Hydra-Tool Co.

National Labor Relations Board - Board Decisions

Feb 26, 1976

222 N.L.R.B. 1113 (N.L.R.B. 1976)

HYDRA-TOOL COMPANY
Hydra-Tool Company and Shopmen's Local 582, affi-
liated with the International Association of Bridge,
Structural Steel and Ornamental Ironworkers,
AFL-CIO. Case 17-CA-6176
February 26, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On September 30, 1975, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Hydra-Tool Company,
Topeka, Kansas, its officers, agents, successors, and
assigns, shall take the action set forth,in said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: In this
case a union shop steward was fired. The issue is whether it
was for cause or because of his activity as a steward. As set
out more fully below, I find his discharge was unlawfully
motivated.
The case arises from charges filed August 12, 1974, by
Shopmen's Local 582, affiliated with the International As-
sociation of Bridge, Structural Steel and Ornamental Iron-
workers, AFL-CIO (herein Local 582 or Charging Party).
Based on these charges the Regional Director for Region
17 of the National Labor Relations Board (herein the
Board) issued a complaint on May 30, 1975, alleging that
Hydra-Tool Company (herein Respondent or Company)
had engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended (herein the Act). The gravamen of the
1113
complaint is that Respondent discharged employee John
Diehl on August 2, 1974, and has not since reinstated him,
because of his union adherence, membership, or activity.
Respondent answered the complaint setting forth various
defenses which are dealt with later herein. The answer ad-
nuts some allegations including jurisdiction and the fact
that Diehl was discharged on August 2, 1974, and has not
been reinstated, but denies that he was discharged because
of union activity. The issues were heard before me at Tope-
ka, Kansas, on July 1, 1975.
Considering the entire record, including my observation
of the witnesses and consideration of the Respondent's
brief,' and the arguments of counsel made at the hearing, I
make the following:
FINDINGS OF FACT
1. THE EMPLOYER INVOLVED
Respondent, a corporation, is engaged at Topeka, Kan-
sas, in the manufacture of machinery. It annually purchas-
es goods and materials valued in excess of $50,000 directly
from sources outside Kansas and also annually sells goods
and materials valued in excess of $50,000 directly to cus-
tomers outside Kansas. I find Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Terry Hays is Respondent's executive vice president and
the general manager in charge of its Topeka plant. Plant
Superintendent Robert Allen, who is in charge of produc-
tion, is responsible to Hays. The Topeka plant employs
about 100 employees, approximately 20 to 25 of whom
work on the night shift where Diehl was employed at the
time of his discharge.
II. THE UNIONS INVOLVED
Local 582 (the Charging Party) is a sister local affiliated
1 The General Counsel and the Charging Party did not file briefs. After
the time set for the briefs had expired, the General Counsel submitted a
document entitled "Counsel for General Counsel's Answer to Certain Alle-
gations of Respondent's Memorandum Brief, and Motions to Strike." Inas-
much as Board Rules do not provide for reply briefs, that document has not
been considered as a brief. Rules and Regulations and Statement of Proce-
dure, Series 8, as amended, Sec. 10242, Joseph E. Cote, etc, 101 NLRB
1486, 1487, In 4 (1952). It will be entertained as a posthearing motion.
In part, counsel for the General Counsel moves to strike Respondent's
Exhs 1, 2, and 9, which were received at the hearing, on the ground that
Respondent counsel, after withdrawing them in order to make copies fol-
lowing the hearing, did not return duplicates to the court reporter when
returning the originals. In his motion counsel for the General Counsel
states, "The short of it is that Respondent never furnished the exhibits it
said it would furnish; they are therefore not available to Counsel for the
General Counsel; and elementary fairness dictates that the exhibits should
not be relied upon as evidence "
Of course the exhibits in question have been available to counsel for the
General Counsel to the same degree as they, or for that matter all exhibits of
the General Counsel and the Respondent, have been to counsel for the
Charging Party Be that as it may, no significant unfairness results from this
failure to timely supply duplicates Subsequent correspondence indicates
Respondent's counsel has since supplied them. At the close of the hearing,
counsel for the General Counsel indicated he did not intend to file a brief,
a position he reaffirmed in his posthearing motion. I perceive no prejudice
to the rights of the General Counsel. The motion to strike Resp. Exhs. 1, 2,
and 9 is denied.
222 NLRB No. 186
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the same International as Shopmen's Local Union
No. 520 of the International Association of Bridge, Struc-
tural and Ornamental Ironworkers, AFL-CIO (herein Lo-
cal 520). Both Local 582 and Local 520 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
Respondent and Local 582 have been parties to a collec-
tive-bargaining agreement, which is not part of the record
in this case, covering the production and maintenance em-
ployees at Respondent's Topeka plant effective for the pe-
riod November 1, 1973, to March 16, 1976. By an all-party
agreement effective December 1, 1974, Local 520 succeed-
ed Local 582 as the representative of the employees and
also as the contracting union under the existing collective-
bargaining agreement . Respondent asserts in its answer
that as of that date Local 582 relinquished and transferred
to Local 520 all rights vested in it as an agent and bargain-
ing representative of the employees, and that its employees
joined and affiliated themselves with Local 520.
One of Respondent's defenses is that Local 582, by vir-
tue of having relinquished its representative status, lacks an
interest in the outcome of this proceeding and therefore
lacks standing as a charging party. This contention is with-
out merit. Assuming that Local 582 has no present interest
in representing the employees at the Topeka plant, such an
interest is not essential to the filing of a valid charge which
stimulates an official investigation under the Act. The in-
vestigation and processing of a complaint is a function of
the General Counsel and his staff acting in the public inter-
est and not as the representative of any litigating party.
The instigating charge here was filed on August 12, 1974,
long before the transfer of representative status from Local
582 to Local 520. There is no reason to think that by trans-
ferring its function as a representative Local 582 aban-
doned all interest in litigation arising out of prior events.
