Ohio Hoist Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 8, 1971

188 N.L.R.B. 902 (N.L.R.B. 1971)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Hoist Manufacturing Co. and District No. 70 of
the International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 8-CA-5753
March 8, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On August 25, 1970, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices in violation
of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Ohio Hoist Manufacturing Co., Lis-
bon, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.'
1 In footnote 26 of the Trial Examiner's Decision , substitute "20" for "l0"
days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Trial Examiner: This proceeding, with all
the parties represented, was heard on May 5, 1970, at Lis-
bon, Ohio, on the complaint of the General Counsel issued
on March 25, 1970,1 as amended at the hearing, and the
amended answer of Ohio Hoist Manufacturing Co., herein
called the Respondent or Company . In issue are questions
whether the Respondent, in violation of Section 8(a)(3) of
the National Labor Relations Act, as amended, discrimina-
torily discharged Edmond R. Braham, Jr., Raymond E.
Langdon, and Frank C. Smith because of their union or
other concerted activities, and whether by this and other
conduct, it interfered with, restrained, and coerced employ-
ees in the exercise of their statutory rights in violation of
Section 8(a)(1) of the Act 2 At the close of the hearing, the
parties waived oral argument but thereafter submitted
briefs in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation with its principal
office and place of business in Lisbon, Ohio, is engaged in
the manufacture and sale of hoist equipment. In the course
and conduct of its business, it annually ships goods valued
in excess of $50,000 directly to points located outside the
State of Ohio.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is undisputed that District No. 79 of the International
Association of Machinists and Aerospace Workers, AFL-
CIO, herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Interrogation of job applicants; advent
of the Union; request for recognition
The Respondent is a small nonunion fabricating shop in
the small town of Lisbon where it employs approximately
20 employees. There is testimony by witnesses for the Gen-
eral Counsel that, prior to the Union's appearance at the
plant, the Respondent's president and general manager,
Louis H. Horvath, who possesses the sole authority to hire
and fire employees, questioned them concerning their union
sympathies during their interviews for employment. Thus,
Edmond R. Braham, Jr., one of the alleged discriminatees,
testified that in the course of his interview on or about
November 13, 1969, Horvath outlined the benefits available
to employees and then asked him whether he was for or
i The complaint is based on original and amended charges filed on Feb-
ruary 13 and March 5, 1970, respectively A copy of the original charge was
served on the Respondent by registered mail on the date of filing and a copy
of the amended charge was similarly served on March 6, 1970.
2 Section 8(a)(1) of the Act makes it an unfair labor practice for an employ-
er "to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 ." Insofar as pertient, Section 7 provides that
"[e]mployees shall have the right to self -organization , to form, join, or assist
labor organizations , 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
Section 8(a)(3), with certain qualifications not material herein , prohibits an
employer "by discrimination in regard to lure or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor orgainization "
188 NLRB No. 137
OH10 1401ST MFG. CO.
against unions . Braham further testified that he answered
that a union made no difference to him, asserting that a
union was not needed so long as the Company was fair.
Horvath thereupon noted that any time employees had
trouble they came to him and that he would give em loyees
raises if they deserved one without the necessity of asking
for it.
Frank C. Smith, another alleged discriminatee, testified
that when he was interviewed on November 13 or 14, 1969,
he was asked by Horvath whether he was opposed to work-
ing in a nonunion shop. Smith answered in the negative
stating that, although he had previously worked in a union-
ized mill, he was neither for nor against unions . Horvath
then related that he once worked in a union shop and quit
because he did not like the way the union acted and the
union employees performed; that union employees would
not put in a full day's work; and that a union would not
permit an employee to run more than one machine at a time,
even though there were other machines available to be oper-
ated.'
According to Charles F. Capwell, who was employed by
the Respondent from November 17, 1969, until he quit on
February 3, 1970, he, too, was questioned by Horvath in the
course of his job interview regarding his opinion of unions
and replied that he had no preference, one way or the other.
Similar testimony was given by David J. Cunningham, who
worked for the Respondent from January 14, 1970, until his
termination 2 weeks later. He testified that in his job inter-
view he gave Horvath a negative answer to Horvath's in-
quiry whether he liked unions and whether it made any
difference to him that the shop was not unionized. Cunning-
ham further testified that Horvath then expressed approval
of his response, declaring that the Company was not going
to have a union in its shop.
Finally, Edmond Braham's brother, Kenneth, who quit
his job on January 31, 1970, after being in the Respondent's
employ for 2 weeks, testified that in his job interview Hor-
vath asked him for his opinion about unions . When Ken-
neth replied that he didn t know much about them but that
he thought that the union at the mill where he was previous-
ly employed was "pretty good," Horvath stated that the
Company did not have a union in its shop and did not want
one, adding that "[i]t is starting talk between the men and
causing trouble."
Horvath contradicted the testimony of the foregoing wit-
nesses that he had introduced the subject of unions in their
prehire interviews. According to Horvath, he never ques-
tioned job applicants concerning their union views or sym-
pathies and the only occasion the subject would arise is
when an applicant inquired whether the Company's shop
was union or nonunion and, in response, he would inform
the applicant that it was nonunion . I credit the testimony of
the General Counsel's witnesses whose accounts of their
interviews were consistent with each other and were pre-
sented in a restrained and forthright manner.
