Ramsey Winch Mfg. Co.

National Labor Relations Board - Board Decisions

Oct 11, 1957

118 N.L.R.B. 1568 (N.L.R.B. 1957)

1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no valid agreement had' been executed which could effectively constitute
"a bar to this proceeding. 12
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act..,
In agreement with the stipulation of 'the parties, we find that a unit
of all outside salesmen employed by the Employer at its fluid milk op-
erations at Portland, Oregon, excluding all other employees, guards,
office clerical employees, professional employees, and supervisors as
defined in the Act, constitutes an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[The Board vacated the Decision and Order issued on February 1,
1957, dismissing the petition.]
[Text of Direction of Election omitted from publication.]
12 Mt. Clemens Metal Products Company, 110 NLRB 931.
R. M. Ramsey and Claude Ramsey, d/b/a Ramsey Winch" Mfg.
Co. and Lodge . 790, International Association of Machinists,
AFL-CIO. Case. No.. 16-CA-915. October 11, 1957
DECISION AND ORDER
On January 31, 1957, Trial Examiner Wheatley issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
:practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also. found
that the Respondent had not engaged in certain other unfair labor
-practices alleged in the complaint. Thereafter, the General Counsel
filed exceptions to the Intermediate Report,' together with a sup-
porting brief.
Pursuant to the, provisions of Section 3 (b) of the National. Labor
Relations Act, as amended, the Board has delegated its. powers in
connection with this case to a three-member panel [Members
Rodgers, Bean, and Jenkins].
The Board has reviewed the -rulings n4ade by the 'trial Examiner
t` .the hearing and finds that 'no prejudicial error was committed.
1. These ,..exceptions were directed to the Trial Examiner 's recommendation that the
complaint 's auegatiom of , a Section 8 (a) (3) violation be dismissed . No exceptions were
filed by the Respondent to the 8 ( a) (1) findings of the Trial Examiner.
x18 NLRB No. 220.
RAMSEY WINCH MFG. CO. 1569
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that Respondent, R. M. Ram-
sey and Claude Ramsey, d/b/a Ramsey Winch Mfg. Co., its officers,
agents, successors, and assib is, shall :
1. Cease and desist from :
(a) Interrogating employees concerning their membership, sym-
pathies, or activities on behalf of Lodge 790, International Associ-
ation of Machinists, AFL-CIO, or any other labor organization, in
a manner constituting interference, restraint, and coercion in viola-
tion of Section 8 (a) (1) of the Act.
(b) Threatening employees with economic reprisals because of
their union or concerted activities.
(c) In any like or related manner, interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation 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) Post at its place of business in Tulsa, Oklahoma, copies of
the notice attached hereto narked "Appendix." Copies of such
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being signed by Respondent's authorized repre-
sentative, be posted by Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all. places where notices to employees
aide customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges viola-
tions of the Act different from those found in this Decision and Order,
be, and it hereby is, dismissed.
450553-58-vol. 118-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership, sympathies, or activities on behalf of Lodge 790, Inter-
national Association of Machinists, AFL-CIO, or any other labor
organization, in a manner constituting interference, restraint, or
,coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten employees with economic reprisals be-
,cause of their union or concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed in Section 7 of the Act, except to the extent That such
sights 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.
All our employees are free to become or remain, or to refrain from
'-becoming or remaining , members of the above-named union, or any
other labor organization, except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
R. M. RAMSEY AND CLAUDE RAMSEY,
d/b/a RAMSEY WINCH MFG. CO.,
Employer.
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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The above-captioned proceeding concerns allegations that R. M. Ramsey and
Claude Ramsey, partners doing business as Ramsey Winch Mfg. Co., herein called
Respondent , unlawfully discharged Bill R. Todd on July 25, 1956, and allegations
that Respondent by this conduct and by other enumerated conduct interfered with,
--restrained , and coerced employees in the exercise of their rights guaranteed in the
National Labor Relations Act, as amended, herein called the Act. Respondent
denies that it violated the Act and asserts that Todd was discharged for "cause."
THE FACTS 1
A. Interference , restraint , and coercion
During the first part of April 1956 ( about April 3) B. R. (Bill Ray) Todd and
four other employees interested in organizing Respondent 's employees called upon
IIt is not the intention of the Trial Examiner to repeat the evidence taken at the
hearing, which consumed the larger portion of 3 days, but the Trial Examiner will try to
RAMSEY WINCH MFG. CO. 1 571
Claude Jones, special representative for the IAM . An organizing committee was
established and a letter was drafted, which was delivered to Respondent on or about
April 4, 1956, advising Respondent that an organizing program was being initiated
and that Bob W . Ford, Keith Jobe, William R . Lieurance , Bill R . Todd , and Gerald
Carlburg would be active in such a program.
