Riverside Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1974

208 N.L.R.B. 311 (N.L.R.B. 1974)

RIVERSIDE INDUSTRIES , INC. 311
Riverside Industries , Inc. and United Steelworkers of
America, AFL-CIO-CLC. Case 16-CA-5015
January 10, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 24, 1973, Administrative Law Judge Anne
F. Schlezinger issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Riverside Industries,
Inc., Tulsa, Oklahoma, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge ' s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3, 1951) We have carefully
examined the record and find no basis for reversing her findings
The Administrative Law Judge has dismissed certain allegations of
violations of Sec 8 (a)(3) and (1) of the Act In the absence of exceptions, we
adopt these findings pro forma
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon charges and amended charges filed on December 20,
1972, and January 29 and March 30, 1973, by United
Steelworkers of America, AFL-CIO-CLC, referred to
herein as the Charging Party or the Union, the General
Counsel, by the Regional Director for Region 16 (Fort
Worth, Texas), issued a complaint and notice of hearing on
March 30, a first amendment to complaint and notice of
hearing on April 9, and a second amendment to complaint
and notice of hearing on April 16, 1973. The complaint, as
amended, alleges in substance that Riverside Industries,
Inc., herein called the Respondent, by various acts and
conduct, interfered with, restrained, and coerced its
employees in violation of their Section 7 rights; transferred
to less desirable work assignments, and later discharged,
employees Kelly, Linnet, and Darnell, because of their
union and concerted activities; and by such conduct
engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the National Labor Relations Act.
The Respondent, in its duly filed answers to the
complaint and to the amendments to the complaint, admits
some of the factual allegations of the complaint as
amended, but denies that it has committed any of the
alleged unfair labor practices.
Pursuant to due notice, a hearing was held before me at
Tulsa, Oklahoma, on May 23, 24, 25, and 29, 1973. All
parties appeared at the hearing and were afforded full
opportunity to be heard, to cxamine and cross-examine
witnesses, and to introduce relevant evidence. At the close
of the hearing, the General Counsel and the Respondent
presented oral argument, and the Respondent made
various motions to dismiss on which ruling was deferred.
Subsequent to the hearing, briefs were filed by the General
Counsel and the Respondent on or about June 29, 1973,
which have been fully considered. The Respondent's
motions to dismiss, renewed in its brief, are granted in part
and denied in part for the reasons explicated hereinbelow.
Upon the entire record in this proceeding and from my
observation of the witnesses who testified, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all times material herein has
been, a corporation duly organized under and existing by
virtue of the laws of the State of Texas. It is engaged at its
operation in Tulsa, Oklahoma, the only operation of the
Respondent herein involved, in manufacturing and wholes-
aling transmission towers primarily for the electrical
industry. During the preceding 12 months, which period is
representative of all times material herein, the Respondent,
in the course and conduct of its business operations at its
Tulsa, Oklahoma, facility, sold and distributed products
valued in excess of $50,000, of which products valued in
excess of $50,000 were shipped from its Tulsa facility to
points outside the State of Oklahoma. The complaint
alleges, the Respondent in its answer admits, and I find
that the Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find , as the complaint alleges and the Respondent in its
answer admits, that United Steelworkers of America,
AFL-CIO-CLC, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
208 NLRB No. 48
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES management, are required to wear hard hats in the plant,
that the color of the hat indicates the position held by the
wearer, and that categories of personnel are frequently
referred to in the record by their hat colors. The
managerial staff and all the foremen wear white hats, the
leadmen green hats, the maintenance employees red hats,
and the production employees yellow hats.
With regard to the leadmen, the General Counsel
presented some evidence as to their apparent exercise of
supervisory authority, and argues that there would be a
highly disproportionate ratio of employees and supervisors
in some departments unless the leadmen are supervisors.
The ratio varies considerably, however, in different
departments and areas of the operations. Moreover, while
the leadmen apparently stand one step above other
employees in the Respondent's hierarchy, the credited
testimony shows that they make only routine work
assignments, transmit directions as conduits of the foremen
or management, make changes in employee status with the
approval of or clearance by a higher ranking individual,
and make recommendations as to changes in employee
status that are independently investigated by the foremen,
the personnel director, or Hampton. Some employees earn
as much as leadmen. Furthermore, the employees indicat-
ed in their testimony that they considered the foremen, not
the leadmen, to be their supervisors.
'i3ox, the vice president and regional manager of the
Respondent until he resigned in July 1972, called as a
witness for the General Counsel, testified credibly I that at
the time of his resignation green hats did not have
authority to hire, discharge, or exercise other forms of
supervisory authority, and that this was done by the
salaried foremen with the approval of the superintendent.
Hampton, who had been away from the Respondent's
employ for about 2 years, returned in August 1972. On
August 7, apparently immediately after he returned, and
prior to the union organizing activity, he issued a
memorandum addressed to all foremen and leadmen on
the subject of personnel actit ns involving hourly employ-
ees, which provided as follows:
Effective immediately, only foremen will have the
authority to discharge an hourly employee. Only white-
hats have the authority to discharge an employee for
any reason.
All hiring will be done through the Personnel Depart-
ment only. Hourly employees, leadmen, and foremen
may recommend applicants for hire, but the final
selection decision is to be made by the Personnel
Manager.
All rate increases and status changes affecting the rate
of pay of ANY employee must be approved by me
personally. These may be recommended by leadmen
and foremen, but the final decision is reserved by top
management.
When DeGraffenreed was promoted from leadman to
foreman, he received a letter from Parrish, president of the
Respondent, dated February 5, 1973, pointing out that he
had acquired as a foreman the authority to hire (through
personnel), terminate, approve overtime, recommend the
A. The Issues
The complaint, as amended, alleges (1) that certain
named individuals, including a number of leadmen, are
agents of the Respondent, acting on its behalf, and
supervisors within the meaning of Section 2(11) and (13) of
the Act; (2) that the Respondent, by such named
individuals, on certain dates in December 1972 and
January 1973, interrogated employees concerning their
union membership and activities, threatened employees
with discharge and warned employees that the Respondent
would close its plant if they joined or assisted the Union,
instructed employees not to engage in union activity or
give any support or assistance to the Union, attended
meetings called by the Union for the purpose of engaging
in surveillance of the employees' union or concerted
activity, promised employees it would eliminate undesira-
ble overtime work if they refrained from membership in or
activity on behalf of the Union, and maintained employee
rules prohibiting solicitation during working hours or work
stoppages on penalty of discharge; (3) that the Respon-
dent, on specified dates, issued a warning notice to
employee Linnet, transferred employees Kelly, Linnet, and
Darnell to less desirable work assignments, and terminated
these three employees because they joined or assisted the
Union or engaged in other union or protected concerted
activities; and (4) that the Respondent has by the foregoing
conduct violated Section 8(a)(1) and (3) of the Act. The
individuals alleged in the complaint to be agents of the
Respondent and/or supervisors within the meaning of the
Act are: Hampton, vice president of production; Ruth,
personnel manager; Stever, superintendent of day shift;
Miller, superintendent of maintenance department; Ste-
phens, galvanizing department supervisor; Barr, leadman
in maintenance department, Cox, leadman in trial assem-
bly department; Husong, leadman in galvanizing depart-
ment; Austin, leadman in tank shop; Hamilton, leadman
in punch department; DeGraffenreed, leadman in tank
shop department; Messick, leadman in shipping depart-
ment; and Anglin, leadman in pole shop.
