The Rex Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1961

130 N.L.R.B. 1607 (N.L.R.B. 1961)

THE REX CORPORATION 1607
ployees also represented by another local of the Petitioner. The Peti-
tioner's alternative unit request embraces a unit which is coextensive
with the multiterminal unit as it now exists. In these circumstances,
we shall direct an election in such a unit.' We find that the following
employees of the Employer constitute a unit appropriate for purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
All mechanics, helpers, and stockroom clerks employed by the Em-
ployer at its southern terminals located in Atlanta, Georgia, Burling-
ton, North Carolina, Roanoke, Virginia, Greenville, South Carolina,
Charlotte, North Carolina, Bristol, Virginia, and Knoxville, Tennes-
see, excluding all other employees, professional employees, guards,
and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Y As the Asheville , North Carolina , terminal also sought presently has no mechanical
employees , we do not include it.
The Rex Corporation and District #38, International Associa-
tion of Machinists , AFL-CIO. Case No. 1-CA-3070. March 29,
1961
DECISION AND ORDER
On October 28, 1960, Trial Examiner Wellington A. Gillis issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Union
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on December 7, 1959, by District #38, International Associ-
ation of Machinists , AFL-CIO, hereinafter referred to as the Union , the General
130 NLRB No. 164.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel of the National Labor Relations Board issued a complaint on February 4,
1960, against The Rex Corporation , hereinafter referred to as the Respondent,
alleging as violative of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to
as the Act, certain conduct on the part of the Respondent , including the discharge
of employee Edwin J. Johnson on or about December 4, 1959. Thereafter, the Re-
spondent, on February 17, 1960, filed an answer to the complaint denying the com-
mission of any unfair labor practices , and, on February 24, filed a motion for par-
ticulars, confined to the Section 8(a)(1) allegations of the complaint.
Subsequently, on March 14, 1960, the General Counsel issued an admendment to
the complaint , deleting all allegations of independent Section 8 ( a)(1) conduct, and,
on March 15, 1960, counsel for the General Counsel filed his response opposing the
motion for particulars on the ground that the deletions of the amended complaint
rendered the motion inapplicable. Thereafter, an undated motion was filed by the
Respondent requesting that the complaint be dismissed because the particulars had
not been furnished and/or the motion for particulars had not been referred to the
Trial Examiner for a ruling. On March 18, 1960, Trial Examiner C. W. Whitte-
more, to whom the motion had been referred , denied the Respondent 's motion to
dismiss on the ground that , because all the allegations concerning which the par-
ticulars were sought had been deleted from the complaint , the Respondent had not
been prejudiced. Thereafter, on March 23, 1960, the Respondent served upon the
General Counsel a set of interrogatories concerning the Section 8(a)(3) allegations
of the complaint and filed a motion for an order requiring the General Counsel to
answer the interrogatories. By an order of April 1, 1960, the duly designated Trial
Examiner denied the Respondent 's motion on the ground that pretrial discovery pro-
-cedures are not available to parties in Board proceedings.
On April 6 , 7, 11, and 12 , 1960, pursuant to notice , a hearing was held in Boston,
Massachusetts , before the Trial Examiner at which all parties were represented by
counsel and were afforded full opportunity to be heard , to examine and cross-
examine witnesses , to introduce evidence pertinent to the issues, and to submit argu-
ment . Briefs were timely filed by the General Counsel and the Respondent.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Rex Corporation , its principal office and place of business located in West
Acton, Massachusetts , is engaged in the manufacture , sale, and distribution of plastic
insulated wire, cable , and related products . In the course of its business , wire and
wire insulated products valued in excess of $50,000 are annually shipped in interstate
commerce from its West Acton plant to points outside the Commonwealth of Massa-
chusetts . The parties stipulated at the hearing, and I find, that the Respondent is
engaged in commerce within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated at the hearing, and I find , that District #38, International
Association of Machinists , AFL-CIO, is a labor organization within the meaning of
'Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue
Edwin J. Johnson, who had worked for the Respondent for approximately 61/a
'years in various capacities, and who was known by the Respondent to have been
active on behalf of the Union during the preelection organizing campaign of the
'summer of 1959, was separated from the Respondent's employ on December 3,
1959, when, pursuant to an economic cutback requiring the release of three em-
ployees in the inspection department, Johnson refused to accept an interdepartmental
transfer to an inferior job. The narrow issue presented is whether, in selecting John-
son as one of the three employees to be released from his department in early De-
'cember, the Respondent's supervisor, George S. Howard, was discriminatorily moti-
vated by Johnson's union activities of the preceding summer.
