Petition for Writ of Certiorari — Monroe Auto Equipment Co. v. National Labor Relations Board

MAY 13 1979

JOHN F. DAVIS CLERK

IN THE

Supreme Court of the United States

October Term, 1969

MONROE AUTO EQUIPMENT COMPANY,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD, »

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

J. Max Harding

John E. Tate

Charles E. Sykes

300 N.S.E.A. Building

P, 0. Box 2028

incoln, Nebraska 68501

ttorneys for Petitioner

GANT PUBLISHING COMPANY, 1610 N Street, Lincoln, Nebraska

—

TABLE OF CONTENTS

Subject Index

Page

NE I srceetniiieccrnstnestineitntatitinntronisinatioeetniainenensnsioneees 1

LE a idlaeaemaben 2

EE ee 2

ESE a ea ey 2

SE EE 3

8 a a ea 3

II. The Trial Examiner’s decision _......________-- 4

III. The Board’s decision and order -....-________- 4

IV. The decision of the Court of Appeals -..______- 5

Reasons for Granting the Writ -.....-.---......____- 6

I. The decision of the court below is repugnant to

the due process provisions of the Fifth Amend-

ment to the Constitution -................... 6

II. The decision below is in conflict with decisions

of the United States Court of Appeals for the

NII isabelle ah sindatenisbtbeeababsipeant 8

III. The decision below is in conflict with a decision

of the United States Court of Appeals for the

eT IIE ict cinsisacestednceibneailidienntehdeaernierties 9

IV. The decision below is in conflict with a decision

of the United States Court of Appeals for the

RN IIT steko esisciieheeselinsinatsbnmasdiipoamtsnienichiebeaiinino 10

V. The decision below is in conflict with a decision

of the United States Court of Appeals for the

ee ee a 11

VI. The decision below is in conflict with a decision

of the United States Court of Appeals for the

I ata cal aie ati cies 12

VII. The decision below is repugnant to this Court’s

decision in Local Lodge No. 1424 v. National

4 REPELS eae. MALES SSI ILE LE IO LO IE ELSE I ELLRS DEAE EME IEE OE IED Rass

aes a

ii

Page

Labor Relations Board, 362 U. S. 411 ( 1960) __ 12

RIND tess iccditbinreuniceiiealthehashaenbelewneinauatioveaimentbiedes 13

APPENDIX:

1. The decision of the United States Court of Appeals

8, Ee ne eee rE A 15

2. The Trial Examiner’s decision _____._......______ A 19

3. Decision and order of the National Labor Relations

SRC RENT IT PLO ERE CLE, RE SECS A 32

TABLE OF AUTHORITIES

Cases Cited

Local Lodge No. 1424 v. N.L.R. B., 362 U. S. 411 (1960) 12

Metropolitan Life Insurance Company v. N.L.R.B., 371

ee | nee 11

Monroe Auto Equipment Co., 159 N.L.R.B. No. 65 ____ 4,8

Monroe Auto Equipment Co., 169 N.L.R.B. No. 16 __.. 2

N.L.R.B. v. Mac Millan Ring Free Oil Co., 394 F. 2d

a Oe Oe ED ics sete enlniederi 10

N.L.R.B. v. Monroe Auto Equipment Co., 392 F. 2d

Or a 5, 6, 8

N.L.R.B. v. Monroe Auto Equipment Co., 420 F. 2d 861

ne bn cc ER LD ED Ee Oe 2

N.L.R.B. v. Park Edge Sheridan Meats Inc., 341 F. 2d

We NSE. SD ccc wtineneddetadek dbucudweson ce 9

N.L.R.B. v. Southern Transport, Inc., 355 F. 2d 978

8 aS a On Ene Dene Te” He 8, 12

N.L.R.B. v. Stevensen Brick & Block Co., 393 F. 2d

Me A00e OG SED ecneuahenwebunceuieta noe. 11

Singer Co. v. N.L.R.B., 371 F. 2d 623 (CA 8, 1967) ___. 9

Statutes Cited

National Labor Relations Act, as amended (61 Stat.

a

Se

RES PRADA ARUN “AYER TRE NEI MIRAE SNS ERT ESSER Te eon Rime? Soha) pS SELES SS a

iii

Page

136; 72 Stat. 945; 73 Stat. 544; 29 U. S.C. § 141

et seq.):

SUTIN: seins doseaieiscoicarmctiasidhtess vtec 2

: I PEED “incinitisnccdstbaenleuibonicciedubaeals 3, 4, 7

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EAE LOIGA AMA OE SSA EE SIN RAC ne dma

IN THE

Supreme Court of the United States

October Term, 1969

Se anmeene

MONROE AUTO EQUIPMENT COMPANY,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

The Monroe Auto Equipment Co., Hartwell Division,

Petitioner herein, prays that a Writ of Certiorari issue to

review the decision of the United States Court of Appeals

for the Fifth Circuit, entered in this case on January 239,

1970, rehearing denied March 26, 1970, granting enforce-

ment of an order issued against the Petitioner by the Na-

tional Labor Relations Board.

OPINIONS BELOW

The Opinion of the Court of Appeals (App., infra pp. A

15 A 18) is reported at 420 F. 2d 861 (CA 5, 1969). The

Si a ee :

—~2—

findings of fact, conclusions of law and order of the Na-

tional Labor Relations Board are reported at 169 N.L.RB.

No. 16 (App., infra pp. A 32 A 36)

JURISDICTION

The decision of the Court of Appeals was rendered on

January 29, 1970. A petition for rehearing was filed on

February 28, 1970 and on March 26, 1970 the Court entered

an order denying the petition for rehearing. The jurisdic-

tion of this Court is invoked under 28 U. S. C. § 1254(1) and

Section 10(e) of the National Labor Relations Act, as .

amended 29 U. S. C. § 160(e).

QUESTION PRESENTED

Whether the Board and Court below are statutorily and

constitutionally prohibited from predicating a current find-

ing of a violation of the Act upon a prior violation?

STATUTES INVOLVED

The National Labor Relations Act, as amended (61 Stat.

136; 72 Stat. 945; 73 Stat. 544; 29 U.S. C., § 141 et seq.),

insofar as is pertinent herein provides:

Section 7

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively through respresentatives of their own

choosing, and to engage in other concerted activities

for the purpose of collective bargaining or other mu-

tual aid or protection, and shall also have the right to

refrain from any or all of such activities except to the

extent that such right may be affected by an agree-

ment requiring membership in a labor organization

as a condition of employment as authorized in Sec-

tion 8(a)(3).

7 nem eet eek a

ie PEE WAT SF ee EES Bhar A

—

eufian

Section 8

(a) It shall be an unfair labor practice for an em-

ployer—

(1) to interfere with, restrain or coerce em-

ployees in the exercise of the rights guaran-

teed in Section 7;

(3) by discrimination in regard to hire or ten-

ure of employment or any term or condition

of employment to encourage or discourage

membership in any labor organization.

Section 10

(b) Provided, That no complaint shall issue based

upon any unfair labor practice occurring more

than six months prior to the filing of the charge

with the Board and the service of a copy there-

of upon the person against whom such charge is

made.

