Petition for Writ of Certiorari — Rotek, Inc. v. National Labor Relations Board

Supreme Court brief1973

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TABLE OF CONTENTS

I III ccinstsiaicdaacuh ciation agesudseasaeinbesaldidehe 1

acacia srtpetieIncsemiaciaiuadiorspnaisaaabiasacaniones 2

GUase PRRoewaeeD ....... 2

STATUTORY PROVISIONS AND RULESINVOLVED 3

STATE: OF Tee CAR 6

REASONS FOR GRANTING THE WRIT .......02........ 9

(1) This Court’s powers of supervision should be

exercised—the Sixth Circuit has sanctioned an

application and interpretation of § 8(a)(1)

which is directly in conflict with the decisions

gE ac rene ae re re)

(2) This Court’s powers of supervision should be

exercised—the Sixth Circuit has created a con-

flict in the decisions of the various circuits re-

lating to management discretion and the man-

ner of selecting employees for termination ........ 12

(3) By enforcing the Trial Examiner’s Decision, the

Sixth Circuit has approved findings and con-

clusions which are so illogical, inconsistent and

unsupported in light of the evidence, as to

amount to a denial of petitioner’s rights under

BE fk _ aaaR WAAR Eine en Or eC er 13

ARREST EEN ee Or 15

APPENDIX:

Decision of Trial Examiner ...........................-..-0:-:00-0c000 Al

Decision and Order of the National Labor Relations

IEE iehaisiaatidmandndcncnes sisal asain ciendiahlalebdabinstocieistabacceinail A28

Order of the Court of Appeals -.......0..0.......2.2:.---0+ A30

Opinion of the Court of Appeals in the Case of

Rivers Mfg. Corp., 376 F.2d 511 ...............---..------- A31

TABLE OF AUTHORITIES

Cases

American Casting v. NLRB, 151 NLRB 172 (1964), 365

F.2d 168 (1966 7th Cir.)

Bonnie Bourne dba Bourne Co. v. NLRB, 332 F.2d 47

(2nd Cir. 1964)

Louisiana Plastics v. NLRB, 173 NLRB 20,436 (1968) ....

NLRB v. Fox Mfg. Co., 238 F.2d 211 (5th Cir., 1956) ....

NLRB v. Hackney & Sons, 426 F.2d 943 (4th Cir.,

1970) a 12, 13

NLRB v. Hinde & Dauch Paper Co., 171 F.2d 240 (1948,

4th Cir.) 10

NLRB v. Mathieson Alkali Works, 114 F.2d 796 (4th

Cir., 1940) 9

NLRB v. McCormick Steel Co., 381 F.2d 88 (5th Cir.

1967) ll

NLRB v. McGahaey, 233 F.2d 406 (5th Cir., 1956) ........ 14

NLRB v. Swan Cleaners, 384 F.2d 609 (6th Cir., 1967) 11

NLRB v. Whittier Mills Co., 111 F.2d 474 (5th Cir.,

1940) 10

Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423 (7th

Cir., 1962) 14

Rivers Mfg. Corp. v. NLRB, 376 F.2d 511 (6th Cir.

pe IT ee ee 13, 14, A31

ERR OSE REAR At arora: ——

Re AOE ee ERE LO OTR INI REET PER ALTE ERE SH NS IN

III

Statutes and Rules

United States Code, Title 29, § 158 (a) cere

..2, 3, 7, 8,9, 10, 11, 13

United States Code, Title 29, § 158 (a) (3) ........ 2, 3, 7,8, 13

United States Code, Title 29, § 160 (c) ....... 2, 3, 13, 14

United States Code, Title 29, § 160 (f) 2, 3, 5, 13, 15

Supreme Court Rules, Rule 19 Se coat 5

In the Supreme Court of the United States

No.

October Term, 1972

ROTEK, INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI |

To the United States Court of Appeals

For the Sixth Circuit

Petitioner respectfully prays that a writ of certiorari

issue to review the order of the United States Court of

Appeals for the Sixth Circuit in its Cause Numbered 71-

2073, entered on July 18, 1972.

OPINIONS BELOW

The order of the Sixth Circuit Court of Appeals in

this cause is set forth in the Appendix to this petition,

commencing at page A30, infra; it has not been officially

reported.

The decision and order of the National Labor Rela-

tions Board is set forth in the Appendix to this petition,

commencing at page A28, infra.

The decision, findings, conclusion and order of the

Trial Examiner of the National Labor Relations Board is

set forth in the Appendix to this petition commencing at

page Al, infra.

JURISDICTION

The order sought to be reviewed was dated and en-

tered on July 18, 1972. Petitioner filed a timely applica-

tion for extension of time in which to file a petition for

a writ of certiorari which was granted by Mr. Justice

Stewart in an order dated October 10, 1972.

The United States Code, Title 28 § 1254(1) confers

jurisdiction on this Court to review by Writ of Certiorari

the order in question.

QUESTIONS PRESENTED

(1) Whether the Sixth Circuit Court of Appeals by

adopting without comment or supporting reasons the in-

consistent and illogical findings of the Trial Examiner

has denied the Petitioner due process of law guaranteed

it by United States Code, Title 29 § 160 (c, f)?

(2) Did not the Sixth Circuit Court of Appeals in

this case issue an order in conflict with the decisions of

other Courts of Appeals and sanction an application and

interpretation of United States Code, Title 29 § 158 (a) (1,3)

which is not supported by the language of the statute or

by the intent of the Congress?

athe Eonaaps yond

STATUTORY PROVISIONS AND RULES INVOLVED

(1) The National Labor Relations Act, 29 United States

Code, Section 158(a)(1, 3); hereinafter § 8(a) (1, 3):

“(a) It shall be unfair labor practice for an employer—

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

ployees in the exercise of the rights guaran-

teed in section 157 of this title;

* * * ‘* *

(3) by discrimination in regard to hire or tenure

of employment or any term or condition of

employment to encourage or discourage

membership in any labor organization.”

(2) The National Labor Relations Act, 29 United States

Code, Section 160 (c, f); hereinafter § 10 (c, f):

“(c) The testimony taken by such member, agent,

or agency or the Board shall be reduced to writing

and filed with the Board. Thereafter, in its discretion,

the Board upon notice may take further testimony or

hear argument. If upon the preponderance of the

testimony taken the Board shall be of the opinion that

any person named in the complaint has engaged in

or is engaging in any such unfair labor practice, then

the Board shall state its findings of fact and shall is-

sue and cause to be served on such person an order

requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative ac-

tion including reinstatement of employees with or

without back pay, as will effectuate the policies of

this subchapter: Provided, That where an order di-

rects reinstatement of an employee, back pay may

_——

P a

pret, rite tis te ett os eatin tie

be required of the employer or labor organization, as

the case may be, responsible for the discrimination

suffered by him; And provided further, That in de

termining whether a complaint shall issue alleging a

violation of subsection (a) (1) or (a) (2) of section

158 of this title, and in deciding such cases, the same

regulations and rules of decision shall apply irrespec-

tive of whether or not the labor organization affected

is affiliated with a labor organization national or in-

ternational in scope. Such order may further require

such person to make reports from time to time show-

ing the extent to which it has complied with the order.

If upon the preponderance of the testimony taken

the Board shall not be of the opinion that the person

named in the complaint has engaged in or is engaging

in any such unfair labor practice, then the Board

shall state its findings of fact and shall issue an order

dismissing said complaint. No order of the Board

shall require the reinstatement of any individual as

an employee who has been suspended or discharged,

or the payment to him of any back pay, if such individ-

ual was suspended or discharged for cause. In case the

evidence is presented before a member of the Board,

or before an examiner or examiners thereof, such

member, or such examiner or examiners as the case

may be, shall issue and cause to be served on the

parties to the proceeding a proposed report, together

with a recommended order, which shall be filed with

the Board, and if no exceptions are filed within twenty

days after service thereof upon such parties, or within

such further period as the Board may authorize, such

recommended order shall become the order of the

Board and become effective as therein prescribed.”

“(f) Any person aggrieved by a final order of

the Board granting or denying in whole or in part

the relief sought may obtain a review of such order in

any United States court of appeals in the circuit,

wherein the unfair labor practice in question was al-

leged to have been engaged in or wherein such per-

son resides or transacts business, or in the United

States Court of Appeals for the District of Columbia,

by filing in such court a written petition praying that

the order of the Board be modified or set aside. A

copy of such petition shall be forthwith transmitted

by the clerk of the court to the Board, and thereupon

the aggrieved party shall file in the court the record

in the proceeding, certified by the Board, as provided

in section 2112 of Title 28. Upon the filing of such

petition, the court shall proceed in the same manner

as in the case of an application by the Board under

subsection (e) of this section, and shall have the same

jurisdiction to grant to the Board such temporary re-

lief or restraining order as it deems just and proper,

and in like manner to make and enter a decree en-

forcing, modifying, and enforcing as so modified, or

setting aside in whole or in part the order of the Board:

the findings of the Board with respect to questions of

fact if supported by substantial evidence on the record

considered as a whole shall in like manner be con-

clusive.”

(3) Supreme Court Rules, Rule 19 (1) (b):

“(b) Where a court of appeals has rendered a

decision in conflict with the decision of another court

of appeals on the same matter; or has decided an im-

portant state or territorial question in a way in con-

flict with applicable state or territorial law; or has de-

cided an important question of federal law which has

not been, but should be, settled by this court; or has

decided a federal question in a way in conflict with

applicable decisions of this court; or has so far departed

from the accepted and usual course of judicial pro-

ceedings, or so far sanctioned such a departure by a

lower court, as to call for an exercise of this court's

power of supervision.”

