R. H. Osbrink Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 13, 1953

104 N.L.R.B. 42 (N.L.R.B. 1953)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE
TO ALL MEMBERS OF LOCAL UNION NO.1264, RADIO BROAD -
CAST TECHNICIANS, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL, AND TO ALL EMPLOYEES OF
PAPE BROADCASTING COMPANY (RADIO STATION WALA)
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify you that-
WE WILL NOT cause or attempt to cause Pape Broadcasting Company (Radio Station
Wala), Mobile , Alabama, its officers , agents , successors , or assigns , to discharge be-
cause of nonmembership in our organization employees who have requested membership
and tendered or paid the initiation fees and periodic dues uniformly required as a condi-
tion of acquiring or retaining membership , or cause or attempt to cause said Radio Station
Wala to discriminate against its employees in violation of Section 8 (a) (3) of the Act
WE WILL NOT restrain or coerce employees of said Radio Station Wala , its successors
or assigns , in the exercise of the rights guaranteed by Section 7 of the Act except to the
extent that such rights 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.
WE WILL make whole John A. Thompson for any loss of pay he may have suffered be-
cause of the discrimination against him.
LOCAL UNION NO. 1264, RADIO
BROADCAST TECHNICIANS, INTER-
NATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL,
Labor Organization.
Dated ........................ ......................... By .... ..........................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material
R. H. OSBRINK, M. E. OSBRINK AND BERTON W. BEALS AS
TRUSTEE, CO-PARTNERS, DOING BUSINESS UNDER THE
FIRM NAME AND STYLE OF R. H. OSBRINK MANUFAC-
TURING COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, C.I.O. (UAW-CIO), REGION 6
R. H. OSBRINK, M. E. OSBRINK AND BERTON W. BEALS AS
TRUSTEE, CO-PARTNERS, DOING BUSINESS UNDER THE
FIRM NAME AND STYLE OF R. H. OSBRINK MANUFAC-
TURING COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, C.I.O. (UAW-CIO), PETI-
TIONER. Cases Nos. 21-CA-1319 and 21-RC-2262. April 13,
1953
DECISION AND ORDER
On January 15, 1953, Trial Examiner William E. Spencer
issued his Intermediate Report and Recommended Order in the
above-entitled proceeding, finding that the Respondents had
104 NLRB No. 1.
R. H. OSBRINK MANUFACTURING COMPANY 43
engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the
Intermediate Report and Recommended Order attached hereto.
In the same report, the Trial Examiner also recommended that
the election held on January 25, 1952, be set aside. Thereafter,
the Respondents filed exceptions to the Intermediate Report and
Recommended Order and a brief in support thereof.'
The Board2 has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
-considered the Intermediate Report and Recommended Order,
the exceptions, the brief, and the entire record in the case, and
hereby adopts the findings,3 conclusions, and recommendations
of the Trial Examiner with the following additions.
1. The Respondents contend that, as the charge alleged only
the discriminatory discharge of LeFlore and Plummer, the
Board had no authority to issue a complaint also alleging
independent unfair labor practices not set forth in any unfair
labor practice charges filed with the Board. Further, the
Respondents contend that the complaint should not have been
issued with respect to independent violations of Section 8 (a) (1),
because these occurred more than 6 months before the issuance
of the complaint and the service thereof upon the Respondents.
The original charge herein was filed on January 16, 1952, and
alleged that the Respondents had violated Section 8 (a) (1) and
(3) by discharging employees John L. LeFlore, Jr., and Benny
I. Pratt; on January 21, 1952, the charge was amended by
adding the name of LeRoy Jones to the list of discriminatees;
and on March 4, 1952, it was further amended to add the name
of Archie Plummer.4
The only purpose of the charge is to set in motion the Board's
investigatory machinery in order to determine whether a
complaint should issue. There is no requirement that the
charge set forth each unfair labor practice to be litigated;
this is a function of the complaint. The Board is therefore free
to add to its complaint allegations, unfair labor practices
discovered in the course of its investigation, although not
I The Respondents also moved to dismiss the complaint upon the grounds that ( a) the com-
plaint does not allege and the record does not prove that the charging party has complied
with Section 9 (f), (g), and (h) of the Act; (b) the complaint does not contain facts sufficient to
state a claim for relief; (c) the charges filed do not contain facts to support the allegations of
independent violations of Section 8 (a) (1) contained in the complaint; and (d) the allegations
of unfair labor practices contained in paragraph 4 of the complaint are barred by the statute
of limitations. The motion to dismiss is hereby denied, for reasons set forth in the Inter-
mediate Report and hereinafter.
2Pursuant to the provisions of Section 3(b)of the Act, the Board has delegated its powers in
connection with this case to a three- member panel [Chairman Herzog and Members Houston
and Murdock].
9On page 51 of the Intermediate Report , the hours during which the polls were open is in-
correctly stated to have been from 4:30 to 6 p.m. The report is hereby corrected to show that
the polling hours were from 4 to 6:30 p.m.
On the same page of the Intermediate Report, the reference to Osborn should be , and hereby
is, changed to Osbrink.
4The complaint named only LeFlore and Plummer as employees discriminated against.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged in the charge, provided only that these did not occur
more than 6 months before the filing and the service of the
original charge.5 As the allegations of independent violations
of Section 8 (a) (1) contained in the complaint pertained to
events which occurred within 6 months of the filing and service
of the original charge, the Respondents' argument based on
Section 10 (b) of the Act is hereby rejected.
2. The Respondents also contend that the complaint and
record are fatally defective because the General Counsel
neither alleged nor proved that the Union had complied with
the filing requirements of Section 9 (f), (g), and (h) of the Act.
The requirement of compliance is not jurisdictional and need
not be either alleged or proved .6 The Board has satisfied itself
administratively that the Union is in compliance.
3. The Respondents further argue that it was improper for
the Trial Examiner to have found that the withholding- of-pay-
check incident was a violation of Section 8 (a) (1), in view of
the fact that the complaint did not specifically allege this to be
an unfair labor practice. The Trial Examiner found that this
conduct constituted election interference which justified setting
aside the election. This was one of the objections to the election
and was an issue in the consolidated hearing. The Trial
Examiner did not find that this conduct violated Section 8 (a) (1),
presumably because it was not alleged as an unfair labor
practice in the complaint.
