Petition for Writ of Certiorari — Murphy v. United States Court of Appeals for the Ninth Circuit

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SRARY: - | G...ce-vupreme Court, US.

: rILED .

JOHN F. DAVIS, CLERK -

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Yn The: 7

Sapreme Cout of the United States oe

October Term, 1968. ee aa

‘

_ MONROE AUTO EQUIPMENT CO., Petitioner

a) Wot \

° NATIONAL LABOR RELATIONS BOARD

"PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

—THE-FIFTH CIRCUIT

| Nain, HARDING, LEONARD & TATE -

: 300 NSEA Bldg.

, 14th & J Streets

P.O. Box 2028 .

° Lincoln, Nebraska 68501

‘Attorneys for Petitioner Sey itil ese

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INDEX nar Oe

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il hx ee } ead Hey Bo Page .

_ Opinions Below - 7 TOLL GOT ART

' . Jurisdiction = 2 I / 1

Questions Presated”: : ra Smee Wail ots

_- Statutes Involved -__.:.. enema ADS %

Statement of the Case - :

_ Reasdns for Granting the Writ 6

Conclusion 14

Appendix A (Court of Appeais’: Opinion) . | 15

Appendix B (Board’s Decision) : 17

Appendix 2 (Court, of Appesls Decree) -... Leeper de

ZN | CITATIONS =

~ CASES:

Administrative Decision of N. ¥. R.B. General Coun- -

“gel, Case No. F-21 (1957) 22. 11

: ere Ship Bldg. Co. v. N-L-R.B., 380 U.S. 300

(1965

> Dallas Packie Co:, 116 N.L.R.B.- 1609 (1956) neice 1

. Dierks Foreéts Inc. v. N.L.R.B., 385 F. 2d 48 (8th.

eer ee ets” Sends ee 13

Howard Eat Inc., 119. N.L:RB. 1531 (1958) nis 9

Int. Tel. & Tel. v. N.L.R.B., 382 F. 2d 366 (3rd Cir.:

MY: tie toe etl tess on Aol 28, ae 13 ;

Jat Transportation Corp., “131 NLREB. 122 (1961)

N.L.R.B. v. Bonnie Enterprises, ite. -341 F..2d 712

(4th? Cir, 1965) — 12 /

N.L.R.B. v. Elco Corp., 378 F. ‘Oa 62. (th Cir. 1967). 13

N.L.R.B. v. Great Dane Trailers, 388 U. S. 26

(1967) | iA 4

N.L.B.B. v. Montgomery Ward & Co., 157 F. 2d 486

(8th Cir. 1946) - ise, ae ®

N.L.R.B. v. “Plymouth Cordage Co., 381 F. 4

(5th_Cir.. 1967) . -

N.L.R.B. v. Suniland Furniture Co., 387 F. 24. 123 |

(5th Cir. 1967) - o,f

N.L.R.B. v.: Witbeck, 382 F. 2d 574 (6th Cir. 1967) -..

Pete Laboratories, Inc., 141 ik ers) B. 1290 Senge Hi

Sino Ae. So eee ee eee

< — ae

ae 2 “ih.

“” ; ‘ ge

Lal aC: iin

Shoreline Enterprises of ileadion Vv. ‘N. Um R. B., _

F. 2d 933° (5th Cir. 1959) 10

| Textile Workers Union of. America v. Darlington |

- . Section .7

Mfg. Co.,-380 U. S. 263 (1965)

> Zz,

- Universal Camera Corp: v. N.L.R.B., 340 U. S.. 474 3

- ip €8L) 2, 6, 7, 13

U, S. Gypsum Co., 86 NLRB. 1205 (1948)... ert :

wires sschaoas Co., 107 N.L.R.B. No. 110 (1958). ae) 10

STATUTE:

‘National Labor Retations Act dp amanded (ety Stat. aes 8

136,73 Stat. 519, 29 U.S.C. 151, et shaadi

Section | eee 4

Section 2(6) _.. aD headcen

. Section 2(7) aca | 4

| ‘

, 3

Section 8(a)(3)_

oe 10(e) _..

Section 8(a)(1) : bi

in 2, 4, 6, 7, 8 12.

ARTICLE:

Petro, Congressional v. er *Board Policies, The

Freeman, ™ 18, No. 7 (July 1968) 13

pe ee

NLRB. FORM:.

N.LR:B. Official Fone; Form NLRB: 722, 2 80).

“Instructions to Election Observers”

In The

Sopreme Court of the United Sate

rnc: Term, 1968 _

MONROE AUTO EQUIPMENT CO., Petitioner |

_ NATIONAL LABOR RELATIONS BOARD

PETITION FOR A WRIT OF CERTIORARI TO THE —

UNITED STATES COURT OF APPEALS FOR

“Monroe Auto Equipment Company, prays that a writ

of certiorari issue to review the final judgment of the

‘United States Court of Appeals for the Fifth Circuit -

entered in the above entitled case on April-29, 1968.

oo OPINIONS BELOW Sst |

The opinion of the Court of Appeals (App. A, infra,

pp. 15-16) is reported at 392°F.2d 559. The findings of

_ fact, conclusions of law, and: order of the National

Labor Relations Board (App. B, infra, PP. ‘17-55) are re-

: ported at 159.N.L.R.B. 613. '

JURISDICTION :

The judgment of the United. States Court of haben

was entered on — 29, 1968. (App. ; A, infra Pp. 15-16).

By order dated J ~ 22, 1968, Mr. J ileal White ex-

tended the time for filing a petition for writ: of cer-

tiorari to, and including, August 21, 1968. The juris-

_ diction of the court is invoked under 28 U.S.C., Section _

.1254(1), and Section 10(e) -of the National Lahore.

lations Act, as amended, 61 Stat.. 136, 73 Statt 519, 29 —

U, S. C..§ Fem e).

QUESTIONS PRESENTED

The question involved in. this case is whether the

‘substantial evidence rule as interpreted by the case of.

Universal Camera Corp. ’v. N.L.R.B., 340 U. S./ 474:

(1951) has been misinterpreted ‘by | ‘the United States

Court of Appeals for the Fifth Circuit. Is there to be

-drawn..a’ distinction in the application of the substan-

tial evidence rule between issues dekirmined by con- |

flicting evidence. drawn. from the record as a whole |

and issues determined by unreasonable © inferences =

drawn from uncontroverted evidence? Involved herein

is the question of whether the status of union observer-

“ship isto be considered. presumptive of improper em- .

‘ployer motivation for the purpose of finding a | violation

of Section Bear?) of the Act. |

STATUTES INVOLVED

Section 8(a)(3) and (1) of the National Labor. a .

lations Act, as amended, 29 U.S.C. t58(a)(8) and (1),.

provide in pertinent part as follows: :

Sec. -8(a). It shall. be | an unfair labor practice

for an. employer— :

(i) s To interfere with, restrain, or coerce em- |

ployees in exercise of, the Tights = in See.

tion 7; o,

TEES) Dy aisertitdination’ in regard to hire or ten-

ure’ of employment or any- term. or. condition _ See

: eo ° : yes .

: . : . > ' : | wf ; : :

a -dinjloymens to. encoutage or discourage member-

ship in any labor organization; 1 wit@l

: Being relevant to Séction a(a)(1), Section 7 of. the Act

Téads:. : : t | \

‘See. 4: Trtployees shall have the Tight to self |

_ organization, to form, join or assist labor organiza-

tions, to bargain collectively. through representa-

_ tives of their.own choosing, and to engage in other

’ concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and :

_ shall also have the right to refrain from any ‘or

2 alll such activities.

Section. 10(e) of the Act, 29 USC. 160(e),

in pertinent part as follows:

(e) The Board shalt have power to pitition

- any,-court of. appeals of the United States, ...

‘wherein the) unfair labor practice in question oc-

3 curred or eréin such person’ resides or tirans-

: acts business, for the enforcement of such order.’

“e The.findings of the Board with respect to.

“questions of fact if supported by substantial evi-

dence on the record considered as ‘a whole shall .

be iereebin Wise |

" STATEMENT OF: THE CASE

The. petitioner, Monroe Auto Equipment Company,

(hereinafter referred to. as the Company) is a Michi-

_. gan corporation with an office and ‘plant located in

’ . Hartwell, Georgia and is engaged in the manufacture, . -

sale, and distribution of automotive shock . absorbers |

and related products: During the year preceding the is- -

’ guance of the complaint, the Company sold and shipped -

- _ products; valued in excess of $50,000 from its plant in -

Hartwell, Georgia, directly to customers outside the

State of sieorgia (Tr. sis ie he

a The Company admits that it has beeg, and is, en-

gaged in interstate commerce within the meaning of

Section 2(6) and @) of the Act (Tr. 306).

The Company din admits, that the Union, U.A.W., is —

a labor organization within the meaning of Section 2(5)

of the Act (Tr. 307). |

The: Board found, adopting the recommendations of °

the Trial Examiner, that the ‘Company had discrimi-

natorily transferred one Hoke Smith tp less. desirable

employment ‘and thereafter constructively discharged *

_ said employee. The Board also found that the Company

had discriminatorily suspended one Charles Cleveland. ©

The Company was found in viplation of Section 8(a)(3)

and (1) of the Act regarding both employees.

Hoke Smith had been an ‘employee of ‘the Company

' for four years prior to his alleged discharge. - - His work

history, by his own testimony, was one of many changes ‘

with little’ or no notice. From May, 1960 to July-Au- :

gust, 1964 Hoke Smith held. the following jobs with the

; Company: :

Bushing Machine—short time—two weeks

Tallow. tank—about two years

Henry and Wright operator (overnight notice) .

Pulling shocks—off line (1960) é ) e

, Night watchman—3 month$ March 1963__—’ .

> Seppigntening up pallets and pre up leaky

“Henry and Wright (2days) - “ |

‘Oct. 63 to May-June 1964, eight anita: pulling

shocks on “off line.”

_- Henry and ‘Wright operator

a es Line” operator, putting mais and yey on

* June 27, 1964 put on pulling shocks on the main :

_ line (Tr. —— )

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Smith worked on the “A line” for approximately ‘eight

_, days, through. Friday, July 24, 1964 (Tr. 328, 105).

This job consisted of putting springs, washers, and nuts

on shock absorbers (Tr. 328). On Monday, July 27,

1964 the Company transferred Smith to the job of “pull- -

ing shocks” on the “main line” (Tr. 328), a job he had

held. before. The election had been held July 23 and

24, 1964, and Hoke Smith, along with Charles Cleve-

land, had served as union observers. Smith had sup-

‘ported the union and solicited other employees (#r.

90-91), -but there is absolutely no evidence that the

_ Company knew or should have known about Smith’s

union sympathies other than.the fact that he was a

union observer. This applies to Cleveland as well. _

On July 31 Smith became ill'and was sent home (Tr.

- 332, 93-94). He finally reported back for work on Au-

gust 24, 1964. At that time Smith was put back on the

main line pulling shocks. Smith objected, saying he —

needed more help and said that he wasn’t going back

to work for that reason (Tr. 332-333, 95-96).. The fore-

man replied that’ if he: couldn’t pull them he wasn't.

needed, (Tr.°333, 96). Smith said, you don’t need nie,

and was subsequently | discharged for failure to work,

or insubordination.

Cleve had been an employee of the Company f

‘seven y as a paint operator (Tr. 337, 22). He was

given.a seven day suspension because he failed to clean

up the ‘area around his paint machine as instructed

(Tr. 338, 258-259, 257). Cleveland had swept up a

pile of trash but when the shift ended he left it in the

Pape cleats Ao 339, 29-30, 45).

; &s with Hoke Smith, Cleveland was a union observer

at the election (Tr. 338, 34, 25). It was said that he -

had-solicited employees but there is absolutely no evi-

r , : 6—

« dence to show that the Chatiiane had any lesa of.

these solicitations or should;have known.since some six

- to seven hundred emp ere involved.