On the day that . Respondent received the letter mentioned above or the next day,
Claude Ramsey, partner, chief executive officer and operating head of Respondent,
asked Carlburg why he "all of a sudden got interested in the union because about
a year ago they tried to organize the union and I [Carlburg] was against it, and I
[Carlburg] told him well , I had been asking John Ramsey [shop superintendent]
for a raise and he laughed in my face and I got disgusted . I thought that was the
only thing to do, and he-if he didn't laugh he would say I will get one first, and go
.on. You don't ask for a raise unless you need it."
Q. All right, what was the rest of the conversation?-A. Well, he had some
papers on his desk there and he asked me if Bill Lieurance felt the same way
and f said yes.
Q. All right, was that the extent of the conversation now that you can re-
member?-A. Yes.
On or about April 5, Partner Claude Ramsey asked Keith Jobe why he (Jobe)
"wanted to get the union in there, and I [Jobe] told him because I thought it would
.do some good." Claude Ramsey asked Jobe why he thought it would do some good
:and Jobe replied by explaining his (Jobe's) futile attempts to get a wage increase
.and Claude Ramsey agreed that Jobe had not been treated fairly and remarked
that the employees "had a good deal," they got "hams, turkeys and bonuses," but
that if "the Union came in there he wouldn't have to give them anymore" and that
if the Union came in "he wouldn't have to give anymore overtime." 2
On or about April 6 approximately eight employees were in Partner Claude
Ramsey's office and he (Ramsey) "asked around what they did before they came
.there and what they started at and didn't they think they were better off than they
were. He [Ramsey] didn't ask everybody, but he asked most of them, and then
he said, `wouldn't you rather try to get your raises on your own than to have to
wait on everybody, the lag arounds,' if we had the Union in there we would have
'to wait on the lag arounds." 3
At quitting time one evening about the time that Respondent received the letter
-mentioned above, a group of employees (including Todd, Carlburg, and Ford named
in the letter above referred to) and Mr. Beach (a union official), gathered at a
place near Respondent's plant and endeavored to secure signatures upon union cards
,from-employees as, they left Respondent's. plant. Claude Ramsey came up to the
group and told them they were on Respondent's- property and "it didn't look good
for a shop for guys to be hanging around after working hours." Claude Ramsey
suggested that "if they were going to hold a meeting to have it at the union hall."
The next morning (about 7 a. m.) Claude Ramsey came to where Carlburg was
working and said
Don't be scared of what I did and said last night, he said, you have got a mind
of your own, you can do just what you want to.
-Claude Ramsey also told Carlburg that if the Union got into Respondent's plant
"it would be a good deal for him [Ramsey], that he wouldn't have to do the things
that,he.had been doing for us"-that there "wouldn't be any more turkeys and hams
if the Union got in there because he wouldn't have to give those and the Christmas
bonus,:he wouldn't have to give them." 4
Claude Ramsey also talked to Keith Jobe about the incident involving the group
of employees and Mr. Beach and according to Jobe
Well, let's see, I don't remember exactly how it started. He said something
about running Mr. Beach off. He said he could have whipped him and should
state in narration what he believes and finds to be the facts as revealed by the evidence
adduced.
2 Claude Ramsey categorically denied that there was ever any conversation or state-
ment by him that if the Union was successful in organizing Respondent that the em-
ployees would lose their overtime. The Trial Examiner finds the facts to be as noted
above.
3 "The guys that goofed off out in the shop working, so we can all get a raise at the
same time."
4 Claude Ramsey denied that in this conversation he referred to the Union . The Trial
examiner finds the facts to be as noted above.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have. He said he could have shot him if he wanted to and they couldn't have
done anything about it.
Q. Was that all he said, now, at that time?-A. I believe so.
Q. Did you ever talk with him at an additional time about that matter?-
A. I don't think so.
Following receipt of the letter mentioned above, partner Claude Ramsey talked
to Todd on several occasions concerning the advantages or disadvantages of be-
longing to a union. Concerning these conversations Todd testified:
On this par.i,ular morning [April 6, 1956] Mr. Ramsey engaged me in con-
versation, coming to me and telling me that the boys had a good deal there
and that they didn't need any union representation. I told Mr. Ramsey, Mr.