Another defense urged is that the complaint should be
dismissed because of a pending lawsuit filed in the United
States District Court for the District of Kansas against Re-
spondent by Local 582 on January 6, 1975, which asks for
the same relief as would normally be ordered by the Board
if the complaint in the present matter were found to have
merit. The complaint in the action is appended to
Respondent's brief. By stipulation it is part of the record in
this case.
The Federal court complaint, filed after the instant un-
fair labor practice charges but before issuance of the unfair
labor practice complaint, seeks, inter alia, reinstatement of
John Diehl with backpay, or, in the alternative, an order
compelling Respondent to submit his discharge to arbitra-
tion. Respondent claims that, because Local 582 is asking
for identical relief in the court case, the Board should not
entertain the instant charges and complaint. Respondent
urges that, because court action is authorized by Section
301 of the Act, Local 582 has made an election which
should bar processing of the unfair labor practice case, that
otherwise differing determination of the same question
may result, and that dual litigation is unfair to Respondent.
Respondent does not urge in this matter that the Board
should defer to arbitration under the doctrine of Collyer
Insulated Wire, A Gulf and Western Systems Co., 192 NLRB
837 (1971). Nor on this record is it in a position to do so
inasmuch as no showing has been made of a final disposi-
tion of Diehl's grievance. It is not established here that the
matter is even disposable by arbitration pursuant to agree-
ment between the parties. Here there is no contract before
the Board for Interpreting, the basic collective-bargaining
agreement not being in evidence.
I hold that the Federal court suit is not a bar to the
present unfair labor practice case . Board jurisdiction in a
case dates from the filing of the charge, thereby antedating
the court case . No authority has been cited to me holding
that Board jurisdiction is ousted by a subsequent lawsuit.
There is no showing that the Federal district court has act-
ed in any regard in that case. All that appears are the alle-
gations of a complaint filed with the clerk of court.
The only plaintiff there is Local 582. As already noted,
the prime moving party in the Board proceeding is the
General Counsel who is not the alter ego of the Charging
Party, nor even of the alleged discriminatee, but who repre-
sents the public.
The Board's authority to act in unfair labor practice
cases is not affected by other means of adjustment or pre-
vention, including court litigation. (See Sec . 10(a) of the
Act.) See also Curtiss-Wright Corporation, 193 NLRB 940,
946, 953 (1971). I am aware of no case where the Board, in
circumstances similar to those posed here, has decided to
forbear deciding an unfair labor practice question. I do not
think the Board should hold its hand in this case.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Employment History of John Diehl
John Diehl, the alleged discriminatee, started working
for Respondent in mid-October 1968. For a 15-month peri-
od from January 17, 1972, until April 25, 1973, he was out
of work because of an injury sustained in an automobile
accident. Following his return to work, he continued with-
out interruption until his discharge on August 2, 1974. At
the time of discharge, Diehl was approximately 54 years of
age.
Prior to early summer 1973 he worked on the day shift.
At that time he was transferred to the night shift where he
worked as a finish mechanic on a crew building press
brakes.
Diehl was a good employee but he had been verbally
reprimanded in late February or early March 1974 for low
production. Subsequent to that verbal reprimand he be-
came shop steward for the night shift. He was not again
reprimanded for any reason until July 31 when he was
handed a written warning for low production.
B. Diehl's Function with the Union
Prior to the time Diehl was appointed steward in,early
spring 1974, Local 582 had no steward specifically assigned
to the night shift. One of his principal functions as steward
was to process grievances for employees.
Although the collective-bargaining agreement between
Local 582 and Respondent is not in evidence, the record as
a whole- indicates an established grievance procedure is in
effect between Respondent and the union representing its
employees. To what extent, if any, this procedure contem-
HYDRA-TOOL COMPANY
plates binding arbitration as a final step is not established
in the present record.
During his stewardship, and commencing about the first
of June, Diehl pressed approximately six grievances or
complaints in the nature of grievances. These included (a)
a claim that the night shift should receive a pay differential
for working on holidays; (b) a complaint over inadequate
and unsafe electrical outlets in the plant's south bay; (c) a
complaint regarding an unsafe overhead crane; (d) a pro-
test over the discharge of employee Rick Jordan for poor
production; (e) a similar protest over a reprimand to em-
ployee Stephen Winn for poor production and quality of
work; and (f) a complaint over inadequate night lighting
on the company parking lot. All of these complaints - or
grievances were the subject of discussions between Diehl
and management officials. He testified, and I find, that the
discussions were often heated.
The principal office of Local 582 is not in Topeka, but in
Kansas City. Considerable support had developed among
Respondent's employees for creation of a separate local in
Topeka which could give employees on-the-spot represen-
tation. This sentiment came to a head during the first half
of July 1974 at which time the employees took steps to
forma new local. Diehl was selected as its acting president
although the new organization as yet had no charter. No-
tice of his selection was posted on the company bulletin
board in the vicinity of the timeclock. Subsequent to
Diehl's discharge, Local 520 received its charter and by
agreement with Local 582 and Respondent became the rec-
ognized representative of the employees and party to the
preexisting collective-bargaining agreement.
C. Evidence of Company Animus Respecting Diehl's Activity
In connection with his processing of the grievance for
Rick Jordan (referred to above) Diehl met in late June or
early July 1974 with Plant Superintendent Robert Allen.
Diehl testified without contradiction, and I find, that on
that occasion Allen told him he had no business repre-
senting the employee in that case. Diehl further testified,
and I find, that at grievance sessions Allen invariably be-
came agitated, upset, and at times quite angry.
In connection with: the grievance involving Stephen
Winn, Diehl in July 1974 conferred with the executive vice
president and general manager, Terry Hays. During that
session Hays complained to Diehl, "Am I ever going to be
able to take anyone out of service without you processing a
grievance?" '
-Lyle Simpson, the regular supervisor for the night shift,
is the highest management official on duty at night. He
supervises as many as 25 or 30 employees, does not per-
form production work, has authority to assign employees
from job to job, to grant leaves of absence, and to termi-
nate employees. I find Simpson is a supervisor within the
meaning of the Act.