. The’ Board found that because the ‘ue aaglever |o«

_acted as election observers the Company was in viola-

tion of Section 8(a)(3) and (1) of the Act, when it

discriminatorily transferred Hoke Smith on July 27,

1964 to the job of pulling shecks and constructively ~

. discharged him on August 24, 1964, by instructing him

to leave if he could not jperform the work; and discrim-

inatorily suspended Charles Cleveland for one week on

August 11, 1964, on the basis that he had failed to

clean his work area.’

The United States Court of Appeals: for the Fifth

Circuit enforced the Board’s order. ”

REASONS FOR GRANTING THE WRIT

I. The Substantial Evidence Rule As Interpreted By

the Case of Universal Camera Corp. v. N.L.R.B. Has

Been Misinterpreted By The United States Court of

Appeals for the Fifth Circuit So As to Invoke. the

Power of Supervision of The Sdpreme, Court of The

United States. .

Seventeen years ago the case- of Universal Casiere

Corp. v. N.L.R.B:, 340 U. S. 474 (1951), set out the

criteria and elements for judicial review of an order

of the National Labor Relations Board. The court be-

low relied on that decision when it said:

. but we are not at liberty to displace the Board’s

choice if it is between two fairly conflicting views,

even though we would justifiably have made a dif-

ferent choice had the matter been before us de

novo. 392 F.2d at 560. ~

’ gli’

In the instant case a question of conflicting views is-

not presented. This is a case where the Board has

drawn unreasonable inferences. from uncontroverted

evidence. This fact raises an important eee n

See N.L.R.B. v. Sunildnd Furniture Co., 387 123

_(5th Cir. 1967). Ours is not a case of record conflicts, )

- but a case where the record merely is void‘@f an essen-

‘tial element of an 8(a)(3) violatio& The Fifth Circuit

certainly had a duty, pursuant to’ Universal Camera,

to scour the record as a whole to determine whether

or not there was substantial evidence to support an 8(a)

(3) violation. Had it done so, it would have’ found

that Hoke Smith was transferred to another position

three days after the election and thereafter discharged

because he refused to do his assigned work, that Charles

Cleveland was suspended for seven days. because he

failed to clean up his work area, and that Hoke Smith |

and Charles Cleveland were union observers at the rec-_

ognition election conducted prior to the alleged dis-

_ crimination. But this does not establish an 8(a)(3)

violation. oe question of whether an employer has

violated Section 8(a)(3) of the Act normally turns on

an employer’s motivation... Absent conduct which is

inherently destructive of employee rights, proof of anti-

union motivation is needed to establish a violation if

the employer has come forward with evidence of légiti- . °

mate and substantial business justification for its ac-

tion. This statement of the law has been well estab-

lished by this court in Textile Workers Union‘of Ameri-

ca v. Darlington Mfg. Co., 380 U.S. 263 (1965); Ameri-

can Ship Bldg. Co. v. N.L:R.B., 380 U. S, 300 (1965), and

N.LR.B. v. Great Dane Trailers, 388 U. S. 26 (1967).

Obviously, to establish an improper employet motiva-

tion the discriminatees: must be engaged in some. type

of union activity to such an extent ‘so as to.give-rise to -

an inference that such was the real reason for the dis-

crimination In this case the Board concluded:

-* The job of pulling shocks was eonsiderably more

vigorous than the job from which Hoke Smith was .

transferred, particularly in view of his age.- The

transfer occurred almost immediately after Smith

served as observer for the .union at the election.

Respondent contends that it had no knowledge of

' $mith’s union activities. It is the conclusion of .

the Trial Examiner that the Respondent must ,rea-

sonably have inferred or suspected that Smith was

_ active on behalf of the union, or a strong adherent

thereof, €fom the fact that he was selected by the ©

oe union as one of its observers. (Tr. 334). -

Being repetitious, the Petitioner urges that a distinction

be drawn between conflicting evidence which brings

into application the substantial evidence rule, and .

drawing unreasonable ‘inferences from the record as a

whole when there is lacking an essential element of .an

‘B(a)(3) violation. There is no contradiction in this

_ case. The only évidence of union activity submitted to

| support an 8(a)(3) violation was the fact that the two

_employees-were ‘union observers at a recognition elec-

tion conducted by the NLRB (Tr. 334, 338).’ -Peti-

tioner admits that the alleged discrimination took place ~

~ shortly after the recognition election at which they

served, and submits that there was substantial busi-

' ness justification for the employer’s conduct. However,

union activity alone, prior td discharge, is not sufficient

,t9 support a finding of discrimination where. the dis-

“charge is punistonent for insubordination. N.L.R.B. y.

+ 1 There is evidence in the record showing that the employees, Smith

and Cleveland, had solicited other employees for Union member-

ship (Tr. 90-91, 75), but there is ebsolutely no evidence to prove

that the employer knew or should have known anything about this *

other union activity. It is a well established rule that in the ab- ©

sence of knowledge of union activity discharge of employees is not

unlawful. N.L.R.B. v. Holcombe Armature, 325 F.2d 508 (5th Cir.

1963); West Point Mfg. Co., Wellington Mill Division v. N.L.R.B.,

9 30 F.2d 579 (4th Cir. 1964), cert. den. 379 U.S. 232 (1964) ; pemees

fg: Co. v. N.L.R.B., 297 F.2d 864 (Sth Cir. 1962). /

¢ ,

os ‘ | 0p |

Montgomery Ward & Co., 157 F.2d 486 (8th Cir. 1946);

Howard Aero, Inc., 119 NLRB. 1531 (1958). How-

- ever, the inference has been drawn from the evidence .

that these employees were discharged because of their

union adherence. --The Board has failed to sustain its |

burden of proof that the cause of ‘the discharge was.

their union activity. The only evidence on the record,

which is uncontroverted, is that these. two employees

were union observers and that the employer’s conduct .

occurred soon after the election. The inference drawn‘

by the Board is unreasonable, and an essential element

of an 8(a)(3) violation -is lacking. The inference

drawn by the Board also presents the issue, does union

observership at an election constitute union activity

within the purport of Section 8(a)(3)? oe

Generally, _the job of observer is to act as checker

atthe voting place and in the counting of ballots.

Observers “assist in the identification of voters, chal- “““»

lenge voters, and basically assist the Board agent.

Their presence at an election is a privilége, not a right.

' Jat Transportation Corp., 131 N.L:R.B. 122 (1961).

The N.L.R.B. Official Form, Form N.L.R.B. 722 (2-59)

“Instructions ‘to Election Observers,” sets out an ob-

server ’s duties, whe’ to do and what not to do, and

negatives any assumption that a union obsérver must

be union oriented or prejudiced in favor of the union.

For example, Instruction 10 of “Things To Do” states,

“Wear your observer badge at all times.during the con-

duct of the election.” And pursuant to oe Not

To Do”: | )

1. - Give any help to any voter. Only ‘an agent of

the Board can assist the voter. — .

2. Electioneer any place tite the hours of the

election.

‘

“

EA ein: i .*¢

sc ‘Wear any indication: of the organization which

you represent i il the observer badge: Pro- :

vided by the Board. .

‘Finally, the instruction form states:

As an official representative of your ccapainalien,

you should enter upon this task with a fair and

‘open mind. Conduct yourself so that no one can

ind fault with your actions during the election.

You are-here to seé that the election is conducted .

tin a fair and impartial mannet, so that each eligi-

_ ble voter has a fair and equal ‘chance’ to express

, himself freely.and i in secret. sent

| “The entire tone of these “Instructions” is is impartiality

and fairness. .This is hardly the type of union activity

—, would lead to digcriminatory marewnae

There is to be no union label stuck on an observer.

It would be contradictory to the concept that recogni-

tion elections are to be conducted under “laboratory

conditions” to so hold. Furthermore, supervisors

are not allowed to be observers for the company, and so

called company observers may. not be. closely identi- |

fied with the employer. . ‘Watkins Brick Co., 107

N.L.R.B. No. 110 (1953). Obviously, this is. PE to

prevent any coercive atmosphere at the election. Yet,

‘it has been held that the presence of a union official

as an observer does not warrant setting aside an elec-

‘tion where his conduct is exemplary. Shoreline Enter-

prises. of America v. N.L.R.B., 262 F.2d 933 (5th Cir. |

1959); US. Gypsum Co., 80 N.L.R.B. 1205 (1948);

Dallas Packing Co., 116 N. L.R.B.°1609 (1956). Thus,

there is a coercive inference drawn with employer ob-

‘servers: since supervisors aren’t allowed to be observ-. .

ers, yet the same is not true of a union observer since

‘wnion officials are allowed té be observers. Again,

it is clear that a union observer simply does not carry

_ the stigma of union activity.

Other cases dealing with the dindinege ob: taped rep-—

resentatives prove. helpful to our case. The N.L.R.B.

has held that when a shop steward was discharged the

~ fact that he was a shop steward did not in and of itself:

sustain the union’s and Board’s position that he was

. fired for union activity rather than for insubordination. _

.- Pathe Laboratories, Inc., 141. N.L.R.B. 1290 (1963);

Administrative Decision of N.L.R.B. General Counsel,

Case No. F-21 (1957). The analogy between shop

steward and union observer is helpful because that sta- -:

- tus alone was not enough to presume discharge due to

union activity. In the instant case the N.L.R.B.. and

the court below have presumed union activity from the -

‘observership status. To illustrate, the Trial Examiner

concluded and the Board agreed that “the Respond- _

ent must have reasonably inferred or /suspected that

Smith was active on ‘behalf of the union as-one of its

observers.” (Tr. 334). From reading the brief of the

* N.LRB.B.,. the Trial Examiner’s recommendations, and

the Board’s Order, it is apparent that the issue litigated .

was whether or not the transfer of Hoke Smith in-—

volved a transfer to more arduous work. Evidence

of union’ activity as the employer’s motivation for dis-

crimination is non-existent. Obviously, it was presumed

that if Smith was given more:arduous. work then cer-

tainly he was discriminatorily transferred because he

had been a union observer. The Petitioner asserts that.

observership status alone cannot carry the stigma of

union activity sufficient to uphold an 8(a)(3) violation. —

Thus without a presumption of union activity the case . -

laeks an essential element of an 8(a)(3) violation.- The .

.- distinction, between a—case involving confli¢ting evi- —

“dence as to an employee’s union activity and a case

involving uncontradicted evidence of .an employee’s _

union activity from which upreasonable inferences

are drawn, becomes extremely relevant.

aes

“-

—i—

_ A recent case. demonstrates the. workability of the

distinction. urged herein. In N.L.R.B. v. Suniland

‘Furniture Co.,. supra, the. Fifth Circuit held that the

N.L.R.B. erred in finding ‘an 8(a)(3) violation. In

Suniland, the discharged employee, Moore, actively

Solicited. support for the union. Moore’s yeaction toa .

strongly anti-union employee was that “he would have

to follow suit” if the union won the election. There-

after, Moore was fired. The Board interpreted” Moore’s

Statement to mean that if the union won the election

_' it would be: the bargaining agent for all employees.

- The Fifth Circuit disagreed stating that the question

was not the usual one of whether or not the Board’s

. conclusions. based on disputed facts eve supported by

substantial evidence, but whether “the inferences drawn

by the Board from the uncontroverted facts in this case

: are reasonable ones.” The court then went on to

draw its own inferences from the undisputed facts and

fourid that in a right-to-work state Moore’s statements

were illegal and sis Gee ane; not “non-threaten-

ing”: as the Board found. ia 3

The tact that the Fifth Circuit decided ° Sentiend « as

well as the instant case raises an interesting point. It

becomes obvious that the Circuits must be made aware

of the distinction urged today. and enunciated in Suni-.

land. Its application is obviously non-existenf or Spo- -

_. | -gadic simply because the Circuits feel: bound’ by the

Board’s conclusions. ‘The considerable’ discretion with

which the Board has been entrusted is well recognized, .

but it is proper to observe that with discretion goes re-

sf sponsibility. N.L.R.B. v. Bonnie Enterprises, Inc., 341

F.2d 712, 714 (4th Cir. 1965). Thus the rule must.be

made clear by this Court- which is: way we ‘urge this

Court to order. certiorari.