Apparently dissatisfied with their terms and conditions of
employment and after some discussions were had among
the employees, Edmond Braham , Langdon, Smith, and em-
ployee Kendall Gilkison drove in Braham's car to the
Union's offices in Columbiana, Ohio, after work on Feb-
ruary 2, 1970,4 to inquire about the procedures to follow to
organize the shop. At the union hall they spoke to Dean
Senanefes , the local's president, who explained the proce-
dures, handed them blank cards authorizing the Union to
3 Raymond E . Langdon , the third alleged discriminatee , candidly testified
that Horvath did not question him about unions in his job interview
4 Unless otherwise indicated , all dates refer to 1970
903
act as the employees' bargaining representative or to seek
Board certification, and instructed them to have employees
complete and sign the cards. Langdon, Braham, and Smith
executed authorization cards 5 and together with Gilkison
they returned to Lisbon. There they successfully solicited
several employees at their homes and in a parking lot to sign
cards. The same evening, Langdon and Smith visited other
employees at their homes in East Liverpool and secured
their signatures to cards. The next morning (February 3),
about 6:30, before work was scheduled to begin, Langdon,
Braham, and Smith solicited card signatures from two or
three other employees in the company parking lot. Langdon
was more or less the spokesman for the group in this activity
and took physical possession of the executed cards, which
he temporarily kept in Braham's card. At the end of the
working day on February 4, Langdon delivered the signed
cards to Business Representative Richard Wenderoth at the
Union's office.
On February 5, Wenderoth sent Horvath a letter, inform-
ing him that the Union was designated by a majority of the
Company's production and maintenance employees as their
collective-bargaining representative and requesting recogni
tion and contract negotiations. This letter was received by
Horvath's secretary, Marie Neal, on Saturday, February 7,
while Horvath was out of the city. Neal opened the letter
and placed it in the safe. Although Horvath returned at
midnight, he testified that he first learned of this letter and
organizational activity the following Monday morningg
(February 9), shortly after Neal's arrival at the plant at 9
o'clock when she brought the letter to him. At the time of
the hearing, the Union had not yet received a response to
this letter.
2. Subsequent events
On February 9, Langdon, Braham, and Smith were sum-
marily discharged under circumstances later discussed. In
the evening, the Union held a meeting, which during the
preceding week in the plant and parking lot Langdon urged
employees to attend. On February 11 according to the testi-
mony of former employee Capwell,d he had the following
conversation with Horvath, who approached him at his
work bench during the lunch period: Horvath expressed his
inability to understand why the employees wanted a union
in view of the many benefits, bonuses, and good working
conditions they were enjoying and why they "wanted to
spoil it all by bringing a union in." Horvath also warned
that, if a union were brought in, he would have to enforce
all the rules rigidly and hire four supervisors at the approxi-
mate cost of $40,000 a year which would force him to dis-
continue the bonuses and other fringe benefits.
Charles L. Ferguson, an employee still in the
Respondent's employ, testified to three conversations he
had had with Horvath. These occurred on dates after the
original unfair labor practice charge herein was filed and
served on the Respondent. One conversation was on Feb-
ruary 27, the 89th day of his employment with the Respon-
dent. On that occasion, Horvath went to Ferguson's
workbench and, evidently referring to a probationary peri-
od, stated that his 90 days were up that day and asked what
he thought of the Company. Ferguson replied that manage-
ment seemed to be all nght and that he liked his work.-In
5 The record does not indicate whether employee Gilkison also executed
a union authorization card . Unlike his three companions , the complaint does
not allege discrimination against him
6 The day before Capwell was put on notice by Horvath that his probation-
ary period was expiring and that he night be terminated for poor perform-
ance On February 13, Capwell quit his job
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turn, Ferguson queried Horvath whether his work was sat-
isfactory and received an affirmative response. In the course
of their conversation, Horvath inquired whether Ferguson
had heard anything about a union. Ferguson answered that
he had not. In reply to another question put to him by
Horvath whether he had attended a union meeting in East
Liverpool, Ferguson stated that he had not. At this point,
Horvath asked Ferguson how he would feel if a union were
brought into the shop. Ferguson replied that he would have
to go along with the rest of the men since he had to work
with them. After Horvath referred to raises he had given
several men who had requested them, the conversation end-
ed with Horvath remarking that he "was gust more or less
feeling-[Ferguson] out."
The second conversation, according to Ferguson, occur-
red on March 3, when Horvath spoke to him while he was
at work at the drill press. This time Horvath told him his
performance was unsatisfactory; that he was "running
around and talking to the men stirring up trouble"; and that
Ferguson knew what Horvath meant, adding that Ferguson
was active in the Union. Observing that the Company was
good enough to lend Ferguson money when he was in trou-
ble and needed it, Horvath chided him for turning against
the Company by supporting the Union. Horvath then noted
that he could either require Ferguson to pay off the loan
which had previously been made to him or to continue to
pay it off in installments, as Ferguson was then doing.' At
one point in the conversation, Ferguson stated that a union
was needed for job security. When questioned by Horvath
what he meant by job security, Ferguson replied that it was
assurance that the employees would retain their jobs. This
evoked Horvath's remark that he could move the plant any
time and to any place he wanted and that, contrary to
Ferguson's assertion, he was not obligated to take the em-
ployees along with him. When Ferguson commented that 80
percent of the employees favored the Union, Horvath re-
torted that he had friends; that he would find out who the
union supporters were; that he would have "no mercy on
them"; and that in 2 weeks "this will be settled and-[Fer-
guson] will be fired, Union or no Union." This conversation
also ended with a warning to Ferguson that he "better
watch-[his] step."