The Respondent, in its answers to the complaint and to
the amendments to the complaint, denies generally the
allegations that the named individuals are supervisors or
agents of the Respondent; admits that it issued a. warning
notice to Linnet; admits that it promulgated and main-
tained the employee rules referred to; but denies that it has
engaged in any conduct violative of the Act.
B. The Respondent's Hierarchy
Parrish is the president of the Respondent. Hampton, the
vice president and general manager, is in overall charge of
plant production and operations. Ruth is the personnel
director, with the responsibility of recruiting and hiring
personnel. The record shows, and the Respondent admits,
that foremen can and do discharge employees and possess
and exercise other indicia of statutory supervisory authori-
ty. The record also shows that all persons, including
The Respondent states in its brief that Box "appeared to be entirely
credible with absolutely nothing to gain one way or the other by his
testimony " I agree
RIVERSIDE INDUSTRIES, INC.
moving of individual work schedules, and recommend pay
increases.
I find, on the basis of the evidence in its entirety. that
Hampton, Ruth, and the foremen, all of whom wear white
hats, are supervisors within the meaning of the Act, but
that the leadmen, who wear green hats, have not been
shown to be supervisors or agents of the Respondent
within the meaning of Section 2(11) or (13) of the Act.2 I
shall, therefore, recommend dismissal of the allegations of
the complaint that the Respondent violated the Act by
certain conduct of the leadmen.
C. The Terminations
After the Respondent acquired the operation here
involved from a predecessor company, it moved to this
location the work previously performed at its facilities in
Fort Worth, Texas, and terminated the Fort Worth
employees As the Tulsa operation had been losing large
sums of money totaling, Hampton testified, about a million
dollars, he was directed when he returned to the Respon-
dent's employ in August 1972 to cut costs to the extent
possible in an attempt to change the financial situation to
one where the operation was showing a profit. He testified
that he succeeded in showing a profit by May 1973. His
changes included reducing the supervisory complement by
termination and demotion, and phasing out certain
operations. Some employees were transferred to different
jobs and, in the course of the usual substantial personnel
turnover, some who quit were not replaced. Hampton also
maintained a close personal check on operations. He had
four inspectors who reported to him directly, and he
walked through the plant, which covered a vast area,
several times a day, checking on the work being done in
every department.
Organization of the Respondent's employees by the
Union began on about December 1, 1972. The Respon-
dent's management learned of this activity about the time
it began. On or about December 7, as Hampton testified,
the Respondent, at the direction of Parrish, its president,
distributed to all the employees with their paychecks the
following notice:
NOr1CE To ALL EMPLOYF,ES
DON'T SIGN UNION CARDS UNLESS YOU WANT TO:
1. Risk payment of dues, fees, fines and assess-
ments.
2. Risk being a witness in labor cases.
3. Risk being hound to outsiders without a free
vote election.
4. Risk losing your independence and rights as an
individual.
2 N L R B v Cast-A-Stone Products Co., 479 1- 2d 396 (C.A. 4. May
1973), N.L.RB v Houston Natural (,as Corp., 478 F 2d 467 (C A 5. May
1973), Gyrodyne Company of America, Inc, 203 NLRB No. 164, The Cavern
THINK BEFORE YOU SIGN ANYTHING.
ASK YOUR SUPERVISORS ABOUT THIS.
DON'T BE TRICKED
313
Participation in the organizing activity appears from the
record to have been limited to a very small proportion of
the Respondent's employee complement. The weekly
meetings were attended by about 10 or 12 out of about 200
hourly paid employees. The General Counsel contends that
the conduct here in issue with regard to Kelly, Linnet, and
Darnell, occurred because of their activity on behalf of the
Union, while the Respondent maintains that the transfers
of these employees resulted from the cost-cutting cam-
paign, and their terminations from opposition to a transfer,
failure to perform satisfactorily after a transfer, or refusal
to accept a transfer.
1. Lucian Kelly
Kelly was employed by the Respondent on January 26,
1970. He performed different jobs but for a period of time
had been driving a forklift and a winch truck. When the
Union began organizing in December 1972, Kelly signed a
card on December 1, and was given some additional cards
at the December 7 meeting of the Union. He as well as
employees Linnet and Buller distributed the cards during a
lunch break in the employee lunch area. Linnet testified
that Stephens, a white hat, observed the card distribution.
After the lunch break, Stephens asked if Kelly would
help in the galvanizing department as it was shorthanded,
Kelly said he would be glad to do so, and he worked there
on a Friday. On the following Monday Kelly was told he
was being transferred to the job of tending kettle in the
galvanizing department. This job involved knocking excess
zinc off metal which had been dipped into a vat of 840
degree zinc chemicals. Box, former vice president and
regional manager of the Respondent, described it as the
most disagreeable job in the plant as it was heavy manual
work performed in extreme heat and "slightly dangerous"
because of the possibility of a burn if splashed with hot
zinc. Kelly protested the transfer as he had quit this job
once before because of the heat and fumes in that work
area. Stephens went with Kelly to see Hampton, who said
the transfer was being made as part of the cost-cutting
program. Kelly offered to do any other job in the plant, but
Hampton told him there were no others available unless he
took a helper's job at a cut in wages. Hampton also offered
him 2 or 3 days off to find another job. Kelly went back to
the galvanizing job instead, but on February 12 left to take
another job because, he testified, he could not stand this
work any longer. The Respondent's personnel record
shows that Kelly called personnel director Ruth and said
he was quitting because he found another job paying
considerably more money.
The complaint alleges that Kelly was transferred on
December 7 to a less desirable job immediately after he
Supply Company, Inc, 203 NLRB No. 97. cf Sports Coach Corporation of
America, 203 NLRB No. 24
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributed union cards, and was discharged on February
13 because of his activity on behalf of the Union.
The evidence shows that the galvanizing job to which
Kelly was transferred was undesirable because of the
intense heat, smoke, and fumes , and the danger of burns.
On the other hand, Kelly did the work for months; other
employees held this job for longer periods , one of them for
about 5 or 6 years, with no injury as far as the record
shows; and a number of employees performed their jobs in
the immediate area, Kelly being one of a crew of about
12-15 men . There was apparently some physical hazard in
working anywhere in the plant as everyone was required to
wear a hard hat and safety glasses, and some employees
were also required to wear safety shields. Furthermore, the
Respondent showed that other employees were being
transferred about this time because of completion of the
work in building a dam gate , that after that project was
completed there was not a full-time job operating a forklift
and winch truck, and that this equipment was used
thereafter only occasionally. Both of the employees who
passed out cards on December 7 with Kelly were later
discharged . Buller , a crane operator , was discharged on
December 14, but his discharge is not alleged to be
discriminatory. Linnet's transfer and discharge, discussed
below , are in issue.
