International Harvester Co.

National Labor Relations Board - Board Decisions

Mar 19, 1973

202 N.L.R.B. 466 (N.L.R.B. 1973)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Harvester Company and International
Brotherhood of Firemen & Oilers, AFL-CIO,
Local 1205. Case 10-CA-9530
March 19, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 16, 1972, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions' and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order of the recom-
mended Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Harvester Company, Albany, Georgia, its officers,
agents, successors, and assigns, shall take the action
act forth in the Administrative Law Judge's recom-
mended Order.
DECISION
JENNIE M. SARIUCA , Administrative Law Judge: Upon
due notice , this proceeding under Section 10(b) of the
National Labor Relations Act, as amended (29 U.S .C. 151,
et seq.), hereinafter referred to as the "Act ," was tried
before me at Albany, Georgia , on June 27 , 1972, pursuant
to a charge filed April 12, 1972, a complaint issued May 25,
1972, presenting allegations that the Respondent , Interna-
tional Harvester Company , committed unfair labor prac-
tices within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the Act, and Respondent 's answer denying
those allegations . Present and participating in the hearing
were representatives of the Respondent and the General
Counsel . The Charging Party did not enter an appearance.
Based on the entire record , including my observation of
witnesses and the after due consideration of briefs, I make
the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Respondent, a Delaware corporation, at its Albany,
Georgia, location is engaged in both retail and nonretail
sales and servicing of farm and industrial equipment.
During the year preceding issuance of the complaint, a
representative period, Respondent caused to be shipped to
this facility, from sources located outside the State of
Georgia, products valued in excess of $50,000. Respondent
admits, and I conclude , that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent pleads no knowledge as to the status of the
Charging Party as a labor organization.' The president of
Local 1205, International Brotherhood of Firemen &
Oilers, AFL-CIO, testified as to the nature, purpose, and
function of the Charging Party, hereinafter referred to as
the Union. I conclude that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
' We do not pass upon the General Counsel's contention that
Respondent also violated Sec. 8(aX3) of the Act since such an additional
finding would not affect the remedy.
2 The Resppndent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to,
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Waif
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing her findings.
We also note and correct the following minor errors which in no way
affect the results in this case . The Administrative Law Judge in that section
of her Decision entitled "Interrogation and Threats" inadvertently referred
to mid-December, rather than January, as the time when the employees
began expressing an interest in union representation and in that section of
her Decision entitled "Discharge of Sims" inadvertently omitted any
reference to the Respondent 's statement to Sims when he was rehired that
he would have to control his temper.
A. The Issues
It is alleged in the complaint that Respondent violated
Section 8 (a)(1) of the Act when its supervisor , Aubrey
Jones , interrogated its employees concerning their union
membership , activities , and desires ; threatened that Re-
spondent would close its store if employees were successful
in their organizing campaign ; and threatened employees
with discharge if they joined a union or engaged in union
activities . It is further alleged that Respondent discrimina-
' Respondent also denied that the Charging Party "acts or claims to act"
as representative of the employees here involved. To the extent it is intended
as a challenge to the validity of the charges, the denial is rejected as without
merit.
202 NLRB No. 67
INTERNATIONAL HARVESTER CO. 467
torily discharged, and failed and refused to reinstate,
employee Clarence Sims in violation of Section 8(a)(3) and
(1) of the Act.
Respondent asserts that Sims' discharge was for cause
rather than for his union views or activity, and that no
other violation occurred because, even if the alleged
statements were made by Jones, he is not a supervisor
within the meaning of the Act, nor was he acting as a "real
or ostensible `agent' on behalf of the Company in making
such statements."
