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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1968
- **Citation:** 393 U.S. 922

## Text

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

© Aue zi 968 fs

JOHN F. DAVIS, CLERK -

e - . 7 -

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

* et ¥ a guiemhe..

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

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:

+5

‘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
| ‘

2

, 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).

Md

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.
bt

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.

d
‘

“

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-

y

‘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.

ll
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
d

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. 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

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

ee

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

5

= 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?”

+
E
H
a
sir
i
g
gs
J

“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
8(a)(3) and (1) of the Act are predicated it is noted ©
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
cleaned as instructed.” Cleveland was given the no- ©
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

© thereto). It appears from the testimony of all of the
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

a

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,

Considering all the circumstances (including the mi- ©
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

a

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. - «

a
; ‘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-'
gaining or other mutual aid or. protection, : /or to re- ©
’ frain'from any or all such eee. ' ;

é

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 °

(c) Notify Hoke H, Smith if presently serving in
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.””?

_ Copiés of such notice, to be furnished by the Regional ©
- 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.

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- APPENDIX Cc

UNITED STATES COURT OF APPEALS eal
FORTHE FIFTHCIRCUIT |! -

NATIONAL LABOR ——e BOARD, Petitioner,
V.
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.

ae

ENTERED; April 29, 1968 - .
(ORIGINAL FILED—APRIL 29, : 1968)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0104%3A1. Public record. Not legal advice.