There are some suspicious factors in the timing and
circumstances of Kelly's transfer to the galvanizing job and
the refusal to grant his request for any other job except at a
wage reduction . On the other hand , the evidence does not
establish that there were other jobs to which Kelly should
have been transferred , or that Kelly had some particular
physical sensitivity to the galvanizing work .3 I find,
therefore , on the basis of all the relevant circumstances,
that the General Counsel has not established by a
preponderance of the evidence that the Respondent
transferred Kelly to a more onerous job, and thereby
caused Kelly, months later, to leave the Respondent's
employ, because of his union or protected concerted
activities.' I shall, therefore , recommend dismissal of these
allegations of the complaint.
2. Charles J. Linnet
Linnet was hired by the Respondent on October 4, 1972,
to work in the tower shop , where Stever was the white hat
and Hamilton was one of the green hats.
Linnet attended the December 7 union meeting, and was
one of the employees given cards for distribution. He was
also given a union button which he wore in the plant.
Linnet passed out cards in the employees' lunch area on his
lunch break when Buller and Kelly did so. He testified that
Stephens, a white hat , was present although foremen did
not ordinarily use that lunch area . Neither Buller nor Kelly
referred to Stephens being present. On the other hand,
Stephens , who testified that he had seen Linnet wearing a
union button at times, did not contradict the testimony
that he was present and observed the distribution of union
cards in the employees' lunch area . I credit the testimony
of Linnet , who testified in a candid and straightforward
manner, and whose testimony was in large part corroborat-
ed by witnesses for the Respondent . I find , therefore, that
Stephens observed the card distribution in which Linnet
participated.
Linnet testified that Siever asked him later that day if he
was for the Union; that he said he was , and asked if Siever
was; and that Siever responded that he was not, that it did
not matter for him but he would just as soon the Union did
not get in , and that Linnet was one of only 3 or 4 out of
170 for the Union . Linnet testified also that Siever
thereafter asked him constantly if he was for the Union.
Siever testified, as a witness for the Respondent , that he
saw Linnet wear a union button on or about December 1;
that "someone earlier in the morning had told me that
Linnet was wearing a badge and I made a point to see that
he was"; that later in the afternoon when Hamilton and
some others were near Linnet's machine , Hamilton
remarked that he wondered if Siever had seen the button
yet, and "of course , I had"; that "I think Linnet asked me
if I didn 't need one of the buttons . It wouldn't hurt me any
to wear one . And I told him that I didn 't need one"; that "I
may have made a remark that it looked like he was pretty
well alone with it or in the minority group or something
like this. Words to that affect [sic ]"; that he did not recall
asking during that conversation if Linnet was for the
Union , but did comment to the effect that Linnet "was
only one or two or three . It is pretty poor odds or you are
in the minority ," and that "that 's when I am sure that I
told him that he is in the minority group , it looked like."
Stever testified further in this regard as follows:
Q. After this conversation , Mr. Siever , did you ever
see Mr . Linnet again with a union button?
A. Yes.
Q. You did?
A. Several times.
Q. Did you make any comments to him when you
saw the button?
A. No.
Q. Did there ever come an occasion when you saw
him without a button?
A. Yes. Several occasions . And one time I men-
tioned it too, but he assured me that it was on his coat
or he still had it and he wasn't wearing his coat at the
time . And it was in his area . He still had the button.
Q. Did you ever ask him when you saw the button
"Are you still for the Union?"
A. No. I'd say I didn't.
Q. Or did you say a remark that he was still a
union man?
A. Well, that's a possibility , but I certainly don't
remember it. That would have been at the same time
probably, if I did , I'd make a remark like that when he
didn't have a button and I asked if he lost his button or
something. I really don' t recall the exact conversation.
But I do know that on one other occasion I did
mention it.
Siever testified that, because of Linnet's experience in a
previous job, he set Linnet's wage rate as a top machine
operator at $3.25. As Linnet had not operated any of the
3 Cf Packerland Packing Company, Inc, 203 NLRB No 39
4 Anderson Plumbing and Healing Company, 203 NLRB No 5
RIVERSIDE INDUSTRIES , INC. 315
particular machines in the tower shop , however , Siever
assigned him to the manual rack punch . Stever testified
that it is a simpler machine to operate and requires less
physical exertion than the Pulaski automatic punch, and is
used to train inexperienced operators, the line of progres-
sion being from helper on the manual , to operator on the
manual, to operator on the automatic. At that time the
Pulaski was being operated by Carnell Allan, who had
been employed by the Respondent about 3 years. He had
transferred to different jobs for a time , then to helper on
the manual punch, to operator on the manual punch, and a
year later to operator on the Pulaski. Both the manual and
the Pulaski machines punch holes in metal angles. The
manual is run by an operator with a helper, the Pulaski by
an operator alone, the functions performed on the manual
by the helper being automatic on the Pulaski. The Pulaski
operated by Allan handled larger angles and more
complicated work than the manual. There was another
Pulaski punch which handled the largest angles. It was run
by Jerry Adams, who had been employed in Siever's
department 3-1/2 years and had operated this large Pulaski
about 2 years. Linnet testified that he averaged 2,000 to
3,000 holes a day on the manual rack punch, and that
Stever had complimented him on his work and his
production. Allan was averaging about 1,000 to 2,000 holes
a day, which was evidently satisfactory performance on the
Pulaski.
The union meeting at which Stever received cards and a
button was held on December 7, a Thursday. On Friday,
Linnet distributed the union cards in the lunch room, wore
the union button, and had the conversation about the
button with Siever. On Monday Siever told Hamilton to
transfer Linnet to the Pulaski punch and Allan to the
manual rack punch. Siever testified that he had decided a
week earlier to do so, that he had "no particular reason"
for waiting a week to carry out this decision, and he gave
no explanation as to why it was put into effect on this
particular day. Hampton testified that he directed Siever to
make the transfer in order to put the more highly paid
operator on the Pulaski, and Linnet was being paid
considerably more than Allan. The Respondent's witnesses
differed from one another, however, in their testimony as
to the pay rates of Linnet and Allan, and both Hamilton
and Allan testified that they did not know if Linnet was
earning more than Allan. Hampton also testified that he
made the transfer to give the lower -paid man more
experience on the manual. Allan at that time, however, had
had far more experience than Linnet on the manual.
Moreover, Hamilton, the green hat in this area, testified
that he had run the manual 2 years but the Pulaski very
little , and that he knew very little about the Pulaski. This
fact evidently did not prevent his advancement to the green
hat job.
Allan testified that he asked Hamilton why he was being
transferred , and was told it was because Linnet was the
number one operator whereas he was just number two.
Linnet testified that he did not ask why the transfer was
being made, and that he thought it would be "a good deal."