B. The Supervisory Status of Aubrey Jones
McKay L. Pettus, Jr., manager of Respondent's Albany,
Georgia, facility, testified that Aubrey Jones is classified as
the leadman mechanic at this location. In describing Jones'
day-to-day functions, Pettus stated:
He assigns work, supervises people, make sure that
the work is performed and all the various things .. .
that are peculiar to a leadman mechanic or service
foreman except [certain managerial functions of the
latter ].2
The method of hiring for this facility was described by
Pettus as follows: "We" decide that additional help is
needed; a newspaper ad directs applicants to contract
Jones; Jones takes the application, conducts the employ-
ment interview relating to qualifications and experience,
and then takes the application, and sometimes the
applicant, to the manager's office where, after review,
.. . a decision is made. . . . This is how we hire a
man. So . . . as I see it I actually hire the man after the
leg-work is done by Mr. Jones... .
I make the final decision, both that we do put him on
and the salary he is to receive when he is put on the
payroll.
Jones testified that when he "hired someone . . . it never
even dawned on me that I was asking . . . permission."
Jones could not recall an instance wherein Pettus did not
follow his recommendation.
With respect to employee discharges Pettus testified that
in the period since May 18, 1971, when he came to the
Albany, Georgia, facility, there have been three such
instances. One employee, Jimmy Bonham, was discharged
"in my office . . . Mr. Jones told him that we no longer
needed his services. .. ." Pettus indicated that the reason
this employee came to his office was to verify the
discharge .3 The second discharge was by Jones in the
absence of Pettus; it involved a truckdriver caught
drinking on the job. Discharge was immediate, but the
employee waited for the manager's return to his office
seeking permission to go home, recover, and return to
work. This request was denied. The third discharge is the
2 Reviewing the official job descriptions for store service supervisor
(service foreman), designated as a salaried position , and leadman mechanic,
described as hourly rated , Pettus testified that there was a substantial
overlap in the duties assigned these two occupational classifications. He
explained that the service foreman position has never been filled and that,
while Jones does not actually hold this classification , he performs all the
duties outlined in the job description except those relating to collection of
moneys, reviewing operating costs, new business promotion, and keeping
subject of the instant proceeding. In this respect, Pettus
stated that, on Thursday preceding the discharge, Jones
reported "another temper outburst" by Sims, and Pettus
asked Jones:
what he thought we should do. . . . On Friday
morning Jones reported that Sims' condition was
unchanged and that he didn't see any recourse except
to let the man go. I told Aubrey (Jones) that if that is
what we need to do, did he want me to do it now. He
said, "No, let him finish the job he is on and we'll do it
this evening. . . . I asked Aubrey if he wanted me to
tell him. He said "No, I will tell him." So he did... .
Jones testified he had mentioned Sims' agitated disposi-
tion to Pettus on Thursday, but no decision was made and
that Friday around midmorning, when Sims' temper
problem continued, Jones again brought this to the
attention of Mr. Pettus:
... and told him we needed to do something about
it. Then he asked me-well, I think something was
brought up, I don't know if it was he or I that brought
up the subject of discharge. I think it was myself. I
think it was, and he asked me when, and I told him to
let him finish working out the day. . . . At the time of
the discharge of Mr. Sims, I called him into the shop
office.... I told him that if he wouldn't give us a
resignation that he was fired, that he didn't have a job
anymore. He said he would not accept this, that he
would talk with Mickey [Pettus]. . . . Monday morn-
ing and see what he had say about it. And I said, "Well,
okay. 11
Phillip E. Ricks, an employee in the Albany, Georgia,
shop of Respondent during the period relevant herein,
testified that while he was so employed Jones was known
to him as the service manager and his supervisor. It was his
observation that Jones assigned work and hired and fired
people. He had seen Jones and Jimmy Bonham late on a
Friday through the plate glass construction of the office
talking alone for 15 to 20 minutes, whereupon Bonham
came directly to him and said, "Aubrey just fired me."
That Jones has not been assigned the job title of store
service supervisor (service foreman) officially is of no
consequence in determining his supervisory status under
the Act .4 That determination must rest on the function
actually performed and the authority actually possessed by
Jones. Although Manager Pettus claimed for himself the
"final decision" in the hire of new applicants, it is clear
from his testimony and that of Jones' that this final
decision rests heavily upon the evaluation and recommen-
dation of Jones. The extent to which Pettus relies on Jones'
judgment and recommendation in matters affecting shop
employment tenure is further demonstrated in Pettus'
testimony concerning the various discharges. Admittedly,
Pettus even deferred to Jones' judgment on who should
informed on management policies.