STATEMENT OF THE CASE

IL

The Facts

The instant proceeding involves the termination of one

employee, William J. Phillips, an active union adherent by

the Petitioner. Phillips was reassigned to another posi-

tion shortly after a representation election was held at

the Petitioner’s plant at which Phillips acted as an ob-

server at the polls for the participating labor organization.

Phillips refused to accept the reassignment which did

not affect his shift, seniority, rate of pay or involve more

arduous working conditions, Phillips refused to accept the

new job assignment and was therefore terminated.

Approximately five and one half months later a charge

—_—— FON TEMIER ILE CIEL LNY BELLIS TIE SAE, STRAIT ea are a ae

————

_

was filed with the National Labor Relations Board on

Phillips’ behalf. Subsequent thereto a hearing was held

before a duly designated Trial Examiner of the Board.

(App., infra, pp. A 19 A 31)

IL.

The Trial Examiner’s Decision

The Trial Examiner after carefully considering the Peti-

tioner’s previous discrimination against union observers,

Monroe Auto Equipment Company, 159 N.L.R.B. No. 65

and the timing of the transfer concluded:

Nevertheless, I am in this record unable to conclude

that the General Counsel has established by a prepon-

derance of the evidence that the job transfer in ques-

tion was discriminatorily motivated and that Phillips’

termination which resulted when he refused to accept

the new assignment was therefore violative of Sections

8(a) (3) and (1) of the Act. (App., infra, p. A 29)

Ill.

The Board’s Decision and Order

The Board in reversing the Trial Examiner concluded

that the Petitioner’s established anti union animus’ and

the absence of any affirmative evidence concerning the

reason for the transfer established a strong prima facie case,

which the Respondent failed to rebut. (App., infra, p.

A 33)

1. In 1964 the Board found that the Petitioner violated Sections

8(a)(3) and (1) of the Act by discriminating against two union

observers. Monroe Auto Equipment Company, 159 N.L.R.B. No. 65;

(Enforced): 392 F. 2d 559 (CA 5, 1968).

EERE T TT RAE LEI EOI HILLEL IY AINE DRIES WES AY, —————

wiles

IV.

The Decision of the Court of Appeals

| The Court, Judge Coleman dissenting, enforced the

Board’s Order. The primary basis upon which the Board’s

Order was enforced is critical to this analysis. The Court

stated:

This case appears to be a sequel to National Labor

Relations Board v. Monroe Auto Equipment Company,

, 5 Cir. 1968, 392 F. 2d 559, in more respects than

merely a reference to the earlier case as relevant to

our consideration of the employer’s attitude towards

the union. (App., infra, p. A 15)

| We conclude that in light of the previous similar

| conduct by this employer in transferring two union

| watchers of the polls for the impermissible purpose

of discriminating against them, as we found to be

the case in the earlier decision, 392 F. 2d 559, . . . was

for a discriminatory purpose.” (App., infra, p. A 18)

Judge Coleman in dissent stated:

I think the Trial Examiner, rather than the Board,

applied the current legal standard. (App., infra, p.

A 18)

2. The court also discussed the circumstances of the case, (1)

Phillips’ transfer without explanation; (2) the reference made about

him to other employees, and (3) the pointed reference to treating

union members like everybody else shortly after the election. The

Petitioner is unable to understand how point (3) is a circumstance

supporting the Board’s decision. (App., infra, p. A 16)

— GEE OCELL ELL EOD ILE IIE ION FOIE RIL OEY BEE

po

REASONS FOR GRANTING THE WRIT

L

The decision of the Court below is repugnant to the due

process provisions of the Fifth Amendment to the

Constitution.

We respectfully submit that the decision of a majority

of the panel of the United States Court of Appeals for

the Fifth Circuit is constitutionally deficient and statu-

torily unsound. The Petitioner, clearly recognizes the

fact that the foregoing allegation is sweeping but the clear

deficiencies are patently obvious. Under our system of

justice which this Court has steadfastly protected “due

process” has become the “battle cry” for every dissatis-

fied petitioner. We too are dissatisfied with the Court’s

opinion, as is any loser, but our dissatisfaction goes one step

further, and we submit this is the critical step—the Court

below has “convicted” the saggy: odes upon the prem-

ise once guilty always guilty. e tly admit that the

foregoing statement, while appearing “rash,” is factual

as we will hereinafter illustrate.

Certain findings contained in the opening paragraph and

closing paragraph of the Court’s majority opinion clearly

propound the thesis “once guilty always guilty.”

“This case appears to be a sequel to National Labor

Relations Board v. Monroe Auto Equipment Company,

5 Cir. 1968, 392 F. 2d 559 in more respects than merely

a reference to the earlier case as relevant to our con-

sideration of the employer’s attitude toward the union.”

eo * ”

“We conclude that in light of the previous similar

conduct by their employer in transferring two union

watchers at the polls for the unpermissible purpose

of discriminating against them, as we found to be the

case in the earlier decision. 392 F. 2d 559.”

————

wilties

In short, the majority found that due to the other “cir-

cumstances” as contrasted io “evidence” that the Peti-

tioner violated Sections 8(a)(3) and (1) of the Act.

The Trial Examiner who heard their cause could find

no evidence to support a finding of a violation of the Act

in any respect and recommended that the Complaint be dis-

missed in its entirety, Judge Coleman in his dissent agreed,

stating that the “Trial Examiner, rather than the Board,

applied the correct legal standard.” (Emphasis supplied).

We respectfully submit that the Court’s failure to apply

the correct legal standard resulted in the issuance of

a mandate constitutionally deficient as it promulgates a

doctrine once guilty always guilty.”

The Petitioner is unaware of any case law that would

support a hypothesis “once guilty always guilty” with the

single exception of the instant cause. The Board and a

majority of the Court have reached a conclusion predi-

cated upon a premise repugnant to the case law of every

other Court of Appeals having reached this issue. The

Board and a majority of the Court have transformed the

Petitioner’s prior conviction into an almost irrebuttable

8. The circumstances referred to by the Court are as follows: (1)

the alleged discriminator was transferred without explanation. The

discriminator was transferred to a different job on the same shift

without any loss of earnings, nor was the job more onerous. Appar-

ently the record is devoid of any evidence that transfers are ex-

plained to the affected employee. (2) The transfer was effectuated

after a reference was made to the discriminator. A foreman told an-

other employee not to “buddy up” with the discriminator. Interest-

ingly enough is the “feel” that the night shift superintendent advised

the discriminator of his transfer. (3) Shortly after the election a

reference was made to treating union members like everybody else.

The Petitioner is unable to fathom how point 3 is evidence of dis-

crimination. The Board has not taken issue with the fact that the

discriminatee’s “transfer,” assignment to another machine, did not

result in any change in hours, pay, or supervision.

a PEEP AA IER ILD LLL IE LEE IIE ED BE PLETE NCE ORS

beet —

-

evidentiary conclusion. It is this evidentiary conclusion

that has deprived the Petitioner of due process. The Board

with the Court’s approval used the Petitioner’s prior mis-

conduct, Monroe Auto Equipment Company’, to find that

the Petitioner in this case was to be charged with “estab-

lished anti-union animus.” What is determinative is that

the Board and a majority of the Court relied on “anti-union

animus that was found to be the case in 1964. Therefore,

the 1964 animus must have a “life span” to carry over

to 1966 where the instant cause has its origin. Such a

proposition clearly means once a wrongdoer always a

wrongdoer. The Petitioner paid the full price for its

1964 sins, this Court should not allow a procedure to be

invoked whereby the Petitioner must again in 1966 pay

the “price” for its 1964 sins, such a procedure could and

may well go on and on. We submit that such a procedure is

constitutionally defective. The decisions of numerous

other Circuits are diametrically opposed to the “eviden-

tiary” proposition enunciated in the instant cause.