. : : : \ :

' This distinction is vitally important telabor’ law :to-

‘day... The number of unfair labor charges that come to

the Courts of Appeal for enforcement, each year, and

involve an application of Universal Camera, is stag-

gering. The trend of Board decisions has been mark-—

edly pro-union, and, as noted by the Eighth. Circuit:

We have the impression that the Board of Jate hes

tended to overstretch on this type of issue

- that, in the light of Universol Camera, foundation

290. much greater substance is required than the iso-

lated statement presented here. Dierks Forests, |

. Inc. v. N.L.R.B., 385 F.2d 48, 52 (8th Cir. 1967).

The Board’s practice of late has been increasingly dis- _

turbing. The federal circuit, courts bend over back-

: wards in an effort to respect the limits of review im-

‘posed upon them by the Act and Universal Camera.

These courts frequently enforce Board. orders when it

is clear, as in this case, that, given a freehand, they .

would vacate’ them. Petro, Congressional v. Labor

Board Policies, The Freeman, vol. 18, No. 7 (July 1968).

Year after year numerous circuit court decisions con- -

tain the Pevsner, observation in one form or qnother:

..we have no hesitancy in saying that were we |.

the fact finders we would have difficulty finding

. support for the charges of unfair labor practices.

- N.L.R.B. v: Witbeck, 382 F.2d 574 (6th Cir. 1967).

‘See also: Int. Tel. & Tel. v. N.L.R.B., 382 ‘F.2d 366

(3rd. Cir. 1967); pap glans v. Plymouth Cordage Co.,

_ 381 F.2d 710 (5th Cir. 1967); N.L.R.B. v. Elco Corp,

378 F.2d 62 (9th Cir. 1967). | :

‘Universal Camera was decided seventeen years ago.

The practice of labor law has been refined tremendously

and now needs a further refining of the guidelines to

be followed. The substantial evidence rule is vague -

and needs added interpretation to give it proper effect.

Distinctions such as urged today need hey be ae

| ple |

so that it is clear what the function of the court is —

when it is.asked to enforce an order of the Board.

- The distinction urged herein is as important as the

Court’s recent holding in Great Dane. Trailers, supra. .

That case enunciated the need for the employer to prove

substantial business justification for the alleged dis-

crimination. The rule of law to be urged in the instant.

‘case would forge the Board to produce substantial/-

evidence of union activity relating to the discharge

from which. it could be reasonably inferred that, em-

ployee discrimination occurred. The importance of ‘this

. type of guideline is clear; that is, many unfair labor

charges, filed merély to harass the employer, can be

_ summarily’ dismissed. It is essential that the Court -

adopt rules of law which lead to encouraging the dis-

covery and prosecution of valid discrimination charges

and -to discourage the wasteful litigation which re-

sults from an unfounded accusation. It is this end.

which i is p.spugii by this petition for: certiorari. ; :

CONCLUSION

. For the foregoing reasons, it is respectfully submitted

that the. petition, for a writ of certiorari should be .

granted.

ra 8 ah ve Respectfully submitted, |

; _ NELson, Harpinc, LEONARD

& TATE ae: :

300 NSEA: Bldg.

14th & J Streets.

P.O.Box-2028 — ieee.

whi * . Lincoln, Nebraska 68501 - .

@ _ Attorneys for the rite atl

CERTIFICATE

: Copies ‘mailed to Solicitor General and General Coun-

sel as per Certificate ‘of Service on. 7 er

— hee

| | United States Court of A

FOR THE FIFTH, CIR

Bsr No. 24881

e ah

NATIONAL LABOR RELATIONS BOARD, Petitioner, —

versus

MONROE AUTO EQUIPMENT COMPANY, Respondent.

Petition for Enforcement of an Order of the ‘National

P Labor Relations Board, (Georgia Case) |

x : it

at ea - April 4, 1968.)

Before BROWN, Chief J udge, and AINSWORTH and

-GODBOLD, Circuit J udges. <1

. PER CURIAM: The Board’ has: petitioned this Court,

parsuant to Section 10( e) of the National Labor Rela-

tions Act (29 U.S.C. § 151 et seq.), for enforcement of

_ Cits order wherein it found that respondent committed _

unfair. labor practices in ‘violation of Section 8(a)(3) -

and (1) of the Act at its Hartwell, Georgia, factory in -

that ‘it discriminatorily transferred to less desirable

- employment, and thereafter constructively discharged,

employee Hoke H. Smith. and - anata peer sus-

"pended employee Charles Cleveland. .

, The Board adopted the trial examiner’s findings. “The

examiner credited the testinfény of Hoke Smith as op-

_ posed to contradictory testimony:as to whether his em- _

am) ‘ployment was more- ‘arduous than previous employment

and as-to whether more difficult employment resulted

from Smith’s union activities. or his suspected union —

+ ‘

| —16— ° a

Appendix he SP cy .°

activities. The “examiner found also, after conflicting

testimony, that Cleveland's suspension was pretextual .

‘ and in reprisal for his adherence to the union. Both

Smith and Cleveland had. acted as observers for the

union at the election held by the Board in the plant. |

There is considerable testimony in this case, pro-and

con, on the issue of the alleged unfair labor: practices.

Though the Board’s evidence is not as strong as in some

cases where we have enforced its orders, we are un-

able to say that the. examiner’s findings, adopted by

the Board, are not supported by substantial. evidence.

Cf. Avondale Shipyards, Inc. v. N.L:R.B., 4 Cir., ‘1968,

....F,2d.:.. Numerous credibility, choices were

made by the examiner and we are usyally bound by .

such determinations, Nabors v N.L.R:B., 5 Cir., 1963,

323 F. 2d 686; N.L.R.B. v. Waycross Sportswear, Inc.,

5 Cir., 1968,....F. 2d... , though in a proper

case the Court may decline to follow the action ofan

examiner in crediting and discrediting testimony even

' though the Board has adopted the examiner’s find:

ings N.L.R.B. v. Elias Brothers Big Boy, Inc., 6 Cir.,

1964, 327 F. 2d 421,426. We are not barred from set-

ting aside the Board’s decision if we cannot conscien-

tiously find that the evidence supporting ¥ is -substan-

tial, but we are not at liberty to displace the .Board’s

choice if it is between two fairly conflicting views,

even though we would justifiably have made a differ-

ent choice had the matter been before us de. novo.

N.L.R.B. v. Certain-Teed Products Corp., 5 Cir., 1968,

387 F. 2d 639; N.L.R.B. v. Camco, Inc., 5 Cir., ‘1966,

369 F. 2d 125, 127. Considering the record as a whole,

we conclude there is substantial evidence to‘support the ©

Board’s findings of discrimination against Smith’ and

Cleveland in violation of Section 8(a)(3) and (1) of

the Act. See Avondale Shipyards, ae

supra.

. Lal

—~17—

| APPENDIX B

159 N.L.R.B. No. 65 m edie ta :

* D-8978

Hartwell, Ga.

UNITED STATES OF AMERICA, BEFORE THE

, | NATIONAL, L LABOR RELATIONS BOARD |

MONROE AUTO EQUIPMENT CO., AND’

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE & AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA (U.A.W.)

DECISION AND ORDER

(Nufaber Omitted )

On March 18, 1966, Trial Examiner Stanley Gilbert

issued his “decision in the above-entitled proceeding,

finding that Respondent had engaged in certain unfair -

labor practices and. recommending that it cease and —

desist therefrom and take certain affirmative action,

as set forth in the attached Trial Examiner's: Decision.

He also found that Respondent had not engaged: in

other unfair labor practices alleged in the complaint

and recommended dismissal of those allegations. There-

‘after, the General Counsel, Charging Party, and Re-

spondent filed exceptions to the Trial es Deci-

sion and supporting briefs. fr "

Pursuant to the proyisions of Section 3(b). of the Na-

tional Labor Relations Act, as amended, the National

Labor Relations Board has delegated its powers in

connection with these cases to a three-member panel.

The Board has reviewed the rulings made by the .

Trial Examiner at: the hearing and finds that no prej- —

udicial error was committed. ‘ The rulings are hereby -

affirmed. The Board has considered the Trial Exami- |

' ner’s Decision, the exceptions and briefs, and the en-

—18— ~

Appendix oo

tire record in these cases, and hereby adopts the find-

ings, conclusions, and recommendations of the Trial |

Examiner, with the modification noted below. -

‘We do not’ agree with the Trial Examiner that a

‘press release issued by Respondent shortly after the

petition was filed on July 1, 1965, and read over radio

station WKLY, contained a statement which, when read

in light of all_the surrounding circumstances, consti-

tuted a threat of economic reprisal should the. Union

become the employees’. collective-bargaining representa-

tive. On the contrary, we find that Respondent’s state-

ment was in the permissible area of. fair comment dnd

- did not violate Section 8(a) (1) of the Act. - !

- 159NLRBNo.65. a

ORDER ~

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended; the National Labor Relations

Board adopts as its Order the Recommended Order of

the Trial: Examiner, as modified below, and hereby

orders that the Respondent, Monroe Auto Equipment

Company, Hartwell, Georgia, its officers, agents, suc-

cessors, and assigns, shall take the action set forth in

the the ‘Trial Examiner's Recommended Order, as herein-

| after modified:

L Delete paragraph 1(a) of the Trial heaminer’s

Recommended Order and renumber paragraphs- 1(b)

and ¢c) as 1(a) and (b) respectively. In new para-

graph 1(b), delete the words “In any other manner”

and substitute the words, “In any like or related man-

ner .

2. The Ap ppendtx attached to the Trial Examiner's

Decision shall’ be amended by deleting therefrom the

first and second paragraphs. In addition, in the fourth

paragraph delete the words “in any other manner” and *

—— |

substitute the words “in any like or’ related manner

Dated; Washington, D.C. June 17, 1966

Frank W. McCulloch, |

Chairman

J ohn H. meng gh Member —

Howard Jenkins, oni ' ‘Member .

NATIONAL LABOR |

| RELATIONS BOARD

(SEAL) 3 ; at

| TXD 149-66

Hartwell, Ga. *

TRIAL EXAMINER'S DECISION .

(Number and Title Omitted)

Statement of the Case

On August 18, 1964, the International Union, United ,

Automobile, Aerospace & Agricultural Implement

Workers of. America (UAW) AFL-CIO, hereinafter re-

ferred to as the Union or UAW, filed a charge in Case

No. 10-CA-5835 alleging that the Monroe Auto Equip-

ment Company, hereinafter referred to as the Respond-

ent or Company, engaged in conduct violative of Sec- .

* tion 8(a)(1) and (3) of the Act. On December 30,

1964, the Union filed a charge in Case No. 10-CA-5952

alleging that the Company through its agents the “Hart

County Betterment Association” and the Association’s

president, Tommy Meyers, engaged in conduct viola-

tive of Section 8(a)(1) of the Act. On June 11, 1965,

- the charge in Case No. 10-CA-5952 was amended by de-

leting the references to the parties alleged to be the |

—20—.

-Company’s agents and restating the conduct by which

‘the Company allegedly. violated Section 8(a)(1) of

the Act. On June 18, 1965, the Regional Director for

the | fenth Region issued -an order consolidating said

cases and also issued’ the complaint in this proceeding.