4. In arguing against the Trial Examiner's finding that by the
pressure they exerted to require attendance at the polls, the
Respondents interfered with the election, the Respondents in
their brief assert that there was no evidence that any employee
was refused his check or prevented from clocking out if he
desired. However, employee Goynes testified that he heard
Mr. Osbrink saying "no checks until after the election." He
also testified that he had heard the guard telling some of the
employees, "We have orders not to give you your checks out
until you return from the election."
The Respondents also rely on the case of John S. Barnes
Corporation, 90 NLRB 1358, in which the Board found that an
employer's furnishing of free transportation to and from the
polls, which the employees were "free to accept or reject,"
was not ground for setting aside an election. In the present
case, the Trial Examiner expressly based his finding of
interference, not on the free transportation furnished employees
which he found lawful, but on the withholding of paychecks until
after employees had voted. This was, we agree with the Trial
Examiner, a form of unlawful pressure which interfered with
the employees' right to vote or not to vote as they chose.
5Cathey Lumber Company, 86 NLRB 157, enfd .185 F 2d 1021 (C.A. 5), set aside on another
ground 189 F. 2d 428(C.A 5); Stokely Foods, Inc., 91 NLRB 1267, enfd . 193 F. 2d 736 (C.A. 5).
6N.L.R.B. v. Wiltse, 188 F. 2d 917, 920-924(C.A. 6), cert. denied 342 U.S. 859.
R. H. OSBRINK MANUFACTURING COMPANY 45
ORDER
Upon the entire record in the case and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondents, R. H.
Osbrink, M. E. Osbrink and Berton W. Beals as trustee,
co-partners, doing business under the firm name and style of
R. H. Osbrink Manufacturing Company, Los Angeles, California,
its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, C.I.O. (UAW-CIO), Region 6, or in any other labor
organization of its employees, by discharging any of its
employees, or in any other manner discriminating against
them in regard to their hire or tenure of employment, or any
term or condition of employment.
(b) Threatening that union representation would result in
closing of the plant and in loss of benefits.
(c) Inducing or seeking to induce its employees to oppose
union representation by offering or promising benefits.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, C.I.O. (UAW-CIO),
Region 6, or any other labor organization, to bargain collec-
tively 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, and to refrain
from any or all of 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 in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act.
(a) Offer to John L. LeFlore, Jr., and Archie Plummer
immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to seniority and
other'rights and privileges previously enjoyed.
(b) Make whole John L. LeFlore, Jr., and Archie Plummer
in the manner provided in that section of the Intermediate
Report and Recommended Order entitled "The Remedy" for
any loss of pay they may have suffered by reason of the
Respondents ' discrimination against them.
(c) Upon request make available to the Board or its agents,
for examination and copying, all payroll records , social-
security payment records, timecards, personnel records and
reports , and all other records necessary to analyze the amounts
of back pay due and the right of reinstatement under the terms
of this Order.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant in Los Angeles, California, copies of the
notice attached hereto and marked "Appendix A! " Copies of
said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by the
Respondents' representative, be posted by the Respondents
immediately upon receipt thereof and maintained by them for
at least sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondents to insure that such notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region,
Los Angeles, California, in writing, within ten (10) days from
the date of this Order, of the steps taken to comply herewith.
IT IS FURTHER ORDERED that the election held herein on
January 25, 1952, be, and it hereby is, set aside.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify out employees
that:
WE WILL NOT discourage membership in International
Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America , C.I.O. (UAW- CIO), Region 6,
or in any other labor organization of our employees, by
discharging any of our employees , or in any other manner
discriminating against them in regard to their hire or
tenure of employment , or any term or condition of employ-
ment.
WE WILL NOT threaten our employees with the closing
of the plant or loss of benefits in the event our employees
select a union to represent them.
WE WILL NOT induce or seek to induce any of our
employees to oppose union representation by the offer or
promise of benefits.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self - organization , to form labor organizations, to
join or assist International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America,
C.I.O. (UAW-CIO ) Region 6, or any other labor organiza-
tion, 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 , and to refrain from any or all of
such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
7In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
R. H. OSBRINK MANUFACTURING COMPANY 47
organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer to John L. LeFlore, Jr., and Archie
Plummer immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suffered
as the result of the discrimination against them.
R. H. OSBRINK, M. E. OSBRINK AND
BERTON W. BEALS AS TRUSTEE, CO-
PARTNERS, DOING BUSINESS UNDER THE
FIRM NAME AND STYLE OF R. H. OSBRINK
MANUFACTURING COMPANY,
Dated ................
Employer.
By.......... ..........................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
A charge having been duly filed by international Union, United Automobile , Aircraft
and Agricultural Implement Workers of America , C.I.O. (UAW- CIO), Region 6. herein
called the Union; a complaint and notice of hearing thereon having been issued and served on
the parties by the General Counsel of the National Labor Relations Board , herein called
respectively the General Counsel and the Board ; and an answer having been filed by R. H.
Osbrink, M. E. Osbrink and Berton W. Beals as trustee , copartners, doing business under the
firm name and style of R. H . Osbrink Manufacturing Company, herein called the Respondent,
a hearing involving allegations of unfair labor practices in violation of the National Labor
Relations Act, 61 Stat . 136, herein called the Act, was held upon due notice at Los Angeles,
California , on August 25 and 26 and October 8. 13, and 14 , 1952, before the undersigned Trial
Examiner . By order of the Board, consolidated with said hearing was a hearing on objections
to an election conducted by the Board on January 25, 1952, filed by the Union on February 1,
1952. All parties were represented at the hearing where they were afforded full opportunity
to be heard, to examine and cross -examine witnesses , to introduce evidence bearing on the
issues, to argue the issues orally upon the record , and to file briefs and/or proposed findings
of fact and conclusions of law . The Union availed itself of oral argument ; the Respondent
filed a brief.
The allegations with respect to unfair labor practices are, in substance , that the Respondent,
in violation of Section 8 (a) (1) and ( 3) of the Act , discharged its employees , John L. LeFlore,
Jr., and Archie Plummer , because of their union activities ; and in independent violation of
Section 8 (a) (1) of the Act , questioned its employees concerning union affiliation and activities,
threatened to discharge its employees because of their union activities , threatened to close
the plant and to deprive its employees of benefits if the Union became their bargaining
representative , and offered benefits if they would withhold their support from the Union. The
Respondent in its answer denied the commission of the alleged unfair labor practices. i
The objections to the election , in addition to duplications of matters alleged in the complaint,
involved the mailing of certain literature to the homes of employees , preelection speeches in
the plant by Respondent 's managerial staff, the transportation to and from the polls furnished
by the Respondent , and the withholding of paychecks from the employees until after they had
voted.