The decision below is in conflict with decisions of the

United States Court of Appeals for the Eighth Circuit.

In National Labor Relations Board v. Southern Transport,

’ Inv., 355 F. 2d 978, 981-982 the Eighth Circuit stated: .- . - ..

“We, therefore cannot hold that the adjudication of

bad faith on an earlier occasion is alone substantial

evidence of present bad faith to support the Board’s

finding. We recognize that the Board may view and

consider the background of the parties and their rast

conduct as it relates to their management-employee

practices, but findings and conclusions based on that

4. 159 N.L.R.B. No. 65; (Enforced): 392 F. 2d 559 (CA5, 1968).

wk

9 ee ae

OES ELE PLOY LEI LUNES PLE MEMES LEI, IONE SOLEIL LOS EAGER AE ER eae

_

a

evidence alone are not sufficient for a valid order.”

In our cause there is not a scintilla of evidence to show

present union hostility but the Board and a majority of

the Court “link up” the 1964 sins to the 1966 misconduct to

achieve the final result, this we submit is constitutionally

defective. In Singer Co. v. National Labor Relations Board,

371 F. 2d 623 (CA &, 1967) the Board attempted to link

past sins to “float” its case before the Court. The Court

refused to accept such a hypothesis and denied enforcement

of the Board’s order:

“In our present case, there is no evidence whatsoever

of present union hostility on the part of Singer.”

The decision below is in conflict with a decision of the

United States Court of Appeals for the Second Circuit.

In National Labor Relations Board v. Park Edge Sheri-

dan Meats Inc., 341 F. 2d 725 (CA 2, 1965) the second Cir-

cuit clearly rejected the tenants and scriptures of the evi-

dentiary proposition enunciated by a majority of the Court

in the instant cause:

“Having apparently learned a lesson from the prior pro-

ceeding, the respondents engaged an experienced labor

attorney who endeavored to keep their conduct within

what he considered the range permitted by law. We

would not be misunderstood in saying that advice of

counsel, even if precisely followed, is a defense to

an unfair labor practice charge .. . But when a party

that has erred in the past places itself in the hands

of capable counsel who gives reasonable advice for

the future, and there is a significant improvement

in its conduct, it had not been viewed as having such a

propensity for sin that every episode is given the

worst interpretation, or be condemned by an indis-

ae AUG TE ESS LI RS TENE SEN Oa one Ceo

—y

—

criminate repetition of the phrase that its conduct

‘must be assessed against the background of its earlier

unfair labor practices.’ * * *” Id. at 727.

Iv.

The decision below is in conflict with a decision of the |

United States Court of Appeals for the Ninth Circuit.

The majority of the Court below obviously placed pri-

mary reliance on the Petitioner’s 1964 violation of the Act.

This primary reliance was translated into the determina-

tive factor in enforcing the Board’s order. We respect-

fully submit that the foregoing procedure was statutorily

unsound, and constitutionally deficient. In National Labor

Relations Board v. Mac Millan Ring-Free Oil Co., 394 F. 2d

26 (CA 9, 1968) the Ninth Circuit stated:

“The nature of the Act is such that unfair labor prac-

tices depend generally upon the existence of some

illicit intent, proof of which often involves inferences

drawn from conduct over a long period of time. Here,

for instance, much of the evidence in question ante-

dated the charge by more than three years. Even

longer delays are by no means inconceivable. When

such evidence provides the principle foundation for an

unfair labor practice claim, an approach which makes

determinative the fact that the claim technically dates

back only six months fails to deal adequately with

reality. To allow primary reliance on evidence drawn

from a time prior to the limitations period cannot,

therefore, be reconciled with the thrust of § 10(b),

It is all too clear that the decision of the Court below

cannot be reconciled with the foregoing decision.

_

=] ]—

Vv.

The decision below is in conflict with a decision of the

United States Court of Appeals for the Fourth Circuit.

In National Labor Relations Board v. Stevensen Brick

& Block Co., 393 F. 2d 234, (CA 4, 1968) Judge Sobelof

held:

The Trial Examiner further predicated his decision

upon the employer’s unfair labor practicies committed

more than seven months before the bargaining sessions

began. Such remote conduct has little probative value

in determining the employer’s bargaining intentions.

Their misconduct cannot, therefore, support the charge

of refusing to bargain in violation of Section 8(a) (5)

without some showing of bad faith at the negotiations

themselves. As indicated above, no such showing has

been made.

There is little the Petitioner can add to Judge Sobelof’s

pronouncements except that it is clear that they cannot be

reconciled with the majority opinion below in this cause.

Distinctions may be based upon triviality and irrelevant

points but in the final analysis the above case and the

aforementioned cases cannot be reconciled with the deci-

sion below. We submit that this is due to two basic rea-

sons, one that the decision below is statutorily unsound

and secondly, constitutionally deficient.

VI.

The decision below is in conflict with a decision of the

United States Court of Appeals for the Sixth Circuit.

In Metropolitan Life Insurance Company v. National

Labor Relations Board, 371 F. 2d 573 (CA 6, 1967) the

Sixth Circuit held:

“The burden is not met by showing that the em-

——

=

ployer had been convicted of violations of the National

Labor Relations Act or was at one time hostile to the

union. N.L.R.B. v. Murray Ohio Mfg. Co., 328 F. 2d

613 (CA 6, 1964).

ca * *

“Such motivation cannot be inferred from testimony

of events occurring more than six months to the filing

of the complaint where such testimony ‘seems to cloak

with illegality that which was otherwise lawful.’ ” Id.

at 580.

The Court below enveloped the Petitioner with the

“cloak of illegality” based on misconduct almost two years

old.

Vil.

The decision below is repugnant to this Court’s decision

in Local Lodge No. 1424 v. National Labor Relations

Board, 362 U. S. 411 (1960).

We earnestly submit that the Board and Court’s use of

the Petitioner’s 1964 violation to convict the Petitioner in

1966 is unsound. The Petitioner paid the price for its sins,

abided by the Court’s order, there is no dispute as to this

point, but was again convicted in 1966 based upon an evi-

dentiary proposition which resurrected the 1964 transgres-

sions coupled them to the 1966 events in order to find a

violation. Such syllogistic reasoning violates both the prin-

ciple and spirit of this Tourt decision in Local Lodge No.