3 Pettus later indicated that this employee was discharged because his
production was below standard two-thirds of the time. Pettus and Jones had
discussed the record of individual employees each month, and they had
done so that morning at which time he observed "we are going to have to let
Jimmy go."
4 Nor is it controlling that Sims did not perform the particular
managerial functions identified in the official job description.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carry out the discharge agreed on and when this should be
effectuated.
On the basis of the foregoing , I find that Jones not only
responsibly directs the work of the shop mechanics, but
also posesses and exercises authority to hire and fire
employees or, at the very least, to effectively recommend
such action . Accordingly , I conclude that Aubrey Jones is
a supervisor within the meaning of Section 2(11) of the
Act.
C. Interrogation and Threats
Expressions of interest in union representation by
employees at the Albany, Georgia, facility occurred in
mid-December 1971, after the Respondent instituted a new
insurance plan and held a meeting with employees to
explain the coverage. At that meeting, several employees
raised questions concerning the comparative benefits of the
old and new plans and one employee, Clarence Sims, also
raised the question of the low pay of shop employees which
elicited irritated responses from Mr. Pettus who rejected
such discussion as out of order. Following this event the six
mechanics who worked in and out of the shop began
exchanging views concerning the merits of and need for
union representation. Former employee Ricks credibly
testified that because employees were dissatisfied with their
pay scale, as well as with their changed insurance benefits,
such discussions took place on a frequency of about every
other day.
Aubrey Jones had a glass-enclosed air-conditioned office
in the shop. Mechanics frequently congregated there at
lunchtime to eat, relax, and converse. From time to time,
discussions involved organizing and obtaining representa-
tion. On one such occasion, around the first week of
January 1972, with Jones and four mechanics present, the
discussion involved the "pros and cons of union and
insurance." Credible testimony of Ricks and Sims estab-
lishes that Sims asserted that had there been a union in the
shop the employees' "insurance would not have been
cancelled and a lesser plan substituted," and that if the
employees "were going to get any better insurance [they]
would have to have a union organize the whole shop." In
response to this, Jones commented "if we wanted a union
that was us-he wouldn't vote for it . . . that Mr. Pettus
had told him that if a union ever came there the . . .
Company would just close the doors."
On the day following the above noontime discussion,
Sims had occasion to go to the office to review a job ticket
with Jones. When the business at hand was completed,
Jones said:
Sims . . . you have been talking too much about the
union around the men in the shop. Mickey [Pettus] has
already got on to me about you talking with them. He
said he is going to have to let you go. I've already
talked to him and got him to change his mind... .
Sims, I am going to warn you now . . . not to talk
about [the union], just slack off and not say anything
about it.
Sims promised he would do this.
During the last week of January 1972, Ricks rode with
Jones to a bank during their lunch hour. On the way, Jones
asked him how he felt about a union. Ricks replied he
believed it would be good if the employees could get
organized. Jones told Ricks that if he was in favor of a
union not to let Pettus know because Pettus knew Sims was
in favor of a union and had wanted to get rid of Sims then,
but that he (Jones) had talked Pettus out of this.
Jones testified he "thought" he had expressed to Sims his
personal dislike of unions but denied he stated or even
knew the Respondent's policy regarding unions. Jones
admitted hearing Sims say that, if they had a union,
employees would have better insurance benefits and higher
salaries and it would be a better store. But he denied ever
telling Sims or any employee that if they joined a union or
engaged in union activities they would be discharged. He
also denied saying to anyone that Mr. Pettus knew of their
union activities and to be on guard. Rather, he asserted
that Mr. Pettus never talked to him about the Union.