B. Facts
1. Background
Johnson was hired by the Respondent on March 4 , 1953, as a shipping clerk in the
Rexolite department , and was continuously employed by the Respondent , performing
THE REX CORPORATION 1609
.various job functions in several departments of the plant, until his separation as an
.inspector in the inspection department on December 3, 1959.1
In the early part of 1959, the Union commenced an organizing campaign among
the Respondent's some 235 production and maintenance employees. Upon the filing
of a representation petition by the Union,2 a 2-day hearing was held in June, resulting
in a Board-directed election on September 22 which was lost by the Union. During
this period Johnson signed a union card, assisted in distributing authorization cards,
and attended union meetings. The evidence reveals that during the Union's cam-
paign, but concluding on September 22, the Respondent, and particularly its super-
visor, Howard, was opposed to the Union, made its opposition known to its em-
ployees on occasion, and was aware of the fact that Johnson was a union adherent
who had signed a card and attended union meetings. Since the election on Sep-
tember 22, other than the allegation as to Johnson's discharge on December 3, there
is no evidence of any union activity by anyone, nor is there any alleged to have oc-
curred, and there is no evidence of, nor allegation as to, any overt act on the part of
the Respondent, or its supervisor, Howard, from which union animus might be
inferred.
2. Events relating to Johnson's separation
During the latter part of November 1959, for sound business reasons , the Re-
spondent decided to make certain operational changes, necessitating a reallocation
and reduction of a number of the plant employees. As an initial step in the imple-
mentation of this decision, Plant Manager Case contacted. Lakes, the personnel
manager, on Tuesday, December 1, and apprised him of the need to reduce by three
the employee complement in the inspection department .3 Lakes conveyed these in-
structions to Howard, chief of quality control and supervisor of the inspection de-
partment, later that day, advising him of the possibility that transfers might be
arranged. The following morning, Wednesday, December 2, after having given
thought to whom he could afford to release, Howard told Lakes that he had selected
three employees, namely, Edwin Johnson, James Clish, and Emma Sigman. Lakes
then apprised Case of the names of the employees whom Howard had designated,
and, in answer to Lakes' inquiry as to whether there were any job transfers avail-
able, Case indicated that there were two, one at Maynard, a warehouse located 4 to
6 miles from the main plant, and one on the second shift in the twining department.
Case then decided to assign Johnson to the Maynard job and Clish to the twining
job, and, upon having the transfer slips typed out, effective as of Monday, Decem-
ber 7, gave them to Lakes.
After lunch, Lakes told Howard of the transfer assignments and handed Howard
the transfer slips for Johnson and Clish and a termination slip for Sigman. Shortly
thereafter each employee was informed by Howard of the contemplated personnel
action necessitated by the cutback in the inspection department.4 When apprised by
Howard early Wednesday afternoon of his transfer to Maryland, at which time he
was shown the transfer slip, Johnson asked Howard what would be his status if he
were to refuse the transfer, to which Howard replied that he (Howard) would find
out from Case or Lakes. About 4:30, Johnson returned to Howard's office and, in
reply to his inquiry, Howard told Johnson that, based upon information supplied in
the meantime by Case, an employee who refuses a departmental transfer would be
considered by the Company as having "quit." Johnson then indicated that he was
not going to accept the Maynard transfer and left Howard's office. Howard then
went to Lakes' office, informed Lakes that Clish and Johnson had refused their
transfers, and indicated that he would need termination slips for the two employees.
