Tyrone Hydraulics, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1966

161 N.L.R.B. 1476 (N.L.R.B. 1966)

1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here, as above-indicated, the 3 individuals whose status is in dis-
pute are employed full-time on weekdays as yardmen performing
nonguard functions and, more recently, are assigned in rotation on an
overtime basis on Saturdays, Sundays, and holidays to perform guard
duties-duties which were formerly performed by one regular part-
time guard. The time the yardmen spend in guard duties is about 13
percent of their total work time. Furthermore, on the occasions when
they perform guard duties, there are 2 other admitted guards work-
ing with them. Finally, the admitted guards and the disputed yard-
men comprise the Employer's total work complement at the Tiverton
facility.'
In the above circumstances, we do not believe that the yardmen
are guards within the meaning of Section 9(b) (3) of the Act. In our
view, this conclusion does no violence to the concern of Congress for
preventing guards from being in a position where there might be a
conflict between loyalty to fellow union members and duty to the
employer, as the yardmen are not. required to make rounds when
employees are working and they devote but a comparatively small
portion of their total working time performing such function under
the Employer's contract with the Government. Accordingly, we find
that the following employees constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of Section 9(b)
of the Act :
All yardmen employed by the Employer at its Tiverton, Rhode
Island, fuel tank plant, excluding guards, professional employees,
office clerical employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.] 6
Other than clerical employees in the office.
e An election eligibility list , containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 1 within 7 days after
the date of this Decision and Direction of Election. The Regional Director shall make the
list available to all parties to the election. No extenssion of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances. Failure to comply
with this requirement shall be grounds for setting aside the election whenever proper ob-
jections are Sled. Excelsior Underwear Inc., and Saluda Knitting Inc., 156 NLRB 1236.
Tyrone Hydraulics, Inc. and United Rubber, Cork, Linoleum and
Plastic Workers of America , AFL-CIO. Case 26-CA-2326-
December 5, 1966
DECISION AND ORDER
On August 2, 1966, Trial Examiner David E. Davis issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
161 NLRB No. 135.
TYRONE HYDRAULICS, INC. 1477
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not engaged in certain
unfair labor practices alleged, and recommended the dismissal of such
allegations. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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 Trial
Examiner's Decision, the exceptions, the supporting brief, and the
entire record in this case , and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner , as modified herein.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraph 1(a) of the Recommended Order and substi-
tute the following therefor :
["(a) Unlawfully and discriminatorily applying any no-solicita-
tion rule to employees engaged in solicitation in behalf of a union,
or in any manner interfering with, restraining, or coercing employees
in the exercise of their rights to self-organization, to bargain collec-
tively through representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities."
[2. Delete from the notice the second indented paragraph and sub-
stitute therefor the following :
[WE WILL NOT unlawfully and discriminatorily apply any no-
solicitation rule to employees engaged in solicitation on behalf of
United Rubber, Cork, Linoleum and Plastic Workers of Amer-
ica, AFL-CIO, or any other labor organization, in order to stifle,
defeat, or interfere with union organization efforts among our
employees.]
' We do not adopt the Trial Examiner ' s finding that Respondent's no-solicitation rule of
January 20, 1965, which was otherwise valid, was superseded by the Pierce speech of
November 23, 1965, and the posting of a notice on December 6, 1965, and was in effect a
new invalid rule promulgated to forbid only union solicitation . Instead we rest our 8(a) (1)
and (3 ) findings as to this aspect of the case upon the Trial Examiner ' s further finding
that whatever rule was in effect after November 23, 1965, was discriminatorily enforced
and that the discharges pursuant thereto violated the Act. While otherwise in agreement
with his colleagues , in finding discriminatory enforcement of the rule , Member Zagoria
relies only on the fact that the Respondent banned union activity while permitting anti-
union activity during working time.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO, herein called the Union, on February 14, 1966, amended
on March 24, 1966, the General Counsel, by the Regional Director of the Region 26
of the National Labor Relations Board, herein called the Board, issued a complaint
and notice of hearing on March 20, 1966, copies of which were duly served upon
the parties. The complaint alleged that Tyrone Hydraulics, Inc., herein called the
Respondent, engaged in certain unfair labor practices violative of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended, herein called the Act.
The Respondent duly filed an answer and an amended answer denying that it had
engaged in any conduct violative of the Act.
Pursuant to due notice a hearing was conducted before Trial Examiner David E.
Davis at Cornith, Mississippi, on June 1 and 2, 1966. All parties were represented
and were given full opportunity to be heard. Briefs were received from the
Respondent and the General Counsel which have been carefully considered.
Upon the entire record in this case and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
The complaint, as amended at the hearing, alleges, the answer admits, and I
find that the Respondent is now, and has been at all times material herein, a
Mississippi corporation and a subsidiary of The Oliver Tyrone Corporation of
Pittsburgh, Pennsylvania, with a plant and place of business at Corinth, Mississippi,
where it is engaged in the manufacture of pumps and hydraulic equipment. During
the past calendar year, the Respondent, in the course and conduct of its business
operations, received at its Corinth plant, the only plant involved in these proceed-
ing, goods and materials valued in excess of $50,000 directly from points outside
the State of Mississippi and during the same period of time, shipped from its
Corinth plant directly to points outside Mississippi goods and products valued in
excess of $50,000. Accordingly I find that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Prehminary statement
At issue is the validity of the no-solicitation rule in effect at Respondent's Corinth
plant and whether or not there was discriminatory enforcement of that rule. It is
clear that the two employees, Herbert Jolly and George Younger, discharged for
alleged violations of this plant rule, were discharged for engaging in solicitation
on behalf of the Union on company time and property. As I indicated on the rec-
ord, I find that Jolly and Younger did in fact solicit other employees in behalf of
the Union on company time and property. This finding, by itself, as will appear
hereinafter, is not dispositive of the issues posed above.
B. Background and history of the no-solicitation rule
The Respondent, prior to January 20, 1965, had in effect a no-solicitation rule,
which read as follows: I
SOLICITATIONS.
In order to avoid embarrassment to fellow employees, no solicitation for any
cause may be undertaken on Company premises. This includes solicitations
for donations, subscriptions, flowers, wedding gifts, lotteries, membership in
any organization, orders for merchandise, etc.