The Respondent's motion to amend its answer, upon which ruling was reserved, is granted.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a copartnership engaged in the manufacture of aluminum and magnesium
castings. It maintains its principal place of business at Los Angeles. California. During the
12-month period preceding issuance of the complaint, it caused products manufactured by it,
of a, value in excess of $25,000, to be sold and transported from its place of business in
Los Angeles to points outside the State of California.
Jurisdiction is conceded.
II. THE LABOR ORGANIZATION INVOLVED
The Union, affiliated with the Congress of industrial organizations, is a labor organization
within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, coercion
The matters alleged herein to constitute election interference and unfair labor practices
arose for themostpart fromanorganizational campaignrwhich the Union began at Respondent's
plant about October 1951, with the distribution of circulars, and which culminated in a Board-
directed election. The Decision directing the election was issued on January 2, 1952, and the
election was held on January 25. Of the approximately 279 eligible voters. 100 cast votes for
representation by the Union. 160 against. Objections to conduct affecting the election results
were timely filed by the Union and are now before us together with the allegations of unfair
labor practices.
In the period immediately preceding the election and after the Board had issued its Decision
and Direction of Election, the Respondent caused to be mailed to its employees certain publi-
cations prepared and issued by the wage earners committee, an organization with headquarters
in Los Angeles. The Respondent furnished its payroll list for the mailing cf this matter and
paid for the postage required to send it through the mails. There were 3 pieces of literature
included in this mailing. only 1 of which had specific reference to Respondent's operations,
and R. H. Osbrink, one of the Respondent partners, testified that the Respondent authorized
the mailing of only this 1 pamphlet. He admitted, however, that he was made aware of the
contents of all 3 publications after they had been mailed and that he did not repudiate any of
them although there was time and opportunity for this prior to the election. In view of these
circumstances I have no hesitancy in finding that the Respondent, despite whatever reserva-
tions it may have with respect to the probity of such propaganda, is as liable for the distri-
bution of these publications as if they had been prepared and distributed directly by it instead
of through the wage earners committee.
I have read each' of these publications carefully and while it is my opinion that they are
misleading and scurrilous , my opinion is a matter of no importance here unless they also
conveyed threats, promises of reward, or, at the least, constituted interference such as
would require setting aside the election results. In the light of the decisions in such matters.
I can find nothing that would constitute threats or promises of reward in any of the three
publications, and while fear -mongering and abuse is present in them I incline to the view that
it is with reference to this sort of thing that the Board has said that it "prefers to leave to the
good sense of the voters the task of appraising such propaganda." Trinity Steel Co.. 97 NLRB
1486.
Further election interference and unlawful persuasion is alleged to exist in certain speeches
delivered by R. H. Osbrink and others representing management. on the eve of the election. At
the direction of supervisory personnel the employees were assembled in the plant near closing
time on the day preceding the election, where they were reminded of the many benefits they
had received from the hands of management, and were , in effect, exhorted to vote against
union representation at the polls on the followingday. A transcript was made of these speeches,
it was received in evidence , and I have studied it carefully . They were on the whole far more
moderate in tone than the pamphlets mailed by the wage earners committee, contained none of
the scurrilous material appearing in those publications, and, in my opinion, contained no
threats of reprisal. In Osbrink's speech, however, there was unlawful inducement or promise
of reward when he offered, on the part of management, to match whatever funds the employees
R. H. OSBRINK MANUFACTURING COMPANY 49
might raise for entertainment , sick relief, or kindred purposes . 2 It is true that on cautioning
by his attorney , who also addressed the meeting , he added that this offer held good even if the
Union won the election . Appropriately , I think . this latter remark was followed by laughter
from the audience , for it was clear from the context in which the offer was made that it was
made as an alternative to paying union dues; it was, in fact , coupled with the suggestion that
"rather than trying to get someone outside...we can form our own little group gathering and
take care of our problems...... Osbrink's further assurance -- after having been prompted by
his attorney -- that he was not making the offer as a "bribe " can hardly serve to alter the
actual character of the offer . Changingthe labelon a bottle does not of itself alter its contents.
Assuming further , as Osbrink stated in his speech , that he had made the same offer previously,
the fact remains that he chose to renew it on the eve of the election and the only reasonable
inference that can be drawn from his decision to renew it at this time , is that he intended it as
an inducement to the employees to reject union representation . I find that his offer constituted
election interference and was violative of Section 8 (a) (1) of the Act.
It is argued that inasmuch as Respondent offered the Union no opportunity to reply on com-
pany time and property to antiunion speeches made by managerial personnel on the day pre-
ceding the election, the principle first established in the Bonwit- Teller case (Bonwit Teller.
Inc., 96 NLRB 608) applies. The theory of this line of cases is that "it is essential to a free
and fair election that the employees be able to hear both sides of the story under circum-
stances which reasonably approximate equality." Onodaga Pottery Company, 100 NLRB 1143.
Normally , interference is found to exist where the employer has denied the union 's request
that it be allowed to address the employees "under circumstances which reasonably approxi-
mate equality ." or where the employer 's antiunion speech is made within too brief a period
preceding the opening of the polls for such a request to be effective even though granted.
Foreman & Clark, Inc., 101 NLRB 40; The Hills Brothers Company, 100 NLRB 964. I assume
that there is a third category where the employer has conducted an antiunion campaign accom-
panied by such acts and statements as make it clear that a request would be futile. Here no
request was made , the Respondent 's speeches came in time to allow for such a request, and
whether such a request , if made , would have been granted is, on the facts of this case, too
speculative for a firm determination . The Respondent had no rule forbidding or restricting
union solicitations and arguments in the plant and it is clear that such activities were carried
on openly and were prevalent throughout the plant . It is by no means clear that they were
confined to nonworking time , since several employees testified that the Union was discussed
while they were on their jobs. The Union was also able to reach the employees through sound
trucks stationed outside the plant and through circulars passed to them at the plant gates. I
doubt that any of this activity had the effectiveness of a speech delivered inside the plant on
company time and during a total cessation of production , 9 but the Union having made no re-
quest for such a privilege , I am not convinced that the Bonwit-Teller doctrine applies.