Said complaint alleges that the Respondent violated

Section 8(a)(1) and (3) of the Att. By its answer, as

amended at the start of the ‘hearing in this proceeding,

Respondent denies that it committed the unfair labor

practices alleged in the complaint. — :

: Pursuant. to notice, a hearing was held i in Hartwell,

. Georgia, on August 18; 19, and 20, 1965, before the un-

dersigned, duly designated as Trial Examiner. All par- . —

ties appeared and were given full opportunity. to offer

relevant and competent evidence. Briefs ‘were re-

ceived from General Counsel, Charging Party, and ‘Re-

spondent within the time designated therefor.

Upon the entire record in this case and upon observa-

_ tion of the witnesses as they testified, I make the

following:

; Findings of Fact |

I. The Business pf Respondent ae &

" Respondent, a Michigan corporation with an office

-and plant in Hartwell, Georgia, is engaged at said loca-

tion in the manufacture, sale, and. distribution of auto- ~

motive shock absorbers and related products. During

_ the year preceding the issuance of the complaint herein,

a representative period, Respondent sold and shipped 1%

products valued in excess of $50,000 from its plant in pa See

- Hartwell, Georgia, directly | to customers outside ‘the

State of Georgia.

As is admitted by Respondent, it is, and has been at

all times material herein, engaged in commerce within

the meaning of Section 2(6) and (7) of the Act..

‘e . @¢@ poet 7

‘ ‘

<sifise 7

» Appendix

IL. The labor organization involved b> 4

As is admitted by.Respondent, International Union, ~

United Automobile, “Aerospace & Agricultural Imple- . _

_ ment Workers of America (UAW) AFL-CIO, is a labor

' organization arte the been. of e Coren 2(5) of the

Act.

~ II: The mio labor practices

Background and Summary of Undisputed Facts

In the. middle of 1963 the Union started a campaign

to organize Respondent’s employees. Beginning in Oc-

tober, 1963, The Hartwell Sun, a weekly newspaper in

Hartwell, Georgia, with general circulation in said lo-

cality, ‘published a number of editorials and articles, as -

well as an extra edition, referring to the organizational

efforts of the Union and to the election on July 23

..and 24,1964, in. which said organizational efforts tul-

minated, Said-extra edition which was published on

J uly 23, 1964, contained the following notice: “This

EXTRA is. a publication of The Hartwell Sun and was

published at-the request of, and paid for by, citizens of

Hart County who desire a healthy industrial~climate

for the betterment of this area and its people.” Tommy

Myers, as head of a loosely knit committee, arranged

for the publication of the’ extra. edition and an adver-

tisement which appeared in The Anderson Indepen-.

-dent, a newspaper published in Anderson, South Caro-

lina, with general circulation in the area where ‘Re-

spondent’s employees live. In addition, Myers had |

printed and distributed literature bearing on the elec-

tion. Also, prior to the election, Radio Station WKLY,

_ serving the Hartwell. area, transmitted . statements

and news reports with respect to the electian. One of

. said transmissions, on or about July 10, 1964, included

a verbatim reading of sa press release. issued -by -Re-

‘spondent. On July 1, 1964, the Union filed a petition

in Case No. 10-RC-5690 for certification as the collec-

m <, { ‘ ‘

g 2°

—22—

Appendix

tive-bargaining representative of a unit of iicnsiieiss

, employees.” A consent election was conducted by the

Board on ‘July 23-and 24, 1964, which the Union lost.

The Union filed timely objections and the Board set |

aside said election. A second election has not bern

— pending this proceeding.

The Issues fe" 3 Paes cht

1. Whether, by failing to disavow certain-statements -

which appeared in The Hartwell Syn, which were con-

:tained in the advertisement and, literature arranged for

and distributed by Myers’ committee and which were

_ transmitted by Radio Station WELY, os vio-.

lated Section 8(a)(1) of the Act.

2. Whether, by its press release whith was broad-

_. cast over Radio Station WKLY on or about June 10,

_ 1964, Respondent violated Section 8(a)(1) of the Act.

~~. = Whether, by the conduct of Respondent's fore-

| man, John W. Osley, and other action of Respondent _

with respect to a mock funeral held in the town square

on July 24, 1964, apparently. to celebrate the Union’s

loss of the election, Respondent violated Section 8(a)

(1) of the Act.

4. .Whether, by the conduct of Detiiiilenls fore-

man, Cleo B.'Sanders, at said mock funeral, Respondent

violated Section 8(a)(1) of the Act. ;

5. Whether Respondent laid off or discharged its *

employee Guy C. Alewine, in errr of Section 8(a) -

(3) and (1) of the Act.

6. ‘Whether. Respondent dionatiietheeks discharged |

its employee, Hoke H. ers in violation of Section

8(a)(3) and (1) of the Act.

m9, Whether, ‘by suspending its employee, Charles

“Cleveland, from on or about Bree 11, 1964, until‘on .

: a “i 4 , ; ; ; - | .

‘ |

Appendiz .

or about August 18, 1964; Respondent violated ogenys

8(a)(3) and (1) of the Act. Hin

1. The failure to disavow

It is the contention of the General Counsel and -the |

Charging Party that various statements and other ma-

terial which appeared in The HartwellSun, which

were contained ‘in the advertisement and literature ar-

ranged for and distributed by Myers’ committee, and

which were broadcast by Radio Station WKLY consti-

tuted threats that the plant would. be closed or other

economic reprisals would be taken, if the employees

elected to have the Union as their collective-bargain-

_ ing representative, and that, by failing to disavow such

threats, dent violated Section 8(a)(1) of. the

Act. It was feither alleged, nor contended that The

Hartwell ‘Sun, Myers’ committee, or Radio. Station

_ WKLY acted as an agent of the Respondent within the

_ Meaning of the Act.’ Furthermore, the record: dis-

closes that the parties therefore agreed and the Trial .

Examiner understood that the question of agency was*

not an issue to be litigated herein. The argument of

General Counsel and Charging Party appears to be that,

even though the aforesaid statements and material

(which, it is found, constituted threats of economic re-

prisal should the employees elect to have the Union

represent them) cannot be attributed to the Respond-

ent or its agent, that it may be presumed that Respond-.

. ent had ‘knowledge se the Gare tes and material,

a In Section 2- of the Act which contains definitions there are o

following provisions: —

(2). The term “employer” includes any person octite: as an

agent of an employer, directly or indirectly .

(13) “In determining whether any person is acting as an

“agent”.of another person so as to make such other per-

son responsible. for his acts, the question of whether the

; specific acts performed were actually authorized or sub-

paamentiy ratified shall not be controlling.” '

_ that, by remaining silent, Respondent benefited. there-

from, and that, by failing to disavow the threats, it

violated the Act. While it appears ‘appropriate to infer

that Respondent did have knowledge of such state-.

- ments and material in view of the smallness of the

pose community, and that it benefited therefrom, said infer-

ences are of no aid to the argument that Respondent’s

- failure to disavow the threats expressed constituted a.

. , violation of the Act, --

“In his brief General Counsel cites editorials by N.S.

iayden, editor of The Hartwell Sun, which were pub- a

ed on October 24, 1963, November 14, 1963, and >

November 21, 1963. ‘General counsel states, in his brief, .

that, while he ‘does not urge that any violation of the

Act can be based upon said editorials because of the 6- .

month limitation provision of Section 10(b) of the |

Act, they “Serve, however, to show Hayden’s. intense

opposition to the Union ‘and ‘his determination to in-.

sure its defeat at the Respondent’s plant.” This opposi- |

tion and détermination on the part of Hayden are’ dis- |

closed. not only. by the aforesaid editorials, but also by ©

_ subsequent editorials published within the “10(b) pe-

.. ried,” as well as by Hayden’s candid admission —

‘in his testimony.

General ‘ Counsel ae cites the publication on No-

vember 21, 1963, of an interview in The Hartwell Sun .

with Respondent’s plant manager, Charles-Gordon, ¢on-

cer the Union’s organizational efforts. Again, the

General Counsel does not contend. that the interview |

_ can be relied upon as a basis for finding a violation of

the Act, because of Section 10(b), but. argues that it.

' “served to show” that the newspaper “was used asa

vehicie through which the Respondent expressed its-pol- eee

icies concerning the Union to its employees \and to the

citizens’ of Hartwell and Hart. County.” The same

argument (of use as a “vehicle” of communication)

—

a, .. =a

‘is appairettty) made by General Counsel with teapect

-to: Myers: committee and Radio Station WKLY, based

--on the fact that the extra edition of July 23, 1964,

‘which was. “requested and paid for” by Myers’ commit-

tee, contained what the General Counsel characterized

as a “communication from the Respondent ‘to ‘its em-

ployees,” and that Respondent furnished a press release.

to WKLY which was read over the air. .It is not clear

_ whether this argument is an attempt on the part/of

the General. Counsel to’ raise obliquely the issue of

_agency: by using.as a synonym, “vehicle of communica-

tion.” Clearly the granting of.an interview to a news-

paper or ‘the issuance of a press release to a radio sta-

tion by a corporation, absent evidence of any other re-

Jationship. or affirmative action, does -not establish ei-

’ ther the newspaper or the radio station as the corpora-:

tion’s agent in communicating with its employees. As

for the so-called “communication” from Respondent con- .

“tained in the:extra edition, it constituted a reprint of a

pamphlet in the form of: questions and answers which

the Respondent had previdusly. distributed to its em-

ployees. There is no showing or basis for inferring

‘that it had been furnished by the Respondent for in-

-clusion in the extra edition. Therefore, it is con-

cluded that there is no merit in General Counsel’s ar- °

_ gument on this point. The matter of the Union's at-

tempt to organize the Respondent’s plant was of gerieral

interest to the community and, therefore, it cannot be —

said that the interview, the radio broadcast, or the re-

print of the questions and answers established the news-

. paper; the committee and the station as Respondent's

vehicles of communication with its employees.

Within the 6-month period preceding the charge filed

in Case No: 10-CA-5835 there were a number of edi-

torials published: in The Sun, radio broadcasts over —

Station WKLY, and pieces of literature arranged. for

' Appendiz

and distributed by Myers’ eompmnittes (including the

_ extra edition of The Sun on July 23, 1964) which un-

mistakably threatened that Respondent’s plant would be

closed, or employment there adversely affected, if the .

employees selected the Union as their collectiye-bar- .

qgaining representative. There is no need to set forth

—

the. details of the exhibits-received in evidence upon

which this conclusion’ is based, for, not only are. the

threats apparent, but also there is no contention upon

the part of the Respondent that such a conclusion would

-be inappropriate.. Respondent’s defense is simply that;

there being no proof that such exhibits emanated from

_ 4t or any agent of it, they do not constitute evidence of

a violation of the Act by Respondent and, therefore |

Respondent’s failure to disavow the threats expressed in

said exhibits does not constitute interference, restraint,

and coercion by it of its employees within the meaning

of Section 8(a)(1) of the Act. Neither the General .

-. Counsel nor the Charging Party cited any authority

for finding that a failure to disavow threats made by a

person or an entity other. than the employer or its

agents is a violation Sf the Act, absent a showing of

' - the employer’s ratification of the threats.’ In order to

_find that an employer has violated the Act, it is unam-

_ &biguously provided therein that it must. be condiict.en-

gaged. in by the.employer or its agent. The Board has

stated in both the unfair labor practice proceedings and

‘representation proceedings, that an employer is not re-

sponsible: for conduct which would have constituted an.

‘ unfair labor practice had it been that. of the employer

or-his agent, if an agency is not established or ratifica-

tion, express or implied, has not been proved. Byrds. |

—

2 Indeed, in their briefs, the General Counsel ‘indicated and: the -

_® Charging Party candidly ; ‘admitted that there is no eae for

Pee ene:

Gee We ae et

Manufacturing Corp., 140 NLRB 147;, »155;" ‘Monarch

Rubber Co., Inc., 121 NLRB 81, 83. :

In Bibb clefcesniy Comipde 82 NLRB 338; 340-. , ee

341, the ised 1 heli. the\ employer responsible “for ©

threats publisKed in a “newspaper” upon a finding that

the employer Chit more passively enjoy the . |

benefits of the antiunion statements and, therefore, in

effect, should have disavowed: the threats. There is .

fothing in the record: herein/upon which a conclusion

_ can be based ‘that the Respondent | did any more than

passively enjoy the condyct of The Sun, Myers’ com-

mittee, and Station WILY. - ‘It did not ratify: the .