1 General Counsel 's Exhibit 3-A.
TYRONE HYDRAULICS, INC. 1479
On January 20, 1965, upon Respondent. Counsel's advice that the above rule
was illegal under the Act, the Respondent rescinded the rule and substituted the
following: 2
January 20, 1965
TO ALL EMPLOYEES:
You are hereby notified that the solicitations rule set out in the Employees
Information Guide at page twenty-three thereof is rescinded and canceled at
this date, and the following rule is substituted in place of the rule appearing in
the Guide:
Solicitations of all kinds during working time in working areas are
prohibited.
TYRONE HYDRAULICS
Thereafter, early in November 1965, the Union commenced a campaign to orga-
nize the Respondent's employees. About the same time in November 1965, John
Bowers, a long-time employee of the Respondent, commenced a countercampaign
by soliciting employees' signatures to a petition, addressed to Benjamin P. Pierce,
Respondent's president, which stated that the undersigned employees did not desire
a union to represent them. On November 23, 1965, Pierce called the employees
together and made a speech. The speech itself is not in evidence but it is a fair
inference that the union organizational drive was discussed. It was stipulated by
the parties that included in Pierce's remarks were the following statements con-
cerning solicitations: 8
No employee will be allowed to carry on Union organizing activities during
working hours in working areas. This includes trying to get employees to sign
cards as well as other types of Union activities, and any employee who violates
this rule will be subject to discharge. Also anyone who carries on Union
activities during working hours and thereby neglects his own work or inter-
feres with the work of others will be subject to discharge. This rule will be
strictly enforced.
On December 6, 1965, the following notice was posted on the Company's bulle-
tin boards:4
December 6, 1965
TO ALL EMPLOYEES:
This is to remind you of the company's longstanding rule regarding distribu-
tion of literature, soliciting or engaging in union organizing activities during
working time in working areas:
1. Distribution of literature during working time in working areas is
prohibited.
2. Solicitations of any kind during working time in working areas are
prohibited.
3. Union organizing activities during working time in working areas are
prohibited.
This rule applies to all employees, whether for or against a union, and will
be enforced accordingly.
----------------------------
Vernon J. McBride
C. The discharges
1. Jolly's discharge
On February 10, 1966, Jolly 5 was suspended and given a pink slip which read: 6
Suspended pending investigation of violation of company's rules.
The "suspension" was in fact a discharge as the Respondent made no further
investigation but was satisfied by the events leading to the "suspension" that it
would not recall Jolly and that it considered his employment terminated. Jolly
likewise treated the "suspension" as a discharge. Accordingly, this decision will
refer to the action taken by the Respondent with regard to Jolly as a discharge
rather than a "suspension."
2 General Counsel's Exhibit 3-B.
8 General Counsel's Exhibit 3-C.
' General Counsel 's Exhibit 3-D.
8 Jolly is sometimes called "Jack" or "Jack Jolly" and is so referred to in the record.
e General Counsel's Exhibit 2.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jolly testified that he had been employed by the Respondent since 1951 when it
was then known as Berry Motors . He worked for 3 years and was laid off in 1954
when there was a mass layoff. He was recalled in 1959 and continued to work
until February 10, 1966, when he was terminated.
On February 10, 1966, Jolly was working on the second shift, the hours being
from 3:30 p . m. to 12 midnight . He had been working about 2 hours when his
foremen, J. A. Williams , came to him and said , "Jolly, McBride wants to see you
in his office."
Williams, Jolly, and Everett Byrd, general shop foreman , went to the office of
Vernon J. McBride , vice president in charge of manufacturing . After McBride told
Jolly to have a seat, Jolly credibly testified that McBride said, "Jolly, we know you
are working for the union and have been soliciting on company 's time. If you
want a union , why don 't you go North where they have unions." Jolly replied that
he probably would if his home was not here. McBride then stated that he had
three witnesses that Jolly had been soliciting on company time. Jolly asked why
McBride did not produce the witnesses and McBride replied , "We've got one that
you threatened if he did not sign a union card." Jolly replied that, "a two year
old kid would have more sense than that ." Thereupon McBride stated , "Jolly, I am
going to suspend you, I am not going to fire you , I am only going to suspend you
until we check further into this matter." Jolly then protested that the suspension
was unwarranted and that he had done good work. McBride replied that Jolly had
put out quality work and that his efficiency was around 100. Jolly credibly testified
further that on February 14, 1966, about 10 a m. h° met McBiide in his office and
McBride said , "Jolly, I hate to see you working for the Union. You have repre-
sented the company four years, quite a while." Jolly said that McBride gave him
no other choice.
I have set forth Jolly's testimony in quite some detail and, as I have stated
above, I fully credit it. Jolly impressed me as a very candid individual who
attempted to testify to the best of his memory without embellishment . As a result,
he unhesitatingly admitted various acts of solicitation on company time and prop-
erty even though he probably was aware that such testimony would tend to sup-
port Respondent 's defense . To summarize , Jolly's demeanor , attitude , and manner
of testifying made a deep impression on me, and his testimony as recited above is
fully credited.
McBride testified that when Jolly was brought into his office by Byrd and Wil-
liams, there was a discussion of the solicitation problem they had with him and
"we told him that we had fellows that came forward and told us he had been
soliciting for the Union successfully on company time in working areas, and we
felt that we was going to have to do something about it." 7
McBride further testified that Jolly said if the fellows would come forward, he
would change the looks of their faces . McBride then volunteered the additional
phrase, "meaning physically ." Counsel for the Respondent then stated , "Don't tell
about that" and McBride then said , "anyway he said he would change the looks
of their faces ." Jolly on cross-examination admitted using a phrase similar to that
quoted by McBride but stated that he meant that if he faced the witnesses, the
color of their faces would change and their false statements would be apparent.
Jolly appeared to be a well-adjusted individual , articulate , mild mannered and in
complete control of himself at all times . I do not believe that Jolly intended this
statement as a physical threat or that he physically threatened anyone.
McBride's attempt to interpret Jolly's statement as a physical threat clearly was
designed to bolster the defense. This fact together with others , as will appear here-
after, has led me to discredit McBride's testimony on this and other aspects of the
case. I do not credit McBride's denial of Jolly's testimony to the effect that McBride
told him if he wanted a union, he should go north; neither do I credit McBride's
denial that he told Jolly he was doing quality work and he would give him a good
recommendation if he went to work elsewhere.
The records submitted by the Respondent demonstrate that Jolly's work was
highly efficient and his length of employment attests to the Respondent's satisfac-
tion with him. I also note that McBride, himself , testified that "we felt that we was
going to have to do something about it," because Jolly was soliciting for the Union
7 The record requires correction The word "successfully " is stricken and "excessively"
substituted . I have no memory of "successfully " being used in this context . Certainly,
the General Counsel or I would have questioned McBride concerning this, if in fact,
"successfully " had been used by him.