STATEMENT OF THE CASE

The petitioner (Rotek, Inc.) is a corporation engaged

in the manufacture of bearings for the heavy equipment

industry. Due to a devastating depression in the capital

goods industry, which had a direct effect on Rotek’s busi-

ness as a supplier, President John Weber determined that

a recession plan would be necessary if the company was

to survive. The course of action chosen by Mr. Weber in-

cluded a 35 percent reduction in expenses, abandonment

of a research and development program on which

$160,000.00 had already been spent and a 25 percent re-

duction in personnel, including both white and blue collar

workers. This recession plan was implemented on August

12, 1970, following a complete reorganization of produc-

tion personnel pursuant to Weber's attempt to retain only

the most highly qualified, capable and industrious employ-

ees. This reorganization plan later became a focal point

in the instant case, and therefore demands closer scrutiny.

Early in August of 1970 Mr. Weber convened a meet-

ing of all department heads at which an organization chart

was posted listing Rotek personnel by department and

marking 27 individuals for termination as excess employ-

ees. Mr. Weber then said “Anyone who is listed in an

excess category is available. As you walk around and

talk to the other department heads, if you see a good man

there, you take him and you have some one put into your

excess category” (R. 189).* No specific persons were

earmarked for termination at this point and the super-

visors spent sometime moving employees on and off the

excess lists in an attempt to retain the most valuable ones.

Efficiency and competency were the only criteria consid-

ered in making the decision as to whom should be termi-

nated. Billy Fowler was one of the employees who moved

into and out of the excess or termination category several

times before the reorganization was complete, at which

time he was in the former with 26 others.

On August 12, 1972, the twenty-seven employees were

notified of their termination and informed that, although

it was effective immediately, they would be paid until the

end of the month. Of these affected employees, only six

joined with Billy Fowler in the fourth and final amended

charge, filed February 8, 1971. The National Labor Rela-

tions Board issued a formal complaint on that date

against petitioner alleging that these seven employees had

been discriminatorily discharged because of their union

sympathies and desires in violation of § 8(a)(1, 3) and

had been subjected to unlawful anti-union interrogation

and pressure in violation of § 8(a)(1) while still employed

at Rotek.

These charges came to be heard on May 25-26, 1971,

before the Trial Examiner appointed by the NLRB and,

of the numerous charges, only three were held to be valid.

Of the three specific violations of the National Labor Re-

lations Act found by the Trial Examiner, two concerned

alleged unlawful interferences with employees’ attempts

to exercise their rights under the Act and the third dealt

*“R.” references are to the printed Appendix filed in the

Court of Appeals, certified as the record herein.

with the alleged unlawful discharge of Billy Fowler in vio-

lation of § 8(a) (1,3). In order to reach this conclusion the

Trial Examiner was forced to completely disregard the

evidence presented at the hearing as well as the clear

meaning of the statute and judicial precedent in this and

other Circuits. The NLRB affirmed this gross injustice

as did the Sixth Circuit Court of Appeals, both without

any comment, support, explanation or arguments in favor

of their action.

A review of the record shows that all the charges

contained in the original complaint stemmed from vir-

tually identical facts but the Trial Examiner chose to

draw illogical and inconsistent conclusions therefrom and

to rule that Billy Fowler’s case was different from that

of the others and that he, and he alone, had been discrim-

inatorily discharged. This special attention is not war-

ranted by the facts or even by the Trial Examiner’s find-

ings and represents an attempt to pacify both sides in

the dispute rather than an independent and impartial de-

cision based upon the evidence presented.

REASONS FOR GRANTING THE WRIT

(1) This Court’s powers of supervision should be exer-

cised—the Sixth Circuit has sanctioned an application

and interpretation of § 8(a)(1) which is directly in

conflict with the decisions of other circuits.

The Trial Examiner ruled that Rotek was guilty of

violating its employees’ § 8(a)(1) rights on two separate

eccasions. In both instances the violations stemmed from

discussions between supervisory and non-supervisory per-

sonnel, during which the latter allegedly were questioned

concerning their union sympathies, general complaints,

tool and equipment needs and suggestions for improving

working conditions (pp. A4-A6, infra). The first alleged

violation, that by Foreman Welling, concerned a threat to

close Rotek’s Ravenna plant and transfer operations to Iron-

dale rather than allow a union to gain control. Not only

was this unequivocally denied by Welling (R. 131-132) but

it was impossible to do for reasons generally known among

the employees (R. 177-180). In fact Irondale was an

empty plant being prepared for the future production of

large-size bearings not made in the Ravenna plant. Fur-

ther, the Trial Examiner discredited the testimony of two

of the three witnesses who claim to have heard the con-

versation as unreliable (p. A6, infra). Finally, other

circuits have held that such expressions of anti-union senti-

ment on the part of a foreman are totally insufficient

to support a cease and desist order unless the General

Counsel can prove that the comments were attributable

to or authorized by company personnel. NLRB v. Mathie-

son Alkali Works, 114 F.2d 796 (United States Court of

Appeals, Fourth Circuit) (1940). The Fifth Circuit has

also adopted this view by holding that isolated speeches

or comments by low-level supervisors which are not

—F

authorized, encouraged or even known to the manage-

ment should not be imputed to the employer as a breach

of this section. NLRB v. Whittier Mills Co., 111 F.2d

474 (1940); NLRB v. Hinde & Dauch Paper Co., 171 F.2d

240 (1948).

As the record is totally void of any proof that Rotek

had knowledge of this violation, if indeed, it ever occurred,

it is insufficient to support a claim of an § 8(a) (1) viola-

tion and in hopeless conflict with holdings in other cir-

cuits.

The second incident is equally incapable of support-

ing the allegation that it constituted an § 8(a)(1) viola-

tion. In spite of a history of regular plant-wide employee-

management meetings held to solicit complaints, encour-

age management-employee dialogue and uncover griev-

ances, which the Trial Examiner found were non-coercive

and not violative of the Act (p. A8, infra), a meeting

at the departmenta! level which not a single witness de-

scribed as unusual, coercive or threatening (R. 48, 49) was

held to violate § 8(a)(1). This finding is totally unwar-

ranted by the evidence.

In both cases had the Sixth Circuit reviewed and

followed the precedent in virtually any circuit the Trial

Examiner’s Decision would have been reversed. One of

the outstanding cases in the area of § 8(a)(1) violations

is Bonnie Bourne dba Bourne Company v. NLRB, 332 F.2d

47 (United States Court of Appeals, Second Circuit, 1964)

in which the court stated that in similar circumstances a

five-part test should be applied:

(1) The background, ie., is there a history of em-

ployee hostility and discrimination.

(2) The nature of the information sought, e.g., did

the interrogator appear to be seeking information

on which to base taking action against individual

employees.

(3) Identity of the questioner, how high was he in

the company hierarchy.

(4) Place and method of interrogation, e.g., was the

employee called from work to the boss’s office.

Was there an atmosphere of unnatural formality.

(5) Truthfulness of the reply.

Applying these guidelines to this case, the record shows

that: (1) there is no history of hostility or discrimina-

tion; (2) the information sought was completely innocu-

ous; (3) the interrogators were the lowest-level super-

visory employees; (4) the conversations took place at nor-

mal plant meetings and; (5) the replies were truthful and

candid indicating no employee apprehension. There sim-

ply is no § 8(a)(1) violation indicated by these facts in

light of the relevant case law.

The conflict between other decisions and the Sixth

Circuit becomes apparent when some of the instances in

which the courts have refused to find violations are men-

tioned. Inquiries, just prior to a union election, as to how

an employee intended to vote was not a violation in

NLRB v. McCormick Steel Co., 381 F.2d 88 (C.A. 5, 1967).

Deferring a normal annual wage increase until after the

union representational election (Louisiana Plastics v.

NLRB, 173 NLRB 20,436 (1968) ) was not unlawful. Even

the Sixth Circuit in an earlier decision, NLRB v. Swan

Cleaners, 384 F.2d 609 (1967), held that questioning an

employee about attendance at a union meeting was per-

missible. In short, the instant decision represents a radical

departure from relevant precedent with no word of ex-

planation. The order is completely contrary to both the

evidence and the law and should be corrected.

(2) This Court’s powers of supervision should be exer-

cised—the Sixth Circuit has created a conflict in the

decisions of the various circuits relating to manage-

ment discretion and the manner of selecting employees

for termination.

The recession plan adopted and implemented by Rotek,

as more fully outlined hereinabove, resulted in the ter-

mination of twenty-seven employees. The Trial Examiner

conceded that this reduction was in response to economic

pressures (p. Al4, infra) but stated that petitioner’s totai

disregard of seniority rendered the plan suspect (pp. A20-

A21, infra). It is worthy of note that this conclusion com-

pletely ignores the finding that five of the seven com-

plaining employees had more seniority than did Billy

Fowler, which deflates the argument that his case alone

was exceptional for any reason.

In accepting the Trial Examiner’s arguments, the

Sixth Circuit completely disregarded the Fourth Circuit’s

holding in NLRB v. Hackney & Sons (426 F.2d 943 1970).

That decision held that although seniority was the most

common consideration in selecting employees for termina-

tion, it was not the only valid consideration which could be

utilized. The standards used in Hackney were quite

similar to those adopted by petitioner, and the conflict

between the two circuits is quite obvious. Hackney stands

for the proposition that management has some discretion

in determining who it will retain and who will be termi-

nated when the company is faced with a bleak economic

future requiring reduction in the number of employees.

The effect of any other decision would be to force every

employer to layoff and fire employees on the basis of

seniority alone, and this result is clearly not the intended

purpose of the National Labor Relations Act. See also:

American Casting v. NLRB, 151 NLRB 172, 178 (1964)

365 F.2d 168 (1966), 7th Circuit.

The Hackney case is further applicable to the instant

case since, in the former, the employer exerted a chilling

influence on the employees’ exercise of their right to or-

ganize in violation of § 8(a) (1), an allegation in this case.

The Court nevertheless held that absent proof of dis-

crimination with respect to the manner in which employees

were selected for termination, a finding that the plan vio-

lated § 8(a) (3) could not be inferred from the § 8(a) (1)

infraction. The inference which the Fourth Circuit would

not permit in Hackney is the only basis on which the

Rotek decision could have been based. It, too, cannot be

permitted to stand.