Claude Ramsey, that being a union member I knew the benefits that could be
derived from belonging to an organized shop or having.an organized shop, and
that there were several dissatisfied employees in the lower wage brackets as well
as others and that they were dissatisfied with various conditions that were
taking place inside the shop and that we did want a union shop.
And Mr. Ramsey stated that he was a poor man and that he was paying the
men all that he was able to afford. I told Mr. Ramsey that being the case in
the event that the shop should secure union representation that he wouldn't
mind then if we looked at his books in order to determine whether or not he
could afford to pay more money.
He stated to me that no one was going to examine his books, and he told
me that be used to belong to a union, was union steward at one time, and that
he knew how unions operated, but that they were a bunch of crooks and
drunkards and they took our union dues and had parties, and so on, rode
around in big Cadillacs and big Packards and so on, and that he wouldn't
advise the boys paying their money into that type of an organization.
I told Mr. Ramsey that myself being a member of the Union I knew the bene-
fits that we could derive, that I was going ahead with my organizing campaign.
Mr. Ramsey stated to me that I ought to consider my wife and children, that I
had a good job there, and I was making good money and I ought to consider
them before I pursued any more action to organizing a union shop.
Q. Now, was there anything mentioned during this conversation by Mr.
Ramsey as to what action, if any, he might take if the union came in?-A. Now,
then during this same day we had maybe three or maybe four different con-
versations. In the next three days that followed we had conversations, maybe
one a day or two a day. During these conversations Mr. Ramsey tried to sway
my opinion against union shops, telling me various things that happened in
Detroit, how various union heads would be found floating down the river and
things of that kind, and that he had worked hard building up this winch business
and that he could sell out his job or his company for approximately two and a
half million dollars and that he still had a contract to sign and that before he
would sign a contract he would close his doors.
Q. All right, now-A. And also during these conversations throughout the
day he stated to me the benefits that we were getting, such as a ham on Christmas
and a turkey on Thanksgiving, a Christmas bonus, and the various amounts of
overtime, that should we get a union shop in there that we would lose all of these
benefits, including our coffee break, even-5
Following April 5, a large number of employees stopped at the place where Todd
was working and discussed with him union matters, some of the individuals being
for union representation and some against union representation. By reason of
these conversations Todd was making a poor showing in the daily production and was
losing from "an hour and a half to two hours a day".of productive work. About a
week or 10 days after April 5, Todd asked John Ramsey, shop superintendent, to go
around and tell the employees not to converse with him (Todd) about union matters
(about matters other than matters pertinent to Respondent's business) during work-
ing hours. John Ramsey complied 6 with Todd's request and told "all the men in the
c Claude Ramsey categorically denied. making any statements to Todd or other persons
"that in the event the Union was successful" lie "would shut the plant down" and
categorically denied stating that "if the Union was successful in.organizing the Company"
that the employees "would lose their overtime." The 't'rial Examiner finds the facts to
be as noted above.
O There was considerable visiting among the employees and Respondent on this occasion
and at other times attempted to limit the quantity thereof.
RAMSEY WINCH MFG. CO. 1573
plant" not to converse with Todd during working hours 7 except about matters perti-
nent to Respondent business. For approximately 2 weeks thereafter Todd ex-
perienced a "chilly atmosphere-the men would no longer have anything to do with
me [Todd] that is, they would not converse with me during working hours or even on
our own time, such as during lunch hour or coffee breaks or after hours." After
about 2 weeks this "chilly atmosphere" began to change and the men became more
friendly, and, "of course at that time I [Todd] didn't do any more campaigning for
the Union, just kept still about it."