TYRONE HYDRAULICS, INC. 1481
on company time in working areas. McBride also testified that he asked one
employee if he had been solicited by Jolly on company time. Apparently this was
the entire "further investigation" referred to in the suspension notice given to Jolly.
Having set forth the events surrounding the discharge of Jolly, it is now neces-
sary to describe earlier occurrences which preceded the actual discharge.
Jolly in his testimony, admitted that he had been warned about three times for
leaving his work station.
The first time was about the 15th of October 1965, when Foreman Henry Hor-
ton told Jolly he was leaving his machine too much and asked Jolly to stay around
his machine more . Jolly replied that he would and that concluded the incident.
About November 12, 1965, Jolly was told by Horton to get an inspector to sign
out his first completed piece on any new job.8 About December 1, 1965, Jolly ran
one piece on a new job, finished it, and went to look for the inspector. He went
through the shop and did not find him. When he returned to his machine, Horton
was there and said, "I told you about leaving your machine" Jolly replied that in
accordance with Horton's orders he had been looking for an inspector. Thereupon
Horton said if that was the case, it was all right.
About January 10, 1966, Jolly had finished an item on his machine when James
Martindale, who was working at a machine about 10 or 15 feet away, said some-
thing to Jolly. Jolly did not hear it because of the noise, he then stepped over to
Martindale and asked him what he said, Jolly then returned to his machine, Horton
was there and said to Jolly, "Jolly I told you about that." Jolly replied that he was
getting tired of it and that he did not want a man "breathing down my throat"
every time he left his machine. Horton then said that he was not arguing with him
and "we will go up to Everett Byrd's office if you want to go" Jolly said, "Let's
go." They went to Byrd's office. Byrd was not there but McBride came by and
they went into McBride's office. Horton reported that Jolly got mad because he had
been on him on more than one occasion about leaving his machine. Jolly said that
Horton was watching him like a cat ready to jump on a' mouse. He said he had
100 percent efficiency on the board, was doing a 'day's work and was tired of
Horton breathing down his neck. Jolly then said that there was union talk "down
here" and better than 50 percent of it was on account of Horton's mouth. McBride
said that they were just men working together trying to make a living and that the
things should be worked out together. Jolly said that he and Horton had been
friends and that he would like to work it out. Thereafter, Jolly testified, Horton
was very good to him until he was suspended. As will appear, infra, Respondent's
supervision knew of Jolly's prounion attitude and sympathies. I credit Jolly's pro-
tests that Horton was watching him "like a cat ready to jump on a mouse." I view
the above as a harassment of Jolly and designed to find a reason to discipline or
discharge him or to limit his union activity. Shortly thereafter Jolly exercising his
seniority rights transferred to another shift and Williams at that time became his
foreman.
On February 9, 1966, as stated above, J. R. Williams was Jolly's foreman. As
Williams was leaving the shop on an errand about 10 p.m., he saw Jolly going to
the restroom. When Williams returned Jolly was at his machine and Williams told
him it was raining. As Jolly had left the windows of his car partly open, he stepped
to the back door to see how hard it was raining. When Jolly returned to his
machine, Williams asked him what the matter was and said that when he left
Jolly was away from his machine. Williams then stated he was going to write
"a letter." 9
Jolly said, "Williams don't threaten me with a letter if you are going to write
one, write one."
Jolly testified that he could hardly believe it and that when he was leaving the
shop at midnight he passed Williams and said, "Williams, I didn't think you would
do me this way." The next morning, before going to work, Jolly went to a private
business operated by Williams about a mile and one half from the plant and asked
him if he really meant what he said the night before about writing a letter. Wil-
liams replied that he did and if Jolly did not like it, he could see Pierce. Jolly
went to the plant and McBride told him Pierce was out of town. He told McBride
that he was getting tired of hearing about threatening letters, that he "used to be a
boy," that now he "was a man and wanted to be treated like one" McBride said
8 Apparently when a new Job was commenced, Horton required that the first piece of
completed material was to be checked by the inspector.
8 Both Williams and Jolly understood this to mean a written reprimand.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would talk to Williams . Thereafter at 3:30 p.m. Jolly went to work as usual.
After 2 hours Jolly was called to McBride 's office and was discharged as described
above.
Williams testified somewhat differently . He stated that on February 9, 1966, an
employee, Dale Fortenberry came into his office and asked him to get Jolly off his
back, that he was bothering him, wanting him to sign a union card and had threat-
ened him. Williams then observed Jolly for the remainder of the night and some-
time about 11 p.m. noticed Jolly talking to Fortenberry again . From there he
noticed Jolly going into the de-burning area, to the lathe section and then to the
welding section . Williams asked Jolly what was the matter and Jolly said he had
his production made for the night and nothing was wrong . Williams said he would
check his production and added "we expect a full eight hours work for a full eight
hours pay ." Williams recited that he questioned Jolly about the areas he had visited
and that Jolly admitted it. Williams then told him he was going to put a written
reprimand in his file, Williams then testified , that Jolly "didn 't want me to, begged
me not to, and threatened me about putting a letter in his file." After midnight,
Williams stated , Jolly again "begged " him not to put a letter in his file.
Williams added , "this time it wasn 't in a man to man talk. It was a threat, in
other words . He said don 't you threaten me with that letter in my file in any way."
Williams told Jolly if it happened again , he would have to take disciplinary action.10
Williams further testified that Jolly visited his place of business and that Jolly
tried to talk him out of putting a letter in his file. He told Jolly that he had already
done it and that Jolly could see Pierce if he wanted to. Williams then incredibly
testified that when the afternoon shift commenced and he had "gotten all the fel-
lows down on the job," Jolly was away from his machine , back at the de-burning
machine , talking to one of the employees there. Williams thereupon went to
McBride and told him that Jolly was doing the same thing that he had "gotten on
to him" the night before . McBride, according to Williams , then instructed Williams
to bring Jolly to his office.
Williams was not a convincing witness. His testimony lacked an air of candor and
his characterization of Jolly's appeal to him to withhold the written reprimand as
a "threat" is contrary to his own testimony . On several occasions he stated that
Jolly "begged" him not to place a written reprimand in his file , yet he volunteered
that Jolly was threatening him when Jolly said that Williams should not threaten
him with a written reprimand . I credit Jolly 's entire version and believe that Jolly
said to Williams "Don 't threaten me with a letter," only on the first occasion , there-
after Jolly merely pleaded with Williams not to do so. Clearly Jolly felt , with justi-
fication, that he was being harassed and watched too closely , Jolly denied Williams'
testimony that on the afternoon of his discharge , he was away from his machine.