He experienced considerable difficulty in operating the
Pulaski, however, and complained frequently to Siever
about this machine. On some of these occasions Siever
called a maintenance man to work on the machine, and at
others he told Linnet to make the necessary adjustments,
some of which Linnet conceded an experienced Pulaski
operator could make. Linnet testified to a number of
specific problems he had with this machine. Allan, who
had operated it for a year, maintained that he had virtually
none of the difficulties with it that Linnet described . Siever,
however, in his testimony, admitted that Linnet com-
plained about "numerous things . And some were legiti-
mate"; that "sure enough, he did have problems with the
machine"; that the problems included freezing up in cold
weather "quite often and it has to be thawed out. And it
won't function right until it is thawed out which is a
problem"; that there was a gear problem once on which
the maintenance department had to work; that Linnet said
"the track itself was out of square, out of alignment"; that
he did not recall the exact complaints and they were not
"that numerous"; that he did not recall any complaint that
the air motor fans were worn out; that he believed Linnet
did complain that the blades that fall and cause the buggy
to stop up against the pegs were worn, that he checked into
it, and that "I am sure they are worn some"; that Linnet
might have said the peg board was warped but he did not
recall; that Linnet probably did tell him the air driven
piston was not working right ; that he was not sure, but
Linnet may have complained that the buggy would vibrate
and was falling apart ; and that he did not believe he ever
told Linnet any of the complaints Linnet made were
unjustified . Stever also testified, on cross-examination by
the General Counsel, that Allan complained about the
freezing problem and, while he did not recall them, that he
was sure Allan would have complained about other
problems also from time to time ; that these machines
require frequent adjustments which the operators learn to
do themselves if minor; and that, if an operator cannot
take care of the problem , "we have to call the maintenance
department."
Siever testified that Linnet, after his transfer to the
Pulaski, was mispunching too many holes which then had
to be welded and repunched. It is clear, however, and the
Respondent 's witnesses admitted , that all the employees
engaged in such operations , including Adams on the large
Pulaski, sometimes mispunch holes, and spend part of their
time welding , grinding, and repunching. In fact equipment
for such welding and grinding is maintained at locations
where it will be readily available to each operator. Siever,
who testified that Linnet's production on the Pulaski was
"below average ," also testified : "But this being new, now,
the first week or so on this machine, it would be
understandable. He never run a machine like this before
and it would be understandable that it would be a little
low." Nevertheless , within 4 weeks of the transfer, a written
warning was issued to Linnet, dated Friday, January 5,
"1972," (an apparent typographical error), stating that
Linnet in the last 3 weeks mispunched an excessive number
of holes , requiring welding , grinding, and repunching; that
Siever had the week before, which would be within 3 weeks
of the transfer, issued a first verbal warning; and that, if
improvement was not shown, "disciplinary action and/or
permanent replacement may be the result ." The copy of
this warning form which is in evidence contains no
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signatures in the spaces designated for the person who
prepared the Warning and for the supervisor , but is signed
by Ruth , personnel director , as the one approving the
warning , and bears a handwritten notation that "Linnet
refused to sign" initialed by Ruth.
In this regard Linnet testified , without contradiction,
that Siever walked up to him at his machine and asked him
if he was going "to sign this"; that he read it and said he
was not ; that when Siever asked why not , he "said, `It is
wholly unfair . . . You can take any man on this shop and
put him on this machine and he is going to make a lot of
mistakes"; that Siever "said , `that might be right , but .. .
you were hired in here to operate this machine ' "; that
Siever asked if Linnet was sure he was not going to sign it
and, when Linnet said he was sure , ended the conversation
with , "Well, we will talk about it on Monday"; and that
nothing further was said to Linnet about it on Monday or
thereaf ter.
It was evidently not the Respondent's practice to issue a
written warning for poor work . Box testified that , while he
was vice president and regional manager , such warnings
were used only in situations involving tardiness or
absenteeism , and that poor production would be orally
criticized by the foreman and then , if repetitive , could lead
to transfer , discipline , or discharge . Hampton testified that
such warnings are issued for serious faults, that the one
issued to Siever was for mispunching an excessive number
of holes, and that , while he reviews all such notices, and
while the record is clear that mispunching occurs frequent-
ly, he knew of no warning issued to any other employee for
this fault . In addition , a change of status form , placed in
evidence by the General Counsel , shows that the employee
named thereon was "warned several times" by the
Respondent about his work derelictions over a period of
several months and was finally terminated because these
derelictions continued . There are in evidence , however, no
written warnings issued to this employee , and Hampton
testified that he told the leadman of this employee that "He
should talk to the man several times" before the employee
was discharged.
Siever testified that he had not discussed Linnet's
production on the manual rack punch with Hampton prior
to the transfer , but did discuss Linnet 's production on the
Pulaski with Hampton ; that Hampton at times questioned
him about Linnet 's work on the Pulaski ; and that when
Hampton criticized Linnet 's performance on the Pulaski,
"I believe I told him that he did do a good job on the
manual rack and which he did . But he was having a lot of
difficulty running this Pollaski [sic ] rack ." Siever testified
further that Linnet's work on the Pulaski did not improve
and that his production on the day of his discharge was
especially poor ; that Linnet was discharged because of his
poor showing that day "that ran hand in hand with the
past couple of three weeks"; at another point , that he
considered Linnet 's poor performance on his last day
justification for discharge and this was the reason why he
discharged Linnet ; and that he told Linnet "pretty well
that he wasn ' t earning his money . That we were paying him
as much as we were paying any operator on a rack there in
the plant and he wasn 't producing for me. So I was going
to let him go that day at the end of the shift and it was just
about the end of the shift " Siever admitted there was no
suggestion or consideration given to transferring Linnet
back to the manual rack or to any other job. Hampton
testified that Siever reported to him that Linnet was
discharged for poor production on the day of the
discharge.
Linnet admitted that his production on his last day had
been very low, and that he had also punched the wrong
side of an angle . He testified that some of the mispunches
were not his fault , but admitted that drilling the wrong side
was his mistake . Siever testified, as to the nuspunching,
that it is "fairly common" for an operator to mispunch
holes, that some mispunches occur on every shift , that all
operators spend some time welding mispunches , and that
operators have on occasion spent an entire shift welding,
grinding , and repunching work that had been mispunched.
He also testified , as to Linnet 's punching the wrong side of
an angle that day, that "it is not common , but it does
happen . . . too often , but I guess we are liable to get one
angle a week ." Box, however , testified that this was "a
frequent occurrence . . . as much as several times per day
perhaps," and that he did not recall any employee being
disciplined therefor.
After testifying about the errors Linnet made on his last
day of work , Siever was asked whether he talked to Linnet
about his low production . He answered , "No, I don't
believe I did. Not until , well, I am sure I would have when
I told him to take the angle back to the back end of the
plant, but I don ' t recall the conversation , I really don't.
And I don 't know whether it was a specific warning or not.
It may not have been ." Hampton also testified that he
criticized Linnet for doing too much welding on the day of
his discharge , but said nothing to Linnet about discharge.