Jones gave testimony revealing a far from perfect
recollection of past events. Indeed, during cross-examina-
tion concerning the contents of his pretrial affidavit, he
pointed out that his memory is faulty and that he could not
remember something he had just read. On the other hand,
Ricks, who is no longer employed by Respondent and who
has no personal interest in the outcome of this case,
impressed me as a forthright and credible witness.
Although Sims could benefit in this case, his candid recital
of details and his overall narrative of events impressed me
as truthful. Moreover, his testimony is corroborated by or
consistent with that of Ricks. In these circumstances, I
credit Sims and Ricks over Jones and conclude that
Respondent violated Section 8(a)(1) of the Act: (1) when
Jones related to employees Pettus' threat to close the doors
if a union came in; (2) when Jones told Sims to "slack off"
his union advocacy because Pettus was displeased and
warned Sims that Pettus wanted to fire him for engaging in
such activity; (3) when Jones interrogated Ricks concern-
ing his union views; and (4) when Jones told Ricks to
maintain secrecy if he favored a union or he would
endanger his job in view of Pettus' reaction to Sims' union
interest and advocacy.
D. The Discharge of Sims
As indicated above, Respondent sells, services, and
repairs farm and industrial equipment. The service and
repair shop employs six mechanics under the supervision of
Jones. These mechanics perform repairs of both types of
equipment in the shop and on location, and unload and
service new equipment.
Clarence Sims was employed by Respondent as a
mechanic from May 25, 1970, until his discharge. Sims was
a very good mechanic, a good worker, and a dependable
employee. He was also a very nervous person given to
quick reactions to irritating situations that were frequently
expressed in colorful language and dramatic action. There
is no question but that this took the form of exhibiting a
temper, cursing equipment, occasionally giving it a kick
and, on more than one occasion, quitting his job. Indeed,
the latter had occurred once while he was employed by
Respondent. In June 1971, Sims quit in anger but "cooled
off" in a day or two and was permitted to resume his job;
the processing of his "quit papers" was stopped, and he
was told he would have to control his temper. Thereafter,
INTERNATIONAL HARVESTER CO.
both his supervisor and the manager assisted him in his
effort to overcome his extreme reactions by making
comments such as "let's take it easy" or "let's control it,"
and by suggesting he take a cigarette break away from the
equipment, then come back and try again. Except for the
time he quit, when delayed sick leave pay-a departure
from previous procedure-upset him, all agree that Sims'
irritation related generally to difficulties encountered on
the job in getting equipment apart or back together and in
not having available appropriate parts and tools needed to
perform his tasks. Sims always refrained from directing his
expressions of aggravation toward any individual while he
worked with Respondent. It also appears that in late 1971
or early 1972 Sims sought medical help and was put on
tranquilizer medication, a fact which was known to his
supervisor. Ricks testified that from that time Sims had
shown a clearly observable improvement in temperament.
Following the mid-December 1971 insurance meeting,
Sims was particularly vocal in his criticism of the new
employee insurance policy and the mechanics' wage scale,
and in advancing arguments for his belief that only union
representation would cure these ills.5 Since many of the
discussions among employees about seeking union repre-
sentation took place in Jones' office while Jones was
present and in which on at least one occasion he
participated, it is clear that Jones was aware of Sims'
advocacy of employee representation and concerted
activity from the beginning, albeit no specific union was
then involved.6 I find that this knowledge is attributable to
Respondent.7
At the end of the workday on Friday, March 17, 1972,
Jones called Sims into his office and sought to obtain the
latter's resignation. When this was refused, Sims was
discharged .8 The versions of the discharge interviews given
by Jones and Pettus do not differ significantly from that
given by Sims, who testified that on Friday, March 17,
Jones told him he was being discharged because the men in
the shop were complaining that he was getting on their
nerves by his "griping all the time" about having no tools
5 Sims testified that around the last of February or first of March 1972,
he contacted a representative of the Charging Party inquiring whether the
Union "would take [the shop employees] as they had a majority but were a
small group" and was told he would be advised in about 2 weeks. Ricks and
Sims met Union Representative Webb on Friday evening , March 17, 1972,
signed cards, then took cards to the homes of other employees and obtained
signatures . However, these were the wrong cards, so signatures were
obtained on the correct cards on Sunday. No organizing or card solicitation
on behalf of any patlicular union occurred prior to the evening of March 17,
and no demand for recognition or claim of majority was presented to
Respondent up to the date of the hearing.