Sidney Cork, an employee who at the time of the hearing
no longer worked for Respondent, testified without contra-
diction that sometime before July 4, 1974, in connection
with the purchase of a car from Simpson, he had occasion
to visit him at his home. During their conversation they
had several beers. Cork asked Simpson, "Lyle, what do you
1115
think about John Diehl and this union business or stuff?"
Simpson, who then, as now, was a supervisor, answered,
"If John doesn't knock off the horseshit, he's going to get
his ass fired."
I find that this incident occurred as reported by Cork.
Even though he was somewhat hazy about when the events
occurred as well as about how he was to pay for the auto-
mobile and when he took title to it, his basic story was
unshaken during cross-examination. At the time of the
hearing he was a- disinterested witness. In demeanor he
appeared believable. As noted earlier, his testimony is un-
contradicted.
Respondent has attached to its post hearing brief, a doc-
ument purporting to be an affidavit of Simpson executed
on August 1, 1975, whiclf is inconsistent with Cork' s testi-
mony. The General Counsel objects to this document
being part of the record in this case. The objection is well
taken. See Pate Manufacturing Company, 197 NLRB 793
(1972). At the time of the hearing there were statements of
counsel to the effect that Simpson was on vacation but no
showing was made that he was unavailable to be a witness
at the hearing. If he had testified he would have been sub-
ject, as were other witnesses in the case, to the normal tests
of confrontation and cross-examination. In the circum-
stances, I do not consider Simpson's purported affidavit,
submitted after the close of the hearing, to be part of the
record in this case. The contents thereof have not been
considered in reaching the findings of fact in this decision.
In the words of Respondent's counsel, Diehl was a great
grievance giver. The above-described evidence shows that
management officials took a dim view of his approach to
the steward's job,of processing grievances. Prior thereto
very few grievances had been pressed for either the day or
the night shift. I find-that the evidence establishes animus
on Respondent's part with respect to Diehl's activity in the
form of grievance processing.
D. The Absence Request Form Controversy
1. The Company policy
The Company maintains in effect a written set of rules
entitled "Company Policy" which is posted on the employ-
ee bulletin board. Under a section entitled "General Work-
ing Rules," this policy contains the following provisions:
It is the responsibility of the individual employee to be
certain that his immediate leadman is aware of his
whereabouts at all times. Anytime that an employee
must leave his regularly assigned work station for any
reason, whether it be for personal or company busi-
ness, he must contact his leadman so that his position
will be known.
Further, it is the responsibility of the individual to dis-
cuss with his leadman -any need to leave the plant dur-
ing working hours, and before doing so, he must fill
out an absence request and have it signed by the plant
superintendent. When the individual leaves the plant
his leadman must initial the timecard.
The published policy also contains a section entitled
"Plant Rules, Violations and Penalties." This section reads
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in part, "Violations of any of the rules will be grounds for
disciplinary action, ranging from a warning to immediate
discharge, depending upon the seriousness of the offense."
The section then lists 17 "Offenses which may be cause for
immediate discharge." The third item among these is
"Gross Insubordination." The section also lists some nine
"Offenses which may require one written warning before
discharge." The third among these is "Repeated minor in-
subordination incidents." Finally the section lists some six
"Offenses which may require two written warnings before
discharge." The first of these is "Leaving work stations be-
fore final quitting signal."
The written policy has been in effect since at least 1968.
It was supplemented by a letter to employees on July 5,
1972, which dealt with the necessity of employees filling
out the absence request form on occasions when they left
work. In pertinent part that letter reads:
Anytime you are to be away from work during your
regular working"hours, it is necessary for you to secure
permission. When possible, we will cooperate fully
with you for this excused absence. However, our first
thoughts must be of our production, and the effect
that your absence (particularly if several people want
off at the same time) would have. Remember, we've
made commitments to our customers in order to get
them to buy our machines, and [sic] is necessary for us
to keep these commitments in order to continue a
good business reputation and keep those orders com-
ing.
To prevent any further confusion on this issue, we will
immediately initiate a program in which each employ-
ee will fill out a simple absence request form and pass
it to his leadman, to be initialed by the plant supenn-
tendent (or his replacement in event of his absence).
This form will then be returned to the individual re-
questing the absence to insure that it is approved.
The letter then quotes from the written policy. At its bot-
tom, the letter sets out a sample absence request form.
At the hearing, Diehl admitted he was familiar with the
company policy and with the absence request form in ef-
fect at the time of his discharge. The form is as follows:
Absence Request
Name Clock No.
Requests permission to be excused from work
from
to
(hour) (date)
(hour) (date)
For
Approved by:
NOTE to Employee-after this form has been approved
and returned to you, it is necessary for your supervisor
or the plant superintendent to approve your time card
just previous to the time you clock out for this excused
absence. Return this form to your supervisor at the
time you leave the plant.
Plant Superintendent Allen testified credibly, and I find,
that the absence request form was used frequently. Copies
were available at various locations in the plant, including
with supervisors who kept supplies in their desks, the secre-
tary who sat outside of Allen's office, and Allen himself.
2. Diehl's discussion with Allen on July 25
On July 25, 1974, Diehl met with Allen in his office to
discuss the need for absence request forms for employees
attending a scheduled union meeting . Diehl objected to the
use of the forms as unnecessary, telling Allen that the
Company was treating the employees like children. Allen
explained the need for the forms and, with Diehl, exam-
ined the written policy posted on the bulletin board near
the timeclock . He offered to provide Diehl with a copy of
the written policy as well as the Company's letter of July 5,
1972. A few days later on July 31 he handed Diehl copies
of both.
3. Diehl's meeting with Hays on July 30
In spite of Allen's explanation of the absence request
form policy on July 25, Diehl sought and obtained a meet-
ing on July 30 with General Manager Terry Hays, the high-
est management official at the plant. As in his meeting with
Allen, Diehl objected to the absence request form policy as
not right and unnecessary. Hays explained management's
need for the policy. In support of his objections, Diehl
mentioned the fact that he personally had an ailing wife
and might have to go home on short notice. Hays, accord-
ing to his own testimony, stated that in case of a sudden
emergency employees were allowed to leave without taking
time to fill out an absence request form and that the super-
visor would take care of it. At the hearing Hays testified
that in his meeting with Diehl he was talking of an extreme
emergency, but he did not testify that he used such words.