The third conversation, Ferguson testified, took place on
April 30, 5 days before the hearing in this case, in Horvath's
office to which he was summoned. After telling Ferguson
that neither he nor Ferguson's fellow workers liked him,
Horvath stated that his lawyer advised him that he was
permitted to give raises to the men who deserved them.
When Ferguson asserted that he was informed by several
employees that they had not received previously promised
raises , Horvath, showed Ferguson cards to the contrary.
This led to Ferguson's complaint that Horvath had spoken
to employees Shastine and Goldsbury and Foreman
Musil, about a pension plan but not to the employees as a
"unit." Horvath replied that he was not obligated to do so
until the plan was completely formulated at which time he
would talk to the men as "a unit ." Horvath then related
what he had told Shastine, Goldsbury, and Musil, explain-
ing that instead of paying the Union the money, an
employee's yearly bonus would be placed in a trust fund
and, upon retirement, he would be in a position to withdraw
7 It appears that about February 3 Ferguson had borrowed $200 which he
was paying off at the rate of $10 a week deducted from his wages At the time
of the hearing, between $130 to $150 had been paid Before the March 3
conversation , Horvath never demanded that the entire balance be paid.
B It was stipulated that in the Board's Decision in Case 8 -RC-7757, Musil
was found to be a supervisor within the meaning of the Act
$10,000 instead of receiving $57 monthly in social security
benefits. Without indicating the particular context in which
other statements were made by Horvath, Ferguson also tes-
tified that Horvath declared that he could retain only
Goldsbury and Musil in his employ and let the other 15
employees go and not miss them at all. At. another point in
the April 30 conversation, according to Ferguson, Horvath
commented that since there were no witnesses present, he
could deny making any statements which might be attrib-
uted to him.
Ferguson utilized this occasion to accuse Foreman Musil
of discriminating against him because of his union activities
when Musil transferred him from hoist assembly work to
painting duties. Horvath explained that, since there was no
one available to do the painting work and since Ferguson
was the best painter in the plant, he was selected for that
assignment. After Horvath remarked to Ferguson that if he
"watched" himself he "would be compensated" within or
after 6 months, the conversation ended.
Horvath did not specifically deny having had any conver-
sation with Capwell or Ferguson at the indicated tunes; nor
did he offer his version of those events. However, he cate-
gorically denied ever questioning his employees or job ap-
plicants concerning their union sympathies or activities;
threatening rigid enforcement of company policies or rules
if the plant were unionized; asserting that an organized shop
would require him to hire four supervisors at a cost of
$40,000 a year; threatening employees with loss of bonuses
or other benefits, or to move the plant if the plant were
unionized; threatening Ferguson that he would be required
to repay his loan in full if the Union came into the plant or
if he favored the Union; or threatening employees with
discharge or suspension for union sympathies.
Capwell and Ferguson impressed me as sincere and trust-
worthy witnesses who would not deliberately manufacture
stories to implicate Horvath in unfair labor practices. In-
deed, it is hardly likely that Ferguson, who was still in the
Respondent's employ at the time of the hearing and thus
dependent on the Respondent's continued good will, would
bear false testimony against his employer? Moreover, Cap-
well and Ferguson's testimony fits in with the pattern of
events found herein. Accordingly, I credit their testimony.
3. The discharges
a. Braham
Braham, who had completed a formal 3-year training
school program, earning a ,journeyman machinist certifi-
cate, and had 10 years of machine shop experience, an-
swered the Respondent's advertisement for machine
operators about November 13, 1969. In his interview, the
Respondent's president and general manager, Horvath,
questioned him regarding his qualifications and prior em-
ployment and, as found above, his union sympathies. Hor-
vath then hired Braham as an engine and turret lathe
operator, advising him of the benefits enjoyed by employi-
ees. According to Braham's testimony, which I credit, 0
9 Georgia Rug Mill, 131 NLRB 1304, 1305, In 2.
10 Horvath testified that it has been his practice when interviewing job
applicants to inform them of the Company' s long-established requirement of
a 90-day probationary period . However, Horvath was contradicted by em-
ployees Ferguson , Cunningham , Kenneth Braham , Smith , and Langdon who
denied that Horvath mentioned a 90-day probationary period when they
were interviewed or that they were subsequently apprised of such a policy,
except that Ferguson testified that on February 27, 1970, the 89th day of his
employment, Horvath engaged him in conversation and referred to a 90-day
probationary period Stfiith also testified that, when he asked Horvath fpr a
raise a month after he was hired, Horvath told him that no employee could
OHIO HOIST MFG. CO.