(3) By enforcing the Trial Examiner’s Decision, the Sixth

Circuit has approved findings and conclusions which

are so illogical, inconsistent and unsupported in light

of the evidence, as to amount to a denial of petitioner’s

rights under § 10(c, f) of the Act.

The evidence presented at the hearing of this case was

totally incapable of sustaining the subsequent finding that

Rotek had violated any provisions of the National Labor

Relations Act. Nevertheless, in spite of this clear absence

of evidence of a violation, the Trial Examiner overruled

this petitioner’s motion to dismiss the complaint, which

petitioner supported by reference to a 1967 decision by

the Sixth Circuit, Rivers Manufacturing Corporation v.

NLRB, 376 F.2d 511 (R. 118-119), a case which should have

been controlling.

During the course of the hearing, the General Counsel

failed to present any reliable evidence of the violations as-

serted and was unsuccessful in presenting a prima facie

anette nd

| ee ee tad Sips MARE aC aD

case. Even more prejudicial to the petitioner were the ac-

tions by the Trial Examiner who, in his findings, repeatedly

stated that a witness for the General Counsel had pre-

sented testimony which was unbelievable, unsupported,

erroneous or uncreditable and then, a few paragraphs

later, reversed his position and accepted integral portions

of this same testimony to suport his decision.

It must be beyond dispute that the Act places the

burden of proof on the General Counsel, who must prove

his case by a preponderance of the evidence. NLRB v.

McGahaey, 233 F.2d 406 (Fifth Circuit 1956); NLRA

§ 10(c). Rather than follow these rules, however, the Trial

Examiner chose to ignore his own findings that the union

had engaged in no organizational activity prior to August

10, 1970, and that there was no such activity between that

date and August 12 when the discharges were made (p.

All, infra). He further overlooked his finding that the dis-

charges were not unlawfully motivated (p. Al4, infra)

and ignored well-supported and obvious inferences that

petitioner had no knowledge of union activity or unlawful

purpose. In short, he inferred the violations from the tes-

timony of discharged employees, which is clearly in vio-

lation of all applicable case law. Portable Electric Tools,

Inc. v. NLRB, 309 F.2d 423 (7th Cir., 1962); NLRB v. Fox

Mfg. Co., 238 F.2d 211 (5th Cir., 1956); NLRB v. McGahaey,

supra.

On appeal to the Sixth Circuit, this petitioner argued

that, in light of Rivers supra, it was entitled to a review of

the record and, if unsupported by substantial evidence,

a reversal. Rotek received neither. There is no indica-

tion that Rivers was considered and, if it was, whether it

has been abandoned as the law in this jurisdiction. A

mere affirmance without comment in case where the bulk

of the evidence is disputed and the Trial Examiner’s find-

ings are attacked as inconsistent, illogical and unsupported

by substantial evidence on the record as a whole does not

comply with Rotek’s undeniable right to review by the

Board and the Sixth Circuit as provided in § 10(f) of the

Act. In this case it amounts to a denial of due process of

law.

CONCLUSION

This Court should issue the writ of certiorari prayed

for and set aside the order here under review, not only to

correct the injustice worked upon petitioner but also for

the public good which would result from deciding the im-

portant questions presented, concerning the interpretation

and application of the National Labor Relations Act.

Respectfully submitted,

M. REESE DILL

2150 Illuminating Building

Cleveland, Ohio 44113

Tel: (216) 523-1500

Counsel for Petitioner

LILO LOL ELE AGE AVE IID ELIAS LEBEL IEL OPIOID IP ES PO Set ae ina ee ~ < » 2 ot ev & =

tis ee

; Fa

APPENDIX

DECISION OF TRIAL EXAMINER

(Issued August 26, 1971)

Case No. 8-CA-5993

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD REGION 8

ROTEK INCORPORATED

and

BILLY FOWLER, an individual

TRIAL EXAMINER'S DECISION

STATEMENT OF THE CASE.

Georce Turitz, Trial Examiner: Upon charges filed

by Billy Fowler (“Fowler”) on August 17 and October 1,

1970, and January 27 and February 8, 1971, and respec-

tively served on August 19, and October 1, 1970, and Jan-

uary 28, and February 8, 1971, respectively, upon Rotek,

Incorporated (“Respondent” and, at times, “the Com-

pany”), the General Counsel of the National Labor Rela-

tions Board (“the Board”), through the Regional Director

for Region 8, on February 8, 1971, issued a complaint and

notice of hearing which was duly served upon Respondent.

Respondent filed its answer in which it denied all] allega-

tions of unfair labor practices. A hearing on the Com-

plaint was held before me at Akron, Ohio, on May 25 and

26, 1971, at which the General Counsel and Respondent

were represented by their respective counsel. Both parties

have submitted briefs.

Upon the entire record and from my observation of

the witnesses, I make the following:

FINDINGS OF FACT.

I. Tue Business or RESPONDENT.

Respondent, Rotek, Incorporated, is an Ohio corpora-

tion having its principal office and place of business in

Ravenna, Ohio, where it is engaged in the manufacture,

sale and distribution of bearings. In the course of its

operations Respondent annually sells and ships from its

plant in Ravenna directly to its customers located outside

the State of Ohio products valued at in excess of $50,000.

I find that Respondent is an employer engaged in com-

merce within the meaning of Section 2(2), (6) and (7)

of the National Labor Relations Act, as amended (“the

Act”).

II. THe LAsor ORGANIZATION INVOLVED.

International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America (UAW)

(“the UAW”) is a labor organization within the meaning

of Section 2(5) of the Act.

III. THe Unrarr Lasor PRACTICES.

The issues litigated at the hearing were: (a) whether

various supervisors had coerced employees with respect

to self-organization by threats, interrogation and promises

of benefit; and (b) whether Respondent's discharge of six

employees on August 12, 1970, and of one on August 19,

in connection with a reduction in force, was violative of

the Act because the reduction was not in accordance with

usual policy but was discriminatorily motivated, and/or

because the selection of employees for discharge was dis-

A. Background.

Respondent, which was organized in 1962 with about

four employees, was engaged in the manufacture of bear-

ings for use on excavators, cranes, Army tanks, turntables,

and various other types of heavy equipment and ma-

chinery. It succeeded another company which in 1960 did

a gross business of $100,000; Respondent’s gross business

in 1970 was $8,700,000. Throughout that period a sub-

stantial part of the necessary work was subcontracted.’

Prior to the events here in question Respondent had

never had a layoff. It had a policy of having projects

planned, “such as painting, fixing up,” on which em-

ployees could work during slow periods. At a meeting of

all the employees held in downtown Ravenna on May 25,

1970,° Weber told the employees that enough work was on

hand to carry Respondent through the fall of 1970.2 He

also told the employees that he did not expect any layoffs,

* Weber, Respondent's general manager and president, testi-

fied as to this, “I would guess about half.” At least some of the

subcontracted work could not be performed in Respondent's

plant. Respondent also had a plant for the manufacture of bear-

ings at Lorain, Ohio, and one in West Germany, neither of which

is involved in this proceeding.

* Several witnesses for the General Counsel testified that the

meeting took place in the middle of July, but since they so testi-

fied in response to the General Counsel’s leading questions, I

*The General Counsel’s witnesses testified that he said the

fall of 1971, but I have credited Mitchell and Foreman Lloyd, who

testified that the year mentioned was 1970.

but would cut hours instead. On July 3, 1970, Mitchell,

head of the factory department and plant superintendent,

held a meeting of all the factory employees at which he

stated that the slowdown in the economy would be affect-

ing the Company and that the employees should therefore

save their money and put it in the bank. He said that

Respondent had never had a layoff, but there was always

a possibility of one; and he also told the employees that a

possible way of handling the expected slowdown was to

go to 40 hours.

B. Discussion of Unionization—Interrogation, Threats,

Promises of Benefit.

1. Fowler testified that in May 1970° his foreman,

Welling, summoned him to his office, where, after com-

menting that he supposed that Fowler had “heard the talk

that was going around the plant,” he said, “We don’t want

a union”; that when Fowler replied that a union would

benefit employees, especially as to wages, Welling said that

he had worked in a plant where an attempt was made to

organize a union, and he had been put out on the street.

Fowler also testified that on that same occasion Welling

asked him to submit a list of tools or anything else he

needed to make his job easier. Welling admitted telling

Fowler, as well as other employees, that on another job he

had been put out on the street when an attempt had been

made at organization, but he denied talking to Fowler

4 Weber, while testifying that he had no recollection of what

he had said, stated that his thinking on the subject indicated to

him that if he had said anything about cutting hours, it would

= have been a statement of a possible alternative, and not a promise.

The testimony that Weber’s statement was that he would cut

hours rather than lay employees off was not otherwise denied,

and it is significant that Superintendent Mitchell, who testified

about that meeting did not touch on this point.

5 Unless otherwise stated all dates hereafter mentioned in

this Decision were in 1970

against unions or, in fact, saying anything at all to him

about his attitude toward unions. As Fowler was an in-

terested witness and was not corroborated, I find that the

General Counsel has failed to prove by a preponderance

of the evidence that Welling on this occasion made the

comment about “the talk that was going around” or that

he said, “We don’t want a union.” In view of this finding,

there is insufficient evidence that Welling’s inquiry, made

in May, about Fowler’s need for tools or anything else to

make his job easier was violative of the Act. I shall recom-

mend dismissal of paragraph 7A and 7B of the Complaint.

2. In the last week of June foreman Welling held a

meeting in his office which was attended by William Pratt,

Fowler, Rice, Waters, Burt, and White, then a leadman but

later a foreman. Rice and Fowler testified that Fowler did

most of the talking; Pratt testified that both he and Fowler

did. All three testified that Fowler said that wages should

be raised and if that could not be accomplished within the

shop, they would have to get help or support “from the

outside.” Pratt and Rice also testified that Welling replied

that before a union was brought in Respondent would

close the plant and move to Irondale.‘ White testified only

that the meeting was about working conditions and

whether the employees needed tools or had “gripes.” I

namely, on the same day as a meeting of his employees with

Weber, president of Respondent. However, he was contradicted

not only by General Counsel’s witnesses, but also by White: and

Superintendent Mitchell testified that the employees’ foreman

transmitted to him their request for the meeting with Weber.