1424 v. National Labor Relations Board, 362 U. S. 411

(1960). The entire foundation of this cause is bottomed

upon the Petitioner’s 1964 transgressions, a proposition

which is statutorily, legislatively and constitutionally un-

sound. Judge Gibson, writing for the Eighth Circuit’

5. N.L.R.B. v. Southern Transport, Inc., 355 F. 2d 978 (CA 8, 1966).

» oeth

ANG REPAIRS IE ERTIES MOM SIS LUE PEN ELODIE NEAR MIY RE ri sarin mt gn nett :

—13—

cogently stated the proposition we urgently beseech this

Court to accept in this cause:

“This reasoning is not only objectionable as presuming

illegal conduct on the part of the respondent, it is fal-

lacious in assuming a party once adjudicated in bad

faith remains so....

» * * *

“Furthermore, the proposition that a prior adjudica-

tion of bad faith will alone support a finding that a

demand, otherwise lawful, was made in the present

: instance in bad faith is unacceptable to our standards

of justice.”

Judge Gibson clearly pointed out the Petitioner’s 1964

adjudication should not be used as an all encompassing

cloak of illegality to transform the Petitioner’s every act

into a statutory transgression:

“Not only is this past adjudication lacking in proper

probative value, but if the Board were to be upheld on

| this point, one adjudication of bad faith would place

: the burden on a party to thereafter prove the good

| faith of all his future activies.”

The vice of the instant cause was cogently described by

Judge Gibson when he stated:

In addition, if one adjudication were sufficient evi-

dence to support any future findings of bad faith, the

Board would thereafter be armed with all the evidence

necessary to sustain the position in future holdings

against this party. The Courts would be virtually

removed from the scene, and the party, deprived of

judicial protection, would thereafter be at the mercy

of an over-zealous Board.

CONCLUSION

The question presented herein is not one of substantial

evidence, it is far more. It poses the question of whether

BBR ORE ONS ETE RNS SERIA IOP IPCI PRR RNB AT Seca pT

Foe PML OOD

=

the Board with the approval of a majority of the Court

below can invoke an evidentiary proposition alien to

our jurisprudential system. The Board and the Court be-

low did not merely view and consider the background of

the Petitioner they transformed our prior transgression

into an evidentiary proposition of sufficient magnitude to

convict the Petitioner on the basis of a prior wrongdoing.

Such a proposition is statutorily unsound and constitution-

ally deficient in that it violates the due process provisions

of the Fifth Amendment to the Constitution of the United

States.

Respectfully submitted,

NELSON, HARDING, MARCHETTI,

LEONARD & TATE

JOHN E. TaTE

CHARLES E. SYKES

300 N.S.E.A. Building

14th & J Streets

P. O. Box 2028

Lincoln, Nebraska 68501

CERTIFICATE

Copies mailed to the Solicitor General and General

Counsel as per certificate of Service on file.

LEO REE LE ROLLE LITE SOILS ILE I

BEeAC

—

DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

—15—

APPENDIX

In The

United States Court of Appeals

For the Fifth Circuit

No. 27430

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

MONROE AUTO EQUIPMENT CO., HARTWELL

DIVISION,

Respondent.

Application for Enforcement of an Order of the

National Labor Relations Board (Georgia Case)

(December 29, 1969)

Before TUTTLE, COLEMAN and SIMPSON.

TUTTLE, Circuit Judge: This case appears to be a

sequel to National Labor Relations Board v. Monroe Auto

Equipment Company, 5 Cir. 1968, 392 F. 2d 559, in more

respects than merely a reference to the earlier case as

relevant to our consideration of the employer’s attitude

towards the union. In the earlier case this court affirmed

the Labor Board’s decision, which in turn adopted and

affirmed the trial examiner’s findings and recommendations

that Monroe had been guilty of violating Section 8(a) (3)

of the National Labor Relations Act by transferring for

PRES PR an Rte ae, See

—

= ae

Appendiz

dscriminatory purposes two employees who had been

union observers at a representation election.

This case also arises because Monroe transferred an

employee, William J. Phillips, who had been working for

the company for more than five years, without notice and

without assigning any reason for the action, during the

month following his acting as one of two union observers

during an election which the union won in March, 1966.

There is no dispute that Phillips was very active in the

campaign for the union, and, following the election, he

solicited many employees and was successful in obtaining

about one hundred signed union membership cards.

The facts as found by the trial examiner included the

following: About three days after the election, foreman

James Smith told an operator of a machine located near

Phillips’ work station, Furman Whitworth, not to “buddy

up with [Phillips] anymore.” Foreman Smith received

instructions from his superiors that if Phillips was “caught

loafing on the job to go through the regular procedure as

[he] would any other one.” Smith also received similar

instructions in regard to several other employees when

Superintendent Benny Reed told Smith to “watch all [the

union people] and to get rid of the union people as well as

other people if they got out of step, not to be scared to

discipline them.” Thereafter, an employee named Cole,

who had been operating a rewelding machine, was given in-

structions on Phillips’ machine, and on April 22, 1966, the

night superintendent told Phillips that he was being trans-

ferred that night to operate Cole’s machines. These were

rewelding machines and were unlike those which Phillips

had been working on. Phillips objected, and, the con-

versation being near the end of the week, he was given

_

4 Appendix

until the following Monday to make the transfer. On

Monday Phillips reported for work and was told to run

Cole’s rewelding machine. He objected, but the plant

superintendent said that this was all they had for him

and if he did not want the job the company would have

to discharge him.

The company, of course, contends that the power to

transfer employees freely, especially if there is no reduc-

tion in pay and no other hardships involved, which might

justify a grievance of any kind, which was the case here,

is the management’s prerogative that cannot be the basis

of a charge of discrimination. This is too broad a statement

of the principle. No citation of authority is needed to re-

state the proposition that management prerogatives may be

exercised freely, up to and including a discharge. On the

other hand, it is too well known for the citation of author-

ity to state that the management’s prerogative to effect a

discharge cannot be exercised if done for the illegal pur-

pose of discriminating against an employee on account of

protected activity. The company does not seriously chal-

lenge the proposition that Phillips was, in fact, being trans-

ferred to a machine with which he was unfamiliar in

order to discipline him for having engaged in union activ-

ities, this would amount to a violation of Section 8(a) (3).

The causal connection between his refusal to accept such

a transfer under those circumstances and his being dis-

charged for failure to make the transfer is too clear to

need any further proof of causation.

The employer stresses the fact that on the facts as

found by the examiner, all of which were accepted and

adopted by the Board, the examiner concluded that the

transfer was not “pretextual” for the purpose of causing

Phillips to refuse the transfer and thus be subjected to

a on reer NEEM ONO PEEL LIN SRL EM

—18—

Appendiz

being fired. However, it is the Board’s decision, not the

examiner’s, that we are required to review on a petition

to enforce.

We conclude that in light of the previous similar con-

duct by this employer in transferring two union watchers

at the polls for the impermissible purpose of discriminating

against them, as we found to be the case in the earlier

decision, 392 F. 2d 559, and in light of the other circum-

stances related above, we cannot conclude that there was

not substantial evidence on the record as a whole to sup-

port the Board’s finding that the conduct of the employer

in transferring Phillips, without explanation, and after the

reference was made about him to other employees and the

pointed reference to treating union members like every-

body else so shortly after the election was for a discrim-

inatory purpose.

The order will be ENFORCED.

COLEMAN, Circuit Judge, dissenting.