I credit Jolly and characterize Williams ' testimony in this regard as incredible.
Here we have a man begging and pleading that no reprimand be put on his file
because of his concern that it may cost him his job, yet , Williams would have me
believe;, that this same man would immediately commit the identical acts which
caused the written reprimand. This sort of conduct is not the rational behavior of
a man in this position . I appraised Jolly as a stable , affable, and intelligent man. I
am convinced that Williams' testimony on this aspect is an embellishment designed
to support the Respondent 's defense and to give substance to his summons of Jolly
to McBi fide' s of6ce.11 I believe that Jolly was a marked individual and Williams and
Horton were looking for an excuse to suspend or discharge him or at the very least
to inhibit his union activity.
McBride's testimony concerning Jolly's drop in efficiency from 113 percent to 93
percent is obviously a conclusion predicated upon an erroneous premise. It is self-
evident that the data upon which McBride relies are highly selective and incom-
plete. McBride 's explanation as to the effect of different work on the efficiency
rating is far from satisfactory even though he was given an opportunity to consult
10 The latter statement was made by Williams pursuant to a suggestion by Respondent's
counsel. The question put to Williams was as follows :
"Now, did you make any statement to him about if it happened again, what you
would do?" I place little credence in testimony extracted in this manner from coun-
sel's own witnesses. Moreover for reasons explicated below, I do not consider Williams
a credible witness
11 The suspension notice indicates that Jolly worked about 2 hours that day. This fact
contradicts Williams' testimony that he saw Jolly doing the "same thing" Immediately
after the afternoon shift began.
TYRONE HYDRAULICS, INC. 1483
the work records. He returned without any facts and merely testified to general
conclusions. With regard to the date, itself (General Counsel's Exhibits 5a and 5b),
they are susceptible to a different conclusion: Even if I were to accept the 5-day
period in December as a standard for comparison,12 I would compare the last 3
days Jolly worked in February with this standard. February 7, 8, and 9 were the 3
days in the week commencing February 7, which is the last week which Jolly
worked and during which he was alleged to have wasted so much time and com-
mitted the rule infractions which caused his discharge. I compute his efficiency rat-
ing for this period , based on the Respondent's formula, at 111 percent. For each of
the days the figure is as follows:
Percent
February 7, 1966------------------------------------------------ 125
February 8, 1966------------------------------------------------ 105
February 9, 1966------------------------------------------------ 104
While this computation suffers from the same deficiency with regard to the lack
of information as to the type of work being done , I believe it has greater evidentiary
value for the purposes of the issues in this case.
I conclude that Jolly was not discharged for any deficiencies in his work and that
he was discharged , as McBride testified , for soliciting for the Union on company
time and premises.
I further conclude that Jolly did not, as contended by the Respondent, wander
around the plant and waste time away from his work area. I find that his absences
from the machine were no more than the normal absences of other employees in
the plant which' was necessary for their personal conveniences . I conclude that the
conversations Jolly indulged in while engaged in the above were short and not a
cause for objection by the Respondent as both Horton and Williams testified , except
to the extent that Jolly mentioned and supported the Union in these conversations.
I discredit Fortenberry's assertions that Jolly threatened him with loss of his job.
Jolly may have said that wage increases would result if the plant went union, but
this is the universal expectation of employees who seek union representation. For-
tenberry undoubtedly did inform Williams that he was being threatened by Jolly.
Williams, on the other hand, made no attempt to investigate Fortenberry's state-
ment by asking Jolly about it. He merely accepted Fortenberry's word. By this time,
as will appear later in this Decision, it was' well known in the plant that the
Respondent was opposed to the Union and that union adherents and those opposed
to the Union were quite easily identifiable.13 I look upon Fortenberry' s complaints
about Jolly as an attempt to ingratiate himself with the Respondent . Additional
instances of this type of conduct appear elsewhere in this Decision.
2. Younger's discharge
Younger stated that his union activity commenced after January 27, 1966, more
particularly between February 4 and February 8, 1966 , that he approached about
8 to 10 employees and spoke to them briefly at their machines on his way to the
washroom or for a drink . His machine was located about 20-25 feet from Fore-
man Horton 's desk. Horton testified that he spent approximately 60 percent of
his time in the work area. Although Younger stated he did not know whether Hor-
ton saw him when he engaged in these conversations , I find that Horton not only
saw Younger conversing with other employees but saw other employees conversing
with one another including Younger . As Horton recognized the reasonableness of
permitting employees to use approximately 3 minutes of every hour for their per-
son convenience and comfort , it is apparent that conversations between employees
in passing was not prohibited nor frowned upon. Williams' testimony affirms this
practice.
12 This selective 5-day period in December was presented to establish that this was Jolly's
efficiency rating prior to his having engaged In solicitation for the Union I do not regard
it as representative because it encompasses too short a period and because there is no
factor for the difficulty of the work lie was doing. The efficiency rating is derived by
dividing the earned hours worked by the actual hours worked . Even though I have grave
doubts of the validity of such a measure , I acknowledge that it is the criteria used by the
Respondent and that the Respondent is within its rights to do so
13 Jolly had made known his union sympathies to supervision in November 1965 and
when on January 10 Horton and Jolly went to McBride's office, Jolly stated his union
sympathies to those present.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Younger 's testimony that he gave Wroten a union authorization card
sometime between February 4 and 8 , 1966 , while Wroten was working and that
Wroten came back to Younger 's machine while Younger was working and returned
the card stating that he was scared to sign it.14
I also credit Younger's testimony that he solicited James Rogers in the parking
lot and Kemp during the luncheon period . Younger candidly admitted that about
February 10, 1966 , he received a signed card from an employee during the employ-
ee's work time . He also admitted being cautioned by Horton about being away
from his machine. Younger credibly testified that Herschel Little spoke to him
twice about the Union while Younger was working at his machine. The first time
was right after the Union commenced its organizational campaign, the second time
was after Horton had spoken to Younger about being away from his machine.