Welling impressed me unfavorably with respect to credibility.

7 Respondent's Irondale plant, located 62 miles from Ravenna,

w2s in the process of being prepared since early or middle 1970,

but had ne equipment installed prior to November 1970. It was

ultimately to manufacture bearings up to 16 feet in diameter, as

compared with a maximum of 9 feet at Ravenna, but it was also

to produce smaller bearings. At the time of the hearing the

Irondale plant had five employees, the same number as on the

day of the reduction in force

found Rice’s testimony about the meeting, which was cor-

roborated by Fowler and Pratt, convincing* and I find

that Fowler did most of the talking, that he threatened to

resort to “help from the outside,” meaning a union, if

wages were not raised, and that Welling replied that if a

union was brought in Respondent would close the plant

and move to Irondale. I further find that Respondent

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

3. At the insistence of Welling’s men a meeting with

Weber, Respondent’s president and general manager, was

arranged for the same afternoon.* Fowler testified that

between the two meetings Mitchell came to the assembly

table where he and Pratt were working and, accusing

Pratt of being “an instigator,” warned him that he did

not want to hear any more union talk. Pratt testified to a

similar statement to him by Mitchell in the assembly area,

but he did not connect it with Fowler or with the short

period between the two meetings, placing the incident,

pursuant to the General Counsel’s leading, “around the

first part of July.” Significantly, he did testify that Mitch-

ell had come to his assembly table between the two meet-

ings, but only to tell him that the second meeting, the one

with Weber, had been arranged. Pratt testified, further,

that on other occasions Mitchell asked him if there was

8 On cross-examination Rice agreed with Respondeni’s coun-

sel that all prior witnesses had been at the meeting. Both Rice

and counsel were plainly mistaken; only two of the five prior

witnesses, namely, Fowler and Waters, had been at the meeting.

Waters did not testify about the incident at all. Fowler testified

that Welling said that the purpose of the meeting was to ascer-

tain gripes—“rights” in the transcript is an obvious error—of the

employees, and that he expressed himself against unions. Fowler

was preoccupied with his own prominence in the discussion,

i with respect to wages and resort to “help from the out-

side”; his recollection of the meeting as a whole was weak.

®At this meeting Fowler again did most of the talking.

However, I find, contrary to Pratt's testimony, that on this oc-

casion Fowler did not threaten to resort to “outside help” if

wages were not raised.

Pye! owt ee eee - -

: “ = - - / " =

any more talk about the union going on, and whether

Pratt would back the union, which Pratt replied he would

do. Mitchell denied substantially all this testimony. I

have credited Mitchell and find that he did not make the

various statements or ask the questions described in this

paragraph. I shall recommend dismissal of paragraphs

6(A) and (B) of the Complaint.

4. Hards testified that about June 15, in the assembly

and inspection area, he and Fowler were discussing “the

union,” and that Hutchinson, the chief inspector and

foreman, who was beside them, told them that “union”

was a nasty word round there and they should not talk

about it. Fowler testified that about July 6 or shortly

thereafter’’ at the inspection table in the assembly area,

Hards commented, in Hutchinson’s presence, that he was

doing two men’s work, whereupon Fowler said that if

the men had a union they would put a stop to that and a

lot of things. He further testified that Hutchinson said

that “union” was not a good word round there. Hutchin-

son denied ever having made the comment. I find that the

General Counsel has failed to prove that Hutchinson

warned Hards or Fowler not to talk about the union, or

threatened them with reprisals. I shall recommend the

dismissal of paragraph 8 of the Complaint.

5. About July 1 James Lloyd, foreman of the ship-

ping department, called a departmental meeting which

was attended by five of his six employees. He commented,

“. .. there is talk going around the shop about organizing

the shop with a union,” and he asked the men at the meet-

ing if they were for or against having a union. John

Suzelis replied, “As long as we are treated good, I have

Fowler fixed the occasion as at the time when he had just

been transferred from assembly to the office. Respondent’s records

show that the transfer took place on July 6 and that on that day

Hutchinson was on vacation.

no use for a union.” Lloyd informed the employees that

Mitchell has instructed him to hold the meeting in order

to find out what, if any, complaints they had, and he

explained that he wanted to know how Respondent could

make improvements with respect to wages or anything

else so that the employees would have no need for a union.

Mitchell held regular monthly meetings of all the fac-

tory employees to hear their complaints, so that the em-

ployees had no reason to read any coercive intent into

Mitchell’s action in continuing to hold his meetings in the

face of the manifestation of interest in unionization. How-

ever, Lloyd’s meeting was markedly different from Re-

spondent’s usual practice. There had been no practice of

holding departmental meetings in his department. The

mere fact that the institution of such more careful search-

ing out of employee complaints coincided with their man-

ifestation of interest in unionization went far to indicate

to the employees that what Respondent was doing was im-

properly motivated and was intended to induce the em-

ployees not to unionize. Cf. Raytheon Company, 188

NLRB No. 42, separate opinion by Chairman Miller, con-

curring in part:

But when the timing of either [solicitation of griev-

ances or granting of improvements] is such as to

coincide with the origination of employee union ac-

tivity, then, absent affirmative showing of some le-

gitimate business reason for the timing, it is not

unreasonable to draw the inference of improper mo-

tivation and improper interference with employee

freedom of choice.

However, Respondent did not rely on the mere timing to

bring its message home to the employees; Lloyd stated in

so many words that Respondent’s purpose was to ascertain

Shee

what benefits to grant the employees “so that they

wouldn’t need to get a union in.” It is true that nothing

concrete was promised. However, that did not detract

from the necessary tendency of the meeting to cause the

employees to anticipate improved conditions of employ-

ment which might make union representation unneces-

sary. See Reliance Electric Company, Madison Plant, Me-

chanical Driver Division, 191 NLRB No. 1, where the

Board stated, “. . . such cautious language, or even a

refusal to commit Respondent to specific corrective action,

does not cancel the employees’ anticipation of improved

conditions if the employees oppose or vote against the

unions.”

I find that by interrogating the employees concern-

ing their union activities, sympathies, and desires, at the

same time soliciting their complaints for the purpose of

ascertaining what improvements in working conditions

could be granted which would induce the employees not

to seek unionization, Respondent violated Section 8(a) (1)

of the Act. Cf. Reliance Electric Company, etc., supra."

6. Fowler testified as follows: when he was inter-

viewed by Dale Pratt, the supervisor on the office job he

had applied for, to which he was transferred on July 6,

Pratt told him that his application looked good and that he

thought he could handle the job. At the same time he

remarked that Fowler had a bad reference from a prior

employer, which he named. Fowler asked Pratt why he

would get a bad reference from that company, whereupon

Pratt asked him whether he had been engaged in union

activities. Fowler said he had been. Pratt denied Fowler’s

testimony. In the circumstances described by Fowler,

Pratt’s question referred solely to the prior employment

11 The Complaint does not allege the solicitation of grievances

or the implied promise of benefits as a separate violation.

’

Pree t, 3

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and had no relevance, direct or indirect, express or im-

plied, to employment with Respondent. I shall recom-

mend dismissal of paragraph 10 of the Complaint.

7. Rice testified that in the middle of July his fore-

man, White, asked him while he was at work what he

thought “about the Union,” and whether he knew who

was behind all the union talk; further, that he answered

that he liked the union and would vote for it, and that

while he knew who was behind the union talk, he could

not tell White. White, who had been made foreman on

July 1, testified that Rice once asked him if he had ever

belonged to a union and that he had replied that he had

on a previous job, but that otherwise he never spoke to

Rice on that subject. More specifically, he denied asking

Rice if he knew who was behind all the union talk, and

denied that Rice told him he could not tell him. Rice was

an interested witness and was not corroborated. I find

that the General Counsel has failed to meet the burden

of proving by a preponderance of the evidence that White

interrogated Rice as the latter testified. I shall recom-

mend dismissal of paragraph 11 of the Complaint.

8. Arbogast testified that on two occasions in early

August, that is, about August 5, 6, or 7, his foreman on

the night shift, Turner, asked him if he had heard any

union talk, and that he replied no. On cross-examination

he admitted that this was a lie. Turner denied Arbogast’s

testimony. Although Arbogast was an interested witness

and was not corroborated, he testified especially convinc-

ingly, and I have credited his testimony. It is true that

Respondent proved no legitimate purpose for Turner’s

questions. It is also true that interrogation about union

activity has a tendency to cause employees to feel com-

pelled to lie to their superiors’? and thus demean them-

12Cf Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2).

All

selves. However, those facts, standing alone, are not suf-

ficient to make interrogation unlawful. The record is

devoid of evidence of coercive conduct by Respondent

sufficiently closely connected or related to the interroga-

tion to make it unlawful. Cf. Lakes Concrete Industries,

Inc., et al., 172 NLRB No. 94. Nor does the record show

Turner’s questions to have been part of a systematic inter-

rogation of employees, or that he questioned Arbogast

during the sensitive, initial stages of an organizing cam-

paign. Distinguish Koch Engineering Company, Inc., 155

NLRB 1272, 1273. In view of the foregoing I shall recom-

mend dismissal of paragraph 12 of the Complaint.

C. Union Activity.

On Saturday, August 8, after some weeks of dis-

cussion of unionizing among the employees, a UAW rep-

resentative came to Hards’ house to speak with him,

Arbogast, Pratt, and Fowler. On August 10 Hards went

to the UAW office in Cleveland, where he joined the or-

ganization and took some designation cards, for other

employees. That same afternoon Fowler, Pratt, and Ar-

bogast came to his house and signed cards. There is no

evidence that any solicitation took place among other em-

ployees on August 10, 11, or 12, or that Respondent or

any of its supervisors learned during that time of the

employees’ contact with the UAW. However, as indicated

by findings already made, Respondent was aware that

employees were actively considering unionization.