About April 15 a group of employees told Shop Superintendent John Ramsey "they
had signed some cards, union cards, and they changed their minds and they wanted
them back." This group of employees asked Shop Superintendent John Ramsey
how they could get their cards back. John Ramsey said he did not know but he would
find out. John Ramsey then asked Todd 8 how the employees could get their cards
back and Todd said he would try to get them. That evening Todd went to the union
hall but it was closed and he did nothing further about this matter. The next day,
about April 16, the same group of employees told John Ramsey that they had been
unable to get their cards back and asked "if they could go to the union hall and get
their cards." John Ramsey granted the requested permission. "One of the men"
handed John Ramsey a list of names of employees who desired to go to the union
hall to get their cards back and John Ramsey then inquired of each employee listed
whether he desired to go to the union hall for his card. When John Ramsey ap-
proached Carlburg-one of the employees listed in the letter mentioned above-
Carlburg was talking with Keith Jobe. John Ramsey inquired of each employee
whether he wanted his card back. Carlburg replied in the affirmative and Jobe
in the negative. John Ramsey responded to Jobe's negative answer with "well what
do you know?" And Jobe said "well, I don't know nothing" and that ended the
conversation between Jobe and Ramsey.9 That morning (April 16) about 10
o'clock, 9 or 10 employees left the plant, without checking out, and went to the
union hall-about 2 miles away-and tried to get their cards returned. Prior to the
visit to the union hall some of the employees expressed among themselves a fear 10
about getting their cards back and Carlburg told Partner Claude Ramsey about this
situation. Claude Ramsey said:
Tell these guys that are afraid to go get their cards back, afraid that I will fire
them, tell them "hell, no, I won't fire them."
Union activity at Respondent's place of business was at its height between April 5
and the last of April. By the latter part of April it "began to die down" and did
not pick up again although Todd did engage in some conversations about the Union
with some of the employees in June and July and did secure from some employees
signatures indicating desires to be represented by the Union. On one occasion
"probably the third week of July" 11 Clarence A. Conwell, shop foreman, stated to
Todd, "I hear you have been promoting again." Todd asked "what makes you think
that?" and Conwell answered "well, I have just got. wind of it." Conwell further
stated that he had observed "entirely too much visitation" going on in the whole shop,
some of it involving Todd, and some involving other employees and that "it was
all going to have to stop." 12
In his brief the General Counsel states that Respondent directed the employees not
to talk to Todd at any time. There is no direct evidence to this effect and the record
does not warrant such an inference.
8 John Ramsey had been told by the employees that Todd "was the one that got them
to sign up."
90n another occasion John Ramsey told Jobe the employees had "a good deal" and
inquired why he did not want his union card returned. John Ramsey accepted, without
comment, Jobe's reply that he "just thought it would benefit us." A similar exchange
of remarks took place between Claude Ramsey and Jobe on another occasion.
la Apparently a fear that if they withdrew their cards and thus created a situation
where there was no record of their union activity they would be at the mercy of Re-
spondent if Respondent decided to discriminate against them for having engaged in
union activity.
"According to Todd. There is no corroboration of this date and in the -light of the
entire record the undersigned believes this approximation inaccurate. Conwell did not
testify about this matter. However, Conwell did testify that by July 25 union activity
had "pretty well died down and gone by the boards" and that "there was little or no
discussion of it then."
12 See footnote 6.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discharge of Todd
Todd was employed by Respondent from November 11, 1954, to July 25, 1956.
He worked as a machinist and operated a lathe in a conveyor or assembly line type
of operation, During his tenure with' Respondent he received 2 wage increases
totaling 35 cents per hour. The last wage increase was effective from about the
middle of March 1956.
Todd's activities on behalf of the Union have been previously noted.
Prior to the advent of the Union Todd worked 10 hours a day and 5 to 8 hours:
on Saturday. After about April 5, 1956, Todd's overtime was reduced by the
elimination of Saturday work, except on two occasions he did work on Saturday.
However, there is no allegation herein that Todd's loss of Saturday work was because
of his activities on behalf of the Union. Furthermore, the record reveals that only
a few selected employees worked on Saturdays, that Todd indicated to Respondent
officials that he preferred not to work regularly on Saturdays 13 and that Respondent
during the period from about April to July 25, could perform its operations satisfac-
torily without the added expense of working Todd regularly on Saturdays. In
addition, Todd's daily production rate during this period was less than it had been
prior to April 5 and the record as a whole casts (1) a suspicion that Todd created.
this situation with hopes that he might thereby acquire Saturday work occasionally
and (2) a suspicion that Respondent was aware of what Todd was doing and would'
not cooperate with him. However, suspicion is not proof and the Trial Examiner
makes no findings to the effect noted above.
Some of the employees, including Todd, occasionally left the plant and went else-
where to eat lunch. Todd went to his home. Also, on occasions these employees.
did not return to the plant at the end of the lunch period and on these occasions
they telephoned the plant and explained why they would not be back and were
excused from attendance for the time needed.
Around the middle of June 1956, Todd left the plant at noon, went home for
lunch and found his father-in-law was ill. As a result, he requested permission of
Shop Foreman Conwell to be absent that afternoon for the purpose of taking his
father-in-law to a hospital. This permission was granted and Todd did not work
the remainder of the day.