2Excerpt from the Osbrink speech: ". . . I might bring out this thought again about union
dues and, as Henry, no Harry, pointed out that if you wanted to donate , he'll be a shop steward,
he'll be president of the union for you , if you want to donate five bucks a piece to him, see
Well that 's good thinking, and the majority of you decide that you want to put in four bits a
month or a dollar a month, I'll match every dollar that you want to put in and we'll have a
kitty. Now we can use it , we'll form a committee to decide on how best to use that money. We
can allocate certain amount of it for people , your friends , your relatives, that get sick, we can
draw from that fund or we can use it for good times . And, I think that's more to the point,
fellows, than paying union dues and I want to assure you that that 's possible , you fellows can
actually make up your mind if you would like to do that, talk it to the boys and we'll carry it
on through to a finish . My attorney, he said to be sure to tell them that that offer goes whether
the union gets in or not.
(Laughter)
"See, I'm not bribing youabouta deal, because I told that many, many years ago to the boys,
and if they want to do it they can. But I 'm prepared to match dollar for dollar for all your
donations. And, but besurel'm not using that as a piece of candy to a crying boy. It's definitely
put forth as a gesture and I think rather than trying to get someone outside we can form our
own little group gathering and take care of our problems."
9See National Screw & Mfg Co of Cal., 101 NLRB 1360, in which the Board said-
A simple standard exists by which to measure an employer 's conduct in a representation
campaign among his employees Where he chooses to enter the campaign and utilizes company
time and property to present his views, he uses a "privileged and effective forum" which
he may not refuse to the opposition. It follows that in such circumstances a refusalconsti-
tutes interference with the employees ' freedom of choice . We reject the Employer 's argu-
o t that by the distribution of matchbooks and handbills on the employees' own time, by
me visits and evening meetings , and by usinga sound truck during the lunch period, the
Petitioner's forum achieved equality with that preempted by the Employer . [Footnote omitted.)
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is further alleged that Osbrink and certain supervisory personnel made the threat that
Respondent's plant would close if the Union won the election No such threat appeared in the
transcript of speeches made on election eve, but Robert Ralph Ricks, a witness for the
General Counsel, testified that shortly before the election Osbrink asked if he thought the
Union would win and when he replied that he did not know, Osbrink said he would close the
plant before it got in. Further according to Ricks, later, some 2 days before the election,
Osbrink again asked him what he thought about the Union and when he replied that he thought
it was a good idea and he was 100 percent for it, Osbrink retorted that he had run things for
25 years and there "wasn't no son of a bitch going to stop him now." Osbrink denied that he
made these inquiries and statements and I credit his denial There were improbabilities in-
herent in Ricks' recounting of these incidents, such as the unlikelihood that after he had been
told by Osbrink that the plant would close if the Union came in, and in the context of a conver-
sation in which he, Ricks, was asking Osbrink to let him have some automobile tires at a dis-
count, he would go all out in declaring himself for the Union. Also, there appears to be no
plausible reason why Osbrink would single out this employee and make him the target of such
inquiries and threats.
The other testimony involved principally alleged statements ofMose Harris, Detroit Rushing;
and Derry Smith whom the General Counsel contends were supervisory or, in the alternative:
representative of management These employees occupied positions analogous to leadmen
although they were not so classified, the Respondent employing a unique system of nomen-
clature by which Harris and Rushing, for instance, were termed journeymen furnace attend-
ants and Smith a journeyman shakeout man The evidence is insufficient to establish that
Rushing and Harris had supervisory status or that the employees would reasonably regard
them as representative of management They were each in charge of one,of several banks of
furnaces and, as the oldest men on the job, directed the work of the several furnace attendants
who worked with them. Such direction, however, appears to have been of a routine nature.
Under the Respondent's system of classification, "journeymen" employees might properly be
termed "key" employees, they being the most experienced men on their 'respective jobs and
charged with a higher degree of responsibility than other employees who worked with them but,
with the exception noted below, it does not appear from the evidence submitted that their
interests were identifiable with management rather than with the rank-and-file employees with
whom they worked National Labor Relations Board v. Arnia Corporation. 122 F 2d 153, 156.
They were, in my opinion, properly included within the appropriate unit, voted at the election,
and had the Union been chosen would have been represented by it I would, however, make an
exception of Smith. 4
Smith also was included in the bargaining unit and voted in the election, but on the basis of
the entire testimony I am convinced that he exercised supervisory authority within the meaning
of the Act He was in charge of the entire shakeout operation with some 20 to 30 employees
directly answerable to his direction, and his immediate superior was James Frederick Rasp,
foundry superintendent. Rasp testified that Smith was "completely over" the foundry helpers or
shakeout men and that he was one of Respondent's oldest employees Rasp also testified that
he received complaints from Smith concerning employees in the shakeout department and that
in the matter of wage increases affecting the department he would ask or consult Smith There
was also credible testimony on employees seeking a wage increase through Smith. I am con-
vinced that his recommendations in such matters carried weight with his superiors While he
had no authority to hire or to discharge employees, several employees who had worked under
him testified that he had transferred them from one division of the shakeout department to
another. It is clear that Smith exercised independent judgment in effectuating such transfers,
as well as in the matter of job assignments Newly hired men on being assigned to shakeout
work were instructed to take orders from him. He broke them in on their jobs, gave them
their work assignments, showed them what to do. He also performed a substantial amount of
shakeout work himself. The ratio of his time spent in supervision as compared with time spent
in actual manual labor differed from witness to witness, ranging as high as 60 to 80 percent
production work when Respondent's witnesses were testifying, and as low as 10 to 20 percent
according to the General Counsel's witnesses. The division in all probability was about fifty-
fifty. The division of time with respect to supervisory status is a factor to be considered, and
I have considered it, but the actual scope and character of the supervisory authority is of
greater importance, and upon the entire record I have no doubt that Smith, because of the
.authority vested in him, is properly identified with management and that the employees would
reasonably make such identification, particularly when Smith purported to express the view-
point of management.
4It is noted that evidence with respect to Smith's supervisory status was developed in much
greater detail than was the case with respect to other journeyman employees
R. H OSBRINK MANUFACTURING COMPANY 51
The testimony is that shortly prior to the election he called a group of shakeout men from
their jobs and during working hours informed them that he had been told by Osbrink that if the
Union won the election the plant would be closed. Smith denied that he made such a statement
but the testimony of the several witnesses to the contrary convinces me that he did, and that
such a statement was made is further confirmed by the fact that the Union caused to be dis-
tributed circulars in which the employees were told that the Respondent could not close its
plant even if it chose to do so because of the nature of the defense contracts under which it
was operating . s Osbrink denied that he made such statements or that he directed anyone else
to make them, but assuming this to be true, Smith's announcement to the employees that he
had made such a threat, was ofitselfcoercive and binding on the Respondent. It should be borne
in mind that Respondent was not neutral in the matter of the election but chose to make itself
an active participant against the Union, and for that additional reason, when one of Smith's
status purported to speak for Osborn in opposition to the Union , the employees would reason-
ably believe that he was speaking for Osborn. I find that by Smith's statement the Respondent
interfered with the election and violated Section 8(a) (1) of the Act. I further find, on the basis
of undisputed testimony , that Smith 's statement to employee Goynes that certain privileges
then enjoyed would be taken away if the Union won, constituted a violation of Section 8 (a) (1)
of the Act.