D. The Layoff.

On August 12 Respondent completed a large Govern-

ment contract it had been working on for some time. At

about 1 o’clock that day Respondent discharged 15 employ-

ees in the Ravenna manufacturing department, 9 hourly

paid and 6 salaried. The selections were made by

Al2

Mitchell, the plant superintendent. Included were 6 of

the 7 employees named in the Complaint; the seventh,

Foster, who was the secretary of the corporate develop-

ment manager, which was, apparently, part of general

administration, was on vacation and was not notified of

her discharge until August 19. Respondent cut employ-

ment back in other departments as follows: in engineering

from 13 to 9; in field sales from 13 to 9;* in sales admin-

istration from 9 to 6; and in administration from 14 to 11.

Those selections were made by Weber, the president, with

the assistance of his secretary and Pierfelice, the control-

ler. A new department, national accounts, was set up with

2 employees, so that the total number of individuals dis-

charged was 27. They were paid to September 1. Re-

spondent stopped a research program on a hydraulic motor

on which it had expended $160,000 over 2 years, and it

reduced its advertising budget from $130,000 to $54,000.

Foreman Lloyd told Suzelis and another discharged

employee that the layoff was caused by a cutback in Gov-

ernment orders; foreman Dale Pratt told Fowler that he

could not give any real explanation; foreman White told

William Pratt that he did not know the reason; chief

inspector Hutchinson told Hards that he had had no choice

in the matter and did not know the reason; Pierfelice told

Foster that Respondent had placed a plan for recession

into effect. Those employees who asked about recall were

strongly advised to seek other employment.

Following August 12 Respondent continued to keep

employees working overtime and to subcontract work.

During the period January through July 1970 the total

amount of overtime worked in the Ravenna manufactur-

ing department averaged about 3,000 hours per month;

the average was substantially the same with August in-

13 Two sales offices were closed down entirely.

oT ab a Ca a al 1 see 2

if SRE FAG + Per Ser ce eR RD BET Gk MST a

a Sey ae SORTS SRY EI Fe PEEING REO IER

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cluded. For the period September 1970 through April

1971 the average was 2,069 hours per month; with August

1970 included it was 2,561 hours per month. During the

period January through July 1970 subcontracting totaled

approximately $842,000, for an average of about $120,000

per month; with August included the average was about

$118,000. For the period September 1970 through April

1971 the total was approximately $673,000, for an aver-

age of about $84,000 per month; with August included

the average was about $86,000. The General Counsel did

not establish to what extent, if any, the subcontracted

work could have, or had customarily, been performed in

Respondent’s plant.

Weber testified as follows: In 1969 business had been

good, and he had anticipated that by the time the large

Government order would have run out Respondent would

have obtained new orders which would keep it busy.

However, as completion of the contract approached, new

orders fell off, and old orders were being canceled, in some

cases even after shipment. Respondent came to the con-

clusion that it was facing an economic recession and de-

cided that it would have to reduce expenses accordingly.

In the latter part of July the various department heads

other than manufacturing were instructed to prepare plans

for reducing their personnel; and in early August, Mitch-

ell, head of the Ravenna manufacturing department, was

instructed to prepare plans for reducing his force by 25

percent. On Monday, August 10, Weber called a meeting

of his staff and told them that his recession plan was to

be placed into effect. He tacked on the wall a chart in-

dicating the individuals whom Mitchell had selected for

layoff from the manufacturing department and, with re-

spect to the other departments, the individuals whom

Weber, assisted by his secretary and Pierfelice, had se-

lected for layoff; and he announced that any person so

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listed as excess could be taken on by another department

and some one else placed in the excess category.

Weber testified that he deliberately kept the pending

layoff quiet and carried it out swiftly in order to avoid

“personality discussions.” He said that the reason he did

not resort to assigning employees painting, clean-up, and

similar work to tide them over as in the past was that

this did not appear to be a temporary slow-down, but a

long-term recession. Respondent's business, he said, was

cyclical, and was sharply affected by economic conditions,

and he testified that even when the time would come that

Respondent got new orders, a long time—as much as 18

months—would be needed between a customer's initial

interest and the actual filling of his order because it in-

volved a large amount of preliminary work, including the

construction and testing of prototypes.

Concluding findings as to the discriminatory dis-

charges.

The decision to reduce the work force. While the

General Counsel may have abandoned the contention—he

does not urge it in his brief—at the hearing he attempted

to establish that Respondent decided on the reduction in

force for discriminatory, rather than business, reasons.

Respondent's testimony that orders were substantially

reduced prior to the layoff, and that it completed a large

Government contract on August 12 was uncontradicted.

Weber's testimony that those facts, together with the

economics of the country and of Respondent's business

caused Respondent to conclude that contraction was called

for was corroborated by the uncontradicted evidence that

Respondent also reduced its sales force and other parts

of its organization not affected by any effort at unioniza-

tion. It is true that the cutback, accompanied by con-

tinuation of overtime, represented a failure to live up to

Al5

Weber's statement or promise on May 25 that Respondent

would cut hours before resorting to layoffs. However, the

record does not show that Weber was aware in May that

orders would fall off so sharply, nor does it show any

experience in Respondent's history comparable with the

situation it faced in August 1970. I find that the General

Counsel failed to prove that Respondent decided to reduce

its work force in order to discourage unionization or other

collective activities.

There remains for consideration the question whether

any of the employees named in the Complaint were se-

lected for layoff for discriminatory reasons. Mitchell, head

of the Manufacturing Department, where 6 of the 7 al-

leged discriminatees worked, testified that he selected the

15 employees discharged in his department on the basis

Rice, an assembler, was hired not long before July 1,

1970."* He worked first under Welling, later under White.

Bradfield, an assembler who started about July 16, was

hired at a wage 10 cents per hour higher than Rice's, and

White told Rice that Bradfield was worth it. However

when Rice complained, he was granted a 10-cent increase,

which brought his rate of pay up to Bradfield’s. Rice

engaged in some discussion of unions with White, but he

did

there

tions, Respondent's action in hiring him at a higher wage

indication that it had made a

'* The General Counsel did not establish the date of his em-

ployment, but about July 1, Rice told Welling that he could not

comment on working conditions because he had just been hired.

a ee es _ ~2 tm . - —

Al6

judgement at that time that he was a promising employee.

Rice's collective or union activity was not outstanding.

Therefore, even assuming that Mitchell did give a modicum

of consideration to length of employment in making selec-

tions for layoff, Rice’s seniority over Bradfield’s was not

substantial enough to warrant the conclusion that his

selection was discriminatory. I find that the General

Counsel has failed to adduce sufficient evidence proving

that the discharge of Rice was discriminatory.

Suzelis worked for Respondent approximately 16

months. He was in the shipping department under Fore-

man Lloyd, and he received at least one wage increase

in 1970. He engaged in no activity connected with union-

ization prior to his discharge other than to tell Lioyd at

the meeting already described that “if we were treated

right none of us wanted the union.” The record does not

show which employees, if any, in the shipping department

or elsewhere were less useful or desirable than Suzelis.

I find that the General Counsel has failed to prove that

the discharge of Suzelis was discriminatory.

Foster was employed by Respondent for almost 16

months. She was secretary to Bradley Pritts, manager of

corporate development. Almost from the beginning of her

employment Pritts was aware that Foster’s husband was

an active union member at Babcock and Wilcox, and that

she herself generally favored unions. Foster was a satis-

factory employee, having received a merit increase in

August." The “recession plan” prepared by Mitchell

called for one Kathy Beach to be transferred to work for

Pritts and two other executives. Except for Weber's testi-

mony to the effect that he, his secretary, and Pierfelice

made the selections on the basis of relative merit, there is

hg A I A. NK, A A

dividual basis, and virtually all employees who were retained

rc me 2 : SLL AN A Ae II Bo

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no evidence as to the relative merit, relative seniority, or

any other basis of comparison as between Foster and

Beach or any other employees. I find that the General

Counsel has failed to prove that the selection of Foster

for discharge was discriminatory.

Hards, Arbogast, William Pratt, and Fowler were the

four employees who met with the UAW representatives on

August 8 at Hard’s house and signed cards on August 10."*

Mommyipey ey yy LY As already

noted, there is no evidence that Respondent learned up to August

12 of the employees’ contact with the UAW.

"* Hards testified that Elder was hired 14 monihs after he was.

Al8

which indicates that Hutchinson thought that he would

have refused to work on Saturdays if needed. Only one

inspector was required, and up to August 12 Hards was

always glad to be the man. Hards did no organizing at

the plant. As to the gatherings at his house on August 8

and 10 and the signing of the UAW cards, the evidence

indicates that the union representative and the four em-

ployee participants were the only ones who knew. Not-

withstanding that all four found themselves discharged

2 days after they signed the cards, the record does not

contain a basis for the inference that Respondent learned

of the gatherings or the card signing. I find that the Gen-

eral Counsel has failed to prove that Hards’ discharge was

discriminatory.

Arbogast, employed 1 year, was the inspector on the

night shift. His work was satisfactory and he was com-

plimented by Mitchell. In July Turner, his foreman, over-

heard another employee"* speak to Arbogast in favor of

having a union; and Arbogast testified that in the course

of his work he, himself, spoke to other employees, un-

named, in favor of having a union. About a week before

his discharge Turner asked him twice whether he had

heard any “union talk” and he answered that he had not.

The General Counsel contends that Elder, the inspector

who was retained, had less seniority than Arbogast. The

record, however, does not show any substantial difference

between the two men in this respect; as already noted,

Elder was also employed about one year. Nor is there

evidence in the record that Arbogast was a better em-

ployee than Elder. I find that the General Counse] has

failed to prove by a preponderance of the evidence that

Respondent’s discharge of Arbogast was discriminatory.

