 's Decision in the above-entitled proceeding , finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, as set forth in the attached Decision. He
148 NLRB No. 152.