Lakes said that he would make them out, effective Friday, December 4.
Upon leaving Howard's office, Johnson went over to see Case. 'In the latter's
office, after Case explained to Johnson that his transfer was economically necessitated
1 Unless otherwise indicated,, all dates hereinafter set forth refer to the year 1959.
2 Case No. 1-RC-5628.
s Neither the soundness of the Respondent's decision to make the operational changes
nor the validity of its determination that, pursuant to that decision, three employees
should be released from the inspection department, is in dispute. I find that on the
evidence, the Respondent was economically justified in making the operational change
requiring the release of three inspection department employees.
* Clish refused his transfer to the second shift in the twining department for personal
reasons , and, as there were no other jobs available, Clish and Sigman were among
approximately 10 employees subsequently terminated in December. Although Clish and
Sigman were both known by the Respondent to have been former union adherents,
neither one was the subject of an unfair labor practice charge and their discharges are
not alleged as discriminatory.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a department cutback, Johnson asked whether there were any other openings
available in the inspection department. When Case replied that there were not,
Johnson stated that he would not go to Maynard,5 and, in answer to his question as
,to what it meant if he did not take the transfer, Case replied that it meant that he
was quitting. Johnson further asked Case whether the fact that he had been instru-
mental in trying to get the Union into the plant had prompted his transfer.° Case
-assured Johnson that the union matter had been decided on September 22, and that
-it was no longer in issue, and that it played no part in the decision to transfer him to
Maynard. After reiterating his stand not to go to Maynard, Johnson asked Case
whether he would be able to collect unemployment compensation. As Case did not
know the answer, at his suggestion they both went over to Lakes' office, but did not
find him in. As Johnson left to go home, Case told him that he would attempt to get
the information, which he did later that evening, and would let him know in the
morning.
Early Thursday morning, Howard picked up the termination slips which Lakes had
prepared the night before and went over to inform Case that both Clish and John-
son had decided not to take the transfers. As Case anticipated that Johnson would
be in to see him concerning his unanswered inquiry relating to the possibility of re-
ceiving unemployment compensation, Howard left Johnson's termination slip with
Case, who indicated to Howard that he hoped that Johnson had reconsidered his
refusal to take the transfer.
Around 9:30, Johnson appeared at Case's office, and, in reply to his question con-
cerning unemployment compensation, Case told him that he had talked with Lakes,
who had advised him that whether or not Johnson could collect unemployment com-
pensation would be up to the director of employment security. When Johnson then
told Case, "well, I'm not going to go to Maynard, and I'm not quitting," Case called
Lakes and Howard into his office. During the discussion that ensued, after. Johnson
refused Case's suggestion that he reconsider his decision not to take the Maynard
transfer and again indicated that "I'm not going to go to Maynard, and I'm not quit-
ting, and you gotta [sic] fire me," Case asked Johnson to sign the termination slip.'
Just prior to, 10 o'clock, when Johnson refused to sign the slip 8 and after a somewhat
6 Johnson's objections to taking the Maynard transfer, according to his testimony, were
that (1) he had plant seniority which he thought he would like to exercise,'and (2) he
felt that the Maynard job was inferior in that it entailed heavy work and did not carry
as much prestige as the job he was performing. As to ( 1), the evidence reveals that
approximately one-third of the Respondent's present total employee complement has been
the subject of three or more -interdepartmental transfers and that, in no instance, has
seniority been a factor. As to (2), the transcript contains several hundred pages of
testimony relating to Johnson's experience and capabilities, particularly with respect to
electrical tests performed by him in the inspection department, as compared with the
type of work being performed by the employees assigned to the Maynard operation.
Notwithstanding the fact that, under a long-standing company policy, the job transfer
offered to Johnson entailed no reduction in pay and that much of the knowledge possessed
by Johnson would have been useful at Maynard, I find on the basis of all the evidence
that the Maynard job offered to Johnson was inferior and less desirable than the job held
by him in the inspection department.