I do not find sufficient credible evidence of supervisory personnel making inquiries con-
cerning the union affiliation or interests of employees to constitute a violation of the Act.
Inasmuch as Smith and other journeyman employees were included in the bargaining unit, and
all the testimony indicates that the matter of the election was discussed freely in the plant, it
is entirely likely that such inquiries as were made were made in the course of such discus-
sions , and I am unable to attach to them the significance of a law violation.
Finally, certain conduct engaged in by Respondent at its plant on election day about the time
the polls were opened , is alleged to constitute election interference The polls were open from
4:30 to 6 p m , and the polling place was only a few blocks from Respondent's plant. The date
fell on a payday and the employees normally would have received their checks as they left the
plant. On this occasion all or most of them were released early in order that they might vote
be fore their normal quitting time They were not however given their checks until after they
had returned to the plant after voting A wooden barrier had been placed across the passages
leading to the time clock where they customarily received their checks As they left their
jobs they were directed to buses which the Respondent had provided to transport them to and
from _ the polls, and while there is little evidence that they, as a group , were told that they
could not obtain their checks until after they had voted, the barriers obstructing access to the
time clocks constituted something more than a mere suggestion I have no doubt the impres-
sion was conveyed, and the Respondent wished to convey it, that checks would not be released
until after the employees had voted R H. Osbrink, who had let it be known that the Respondent
wanted every eligible employee to vote, was conspicuously on hand in the vicinity of the buses.
engaging in backslapping and kindred jovialines. The testimony was that he urged the em-
ployees, "Go ahead, bring it back ," and when they returned from the polling place inquired,
"Did, you guys do it?" We may assume , I think , that he was urging the employees to vote
against union representation , and that his inquiry on their return was rhetorical inasmuch as
it does not appear to have been addressed to the individual employee . During this same period,
union representatives stationed in asoundtruck just off Respondent's premises were exhorting
the employees to vote for the Union and, if Osbrink is to be believed, were saying impolite
things about the Respondent I am not persuaded that Respondent 's act in furnishing transporta-
tion to and from the polls , or Osbrink' s presence and remarks on this occasion , constituted
interference and coercion , but the withholding of paychecks until after the employees had voted,
though ,they would customarily have received them on leaving their jobs, was interference with
the employee's right to vote or not to vote according to his own choice in the matter, and should
not be condoned Freedom from molestation in the exercise of the right to vote has its in-
separable corollary of freedom to refrain from voting , and it is not the employer ' s rightful role
to exert pressures on the employee to exercise the privilege of the ballot.
On the basis of the foregoing findings of fact I conclude that by offering benefits if the em-
ployees rejected union representation , by its threats to close the plant and rescind certain
benefits in event of a union victory at the polls, and by the pressures that it exerted to require
attendance at the polls, the Respondent engaged in conduct constituting election interference.
5The Union 's election literature offered in a grouping of exhibits was rejected . Rejected
Respondent 's Exhibit No. 5-A, however , being thecircular in question , has sufficient material-
ity to be admitted and my ruling is rescinded with respect to that exhibit and it is received in
evidence.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as all the various incidents constituting this course of conduct arose after the Board
had issued its Decision and Direction of Election, the theory of estoppel established in the
Denton Sleeping Garment case (Denton Sleeping Garment Mills, Inc , 93 NLRB 329) does not
apply The Great Atlantic & Pacific Tea Company, 101 NLRB 1374. Accordingly, I recommend
that the election be set aside
B. The discharges
1 John L. LeFlore, Jr.
LeFlore started with the Respondent in September 1951 as a mold pourer and furnace
attendant. Mose Harris was the journeyman in charge of the bank of furnaces to which he was
assigned. After he had been on this assignment for about 6 weeks, LeFlore asked Derry Smith
to get him transferred to the shakeout department, and shortly thereafter the foundry foreman
effectuated the transfer For the remainder of his employment he worked as a shakeout man
under Smith. He was discharged on January 15, 1952
In its answer, the Respondent stated that LeFlore was discharged because he was "con-
stantly, without permission, wandering through the plant, away from his own designated work
area, without regard and without attending to the duties of his employment, was extremely
careless in his work and, moreover, was constantly interrupting moulders and fellow foundry
helpers to the extent that they protested to the superintendent...." The said answer incor-
porates the substance of the testimony given by the Respondent's witnesses, Harris. Smith,
Rasp, Clifford Carl Christensen, a moulder with whom LeFlore worked for a period of about
3 weeks before Christmas, and Columbus Titus, an employee in the cleanup department.
If this testimony be accepted, practically from the time LeFlore came on the job he was
grossly negligent of his assigned duties. Harris, with whom he first worked, testified that he
was absent from his job so much that half the time he was unable to find him, and that he
asked the foreman to transfer him out of Harris' department. This is not credible testimony
It is inconceivable had Harris found it necessary 3 or 4 times a day to get a replacement for
LeFlore because of thelatter's absences from his job, as Harris testified he did, that LeFlore,
who was little more than a common laborer, would have been retained on that job for 6 weeks
to 2 months. Further, LeFlore testified, and Foreman Rasp admitted, that LeFlore's transfer
to shakeout was at the latter's own request Titus testified that he observed LeFlore off his
job once or twice before and after Christmas, talking to employees at the pickling tank. Ac-
cording to Titus, on such occasions LeFlore would "hang around" for 4 or 5 minutes. This
testimony is hardly of sufficient substance to account for a discharge.
Christensen's testimony, like Harris', fails to convince. He was a molder, without journey-
man status, but was held primarily responsible for the quality of the castings that were made
on his job. Assisting him was a crew of 3 shakeout men whose duties included keeping the
molder supplied with the materials and equipment required in the casting process, and
shaking out the castings. LeFlore was 1 of the crew of 3 shakeout men assisting Christensen.