On July 5, 1956, Todd left the plant at noon and did not return. Todd did not
remember this occasion but the record infers that either Todd or someone on his
behalf called the plant and informed someone other than Conwell that he would'
be out the rest of that day.
On or about July 16, Todd went home for lunch and there was a prospective buyer
for his house there at the time and as a consequence he called the plant and advised
Keith Lair, in the bookkeeping department, that he would be off that afternoon.
Lair advised Todd that this information would be relayed to Shop Foreman Conwell
and Todd took the balance of the day off.14
On July 24, Todd again went home for lunch. On this occasion he found his
daughter ill. Also, a house trailer which Todd had purchased earlier was delivered
to his house that afternoon. On this occasion Todd's wife called the plant and Todd
took off the remainder of the day. Usually Todd did not clean up his machine at
noon when he left the plant intending to come back at the end of the lunch period.
On July 24 his machine was left in a cleaned-up condition, as though he had finished
work for the day.is
'There is a dispute concerning Todd's remarks about this matter-whether Todd
expressed a desire not to work on Saturdays or whether he expressed a desire for addi-
tional overtime each regular workday sufficient to make up for Saturday work and then
elimination of Saturday work. In the light of the entire record it appears, and the
Trial Examiner finds, that regardless of the specific words spoken, Todd did indicate a
reluctance to work on Saturdays. It should be noted at this point that Todd continued
receiving the maximum amount of work per day as the plant was open only from 7 a. m.
to 5 : 30 p. m. and these were Todd's regular working hours.
14 This is an acceptable method of reporting an afternoon absence.
ie There is a dispute as to whether the machine was left in a cleaned-up condition.
In the light of the surrounding facts and circumstances, including the fact that a house
trailer which Todd had purchased earlier was delivered on July 24, the fact that the
severance check was dated July 24, and the evidence that the procedure for dis-
charging Todd was initiated upon discovery of the cleaned-up machine, it appears probable
that Todd left the plant anticipating not returning, if, as turned out to be the fact, the
trailer was delivered that afternoon, and cleaned up his machine in anticipation of such
eventuality. Upon the basis of observation of witnesses and analysis of the record herein,
the Trial Examiner finds the facts to be as noted above.
RAMSEY WINCH MFG. CO . 1575
About 1 p. m. on July 24 Shop Foreman Conwell noticed the condition of Todd's
machine and decided to discharge Todd. 16 Conwell told the bookkeeping depart-
ment to make out Todd 's check . The check which Todd received at the time of
his discharge was dated July 24.
On July 25 Todd did not report to work at his regular time (at 7 a. m.). About
8 a. m. he telephoned the plant and asked permission to take the day off , indicating
that he desired to move his house trailer to a trailer parking lot and "get the con-
nections all tied up ." Shop Foreman Conwell advised him that the production of
his machine was needed and that he would have to come to work . Todd arrived
at the plant at about 8 : 30. Upon his arrival Conwell discharged him, assigning.
as reasons for the discharge , because he had been "absent too much" and that
his production was down.
Shop Foreman Conwell testified that he was aware of the fact that Todd was.
frequently tardy 17. and bearing this in mind he discharged Todd because of the
absences noted above and because his daily production rate was low. Daily pro-
duction records were available but were not offered in evidence herein . Neverthe-
less, the record herein does reveal that during the period of time material herein,.
Todd's daily production did fall lower than it had been previously and that he was.
prodded about this matter.
Conclusions
Section 8 (a) (1)
As noted above , the evidence adduced reveals that during April 1956 , Respond-
ent's Chief Executive Officer Claude Ramsey ( 1) asked Carlburg why he had
become interested in the Union and whether he (Carlburg ) and employee Bill,
Lieurance felt the same way about the Union ; (2) interrogated employee Keith
Jobe about his (Jobe's ) interest in the Union and indicated to Carlburg and Jobe
that certain benefits (hams, turkeys, bonuses , and overtime ) were in jeopardy if
the Union was successful in organizing the Respondent 's plant ; ( 3) interrogated
eight employees concerning their interest in the Union and suggested they would
be better off without the Union ; and (4 ) interrogated employee Todd concerning.
union activities and evidenced to Todd Respondent 's hostility to such activity
and threatened reprisals if the Union was successful in organizing Respondent's
place of business . Also during April Shop Superintendent John Ramsey, at the
request of certain employees , inquired of employees whether they desired to
withdraw from the Union and permitted employees to leave Respondent 's plant
and go to the union for the purpose of withdrawing from the Union and Chief
Executive Officer Claude Ramsey vocally endorsed and encouraged this activity.