‘threats, and neither’“the General Counsel nor the

Charging Party Oritends that there was ratification.‘

_ The Board will Set aside an election because of the. ¢o-

oercive atmosphere engendered by “editors and other |

. third parties,” even though there is no showing

that st they were acting as agents of the employer. Uni-

versal’ Manufacturing Corporation of Mississippi, 156

NLRB No. 132.. However, the Charging Party argues

- that, in the circumstances of this case, the setting aside - ~

of the first election is of little value. It points.out that, .

if an election were held in' the future in the Respond- ©

ent’s plant; The Hartwell Sun, Myers’ committee, and

Radio Station wee will probably repeat the code

8 The Board adopted the findings, ‘conclusions and recommendations

of the Trial Examiner. Among his conclusions were the following:

The responsibility of an employer for the conduct of an out-

sider is not established only when agency is established. The

outsider must be acting under the direction or control of the.

employer or, if the conduct is originally unauthorized, it must.

. be ratified expressly or impliedly. It is not sufficient (to es-:

tablish the. employer’s responsibility) to show that the em-_

- ployer enjoys the ‘benefits of the outsider’s actions. 20 (Em-’

phasis supplied.)

20 N. L.R.B. v. Cherokee Hosiery Mills, 196 F.2d-286,.290° (CA.

5).:

_” 4 Although it is found herein below. that Respondent did violate Sec--"

tion 8(a) (1) of the Act by a. press release which was - ‘read over

Station WKLY, it was not urged, nor is it deemed, that this consti-

tuted ratification by Respondent of the editorials, literature: of

— committee, or other WKLY broadcasts. -

nian . e ; -

| —28— es

__ Appendix

@ they engaged in prior to the first election which, again,

the Respondent can passively enjoy, and the Charging

Party implores that a remedy be designed to coun-

teract the effect of such repetition. As desirable as it

seems to be to require the Respondent to disavow future

coercive conduct of The Hartwell Sun, Myers’ commit-

tee, and Radio Station WKLY,’ the Trial Examiner is

forced to conclude that there: is nothing in the Act -

which would permit him to recommend sugh a remedy

in this proceeding. However, it would appear that

the reassurance® to the employees provided in the Rem-

edy and the Notice to remedy the threat of Respondent

- found hereinbelow to be violative of Section 8(a)(1)

of the Act should offset to a large extent the effect of

future threats by “ou id .

2. Respondent's press release

Shortly after the Union filed its aforesaid petition on

- July 1, 1964, a press release issued by the Respondent

was read over the air in a broadcast by Radio Station

WKLY. The press release contained the following:

Mr. McIntyre said that he felt like the employees

and understood and appreciated that

. tHe $20,000 spent by Monroe in payroll in Hart-

well, Hart County and surrounding counties was

evidence of its confidence in the le of Hart

County and surrounding counties. said that

he had no doubt that employees would vote to con- '

tinue its fine relations and employment in the area.

The last sentence in the above-quoted statement, con-

sidered in the context in which it appears, clearly

implies that, if the employees voted.to have the Union

5 To furnish an atmosphere sufficiently devoid of coercion as to per-

mit employees to express their free choice in a second election.

That it will not inflict economic reprisals upon its employees should

they select the Union as their collective-bargaining representative.

, Appendix

represent them, the effect would be-a discontinuance

of Respondent’s “fine relations and employment in the

area.” This can only be reasonably construed to mean

that a majority vote for the Union would adversely

affect Respondent’s employment. It is concluded that

’ this constituted an implied threat of economic reprisal

should the Union become the employees’. collective-

bargaining represéntative and constituted interference,

restraint, and coercion within the meaning of Section

8(a)(1) of the Act.

3. The mock funeral

Apparently in celebration of the Union’s loss of the

election, a mock funeral was ‘staged in the Hartwell |

town square, mid-day on June.24, 1964. There is no

showing in the record that the Respondent played any

part in its instigation, planning, or staging. It is al-

leged in the complaint that the Respondent violated

Section 8(a)(1) of the Act by the conduct of its fore-

man, John Osley, in that he “encouraged . . . employees

to attend” the mock funeral and by the fact that Re-

spondent “paid. . . employees who attended” it.

_In support of the allegation that Osley encouraged

employees to attend the mock funeral, General Counsel

relies on the testimony of employees Ernest Beebe,

Marvin Bryant, and Donald Alewine. According to

Beebe’s testimony he (Beebe) asked Osley if he were

going to the funeral, and, when Osley replied in the ,

affirmative, Beebe requested a “ride” with him, which

request was granted. Bryant testified that he heard of

the funeral from Osley, who told him that he could go

to it, if he wanted to do so. According to Alewine’s

testimony, ‘Osley told him about the funeral shortly

‘before the noon hour, and informed him that he

could go to it, but, if he did not want to go, he did not

have to do so. The record discloses that the mock fu-

neral was widely detuned by the employees Gong

out the plant on the morning of July 24.

The regular lunch period extended from noon to 12:30

p.m. and, it appears, that customarily there was strict

observance of the time allowed for lunch. eee

to the testimony of all three of said employ loyees, the

. duction line did not start at. aay tals de, deivasialy

because there were not enough employees present to

man the line. According to the testimony of employee

Tommy Hendrix, resumption of work that day was de-

layed 20 or 25 minutes beyond the normal period: It

appears that no employee ered a loss of pay because

of the delay in the resump of work. When testify-

' ing, Osley stated ‘that he could recall “no conversa-

tions” with employees regarding the funeral prior to the

lunch period. He further testified that he returned to

the plant at 12:30. However, he also testified that he

did not hear the whistle for the resumption of work

and, when questioned whether production started imme-

diately at 12:30, he avoided a categorical answer indi-

cating that he was not in a position to testify one way

or the other.

The above outlined testimony of Beebe, Bryant, Ale-

wine, and Hendrix is credited, inasmuch as the testi-

mony of Osley, insofar as it contradicted their testi-

mony, was not convincing. It does not appear that said

credited testimony. would support a.finding that Osley

encouraged employees to attend the funeral:) At the

most, it discloses that he informed two employees that

‘the celebration was going to take place (which appar-

ently was widely known and discussed among the em-.

‘ployees that’ morning); told one of them that he.

could go to it, but did not have to, if he did not want to;

‘and granted a request of a third employee of a ride to

the celebration. The total. of *these facts: falls far

Oo — ed

—31— ee

Appendix

+ arta on aggniggge iitan eA Ae

“encouragement. “4

As for the payment by Respondent to employees for

the period of 20 or 25 minutes during which resumption

of work was delayed, the General Counsel contends that

suth action “conveyed to the employees the expression

of the Respondent’s approval of the Union’s defeat and.

presented a situation from which the employees, could

easily conclude that they might be rewarded similarly

‘for a future defeat of the Union.” The General Coun-

' sel cites the case of Edro Corporation, 147 NLRB 1167,

in which it was found that the employer therein vio-

lated Section 8(a)(1) of the Act by allowing a party to

be held on its property to celebrate the Union’s loss

of an election and by paying employées for their time

spent at the party. It does not appear that the cited

case can be equated with the conduct of the Respondent

in this proceeding. The funeral was not.held on the

Company’ s property and the employees were paid for.

only 20 or 25 minutes of time in which they did not

work, in contrast to the Edro Corporation case ‘where

the employees were paid for loss of a half-day’s work-

ing time. It is the considered judgment of the Trial

Examiner that the failure of Respondent to deduct from

employees’ wages an amount corresponding to the 20 or

25 minutes lost working time was de minimis and

‘could not.reasonably have had the.effect upon the em- |

ployees which General Counsel coritends. .

Therefore, it is concluded that General Counsel has

failed to prove by a preponderance of the evidence the

allegations in the complaint that Respondent violated

Section 8(a)(1) of the Act. by encouraging employees

to attend the funeral and by paying them for time spent

at it.. .

, -——32—

‘Appendix —

4. Sanders’ participation i in the mock funeral

It is alleged in the complaint that Respondent by its

supervisor and agent; Foreman Cleo B. Sanders, partici-

pated in the mock funeral by his pronouncement that

the Union was dead and: by delivering an eulogy for

the Union. Sanders testified that he -was present in,

the square at the time of the mock funeral, that he had

‘no part in planning the funeral, that he left the plant

at the start of the regular lunch hour, and returned

prior to the expiration of the regular lunch hour. . He

further testified that shortly after he arrived at the

square, “someone yelled for a coroner”; that he was the

elected coroner for Hartwell; that there was a “dummy”.

(apparently an effigy of the Union) in the. square; and

that he pronounced it-to be dead. Sanders’ above tes- .

. timony is uncontradicted and credited. Gengral Coun-

sel contends that Sanders’ conduct “served to demon-

strate to the employees Respondent’s approval” of the

funeral and “clearly conveyed to the employees the

futility of organizational efforts at Respondent’s plant”

It appears that the employees present could not reason-

ably have considered Sanders’ participation in the “fu-

neral” as a “coroner” was intended to convey to them

Respondent’s position with respect to the Union. In

any event, his participation could not have reasonably

had the coercive effect which General Counsel con-

tends. In view of this conclusion, it does not appear

that there is any merit in General Cotnsel’s contention

as to the effect of Sanders’ conduct on Respondent’s

employees. Therefore, it is further concluded that Gen-

eral Counsel has not proved by a pteponderance of the

evidence that Respondent violated Section 8(a)(1) of

the Act by the conduct of Sanders, as alleged in the

complaint

ee en ES eee

a SOAS AL SS NS PO

.5. The alleged discrimination against :

.. Guy C. Alewine bars

Appendix

It is alleged in the complaint that'on or about June —

12, 1964, Respondent laid off and thereafter failed and

refused to recall Guy C. Alewine in violation of Section

8(a)(3) and (1) of the Act. dn its answer as amended, |

Respondent alleged that Alewine was terminated on

said date, but denied that such action was violative of

‘the Act. Alewine was employed by Respondent for a

period in. 1959 and entered. the employ of Respondent

again in August 1960. In 1963, while he was working

as a material handler, he, according to his testimony

which is credited, became active on behalf of the Union

and talked to employees during nonworking time at the

plant and at their homes. According to further ‘testi-

“mony of Alewine, which is uncontradicted and credi-

ted, he was approached in October or November of 1963 —

by Talmadge Dove who offered him a badge bearing the’

legend “no union for me”; Alewine told Dove that he

would not wear it and that he would vote for the Union,

at another time, Dove told him that if he did not wear.

the badge both of them “would get into trouble”; and

on a third occasion, in November of 1963, Dove told

Alewine that he would be transferred to the “oil line”

if he did not .“quit” his union activities.’ It appears

that there is a dispute as to whether Dove is a super-

visor within the meaning of the Act. According to the

testimony of Alewine, Dove responsibly directed the .

work of 40 employees.. The testimoriy of Respondent’s

witnesses in support of its contention that Dove was

‘ not a supervisor was vague and unconvincing. There-

fore, Alewine’s testimony as to the duties and respon-

sibilities of Dove'is credited and it is concluded that |

1 It appears that a job on the oil line is far from as desirable as that

of a material handler. These statements by Dove were prior to the

“10(b) period” and are only considered as background information.