6 Based upon Johnson's testimony that he first learned that the Union was conducting
an organizational campaign when he observed leaflets being distributed, the inference
should not be drawn from the form of Johnson's question to 'Case that Johnson was in
fact initially responsible for the Union's organizational attempts.
7In the space provided for an explanation of the reason for termination on the slip,
the following was set forth : "Resigned. Refused to accept job offered due to necessary
inter-departmental transfer."
8In the only real dispute as to a material fact relating to Johnson's separation,
Johnson testified that Howard had also presented the termination slip to him the previous
afternoon and had, at that time, asked him to sign it. Howard, corroborated by Lakes'
testimony that lie gave the slip to Howard only that morning, denied having asked
Johnson to sign the slip on the previous afternoon. Johnson did not impress me as being
an untruthful person, notwithstanding that on cross-examination he contradicted his testi-
mony given on direct examination concerning his having drawn sketches of dam stock.
However, based upon his demeanor and my observation of him while testifying, I am
persuaded that at times, in an effort not to give testimony which might be adverse to
his interests, he was inclined to be hesitant and evasive in response to questioning.
Therefore, as to the above factual dispute, I do not credit Johnson's version, and, to the
THE REX CORPORATION 1611
'heated discussion as to whether Johnson , by refusing the transfer, was quitting or
.being discharged , Case asked Lakes to make up Johnson 's pay as of the close of the
workday on Friday , December 4. As Johnson then stated that he did not want any
-of the Company's charity and indicated that he wanted to be paid only for the time
he actually worked , Lakes returned shortly with Johnson 's pay up to 10 o'clock
that morning . Although Johnson at first refused to leave, he reconsidered, and,
within a few minutes , left the plant.
3. Contentions of parties and facts bearing on the issue
The General Counsel contends that the Respondent 's selection of Johnson for re-
lease from the inspection department was discriminatorily motivated by Johnson's
union activities , and that Johnson 's refusal to accept an interdepartmental transfer
-to an inferior job constitutes a constructive discharge . The Respondent contends that
the selection of Johnson for release from the inspection department was based upon
factors unrelated to Johnson's union activity , and that , in refusing to accept the trans-
fer offered him, Johnson resigned from the Respondent 's employ.
The facts as above set forth clearly indicate that Johnson did not voluntarily re-
sign from the Respondent 's employ , but, rather that he was separated by the Re-
spondent when he refused to accept the transfer . I have found that ( a) the Re-
spondent's decision to reduce by three the employee complement in the inspection
department was prompted by valid economic considerations , and (b ) the Maynard
job offered to Johnson was inferior and less desirable than the job held by Johnson
in the inspection department . Thus, under these circumstances , if the initial selec-
tion of Johnson was discriminatorily motivated , Johnson's separation, based upon
his refusal to accept the transfer to an inferior job constitutes a constructive dis-
charge, and , as such , is a violation of the Act . On the other hand, if the initial se-
lection of Johnson - was not discriminatory , Johnson 's ultimate separation as a result
of his refusal to accept the transfer , even to an inferior job , is not a violation of the
Act. Accordingly , the real key to whether Johnson 's ultimate separation from the
Respondent constitutes a violation of the Act rests solely upon whether the Re-
spondent's supervisor , Howard , in selecting Johnson as one of the -three employees
to be released from the inspection department , was motivated by Johnson 's union
activities of the preceding summer.
As above indicated , the evidence discloses , and I find, that , during the previous
summer, the Respondent and its supervisor, Howard , was opposed to the Union's
effort to organize the plant employees 9 and that Howard was aware of the fact that
Johnson was one of those who had actively supported the Union . Although I deem
it unnecessary to set forth all of the evidence establishing , union animus on the part
of the Respondent during the organizing campaign , in view of the bearing certain
evidence has on the issue of Howard 's alleged unlawful motivation as to Johnson's
discharge , I feel that the testimony relating to Howard in this regard should be
,evaluated.io
Johnson testified without contradiction that , in the only conversation that he had
ever had with Howard relating to the Union , which occurred in June, Howard told
him that union leaflets were being distributed and that "he didn't want to see any of
it in his department ," that "in his personal opinion he didn 't see how a union could
benefit a plant of that size ," that "it's strange that the people that have been here the
longest are the ones that seem to want to have the Union the most," and that "he be-
lieved that Mr. Bell '(Company president ) was treating us pretty fair and that he him-
self could see no reason for having a union in there." During this conversation with
Howard , Johnson volunteered the fact that he had signed a card and had attended
a few union meetings.