Little, who was a friend of Younger's , tried to convince Younger on the second
occasion that unions were no good . I credit Younger 's testimony that Little told
him that it was all right for him to talk against the Union with him . Younger also
testified that John Bowers had talked to him while Younger was working at his
machine . Bowers, on that occasion, about February 7, 1966 , told Younger that he
had seen him talking to the boys, said "he knowed about the boys, and pretty well
knew what it was about ." I have no doubt about the veracity of Younger 's testi-
mony as he appeared to be a witness who was interested in the true facts and made
no attempt to testify to more than he knew. This fact became clear not only when
he admitted that he was violating company rules by his conduct but also when he
said that he did not know whether or not Horton saw him away from his machine
talking to other employees. I have found above that Horton did in fact see him.
It is clear that Horton in accordance with the practice saw nothing wrong with this
until McBride called it to his attention . It was then that Horton cautioned Younger
about his . being away from his machine . In view of Bower 's conversation with
Younger and Bower's antiunion campaign , I find that Younger's activity was well
known in the plant and had come to McBride 's attention . There were many employ-
ees who were prepared to ingratiate themselves with management by acting as
informants . I have already alluded to Fortenberry and I place Bowers in the same
category: Significant in this regard is Younger's testimony that Robert Byrd 15 came
to his machine shortly after the Bowers' conversation and told Younger that he had
better drop the Union as it would do nothing but get him fired.16
On February 11, 1966, Younger was,terminated 17 not suspended . He was called
to McBride's office by Horton and in the presence of Byrd and Horton was told by
McBride that two or three employees had said that he had been soliciting , giving
out cards on company time.
Horton testified that on February 10, 1966 , Wroten complained to him that
Younger was bothering him at his work by soliciting him for the Union and gave
Horton names of other employees who were solicited by Younger . Horton then
questioned David Ayers, Bob Jackson, and James Rogers and asked them if they
had been solicited . Each of the employees told Horton that they had been solicited.
I note that Horton testified that he did not ask these employees whether or not they
had been solicited on work time in a work area, only that he had asked them if
Younger had been soliciting for the Union . Horton 's testimony that he gave
Younger a written reprimand is not credited as he admitted that Younger had not
seen the reprimand . I find that Younger was discharged for soliciting for the Union
and that 'he was engaged in this solicitation on several occasions in a work area
during working time.
141 note that by this testimony Younger is admitting that he was engaged in union
solicitation during work time in a working area. The fact that Younger could be consid-
ered on a "break" does not alter the situation . However , Wroten likewise instituted a
conversation with Younger in Younger's work area while Younger was working
11 Not to be confused with Everett Byrd, the general foreman, who is referred to as
Byrd in this Decision
10 The foregoing instances of Little, Bowers, and Robert Byrd leaving their machines to
talk to Younger are indicative that this practice was not frowned upon except where union
solicitation was involved , see, infra, section D of this Decision entitled "Visiting and
Solicitation in the Plant."
17 General Counsel's Exhibit X-4.
TYRONE HYDRAULICS, INC . 1485
D. Visiting and solicitation in the plant
Despite the various rules in effect at Respondent's plant concerning solicitation,
I find that the preponderance of the evidence establishes that the rules were not
enforced and it was common practice to visit and solicit for various causes. It was
admitted that no employees other than Jolly and Younger had ever been discharged
for soliciting.
Jolly and Younger testified to several instances of solicitation by other employ-
ees. Philip Newcomb credibly testified that Barney Morris solicited him to sign
the antiunion petition during worktime and in a work area and that Bowers asked
him to sign a slip that he would give blood to the Red Cross.
Bobby Crane credibly testified that he complained to McBride about Novem-
ber 8 or 9, 1965, that Bowers was soliciting antiunion signatures during working
hours and that he told McBride that if this was allowed then the signing of union
cards should also be allowed . McBride, according to Crane's credited testimony,
said that he was aware of the antiunion petition but did not know whether it was
being signed during working hours, but if it was he would talk to Byrd and have
him stop it . Crane recalled that in 1964, Byrd had solicited him for the community
fund , and John Jordan, then a foreman in the laboratory, had sold him a raffle
ticket, and that Bowers had solicited him for blood every year, that on Febru-
ary 19, 1966, Bill McGaughey, the leadman, had solicited him for flowers for an
employee's wife during worktime and in a work area.18
Ardean Rhodes credibly testified that he was solicited by Mansel Robbins, an
admitted supervisor under the Act, for flowers for an employee 's father, and that
this occurred the latter part of January or first of February 1966 during worktime
in a work area, that during 1966, he was solicited by Donald Strachen and Billy
Griffin for contributions to funds for relatives of two employees and that this was
done in the presence of his foreman, Robbins , during worktime in a work area.19
Billy Taylor testified that it was general knowledge that John Bowers was solicit-
ing signatures to an antiunion petition and that he had been solicited by Bowers
during worktime at his machine.
While Taylor. did not remember whether his machine was running at the time,
I conclude that it is immaterial and find that it was during worktime in a work
area. •
Clifton Young testified he spoke to Dudley McNair during worktime in a work
area about withdrawing from the Union. He also testified that his leadman , McGau-
ghey asked him if he had signed a union card during worktime in a work area.20
Rhodes also testified that he informed Pierce that he had signed a union 'card
but that he regretted it. He did this becuase he had heard somebody had got in
"dutch" by signing a union card and he did not - wish to get in "dutch."
Joe D. Bonds testified that Byrd solicited him for the Community Fund shortly
after he commenced his employment in October 1963 and that in the fall 'of 1964
he was solicited for a Christmas present by Little. He further testified that he was
Is R. C. Bridges was a witness for the Respondent and told about an incident in Novem-
ber 1965 when Crane allegedly asked ' Bridges whether or not he would join in a strike if
one was called and that when Bridges replied that he would not, Crane said he would hate
to see his house blown up when he was, seated having supper. This evidence was adduced in
order to attack Crane's credibility . Bridges said he did not take this seriously at the time
and that he had disclosed this alleged threat the day before he testified to Respondent's
attorney . Even If I were to credit this testimony , which I do not, I would not discredit
Crane's other testimony because of this casual statement which was not seriously believed.
However , Crane's denial of this statement is fully credited as I consider him a careful
witness who testified with candor and sincerity. .
'B On cross -examination Rhodes readily admitted that because he had not been upgraded
on January 19, 1966, as he thought he should have been , he had told Pierce, the president
of the Respondent , that "I would maul his head ." No disciplinary action was taken except
that he was told that Williams had put a written reprimand in his file . I mention this to
demonstrate that the Respondent , apparently , was not prone to discharge employees even
in such circumstances . { If
x There was some indication that Dudley McNair was a supervisor within the meaning
of the Act , however, the evidence to 'establish this is insufficient in my opinion . I find that
McNair was not 'a supervisor.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicited for a raffle in 1964 and that John Bowers had solicited him to sign the
antiunion petition in the washroom in November 1965.21
Fortenberry, testifying as a witness called by the Respondent,22 testified that the
only conversations he had with Jolly were when Jolly came to Fortenberry's
machine in order to have Fortenberry sign a union card.