Horvath did not mention during his interview a 90-day
probationary or trial period which employees were required
to undergo, nor was he (Braham) at any subsequent time
apprised by management or coworkers of such a company
policy. However, Braham credibly testified that Horvath
did state in the interview that employees were not eligible
for a raise for 30 days after hire and that, when he subse-
quently asked Horvath for a raise at the end of that period,
Horvath told him that under company policy no raise could
be given within 60 days after the commencement of employ-
ment.
Graham remained in the Respondent's employ from No-
vember 17, 1969, until his discharge on February 9, 1970,
the first working day after the Company's receipt of the
Union's written request for recognition. During this period,
he worked on a regular overtime basis under Foreman Mu-
sil principally from sketches because of Musil's inabilit to
communicate well in English. On the latter date, when gra-
ham reported for work in the morning, he found his time-
card missing from the rack, as was the timecard of another
alleged discriminatee , Smith, who was sick at home. He
thereupon inquired of Musil about the missing timecards
and was told to wait for Horvath who had not yet arrived
at the plant. Since on a prior occasion graham s timecard
had also been inadvertently left out of the rack, he went to
work on his machine. About 8:30 a.m., Horvath summoned
graham to his office and asked him why he had resumed
work without a timecard. When graham explained his prior
timecard experience Horvath informed him that he and
Smith were being laid off until further notice because bus-
iness was slow and that since graham had another business
he didn't need the money anyway. In the course of further
discussion , Horvath repeated in answer to Braham's ques-
tion, that graham and Smith were only being temporarily
laid off.tt Apparently graham at some point referred to his
earlier request for a raise which he had made 30 days after
the commencement of his employment. Horvath retorted
that at the Christmas party held the previous December he
had announced to the employees that there was a 90-day
probationary period in effect at the plant. However, accord-
ing to the mutually corroborative testimony of graham,
Smith, and employee Ferguson, which I credit, Horvath
actually had said nothing at the Christmas party regarding
a 90-day probationary period.
Following his conversation with Horvath, graham re-
turned to his machine. While he was collecting his tools,
Horvath approached him and exhibited a small pamphlet
which dealt with a 90-day probationary period for new em-
ployees. In answer to Braham's inquiry when the pamphlet
was printed, Horvath replied that it was immaterial. The
pamphlet was not produced at the hearing and I credit
Braham's testimony that he had never seen it before.
Graham then left the plant and proceeded to Smith's
home where he apprised Smith of their layoff and that their
paychecks wouldbe ready in the afternoon. At 3:30 p.m.,
Braham returned to the plant. There he received from
Horvath's secretary, MarieNeal, his and Smith's paychecks
and a separate letter dated February 9, signed by her and
directed to each of them, stating that "[a]s of this date, your
service with this organization is terminated." Graham re-
receive one before he completed 90 days . In view of the mutually corrobora-
tive testimony of Braham and the other employee witnesses and their other-
wise convincing accounts , I credit their testimony.
l'That Braham understood that he was only laid off is indicated by
Langdon's testimony that, after leaving Horvath 's office, Braham so in-
formed him and stated that he would return at 3 30 p in . to drive Langdon
home. The record shows that Braham regularly drove Langdon and Smith
to and from work
905
quested Neal to ascertain from Horvath the reason for his
termination. Neal then left to speak to Horvath and, on her
return, advised him that Horvath declined to furnish a
reason.12
Concerning the grounds for terminating graham, Hor-
vath testified that graham was not qualified for the engine
or turret lathe operator job he was hired to perform and, in
fact, didn't have "any idea" of that operation. Although
Horvath further testified that he did not talk to graham
during the 82 days he was in the Company's employ about
the way he was performing his job, Horvath added that,
when graham asked him for a raise 2 to 4 weeks after he was
hired, he "flatly" told graham that he was not eligible for
a raise because he was not qualified as a lathe operator.
Horvath also testified that he had spoken to graham a few
times at his machine with respect to the proper way to hold
a micrometer and to use a tool.
Under cross-examination, Horvath embellished his ap-
praisal of Braham's capabilities. He testified that after Bra-
ham had been in the Respondent's employ for a few weeks
he told graham that he lacked the aptitude to operate his
machine and thereafter repeated his opinion to graham
"almost constantly" whenever he had the time, but re-
frained from firing him in order to give him a chance to
improve. Yet, Horvath also testified that he could determine
in 2 to 4 weeks after hiring a man whether he would make
a competent machine operator and might dismiss the man
at that time even before the 90-day probationary period
ended, although, he might also decide to give him more time
to improve.
Braham's version of the requested raise episode and his
work performance is entirely different. According to Bra-
ham, when he asked Horvath for a raise 30 days after the
commencement of his employment, Horvath told him that
it was company policy not to give an employee a raise
during the first 60 days of his employment. graham further
testified that he thereupon mquired of Horvath whether he
was dissatisfied with his work and that Horvath answered
in the negative. Graham also specifically denied that Hor-
vath told him he was not qualified as a lather operator or
that Horvath wanted more time to see if graham could
perform his job. In addition, graham testified that at no
time did Horvath or Foreman Musil, under whom graham
worked, express dissatisfaction with his work; nor did he
ever make bad parts or turn out scrap.13 Significantly, Musil
was not called as a witness to support Horvath's appraisal
of Braham's work performance. ?credit the testimony of
graham, whom I have found is a reliable and trustworthy
witness.