6 Jones denied knowledge of any formal organizing drive for any
particular union . Jones testified that "[t ]he only activities by unions that I
knew had been brought up in the manner of speaking,'If we had a union, it
would be a better store to work in and you would have higher salaries and
there would be better benefits ,' and that was the only, but this was brought
up at different times."
I Around the first week of March 1972, Sims, who had just received
some medical service, stated to other employees that if the Respondent had
not canceled the employees ' "good insurance" it would have paid for his
Xrays. Pettus, who was standing about 15 feet away, commented , "Unions
were all right when we had slave labor , but we don't have that anymore."
This incident strongly suggests that Pettus had knowledge of Sims' interest
in union representation for the shop employees and knew that the changed
insurance plan was a key discontent associated with such concerted interest
and activity.
6 Sims was not permitted to work after March 17, 1972. The termination
469
or parts, and that on Monday, March 20, Pettus told him
"we terminated you Sunday night-Midnight" because
"you have been aggravating men in the shop . . . by
complaints."
The reason for discharge stated on the official records of
Respondent was "insubordination." Respondent admits,
however, that no insubordination was involved explaining
that none of the specific reasons listed on the official coded
form adequately described the real reason and that
although the form provided for "other" with space in
which to specify the true reason, insubordination was used
simply as a convenient checkmark.
Manager Pettus testified that Sims was discharged "upon
personal observations and the `say-so' of Mr. Aubrey
Jones" because of Sims' "attitude and actions"-more
specifically, his "violent temper and inability to get along
with other employees." Jones testified he suggested
discharge at midmorning Friday because Sims had
engaged in temper displays on Thursday afternoon and
Friday morning. Both agreed that crucial in Sims'
discharge was an alleged request by employee England not
to be assigned to work with Sims anymore because of his
cursing and temper. Jones also listed as part of the
discharge reason other incidents involving displays of
temper in the presence of customers,9 and other "public
outbursts" in which Sims expressed views that displeased
Jones. An instance of the latter was Sims' conduct at the
December insurance meeting when Sims brought up to
management officials the subject of mechanics wages.lo
In its brief, Respondent gives the discharge reason as
"continuous and uncontrolled displays of temper, disrupt-
ing the shop, and impaired customer relations."
With respect to the events immediately preceding the
discharge, Jones testified that late Thursday afternoon,
Sims and England were outside the shop dismanteling for
replacement a particular piece of equipment, and that Sims
who was using a forklift in this operation, was abusing the
equipment and using foul language which caused Jones to
bring this to the attention of Mr. Pettus, but that
date is variously listed as March 17, 19, and 20. As union majority status is
not in issue , acceptance of the March 17 date is adequate for this proceeding
without resolving conflicting contentions as to the actual date of discharge.
9 Examples of conduct before customers included an instance in June
1971 before Sims quit in which Sims told a customer he had no experience
in repairing the particular equipment and did not know what was wrong
with it or why he was assigned to perform that repair job. As Sims was
subsequently restored to his job on Jones' recommendation, little signifi-
cance can be assigned to this incident . The other example given by Jones
involved an asserted customer telephone complaint received by Mr. Pettus.
Jones had no direct knowledge or memory of details involved in this
complaint and Mr. Pettus gave no testimony concerning this or any other
similar complaint . This, too, is rejected as unworthy of weight in
determining the reason for the discharge.
IU Jones testified he "was astounded , the tone of voice and the way it was
put, and I was completely ashamed because as far as I was concerned this
man had worked under me, and these other men from Atlanta was down,
and it embarrassed me .... Well, he asked when we would get an increase
in salary. Well, I don't know if he said 'we.' I will assume he was talking
about the mechanics in general were going to get an increase in salary ....