*The other employee, David McElroy, was also discharged

on August 12, but he was not named in the Complaint.

sa, . iD RR REE Pr NER A OT oe rere 4 ere op ape

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William Pratt worked for Respondent almost 41

years. He was an assembler and was complimented for

his performance by Mitchell, the plant superintendent,

ana by Foremen Lloyd, Williams, Turner, Welling and

White, and from time to time he was granted merit in-

creases.” When discharged Pratt protested to Mitchell that

Bradfield, ai. assembler hired about July 16, had been

retained notwithstanding Pratt’s substantial seniority.

Mitchell replied that he felt that with time Bradfield would

make a better assembler.

Pratt testified that he, as well as Fowler, did “most

of the talking” at the meetings with Welling and Weber.

However, except for Fowler’s concession that at the Well-

ing meeting “William Pratt spoke up” also, the other wit-

nesses testified only to Fowler’s outstanding participation

at both meetings. As the General Counsel failed to estab-

lish that Pratt was outstanding in the employees’ meet-

ings with Welling and Weber, or that Respondent knew that

Pratt had engaged in union activity or favored unioniza-

tion, there is insufficient evidence to establish that Re-

spondent’s discharge of Pratt was violative of the Act.

Fowler, employed 7 months, was an assembler until

July 6, when he was made production recorder in the

scheduling department, an office job within the manufac-

turing department, which he was awarded pursuant to

posting. The new job was of the same grade as assembler

but it was salaried, the pay was somewhat higher, and it

Pratt's testimony as to the above facts was uncontradicted.

In 1968, while he was in Respondent's employ, the Municipal

Court of the county imposed on Pratt a sentence of 1 to 6 months.

After serving 3 weeks Pratt was released on probation, conditioned

upon his receiving psychiatric care and treatment. The release

was procured with Respondent's active cooperation, and the psy-

chiatric treatment was paid for in part by Respondent's insurer

and in part directly by Respondent. Notwithstanding this Pratt

bore some resentment against Mitchell who he thought could have

obtained his release earlier.

. _ ™ am Set ey Ere

es eae wre se ; fe SLY . +

was considered a promotion.” Hartline, the head of the

scheduling department, told Fowler that he was doing a

“real good job,” and that it seemed that he would do well.

At the time of the layoff Weber instructed the various

department heads that anyone listed as excess could be

picked up, irrespective of department, and another em-

ployee made excess, and Fowler went on and off the list

several times before he was finally listed as excess. As

Fowler had been promoted on July 6 and had gone “on

and off the list” several times when the layoff list was

being prepared, the inference is warranted that in his 7

months of employment, he had impressed Respondent as

a desirable employee, and I so find. Weber’s instruction

that employees listed as excess could be picked up and

others substituted plainly placed Fowler in competition

with Bradfield for the assembler job from which Fowler

had recently been transferred.

Fowler was outstanding among the employees in the

meetings with Weber and Welling, and it was he who said

that the employees would resort to a union for help to

raise wages. It was that statement which brought on Re-

spondent’s threat, through Welling, to close the plant and

move to Irondale. Respondent contends that it “had no

knowledge of any specific union organizational activity.”

However, Respondent was fully aware that the employees

were considering unionization, which Respondent opposed,

and Mitchell took the step of having at least Foreman Lloyd

call a meeting of his employees to ascertain what im-

provements could be instituted to persuade the employees

not to unionize, irrespective of the identity of the union.

Even where seniority is not formally or explicitly

recognized as a factor for retention of employees, it does

2° In its brief Respondent refers to the transfer as a promo-

a oe — . = . — — - - .

, .

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A21

not comport with ordinary business practice for an em-

ployer completely to disregard substantial differences in

length of service when compelled to discharge employees

for business reasons. Since Respondent was hostile to

unionization and even took steps to find out what benefits

to grant which would persuade the employees not to union-

ize, and it retained Bradfield, a recent employee, in prefer-

ence to Fowler, whose 7 months of employment had resulted

in his being considered a desirable employee but who had

been outstanding in the employees’ collective activity, a

prima facie case of discriminatory selection was established.

See N.L.R.B. v. American Casting Service, Inc., 365 F.2d

168, enfg. 151 NLRB 172, 177; N.L.R.B. v. Deena Products

Co., 195 F.2d 330, 335, enfg. 93 NLRB 549.

Mitchell’s bare, general testimony that he had selected

the 15 employees for discharge on the basis of “ability,

attitude, cooperation,” even in conjunction with the fact

that Bradfield had been hired at a rate 10 cents per hour

above that of another recent employee, Rice, was not

sufficient to meet this prima facie case. Nor is it met by

the fact that Respondent promoted Fowler, and that it

seriously considered retaining him notwithstanding the

outspokenness he had displayed to Respondent in advocat-

ing unionization. This is not a case where no employee

would have been discharged but for Respondent’s desire

to discourage unionization. A reduction in force was de-

cided on for business reasons, and the only question at

issue is whether Respondent’s selection of the dischargee

was based on the fact that Fowler had been prominent

and outspoken in advocating higher wages for all the em-

ployees and unionization. In view of the absence of testi-

mony explaining why Respondent considered Bradfield

superior to Fowler, I am persuaded by the evidence on the

record as a whole that Respondent selected Fowler for dis-

charge because he engaged in concerted activities and ad-

A22

vocated unionization. I am also persuaded that Respondent

discharged him in order to discourage membership in any

labor organization. I find that Respondent thereby violated

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

IV. THe Errect or THE UNFAIR LABOR

PrRAcTICcCE Upon COMMERCE.

I find that the activities of Respondent set forth above

in section III, occurring in connection with its operations

described in section I, have a close, intimate, and sub-

stantial relationship to trade, traffic, and commerce among

the several States and tend to lead to labor disputes bur-

dening and obstructing commerce and the free flow of

commerce.

V. Tue REMepy

In order to effectuate the policies of the Act, I find

that it is necessary that Respondent be ordered to cease

and desist from the unfair labor practices found and from

like or related invasions of the employees’ Section 7 rights,

and to take certain affirmative action.

I recommend that Respondent reinstate Billy Fowler

to his former job or, if that job no longer exists, to a sub-

stantially equivalent position, without prejudice to his se-

niority and other rights and privileges, and that he be made

whole for any loss of earnings suffered by reason of the

discrimination against him. The amount of backpay shall

be a sum of money equal to the amount that he normally

would have earned as wages from the date of the discrimi-

nation against him to the date of his reinstatement or offer

of reinstatement, less his net earnings during said period,

such backpay to be computed on a quarterly basis in the

manner established by the Board in F. W. Woolworth

Company, 90 NLRB 289, 291-294; and it shall include in-

terest at the rate of 6 percent per annum, to be computed

Mas

A23

in the manner set forth in Isis Plumbing & Heating Co.,

138 NLRB 716. Respondent shall preserve and make

available to the Board and its agents for examination and

copying all payroll, production, subcontracting, and other

records necessary for the computation of backpay.

Upon the basis of the foregoing findings of fact and

on the entire record in this case, I make the following:

CONCLUSIONS OF LAW.

1. Respondent, Rotek, Incorporated, is engaged in

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

the Act.

2. Respondent is, and at all times material has been,

an employer within the meaning of Section 2(2) of the

Act.

3. International Union, United Automobile, Aero-

space and Agricultural Implement Workers of America

(UAW) is a labor organization within the meaning of Sec-

tion 2(5) of the Act.

4. By discriminatorily discharging Billy Fowler Re-

spondent has engaged in unfair labor practices within the

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

5. By interfering with, restraining, and coercing em-

ployees in the exercise of rights guaranteed in Section 7

of the Act, Respondent has engaged in unfair labor prac-

tices within the meaning of Section 8(a) (1) of the Act.

6. The unfair labor practices described above are un-

fair labor practices affecting commerce within the meaning

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

Upon the foregoing findings of fact, conclusions of

law, and the entire record, and pursuant to Section 10(c)

of the Act, I hereby issue the following recommended: *'

21In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

(Continued on following page)

A24

ORDER

Respondent, Rotek, Incorporated, its officers, agents,

successors, and assigns, shall:

1. Cease and desist from:

(a) Laying off, discharging, or otherwise discrimi-

nating against employees with respect to hire or tenure of

employment or terms or conditions of employment, be-

cause they engage in concerted activities or in order to

discourage membership in labor organizations.

(b) Threatening to close its plant or to move its busi-

ness to a new location if the employees permit themselves

to be organized by a union or if they designate a union as

their representative for collective bargaining.

sympathies or desires in such manner, or under such cir-

cumstances, as to constitute a violation of Section 8 (a) (1)

of the Act.

(d) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of their

rights under Section 7 of the Act.

2. Take the following affirmative action which, it is

found, will effectuate the policies of the Act:

(a) Offer Billy Fowler immediate and full reinstate-

ment to his former job, or if that job no longer exists, to a

Footnote continued—

tions Board, the findings, conclusions, and recommended Order

herein shall, as provided in Section 102.48 of the Rules and Regu-

lations, automatically become the findings, conclusions, decision,

and Order of the Board, and all objections thereto shall be deemed

waived for all purposes.

A25

substantially equivalent position, without prejudice to his

seniority and other rights and privileges.

(b) Make Billy Fowler whole for any loss of earnings

which he may have suffered as a result of the discrimina-

tion against him with interest at 6 percent, in the manner

described in section V of this Decision entitled ‘The

Remedy.”

the Board and its agents for examination and copying, all

payroll, production, and subcontracting records, and all

other data necessary to analyze and compute the backpay

required by this order.

(d) Notify Billy Fowler, if presently serving in the

Armed Forces of the United States, of his right to full re-

instatement upon application in accordance with the Selec-

tive Service Act and the Universal Military Training and

Service Act, as amended, after discharge from the Armed

Forces.

(e) Post in its office and plant at Ravenna, Ohio,

copies of the notice attached hereto marked “Appendix.’’**

Copies of the notice, on forms provided by the Regional

Director for Region 8 shall, after being signed by a repre-

sentative of Respondent, be posted immediately upon re-

ceipt thereof and be maintained by it for 60 consecutive

days thereafter, in conspicuous places, including all places

where notices to employees are customarily posted. Rea-

sonable steps shall be taken to ensure that said notices are

not altered, defaced, or covered by any other material.