Another reason offered by Horvath at the hearing for
Braham's termination was his assertedly unacceptable
record of tardiness .14 However, Horvath reluctantly admit-
12 The foregoing testimony concerning Braham 's and Smith 's separation is
based on Braham's testimony which Horvath did not dispute except that he
testified that he told Graham at the time of his discharge that his performance
was unsatisfactory Neal was not called as a witness . Considering all the facts
and circumstances of the discharge , I find Braham's testimony convincing
and I credit it
13 At the time of the hearing , Braham was employed by Stamis Corpora-
tion as a precision grinder.
14 Braham's timecards showed a great number of latenesses of a few mm-
utes each On the occasion of three longer latenesses , he was docked 15
minutes in pay and on one occasion 30 minutes . It also appears that at other
times he reported for work a few minutes earlier than the regular starting
time . Moreover , it appears that Foreman Musil , who usually opened the
plant, was late in doing so, and that other employees also reported late and
were docked . Since the other alleged discriminatees, Smith and Langdon,
rode to and from work in Brahant 's car, their tardy record is substantially
similar to his.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ted that he had never spoken to Braham about his lateness 15
and that he had not given Braham's lateness as a reason for
discharging him. Moreover, during the investigation of the
unfair labor practice charges herein, Horvath neither ad-
vised the Board agent that tardiness was one of the grounds
for Braham's discharge nor did he mention it in the affida-
vits he furnished the Board agent. Horvath's only explana-
tion for this omission was that he was not asked by the
Board agent concerning such a reason.
b. Smith
Smith was employed by the Respondent as a milling ma-
chine operator at $2.50 an hour from November 17, 1969,
until February 9, 1970. During this period he regularly
worked overtime. In his job interview, he informed Horvath
that he had never been employed in a machine shop, al-
though he had a little experience running different types of
machines. Horvath told Smith that he could not pay him
$3.50 an hour, which Smith requested, but that once Smith
demonstrated an ability to perform his job he would be
given a raise. As found above, Horvath also questioned
Smith' in his employment interview concerning his attitude
toward unions. Neither at this nor at any other time was
Smith advised of a 90-day probationary period.
Because Smith was unfamiliar with the operation of his
milling machine, Foreman Musil taught him how to run it.
After working for a month in the shop, Smith asked Hor-
vath for a raise. Horvath told him that he was unable to give
him one because it was comany policy to require 90 days
of employment to be eligibpple. Nothing was said on this
occasion concerning Smith's work performance. Several
weeks later, during lunch hour, Horvath showed Smith two
parts which were made on his machine and had been scrap-
ped and inquired what had happened. Smith explained that
Musil had messed the parts up when he was attempting to
set up the machine. Horvath accepted this explanation,
making no adverse comment with respect to Smith's per-
formance.16 It also appears that Smith was never reprimand-
ed or disciplined by Horvath or Musil for unsatisfactory
work.'
While Smith was home sick on February 9, he was sum-
marily discharged along with Braham as related above. Lat-
er in the afternoon, Braham brought Smith his paycheck
and termination letter. Smith never returned to the plant.
Horvath testified that Smith was discharged because he
was incapable of operating his machine and that he kept
Smith on as long as he did in the unfulfilled hope that Smith
would demonstrate a capacity to run his machine. Horvath
further testified that another reason for the discharge was
Smith's unsatisfactory lateness record. However, as in
Braham's case , Smith was neither warned, reprimanded nor
otherwise spoken to about his tardiness. Moreover, as noted
above, this reason was not even included in Horvath's pre-
trial affidavits or mentioned to the Board agent during
Horvath's interview. Considering all the facts and circum-
stances of Smith's discharge, discussed in my concluding
'5 Admittedly , Horvath also didn 't speak to Smith and Langdon about
their tardiness.
16 According to Smith 's uncontradicted and credited testimony, he had
broken cutters within the first 6 weeks of his employment but that was due
to the fact that Musil had set up the machine to run too fast He further
credibly testified that other machine operators had also broken cutters
11 The foregoing findings are based on Smith 's persuasive and virtually
uncontradicted testimony . When questioned on cross-examination whether
he had ever spoken to Smith about the quality of his work , Horvath answered
that he probably had. Horvath , however , did not amplify his testimony in
that respect. Musil was not called as a witness by the Respondent
findings, infra, I am not persuaded that Horvath acted on
the basis of the asserted reasons.
c. Langdon
Langdon was hired by Horvath on November 27, 1969,
as a turret lathe operator, although he had little experience
in machine shop work. In the interview, Horvath made the
comment to Langdon that he should appreciate the oppor-
tunity Horvath was affording him to learn that trade. As-
serting that Langdon had friends in the Company's employ
(apparently referring to Braham and Smith), Horvath stated
there was no necessity for him to outline the benefits em-
ployees enjoyed there. As found previously, Horvath did
not say anything in the interview about a 90-day probation-
ary penod.