Appendix >

| Dove was'a supervisor within the meaning of the Act

at the time material herein. |

: Alewine testified’ that, in February of 1964; he was

told: by Dove that he was wanted by Bennie Reid, gen-

eral plant foreman for the third shift, in the office: of —

Grove Dudley, the plant superintendent; that. he went

into Dudley’s office where Reid and Foreman Rufus

Barnes were present; that he asked Reid if he wanted

to see him; that Reid told him “yes . . . you're fired;”

that he asked Reid for the reason; that Reid refused to

’ give him an explanation and told him that, if he wanted

to, he could return the next day and “see somebody

higher up”; that he Alewine, then “got mad and cussed. . d

him out and left.”

Reid testified that, in Liinaty 1964, he observed Ale-

wine “being off the ‘job, talking to and interfering -

with another operator”; that he asked Alewine to come ~

to “the office”; that he then reprimanded Alewine for

i conduct; that Alewine apologized and ‘assured ‘him .

that it would not happen again; and that the next day

he gave Alewine a warning slip for his said’ conduct.

Reid further testified that subsequently, in February

1964, he observed Alewine engaging in the same con- ;

duct about which he had previously warne? ‘iim and a

instructed Dove to send Alewine to Dudley’s office; that,

when Alewine came in he told Alewine that he had

observed him committirig the same offense he had com:

mitted in January; that Alewine “flew mad,” picked up

a piston-rod assembly and raised it to strike him with

it; that he told Alewine that he was discharged and if

he was not satisfied with the decision he could come.-

back the next day and “talk it over with anybody that

he would like . . .”; that Alewine called him wha® may

be characterized os vile names and threatened to kill

him; and that he told Alewine to punch out and “come

back tomorrow.” Reid further testified that he did not

= om

| Appendix

give Alewine a discharge slip at that time, but sent the

discharge slip through channels. ‘On cross-examination,

Reid admitted that he had. intended to discharge Ale-

wine when he summoned him to Dudley’s office. There

is little substantial conflict in the testimony of Alewine

_ and Reid as to the incident. . Reid supplied details as; to

Alewine’s conduct which precipitated the incident and

Alewine’s actions when he “got. mad,” which testimony

.was not contradicted. The testimony of Reid is credi-

ted with respect to the incident and the events yeene

precipitated it. .

The* next day there was a meeting in. the office: of

Charles Gordon, Respondent's general manager. - There’

is no substantial variation in the testimony. of the wit-

nesses with respect to what then occurred. The facts

- may be summarized as follows: Alewine went into |

Gordon’s office where there were various supervisors

‘ present besides Gordon;* Gordon reviewed the matter”

_ of Reid’s decision to discharge Alewine; Alewine. apolo-

gized for losing his temper; and Gordon reversed the |

decision to discharge Alewine and reduced the disci-

; plinary action to a 7-day layoff.

Summarized hereinbelow is the uncontradicted and

credited. testimony of Alewine: Before Alewine re-

. turned to work at the conclusion of his suspension, he

asked Dudley whether he could get a transfer to any

other job, so as to “get out from under the supervision — 7

of Bennie Reid.” Dudley told him that he did not

think there was any chance of it, that he and. Reid

would “just have to get along together.” .When Ale-

wine started to leave, Dudley teld him that Gordon

wanted to see him. He then went to see Gordon who

offered him the job of budget clerk. When he told

Gordon that he did not know whether he wanted to

8 It is noted that Dove was also present.

Appendix bs

take the job, or whether he was capable of handling a.

Gordon told him that he would have ample time to

train for it and that he did not think he would have

‘trouble with the job. Gordon then told him he did

not have to ‘make up his mind at that time, that he

_ could return to his regular job the next day and gave

him approximately 10 days to. decide whether to take

- the budge clerk job. Alewine returned to his regular

_job the following day ahd, at the end of the time which

he was given to make up his mind, he informed Gor-

don that he was willing to accept the budget clerk job.

At that. point Gordon stated to him, “The Union will

_ have a lot to say about this, you being fired, and now

me putting you back and giving you a better job.”

Alewine commenced his job as a clerk toward the end

of February .and received an increase in: pay approxi-

mately 4 or 5 weeks thereafter. As a clerk Alewine

worked under the supervision of Eugene Cleveland.

Alewine testified that “on more than one occasion”

emp caipee talked to him- about “being off” his job.

ane, spch Occasion, after he gave Cleveland an ex-

testi Cleveland said to him: that he was “doing a

good job, ” and that somebody had .Teported that he -

- was off his job. On'the morning of June 13, 1964; he

and another clerk were informed by Cleveland that

they were discharged as of the end of their shift on

that day. The other clerk had been employed approxi-

mately” a smonth or a month..and a ‘half. Alewine

asked Cleveland why he was being discharged in view

‘of the fact that he had “plant seniority over all of the

factory clerks . . . and. job seniority over half of them, .

and whether it'y was because of his work. - Cleveland in-

formed him that he had orders to discharge him “from

higher up.” The record discloses that Alewine did have |

seniority over many of the clerks who. were retained _

in Respondent's employ. -

a 3

Appendix

That night Alevtine went to Gordon’ s home and

\ talked to him about the action that was taken in regard —

to his employment. Both Alewine and Gordon tes-

_ tified as to their conversation. . Alewine testified that

he asked Gordon whether he was. fired or laid off and

that Gordon replied that he was laid off, but “the best

thing he could-do” was to find another job. Gordon

testified that he told him'that he was discharged and

to look for\another job. This-variation in their testi-

mony appears\to be of no — } |

According to the credited testimony of * Gordon, '

around June of 1964, he received orders from the

head office in Monroe, Michigan, to reduce his work .

force and cut.down on production from 17,500 shock ab-

sorbers a day to 12,500.- Accordingly, the work force

was reduced from approximately 900 employees to 700.

The work force remained at substantially the same re-

duced figure up until the time of the hearing. Accord-

ing to the further.credited testimony of Gordon, the

number of employees on hourly: salary was controlled ©

by him and the number of salaried employees Was con- -

trolled by the head office in Monroe. However, the °

selection of those who were to be retdined and those

. to be, laid off or terminated was: under his control. | It

also appears from his credited testimony that the es-

tablished policy was to. terminate or lay off-the hourly

group of employees on a seniority basis and. that with

respect to the salaried employees (which included the -

clerks) those temporarily'employed “go first and after

that the selection is based upon performance.”® .Gor-

don testified that it was he who ordered the discharge

of Alewine, that he selected him for termination -be-

® It is deemed that this-credited testimony explains the uncontra-

dicted and credited testimony of Alewine that shortly. before June

13 a notice was posted announcing that there would be a reduction

in force 2 nd that it would be on a seniority basis.

cause he: had complaints from Alewine’s supervisor,

Cleveland, that Alewine was not “staying ‘within his

area,” that he had personally observed ‘Alewine out of

his area, and that he had instructed Cleveland to tell

_ Alewine to stay’ within. his area, but that thereafter

Cleveland reported that he still had trouble with Ale-

wine on that score. The above testimoriy of Gordon

as to his reason for his selecting Alewine for discharge

is credited. Not only was Gordon an impressive wit-

ness but also Alewine corroborated his testimony with

respect to complaints about hisbeing out of his area. |

_ _ As above noted, Alewine' testified that “on more than ©

one occasion” Cleveland spoke to him about .

The record supports a finding that Respondent’s man-

agement was aware of Alewine’s prounion attitude,

based upon Alewine’s uncontradicted and credited tes-

timony of statements made to him by Dove and of |

Gordon’s. speculation as to what the Union’s reaction — .

would be to his (Gordon’ s)° action - in giving him the —

better. job of’ budget clerk. Nevertheless, it is con-

. Cluded that General Counsel did: not prove by a pre--

ponderance of evidence that the selection of. Alewine ©

for termination in the extensive reduction in force was

discriminatorily motivated. It would appear that, had

Gordon desired to be rid of Alewine because of his pro- .

union attitude, he could very well have sustained Reid’s

discharge of .Alewine instead of reducing the. discipli-

nary action’ to’ a 7-day ‘suspension and accepting Ale- - _

wine’s apology for his conduct in threatening Reid.

Shortly thereafter he gave Alewine, who desired to get

away from working under Reid, a job in another depart-

ment which apparently ‘was considered better than the

‘one Alewine had had. There is no evidence that there-

after the: ‘Respondent had any knowledge or suspicion of

junion activity on the part of Alewine, and it appears

that, as a salaried employee, he was not within the —

——39—

unit which the eae was seeking to represent. _ The

reduction in forcéwas for economic reasons and oc-

curred prior to the filing by the Union of its petition -

for: certification: Therefore, there was nothing “suspi-

. cious about the timing, ner is there any contention to

that effect. (There is no contention that the selection

for the reduction in force of any of the other employees, ——

- approximately 200 in number, was discriminatorily mo-

tivated.) Consequently it is the considered judgment

of the Trial Examiner that. it would not be appropriate

to find that the selection of Alewine in the reduction meq

in force was discriminatorily motivated. ge

6. The constructive Sacharae of Hoke Smith

It ts alleged in the complaint that on or about July

. 27, 1964, Respondent .discriminatorily discharged Hoke

_H. Smith, Respondent, in its amended answer, denied

that Smith was terminated on July 27, and alleged that

he quit. his employment on August 24, 1964. The charge

as--to the. discrimination against Smith was filed on

pt 18, 1964. ‘The undisputed facts are that Smith’s

regular job, as of J uly 24, was pn. the “A line” putting

_ Jsuch things as springs, washers, and nuts on shock ab-

_ sorbérs. The election was held on J july 23 and 24 and

ray: Smith served: as-a. union -observer. ‘The last day that :

_¢ . . Smith worked.on the A line was.on Friday, July 24. =

. .°» On- the following Monday, Htily 27, shortly after he

started working on the. A line, Smith was transferred ag

to the job of “pulling shocks” on the “main line.” On _

July 31, 1964, about. the middle of his shift, which was

- from 4:30 p.m. until 1 a:m.,:Smith became ill-and was .

permitted to go. home. A few days: later he was hos-

pitalized and remained in the hospital for 9 days. He

reported back to work on: August 24, but left that day

without doing any work. The: circumstances in which

he left will be considered hereinbelow. ?

— —40—

‘It is apparently the contention of the General Coun-

sel and the Charging Party that Smith was construc-

tively discharged in violation of the Act for the follow-

ing reasons: that the job of pulling shocks was much

more arduous than that of working on the A line; that

' Respondent transferred Smith to pulling shocks on

July 27, despite the fact that he was 58 years old, and

insisted that he continue on the job of pulling shocks on

August 24, despite his age and recent illness, in order

to cause him to refuse to do the job or to become ill

again; and that Respondent’s discriminatory motive is

further. demonstrated by various other factors which

are considered hereinbelow.

Hoke’ began’ his employment with the Company in

‘May of 1960 and worked at various jobs starting -with

a short time on a “bushing machine,” then about 2 years

on the “taHow tank” and thereafter on “running the

Henry & Wright.” While working on that machine he

applied for and was given a job as night watchman

until the job was abolished. He was then transferréd

to the job of “straightening up shocks.” From there he

was transferred to the “off line” and then put back on

the “Henry & Wright” until the plant-wide layoff in

, June, 1964. About that time Smith cut his hand on a

piece of scrap steel and could work with one hand,

so he was given the job of running “burr roller and

the tumbler” for 2 or 3 weeks. Thefeafter, when he

was again able to use his injured hand, he was trans-

ferred to the A line either shortly before or after the

plant-wide vacation of 2 weeks which started on July

L” Therefore, it appears that Hoke Smith worked on

en eee eee nee ee

transferred to pulling shocks.

1® The supervisor in charge of the A line, James E. Smith, testified

et Hele Gesith come into his Cepartment wither dust before or

just after said vacation. ;

7 .

~-41-— , .

. Appendix

_ °The job of “pulling shocks” consists of extending the

shock absorbers by pulling them down as they ride on a

moving line, so that they can be painted. The follow-

ing are descriptions of the process by General Counsel’s

witness, Ernest Beebe, and Resporndent’s witness, Lan-

der Downs. Beebe testified as follows: :

' @. (By Mr. Brandon): Tell me the by

which you extend the shock, please, Mr. Beebe.