*2 In the event that the Board’s Order is enforced by a judg-

ment of a United States Court of Appeals, the words in the notice

reading “POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD” shall be changed to read “POSTED

PURSUANT TO A JUDGMENT OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER OF THE NA-

TIONAL LABOR RELATIONS BOARD.”

A26

(f) Notify said Regional Director for Region 8, in

writing, within 20 days from the date of the receipt of this

Decision, what steps Respondent has taken to comply here-

with.”

It is further recommended that the Complaint be dis-

missed insofar as it alleges unfair labor practices not

specifically found in this Decision.

Dated at Washington, D. C. Aug. 26, 1971.

GEORGE TURITZ,

Trial Examiner.

APPENDIX

NOTICE TO EMPLOYEES

PosTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

WE WILL offer Billy Fowler immediate and full re-

instatement to his former job, without prejudice to his

seniority and other rights and privileges. If he is in the

Armed Forces, we will notify him of his right to have his

former job back after discharge from the Armed Forces.

WE WILL pay Billy Fowler for any loss of wages he

suffered as a result of the discrimination which it has been

found we practiced against him.

WE WILL NOT lay off or discharge employees or dis-

criminate against them in any other manner because of

their concerted activities or in order to discourage mem-

bership in any labor organization.

23In the event that this recommended Order is adopted by

the Board after exceptions have been filed, this provision shall

be modified to read: ‘Notify said Regional Director for Region

8, in writing, within 20 days from the date of this Order, what

steps Respondent has taken to comply herewith.”

A27

WE WILL NOT threaten to close our plant or move

our operations to another location if our employees decide

to bargain collectively or allow themselves to be organized

by a union.

WE WILL NOT question you about your union sym-

pathies or desires under such circumstances or in such a

manner as to constitute coercion.

WE WILL NOT in any like or related manner inter-

fere with, restrain, or coerce you in the exercise of your

right to self-organization, to form, join, or assist any labor

organization, to bargain collectively through representa-

tives of your own choosing, or to engage in any other con-

certed activities for the purpose of collective bargaining

or other mutual aid or protection, or to refrain from any

and all such activities, except insofar as these rights might

be affected by a contract with a labor organization, if

validly made in accordance with the National Labor Re-

lations Act, whereby membership in a labor organization

is a condition of employment on or after the 30th day fol-

lowing the date of the contract or the beginning of such

employment, whichever is later.

ROTEK INCORPORATED

(Employer)

(Representative) (Title)

This is an official notice and must not be defaced by anyone

This Notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material.

Any questions concerning this Notice or compliance

with its provisions, may be directed to the Board’s Office,

1695 Federal Office Building, 1240 E. 9th Street, Cleve-

land,Ohio 44199 (Tel. No. 216-522-3715).

DECISION AND ORDER OF THE NATIONAL

LABOR RELATIONS BOARD

(Issued December 7, 1971)

Case No. 8-CA-5993

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD REGION 8

ROTEK INCORPORATED

and

BILLY FOWLER, an individual

DECISION AND ORDER

On August 26, 1971, Trial Examiner George Turitz

issued the attached Decision in this proceeding. There-

after, Respondent and the General Counsel filed excep-

tions and supporting briefs, and Respondent filed a brief

in opposition to the General Counsel's exceptions.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National La-

bor Relations Board has delegated its authority in this

proceeding to a three-member panel.

The Board has considered the record and the Trial

Examiner's Decision in light of the exceptions and briefs

and has decided to affirm the Trial Examiner's rulings,

A29

findings,’ and conclusions and to adopt his recommended

Order.

ORDER.

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

lations Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of the

Trial Examiner and hereby orders that the Respondent,

Rotek, Incorporated, Ravenna, Ohio, its officers, agents,

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

the Trial Examiner’s recommended Order.

National Labor Relations Board.

Epwarp B. Mi.ter, Chairman,

Joun H. Fanninc, Member,

Raupu E. Kennepy, Member,

Dated, Washington, D.C. Dec. 7, 1971.

(Seal)

eeu eecty

i a

TATE

“HRT

— me a

A30

ORDER OF THE COURT OF APPEALS

(Filed July 18, 1972)

No. 71-2073

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROTEK, INC.,

I etit 10 ner ’

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ORDER

Before: Epwanrps, Peck and Kent, Circuit Judges.

This cause came on to be heard upon the record on

appeal and the briefs and arguments of counsel, and upon

due consideration thereof and of the factual situation as set

out in the record and the report of the case, 194 N.L.RB.

No. 73, it appears to the Court that the findings and order

of the Board are supported by substantial evidence on the

record as a whole.

Now, therefore, Ir Is Orperep, that the order of the

Board be and it is hereby enforced.

Enterep By Ornper Or Tue Court

/s/ James A. Hiccins

Clerk

A PPA OT Oe ee ee Oo Lee Se ee

tional en A ER i MR NEB

OPINION OF THE COURT OF APPEALS IN THE

CASE OF RIVERS MFG. CORP., 376 F.2d 511

(May 9, 1967)

No. 16,825

UNITED STATES COURT OF APPEALS

SIXTH CIRCUIT

Petition for review of, and counter-request for enforce-

ment of, a decision of the National Labor Relations Board

finding employer guilty of unfair labor practices. The

Court of Appeals, O’Sullivan, Circuit Judge, held that evi-

employees to discourage union membership, in view of

failure to show that employer knew of union activities at

time of discharge.

Order vacated and denied enforcement in part, and in

other respects enforced.

1. Labor Relations

Evidence did not support finding that employer dis-

charged employees to discourage union membership, in

view of failure to show that employer knew of union ac-

tivities at time of discharge. National Labor Relations Act,

$§ 8(a) (1, 3), 10(e, f) as amended 29 US.C.A. §§ 158(a)

(1, 3), 160(e, f).

2. Labor Relations

Reviewing court must inquire whether there is sub-

stantial evidence to support conclusion reached by exam-

iner and affirmed by National Labor Relations Board, even

assuming that all testimony relied on by examiner was

true.

3. Labor Relations

Examiner’s view that employer’s assigned reasons for

discharges were neither valid nor credible would not pro-

vide the needed evidence of discriminatory motivation in

such discharges. National Labor Relations Act, §§ 8(a)

(1, 3), 10 (e, f) as amended 29 U.S.C.A. §§ 158(a) (1, 3),

160(e, f).

4. Labor Relations

General counsel had burden to prove allegations of

complaint and demonstrate that employer’s action was

motivated, at least in part, by antiunion bias. National

Labor Relations Act, §§ 8(a), (1, 3), 10(e, f) as amended

29 U.S.C.A. §§ 158 (a) (1,3), 160(e, f).

Robert H. Cowan, Nashville, Tenn. (Gracey, Buck,

Maddin & Cowan, Nashville, Tenn., on the brief), for peti-

tioner.

Morton Namrow, National Labor Relations Board,

Washington, D. C. (Arnold Ordman, Gen. Counsel, Domi-

nick L. Manoli, Associate Gen. Counsel, Marcel Mallet-

Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty.,

National Labor Relations Board, Washington, D. C., on the

brief), for respondent.

Before O’SULLIVAN, CELEBREZZE and McCREE,

Circuit Judges.

O’SULLIVAN, Circuit Judge.

A33

This matter involves a petition for review, and a coun-

ter request for enforcement, of a decision of the National

Labor Relations Board (reported at 154 NLRB No. 51)

finding Rivers Manufacturing Corporation guilty of 8(a)

(1) and 8(a) (3) unfair labor practices, 29 U.S.C.A. § 158

(a) (1) and (3). The alleged violations related to the dis-

charge of nine employees of Rivers and the interrogation,

coercion and illegal persuasion of others—activity meant

to discourage union membership. The context of these

events was a short-lived and unsuccessful effort of the

International Union of Mine, Mill and Smelter Workers

(AFL-CIO), to organize the approximately 100 employees

of Rivers Manufacturing Corporation of Centerville, Ten-

nessee. We deal only with the discharge of five employees

on October 2, 1964, and not with alleged other employer

misconduct on and after November 15, 1964, including

the seriatim firing of four workers late in November and

early in December of that year.

[1] We so limit our review because petitioner’s brief,

with becoming candor and good advocacy, states that,

“It [Rivers Mfg. Corp.] will concede at the outset that

reasonable minds might differ on the conclusions based

on the record as a whole reached by Respondent for

any actions taken by Petitioner after, on or about No-

vember 15, 1964, however Petitioner firmly contends

that these, perhaps zealous, actions should not be used

to condemn its valid terminations on October 2, 1964.”

The question, thus, for our decision is whether the Board’s

finding that Rivers on October 2, 1964, discharged em-

ployees Sanders, Haley, Mayberry, Brown and Shelton to

discourage membership in a union, was supported “by sub-

stantial evidence on the record considered as a whole.”

¢ 10(e) and (f) of the Act, 29 U.S.C.A. § 160(e) and (f).

=e. see

Ay? Se

A34

We hold that such finding was not so supported, and that

the company is not required to reinstate the five dischargees

and pay them for any loss of wages they have suffered.

Rivers manufactures plastic and neon signs fashioned

from plastic, aluminum, stainless steel, paint and other

component materials. Its plant, which employs about 100

people, is at Centerville, Tennessee; R. T. Rivers is its presi-

dent and principal owner. There is no evidence that prior

to November, 1964, the company had any collisions with

any union or had ever exhibited an anti-union disposition.