Christensen testified that LeFlore neglected his duties, and was responsible for getting sand
into the castings through carelessness in shaking them out of the molds, and in stepping over
the molds. He testified that he complained to Rasp that he "had to have another crew of shake-
out men or else they would have to get another molder." He further testified that while in
the toilet he overheard LeFlore declaring to other employees that he, LeFlore, was the
champion restroom patron "I have the record, an hour and twenty-five minutes," LeFlore
said, according to Christensen.
Aside from LeFlore's denials, there are certain other factors which militate against ac-
cepting Christensen's testimony at its face value. It became clear on cross-examination that
Christensen himself had been subjected to criticism because of defective castings. As
Christensen testified, the molder "is the one that gets damned mainly for dirty castings."
It would not be illogical therefore, when he was criticized for his castings, that he would
attempt to shift some of the blame onto his shakeout helpers. It further appears that
Christensen had differences not only with LeFlore but with Ralph Edward Goynes, a second
employee in the shakeout crew of three Both LeFlore and Goynes were Negroes. He did not
deny that in an argument with Goynes he called the latter a "nigger ," and admitted that he
told Foreman Rasp that if Rasp did not take Goynes away he "wasn't going to stand for him
any more " Questioned concerning defective castings , "And each time that there was any
question about molds, you always blamed it onJohnny LeFlore and Ross Goynes, did you not9"
Christensen testified, "Well, I think I did." That his complaints were not directly solely at
LeFlore is further evidenced by his testimony thathe demanded of Rasp a new shakeout crew.
He later changed this testimony in an attempt to have it appear that it was only LeFlore whose
replacement he demanded, but the shift in emphasis was confused and unconvincing. Goynes
R. H. OSBRINK MANUFACTURING COMPANY 53
was not discharged but left Respondent 's employ voluntarily in September 1952 . Assuming,
contrary to these findings , that there was substance to Christensen 's complaints against
LeFlore , it should be borne in mind that LeFlore was in Christensen 's shakeout crew for a
period of no more than 3 weeks at a time prior to the Christmas vacation, and was continued
thereafter in Respondent 's employ as a shakeout helper until January 15. Obviously therefore,
Christensen 's complaints were not deemed to be sufficient to constitute grounds for a dis-
charge.
Rasp and Smith gave further testimony on LeFlore 's alleged deficiencies . Rasp testified
concerning complaints he had received from Christensen and other molders, and further
testified that he had personally observed LeFlore away from his job during working time and
had spoken to him half a dozen or so times after his transfer into shakeout . He first testified
that LeFlore was transferred to shakeout to "snap him out of it" and then admitted that the
transfer was made at LeFlore 's own request . Smith testified that LeFlore would get off his
floor during working hours and engage in conversations with other employees and that he had
called these matters to LeFlore's attention . It wasLeFlore's undenied and credible testimony,
however , that when on Smith 's recommendation Smith's brother was hired in the department,
Smith directed him, LeFlore , tobreakthis newemployee in. Also at Smith 's direction , LeFlore
instructed another new employee , Jones, in shakeout work . According to LeFlore , Smith told
Jones that LeFlore was a good worker and that was why he was assigning LeFlore to teach
him this line of work . It was LeFlore 's further credited testimony that on one occasion Smith
told him that if all the employees in the department were as efficient as LeFlore , he, Smith,
would have nothing to worry about . Another witness , Henry J . Sanford, testified that Smith
referred to LeFlore as a good worker.
A further circumstance that casts doubt on the credibility of Respondent 's witnesses in the
matter of LeFlore 's discharge , is their failure to reveal any incident occurring on or about
January 15 which might reasonably have been said to have touched off the discharge . Christen-
sen's complaints , which if accorded weight might have been said to have occasioned the dis-
charge, were made prior to the Christmas vacation , and if any new incident arose or complaint
was received thereafter the record does not disclose it. In fact , it is not even clear who made
the decision on the discharge and there is a total lack of specificity in the testimony of Re-
spondent's witnesses concerning the circumstances attending it. A more likely explanation
than any of those advanced by the Respondent lies in the fact that on January 2 , the Board
issued its Decision and Direction of Election and it then became evident that unless the Re-
spondent was successful in defeating the Union at the polls it would presently be confronted
with a bargaining representative which it definitely did not want.
From all the testimony it appears that among Respondent 's employees , LeFlore was the
most active in his support of the Union . Shortly after he was hired he asked Harris if the
plant was organized and Harris replied that the Union was trying to get in and the Respondent
did not want it. LeFlore said that he thought a union was something that should be in every
shop. This discussion occurred in the presence of other employees, some of whom agreed with
LeFlore , others siding with Harris who was opposed to the Union . In another discussion with
Harris , LeFlore argued that union representation would help to break down discrimination
against Negro employees , and Harris replied that Osbrink had said he would close the plant
rather than have the Union. LeFlore answered that Osbrink could not close the plant because
of Government contracts which he had to fill , and he thought Osbrink had made the statement
in order to keep the plant fromgoingunion . Other discussions of like nature occurred between
LeFlore and Smith. LeFlore offered his services to union representatives in helping organize
the plant and obtained names and addresses of employees for their use. Inasmuch as much of
his union activity was carried on openly inside the plant, I think there can be no doubt that
-Respondent was fully advised concerning it. In the light of these facts, and the Respondent's
strong bias against a bargaining relationship with the Union . I am convinced that it was Re-
spondent 's concern over LeFlore's organizational activities rather than his deficiencies as a
shakeout helper that prompted his discharge.
I am strengthened in this conclusion by statements made by Watkins , assistant foreman,
and Smith , concerning the discharge . 6 Watkins, who gave LeFlore his final check and informed
him that he was discharged , declined to assign a reason for the discharge at the time. It was
Goynes ' undemed testimony that about a week after LeFlore 's discharge. Watkins told him that
the discharge resulted from LeFlore having talked too much about the Union in the shop. It
was Goynes ' further undenied testimony that Smith said that LeFlore was discharged for
talking "too much about the Union in the shop." It was Sanford's undenied testimony that on
I Watkins was excluded from the voting unit and listed at that time as a managerial employee.
I find that he was assistant foreman under Rasp and had the status of a supervisor . He was no
longer employed by Respondent at the time of the hearing herein.
283230 0 - 54 - 5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the day of LeFlore's discharge he asked Smith why LeFlore had been fired and Smith replied
that he did not know; that LeFlore was a good worker; and that he would see Osbrink and try
to get LeFlore back. On the following day, still according to Sanford's undenied testimony,
Smith said that he would not try to get LeFlore back because he had been outside the plant
passing out union handbills; for that reason Smith had rather not ask Osbrink to rehire him
inasmuch as Osbrink was opposed to the Union. In similar vein, LeFlore himself testified,
without contradiction, that in a conversation with Smith at LeFlore's home following the dis-
charge, Smith said that he was sorry about the discharge; that he had done all he could to get
LeFlore rehired; but that after it was known that LeFlore was passing out union handbills he
could do no more and LeFlore would never be taken back. Smith's brother, who was present
on this occasion, did not testify.