Well, his outburst when somebody else had a called meeting is what I was
embarrassed at .... [T ]he following morning after we had the meeting, I
asked him not to show such an outburst of temper because it was uncalled
for at the time." The men from Atlanta were officials of Respondent sent to
explain the new insurance plan to employees, and were further identified as
officials in attendance at the hearing herein.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was no decision made on a Thursday whatsoever,
and . . . around the middle of [Friday] morning .. .
Sims still had the same problem with his temper; so, I
brought it to the attention again of Mr. Pettus and told
him we needed to do something about it . . . . Oh, yes;
on a Thursday afternoon, Mr. England came in and
said that he would prefer not to work with Mr. Sims.
... So, I brought this to . .. Mr. Pettus' attention.
Later Jones testified that he was in his office handling
telephone matters that Thursday afternoon when England
came in and told him Sims was out there cursing and asked
that he not be assigned to work with Sims any more
because of such conduct. However, Jones indicated he did
not hear the cursing because his door was closed and he
was on the telephone. Pettus, on the other hand, testified
that in the Thursday conversation he asked Jones what he
wanted to do and Jones replied, "Well, I will talk with him
again ." Pettus did not list abuse of equipment as having
been mentioned to him and Jones admitted he said nothing
to Sims about abuse of equipment.
Contradicting Jones is the testimony of both Ricks and
Sims that they, together with England and another
employee, were engaged in unloading a boxcar of tractors
at the railroad siding several miles distant all day on the
Thursday and well into the afternoon on the Friday of
Sims' discharge, and that neither Jones nor Pettus was at
the docks with them. Both indicate that nothing unusual
occurred and that Sims did not exhibit any particular
display of temper. Although England could not specifically
remember what work he had performed on the days
preceding Sims' discharge, he did not corroborate Jones'
testimony on this matter, recalling only that on one
occasion he had participated in welding the type of
equipment identified by Jones but that this was performed
inside the shop. On the other hand, England categorically
denied that he ever registered a complaint about Sims or
requested that he be spared from assignments to work with
Sims. Indeed, England indicated that, although Sims was
more prone to such reactions, expressions of agitation
through the curse word vocabulary was not uncommon in
the shop and that this did not bother him.11
England impressed me as a truthful witness. In contrast,
Jones, as previously noted, had memory difficulties, and
also 'contradicted himself and was contradicted by other
witnesses including Mr. Pettus. I credit England over Jones
and find that England did not register a complaint.
Respondent 'presented no other evidence purporting to
establish that Sims had difficulty getting along with fellow
employees or that his cursing and temper outbursts were
affecting the work of others. Further, I credit Sims and
Ricks over Jones and find that nothing unusual occurred
on the 2 days preceding Sims' discharge.
The evidence discloses that Respondent had knowledge
11 England is still employed and gave testimony under subpena after
refusing Sims' urging that he give the General Counsel a statement. The
record does not support Respondent's suggestion that England was
terrorized by Sims into giving testimony helpful to Sims.
12 However, the insurance meeting events may indeed contain the key to
the reason for Sims' discharge . It is clear that Sims was presuming to speak
to management on behalf of his fellow employees concerning their wages as
well as their insurance benefits . Employees were displeased with the
changed insurance plan announced at that meeting and this set the tone for
of Sims' nervous manifestations and extreme reactions to
job irritations from the time he was employed, and, in fact,
had reinstated him after one of his more extreme
displays-the June 1971 quit. It not only tolerated this
problem but also made special allowance for it, encourag-
ing ad hoc cigarette breaks away from his work station, and
reassigning work even to the extent that the supervisor
himself performed the particular job about which Sims
registered his complaints to the customer. Jones was
performing this job when Sims quit, yet he recommended
Sims' reinstatement . Such circumstances negate the asser-
tion that temper displays, either as an impairment of
customer relations or as a disruptive force in the shop, were
the cause of Sims' discharge.