The company’s explanation of the events leading to the

discharges here in issue is as follows:

In the first half of 1964 the company had sustained

serious losses and at various meetings of its directors in

the summer and early fall of that year, the fact that the

company’s “finances were in a most critical situation” was

discussed. In late September it was decided that the work-

ing force would have to be reduced and inefficient work-

men replaced. In furtherance of this purpose, a review of

the production payroll was made by supervisory personnel,

using a list which set out the names of some 86 people,

ranked according to their seniority. This list, containing

notations thereon as to the skills and usefulness of various

employees was completed just prior to the October 2 dis-

charges. It was received in evidence and its authenticity is

not questioned. The names of the five alleged discrim-

inatees were crossed out, as were others, indicative of an

intention to lay them off. In the instance of three of the

discriminatees, notations were made as to the poor quality

of their work. Four of these five had started work in July

or August, 1964, and were generally among the most re-

cently hired employees. They were dismissed on Octo-

ber 2, and while no exact figure as to the number of em-

— — NE SN Gee SRI TS Sa PRI I TSS fe RAT Oe IS ANT OB

A35

ployees laid off at that time was given—one witness said

8 or 10—there are some 14 names stricken from the list.

There is no evidence as to whether any of the October 2

dischargees, other than the five here involved, were or

were not union adherents. The trial examiner foreclosed

inquiry as to this point.

There is no evidence that on or prior to October 2 the

Rivers company had knowledge of any union activity in its

plant. The Board’s inference to the contrary is, in our

view, without evidentiary support. There was evidence,

however, that commencing on or about November 15 the

company became aware of activity by the Mine, Mill and

Smelter’s union to sign up some of its employees. From

this evidence and under the company’s concession, we may

accept the Board’s findings that the company thereafter

resisted the union’s campaign and by virtue of its inter-

rogation, surveillance and pressuring of various employees,

coupled with the firing of some four workers in late No-

vember and December of 1964, was guilty of the unfair

labor practices charged, relating to such conduct. The

union organization activities apparently ended when, either

due to voluntary cooperation or coercive inducement, those

who had signed up for the union withdrew therefrom.

But, although we affirm the Board as to part of its

findings, we cannot let stand the examiner’s inference that

the company had knowledge of the union’s campaign when

it discharged the five employees on October 2, and that the

discharges, consequently, were made to discourage mem-

bership in the union. The total evidence from which this

inference was drawn is as follows:

1) The five alleged discriminatees testified that they

had on September 23 or 24 signed cards to join the union,

and one or more said that they had asked others to sign.

A36

None claimed to have disclosed this in any way to any

supervisory personnel.

2) One of the alleged discriminatees, William May-

berry, was employed by the company on August 7, 1964.

He had previously been employed by a company called

Tennco and had there been a member of Stove Mounters

Union, Local No. 153. He testified that when he came to

Rivers he had a bumper sticker on his automobile evidenc-

ing his membership in that union; that he had several of

these stickers in his automobile and that some other em-

ployees took and displayed them on their bumpers. He

was unaware of how many did this, saying “I don’t know

anyone in particular. I just saw them on the cards [sic]

there. There were a green Chevrolet it was on.” May-

berry further said that he carried a “union handbook, wage

scales and the like” (apparently issued by Stove Mount-

ers Union), which he showed to several of his co-employees

at Rivers. This activity presumably occurred sometime

prior to his discharge on October 2. Mayberry said that

although his application for employment at Rivers revealed

his former membership in the Stove Mounters Union, Mr.

Rivers, who took his application, did not discuss the sub-

ject with him, and that at no time did any supervisory per-

sonnel ever discuss or mention a union in his presence.

There was no evidence that any company representative

ever noticed the one or more Stove Mounters’ bumper

stickers.

3) James Sanders, one of the alleged discriminatees,

discharged on October 2, was employed on August 20, 1964.

He swept and cleaned up for the first three days he was

on the job and then was put to work as a welder. He tes-

tified to the following conversation with a night foreman,

Lonnie Baker (whose status as a spokesman for the com-

pany was disputed):

A37

Q. Did Lonnie Baker ever speak to you about

the union?

A. Yes, sir.

* 7 * 7 *

Q. And what was said?

A. Well, I talked about the rate of pay for weld-

ing; if welding didn’t pay better than sweeping, I’d

just as soon to have my broom back. At least I

wouldn’t burn up my clothes. I said we needed a union

around here. He said talking about the union around

there, I wouldn’t be there very long. I wouldn’t have

my job very long. (Emphasis supplied. )

He further testified to a conversation with one Owen Bar-

ber, a plant supervisor as follows:

Q. Did Owen Barber speak to you about the

union at any time?

A. Yes, sir.

Q. Did you tell us what was said in this conversa-

tion?

* » * * *

A. Owen come around where I was working and

wanted to know how I was doing and so forth, talking

about work, you know; wanted to know how I was get-

ting along. I started complaining about $1.25 an hour

for welding and told him we needed a union around

there so I could get, maybe, better money like some of

the others was getting, you know, for welding.

Q. Did Barber make any comment on this to you

or say anything about it?

A. I told him that we needed a union and he said

would I be in favor of anything like that. * * * He

asked if I would be in favor of anything like that and

I told him I sure would. (Emphasis supplied. )

wh NORBERG ONE ORE LEA EIN DOE OG WS Pr i

A38

The witness Sanders did not in any way relate these

conversations in time or circumstance to the period when

union cards were first obtained on September 23 and 24.

Both of the above alleged discriminatees affirmed that as

far as they knew no one in supervision was aware of the

signing of the union cards or any other union activity; and

in truth there was no evidence that except for the cards

there was any union activity. The trial examiner fore-

closed inquiry as to union meetings and the signing of cards

by any others besides the alleged discriminatees, and would

not allow company counsel to prove by a party not a dis-

criminatee that a card bearing date September 24, 1963,

had actually been signed long after October 2 and back

dated to that day.

The foregoing is the total material from which the

examiner and the Board inferred that the five employees

discharged on October 2, 1964, were the victims of a com-

pany purpose “to interfere with, restrain or coerce em-

ployees in the exercise of the rights, guaranteed in Section

7,” Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1)

and to “discourage membership in any labor organization,”

Section 8(a) (3) of the Act. 29 U.S.C.A. § 158(a) (3). On

the basis of what we have set out, the trial examiner said

under his heading “C. The Dischargees,”

“The October 2 dismissals. In this setting of intensive

and extensive interference, restraint and coercion, the

Respondent terminated the employment of nine em-

ployees between October 2 and December 7, 1964, em-

ployees who, as will be noted below, were known by

management to be union adherents.”

* * + oa *

“* * * four had signed union cards for Sanders on Sep-

tember 23 or 24. Shelton solicited signatures from

others. And Mayberry’s interest in being a member

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A39 F

of a labor organization was plainly well known to man-

agement, since he had admitted on his application

form, when hired, that he was a member of a union,

and while employed always had a union sticker dis-

played on his car in which he rode to work.” (Em-

phasis supplied.)

{2, 3] As to the October 2 discharges, the above in-

ferences were, in our view, impermissible. We have held

that the Board and its examiner may, without direct proof,

infer illegal and discriminatory conduct by an employer.

N. L. R. B. v. Bendix Corp., 299 F.2d 308, 310 (C.A. 6, 1962),

cert. den. 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65; N. L. R. B.

v. Power Equipment Co., 313 F.2d 438, 441 (C.A. 6, 1963);

N. L. R. B. v. Murray Ohio Mfg. Co., 326 F.2d 509, 513 (C.A.

6, 1964); N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 596-597,

61 S.Ct. 358, 85 L.Ed. 368, 378 (1941); N. L. R. B. v. Nevada

Consolidated Copper Corp., 316 U.S. 105, 107, 62 S.Ct. 960,

86 L.Ed. 1305, 1307 (1942), but a right to infer is not a right

to create. We have the responsibility to inquire whether

there is substantial evidence to support the conclusion

reached by the examiner and affirmed by the Board,

N. L. R. B. v. Murray Ohio Mfg. Co., 326 F.2d 509, 513 (C.A.

6, 1964), even assuming that all of the above outlined testi-

mony provided by the witnesses Mayberry and Sanders is

true. That testimony, alone, does not provide sufficient

factual background to allow an inference that the com-

pany knew that a union campaign was in progress, that the

dischargees were active in such campaign, and that the

terminations were made to frustrate the campaign and dis-

courage membership in the union. Nor would the exam-

iner’s apparent view that the company’s assigned reasons

for the October discharges were neither valid nor credible

provide the needed evidence of discriminatory motivation.

See Lawson Milk Co. v. N. L. R. B., 317 F.2d 756, 760 (C.A.

6, 1963).

2 why . — 7 . —— . 7 cama LR RRE Ra SEC ele ene ne

ES EE PNET EL LE OEE SOS LITE SSE EEC ELS ETE FLEECES EELS as |

A40

[4] It was the burden of the General Counsel to

prove the allegations of its complaint, to demonstrate that

the company’s action was motivated, at least in part, by

anti-union bias. N. L. R. B. v. Cleveland Trust Co., 214

F.2d 95, 99 (C.A. 6, 1954); Lawson Milk Co. v. N. L. R. B.,

supra; N. L. R. B. v. Murray Ohio Mfg. Co., supra. That

burden has not been carried here. The examiner’s state-

ment that,

“The evidence sustaining General Counsel’s allegations

that these October 2 discharges were designed to dis-

courage further self organization is overwhelming.”

(Emphasis supplied.) ;

is without foundation. We therefore hold that the finding

that the October 2 discharges were violative of Sections

8(a) (1) and (3) of the Act is not supported by “‘substan-

tial evidence on the record as a whole.”

This disposition of the matter renders moot petition-

er’s motion that we remand the case to the Board to hear

evidence upon its claim that the October 2 dischargees had

not in fact signed union cards on September 23 and 24.

The motion was supported by the affidavit of R. T. Rivers

that one of the October 2 dischargees (Mayberry) was pre-

pared to testify that the cards purportedly signed on the

September dates were in fact backdated after the dis-

charges; it was further supported by an affidavit of another

dischargee (Haley) that a representative of the union had

arranged for such backdating. Without any investigation

of these charges of false swearing, the Board denied the

motion primarily upon procedural grounds.

The order of the Board so far as it relates to its find-

ing that the October 2, 1964, discharges were violative of

the Act is vacated and denied enforcement; in all other

respects its order is enforced.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.