His testimony was that on two occasions, on the evening of February 9, 1966,
Jolly talked with Fortenberry and was told by Fortenberry that he was not inter-
ested and to leave him alone. Jolly then said, according to Fortenberry, that ' any-
one who didn't sign a Union card was going to lose their job." Thereafter he went
to Williams and complained that "he had come to my machine twice and told me
if the union came in I would lose my job."
I have previously discredited Williams and Fortenberry's version of Fortenberry's
conversations with Jolly. I reaffirm this conclusion for the additional reason that
Williams' and Fortenberry's versions are inconsistent in significant details. Forten-
berry testified that Jolly spoke to him at 7 p.m. and 9 p.m. and that after the sec-
ond time he complained to Williams. Williams testified that Fortenberry complained
to him in the evening, that thereafter Williams watched Jolly and at 11 p.m. he saw
Jolly talking to Fortenberry. As Fortenberry stated he only spoke to Jolly twice
and the last time was at 9 p.m. Williams' testimony is contradictory. At any rate,
I have credited neither Williams nor Fortenberry.
Fortenberry further testified that sometime this year (1966) he was solicited
by Billy Griffin at his machine for a donation to a fund for an employee's sick
wife, thus affirming testimony of the General Counsel's witnesses concerning the
practice.
Lloyd C. Norton testified on behalf of the Respondent that Jolly came over to
his machine and asked him if he would sign a union card and Norton replied that
he would not. He said that this was the extent of the conversation.
He further testified that Jolly worked about 2 or 3 feet from him and left his
machine to ask this question and that he made no disclosure of this incident until
after Jolly's discharge, that this occurred when he called McBride to his machine
to talk about Norton's recent suspension for punching another employee's card.
Norton told McBride that he appreciated the fact that he was not discharged and
then volunteered the Jolly incident. Thereafter Norton was requested to sign a state-
ment concerning Jolly and did so on February 23, 1966. He also testified that he
signed the antiunion petition circulated by Bowers in the parking lot after 3:30 p in.,
stating he was a little late getting to work. Norton testified further that he had in
fact signed a union card before Jolly approached him but did not tell Jolly that.
He concluded his testimony by stating he disclosed the Jolly conversation in appre-
ciation of his not being discharged. Norton made an extremely unfavorable impres-
sion and I do not credit his version of the alleged Jolly conversation. I believe
Norton fabricated the story to ingratiate himself with McBride and to display his
antiunion convictions after he learned that Younger and Jolly were discharged for
soliciting for the Union.
On the basis of the record evidence, it is clear to me, as I have indicated above,
that only union solicitation was frowned upon. Finally, I am convinced that Jolly's
and Younger's alleged absences from their machines was an attempt to hide the
Respondent's displeasure with their known union activity. Absence from the
machine was, in my opinion, merely used as a cloak for articulating this displeasure.
This fact becomes clear when the disparate treatment of the various solicitors for
donations and blood is contrasted with the treatment of Jolly and Younger. At least
one supervisor, Robbins, was present when a donation was solicited and this was
in 1966, yet no action was taken in this case. Moreover, John Bowers testified that
he had secured 85-90 signatures to an antiunion petition. He testified that he
secured this away from the work areas and on his own time. The evidence is clear
n Bonds also testified that he was suffering from a nervous condition and that he had
told Pierce that though he had signed a union card he felt differently about it later. In
March 1966, it was discovered that he had failed to inform the Respondent about a previous
industrial injury and was told to forget it and try to be a good employee.
22 The record of the hearing refers to Respondent's witnesses as "called as a witness by
and on behalf of the National Labor Relations Board and Respondent." The words "by and
on behalf of the National Labor Relations Board and" are stricken wherever the Re-
spondent has called the witness.
TYRONE HYDRAULICS, INC. 1487
that he spent an inordinate amount of time in the washroom where he secured many
of the signatures. It is also clear that McBride, Norton, and Byrd knew about Bow-
ers' antiunion petition and that he was violating the Respondent's posted rules con-
cerning solicitation by soliciting against the Union. I credit Crane's testimony that
he complained to McBride about Bowers' solicitation during working hours. I also
credit Foreman Horton's testimony that McBride and Byrd checked into Bowers'
activity. He testified, contrary to McBride, that Byrd and McBride discussed it
with him and stated that he personally did not check into it because it was not
reported to him. Both Bowers and McBride testified that when Bowers gave
McBride the petition with the 85-90 names, nothing was said except that Bowers
recalled that McBride said "something that he had heard I was soliciting for some-
body who was sick or somebody, and I told him I had not." McBride testified that
he made no inquiries when Bowers gave him the antiunion petition but did remind
Bowers about the no-solicitation rule when he heard a rumor that Bowers was
soliciting for a fund for someone who had passed away. McBride stated that a writ-
ten "notice" was put into the file concerning this.
I credit Bowers' and McBride's testimony that no words were exchanged between
them when Bowers handed the antiunion petition to McBride. No words were neces-
sary, as I find that McBride, Byrd, and Horton were well aware of Bowers' activity
and approved it. If this were not the case, credulity would indeed be stretched by
the testimony that McBride and Bowers did not have a conversation under the
circumstances. Such a situation not only is counter to any probability but implies
mental telepathy of a high order. Bowers' general demeanor created a poor impres-
sion. Where his testimony is in conflict with that of the General Counsel's witnesses,
I discredit it. As Bowers testified that he secured 85-90 signatures within a space
of 10 days to 2 weeks and had talked to other employees who did not sign in that
time, I find incredible his testimony that he engaged in no solicitation during work-
time and in working areas. I deduce from the evidence that Bowers spent consid-
erable time in the washroom and in the parking lot during his working hours and
delayed others from going to work on time, as in the case of Norton, with the
knowledge and condonation of Horton, Byrd, and McBride. I find Bowers was given
favored treatment because his conduct of soliciting against the Union was approved
by the Respondent. Accordingly, I find that the rule against solicitation against or
for the Union was enforced on a discriminatory basis. Enforced against Younger
and Jolly because they solicited for the Union.23
E. Interference, restraint, and coercion
The General Counsel's complaint alleges that the Respondent independently vio-
lated Section 8(a)(1) by Horton's interrogation of employees in November 1965.