The so-called public outburst by Sims at the mid-
December insurance meeting with management hardly
qualifies for the label assigned , as this was a meeting
between company officials and employees. Aside from his
departure from the subject matter designated for the
meeting, no irregular conduct on the part of Sims is
described. Moreover, it must be assumed that the verbal
admonishment administered to Sims the following morn-
ing was deemed adequate reprimand and that the matter
was then closed. I conclude that the incident itself did not
enter into the reason for Sims' discharge.12
Having found that there was no employee complaint or
temper display during the 2 days preceding the discharge
asserted by Respondent as the reason for Sims' discharge,
and that the various other incidents advanced as additional
and supportive considerations in that decision were either
insignificant or were matters on which previous action had
been taken, I conclude that the reasons advanced by
Respondent for discharge are pretextual. As found above,
both Jones and Pettus had knowledge that Sims was in the
forefront of the concerted activity and the chief advocate
for seeking union representation to secure better wages,
insurance benefits, etc. Such activity frequently takes the
form of "bitching and griping," as Pettus labeled Sims'
actions, but, in the context of advocacy for union
representation, does not lose its protection because it may
be unpleasant.
On the basis of the entire record, I conclude that it was
Sims' persistence as the foremost unionization advocate,
.despite threats and warnings, that caused Respondent to
discharge him. Accordingly, I find that Respondent
discharged Clarence Sims in violation of Section 8(a)(1) of
the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section II,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
further concerted activity among the employees, some of which admittedly
took place in the presence of Jones . Sims' vociferous expressions on this
subject were beginning to affect other employees to the extent that a
majority of the shop employees were ready to sign union authorization
cards for representation. In this respect , I need not determine whether
Respondent knew Sims had made inquiry of the Union herein and was
about to take formal organizational steps, for such a finding would not
affect the remedy required.
INTERNATIONAL HARVESTER CO.
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
IV. REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. A broad
cease-and-desist order is warranted , in view of the unlawful
discharge and other violations.13
It has been found that Respondent unlawfully dis-
charged Clarence Sims on March 17, 1972. It will therefore
be recommended that Respondent offer him immediate
and full reinstatement to his former position or, if such
position no longer exists, to a substantially equivalent
position , without prejudice to any seniority or other rights
and privileges he previously enjoyed, and make him whole
for any loss of pay suffered as a result of its discrimination
against him , by payment to him of a sum of money equal
to that which he normally would have earned , absent the
unlawful discharge with backpay and interest computed
under the established standards of the Board . 14 It will be
further recommended that the Respondent preserve and,
upon request, make available to the Board all payroll
records , social security payment records , timecards, per-
sonnel records and reports , and all other records necessary
and useful to determine the amount of backpay and the
right of reinstatement under the terms of this recommend-
ed Order.
Upon the foregoing findings of fact, and upon the entire
record to the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating Clarence Sims for engaging in
concerted activity for the employees mutual aid and
protection, by interrogating employees, threatening to
close the plant, and threatening discharge, and by other
acts and conduct interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
13 N.L.R.B. v. Express Publishing Company, 312 U.S. 426; N.LR.B. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).
14 F. W. Woolworth Company, 90 NLRB 269; Isis Plumbing & Heating
Co., 138 NLRB 716.
is In 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
471
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:15
ORDER
Respondent, International Harvester Company, its
officers , agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sympathies or activities to discourage their concert-
ed activities.
(b) Threatening employees with reprisal for concerted
activity for their mutual benefit or activity on behalf of any
labor organization.
(c) Terminating or effecting other reprisals against
employees because they have engaged in concerted
activities for their mutual aid or protection or on behalf of
any labor organization, or in any other manner discrimi-
nating in regard to hire or tenure of employment or any
term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement in conformity with
Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Clarence Sims immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings, in the manner set
forth in "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in "The Remedy."
(c) Post at its Albany, Georgia, plant and facilities,
copies of the attached notice marked "Appendix." 16
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
its findings , conclusions and Order , and all objections thereto shall be
deemed waived for all purposes.
16 In 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."