Langdon began working in the shop on December 1,
1969, and continued until his discharge on February 9, 1970,
putting in regular overtime. On February 4 or 5, shortly
after organizational activities were initiated by Langdon,
Braham, Smith, and another employee, Horvath summoned
Langdon to his office. Horvath asked him whether he
thought he was running his machine properly. Langdon
answered that he was not; that the machine could run fast-
er; that Musil had set it up to run too slowly; and that he
did not change the setup because it would have angered
Musil who, on a prior occasion, "raised heck" with him
when he had altered Musil's setup and directed him to run
the machine as it was set up. Horvath then declared that
thenceforth things were going to be different; that he was
going to spend more time in the shop because he did not like
what was going on and the horsing around which was taking
place; and that, if Langdon had any problems, he was to
bring them to him. Noting that Langdon had a wife and
children, Horvath told him that he "had better start watch-
ing out for" himself.
On February 9, Langdon , as usual , punched his timecard
and went to work. About 11:30 in the morning, Horvath
came to Langdon's work area . Holding a blue card contain-
ing personnel information relating to Langdon, including
the date of commencement of his employment with the
Respondent, Horvath inquired whether he was aware of a
90-day probationary period. When Langdon replied in the
negative, Horvath asked Langdon whether he had not heard
him mention it at the Christmas party. Langdon again an-
swered in the negative. Horvath thereupon stated that there
was a 90-day probationary penod in effect and that
Langdon's was up in 2 weeks, cautioning him that it de-
pended on what happened within the next 2 weeks whether
or not he had a job.
About 10 minutes later, Horvath's secretary, Marie Neal,
handed Langdon his paycheck and the same type of termi-
nation letter as that given to Braham and Smith later in the
day. Thereupon, Langdon collected his tools and left.'s
Horvath testified that Langdon was terminated for un-
satisfactory performance. Amplifying his appraisal of
Langdon's work, Horvath furtfier testified that Langdon
lacked the ability to operate his machine and was not
"home" (sic) for such type of work; that his rate of pro-
duction was poor, he did not operate the machine at the
proper speed and held up the "next guy"; that he talked and
is The foregoing findings concerning the circumstances of Langdon's dis-
charge are based on Langdon's forthright and virtually uncontroverted testi-
mony. Horvath did not specifically dispute Langdon's testimony, although
he testified at one point that he thought he told Langdon at the time of his
termination that the Company could no longer use his services and, on
cross-examination, that he just told him his performance was unsatisfactory
Neal did not testify I find Horvath's testimony unpersuasive
OHIO HOIST MFG. CO.
engaged in "story telling"; and that he did not cooperate
with Foreman Musil . Later in his testimony, Horvath added
tardiness, as he did with respect to Braham and Smith, as
another reason that "helped to discharge him." However, he
never mentioned lateness to Langdon or the Board agent
who investigated this case nor did he include this as a
ground for the discharge in his pretrial affidavits. Moreover,
although at one point in his testimony Horvath stated that
he had complained to Langdon about his performance, he
also gave the following answers on cross-examination:
Q. And ... you talked to Langdon during the first
couple of months [regarding the quality of his work]?
A. Well, Langdon ... didn't know anything about
machines.
Q. He didn't know about it so you must have talked
to him ten , fifteen times during the first two months.
A. No, I didn't talk to him that much.
Q. Did you talk to him at all during the first two
months?
A. I don't know if I talked to him because he was
assumed to another machine operator.
Horvath s uncorroborated testimony concerning Lan don's
work performance and the reason for his discharge lacked
candidness and I do not credit it.
B. Concluding Findings
1. With respect to interference , restraint, and coercion
I have found that prior to the advent of the Union the
Respondent 's president and general manager , Horvath,
questioned various job applicants during their interviews
concerning their union sympathies , at the same time une-
quivocally indicating the Respondent 's displeasure with a
union in its plant. I find that these inquiries, occurring as
they did at a critical time in the applicant 's search for em-
ployment , served no demonstrated legitimate business pur-
pose but , on the contrary , were calculated to discourage
union affiliation or interest . Such conduct, I find, consti-
tutes an infringement of employee self-organizational rights
prohibited by Section 8(a)(ll) of the Act.
As also found above , after the Union 's appearance at the
plant Horvath warned employee Capwell that the employ-
ees' selection of a union could result in a loss of benefits,
bonuses , and good working conditions they were then en-
ying and in a more rigid enforcement of company rules.
taddition , Horvath questioned employee Ferguson wheth-
er he heard anything about a union , whether he attended a
union meeting in East Liverpool , and how he would feel if
a union were brought into the plant . On another occasion,
Horvath criticized Ferguson for his union activity, running
around , talking to the men , and stirring up trouble ; threat-
ened to accelerate repayment of a loan Horvath had previ-
ously made to Ferguson ; threatened to move the plant
without taking employees with him ; warned that he would
learn the identity of union supporters to whom he would
show no merc ; and threatenedpto fire Ferguson , union or
no union , while cautioning him to watch his step . Lastly, on
a third occasion , Horvath confirmed to Ferguson that he
had under consideration a plan for an employee retirement
trust fund to which employees would contribute their bo-
nuses instead of paying their money to the Union. At this
time , Horvath also stated he could terminate all the employ-
ees, except a named employee and Musil , and not miss them
and suggested that, if Ferguson "watched" himself, he
"would be compensated ." Doubtlessly, the foregoing con-
duct was designed to deter and dissuade employees from
joining or supporting the Union or otherwise exercising
907
their statutory rights and therefore also violated Section
8(a)(1) of the Act.