extent that the transcript discloses other minor testimonial inconsistencies , I credit
Johnson's testimony only insofar as it is not refuted or Is corroborated by other credited
testimony.
e Howard was candid in admitting that he felt strongly "that the Union would be able
to do nothing for the employees of The Rex Corporation , or the division , that Isn't
already being done by management."
1u Although much of this testimony would not have been admissible under Section 10(b)
of the Act for purposes of proving Independent Section 8 ( a) (1) violations of the Act, if,
contrary to the fact, such were alleged in the complaint, it is admissible , was received,
and is set forth below, solely for background purposes relating to union animus and
alleged unlawful motivation on the part of the Respondent connected with the discharge
of Johnson.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emma Woupio, a former clerk-typist in Howard's office and one of the more
active union adherents prior to her leaving the Respondent's employ in June, testi-
fied that, during one of several conversations initiated by her in which Howard ex-
pressed his feelings concerning the Union, Howard indicated to her that one of the
main reasons that he had once left a job with another employer to work at The Rex
Corporation was because the former was unionized and that the latter was not.
Howard admitted having expressed to Woupio his feelings that the Union could not
benefit the employees and that, although he did not recall, he may well have told
Woupio that the presence of a union was one of the reasons he had at one time
terminated his status as an employee with another employer."
James Clish, a former inspector who, along with Johnson, was one of the three
employees selected by Howard for release from the inspection department on De-
cember 2, and who, like Johnson, refused to take an interdepartmental transfer,
testified that on two occasions he heard Howard express his feelings concerning the
Union. According to Clish, on the first occasion, which occurred during the early
part of the union campaign, after discussing with three employees a pamphlet which
stated that any employee engaged in union activity on company time 12 would be
discharged, Howard, in response to a question put to him, stated that "if it got in that
he'd quit, wouldn't work under the Union." As to the second occasion, Clish testified
that several weeks prior to the election he heard Howard tell another unidentified
person, in response to the latter's question, that "any man in his department that he
thought was pushing the Union or behind the Union, he'd get rid of him." Howard,
who denied having made these statements, and whose denial I credit, testified on
direct examination that he had discussions with all of the employees in his depart-
ment, the gist of which was that "I would not stand for any organizational activities
during working hours by anybody in my department, that I had been told that this
was grounds for discharge, organizational activities during the time that people
should be working, and that this was the case, I was not going to have any of it going
on in my department."
George E. Jones, Jr.,13 pursuant to a subpena served upon him by the General
Counsel, testified that he knew that Johnson, who at one time asked him to sign a
11 Woupio testified that Howard also stated to her that "if the Union did come in he
just wouldn't work under it" and "if he had his way about it, he would fire the first
person in the'department that mentioned the word union!' Woupio further testified that
Howard once told her that it was not advisable to have anything to do with the Union
because on an occasion prior to her employment, "they had got rid of, well , I'd say a
few or maybe a couple of people that had something to do with union activities."
According to Woupio, when she then said, "Well, you can't fire them for belonging to a
union," Howard replied, "No, but if you wait long enough you can get them on something
else ." Then, in reply to her statement that, "Well, with the number of people that
usually sign cards, I mean, you might have to start with a whole new crew," Howard
said, "That was not necessary, you could let a few go in order to scare the others."
Howard denied that, in his conversations with Woupio, or with anyone, he ever stated
that he would leave the Company if it became unionized or that he ever made any
reference to anybody being fired for union activity. Woupio, who left the Respondent in
June upon becoming displeased at having been 'denied a salary raise, did not convince
me as being completely worthy of belief. Howard, on the other band, answered questions
of both counsel without hesitation and generally impressed me as an honest person.