I respectfully dissent.

The disgruntled employee was transferred to another

job on the same shift and with the same pay. This was

hardly discriminatory, unless an employee has a right to

choose his work regardless of the needs or wishes of his

employer. The effect of the majority decision, I fear, is

that an employer cannot manage the internal operations of

his shop if he has committed an unfair labor practice in

some other instance. This is beyond the intent of the Act.

I think the Trial Examiner, rather than the Board, applied

the correct legal standard

With deference, I would deny enforcement.

ae

— 19

Appendiz

TRIAL EXAMINER’S DECISION

Statement of the Case

JOHN P. von ROHR, Trial Examiner: Upon a charge

filed on October 14, 1966, the Genera! Counsel of the Na-

tional Labor Relations Board, by the Regional Director for

Region Ten (Atlanta, Georgia) issued a complaint on De-

cember 9, 1966, against Monroe Auto Equipment Company,

Hartwell Division, herein called the Respondent or the

Company, alleging that it had engaged in certain unfair

labor practices affecting commerce within the meaning of

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

Act, as amended, 61 Stat. 136, herein called the Act.

Thereafter the Respondent filed an answer denying the

allegations of unlawful conduct allged in the complaint.

Pursuant to notice, a hearing was held before Trial Ex-

aminer John P von Rohr in Hartwell, Georgia on February

9 and March 30, 1967. All parties were represented by

counsel and were afforded opportunity to adduce evidence,

to examine and cross-examine witnesses and to file briefs.

Briefs have been received from the General Counsel and

the Respondent and they have been carefully considered.

Upon the entire record in this case and from my obser-

vation of the witnesses, I hereby make the following:

Finding of Facts and Conclusions

I. The business of the Respondent

The Respondent is a Michigan corporation with an office

and place of business located in Hartwell, Georgia where

it is engaged in the manufacture, sale and distribution of

automotive shock absorbers and related products. During

the 12 months preceding the hearing herein the respondent

i... EE ENGST MOO EIT SEL 2 BIE TR ne

= =

Appendiz

sold and shipped finished products valued in excess of

$50,000 from its plant in Hartwell, Georgia directly to cus-

tomers located at points and places outside the State of

Georgia.

The Respondent concedes, and I find, that it is engaged

in commerce within the meaning of Section 2(6) and (7)

of the Act.

II. The labor organization involved

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, UAW, AFL-

CIO, is a labor organization within the meaning of Sec-

tion 2(5) of the Act.

Ill. The Alleged Unfair Labor Practices

A. The Issue; Background

The sole issue in this case is whether employee William

J. Phillips was discriminatorily terminated on April 25,

1966, for refusing to accept a transfer to another job. This

involved a transfer from one type of production machine

to another machine on the same shift under the same fore-

man and at the same rate of pay. There is no allegation

or evidence that acceptance of the transfer would involve

less desirable working conditions or work of a more ardu-

ous nature.

There is no allegation or evidence of any independent

violations of Section 8(a)(1) of the Act by the Respondent

in the instant case. As a basis for showing anti-union

hostility in support of the alleged Section 8(a)(3) viola-

tion in this case, the General Counsel relies heavily upon a

previous Board decision against this same Respondent as

reported in Monroe Auto Equipment Company, 159 NLRB

™ dais sanaeaacn tain Moree ee aa

ae Se

_ _

=

Appendiz

No. 65. The events in the latter case arose out of an

organizing campaign by the Charging Union beginning in

the middle of 1963, which culminated with the Union’s

loss of a Board-conducted election on July 23 and 24, 1964.’

Insofar as pertinent here, the Board in the cited case up-

held the Trial Examiner’s finding that: (1) the Company

discriminatorily transferred an employee who had acted

as a union observer in the election to a more arduous and

disagreeable job; and that it later constructively discharged

this employee in violation of Section 8(a)(3) of the Act

by forcing his resignation in returning him to that job

when he reported back to work after a severe illness; (2)

that the Company discriminated against another employee

who also acted as Union observer to the election by giving

him a 7 day suspension allegedly for failing to obey an

order to clean up his work area; and (3) that the Company

did not violate the Act by its layoff of a third employee

known by it to be an active union adherent.

B. The facts

William J. Phillips began his employment with the Re-

spondent on June 15, 1959. He left his job in December

1960, but returned to the Company’s employ in September

1961, at which time he was placed on the assembly line

and worked on the third shift from 4 p.m. until 12 a.m.

Two months later he was given the job of operating a baffle

machine and an oil seal spring machine on the same shift.

He continued on this job until the spring of 1964, at which

time he requested and was granted a transfer to a job in the

shipping department on the day shift. After working in

this position for approximately 5 months, Phillips was re-

quested by the foreman and by the superintendent of the

1. This election was subsequently set aside by the Board.

—_——— TRATES RIE ORI NI 020 OI EN ae SS

—22—

Appendix

night shift to return to his former job of operating the

baffle spring machine and oil spring machine on that shift,

this apparently for the reason that the Company was

having difficulty in finding a replacement for Phillips when

he left that job. Although it appears that Phillips at first

was unwilling to return to his former job on the night shift,

he finally did so when promised an hourly 10 cent wage

increase. Phillips was granted this increase, but in order

to conform with the established rate schedule the Respond-

ent found it necessary to change his job classification to

that of a repairman. He had not been so classified when

he worked on these machines from November 1961 to the

spring of 1964.

A second election was held at Respondent’s plant on

March 3 and 4, 1966. Phillips and another employee acted

as observers for the Union on both days.’ Following the

election, which the Union won, he solicited employees to

sign union membership cards. According to Phillips, “after

the election I got around 100, 125, somewhere in that neigh-

borhood. I don’t remember . . . 150, I don’t remember

just how many.” There is no evidence that this activity

came to Respondent’s attention.

Curtis Bickery, in Respondent’s employ as a tool and die

maker for 8 years, testified without contradiction that on

the “night of the election” he was instructed by Thurston

Bickery, his foreman, to report to him any occasion when

he was called to make repairs on the machines which

Phillips operated. Employee Bickery said that the fore-

man advised him that an any such occasion “he (the fore-

2. Phillips testified that about 2 weeks prior to the election he

campaigned “strongly” for the Union. There is, however, no evi-

dence of company knowledge of any such activities.

mpage Coe

RENE REO LOLI SOLE IE IIIS ELEGANCE PINE SO EEN MRE ANA AO Eg SN

_"

= =

Appendiz

man) would like to go back there with me.” Bickery

testified that he had never before received similar instruc-

tions as to any other employee. Bickery said that he sub-

sequently had three or four occasions to make repairs on

Phillips’ machines and that I should be transferred off my

job. But he went ahead.’

Testifying also for the General Counsel was Furman

Whitworth, an employee who operated a machine about

15 feet from Phillips’ work station. Whitworth and Phillips

both worked on the same shift under James Smith (also

called Ed Smith), the foreman of department 13. Whit-

worth testified without contradition that about 3 days

after the election foreman Smtih told him that “I shouldn’t

buddy up with William Phillips any more.”