2. With respect to the discharges
The General Counsel contends that Braham, Smith, and
Langdon were discharged because of their union activity.
The Respondent , on the other hand , insists that they were
terminated only because of their unsatisfactory work per-
formance and their unacceptable record of lateness . Specifi-
cally, it denies knowledge of their union involvement.
As is usual in cases of this type, the critical question thus
presented is a factual one, depending princi pally upon cir-
cumstantial evidence for its determination . From my analy-
sis of the evidence, I am convinced that the discharges in
question were prompted by the named individuals' union
activities and not be their alleged shortcomings.
As discussed above , Braham, Smith , and Langdon were
summarily discharged the first working day after the
Respondent 's receipt of the Union 's written request for rec-
oution. It is undisputed that these individuals , together
with another employee , were responsible for the Union's
organizational drive and were the only ones who solicited
and secured employee signatures to union authorization
cards . This fact , coupled with the timing and precipitate
nature of the discharges , suggests that the Respondent's
action was not unrelated to these organizational efforts but,
on the contrary , was prompted by apprehension that its
plant might be unionized . Assertedly , one reason for the
discharges was oor work performance by Braham, Smith,
and Langdon during their unexpired 90-day probationary
period . However, apart from the fact that at no time before
their termination were they informed of this probationary
period , they had never been warned that they risked dis-
missal if their work did not improve . Indeed, if their work
performances were as unsatisfactory as Horvath testified, it
is difficult to understand why they were not terminated
sooner. This is espically surprising since early in their em-
ployment with the Respondent Horvath su posedl yy became
aware of their incompetency and lack ofpaptitude to per-
form the work they were hired to do . All this lends support
to the inference that probably Braham , Smith, and Langdon
were not the inadequate employees they were pictured to be,
although certainly they were not without faults, and that
their termination was discriminatorily motivated.
As for the second claimed reason for the discharges, the
employees ' tardiness record, it is plainly an afterthought
and appears never to have been a matter of concern to the
Company. As indicated above , not only were these individ-
uals never reprimanded or warned about lateness , but Hor-
vath did not even mention this deficiency to a Board agent
during the investigation of this case or in his pretrial af^da-
vits in which he attested to the grounds for the discharges.
To be sure, if this were in truth the reason for the
Respondent 's discharge decision , it would be the
Respondent 's unquestioned managerial right and the Re-
spondent would be accordingly exonerated . However, I find
that it wasn't and under settled law the existence of a "jus-
tifiable ground for dismissal is no defense if it is a pretext
and not the moving cause."19
The foregoing facts and circumstances , as well as the
Respondents demonstrated hostility to unions, furnish
strong support for the inference that the motive underlying
the discharges was the Respondent's desire to get rid of the
employees responsible for organizing its plant and that the
proffered reasons were mere pretexts to conceal its true
19 N L R B v Solo Cup Company, 237 F.2d 521, 525 (C A. 8)
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivation . This inference is not precluded , as the Respon-
dent argues , by the absence of direct evidence ofthe
Respondent 's knowledge of the dischargees ' union activities
or the Respondent 's disclaimer of knowledge . The entire
record, including the circumstantial evidence recited above
and the small size of the plant and number of employees,
persuades me that it is highly unlikely that the union in-
volvement of Braham , Smith , and Langdon escaped the
Respondent's attentiop.20
Accordingly , I find that the Respondent discriminated
against Braham, Smith , and Langdon to discourage mem-
bership in the Union and thereby violated Section 8(a)(3)
and (1) of the Act . Even assuming that their poor perform-
ance and tardiness to some extent entered into the
Respondent 's decision to terminate them , I find that the
paramount moving cause was their union activities and that
therefore the discharges would still violate the same pro-
visions of the Act 21
IV THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found and
take certain affirmative action designed to effectuate the
policies of the Act.
I have found that the Respondent unlawfully discharged
employees Braham, Smith, and Langdon because of their
union activity. To remedy this violation, it is recommended
that the Respondent offer them immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions , without pre
to their seniority or other rights and privileges . It is also
recommended that these individuals be made whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by payment to each of them of
a sum of money equal to that which each one normally
would have earned from February 9, 1970, the date of the
discharge , to the date of the offer of reinstatement , less his
net earnings during the said period. Backpay shall be com-
puted with interest on a quarterly basis in the manner pre-
scribed by the Board in F. W. Woolworth Company, 190
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
To facilitate the computation, as well as to clarify the
named employees' nghts to reinstatement and employment,
the Respondent shall make available to the Board, upon
request, payroll and other records necessary and appropri-
ate for such purposes . I further recommend that the Re-
spondent notify these employees of their right to reinstate-
ment on application if they are serving in the Armed Forces
of the United States. The posting of a notice is also recom-
mended.
In view of the nature of the discrimination for union
membership and activity which "goes to the very heart of
the Act,"22 and the other unfair labor practices here found,
there exists the danger of the commission by the Respon-
dent of other unfair labor practices proscribed by the Act.