Jolly testified, and as I have indicated above I fully credit Jolly's testimony, that
after he returned from the hospital Horton approached him at his machine about
November 8, 1965, and inquired if he had heard anything about the Union, Jolly
replied that he had heard some rumors about it. Horton then said that there was
some pretty strong talk about it and stated that "we don't need a Union and that
the Union was no good." Philip Newcomb credibly testified that, sometime in
November, Horton approached him at his work station and asked him what he
thought about the union activity that was going on. Newcomb replied that he did
not think too much about it. Horton then said that in his opinion the Union was
"run by a bunch of crooks and was no good." I discredit Horton's flat statement
that he had never spoken to any employees about the Union. As a witness, Horton
impressed me unfavorably. In addition Bowers, a witness for the Respondent and
a leader of the antiunion campaign, testified that he gave Horton one of the slips
that he had prepared for the withdrawal of union authorization cards. Clearly,
this warrants an inference that Horton had discussed such a withdrawal with an
employee for whom he was procuring the withdrawal. At any rate, I have fully
23 McBride attempted to disassociate the Respondent from sponsorship or participation
in the solicitation of donors for the blood bank. I do not credit this testimony but rather
look upon it as an attempt by McBride to demonstrate that the Respondent was extremely
rigid in its application of the rules against solicitation . I believe a candid admission that
such a worthy cause, as the blood bank, did have company sponsorship, Would have been
in line with the actual facts. Certainly exemption of blood solicitation from a general rule
against solicitation could not be criticized.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited Jolly's and Newcomb's versions of their respective conversations with Hor-
ton and find that each of these incidents constituted independent violations of Sec-
tion 8(a)(1) of the Act.24
Jolly credibly testified that Foreman James Hayes spoke to him at his machine
on November 16, 1965. Jolly informed Hayes that he had not signed Bowers' anti-
union petition and that he was not going to sign it. Hayes replied that he was not
supposed to tell Jolly whether to sign it or not but if he did not sign it, "they are
going to wonder why." I find this statment by Hayes violative of Section 8(a)(1),
as it conveys a threat of retaliation against Jolly unless he signed the antiunion
petition. Although this incident was not alleged as a violation, I consider the matter
to have been fully litigated. I do not credit Hayes' denial.25
Jolly credibly testified that about November 20, 1965, Mansel Robbins, an admit-
ted supervisor of the Act, discussed the antiunion petition with Jolly and told Jolly
that he should "let them know" how he felt about the Union. When Jolly replied
that he would not do it (sign the antiunion petition), Robbins replied "I am doing
it as a friend, to let them know how you stand." I find this "advice" by Robbins to
be violative of Section 8(a) (1) of the Act not only because Robbins' statements
contain a threat of retaliation if Jolly did not sign the antiunion petition, but also
that the incident constitutes unlawful interference with Jolly's right to a free choice
on the question of union adherence and sympathy. I do not credit Robbins' denial
of this conversation. In addition to my extending full credit to Jolly regarding this
conversation, I discredit Robbins, because he showed a willingness to testify to mat-
ters which were contrary to the facts. In Robbins' direct testimony, he denied that
he had knowledge of the circulation of the antiunion petition, but on cross-exam-
ination admitted that on March 9, 1966, he had given a statement to a Board agent
in which he had said that sometime in November 1965, he had learned that Bowers
was circulating such a statement. When confronted with this statement, Robbins
admitted that he had heard "rumors" to that effect.26
The above incidents constitute additional evidence that the Respondent knew, and
approved the circulation of the antiunion petition and also assisted in the procuring
of signatures. I, therefore, find that the Respondent independently violated Section
8(a)(1) by its condonation and approval of the circulation of the antiunion
petition.
As there was no evidence adduced concerning the allegations contained in Para-
graph 8 of the complaint, I shall dismiss that portion of the complaint.
F. The no-solicitation rule and concluding findings
The Respondent concedes that its broad no-solicitation rule in effect prior to
January 1965 and printed in its Employees Information Guide was unlawful, and,
that as a result of its counsel's opinion to that effect, it promulgated a new rule
on January 20, 1965. This rule was announced to the employees prior to the inau-
guration of the union campaign and was presumably a valid rule, adopted for
legitimate purposes. However, I find, as I have stated above, that this rule as well
as the previous rule was very loosely enforced and apparently more honored in the
breach. Not only have the General Counsel's witnesses testified to numerous inci-
dents of solicitation but several of the Respondent's witnesses have corroborated
this testimony. Solicitation for Horton's wedding present, Griffin's solicitation, the
raffle conducted by Jordan, McGaughey's solicitation and Bowers' solicitation are
all admitted by the Respondent's witnesses. In many instances they have affirmed
24Mallory Plastics Company, a division of P. R Mallory & Co., Inc, 149 NLRB 1649.
I am well aware that the Seventh Circuit Court refused enforcement in the Mallory case.
However, not only am I bound by the Board's decision therein, but, it is my opinion that
a supervisor who expresses derogatory opinions concerning a union or union organization
while questioning an employee concerning his knowledge of union activity, is unmis-
takably coercing the employee into a renunciation of the Union and his union activity, and
is thereby, restraining or tending to restrain the employee from adherence to the Union
or participation in union activity.
251 stated on the record that I would not give much weight to evidence adduced by
Respondent's counsel where, as here, he asked Hayes If Jolly's testimony as quoted by him
was true. However, my chief reason for discrediting Hayes' testimony is the full credit I
have extended to Jolly.
2OThis incident was not specifically alleged as a violation in the complaint but I con-
sider the issue to have been fully litigated.
TYRONE HYDRAULICS, INC. 1489
the General Counsel's evidence that solicitation was conducted during working
time in working areas. I do not credit Respondent 's witnesses where their testimony
is in conflict with the finding herein that solicitation for various causes was custom-
arily conducted on working time in working areas 27 as well as at other times.
Whether the rule announced by Pierce in his speech of November 23, 1965, and
that posted on December 6, 1965, constitutes a new rule or merely emphasis of
the rules in effect seems immaterial.