Finally, Respondent's reluctance to afford LeFlore any explanation for the discharge, in
association with other circumstances, is indicative of unlawful motive Unable to get this
information from Watkins who handed him his final check and informed him that he was dis-
charged, LeFlore saw Osbrink who told him that he did not know the cause of the discharge
and LeFlore should see Superintendent Beals Beals, in turn, professed to have no knowledge
of the matter but said he would find out and LeFlore should call him the following morning.
LeFlore called Beals twice the following day but each time was told that Beals did not yet have
the information and he should call back later. Finally, 2 days after the discharge Beals gave
him reasons for the discharge which are substantially in accord with the reasons advanced in
Respondent's answer to the complaint.
I find that the Respondent discharged LeFlore because of his union activities and thereby
violated Section 8 (a) (1) and (3) of the Act. I further find an independent violation of Section
8 (a) (1) of the Act by Watkins' and Smith's statements that LeFlore's discharge was based on
his union activities, by Smith's statement to Goynesthat the latter also was slated for discharge
because of his union activities and intimation that the discharge would have been effectuated
except for Smith's intervention in his behalf; and Smith's statement that LeFlore would never
be rehired by Respondent because he had been seen passing out union pamphlets
2. Archie Plummer
Plummer was employed by the Respondent in June 1951 On reporting to work he was told
by Clary Tarrant, then foundry foreman, or superintendent, that Detroit Rushing, leadman,
would tell him what to do. Rushing appears to have been a journeyman furnace attendant
occupying the same status as Mose Harris Plummer testified that he worked about 2 months
with Rushing after which Rushing transferred him to the furnace bank run by Harris.
Plummer had been affiliated with a labor organization prior to his employment with the
Respondent, and shortly after he observed the distribution of union pamphlets at Respondent's
plant he signed a union-authorization card. He discussed openly his interest in union rep-
resentation and in the presence of Rushing and Harris, both of whom were opposed to the Union.
It is his undisputed testimony that Rushing expressed the opinion that Osbrink would close the
plant if the Union came in.
About January 20, 1952, Plummer sprained his back and was thus disabled for a period. He
acted as the Union's observer at the polls on January 25, but did not report back for work until
February 13 He was under the careofa company doctor most of this time on about February
5 the doctor advised him that his condition would permit him to report for light work, but
Plummer said his back still hurt and he was advised that he could return for another treat-
ment. 7 Plummer delayed reporting to work for another week. No evidence was offered to show
how much time he actually worked from February 13 to February 29 when he was discharged.
and there is no evidence concerning the actual circumstances attending his discharge except
his own According to Plummer, some 3 days prior to his discharge he was suffering from a
cold and requested and received a pass to go home from Wally Watkins whom he regarded as
a foreman and who is listed on Respondent's management chart as assistant to Foundry Fore-
man Rasp Watkins did not testify. I have previously found that he was of managerial status
and there is no reason to question Plummer's testimony that Watkins issued the pass. Plummer
worked on the next day and it is his testimony that he received the permission of his "lead-
man," Walker, to be away from his job on the following morning while he saw his doctor.
Walker denied that he was asked to give or gave such permission. Plummer did not report for
work on that date until about 11 a.m. or noon. Watkins questioned him concerning his reasons
for being absent from his job that morning, and he replied that Watkins was standing not more
7The doctor's certificate merely stated that he was able to return to work. Plummer
testified that his final discharge from the doctor carne on February 12.
R H OSBRINK MANUFACTURING COMPANY 55
than 4 or 5 feet away when Walker, his leadman, gave him permission to be absent. 8 At the
close of the work shift that day,, Watkins handed him his check and told him that he was dis-
charged for being off the job without calling into report his absence Apparently, it is the
Respondent's position that Walker had no authority to grant permission for Plummer to be
absent from his job and therefore Plummer's absence was unauthorized.
In the absence of corroborative testimony from Watkins, I am unable to credit Walker's
denial that Plummer neither asked for nor was given permission to be absent from his job
on the morning of the day he was discharged. While it may well be as Walker testified, that he
had no authority to grant such permission, if the request was made of him,m the presence of
Watkins it would at least have been tantamount to notice that Plummer would be late in re-
porting for work the next day and such notice was all that was required. Furthermore, Re-
spondent's records disclose numerous unauthorized absences among many of its employees,
and it was Plummer's undisputed testimony that on previous occasions he had been absent
without calling in and had suffered neither layoff nor reprimand therefor. Clearly, Respondent
had no strictly enforced rule on absences and was, in fact, quite lax in such matters. 9 In his
preelection speech, Chuck O'Day of Respondent's managerial staff, in reminding employees
of the advantages of working for the Respondent, had this to say on the topic: "Where also, is
a shop that the worker can show up for work a day or two out of a week and still retain his
job'2 Some men have consistently violated this privilege, but so far not many have received
more than a good bawling out, and not so good, but a pretty mild one at that " In the light
of all these circumstances I am convinced that Plummer's failure to report on his absence the
morning of the day of his discharge,-- assuming there was such a failure--was not the real
cause of the discharge, though it may. of course, have been a contributing factor.
The Respondent in its answer to the complaint asserted absenteeism and tardiness as the
reasons for the discharge, but after evidence had been taken amended its answer to include
the additional reason that "he was lax and unsatisfactory in the discharge of his duties .
11
Concerning these additional matters. Mose Harris testified, in effect, that Plummer was lazy
and sat around on a box when he should have been working. I have previously found that
Harris' testimony with respect to LeFlore was not credible and I find it no more impressive
here. In any event, months had elapsed between the time Plummer worked with Harris and the
date of Plummer's discharge. Walker who had charge of the job on which Plummer was engaged
at the time of his discharge, testified that 2 or 3 times Plummer was absent when it was time
to pour, and on 1 of these occasions Rasp said, "Walker ... it is up to you to get that done
If you don't get it done, management . . will have to get someone else " He further testified
that he told Plummer, "One of these times you are going to lose your job," and Plummer, re-
plied, "I can make more, I can draw my Social Security " Finally, there is the testimony of
Foreman Rasp.