Although Foreman James Smith was hospitalized at the

time of Phillips’ termination, Smith was called by the

General Counsel and queried as to whether he had received

any special instructions after the election from Bennie

Reed, the general foreman on the night shift, concerning

Phillips.“ Smith responded that he did receive instructions,

these to the effect that “if he couldn’t do his job and if he

was caught loafing on the job to go through the regular

procedure as I would any other one.” However, Smith

testified that during the same period he received similar

instructions in regard to several other employees. When

Smith was asked if he received specific instructions con-

3. It appears that these were routine repairs, the type of

which commonly involved all production machinery.

4. Smith was no longer in Respondent’s employ at the time of the

haering. Refusing at first to comply with a subpoena issued by the

General Counsel, he did not testify until enforcement of the subpoena

was granted by a United States District Court.

ST Ew 5, NYY ig ce ~ <a - " .

—_—— OE AE MARE BRIM OE INS SE EEE PERT NETL SLI SIE DN IIORS RS eR RAAT an ae

—24-—

Appendix

cerning the disciplining of union people, Smith responded,

“I recall that Mr. Reed told me to—that I would have to

watch all of these people and to get rid of the union people

as well as other people if they got out of step, not to be

scared to discipline them.”

I turn now to the event of Phillips’ termination. Upon

reporting to work on April 22, 1966, a Friday, Phillips was

advised by Bennie Reed, the night superintendent, that

he was being transferred to operate a rewelding machine

which was located in another area of the same department.

As noted more fully hereinafter, this machine had been

operated by an employee named Cole. As will also be

noted, Cole had been receiving training concerning the

operation of Phillips’ oil seal spring machine and baffle

spring machine. Thus, it was Reed’s plan simply to trans-

fer Cole and Phillips to each other’s respective jobs at no

change in hours, supervision or rate of pay. In any event,

upon being apprized that he was being shifted to Cole’s

machine and that Cole would assume his job, Phillips asked

how long the transfer would remain in effect. Reed sug-

gested that they take the matter up the Grover Dudley,

the plant superintendent, they thereupon went to see Dud-

ley. Concerning the conversation which ensued, Phillips

testified “Dudley said it was his idea to transfer me and

I'd have to take this job. And I told him I didn’t think it

was right if I kept my job up. And I asked Grover how

long and he wouldn’t tell me for how long it would be.”

At Phillips’ request, Phillips, Reed and Dudley thereupon

went to Charles Gordon, the plant manager. Phillips’ tes-

timony conserning this conversation was partly fragmen-

tory and one particular aspect of it, as I shall later point

out, was somewhat hazy and confusing. However, his first

and most comprehensive account of this conversation was

as follows:

TAIT ELLE ETE A ELIS ENTS EOS ER AGB Tes AIR OE

—25—

Appendix

“We went to him [Charles Gordon] and he told Mr.

Dudley to put me back in the same area I was in re-

pairing shocks that night and tell me to watch Cole,

he was the fellow taking my job over that night. And

if anything went wrong with machines for me to fix

them. He told Mr. Dudley that he wanted me to work

in that department right around that area. Just give

me a job back there repairing shock.

But Mr. Dudley said he didn’t have enough repair-

men. Mr. Gordon told him to move one up, make

another repairman and give me that job back there.

But, then Mr. Gordon told Mr. Dudley to put me

back there just for that night, that they’d transfer

me on Monday.

And I told them this wasn’t right. And I didn’t

think I should be transferred off my job. But he went

ahead. I went back on that job that night and in the

meantime Mr. Gordon he jumped up and slapped the

desk and kind of said a little cuss word and said he

run the plant and I’d do like he said to do. And I

told him I didn’t have to do like he said to do if I was

right. So, anyway, I went on back on the job that he

wanted me to go on that night.”

“3

:

|

:

Later in his direct testimony Phillips said that Gordon ad-

vised him that “they were just going to move me around

and learn me all the jobs.” He stated however, that

Gordon did not say that the transfer could lead to a pro-

motion.” On cross-examination Phillips testified that at

one point he told Gordon that he would refuse to accept

the transfer, whereupon Gordon stated that he (Phillips)

would have until Monday to think it over. Phillips testi-

_

5. On several occasions previously Phillips had requested a trans-

fer to higher paying jobs. Phillips said these requests were refused

because “they always said it would cost the company too much money

to move me.”

LA 0k ROL BS xen et a eae t» 4 < -

—_— LEER LIOR PTL IM PAD LE LIE MLN EYE LED ARLE PSD NE BERL G RE GAO TO MR I Ot

—26-—-

Appendix

fied also that, “He (Gordon) said I’d be expected to take the

new job [on Monday] that they had offered me.” Phillips

also testified on cross that he told some of the employees,

upon returning to his work station from Gordon’s Office,

that he would not accept the transfer.

Following the weekend, Phillips reported to his regular

work station on Monday. He was met by Bob Isbell, the

assistant foreman who was acting in the place of hospital-

ized Foreman Smith. Isbell told him to go “up in front”

to Cole’s machine. Phillips thereupon went to Dudley.

Dudley asked if Isbell had not give him instructions. Ac-

cording to Phillips, he answered in the affirmative but he

thereupon told Dudley, “I reckon I was going to do the

job you wanted me to do on Friday.” Phillips said that

Dudley then told him to see Isbell again. He did so and

Isbell again advised him that he should “run Cole’s job.”

Phillips at this point sought out Dudley and Reed. Phillips

testified that “they told me that’s all they had for me and

if I didn’t want that they’d just have to discharge me.”

Pursuant to Gordon’s instructions, Reed thereupon wrote

up a discharge slip which stated as the reason for discharge

“Reason, refused to run assigned job.” Phillips testified

that at his insistance the two foremen then took him to

see Gordon. Gordon told Phillips that “what Dudley

said went .. . if I was discharged I was discharged.” With

this Phillips was terminated.

The Respondent did not call any of the supervisors who

participated in the decision to transfer Phillips from one

machine to another to explain the reason or basis for tak-

ing this action at this particular time. Plant Manager Gor-

don, when called by the Respondent, testified only that

Phillips was terminated because he refused to do the job

PST EM NY RY RRA Se N IE IP ASR TEN RAL RE i rnb ee oni us epee ano a RR do UN

—

Appendix

assigned to him.’ However, Foreman Smith testified to an

incident which he said gave rise to the initial decision to

train employee Cole in the operation of Phillips’ machine.

Thus, Smith testified that one evening, at some point fol-

lowing the election, it was ascertained that Phillips had

produced 1,000 defective springs.’ He said that Plant Su-

perintendent Dudley took the matter up with him and in-

structed that he train another employee to learn the opera-

tion of the spring machines. Smith testified that it was he

who suggested that employee Cole be so selected. As noted

heretofore, Cole, who worked on the night shift, came in

several hours early to receive this training. Although

Cole received his instructions from the day shift operator,

Phillips testified that he was aware that Cole was receiv-

ing this training. He said that he first observed this about

1144 months prior to his termination.