Linnet testified without contradiction that about 5 minutes
before the closing whistle , as he was completing an angle,
Siever told him to pick up his check which was ready for
him; that he asked if he was discharged , and Siever said he
was; and that Siever gave him no reason for the discharge.
Siever testified that he put Allan back on the Pulaski the
next morning. Asked about Allan's performance , Siever
replied , "Well, other than , I'd say his performance was
good . He still had freezing problems on cold mornings the
same as Linnet would have had. . . . We have three
machines of that nature and we 've got the same problem
with all three of them . . . . It is not going to be frozen all
day . . . as much as an hour , I suppose , at the most ." Allan
testified that his pay was not cut when he went back on the
manual but that he got a 25-cent raise when he went back
on the Pulaski ; that he had a little trouble with it and
found that a spring was loose and had to be tightened for
the blade to go down; and that , while he had been
operating these machines for years and this particular
Pulaski for a year , his production when he went back to the
Pulaski was lower "at first . I had to get adjusted to the
machine again , you know ." He did not indicate how long
this period of adjustment was, nor how it compared with
the entire period of Linnet 's operation of the Pulaski. The
Respondent prepares records showing the daily production
of the operators, but retains them for a limited time only,
and asserted it had none available at the time of the
hearing on which a comparison could be made as to the
RIVERSIDE INDUSTRIES, INC.
production of Linnet, Allan, or others on the manual rack
and the Pulaski punches.
The complaint as amended alleges that the Respondent
transferred Linnet to a less desirable work assignment on
December 11, 1972, issued a warning notice to Linnet on
January 5, 1973, and discharged Linnet on January 26,
1973, because of his union membership and activities. The
Respondent maintains that the transfer was made for
reasons of plant efficiency, and that the warning notice
and discharge were based on Linnet's poor work perform-
ance.
Concluding Findings
It is apparent from the evidence in its entirety and I find
that, immediately after Linnet made his union sympathies
known, Stever questioned Linnet about his union button
when he was wearing it and, on occasion, about why he
was not wearing it, and repeatedly pointed out to Linnet
that the proponents of the Union were a very small
minority of the Respondent's employees. Siever transferred
Linnet immediately after his union sympathies became
known from a machine on which he was doing a good job
to a machine that was more difficult to operate, and
thereafter maintained, as did Hampton also, a close check
on Linnet's performance. Further, the Respondent gave
Linnet a written warning for poor production on this
machine although it was not the Respondent's practice to
issue such warnings for deficiencies in production, and
although Linnet at the time had been operating this
machine for a shorter period than the Respondent's
evidence indicates was required to become proficient on it.
Finally, the Respondent terminated Linnet precipitately at
the end of a day on which Linnet admittedly had low
production, with no consideration given to transferring
Linnet to a machine on which he had been proficient or to
another job,5 although the credited testimony of witnesses
including Box shows that other employees on occasion had
very low or poor production and were not summarily
discharged. It is apparent from all the relevant circum-
stances, and I find, that the Respondent was motivated, in
its treatment of Linnet, not by considerations of efficient
operations, but by its hostility to the union organizing
activity engaged in by a very small number of its
employees and by its desire to "nip that activity in the
bud." 6
I find, in conclusion, that the Respondent abruptly
transferred Linnet to a more difficult machine to operate
when it learned he was one of the few employees actively
advocating union organization; issued a written warning to
Linnet about his production on this machine, contrary to
its usual practice, in order to pave the way for his discharge
in the event he persisted in his adherence to the Union;
and discharged Linnet because he continued his union
activities, and not because of his poor production on the
day of discharge or while he was operating the Pulaski
8 See Bill's Coal Company, Inc, 203 NLRB No 35
6 Lloyd's Ornamental and Steel Fabricators, Inc, 197 NLR B 367
7 Scott Gross Company, inc, 197 NLRB 420
8 See N LR B v. Montgomery Ward & Co, 242 F 2d 497, 502 (C A 2,
1957), cert denied 355 U S 829 (1957) (holding that "The abruptness of a
discharge and its timing are persuasive evidence as to motivation "), Bill's
317
machine . I find further that the Respondent 's asserted
reason for the discharge of Linnet is pretextual,7 and that
Linnet was in fact transferred, warned, and then dis-
charged on January 12, 1973, because of his membership in
and activities on behalf of the Union. I find, therefore, that
the Respondent, by such transfer, warning, and discharge,
discriminated in regard to the hire or tenure of employ-
ment or the terms or conditions of employment of Linnet
to discourage membership in and activities on behalf of the
Union, in violation of Section 8(a)(3) and (1) of the Act .8
In addition, as set forth above, Siever frequently
questioned Linnet about his interest in the Union and
emphasized that Linnet shared this interest with only a
small minority of the Respondent's employees. This
questioning began immediately after Siever learned of
Linnet's union sympathies, and continued in the context of
the Respondent's discriminatory treatment of Linnet
culminating in his unlawful discharge . I find that these
questions and remarks by Stever were designed to compel
Linnet to surrender his Section 7 rights, and that the
Respondent thereby engaged in coercive interrogation, in
violation of Section 8(a)(1) of the Act .9
3. Robert T. Darnell
Darnell had been employed at the Respondent's plant
from February 1966 to June 1970. During that time he did
X-ray work, repaired tools, and drove a truck. The X-ray
work, which involves pictures of welds to check for defects,
averaged about 2 hours a week and was done on an
overtime basis. Darnell was called on for X-ray and other
work by any one of several supervisors.
Foreman Miller in October 1971 asked Darnell to come
back to work for the Respondent because Miller needed
someone to set up and run a toolroom and was convinced
Darnell was qualified to do so. Darnell was reluctant as he
felt he had been wrongly discharged by the Respondent in
1970, but he agreed to come to the plant at Miller's urging
to discuss the matter. Darnell finally agreed he would come
back on certain conditions. Miller checked these condi-
tions with Box, at that time vice president and regional
manager of the Respondent, and agreement was reached.
The agreement included a provision that Darnell would
work under only one supervisor, Miller, and that, after 6
months of satisfactory service, his seniority would be
restored to his original date of hire.
Upon his return, Darnell set up and operated the
toolroom , and later undertook also to perform bench
repairs on tools in the machine shop , all under Miller's
supervision. On April 12, 1972, Darnell's seniority was
restored effective to February 22, 1966. The personnel
change form noting this seniority date also contains a
performance evaluation on which Darnell was rated
excellent or good , the two highest ratings , on eacb item
listed. The form, which is signed by a then superintendent,
Wilson, and Personnel Director Ruth , as well as Miller,
Coal Company, Inc. supra, PacAerland Packing Company, Inc, supra,
Graneto-Datsun, a Graneto Company 203 NLRB No 90 (discharges of
Cupples and Evans), Knits and Tweeds, Inc, 203 NLRB No 155; Red Line
Transfer & ,Storage Company, Inc, 204 N LRB No 3
9 David E Weber, d/b/a State Radiator Company. 202 NLRB 335,
Universal Fuel, Inc, 204 NLRB No 10
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also contains a question whether the employee is being
used at his capability, to which the answer, apparently
written by Miller, was that Darnell was not as he was
considered to be supervisory material.