Rasp testified that Plummer was lax rn the performance of his duties, never wanted to get
in and pitch with the rest of the boys, and gave the appearance of not wanting to work Rasp
purported to testify from personal observation and first testified that he himself authorized
Plummer's discharge. It was his further testimony that he had no knowledge at that time that
Plummer had served as an observer for the Union at the election When 'reminded that the
election occurred a month prior to Plummer's discharge, an election in which he, Rasp,
served as an observer for the Respondent, he testified that he had got his dates confused. Later
he testified that he did not discharge Plummer but that Clary Tarrant discharged him, and that
Tarrant discussed the matter with him. On still further questioning he admitted that he was
not certain that Tarrant was in Respondent ' s employ at the time of Plummer 's discharge and
admitted that he had no definite recollection of having discussed the discharge with anyone.
The following excerpts from his testimony on cross-examination are illustrative:
Q. Did you personally authorize his discharge?
A. I personally authorized ... his discharge.
Q. Did you know at the time you discharged Archie Plummer that he had been an ob-
server for the union in the election?
A. I knew nothing about that at all.
8 At various times Plummer testified that both Watkins and Walker had granted permission
for him to be absent, but in so testifying he obviously was referring to the fact that Watkins
was standing close by and in what he thought was hearing distance when Walker gave his assent.
9Plummer's absenteeism record from October 1, 1951, to June 30, 1952, shows 27 absences
of which 16 are recorded as authorized. Admittedly. a substantial percentage of these absences
were caused by hisbackinjury. During the same period. Derry Smith. one of Respondent's most
valued employees, had a record of 22 absences, only 12 of which are recorded as authorized;
employee Robert Ricks, Jr., had 20absences ofwhich 5 were authorized; and Wiley Larrimore,
Jr . had 32 absences of which 17 were authorized.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You didn't know that?
A I found that out after this election we had.
Q. So you did know--
A After the election , but I didn 't know when I dismissed him.
Q. You discharged him on February 29, 1952, did you know that? Will you take my
word for it9
A. Yes, it was about a month after the election , I remember , that he worked for us
after the election.
Q So you knew before you discharged Archie Plummer that he had acted as the ob-
server for the union at the election?
A In that case , yes. I made the mistake . I got my .. dates confused there
Q. Did you tell Clary Tarrant that you .. charged Archie Plummer.
A I did not discharge Archie Plummer
Q. Did you know anything about the discharge of Archie Plummer'?
A. No, not exactly when that happened.
Q. Did you tell anybody to discharge him9
A. Not actually
Q Who did discharge him'?
A. Clary Tarrant.
Q. Did he talk to you about it?
A Yes, he did.
Q Was Clary Tarrant working at the time Mr Plummer was discharged?
A I think he was--no, let's see, now,
Q. Now. I will ask the question again. Do you know9
A No, and I believe Clary wasn't there.
Q. So your testimony that you had a conference with Clary Tarrant about the discharge
of Archie Plummer was false, is that right?
A. I said I was not sure.
Q. But who did you have a conference with about the discharge of Archie Plummer, if
anyone?
A. I am a little shady on that.
Q. Did you talk to anybody about the discharge of Archie Plummer?
A. I don't recall that I did.
Obviously, no reliance whatever can be placed on this witness' testimony concerning Plummer ii
to Concerning Walker, whose testimony has been refer red to in the text above , Rasp testified:
He was a furnace man, avery good furnace man , too, but, I don't know , he was off on the
wrong foot , or some darned thing , and he couldn ' t get along with somebody. And I think he
was one of those absenteeisms , if I am not mistaken.
He further testified that Walker was no longer employed by the Respondent , though as a
matter of fact the latter 's employment had been continuous except for a period when he was
absent on account of illness ; he was in Respondent ' s employ at the time Rasp was testifying;
and he was later a witness for the Respondent . It seems clear that if Rasp ' s familiarity with
Respondent 's key employees was this slight , he could hardly have had first- hand knowledge
of the work performances of common laborers such as Plummer.
R. H. OSBRINK MANUFACTURING COMPANY 57
Inasmuch as Watkins , Rasp 's assistant who gave Plummer his final check and informed him
that he was discharged for being absent without reporting , did not testify , and Rasp himself
finally admitted that he neither discharged Plummer, recommended his discharge, nor had any
recollection of having discussed it with anyone , we have, as previously stated , only Plummer's
own testimony as to the actual circumstances attending the discharge, and in the light of this
record the only reasonable inference that can be drawn from it is that his partial absence on
the day of his discharge was used as a pretext and that the real cause was that he had identified
himself with the Union, both through his open advocacy of union representation prior to the
election , his representation of the Union at the polls , and his continued support of the Union
following its defeat . It accordingly is found that the Respondent discharged him because of his
union activities , thereby discouraging membership in a labor organization in violation of
Section 8 (a) (1) and ( 3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection with
the operations of the Respondent described in section I, above , have a close , intimate , and sub-
stantial 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
To effectuate the policies of the Act it will be recommended that the Respondent cease and
desist from engaging in conduct found herein to constitute unfair labor practices , and take the
following affirmative action:
Offer to John L. LeFlore, Jr., and Archie Plummer immediate and full reinstatement to
their former or substantially equivalent positions , without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay 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 he normally would have earned as wages from the date of discrimination
to the date of offer of reinstatement , less his net earnings during such period (Crossett Lum-
ber Com_ pany, 8 NLRB 440). The back pay shall be computed in the manner established by the
Board , and the Respondent shall make available to the Board payroll and other records to
facilitate the computation of the amount due (F . W. Woolworth Company, 90 NLRB 289).
Post notices addressed to its employees stating that it will not engage in the conduct found
herein to constitute unfair labor practices.
The character and scope of the unfair labor practices engaged in indicates an intent gen-
erally to interfere with the organizational rights of employees and constitutes , potentially, a
threat of commission of other unfair labor practices in the future. The remedy should be
coextensive with the threat . It will therefore be recommended that the Respondent cease and
desist from in any manner interfering with, restraining, or coercing its employees in the
exercise of rights guaranteed by the Act . ( May Department Stores v. N.L.R .B., 326 U . S. 376.)
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
'trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile , Aircraft and Agricultural Implement Workers
of America , CIO (UAW-CIO), Region 6, is a labor organization within the meaning of Section 2
(5) of the Act.
2. By discriminating in regard to the hire , tenure, and conditions of employment of John L.
LeFlore, Jr., and Archie Plummer , thereby discouraging membership in the Union. the
Respondent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. I