E. The Events of July 31
1. The meeting between Diehl and Allen
On July 31, 1974, Diehl reported to the plant shortly
before the shift change at 3:45 p.m. About 3:45 he went to
Allen's office to confer-with him regarding the grievance he
was processing over inadequate lighting in the parking lots.
Allen recalls that, when he first came in, Allen handed him,
as he had promised on July 25, a copy of the Company's
written policy together with a copy of the letter to employ-
ees of July 5, 1972, dealing with the absence request form.
In testifying about this meeting, Diehl did not relate that
he received these documents, but on the other hand he did
not deny receiving them. I credit Allen's recollection and
find that this was the occasion on which he delivered those
items to Diehl.
According to Allen, they then proceeded to discuss the
parking lot lighting grievance. This was resolved by Allen
advising Diehl that the Company was going to light the
parking lot and by Diehl advising Allen that he would hold
the grievance in abeyance until the lights were put in.
After discussing the parking lot lights, Allen, according
to Diehl, said, "I have something for you." He then handed
Diehl a letter of reprimand warning Diehl that his produc-
HYDRA-TOOL COMPANY 1117
tivity would have to improve or he would be taken out of
service, that is, discharged.
Diehl testified, and I find, that he had a headache at the
time . The record indicates his wife had been seriously ill
and he was under considerable strain at home. Diehl also
testified, and I find, that the temperature was very hot that
day. Diehl informed Allen of his headache. Allen testified
that he believed Diehl probably did have a headache.
According to Diehl, he then told Allen he did not know
whether he would be able to stay at work the entire shift.
His testimony suggests that he left open the possibility that
he would remain at work. Allen's testimony is at odds with
this. He testified categorically that Diehl said, "I have a
headache, and I want to go home." On this conflict I find
that Diehl did not rule out the possibility that he would
work that shift. During the meeting with Allen he was in
his street clothes. Substantial evidence in the record, in-
cluding the testimony of his fellow crew members, estab-
lishes that Diehl changed into working clothes after his
meeting with Allen and got out his tools preparatory to
going to work. In view of that evidence I think it unlikely
that he stated flatly to Allen that he was going home.
Allen and Diehl are in agreement that, when Diehl indi-
cated during their meeting that he had a headache and
might go home, Allen took from his desk an absence re-
quest form and told Diehl to sign it and Allen would check
him out. According to Diehl, he then demurred, saying he
was not ready to leave because he was going to try to work
through the shift. In his testimony Allen also indicated that
Diehl did not sign the absence request form. His version of
Diehl's comment differs in that, according to Allen, Diehl
said he did not have-to fill out the form because he had
discussed the subject the prior evening with Hays, who had
told him that when a man's health was involved it was
unnecessary to fill out the form. According to Allen he
replied, "You know this is not the type of situation Terry
[Hays] was referring to." " I credit Allen's version of this part
of the conversation. Diehl and Hays in fact had a confer-
ence the prior day dealing with that subject and Hays had
in fact made a remark similar to what Allen testified Diehl
reported to him. Moreover, Diehl did not specifically deny
making the remarks which Allen attributed to him. Al-
though Allen was not at the July 30 meeting between Diehl
and Hays, he interpreted in his testimony what Hays
meant . He testified that Hays was referring to serious
emergencies as being the type of situation where an em-
ployee would not have to fill out the absence request form.
For obvious reasons I do not adopt Allen's characteriza-
tion of Hays' words. At the time of the Allen-Diehl meet-
ing on July 31, Allen did not believe that Diehl had a seri-
ous emergency.
At the end of their meeting, according to Allen, Diehl
said he was going to see Hays, to which Allen replied,
"Fine but if you leave the plant, you must fill out an ab-
sence request." I find that this part of Allen's account is
correct.' Diehl did not specifically deny it. In view of his
session the prior day with Hays, it is likely that he would
have mentioned taking the matter up again with Hays. It is
also likely that Allen would have repeated his direction to
fill out the absence request form if Diehl should leave the
plant. Diehl's testimony makes it clear that he understood
that he was obligated to fill out the form and that he in-
tended to do so if he left the plant.
At the hearing, Allen admitted that, when Diehl referred
to his prior discussion with Hays, Allen interpreted that
reference to mean that Diehl was not going to fill out the
absence request form when he left the plant. In the circum-
stances, that interpretation was unwarranted. All Diehl was
doing in his discussion with Allen was referring to, and
reporting on, a prior conference he had had with higher
management. The context of his remark to Allen, even as
reported by Allen, was not what he would do, but rather
what the rule as interpreted by Hays required him to do.
Finally, Allen's own closing remark to Diehl did not as-
sume that Diehl was going to leave the plant. It allowed for
the possibility that he would.
The meeting between Allen and Diehl ended about 4:10
p.m., having lasted approximately 25 minutes.
2. Diehl's presence in the plant-the question of time
During his meeting with Allen, Diehl had been in street
clothes. Both he and Allen agreed that he left Allen about
4:10 p.m. He testified he "went down to go to work." Be-
fore starting work he had to put on work clothes and get
his tools. He also got aspirin from the toolroom for his
headache. These preliminaries necessarily consumed some
time, although the record-does not indicate how much. I
find it was sometime subsequent to 4:10 p.m. that Diehl
appeared at his machine for the purpose of working.
Diehl's testimony that he reported for work at his machine
is corroborated by both his fellow crewmembers, Terry
Marney and Sidney Cork.
Marney credibly testified, and I find, he first saw Diehl
that day outside the plant prior to the shift change at 3:45
p.m. He asked Diehl how he was doing. Diehl replied that
he had to meet with Allen about the lights in the parking
lot. Shortly thereafter Allen and Diehl in fact did meet to
discuss that subject.