At some point after Hampton returned to the plant in
August 1972, he became concerned about the cost of
operating the toolroom, including the time spent by
employees in obtaining and returning tools. He sent the
supervisors a memorandum dated September 14, 1972,
commenting on this matter and asking for their sugges-
tions. Miller discussed this memorandum with Darnell,
who made some suggestions that were submitted to
management. On January 3, 1973, Parrish, president of the
Respondent, wrote the following letter to Darnell, with a
copy for the personnel file:
Dear Bob:
This letter is written to express my personal apprecia-
tion for your suggestion on Consumable Supplies
Station.
We are, as you may know by now, in the process of
eliminating to some degree the tool room which has
previously been used to house small hand tools. Your
suggestion falls in line with our thinking and will
certainly be considered as a possible step to that
program.
Bob, allow me to compliment you on the very obvious
time that went into preparing this recommendation. It
is through the efforts of people like yourself that
Riverside Industries, Inc. will not only succeed through
the critical period in which we are now working, but
will continue on to the degree of greatness that I feel is
feasible with this kind of effort.
Your efforts, Bob, shall not go un-rewarded.
Miller testified, as a witness for the Respondent, that he
was told by an employee that Darnell was helping to
organize the Union; that he went to the toolroom and told
Darnell, "During your duty hours here in the tool crib I do
not want you to help organize or have any conversation
about the Union. I want you to take care of your business
and do not do that"; and that Darnell "assured me that he
was not." In a later conversation, Miller further testified,
Darnell complained that certain individuals were trying to
bait him into discussing union activities at work, asserted
that he was not engaging in such discussions, and appealed
to Miller to try to put a stop to this baiting. Miller told
Darnell he would see what he could do to stop it, but
admitted he did nothing about it. Asked by counsel for the
Respondent if, in that conversation, he told Darnell to
"Keep your mouth shut about this Union business," he
replied: "I believe not. I believe not in that conversation."
Miller was directed to close down the toolroom opera-
tion, and reported this to Darnell. They agreed that they
thought it was a mistake, but that, as the order came from
Miller's superiors, they had to comply with it. Darnell then
asked Miller what would happen to him. Miller testified
that "I told him to the best of my knowledge that there
would always and forever be a full time job for a bench
man and someone to take care of the tools and grinding
drill bits and that sort of thing." and, when Darnell asked
about X-ray work, ". . . once again I told him that it
certainly wasn't in my plans since x-ray was not in my
department." Miller also testified that Darnell "worked
some week ends for me cataloging machinery logging
machinery in preparation for putting together a machinery
file. And I had in mind some other OSHA work that I had
hoped to use him for, yes."
On the day prior to Darnell's discharge, Miller testified,
there was some talk about the Union `just before going
home. Up to this point I had heard nothing from Bob
except he was having nothing to do with the Union
organization, you know, in each and everyone of our
conversations and I was thoroughly convinced it was just
like this, you know. But on this particular evening he made
some statements to me like `This thing is going in the
direction where a Union would be desirable here. I've
changed my mind.' Something of that nature. . . . I
believe he said yes, Tony [Hampton ] is being a real tyrant
these days or something of that nature. These things are a
little tough to quote." On cross-examination by the
General Counsel, Miller testified that Darnell may also in
this conversation have referred to Hampton as "a slave
driver," and made a statement to the effect that "Union
organization was the only answer to such a situation in the
plant."
Hampton issued a memorandum dated January 25, 1973,
on the subject "X-RAY" which provided as follows:
Effective Monday, January 29, 1973, Bob Darnell will
set up and maintain the Dark Room and will do all of
the X-Ray work that is possible for us to do under the
supervision of Lloyd Miller. We will operate as we have
in the past.
By copy of this memo, the Pressure Vessel and Pole
Shop can start planning the up-coming work load with
Lloyd Miller.
Miller testified that he thought he had not yet received this
memorandum at the time of the above conversation with
Darnell about the Union, that whatever he might have
heard along the line of Darnell being assigned to X-ray
work "was only hearsay around the plant," and that he was
given a copy of the memorandum after he heard about it
and requested one, although he and Darnell are among
those listed on the memorandum for distribution. On cross-
examination by the General Counsel, Miller testified that,
when Hampton gave him this X-ray directive, "I pointed
out to him that in all times past it had been quality control.
The inspector took the X-rays and I very frankly tried to
get out from under the thing." Miller also pointed out to
Hampton that he did not want the assignment and that he
thought Darnell would refuse the assignment. Miller
testified that he had assured Darnell at the time of his
rehire agreement that he did not have X-ray work in mind
for Darnell and, each time the question was raised
thereafter, assured Darnell "it was not my intention to take
on X-ray," but that "Now, we don't have any hard fast
document on that, no."
Miller testified that, after his conversation with Hampton
RIVERSIDE INDUSTRIES, INC.
and receipt of this memorandum, he showed it to Darnell;
that he told Darnell to proceed immediately to "make sure
the dark room was in good order . . . to X-ray film, go out
and expose them and report to me as to whether the
machines was exposing film"; that Darnell asked if this
was to begin on Monday as the memorandum required or
.,are we going to bring it to a head now"; and that "I said,
`Bob, I've had my orders. I see no reason to wait until
Monday morning. I want to do it now.' Bring it to a head
now, sort of speak. If that is the terminology we want to
use"; and that, when Darnell refused to do the X-ray work,
he told Darnell, "I've got no recourse at this point but take
you down to Personnel and get your check." Darnell was
thereupon taken to the office and discharged for his refusal
to do the X-ray work. Hampton testified that an employee
named Kennedy, who had quit in December, was hired to
do the bench tool repair work on the Monday after
Darnell's termination on Friday; that he had talked to
Kennedy about the job prior to Darnell's discharge; and
that another employee did the X-ray work until Hampton
later phased out this operation. He did not state how long
after Darnell's discharge this work was phased out, or how
the economic situation requiring Darnell to do X-ray work
had changed.
The complaint as amended alleges that Darnell was
transferred to a less desirable work assignment and
discharged on Jaiuary 26, 1973. The Respondent main-
tains that the toolroom closing was done for economic
reasons; that that left Darnell with time for another
assignment ; that the X-ray work was not a full-time job;
that Darnell has experience in X-ray work in 1966,
although the work had been done more recently by quality
control personnel and then was later contracted out until
the Respondent decided it was more economic to do the
work itself; that the X-ray machines had been repaired at
considerable expense and were in good, safe working
order; that the work was to be done under Miller's
supervision; and that Hampton did not know about the
Darnell-Miller-Box rehire agreement, but would have
made this assignment even if he did.10 Hampton testified,
in fact, that he had decided on this transfer in October
1972. He did not explain why it was never mentioned to
Darnell until January 1973, nor did Miller explain why it
was suddenly so urgent that the work had to be undertaken
by Darnell even before the date specified in Hampton's
memorandum.