A. Well, if they have-a loop on n the bottom, we

a6 ee ee ee my ou know,

extend them out. Or, if they have got a

stem, they have made us a oe there

on the off line, a little old cal op Gan ek

on them and pull them out. On the main line,

we don’t have time, it’s moving too fast, so

they have to pull them out with their hands.

Downs testified as follows:

TRIAL EXAMINER: How do you pull the shocks? —

THE WITNESS: Pull it down with a hook. I have

—I put the hook in my foot and you got to have

a hook on top of that I hook in. The shocks that

has loops on ’em, I pull them out with a hook, .

what we call a hook, or a shock-pulling hook.

And some, that you pull with your hand, that

you don’t-use a shock-pulling stick for.

A considerable amount of testimony was elicited by all

of the parties with respect to the physical effort required

to pull shocks to demonstrate, on the one hand, that

it was an arduoys job for a 58-year-old man, and, on

the other hand, that it was not. It is the opinion of

the Trial Examiner, based upon the testimony of said

witnesses as to the process, that the job of pultfhg™

shocks required a considerable amount of physical effort

and was a great deal more arduous than the job on

* the A line.

~~ =

Appendix /

It appears that on occasions Smith pulled shocks on

the: “off line” and “main line” prior to the election.

However, it further appears that Smith only did this for

comparatively short intervals to furnish additional help.

In addition, it appears that the working conditions on

the shocks. In the absence of medical testimony, how-

ever, it does not appear appropriate for the Trial

Examiner to conclude that the heat and physical effort ;

‘of pulling shocks caused Hoke Smith to become ill in °

the middle of his shift on July 31. When General

Manager Bennie Reid passed by, Smith told Reid of :

his illness and Reid instructed’ him to wait until his

supervisor, James E. Smith (also referred to as Ed

Smith), came in. When Ed Smith came in, Hoke Smith

reported his illness to him, and he told Hoke Smith to

“check out” and go home. A few days later Hoke

When Hoke Smith returned to work on pain 24,

he reported early to Ed Smith. Hoke Smith’s testi-

eter ener eennen ae Sloan:

Sy said, “where do you want me to go tonight?”

sir

“You'll have to see Grover about that. Do you |

want to see him?” and I said, “Yeah.” I had time |

before the whistle blowed, and I went up and

talked to Mr. Grover Dudley and I said, “Grover,

a ee wraps 4-

cnaemaatietenaenaaaa atten tence ie

43 -— ‘a

Appendix

not going back there on account of that.” And

he says “It’s up to your Foreman.” He never did

say I could have help or I couldn’t have help. He

says, “It’s up to your Foreman, where he works

you.” ;

I went back down there and I told Ed Smith

what he said. And I said, “Ed; Ill go up there

and pull the shocks, as many as I can and let the

rest go by.” He says, “If you can’t pull them, I

don’t need you.” I said; “Well, Ed, I'll pull what

I can, now. I’m willing to pull that many, but I

_ can’t keep: up with it when the/line’s loaded.” He

said, “If you can’t pull th don’t you.” I

said, “Well, you don’t need me.”

So, he carried me to the office and wrote out a

note. And I didn’t* know what it was; if I had, I

wouldn’t have accepted it, I’d have went back

there and pulled shocks. Later on, they mailed it

.to me and it said I refused to the job assigned to.

I didn’t refuse to do it; I said I couldn’t do it by

myself, and they didn’t need me. «’

Ed Smith testified as to the incident and there is no

substantial ‘contradiction’ between his testimony and

the above quoted testimony of Hoke Smith. The above

quoted testimony of Hoke Smith is credited.

Respondent points out, in its brief, that the complaint

alleged the discharge to have occurred on July 27 and

that the charge upon which it was based was filed on

August 18. Respondent further points out that Hoke

Smith’s employment was not terminated until August

24, after both the date alleged in the complaint and the

date of filing of the charge, and argues that the

charge should, therefore, be dismissed. It appears

that this argument is of little merit. The constructive

11 Although, at first, Ed Smith testified that Hoke Smith stated he

“would not pull shocks,” he later alternated between “could

and “would not.” ‘

en ee, ae

; —44.... ° . .

Appendix ‘

discharge on August 24 was fully litigated and 4t is suf-

ficiently related to the allegation in the complaint and

the tharge so that the Respondent cannot seriously con-

tend that it was misled. It is the conclusion of the Trial

Examiner that Smith was discriminatorily transferred

on July 27 and constructively discharged on August 24

in violation of Section 8(a)(3) and (1) of the Act. This

conclusion is predicated on the factors set forth here- .

inbelow.

The job of pulling shocks was considerably more rig-

orous than the job from which Hoke Smith was trans-

ferred, particularly in view of Smith’s age. The trans-

fer occurred almost immediately after Smith served as

observer for the Union at the election. Respondent con-

tends that it had no knowledge of Smith’s union ac-

- tivities. It is the conclusion of the Trial Examiner

that the Respondent must have reasonably inferred or

suspected that Smith was active on behalf of the

. Union, or a strong adherent thereof, from the fact that

he was selected by the Union as one of its observers.

Respondent elicited testimony to show that the reason

Smith was transferred from his job to that of pulling

shocks was because lie was of unsatisfactory perform-

ance on the “A line.” This testimony was from Ed

Smith, foreman of the A line, and Tommy Brown, who .

“apparently worked under Smith and, to some extent, su-

pervised the work on the A line including that of Hoke

Smith. “Brown’s testimony was not convincing. Brown,

who testified that he was a leader on the A line, was

extremely vague and frequently indicated that his recol-

lection was poor as to the events which preceded Hoke

% “Smith’s transfer. Ed Smith’s testimony was not con-

‘vincing. According to his testimony, Hoke Smith orfly

worked on the A line for approximately 8 days. He

further testified that he received five or six complaints

from Tommy Brown about Hoke Smith’s performance

ants iemmainnaieenealdeas ented yore 7 a ae errr ee : '

ee .

~-45-—

in that short interval. However, Hoke Smith testified

without contradiction that he received no reprimands

for his performance during the time that he worked on

the A line. Furthermore, Ed Smith did not impress

.the Trial Examiner as. a candid witness when ques- .

tioned as to the relative difficulty of pulling shocks.

For this reason and from his observation of them while

they were testifying, the Trial Examiner does not credit

their testimony that Hoke Smith’s work performance .

on the A line was unsatisfactory and that it was Hoke

Smith’s unsatisfactory work performance which moti-

vated his transfer to pulling shocks.

To continue with the factors upon which the’ afore-

said conclusions of’ Respondent’s -violations of Section

that Smith replaced at the job of. pulling shocks, Wey-

man Risner who, Hoke Smith testified without contra-

diction, was a considerably younger man in his “30’s.”

Ed Smith testified that he sent Risner to “putting up

parts for the welders” and that he did not place Hoke

Smith at that job because he did not have time to train

him for it. In his testimony, Ed Smith attempted to

demonstrate the difficulty of the job to which he trans-

_ ferred Risner. This testimony of the knowledge ‘and

. physical effort it requires was unconvincing and failed

to establish said difficulty. It is also noted that Risner

returned to the job of pulling shocks. during Hoke

_ Smith’s absence between July 31 and August 24 which

would indicate that Risner could have been kept at said

job. A further example of Ed Smith’s unreliability as a

witness is demonstrated by his testimony as to Hoke |

Smith’s work performance on ‘the A line on July 30

where Smith worked temporarily for 4% hours. Ed

Smith first testified that Hoke Smith did not pérform

satisfactorily at that time. However, after further ques-

tioning, he admitted: that he. did not “specifically re-

Appendix ; en :

member” that Hoke Smith’s performance was unsatis-

factory on that day. As to the refusal to’give Hoke

- Smith additional help and insisting that he pull every

other shock on August 24, it is noted that a witness for

ReSpondent, Lander Downs, who worked for consider-

able» periods at pulling shocks, testified that he was

always givén extra help when he asked for it and that

‘whenever two were working’ on the line, instead of

each man pulling: every other shock when they ‘become

_ too difficult, they laid aside those they were unable to

pull until they got help. The record indicates that prior

to the election the Respondent followed the practice of .

being cooperative, with Hoke Smith, as well as with

other employees, in granting requests for transfers to

other jobs and giving them an easier job when ap-

propriate. The record further discloses that Dudley

‘and Smith were aware on August 24 that Hoke Smith

had just returned from an illness for which he had been

hospitalized. Management did not follow its customary

practice of cooperativeness with and consideration for,

its employees but instead insisted that he return to a

job which they must have realized, because of. the physi-

cal effort it required and the heat in the area, was too

demanding on a 58-year-ald man who had just reported

back to work after a long and apparently severe ill-

ness. It is the conclusion of the Trial Examiner that

this callous treatment, in contrast to its customary prac-

tice, was an attempt on the part of Respondent to in-

duge Hoke Smith to quit, or to attempt to perform a

job which would have overtaxed his strength, because

of his union activities, or suspected union activities. . It

is further concluded that thereby Respondent construc-.

tively discharged Hoke Smith on August 24, 1964, in

violation of Section 8(a)(3) and (1) of the Act. As

indicated above, it is also concluded that Respondent

discriminatorily transferred Hoke ae to the uP of

on shocks“6n July, 27, 1964.

~41— |

; . Appendix

_7, The.7-day suspension of Charles Cleveland Py

Charles Cleveland, who at the time of the hearing.

had been in the employ of Respondent almost 7 years,

was given a 7-day: suspension by Respondent from Au-

gust 11 to August 18, 1964. It is alleged that his sus-

“pension was discriminatorily motivated. At the time of

his suspension Cleveland had the job of paint. operator

under the supervision of Respondent’s foreman, John .

Osley. Osley testified that, on August 10 about an

hour before quitting time, he asked Cleveland “to clean

up,” and at: quitting time he “saw that it hadn’t been

done.” He further testified that the next morning he

went to see his supervisor, Grover Dudley, and told him .

- that Cleveland had been instructed to clean up his area ..

but had failed to do it, and that he asked for and re-

ceived permission to ‘give. Cleveland a 7-day suspen-

sion. He then wrote out a “reprimand” which indicated

that Cleveland was laid off for 7 days and stated as

reason therefor, “has not kept area around painter

tice of his suspension when he reported for work at

lunch time that day, August 11. :

Respondent contends that the suspension was not dis-

criminatorily motivated and, as one of the reasons

support thereof, argues that there is no showing that

‘Respondent had knowledge of Cleveland’s attitude to-

ward the Union.. However, there appears to be little

merit in this reason, in view of the fact that, shortly

before the suspension, Cleveland acted as an observer

for the Union at the election held on July 23 and 24. It

__ is conclfided that Respondent must have reasonably in-

ferred from his selection by the Union as an observer

that Cleveland was either active.on behalf of the Union

or a strong union adherent.