Accordingly, I recommend that the Respondent be ordered
to cease and desist from in any other manner infrin ing
upon the rights guaranteed employees in Section 7 ofgthe
Act.23
20 Wiese Plow Co., Inc., 123 NLRB 616 , 618; New French Benzol Cleaners
and Laundry, Inc., 139 NLRB 1176, 1179, fn. 10; cf. Wyco Metal Products,
183 NLRB No. 93.
21 N.L.R.B. v. Jamestown Sterling Corp , 211 F 2d 725, 726 (C A. 2); N L
R.B. v. Historic Smithville Inn, 414 F .2d 1358 , 1361 (C.A 3)
22 N L R B. v. Entwistle Mfg Co, 120 F.2d 532, 536 (C.A 4).
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1.The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Braham, Smith, and Langdon to discourage
membership in, and activities on behalf of, the Union, the
Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct; and by coercively interrogat-
ing job applicants and employees concerning their union
sympathies, activities, and attendance at union meetings; by
threatening to eliminate benefits, bonuses, and good work-
ing conditions, to move the plant, and n idly to enforce
company rules, in reprisal for support of^the Union; by
threatening an employee with discharge and to accelerate
repayment of a loan because of his unionsympathies and
activity; by warning that it would learn the idtity of union
adherents and penalize them; by advising employees that it
had under consideration a retirement plan in order to dis-
courage union support; and by subtly suggesting to an em-
ployee that he would be "compensated" if he refrained from
union activity, the Respondent interfered with, restrained,
and coerced employees in the exercise of their statutory
rights within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 24
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that the Respondent, Ohio Hoist
Manufacturing Co., Lisbon, Ohio, its officers , agents, suc-
cessors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in District No. 79 of the
International Association of, Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization, by
discharging employees or discriminating against them in
any other manner in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) Coercively questioning job applicants and employees
concerning their union membership, sympathies, activities,
or attendance at union meetings ; threatening employees, in
reprisal for their union sympathies or activities, to eliminate
benefits, bonuses, or good working conditions or to move
the plant, or rigidly to enforce company rules, or to dis-
charge employees , or to accelerate repayment of loans made
to them; warning em loyees that it will learn the identity of
union supporters and penalize them; and proposing a retire-
ment plan or offering any reward or benefit in order to
discourage membership or support of the Union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
23 N L R B v. Express Publishing Company, 312 U S. 426, 433.
24 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the tmdings,
conclusions , recommendations, and Recommended Order herein shall, as
provided in Section 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions, and order, and all objections
thereto shall be deemed waived for all purposes.
OHIO HOIST MFG. CO.
organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
a) Offer Edmond R. Braham, Jr., Frank C. Smith, and
Raymond E. Langdon immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason of the
discrimination against them, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary or
useful in analyzing the amount of backpay due and the right
to reinstatement and employment under the terms of this
Recommended Order.
(c) Post at its plant in Lisbon, Ohio, copies of the attached
notice marked "Appendix."25 Copies of said notice, on
forms provided by the Regional Director for Region 8, after
being duly signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 26
25 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
26 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read . "Notify the Regional Director for Re-
gion 8 , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they chose
To act together for collective bargaining or oth-
er mutual aid or protection
WE WILL NOT discharge or layoff any employee or
909
otherwise discriminate against him because of his
membership in, or activities on behalf of , District No.
79 of the International Association of Machinists and
Aerospace Workers , AFL-CIO, or any other labor or-
ganization.
WE WILL NOT coercively question job applicants or our
employees concerning their union membership, sympa-
thies , activities, or their attendance at union meetings.
WE WILL NOT threaten employees , in reprisal for their
union membership , sympathies, or activities , to elim-
inate benefits , bonuses , or good working conditions, or
to move the plant , or rigidly to enforce company rules,
or to discharge employees , or to accelerate repayment
of loans made to them.
WE WILL NOT warn employees that we will learn the
identity of union supporters and penalize them.
WE WILL NOT propose or offer a retirement plan or
other benefits to employees in order to discourage
membership in, or support of, the Union.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce employees in the exercise of their right
to self-organization , to form labor organizations, to
join or assist the above-named Union or any other
labor organization , to bargain collectively through rep-
resentatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from
any and all such activities except to the extent that such
right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of em-
ployment as authorized by Section 8(a)(3) of the Act.
WE WILL offer the employees listed below immediate
and full reinstatement to their former jobs or , if those
jobs no longer exist , to substantially equivalent posi-
tions , without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings suffered by reason of their discharge:
EDMOND R. BRAHAM, JR.
FRANK C. SMITH
RAYMOND E . LANGDON
WE WILL notify the above-named employees if res-
ently serving in the Armed Forces of the United pates
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
All our employees are free to become , remain, or refrain
from becoming or remaining , members of District No. 79 of
the International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization, ex-
cept to the extent that such right may be affected by an
agreement re uinngg membership in a labor organization as
a condition of employment as authorized by Section 8(a)(3)
of the Act.
Dated By
OHIO HOIST MANUFACTURING CO
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of posting and must not be altered , defaced, its provisions may be directed to the Board's Office, 1695
or covered by any other material . Federal Office Building, 1240 E. 9th Street, Cleveland, Ohio
Any questions concerning this notice or compliance with 44199, Telephone 216-522-3715.