Concluding Findings
I am not in this case passing upon the obligation, if any,
10 On the basis of demeanor , the evidence as a whole, and the
probabilities of the siteation here in issue, I do not credit Hampton's
testimony that Miller did not tell him of this agreement in discussing the
transfer of the X-ray work to Darnell or at any other time. In any event, the
agreement was known to Miller. an admitted supervisor. I likewise do not
credit Hampton 's testimony that he did not know anything about Darnell's
Union sentiments when he assigned the X-ray work to him . In any event,
there is no question that Miller did have such knowledge, and that such
knowledge is imputable t:) the Respondent . See Red Line Transfer & Storage
Company, Inc. 204 NLRB No. 3
li The Respondent urged at the hearing and in its brief that Darnell's
testimony should not be credited. Darnell in the course of his testimony
appeared prone to exagg rate as to some matters; he evidently resented the
fact that the Respondent induced him to return to work and then violated
319
the Respondent had as a result of the agreement Box and
Miller entered into with Darnell to induce him to return to
work for the Respondent, or of Miller's repeated promises
that Darnell would not have to do X-ray work, or of
Parrish's written promise that Darnell's efforts "shall not
go un-rewarded." I am likewise not passing upon the
Respondent's right to assign Darnell to whatever job
seemed to management best suited to its operational
efficiency. I am convinced, however, and find, largely on
the basis of evidence presented by the Respondent,ir that
Darnell, a highly qualified employee considered by
management to be supervisory material , was abruptly
transferred and discharged because he expressed prounion
sentiments to Miller, to Miller's admitted surprise because
Darnell previously always indicated "he was having
nothing to do with the Union organization . . . and I was
thoroughly convinced it was just like this, you know." It
was on the day after this revelation that Miller advised
Darnell he was being transferred to X-ray work. Miller
insisted, moreover, that Darnell begin this work even
before the date required by Hampton's memorandum, and,
when Darnell refused, as Miller admittedly expected
Darnell to do, he discharged Darnell immediately and
stated he had no other recourse. In conclusion, therefore, I
find, on the basis of the record as a whole, that,
immediately after Darnell told Miller he favored union
organization , he was transferred to a job Miller and
Hampton expected him to reject, and he was summarily
discharged when he rejected it rather than assigned to one
of the several other tasks he had performed commend-
ably.12 It is apparent from the totality of the evidence, and
I find, that the Respondent' s assertion that it discharged
Darnell for refusal to accept a transfer based on efficiency
considerations was pretextual,is that in fact the Respon-
dent transferred and discharged Darnell on January 26,
1973, in retaliation for his assertion that he favored union
organization and to "nip that activity in the bud," 14 and
that the Respondent by this conduct discriminated in
regard to the hire or tenure of employment or the terms or
conditions of employment of Darnell to discourage
membership in the Union, in violation of Section 8(a)(3)
and (1) of the Act.15
I find further that Miller had at times admittedly warned
Darnell not to talk "about this Union business"; that the
Respondent, by such remarks, in the context of the
unlawful discrimination against Darnell, was instructing
Darnell not to engage in union activities in a manner
designed to compel Darnell to surrender his Section 7
its commitments and discharged him; and he admitted he had been
convicted in 1961 of a felony. Darnell later received a pardon, however.
from the then Governor of Oklahoma . and the Respondent knew of the
conviction prior to the first time it employed Darnell in 1966 . Darnell's
testimony as to the events here in issue was presented in a forthright and
convincing manner , and his testimony was in large part corroborated by the
testimony of witnesses for the Respondent. After careful review of the
Respondent 's contentions in this regard . and on the basis of the record as a
whole , I credit Darnell's testimony as to the matters indicated in the
findings above relative to his transfer and termination.
12 See Bill 's Coal Company, Inc., supra.
13 Scott Gross Company, Inc, supra.
14 Lloyd's Ornamental and Steel Fabricators, Inc., supra.
i5 See cases cited in fn . 8, supra.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights; and that the Respondent thereby further violated
Section 8(a)(1) of the Act.
D. Interference, Restraint, and Coercion
1. Surveillance
Union activity among the Respondent's employees
began about December 1, 1972, and became known to the
Respondent at or about that time. Weekly meetings were
held by the Union during December. Although the
witnesses were at some variance in stating the numbers of
employees present, the attendance was apparently very
small, about 10 or 12 out of almost 200 hourly paid
employees. A few of the leadmen attended some of the
meetings. At one of the meetings the union representative
demanded that they leave. One left voluntarily but a
couple of others remained until the police were called and
required them to leave.
The complaint alleges that the Respondent, by attend-
ance at union meetings of named "supervisors and agents,"
engaged in surveillance of the union or concerted activity
of its employees in violation of the Act.
I have found above that the leadmen are not supervisors
or agents of the Respondent within the meaning of the Act.
Moreover, the testimony of the General Counsel's witness-
es on this issue is confused, contradictory, and inconsis-
tent. Some of this testimony is to the effect that the green
hats were required to leave because the Union prohibited
attendance by those with authority to hire and discharge
and the leadmen were believed to have such authority. The
record as a whole establishes, however, and I find, that the
employees and the union representative present at the
meeting 16 demanded that the leadmen leave because they
were not members of the Union and were asking numerous
questions about, and expressing opposition to, union
organization. An employee who was not a green hat but
was raising such questions was directed to leave with the
green hats. The green hat who left the meeting voluntarily
but who later signed a membership card was invited by the
union representative to resume attending the meetings.17
And the employee who first demanded that the green hats
be ousted testified that they were barred then for causing
confusion and were welcome otherwise. In all the circum-
stances, therefore, I find that the General Counsel has not
established that the Respondent engaged in surveillance of
the union and concerted activities of its employees, and I
shall, accordingly, recommend dismissal of this allegation
of the complaint.
2. The Respondent's rules
The complaint as amended alleges that the Respondent
has, since on or about June 20, 1972, maintained in its
"Employees Handbook" a set of rules providing for
automatic dismissal for certain conduct including: "(7)
Solicitation during working hours or job interruption of
any kind"; and "(19) Deliberate slowdowns, delays, or
18 The union representative at the meeting appeared as the representative
of the Union at the hearing herein but was not called as a witness
17 DeGraffenreed was the green hat who left the meeting voluntarily
because, he testified, he thought he had authority to discharge, and who was
invited to come back to the meetings after he signed a card He had been
work stoppages." After issuance of the amendment to the
complaint alleging these rules to be violative of the Act, the
Respondent, on advice of counsel, amended the rules by
changing the word "hours" to "time" in (7), and by
deleting "or work stoppages" in (19). Booklets with these
changes have been issued to new employees hired since
then. The Respondent asserted that the booklets were
going to be reprinted with these and other changes, and the
reprinted booklets would be distributed to the old as well
as new employees. The Respondent's answer admits that
the rules in question were promulgated, and counsel for the
Respondent, in his closing argument, conceded that the
changed wording did not eradicate the past effect of such
prohibitions. Moreover, there is no evidence that the
changes had been announced to the old employees as of
the time of the hearing.