Marney next saw Diehl in their work area in the south
bay of the plant shortly after other members of the shift
had started to work. Marney gave no specific time for this,
but it must have been after 4:10 p.m. because he asked
Diehl how his meeting with Allen had gone and Diehl re-
plied all right, that he had had a headache in Allen's office,
and that Allen had asked him to fill out an absence slip to
go home. Diehl recounted to Marney that he had told Al-
len he did not know if he could make it or not but he would
hold off on signing the absence slip. At the time Marney
was talking with Diehl, Diehl had on his working clothes
consisting of coveralls, a hard hat, and glasses. Some 15 or
20 minutes later, around 4:30 or 4:35, Diehl again men-
tioned to Marney that he had a headache and was going to
the toolroom for aspirin.
Cork also placed Diehl at his machine on July 31, the
last day Diehl worked. Cork's testimony indicates that he
saw Diehl leaning up against the workbench with hands
folded up to his face. Cork inquired what was wrong.
When Diehl replied he had a severe headache, Cork sug-
gested that he take aspirin. Diehl said he already had. Cork
suggested he take more aspirin.
Diehl did not continuously remain at his machine. Re-
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specting the period of time subsequent to 4:30 or 4:35,
Marney testified that Diehl was coming and going. He told
Marney he was developing chest pains. Marney told him at
his age z he hadn't ought - to mess with it, he better go to
hospital and get it checked. It was sometime after that,
according to Marney, that Diehl told him he was going
home, that he had tried, without success, to find Allen, and
that he had talked to their supervisor, Lewis Foster, for
permission to go home.
Diehl testified also that he had looked for Allen but did
not find him. The testimony of Marney and Diehl re-
specting this is corroborated by that of Mike Johnson, a
planer operator who worked in the center bay. He too saw
Diehl dressed in his work clothes and heard him say he had
a headache. He later saw Diehl around 5 p.m. at a water
fountain. Diehl came up to him saying he was looking for
Allen. Johnson told him he thought Allen had already left
because it was about 5 o'clock and Allen usually left at that
time. Johnson placed the time by looking at the clock in
the center bay.
Diehl testified it was after 5 p.m. that he went to Allen's
office and nobody was there. According to him, his pur-
pose in going to the office was to ask Allen for an absence
request form to sign before leaving for the hospital. He
testified that that was his whole purpose in going to the
office. However, he never found Allen and instead sought
out Foster. After talking with Foster he left.
Respondent contends that Diehl spent little or no time at
his work station before he left without signing the required
absence request form. -I find the weight of the evidence
shows otherwise.
Respondent offered the testimony of Foster, a leadman
who was acting as temporary supervisor of the night shift,
to the effect that Diehl came to see him in the neighbor-
hood of 4 o'clock or 4:05 telling him that he had a head-
ache and wanted to go home. But Foster is clearly in error
about the time. Both Allen and Diehl placed Diehl in
Allen's office until approximately 4:10. Foster testified he
did not again see Diehl that night although when he super-
vises he constantly circulates about the plant. He testified
that when he made his regular rounds at 4:15 he did not
see Diehl at his machine nor did he see him when he again
made his rounds at 4:45 p.m. Diehl, of course could have
been away from his machine when Foster made his rounds.
I do not consider Foster's testimony entirely reliable be-
cause he was in error about the time when he spoke with
Diehl and he could have been in error about the other
times about which he testified.
Allen testified that he was in the plant until after 5
o'clock and that he did not see Diehl subsequent to the
time he left his office at 4:10. His secretary, Pam Lincoln,
who sits outside Allen's office, testified she did not see
Diehl between the time he left his meeting with Allen and
the time she left a few minutes before 5 p.m.
Allen expected that when Diehl left his office at 4:10 he
was going to Hays' office to discuss the absence request
form rule. Allen testified that he waited a few minutes after
Diehl left him and then himself went to Hays' office to find
2 Diehl was then approximately 54 years of age.
out whether Diehl in fact had gone to Hays. He learned he
had not. Allen testified he saw Hays at 4:15 or 4:20. Hays
placed Allen's visit to him as within 15 minutes after 4.
According to him, Allen asked him if he had had a talk
with Diehl on July 30 on the subject of the absence request
forms. Hays confirmed that he had, and told Allen about
that meeting. After speaking with Hays, Allen went into
the plant to see Foster to learn if Diehl was still there.
Foster informed him that Diehl had spoken with him and
Foster had marked out his timecard.
The timecard is of little help in resolving the time issues.
When Diehl punched in the time was recorded but was
later obliterated by Foster. When Allen then talked with
Foster he further altered the timecard by writing a ficti-
tious in-time of 3:45 and an out-time of 4:10, the period
that Diehl was with him. Nothing on the timecard indicates
the time at which Diehl or Allen spoke with Foster.
Allen placed his talk with Foster variously at 4:20, 4:25,
and 4:30. After speaking to Foster he did not check further
with Marney or Cork or Johnson or anyone else to learn
whether Diehl in fact had left. Instead, he returned to Hays
and told him that Diehl had left. Hays places that time
about 4:30.
Allen apparently expected Diehl to leave the plant short-
ly after their meeting. He was uncertain of the exact time
he spoke to Foster. Foster on his part was not a reliable
witness respecting time. Hays seemed clear that Allen re-
ported back to him about 4:30, but he gave no reference
point as to why he recalled that particular time. The testi-
mony of Lincoln is not conclusive inasmuch as she indi-
cated she left the office a little before 5 o'clock while Diehl
indicated he searched for Allen a little after 5. All in all the
weight of the evidence supports the main theme of Diehl's
testimony to the effect that, following his meeting with Al-
len, he prepared for work and reported to his work station.
Thereafter he remained in the plant for a substantial period
of time, until approximately 5 o'clock. During that span of
time he was variously in his work area along with Marney
and Cork, in the toolroom, looking for Allen, talking with
Johnson, talking with Foster, and, finally, -probably chang-
ing out of his work clothes before leaving.