I am of the opinion that with the institution of the Union 's organizational cam-
paign, the Respondent undertook a countercampaign to discourage union adher-
ence. Tolerance , approval, and assistance by supervisors in the circulation of the
antiunion petition was one manifestation. The rule as posted and announced by
Pierce was another. At the very least the announcement and subsequent publication
of the Pierce rule constituted undue emphasis on only one facet of solicitation-that
concerning union activity . Solicitation for other causes was not even mentioned by
Pierce and but casually mentioned in the posted notice. From this and the other
factors discussed in this decision, I conclude that the rule posted on January 20,
1965, was superseded by the Pierce speech on November 23, 1965, and the posting
of December 6, 1965. In effect the rule thus promulgated was a new rule concerned
only with union solicitation and designed to frustrate the Union' s organizational
campaign. Even if these announcements be viewed as mere emphasis, the concen-
tration on one form of solicitation, together with the other factors discussed herein,
renders the rule invalid and violative of Section 8 (a)( I) of the Act.28
I have found above that whatever rule was in effect after November 23, 1965,
was applied discriminatorily and unfairly.29 Thus, in evaluating the various factors,
including the prevalent solicitation for other causes and the solicitation in behalf of
the antiunion petition, I conclude that the rule was not only invalid but pro-
mulgated for an invalid purpose and applied in a discriminatory manner, all of
which are in violation of Section 8(a)(1) of the Act.30 It follows, therefore, that
the discharges of Jolly and Younger, under these circumstances, were in violation
of Section 8(a)(3) of the Act and designed to discourage employees from union
adherence in violation of Section 8(a)(1). I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent promulgated and enforced an invalid
no-solicitation rule and that it was applied on a discriminatory basis and for the
purpose of impeding and defeating the union organization , I will recommend that
the Respondent be ordered to cease and desist from maintaining such a rule and
that it post appropriate notices to inform its employees . Having also found that the
Respondent violated Section 8(a)(3) and 8 (a)(1) of the Act by the discharge of
Herbert Jolly on February 10, 1966, and George Younger on February 11, 1966,
I will recommend that the Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of earn-
ings they may have suffered as a result of the discrimination practiced against them,
by payment to each a sum of money equal to that which each normally would
1 At the time Respondent 's witnesses testified it was well known in the plant that
Jolly and Younger had been discharged for allegedly violating the rule against solicita-
tion. I am convinced that the employees who testified , with few exceptions , were fearful
of admitting that solicitation for any cause occurred during working time in a work area.
28Cf. Rowe Industries, Inc., 152 NLRB 70, 74; Ward Manufacturing Inc., 152 NLRB
1270, 1271.
29 In this respect, it is quite significant that Williams testified that he gave Jolly a written
reprimand only after he was informed that Jolly was soliciting In behalf of the Union
so The W. H. Block Company, 150 NLRB 341, 342, 343 ; Lou De Young's Market Basket,
Inc., 159 NLRB 854.
264-188-67-vol. 161-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have earned as wages from the date of their discharge to the date of Respondent's
offer of reinstatement , less the net earnings of each during said period , with back-
pay and interest thereon to be computed in the manner proscribed by the Board
in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716. Having further found that the Respondent has engaged in other
conduct in violation of Section 8(a)(1) of the Act I will recommend that the
Respondent cease and desist therefrom and post appropriate notice to its employ-
ees to that effect.
Because of the character and scope of the unfair labor practices found to have
been engaged in by the Respondent , I will recommend that it cease and desist from
in any other manner interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organiza-
tion, all within the meaning of the Act.
2. By promulgating and enforcing an invalid no-solicitation rule; by discrimina-
torily enforcing its no-solicitation rule and by promulgating it for the purpose of
interfering and impeding the self-organization attempt of its employees; by coer-
cively interrogating employees concerning union activity and by each of the above
the Respondent interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
3. By discharging Herbert Jolly and George Younger, as found above, Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(3) and 8(a)(1) of the Act.
4. All of the allegations of the complaint as to which findings of violation have
not been made are hereby dismissed.
In light of the preceding conclusions, the Respondent's motion to enter an order
of dismissal is without merit and is hereby denied.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record in this pro-
ceeding, and pursuant to Section 10(c) of the Act, I recommend that the Respond-
ent Tyrone Hydraulics Inc., Corinth, Mississippi, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, or enforcing any rule prohibiting employees
from solicitation on behalf of a union, where the purpose of such rule is to stifle
self-organization of its employees; and from unlawfully and discriminatorily apply-
ing any no-solicitation rule to employees engaged in solicitation in behalf of a
union ; or in any manner interfering with , restraining , or coercing employees in
the exercise of their right to self-organization, to bargain collectively through rep-
resentatives of their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
(b) Interrogating employees with respect to union activity.
(c) Discouraging membership in or activity on behalf of United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organiza-
tion by discriminatorily discharging or in any other manner discriminating in regard
to hire, tenure, or condition of employment.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer to reinstate Herbert Jolly and George Younger to their former or sub-
stantially equivalent positions without prejudice to their seniority or other rights
and privileges, and make them whole in the manner described in the portion of
this Decision entitled "The Remedy" for any loss of earnings suffered by reason
of the discrimination practiced against them.
(b) Notify Herbert Jolly and George Younger if they are serving in the Armed
Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Military Training and Service
Act, as amended, after discharge from the Armed Forces.
TYRONE HYDRAULICS, INC. 1491
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports , and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(d) Post at its premises at Corinth , Mississippi , copies of the attached notice
marked "Appendix." 31 Copies of such notice , to be furnished by the Regional
Director for Region 26, after being duly signed by an authorized representative of
Respondent , shall be posted immediately upon receipt thereof , and be maintained
by it for a period of 60 consecutive days thereafter, 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 26, in writing , within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to
comply herewith 32
31 In the event that this Recommended Order is adopted by the Board, the words "Decision
and Order" shall be substituted for "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by a decree of a United States
Court of Appeals the words "a Decree of the United States Court of Appeals Enforcing an
Order" shall be substituted for the words "a Decision and Order "
39 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read • "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, or any other union by discharging
or otherwise discriminating against any of our employees because of their
union activities.
WE WILL NOT promulgate, maintain, or enforce any rule prohibiting our
employees from soliciting in behalf of United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, or any other union in order to stifle,
defeat, or interfere with union organizational efforts among our employees.
WE WILL NOT condone, approve, or assist in the circulation of any antiunion
petition among our employees.
WE WILL NOT interrogate our employees concerning union activities in a
manner which requires disclosure of their prounion sympathies or lack thereof.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to join or not to join unions and to
engage in union or concerted activities.
WE WILL offer to Herbert Jolly and George Younger immediate and full
reinstatement with backpay.
WE WILL notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal
Military Training and Service Act, of amended, after discharge from the
Armed Forces.
TYRONE HYDRAULICS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board' s Regional Office, 746
Federal Office Building , 167 North Main Street , Memphis , Tennessee 38103, Tele-
phone 534-3161.