I find that the Respondent, by maintaining rules
prohibiting employees, on penalty of automatic dismissal,
from engaging in solicitation at any time during working
hours and from engaging in work stoppages, has interfered
with, restrained, and coerced its employees in the exercise
of their Section 7 rights, in violation of Section 8(a)(1) of
the Act.18
3. Other 8(a)(1) violations
I have found in section C, above, that the Respondent
discriminated in regard to the hire and tenure and the
terms and conditions of employment of Linnet and
Darnell, in violation of Section 8(a)(3) and (1) of the Act. I
have also found that the Respondent, by the conduct of
Stever in questioning Linnet about his continued adher-
ence to the Union, and of Miller in instructing Darnell not
to talk about the Union, in the context of the discrimina-
tion against Linnet and Darnell, was seeking to compel
employees to surrender their Section 7 rights, and thereby
further violated Section 8(a)(1) of the Act.
The complaint alleges in addition that Hampton and
certain named foremen interrogated employees and made
threats and promises of benefits constituting further
violations of Section 8(a)(1) of the Act. The record shows
that there were conversations, initiated by employees, in
which they told Hampton they were going to a union
meeting and he replied they had a right to do so, and that
in some instances remarks were made about the Union
which I find were not shown to be coercive. On one
occasion an individual thought Hampton was asking what
occurred at a union meeting , but it appears from all the
evidence that Hampton was asking what occurred as a
result of a change in work orders. In other instances,
remarks made in the course of Hampton's frequent
conversations about the Respondent's economic problems
seem to have been understood as job threats although I am
convinced, from the context of the conversations, that the
remarks in question did not contain such threats. Certain
employees who testified to coercive remarks gave consider-
ably different versions of the alleged conversations each
employed for a number of years. became a green hat in 1967 and a white hat
in February 1973. and was laid off by Hampton in April 1973 for lack of
work I find, on the record in its entirety , that his authority to discharge was
acquired at the time he became a white hat
Is Glassmaster Plastics Company, 203 NLRB No. 147
RIVERSIDE INDUSTRIES, INC.
time they repeated them, or their uncorroborated testimo-
ny about such remarks was denied and the evidence does
not, in my opinion, establish that the alleged remarks were
made, or the remarks in issue constituted a lawful exercise
of the Respondent's right of free speech protected by
Section 8(c) of the Act 19
Accordingly, after a careful review of all the relevant
evidence, and in consideration of the demeanor of the
witnesses in question and the nature of their testimony, I
am convinced and find that, except as to the conduct
specifically found herein to be violative of the Act, the
General Counsel has failed to establish, by credible or
probative evidence, the allegations that the Respondent
engaged in further conduct constituting independent
violations of Section 8(a)(1) of the Act. I shall, therefore,
recommend dismissal of such allegations.
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 Respondent's
operations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(l)
and (3) of the Act , I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
other manner infringing upon its employees ' Section 7
rights,20 and that it take certain affirmative action designed
to effectuate the policies of the Act.
I have found that the Respondent transferred employees
Linnet and Darnell to less desirable work assignments and
discharged Linnet on January 12 and Darnell on January
26, 1973 , in violation of Section 8(a)(3) and (1) of the Act.
The Respondent will therefore be ordered to offer to each
of these employees immediate and full reinstatement to his
formerjob , or, if thatjob no longer exists , to a substantially
equivalent position , or transfer to another job on a
nondiscriminatory basis, without prejudice to his seniority
or other rights and privileges , and to make each of these
employees whole for any loss of pay he may have suffered
as a result of the discrimination against him by payment to
him of a sum of money equal to that which he would have
earned as wages from the date of the discharge to the date
of reinstatement , less his net earnings during such period,
in accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289, together with interest
at the rate of 6 percent per annum to be added to such
backpay, such interest to be computed in accordance with
19 East Side Shopper, Inc, 204 NLRB No 125
20 N L R B v Express Publishing Company, 312 U S 426, 437, N L R B
v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941), Bob Henry Dodge,
Inc, 203 NLRB No I
21 in the event no exceptions are filed as provided by Sec 102 46 of the
321
the formula prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Riverside Industries, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily transferring, warning, and dis-
charging Linnet, and by discriminatonly transferring and
discharging Darnell, in order to discourage union member-
ship and activities, the Respondent has discriminated
against employees in regard to their hire and tenure of
employment and their terms and conditions of employ-
ment, and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By maintaining employee rules prohibiting solicita-
tion during working hours and work stoppages on penalty
of discharge, by interrogating employees about their union
membership and sympathies, and by instructing employees
not to engage in union activities, in a manner designed to
compel employees to surrender their Section 7 rights, and
by other conduct 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.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 21
The Respondent, Riverside Industries, Inc., Tulsa,
Oklahoma, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Transferring to less desirable work assignments,
warning, discharging, or otherwise discriminating against
any employees in regard to their hire or tenure of
employment or their terms or conditions of employment
because of their membership in or activities on behalf of
United Steelworkers of America, AFL-CIO-CLC, or any
other labor organization.
(b) Maintaining employee rules prohibiting solicitation
during working hours or work stoppages on penalty of
discharge, interrogating employees about their union
membership and sympathies, or instructing employees not
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to engage in union activities, in a manner designed to
compel employees to surrender their Section 7 rights, or in
any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Charles J. Linnet and Robert T. Darnell
immediate and full reinstatement to their former jobs, or, if
those jobs no longer exist, to substantially equivalent
positions, or transfer to another job on a nondiscriminato-
ry basis, without prejudice to their seniority or other rights
and privileges.
(b) Make Linnet and Darnell whole for any losses of pay
each of them may have suffered as a result of the
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under
the terms of this recommended Order.
(d) Post at its operation in Tulsa, Oklahoma, copies of
the attached notice marked "Appendix." 22 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain employee rules prohibiting
solicitation during working hours or work stoppages on
penalty of discharge, interrogate employees about their
union membership and sympathies, or instruct employ-
ees not to engage in union activities , in a manner
designed to compel employees to surrender their
Section 7 rights, or in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL NOT transfer to less desirable work
assignments, issue warnings to, or discharge Charles J.
Linnet or Robert T. Darnell, or any other employees,
or otherwise discriminate against any employees in
regard to their hire or tenure of employment or their
terms or conditions of employment, in order to
discourage membership in or activities on behalf of
United Steelworkers of America, AFL-CIO-CLC, or
any other labor organization.
WE WILL offer to Charles J. Linnet and Robert T.
Darnell immediate and full reinstatement to their
former jobs, or, if those jobs no longer exist, to
substantially equivalent positions, or transfer to anoth-
er job on a nondiscriminatory basis , without prejudice
to their seniority or other rights and privileges, and WE
WILL make these employees whole for any losses of pay
each of them may have suffered as a result of the
discrimination against him.
RIVERSIDE INDUSTRIES, INC.
(Employer)
IT IS FURTHER ORDERED that the complaint as amended
be dismissed insofar as it alleges violations of Section
8(a)(1) and (3) of the Act not specifically found herein.
22 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building,
Room 8-A-24, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 817-334-2921.