Smith testified that Dudley told him to train another

employee for Phillips’ jobs because “he [Dudley] felt that

Mr. Phillips was hindering our production or trying to

hinder our production.” He said, however, that Dudley

did not give him any further instructions concerning the

6. Gordon also testified that six repairmen were assigned to the

assembly line on each shift and that it was the policy of the Company

to rotate them. He said that this decision is up to the foreman and

that “if a man is weak in this point he will move a man into that

area to strengthen that particular segment of the line.” He testi-

fied further that Phillips’ job was within the repairman classification,

although he did not explain why Phillips was not classified as a re-

pairman when he initially operated the spring machines. As pre-

viously noted, Phillips was given the repairman classification when

he transferred to the night shift in 1964. It may be noted that

Phillips’ duties also entailed the changing of parts on the machine

when the line changed from one production job to another; further,

Phillips also performed the job of repairing shock absorbers.

7. The spring is a part which is later assembled into the shock

absorber.

= eR

Appendix

transfer of Phillips, although he testified that he assumed

Phillips ultimately would be transferred “because we

never have two people on one machine or one job.”

The foregoing has been set forth as the only disclosure in

the record as background for Respondent’s decision to

transfer Phillips from one job to another. It is clear that

the incident of the defective springs in itself did not play

any part in Phillips’ ultimate termination nor does Re-

spondent assert it as a reason therefor. However, I think

it proper to note that the evidence strongly suggests that

Phillips was not at fault for the production of the defec-

tive springs. Thus, not only was he not given any warn-

ing or reprimand therefor, but Smith conceded that: the

defective parts were produced as the result of a broken

part in the machine.’

ae

C. Conclusions

The circumstances of Respondent’s tool and die foreman

instructing a tool and die employee to report any work

orders for repairs on Phillips’ machines and the remark

of Foreman Smith to employee Whitworth that he should

not “buddy up with Phillips any more,” both of which

occurred at or following the day of the election wherein

8. It may be reiterated here that Smith was not present when

this decision was implemented or when Phillips was terminated.

9. The defective springs were discovered by the line inspector

in the course of his duties. The 1,000 defective parts were produced

during a period of % hour. Smith testified that the operator is also

responsible for checking the springs with hand guages. According

to Smith, Phillips should have made such a check every 15 minutes

and had he done so the error would have been corrected earlier. How-

ever, Phillips credibly testified that he was never given any specific

time within which to make such a check. The defect in question, it

may be noted, was not visible to the naked eye.

ai

. . P . 7” ‘aseuiacemes = _ “yee pang

BBs nD pe 8a FDR AIRE IT EE ES TO PTE IG AOE TEEN RCL TE ERY, GRATE 1 ee

_

29

Appendiz

Phillips acted as a union observer, give rise to suspicion

that these incidents were prompted by anti-union con-

siderations. This is particularly true when considered

against the background of Respondent’s discrimination

against the union observers in the preceding case, to which

reference has previously been made. Nevertheless, I am

on this record unable to conclude that the General Counsel

has established by a preponderance of the evidence that

the job transfer in question was discriminatorily moti-

vated and that Phillips’ termination which resulted when

he refused to accept the new assignment was therefore

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

The timing of events in cases of this nature are almost

always an important consideration in determining issues

of alleged discrimination. Here, the proposed transfer of

Phillips took place approximately 7 weeks following the

election. But also following the election occurred the inci-

dent wherein Phillips produced the 1000 defective parts.

Assuming that Phillips was not at fault in producing the

defective parts, the fact remains that the incident did give

the Respondent a tangible basis for training another em-

ployee in the operation of Phillips’ machine at the time of

the occurrence. The evidence does not, in my opinion,

warrant an inference that this action was taken as part of

a plan for later discrimination.

Aside from the foregoing, there is no evidence whatso-

ever, nor does the General Counsel contend, that the trans-

fer of Phillips to the rewelding machine would cause any

hardship to this employee. This job was on the same

shift and in the same department in which he was working.

It involved the same rate of pay and came under the same

supervision as his job on the baffle and oil spring ma-

chines, Indeed, Phillips admitted that he refused to ac-

a aa arn UT ORS

— 30

Appendix

cept the transfer without ever knowing what the new

job was about.” As to this reason for refusing the trans-

fer, Phillips testified, “and after the union election this

soon I thought, I felt, it [the transfer] was discrimination

to me.” In the absence of preponderant proof that the

transfer was discriminatorily motivated, the assumption

must lie that the transfer was based upon legitimate busi-

ness considerations.“ The fact that Phillips was a union

adherent and acted as a union observer did not give him

a vested interest in his job.

In his brief, the General Counsel argues as follows: “By

transferring Phillips, Respondent created a situation where

Phillips was placed in a job he knew nothing about, after

being uprooted from a job with which he was thoroughly

familiar. The way was then open for Respondent to bear

down on Phillips and to further discipline him for the

slightest mistake—a mistake which most probably [would

occur] because of Phillips’ unfamiliarity with the job.” Of

10. Thus, Phillips testified that he had never observed the reweld-

ing machine in operation and that he made no inquiry as to the nature

of the job at the time of the proposed assignment.

11. He also testified, “I didn’t have any training for the [new]

job and I liked the job that I was on so why move me then?”

12. Although I have some reservations over the fact that Re-

spondent did not call witnesses to explain the reason for the trans-

fer, on the entire record I nevertheless am impelled to conclude that

the General Counsel did not make a prima facie case to establish

that the transfer was made for anti-union reasons. Additionally,

and although Phillips’ testimony was somewhat confused on the point,

it appears from his own testimony, as heretofore set forth, that when

he protested the transfer to Plant Manager Gordon, Gordon attempted

to persuade Plant Superintendent Dudley to transfer another repair-

man to Cole’s job and let Phillips remain in his old job. According

to Phillips, Dudley responded that he did not have enough repair-

men—and Gordon thereupon upheld the superintendent’s decision.

While not of itself conclusive, this is further evidence that the tran-

fer was not made for discriminatory reasons.

RE RIN NNT MS EPL LITE I TINO ES EIS ELE STILE YB Ee ERLE OS SH

--31—

; Appendix

course, this is sheer speculation. A finding of present dis-

crimination can hardly be based upon anticipation of pos-

sible future events. Accordingly, and for all of the reasons

hereinabove set forth, I shall recommend that the complaint

be dismissed in its entirety.”

Upon the basis of the foregoing findings of fact and on

the entire record, I make the following:

Conclusions of Law

1. The Respondent is engaged in commerce within the

meaning of the Act.

2. The Union is a labor organization within the mean-

ing of the Act.

3. The Respondent has not engaged in unfair labor

practices within the meaning of Section 8(a)(3) and (1)

of the Act.

/s/ John P. von Rohr

Trial Examiner

Dated at Washington, D. C.

June 8, 1967

13. The General Counsel has cited cases in which the Board found

discrimination notwithstanding that the employees involved were

transferred to substantially equivalent jobs or even higher paying

jobs. Not only are these cases factually distinguishable, but in each

case the purpose of the transfer in itself clearly was indicative of

the discrimination found. Thus, in Southern California Associated

Newspaper, d/b/a South Bay Daily Breeze, 130 NLRB 61, the Board

found that the employer violated Section 8(a)(3) of the Act where

an employee was terminated for refusing to accept a promotion to a

new job. However, the Board found that the reason for offering the

promotion was to remove the employee from a mail room for the

purpse of impeding union activity among mail room employees. Simi-

larly, in J. W. Mays, Inc., 147 NLRB 942, the discrimination found

against two employees who were discharged for refusing to accept

transfers from the warehouse to equally paying jobs in the general

office was predicated upon a showing that the purpose for the trans-

fer was to impede the employees’ union activities in the warehouse.