3. Diehl talks with Foster
Diehl testified that he looked for Allen in his office for
the purpose of signing an absence request form. He did
not find Allen or anyone else in the office. He then sought
out his immediate supervisor, Foster. Both Foster and
Diehl agree that he indicated he was not feeling well and
wanted to leave. I so find. Diehl testified that he told Fos-
ter he had a terrific headache, was sick to his stomach, was
getting pretty bad chest pains, and-thought he should go to
the hospital and see a doctor. Foster testified that Diehl
said he had a headache, and wanted to go home. He denied
that Diehl said anything about nausea, or chest pains, or a
hospital, or a doctor. On the other hand Allen at one point
testified that Foster reported to him that Diehl had men-
tioned going to a hospital. Later, Allen changed his testi-
mony on this point. I find that Diehl indicated to Foster
that he was not feeling well and that he wanted to leave
and go to a hospital. I deem it immaterial whether he
HYDRA-TOOL COMPANY 1119
spelled out in detail to Foster the nature of his ailment.
According to Foster, he told Diehl to punch out but
Diehl indicated that Foster should simply mark out his
card because he had not done any work. Foster then went
to the timeclock and marked his timecard. He thought
Diehl had been on the job about 15 minutes. Diehl did not
recall any discussion regarding his checking out on the
timeclock, but on the other hand-he did not deny that such
occurred. He did, however, deny telling Foster that he had
not worked. I do not credit his denial. Allen corroborates
Foster in that he testified- that Foster told him that he had
lined out the entry on Diehl's timecard because Diehl had
notdone any work. I credit this portion of Foster's testimo-
ny because Diehl was in fact ill at the time, Foster did cross
out his punch-in time on -his timecard, and did tell Allen
about it later. '
Both Diehl's and Foster's testimony agree that no men-
tion was made between them of an absence request form.
Foster, according to what he told Allen, thought that, since
he had marked out the punch-in time on Diehl's timecard,
there was no need to use an-absence request form. Diehl
assumed Foster knew what he was doing.
An argument can be made that if Diehl said he had not
done any work it should be inferred that he did not and
that the evidence that. he spent a substantial period at his
work station or in any work status is effectively controvert-
ed. The problem I have with this argument is that Foster
testified Diehl said he had not done any work. The import
of this is that he had not performed effectively. Such inter-
pretation is consistent with Diehl's presence at his work
station while experiencing illness. Allen took the position
that Diehl -was -entitled to be paid only for the time he
spent conferring with Allen in his office. He marked the
timecard accordingly.
There is no dispute that Foster gave Diehl permission to
leave, and that Diehl did not leave until he obtained that
permission. There is dispute over- when that occurred but,
as I have already found, Foster and Allen were.in error as
to the time when Diehl obtained permission and left the
plant.
4. The extent of Diehl's illness
This case results in part from different understandings as
to how sick Diehl was. Respondent's position at the time
appears to have been that possibly Diehl was not feeling
too well because he had a headache, but that he deliber-
ately used his mild ailment as an excuse to thwart the ab-
sence request form rule. Diehl's testimony indicates that he
felt quite sick and that he thought he was quite sick. Clear-
ly he had a severe headache as established by his own testi-
mony, and that of Allen, Foster, Marney, Johnson, and
Cork. He also mentioned chest pains to Marney, and Mar-
ney advised him to go to a hospital for a checkup. Diehl
also testified he was sick to his stomach. Considering that
he had a severe headache, had taken aspirin more than
once,-was under pressure on the homefront because of his
wife's illness, and had just received a written reprimand for
low production on the job, his description of his symptoms
is believable.
When he left the plant, he did so with the avowed inten-
tion of checking into a hospital and -seeking professional
medical advice. That is what he did. He drove to the hospi-
tal in Holton where his family physician is located. When
he arrived at the hospital, he asked for his family physician,
Dr. James Seeley. He was admitted to the hospital. A nurse
on duty took his blood pressure, administered medication,
and put him to bed.
Diehl remained in the hospital that night. The next
morning, August 1, the hospital ran tests on him, he was
examined by Dr. Seeley, and after the test results were in
he was released. His physician instructed him to go home.
The following day Dr. Seeley gave him awritten notice to
be handed to his employer that he should remain off work
until August 5. He advised the Company by telephone of
his doctor's instructions.
Respondent looks to the fact that the medics found no
serious ailment as support for the argument that Diehl was
not seriously ill and went to the hospital only to build a
defense after the fact to a charge of gross insubordination.
But I find that the weight of the evidence shows that Diehl
felt quite ill on July 31, thought he was quite ill, and had
reason for concern about his health. The observations of,
and his conversation with, his fellow employees Marney,
Johnson, and also Cork, together with Diehl's own testimo-
ny, show that he had reason to be concerned. His age and
the fact that he went to a hospital and stayed the night
support that conclusion. That it turned out his ailment was
not serious is fortunate but does not establish there was no
reason for concern.
F. The Discharge
On Thursday, August 1, Allen, after considering the
events of the day before, decided to terminate Diehl. He
discussed it with Hays, who agreed with him. Allen then
prepared the following dismissal memorandum:
TO: John Diehl DATE: August 1, 1974
FROM: Bob Allen
In accordance with company management policy of
written- notification of disciplinary action you are
hereby given the following notice.
Your employment with HTC Mfg. Co. is hereby ter-
minated, -effective immediately.
The reason for termination is gross insubordination,
Item #3, under offenses which may be cause for im-
mediate discharge in the company policy.
Your willful and direct disobedience of a lawful order
to you by the plant manager on the evening of July 31
is the offense listed above. You were directed to fill
out an absence request form in accordance with com-
pany policy before leaving the plant, but refused to do
so and left the plant without filling out said absence
request.
/s/ Robert G. Allen
Allen testified,- and I find, that at the time the decision
was made to discharge Diehl insubordination was the only
ground; poor production had nothing to do with the deci-
sion. Both Allen and Hays testified that Diehl's activity on
behalf of the Union had no bearing on his discharge.
The next day, Friday, August 2, Diehl obtained from his
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
family physician, Dr. James Seeley, a prescription form on
which Dr. Seeley wrote instructions that Diehl could return
to work on August 5. That `day Diehl came to the plant
office and handed the doctor's slip to Allen. Simulta-
neously Allen handed him the memorandum discharging
him.