Respondent further argues in support of its ‘conten-

tion that the suspension was not discriminatorily mo-

* Appendix ae :

tivated as follows: ‘And it was not denied at all that

he left a pile of trash in the middle of the floor when

only a moment would have been required to put it in a

trash can. This could have angered his’ supervisor

enough to cause the suspension.” Cleveland did testify

that he had swept the trash into a pile but did not put

‘ the pile into a trash can, that the pile was about 3 or 4

" inches wide and about one-half inch high and that he did

not put the trash in the can because the whistle had

blown and it was the practice to stop whatever was) -

being done at that time. The existence of this practice

was not only corroborated by other witnesses of the — :

General Counsel but also by Osley. Osley, on the other

hand, testified that he saw more than a pile of trash,

that trash was “scattered in the area.” Osley further

testified that he did not see Cleveland witha broom in _

his hand. Certain of the satient features of Osley’s Stes- .

timony were contradicted not only by Cleveland but,

_also. by émployees Ernest Beebe and Marvin Bryant,

-who worked in areas next to that in which Cléveland

worked. All thrée of them testified that Osley asked |

them to clean up.a short time before the whistle. blew

(varying from 2 to 3 minutes to 10 to 15 minutes prior

witnesses including Osley that cleating up was done

during the last 5 minutes of. the work day. It further *

appears that there were no standing instructions about

cleaning up and that it was done upon instruction. Os- .

ley gave no explanation as to why he gavé Cleveland

instructions to clean up a full: hour before quitting time

as he testified’ The Trial Examiner credits the testi-

mony of the three employees as to when they were told

to clean up | the area. i

It appears from the testimony of said three employees

, that after they received instructions to clean up, Cleve-_

land vat ted rei Beebe picked up some i pet oer

the floor, and Bryant just,sat down: Therefore, it is .

- the finding of the. Trial Examiner that Cleveland did

sweep up. the area. From his testimony, it appéars

that Osley was present just. before quitting time and

must have observed Cleveland. sweeping and Bryant —

sitting down. However, there is no showing that-@ny

disciplinary action was taken against Bryant. The rec-

ord discloses that Cleveland had never been warned

about possible d¥ciplinary ‘action for net cleaning. up

his area and that no other employee has ever been

disciplined for such reason. Osley attempted to show as

a further reason for the disciplinary action that Cleve- .

. land had failed to clean up the painter bin. However,

this appears to have been an afterthought in view of

. the statement on the notice of suspension,

nor nature of Cleveland’s offense, if any; the discredited

testimony of Osléy in which he attempted to exaggerate

' the offense; and the credited testimony that Cleve- .

Jand did comply with ‘the instructions and only failed to’

complete the cleaning up‘in accordance with the prac-

tice of ceasing work immediately at the time the whis-

tle blows), it is the considered judgment of the Trial

Examiner that the 7-day suspension was excessive and

was not motivated for disciplinary reasons. Therefore,

it is concluded that the reason ascribed by Respondent

for the suspension was merely pretextual, that it was in —

reprisal for Cleveland’s adherence to the Union, and

" was violative of Section 8(a)(3) and. (1) of the Act.

IV. The effect of the unfair labor

- practices upon commerce

The “untae labor practices of the Respondent set:

forth in section ITI; above, occurring in connection with

the operations of Respondent described in section I,

above, have a close, intimate, and: substantial relation

Appendix —

to trade, traffic, and commerce among the. mend States

and tend to lead to labor disputes, burdening and ob-

structing commerce and _ free encod thereof.

; | ao

V. The feed” Se

It ometr been found that Respondent engaged in sev-

eral unfair labor practices, it will be recommended that

Respondent. be required to cease and desist from such

unfair labor practices and take certain affirmative ac-

tion designed to effectuate the policies of the Act.

| It having been found that Respondent discriminated

bo: against Hoke H. Smith by transferring him on July 27,

a 1964, from his then job to a more arduous job and by

constructively discharging him on August 24, 1964, it -

will be recommended that Respondent be ordered to

offer him full reinstatement to the job he held before

said discriminatory transfer, or to a substantially

equivalent position, without prejudice to his seniority

or other rights and privileges. It will be further recom-

mended that Respondent make - said employee whole

_ for-any loss of earnings he may have suffered because

of its discrimination against him by payment of a sum

equal‘to the amount -he normally would have earned -

as wages from August.24, 1964, to the date an offer of “|

reinstatement is made to him, together with interest a

- thereon as provided below. The loss of pay should be

computed ‘in accordance with the formula and method

prescribed by the Board in F. W. Woolworth Company,

90 NLRB 289, and thé interest, payable in accordance

with Isis Plumbing .&. Heating Co., 138 NLRB 716,

should be computed at the- rate of 6 percént per annum —

on the amount due for each calendar quarter (under the

‘Woolworth formula) beginning with the end ofthe first

calendar quarter and continuing with each: succeeding

calendar quarter until payment of such amount is Prop-

erly —— oo... ;

—Sil— :%

ease

‘It having been found that Respondent discriminated

against its employee Charles Cleveland by suspending

him from August 11, 1964, until August 18, 1964, it

will be recommended that Respondent make him whole

for any loss of earnings he may have suffered because .

of said discrimination against him by payment of a’sum

equal to the amount. he normally would have earned

as wages Gai; the period he was suspended. |

Inasmuch as certain of the unfair labor viracticns

committed by, the Respondent are ‘of a character strik-

‘ing at the root of employees’ rights safeguarded by the

_ Act, it will be further recommended that the Respond-

ent be- ordered: to cease and desist from infringing in

any manner upon the rights guaranteed | its employees -

in Section Tof the Act. —

In view of the finding hereinabove of a threat by Re-

spondent violative of Section 8(a)(1) of the Act in the-

circumstances of parallel threats by “outsiders,” and

by its violations of Section 8(4)(3) of the Act, it is

deemed necessary to effectuate the policies of the. Act

that Respondent make clear to its employees that it.

will not carry out its threat.

_ Upon the basis of the above findings of fact thar

upon the entire record in the case, I make the follow-

| | Conclusions of Law

t.. Respondent interfered with, restrained, and: co-

erced its employees within the meaning of Section 8

(a) ( 1) of the Act by threatening that, if they selected

the. Union as their collective-bargaining representa-

tive, the employment at Respondent’s. plant would be

adversely affected... ,

2. Respondent discriminated ‘against its” jembibiee

Hoke ‘i. Smith, ‘in violation of Section 8(a)(3) and (1)

_—

—

of the Act by transferring him én July. 27, 1964, from

_ his then job to a more arduous job and by construct-

ively discharging him on August 24, 1964.

Respondent discrimina against. its iittala

3 ana Cleveland in violation of Section 8(a)(3) and

(1) of the Act by suspending him from —— 11-to

August 18, 1964. ;

4. General Counsel failed to prove by a. seinen

‘ite of the evidence that Respondent violated Section

8(a)(1) of the Act by the conduct epaach in paragraphs )

11, 13, and-14 of the complaint. °

5. General Counsel failed to prove by a preponder-

ance of the evidence that Respondent violated Section* .

8(a)(3) and (1) of the Act by the ound alleged in’

pattie 15 ofthe complaint. - «

; ‘RECOMMENDED ORDER

Upon the basis of the above findings of fact, conclu-

sions‘of law, and the entire record in .the case, and

pursuant to ion 10(c) of the National Labor Rela-

_ tions Act, as Amended, it is recommended: that Monroe

Auto Equipment Company, its officers, agents, suc-

cessors, and assigns, shall:

. 1. .Cease and desist from: _ ee

(a) Interfering with, restraining, and coercing ‘its

‘employees in the exercise of rights guaranteed under

Section 7. of the National Labor Relations Act; as

amended, by threatening that, if its employees should

select the International Union, United Automobile,

Aerospace & Agricultural. Implement Workers of

‘America (UAW) AFL-CIO, as their collective-bargain- .

ing representative, employment at its plant would be

adversely affected. |

| , ee

‘(b). Discouraging membership in said Union, :or in

any, other labor organization if its employees, by

ing in regard to their hire or tenure of em-

* ployment or any term or r condition of employment. °

(c)’ In any “other manner interfering with, réstrain-

ing, or coerting its employees in the exercise of the

right to self-organization, to join, form, or assist labor

organizations, including the above-named labor. or- .

ganization, to bargain collectively thrqugh representa-

tives of their own choosing, and~to engage in other

concerted activities fot the purpose of collective bar-'

’ frain'from any or all such eee. ' ;

2. Take the following affirmative action which it

is deemed will effectuate the policies of the Act:

Str if

(a) Offer to Hoke H. Smith .immediate’ and full

reinstatement to the job he held prior to his discrimi-

natory transfer on J uly27, 1964, or to a substantially

equivalent position, without prejudice to his seniority

or other rights and privileges:and make him whole for

any loss of earnings he may :have suffered as: he re-

sult of Respondent’s discrimination | against - m in

constructively discharging him-on August 24, 1964, as

provided in the section of ° this Decision: entitled “The -

“Remedy.” ;

(b) -Make Charles Cleveland whole for any loss

of earnings he may have suffered as a result of the

discrimination against him as provided in the section -

Pe this Decision entitled “The Remedy. ida °

the Armed Forces of the United States, of his right

to full reinstatement upon application, in accordance

with the Selective: Service Act and the Universal Mil-.

“a

Appendix

itary Training and Service Act 9f 1948, as amended,

after discharge from the Ar orces. = :

(d) Preserve and make available to the Board or: °

its agents, upon request, for examination and copying,

all payroll records; social security payment .records,

timecaids, personnel’ ‘Fecords, and. all other records .

‘necessary to determine the amount of backpay due

under the terms of this Recommended Order. |

(e) Post at its plant in Hartwell, Georgia, copies of

: the notice attached hereto and marked. “Appendix.””?

- Director for the Tenth Region, shall, after being signed

by. an authorized representative of the Respondent, be -

posted immediately upon receipt thereof and be main-

tained by it ‘for a peridd of 60 consecutive days there-

after in conspicuous places, including all places where

notices to employees are customarily -posted. Reason--

able steps shall be taken by the Respondent to insure

that such notices are not altered, defaced, or covered

by any other material.

(f) Notify said Regional Director, in zm, in writing within

20 days from--the- _reeeipt-of-this Becis ision +g steps.

the Respondent has taken to comply herewith.’

It is further ordered that the complaint ‘be dismissed®

insofar. as it relates to the unfair labor practions a

12 If these aati are adopted by the Board, the words “A

- DECISION AND ORDER” shall be substituted for the words “THE.

RECOMMENDATIONS OF A TRIAL EXAMINER?” in the notice.

If the Board’s Order is enforced by a decree of a United States.

Court of Appeals, the notice will be further aménded by the sub-

stitution of the words “A DECREE OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER” for the words

“A DECISION AND ORDER.”

18 If these tions are adopted by the Board, this provision

° shall be modified read: : “Notify the Regional Director for the

Tenth Region, in writing, within 10 days from the date of this

Order, why t ‘steps the Respondent has taken to comply herewith. ,

. ° Appendir

in paragraphs 11, 13, 14, and 15 thereof.

‘ Dated at Washington, D.C. Mareh 18, 1966,

(Signed) STANLEY GILBERT

3% . Stanley Gilbert .

Trial Examiner.

x : a

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—— a

—— 3

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—e bee en Lond —

- APPENDIX Cc

UNITED STATES COURT OF APPEALS eal

FORTHE FIFTHCIRCUIT |! -

NATIONAL LABOR ——e BOARD, Petitioner,

MONROE AUTO EQUIPMENT COMPANY,

Respondent. .

No. 24881

e.g DECREE

Before: Brown, Chief J udge, easy Ainsworth & Godbold,

Circuit Judges.

BY THE COURT:

“THIS CAUSE came on to be heard upon the petition

of the National Labor Relations Board for. the enforce-

ment of a certain order issued by it against Monroe

Auto Equipment Company, its officers, agents, suc-

_ cessors, and assigns on June 19, 1966. The Court heard’

» argument of respective counsel.on March ;13, 1968, and

has considered the briefs and transcript of record filed

in this cause. On April 4, 1968, the Court, being fully

advised in the premises, handed down its decision immed

ing enforcement of the Board’s Order. ; .

- ON CONSIDERATION WHEREOF, it is ordered, ad-

judged and decreed by the United States Court of Ap-

peals for the Fifth Circuit that the said order of. the

‘National Labor Relations Board in said proceeding be

enforced, and that Monroe Auto Equipment Company,

its officers, agents; sccessors, and assigns abide by and

perform the directions of the Board in said order con- —

tained.

ENTERED; April 29, 1968 - .

(ORIGINAL FILED—APRIL 29, : 1968)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.