TRY Tet ane en YEN POS Beare we - -

ae f PLE SAE TON BALIN AD I TYE ra

COWL DE OTRAS PN TUES BETTER OE PEREGO LE MT EAL De

—32—

Appendiz

DECISION AND ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

On June 8, 1967, Trial Examiner John P. von Rohr issued

his Decision in the above-entitled proceeding, finding that

Respondent had not engaged in the unfair labor practices

alleged in the complaint and recommending that the com-

plaint be dismissed in its entirety, as set forth in the at-

tached Trial Examiner’s Decision. Thereafter, the Charg-

ing Party filed exceptions and a supporting brief, and Re-

spondent filed an answering brief.

Pursuant to the provisions 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 this case to a three-member panel.

The Board has reviewed the rulings made by the Trial

Examiner at the hearing and finds that no prejudicial

error was committed. The rulings are hereby affirmed.

The Board has considered the Trial Examiner’s Decision,

the exceptions, the briefs, and the entire record in this

case, and adopts the Trial Examiner’s findings, but not,

for the reasons set forth below, his conclusions and recom-

_ mendations.

Phillips, the discriminate herein, has been employed by

the Respondent for a total of more than five years. Before

he acted as a Union observer at the Board-conducted elec-

tion of March 3 and 4, 1966, the only events affecting his

employment that might be characterized as out of the

ordinary, were: his transfer to a job in the shipping de-

partment, at his own request, in the spring of 1964; and

his acquiescence in the Respondent's request, about five

months later, to return to his former job upon the promise

of a 10-cent per hour wage increase.

=

Appendix

After the election, a number of apparently unprecedented

events occurred: Employee Bickery was instructed by his

foreman to report any occasions when he was called to

make repairs on machines Phillips operated; employee

Whitworth was warned by his foreman not to “buddy up”

with Phillips any more; and employee Cole began to re-

ceive training in the operation of the machines Phillips

had been operating, apparently without criticism, since

1964. Thereafter, Phillips, who had been given no training

in the work to which he was being assigned, was in effect

instructed to exchange jobs with Cole, who had been

given such training; when Phillips refused to accept his

new assignment because, as he testified, he thought the

transfer so soon after the election was discriminatory, he

was discharged.

In our opinion, all these facts, found by the Trial Ex-

aminer, considered against the background of the Respond-

ent’s established antiunion animus" and the absence of any

testimony concerning the reason for the transfer decision,

establish a strong prima facie case of discrimination, which

the Respondent has failed to rebut. We cannot agree with

the Trial Examiner’s conclusion that the machine mal-

function, for which Phillips was not responsible and in

connection with which he was neither warned nor repri-

manded, was Respondent’s actual reason for training an-

other employee in a job satisfactorily performed by Phillips

over an almost continuous 5-year period. If this mal-

function played any part in the sequence of events that led

to Phillips’ termination, as foreman Smith’s testimony

would seem to imply, it is clear, when the training given

Cole is contrasted with the absence of any training for

1. See Monroe Auto Equipment Company, 159 NLRB 613, 622-626.

ae... WORD et

ee ee wor VO NK EP UT 7a ee

—34—

Appendiz

Phillips, that it was to be utilized as a cover to obfuscate

the true discriminatory motive underlying the Respond-

ent’s conduct.

Accordingly, we find that the discharge of Phillips when

he refused to accept the discriminatorily motivated trans-

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

THE REMEDY

Having found that the Respondent violated Section 8(a)

(1) and (3) of the Act by discharging Phillips because he

refused to accept the discriminatorily motivated transfer,

we shall order the Respondent to cease and desist there.

from and to offer William J. Phillips immediate and full

reinstatement of his former or substantially equivalent

position, without prejudice to his seniority or other rights

and privileges, and to make Phillips whole for any loss of

pay he may have suffered by reason of the Respondent's

discrimination against him, by payment to him of a sum

of money equal to that which he would normally have

earned as wages from the date of his discharge to the

date of the Respondent’s offer of reinstatement, less his

interim earnings during said period, to which shall be

added interest at the rate of 6 percent per annum, in ac-

cordance with the formula set forth in F. W. Woolworth

Company, 90 NLRB 289, and Isis Plumbing and Heating

Co., 138 NLRB 716.

ORDER

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

tions Act, as amended, the National Labor Relations Board

hereby orders that the Respondent, Monroe Auto Equip-

ment Company, Hartwell Division, Hartwell, Georgia, its

officers, agents, successors, and assigns, shall:

=s =

PRP ET FOIE TP ae a Se. a

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~~ =

1. Cease and desist from:

(a) Discouraging membership in International Union,

United Automobile, Aerospace and Agricultural Implement

Workers of America, UAW, AFL-CIO, or any other labor

organization, by discriminating in regard to the hire and

tenure of employees or any term or conditions of their

employment.

(b) In any other manner interfering with, restrain-

ing, or coercing its employees in the exercise of the right

to self-organization, to form labor organizations, to join or

assist International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America, UAW,

AFL-CIO, or any other labor organization, to bargain col-

lectively through representatives of their own choosing,

and to engage in concerted activities for the purpose of

mutual aid or protection as guaranteed in Section 7 of

the Act, and to refrain from any and all such activities.

Appendiz

2. Take the following affirmative action necessary to

effectuate the policies of the Act:

(a) Offer William J. Phillips immediate and full re-

instatement to his former or substantially equivalent posi-

tion, without prejudice to his seniority and other rights

and privileges, and make him whole for any loss he may

have suffered by reason of the discrimination against him,

in the manner set forth in the section of this Decision and

Order entitled “The Remedy.”

(b) Notify the above-named employee 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 Military

Training and Service Act, as amended, after discharge from

the Armed Forces.

——

~~36—

Appendiz :

(c) Preserve and, upon request, make available to

the Board or its agents, for examination and copying, all

payroll records, social security payment records, timecards,

personnel records and reports, and all other records neces-

sary to analyze the amount of backpay due under the terms

of this Order.

(d) Post at its Hartwell, Georgia, place of business,

copies of the attached notice marked “Appendix.’” Copies

of said notice, on forms provided by the Regional Director

for Region 10, after being duly signed by Respondent’s

representative, shall be posted by it immediately upon

receipt thereof, and be maintained by it for 60 consecutive

days thereafter, 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

said notices are not altered, defaced, or covered by any

other material.

(e) Notify said Regional Director, in writing, within

10 days from the date of this Order, what steps the Re-

spondent has taken to comply herewith.

Dated, Washington, D. C. Jan. 12, 1968.

GERALD A. BROWN, Member

HOWARD JENKINS, JR., Member

SAM ZAGORIA, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

2. In the event that this Order is enforced by a decree of a

United States Court of Appeals, the notice shall be amended by sub-

stituting for the words “Pursuant to a Decision and Order” the words

“Pursuant to a Decree of the United States Court of Appeals, Enfore-

ing an Order.”