Accordingly, as I view Howard's denial that he ever made any reference to anybody
being fired for union activity as broad enough to cover the quoted statements attributed
to him by Woupio, I do not credit Woupio's testimony in this regard.
12 It was on cross-examination that Clish added the words "on company time."
1s The parties stipulated that Jones, who is the assistant to Howard in the inspection
department, had been a supervisor within the meaning of the Act since October 15. The
General Counsel contends, however, and the Respondent denies, that Jones was a super-
visor throughout the year 1959. The record evidence, based primarily on Jones' testimony,
indicates that Jones (a) filled in for Howard while the latter was on a 1-week vacation
in September and acts in his place when he is ill or away from the department for any
prolonged period; (b) has, in the absence of Howard, attended a few supervisory meet-
ings for the purpose of apprising Howard of what occurred at the meetings ; (c) in
spending "two-thirds of his time on a 'supervisory' capacity and the clerical work," uses
little, if any, independent judgment with respect to the work of the department em-
ployees, whose work, for the most part, is repetitive in nature; (d) receives 5 cents
more per hour than any other person in the department; and (e) has no authority to
grant raises, to direct employees to work overtime, to hire or fire, or effectively to recom-
mend that an employee be discharged. Based upon the record evidence pertaining to
THE REX CORPORATION 1613
union card, felt strongly about the Union, that on occasion, during the Union's
organizational campaign but prior to the election, in his conversations with Howard
the names of employees in the inspection department who had known union ten-
dencies were mentioned,14 and that during one such conversation Johnson's name was
included.l5
Howard, who answered questions put to him by both counsel in a forthright and
unhesitant manner, and impressed me as a candid and truthful witness, admitted
without hesitation that, during the Union's organizing campaign which continued
until September 22, he was aware of those employees in his department who were
sympathetic to the Union, which included Johnson, that he had strong feelings against
the Union and hoped that it would be rejected by the employees, that he felt that
the Union could do nothing for the employees, and that he had told his employees
that he would not stand for organizationl activities during working hours in his de-
partment. He furhter testified that, as far as he was concerned, the union matter
was over with the election in September, and that his selection of the three employees
for separation from his department had nothing to do with whether or not they had
been connected with the Union or union activities.16 Howard testified that, having
determined that, within his department, the inspection lab 17 was overmanned and
could best afford the loss of a man, from among the seven employees in the lab he
narrowed his selection down to two, namely, Johnson and Thomas Watson. Not-
withstanding that Johnson admittedly had been performing. satisfactorily and that
Watson was less experienced, based upon his comparative appraisal of the two em-
ployees as to (a) their abilities, (b) their potential, and (c) their feeling toward their
work, Howard selected Johnson for release.ls
Conclusions
I am unable to conclude, on this record, that the evidence preponderates in favor
of a finding that Johnson was discharged because of his union activities.
Probably the most difficult task not infrequently confronting.a trier of fact is that
of attempting to fathom a person's mind in an effort to discern the true reasons
prompting his decision in a given matter. However, when a person, in this type
Jones' functions , and in no way predicated upon the fact that, pursuant to an agreement
of the parties at the June hearing in the representation case Jones was' Included in the
unit and subsequently voted in the September election , I find that Jones was not a
supervisor within the meaning of the Act during the period prior to that covered by
the stipulation.
14 This was admitted by Howard.
15 Jones also testified that, during a July conversation with Walter Kaminski, a lead-
man on the second shift in the Rextrude department , Kaminski told him that some of
the people who were interested in the union activities , naming Johnson, were going to
get fired. The record evidence discloses that Walter Kaminski operates a machine 80 per-
cent of the time, and assists the other two machine operators the remaining 20 percent.