In the light of the entire record herein , the Trial Examiner believes and finds that
the conduct noted immediately above violated Section 8 ( a) (1) of the Act
which proscribes interference , restraint , or coercion of the employees in the exer-
cise of the rights guaranteed in the Act. However , the Trial Examiner hereby
rejects the contention of the General Counsel that Respondent 's conduct also
constitutes unlawful surveillance.
Section 8 (a) (3)
As noted above, Todd, an operator of a lathe in a conveyor or assembly line
type of operation, was frequently tardy; fell behind in his daily production rate;.
on three occasions during July was absent after the noon lunch period-on the
last occasion (which occurred the day before his discharge) Todd left his machine-
in a cleaned-up condition as though he had finished work for the day; and was
discharged for the assigned reasons that he had been absent too much and his,
production was down.
While the record reveals that other employees were also frequently tardy and
that Todd followed an acceptable procedure in telephoning Respondent and in-
forming it of unexpected situations and that he would be absent during the after-
noons involved, Respondent was not required to continue its leniency as a fixed
obligation of law. Furthermore, the record reveals that employees leaving the
plant at noon anticipating they would not return were expected to clear such.
anticipated absences with Respondent's officials (on July 24 with Shop Foreman
Conwell) before leaving the plant. As noted above, Todd did not follow this
procedure on July 24 although his machine was left in a condition indicating
he anticipated being absent that afternoon.
16 The lunch period ended at 12 : 30.
17 Between January 1 and June 21, 1956, Todd was tardy 48 times. Between June 22
and July 26, 1956, he was tardy 24 times.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The suddenness of the discharge without prior warning and the evidence of
Respondent's hostility to the Union raise a suspicion that Respondent discharged
Todd for the purpose of eliminating from the scene a union protagonist. On the.
other hand, the fact that Shop Foreman Conwell determined to discharge Todd
immediately upon finding him absent and his machine in a cleaned-up condition
and before Todd's absence had been reported also raises a suspicion that Conwell
was disturbed by Todd's absence without prior clearance from him (Conwell)
and that Conwell acted in haste and without antiunion considerations. In any
event, suspicion is not proof and the onus is upon the General Counsel to estab-
lish by a preponderance of the credible evidence that the discharge was motivated
by antiunion considerations. In the opinion of the Trial Examiner, the General
Counsel has not sustained this burden. The Trial Examiner is unable to find
that the discharge was without justification. Furthermore, the Trial Examiner is
not convinced the discharge was a delayed retaliation against Todd because of
his activities on behalf of the Union during April or was motivated by Todd's
promotion of the Union during June and July, and that the assigned reasons were
pretexts. There is no direct evidence to this effect and the Trial Examiner believes,
although the matter is not free from doubt, that such inferences are not warranted.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements
for the assertion of jurisdiction herein.18
2. Lodge 790, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of the Act.
3. The evidence adduced establishes that Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in the Act and thereby
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices occurring in connection with the opera-
tions of Respondent's business, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce and
are unfair labor practices affecting commerce within the meaning of Section 2 (6)
and (7) of the Act.
5. The evidence adduced does not establish that Respondent discharged Bill R.
Todd because of his union or concerted activities.
[Recommendations omitted from publication.]
18Itespondent engages in Tulsa, Oklahoma, in the manufacture, sale, and distribution
of winch tools and other manufactured items and in the course of conduct of its business
annually receives from points and places outside of Oklahoma materials valued in excess
of $360,000, and annually ships finished products having a value in excess of $450,000
in interstate commerce to points and places outside of Oklahoma.
Kaiser Gypsum Company, Inc. and Joseph P. Dockendorf
Sailors' Union of the Pacific (Kaiser Gypsum Company, Inc.)
and Joseph P. Dockendorf . Cases Nos. 21-CA-1978 and 21-CB-
596. October 11, 1957
DECISION AND ORDER
On May 29, 1956, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
allegations of the complaint that the Respondents herein had engaged
in unfair labor practices within the meaning of Section 8 (a) (1),
8 (a) (3), 8 (b) (1) (A), and 8 (b) (2) of the Act have not been
sustained and recommending that the complaint against the Respond-
118 NLRB No. 217.