G. The Greivance Over Diehl's Discharge
On the same day Allen fired him, Diehl, in the company
of Union Steward Fred Conklin, requested Hays to review
the discharge. On August 6 Hays wrote Diehl the follow-
ing:
As you requested in our discussion of August 2, I have
reviewed the facts surrounding your firing and believe
them to be justified.
We have two matters of concern, either of which are
cause for termination.
First, there is the matter of your insubordination in
refusing a direct order by your plant manager` on the
evening of July 31.
Secondly, there is- the matter of your productivity. On
two occasions you have been notified of poor produc-
tivity. On both occasions you have chosen to make a
series of excuses to justify your lack of productivity,
when in fact, the other employees in your same cate-
gory, and on your same shift, who are subject to the
same conditions, are performing satisfactorily.
When Diehl received Hays' letter confirming his dis-
charge and enlarging the grounds to include low productiv-
ity as well as insubordination, he prepared a written griev-
ance which he submitted with a covering letter on August 8
pursuant to a provision in the collective-bargaining agree-
ment 3 Conklin on behalf of Diehl presented the grievance
to Hays on August 27, 1974. Hays, in a letter to Conklin on
September 9, 1974, denied the grievance. Hays' letter as-
serts as true certain facts adverse to Diehl's grievance, in-
cluding the following: the fact that on July 31 Diehl did
not work after his meeting with Allen and subsequently
said so to Foster, which led Foster to mark out his check-
in time on his timecard; and also that Diehl so stated in
the presence of Conklin at the time the grievance was pre-
sented. Hays' letter also states as a fact that, after Diehl left
the plant Allen, Hays and Foster were still in the plant and
met to -discuss the matter.
In testifying, Conklin was unable to recall the specific
facts covered by Hays' letter. But he-indicated that he re-
ceived the letter when matters were fresher in his mind and
had the statements not been accurate he would have pro-
tested them. In this posture the statements in Hays' letter
are some evidence of the truth of those matters. Neverthe-
less, I give virtually no weight to them. In the first place,
Conklin's statement that he would have protested inaccu-
rate statements in Hays' letter is self-serving in view of the
record indicating he was inactive in presenting grievances
as compared with Diehl who was quite active. Conklin was
in the embarrassing position of having his effectiveness
3 The collective-bargaining agreement is not in evidence
questioned. Further, Respondent had ample opportunity-at
the hearing to present the best evidence as to what oc-
curred on July 31. It is that evidence which is most persua-
sive and the weight of that evidence indicates that Diehl
was at his work station for a substantial period of time
after meeting with Allen. In my view statements by him
that he did not work should be interpreted as admissions
only that he was not effective in accomplishing. work.
Conklin testified that the Union processed Diehl's griev-
ance further after the denial by Hays. The record, however,
does not reveal to what extent the grievance was pressed
nor whether it is still pending. In addition, this record does
not establish on what basis grievances are finally resolved.
H. Respondent's Statement of Position Subsequent to the
Filing of the Charge
During investigation of the present charges, the Regional
Office solicited from Respondent a statement of its posi-
tion. On August 28, 1974, Respondent's attorney replied
with a statement of position which the parties stipulate in-
cluded the following statement, "Mr. Diehl was terminated
because of insubordination and lack of satisfactory pro-
ductivity."
1. Conclusions Respecting the Reason for the Discharge of
Diehl
As already found, Diehl, following his meeting with Al-
len, spent a significant amount of time in the plant, wheth-
er or not he accomplished anything. Also, as already
found, he was not feeling well. Prior to leaving he sought,
but did not locate, Allen and so sought out Foster who
approved his departure. Foster did not require him to use
the absence request form; Diehl did not volunteer to use it;
nothing was said about it.
The discharge of a relatively new union steward, who
brought to his union functions an energy previously un-
known in the shop, and who was slated to be president of
the new Topeka local, when considered in the light of the
statements of Respondent's supervisors indicating animosi-
ty toward what he was doing, warrants an inference that
the discharge was motivated by a desire to be rid of this
troublesome grievance giver who would headup the new,
and possibly hyperactive, local union. Hyster Company, 195
NLRB 84, 91 (1972).
It is true that Diehl's departure on the last day he
worked was contrary to the instructions of Allen at the end
of their meeting namely, to fill out an absence request form
if he left the plant. Allen had offered him the forms to sign
and he had not done so at that point, opting instead to try
to work out the shift.
Later, however, Diehl made an unsuccessful effort to go
back to Allen, the official who had offered him the form.
Diehl's testimony that he made that effort may be open to
question in view of his illness which arguably could have
fogged his perception and recollection. But his testimony
does not stand alone. It is corroborated by that of Johnson
and Marney to the effect that Diehl made contemporane-
ous statements indicating he was looking for and had
looked for Allen. This evidence warrants the finding that
Diehl did look for Allen.
HYDRA-TOOL COMPANY
Diehl's search for, and lack of success in finding, Allen is
consistent with his next step in seeking out Foster to obtain
his approval to leave. After obtaining Foster's approval, he
had the okay of someone in management. Moreover, that
was the latest word from- anyone in management. To call
this insubordination requires a finding that Diehl engaged
in a deliberate scheme, using Foster as an innocent dupe,
to thwart the will of the plant superintendent. Such a find-
mg is not warranted, considering his illness, and also con-
sidering that Hays, an authority even higher than Allen,
had earlier indicated that use of the absence request form
was not essential in all circumstances.
A point must be made here, I think, that Respondent
may not avoid responsibility for the totality of what its
managers did. Thus, although Allen had given Diehl an
instruction regarding the absence request form, he did not
purport to revoke what Hays had said the day before. Fos-
ter did something altogether different from Allen. There is
no question but that he had authority to do what he did. As
an underling, Diehl could reasonably rely on the propriety
of conduct approved by his immediate supervisor. It is dif-
ficult to see how Respondent can penalize Diehl for what
Foster did in his supervisory capacity. Yet that is what
resulted when Diehl and not Foster was discharged.