As he has no authority to hire, fire , transfer , suspend, promote , assign, reward, or dis-
cipline other employees , or responsibly to direct them, or effectively to recommend such
action, I find that Walter Kaminski (not to be confused with Stanley Kaminski who is
the foreman of the Rextrude department ) is not a supervisor within the meaning of the
Act. Accordingly, as I have found that neither Jones nor Kaminski were supervisors
within the meaning of the Act during July when the above statement was made, such
statement , attributed by one employee to another , is hearsay testimony and, even if it
were admissible , would not be chargeable to the Respondent.
161n denying that union activity entered into his decision in this regard, Howard
credibly testified as follows :
In my mind, no, sir. I can say there was no reference in my mind to whether or
not a man was active in the Union. It's been stated before, I don't know if I have
to restate it, but management felt that the Union thing was over in September, and
so did I. I may have felt somewhat strongly in my own mind before that time
how I hoped that it would come out, as these letters show that management felt
how they hoped it came out ; once it came out one way or the other, as it turned
out it came out the way I wanted it and the way management wanted it, once it
came out, that was a, as far as I was concerned, that was a completely dead
issue; it was no longer a factor in anything I did, as far as selecting people for
raises, selecting people for transfer, or anything I did, and won't be in the future.
17 The inspection lab, which appears to have also been referred to in Howard's testi-
mony as the electrical test lab, was one of several units within the inspection department.
18 Clish and Sigman were selected from among the employees in the physical lab.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceeding , having personally been charged with an act of discrimination , candidly
makes the admissions against his interest that pervade the testimony of Howard, and
then forthrightly testifies that, as far as he was concerned , the union matter was a
completely dead issue after the September election and that Johnson's activity on
behalf of the Union played no part in his December selection of Johnson for release,
I feel that I have no alternative in the determination of that person 's credibility but
to conclude that he was telling the truth. Accordingly, based upon Howard's de-
meanor and my close observation of him while testifying as a witness in this pro-
ceeding, I credit his testimony throughout and his denial of unlwaful motivation in
this regard.
Having found that Howard 's selection of Johnson for release from the inspection
department was not based upon unlawful considerations, it is reasonable to conclude
that, as Johnson 's discharge at this point would not have been unlawful , Case's deci-
sion to offer Johnson a transfer, albeit to an inferior job , rather than to immediately
effectuate his discharge , was not based upon discrimination, and I so find.I9
Accordingly, Johnson's separation , based upon his refusal to accept the transfer,
did not constitute a constructive discharge.
Upon all of the evidence presented , including the lack of any union animus on the
part of the Respondent subsequent to the September election, I conclude that Edwin
J. Johnson was discharged for reasons unrelated to his union activity and that the
Respondent , in effectuating his discharge , did not violate Section 8 (a)(3) and (1)
of the Act.. Upon the basis of the foregoing findings of fact , and upon the entire record in this
case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Rex Corporation is engaged in commerce within the meaning of Section
2(6) of the Act.
2. District #38, International Association of Machinists , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent . has not engaged in unfair labor practices in violation of Sec--
tion 8 ( a) (3) and (1 ) of the Act.
[Recommendations omitted from publication.]
18 Contrary to the position taken by the General Counsel, employees working . in the,
Maynard operation are not excluded from the unit found appropriate by the Board in its:
representation decision.
Interstate Hosts, Inc. and Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, Petitioner
Interstate Hosts, Inc., and Coye Conley, Eddie Simmons, James.
Taylor, Grace Thorpe , Willa May Johnson, Clara Whitley,,
Frank Green, Myrtis Green, O'Neal Tarver, Lenore Kelly,
Dolly van Zandt, 'Nancy Kindig, and Mary E. Hager: Cases
Nos. 13-KC-6581, 13-CA-3568-2,.13-CA-3568-5 through 13-CA-
3568-15, and. 13-CA-3568-17 through 13-CA-3568-19. March 29,
1961
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On October 28, 1960, Trial Examiner James T. Rasbury issued his.
Intermediate -Report in the above-entitled consolidated proceeding,.
finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending that the com-
130 NLRB No. 165.