Considering these circumstances, together with the evi-
dence of antipathy toward Diehl's activities, insubordina-
tion as a cause for discharge appears unconvincing and
suspect. I find that Respondent has not shown it had cause
on that ground.
Diehl's alleged low productivity as a ground for dis-
charge is also not convincing because at the time the deci-
sion was made to fire him it admittedly did not figure in
the picture. In any case, Allen on July 31 did not consider
low productivity sufficient ground for discharge, but only
as a basis for the written reprimand. As a basis for dis-
charge it was asserted as an afterthought. This switching
after the fact from a single ground to a dual ground sug-
gests a reluctance by Respondent to rely on insubordina-
tion as a proper cause.
Diehl worked on a crew with Marney and Cork. Neither
of these other crew members received a reprimand on July
31 for low productivity. According to Allen, their produc-
tivity was satisfactory, although he had verbally repri-
manded Marney as well as Diehl on February 6, 1974.
Cork received no reprimand.
According to Allen, his judgment respecting Diehl's pro-
ductivity was based on his own observation and the obser-
vation of supervisors of the night shift. He testified that
Diehl was not working, that he was roaming throughout
the plant talking with other people, and management felt
his productivity was not up to par. Allen's personal obser-
vation was limited in that he worked days rather than
nights and was not always present during the night shift.
None of the other supervisors who were supposed to have
observed Diehl testified on that subject. Although the crew
worked as a team in finishing a machine, neither of the
other two participants in the joint team effort to finish a
machine were apparently affected because they were not
spoken to. Allen could offer no hard data to support his
assessment that only Diehl's productivity was poor.
1121
Finally, the timing is suspicious in view of (a) the evi-
dence of management's attitude toward Diehl's grievance
activities, (b) the handing of the written reprimand to him
during a meeting over a grievance with the remark, "I have
something for you," and (c) Allen's assertion that Diehl's
fault was his roaming around talking with the people.
Based on all of these circumstances, I find that low produc-
tivity was not the reason Diehl was discharged.
When he became shop steward Diehl was not thereby
relieved of the normal requirements of discipline and pro-
ductivity applicable to other employees. But on the other
hand Respondent may not use the circumstances of his
stewardship to impose discrimination upon him. I find that
is what happened in this case. Considering that Foster al-
lowed Diehl to leave, firing him for failure to fill out a form
as directed by Allen was such an inordinate punishment
"as to lead to the conclusion that-... [his] ... protected
activity was at least the principal reason for . . . sever-
ance." Pate Manufacturing Company, supra at 800. As was
found in that case, I find here that the assigned reasons
were a pretext. See also Airco Temescal, A Division of Air
Reduction Company, Incorporated, 176 NLRB 789, 794
(1969); and Marmon Transmotive, 219 NLRB No. 12
(1975).
Grievance activity is one of the rights protected by Sec-
tion 7 of the Act. To discharge an employee for such activi-
ty, particularly in his capacity as steward, is a discrimina-
tion which necessarily has a chilling effect on union
activity and is an unfair labor practice proscribed by Sec-
tion 8(a)(3) and (1) of the Act. Hyster Company, supra. I
find the discharge of Diehl was such a violation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, 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. They are unfair labor practices within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is,engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 582 and Local 520 are each labor organizations
within the meaning of Section 2(5) of the Act.
3. By dischargmg employee John Diehl, on August 2,
1974, and thereafter not reinstating him, Respondent dis-
criminated with respect to his hire or tenure of employ-
ment and the terms and conditions of his employment,
thereby discouraging membership in labor organizations.
In so doing Respondent committed, and is committing, un-
fair labor practices within the meaning- of Section 8(a)(3)
and (1) of the Act.
4. The unfair labor practices found above affect com-
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the poli-
cies of the Act. I recommend that Respondent be ordered
to offer John Diehl immediate and full reinstatement to his
former position or, if that' position is not available, to a
substantially equivalent position, without prejudice to his
seniority or other benefits and privileges, and that he be
made whole for any loss of earnings suffered by reason of
the discrimination against him by paying him a Sum of
money equal to that which he would 'have earned from
August 2, 1974, the date of his discharge, to the date Re-
spondent offers him reinstatement, less his net earnings
during such period, to be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at 6 percent calculated according to the
formula set forth in Isis Plumbing &,Heating Co., 138
NLRB 716 (1962). I further recommend that Respondent
be required to preserve and make available to Board
agents, upon request, all pertinent records and data neces-
sary in analyzing and determining whatever backpay may
be due. I further recommend that Respondent post appro-
priate notices at its premises.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in' this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER4
Respondent, Hydra-Tool Company, Topeka, Kansas, its
officers, agents, successors, and assigns, shall:
1. Cease and, desist from:
(a) Discharging or otherwise discriminating against em-
ployees for presenting grievances or engaging in other
union or protected activity. '
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the right
to self-organization, to form labor organizations, to join or
assist Shopmen's Local 582 or Shopmen's Local 520, both
affiliated with the International Association of Bridge,
Structural Steel and Ornamental Ironworkers, AFI -CIO,
or any other labor organization, to bargain collectively
through representatives of their own choosing and to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or all such
activities, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
in Section 8(a)(3) of the Act as modified by the Labor
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to John Diehl immediate ` and full reinstate-
ment to his former job or, if such job no longer exists, to a
substantially equivalent one, without prejudice to his se-
niority or other rights and privileges, and make him whole
for any loss of earnings in the manner set forth in the
section herein entitled "The Remedy."
(b) Preserve and make available to the Board or- its
agents, upon request, all records necessary to analyze the
amount of backpay due under the terms hereof.
(c) Post at its premises in Topeka, Kansas, copies of the
attached notice marked "Appendix." 5 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
5In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY-ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization,
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection including the presentation
of grievances for themselves and fellow employees
To refrain from any or all these things.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these
rights.
HYDRA-TOOL COMPANY 1123
WE WILL NOT discharge or otherwise discriminate WE WILL give John Diehl his old job back with back-
against employees because they engage in union or pay.
other protected activity, including the presentation of
grievances . HYDRA-TOOL COMPANY