Murray Ohio Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 19, 1965

155 N.L.R.B. 239 (N.L.R.B. 1965)

MURRAY OHIO MANUFACTURING COMPANY 239
Murray Ohio Manufacturing Company and International Union,
United Automobile , Aerospace and Agricultural Implement
Workers of America, AFL-CIO. Case No. 26-CA-1844. Octo-
ber 19, 1965
DECISION AND ORDER
On June 4, 1965, Trial Examiner Thomas N. Kessel issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in unfair labor practices as alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision 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 powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, only to the extent consistent herewith.
The Trial Examiner found that the questioning of employee Belew
by Foremen Hammett and Best was not violative of Section 8 (a) (1) of
the Act. He also found that, although certain inquiries made of
employee Townsend by Foremen Ray and Bass would ordinarily be
violative of Section 8 (a) (1), such conduct did not constitute a violation
because of Townsend's open and defiant attitude about his unionism.
Foremen Hammett and Best admittedly questioned Belew about his
reasons for supporting the Union. In this connection the record shows,
as the Trial Examiner found, that Respondent's supervisors were dis-
pleased with the fact that Belew had come out for the Union, and
Hammett and Best sought to encourage him to change his mind.
Foremen Ray and Bass admittedly asked Townsend how many union
cards he had obtained from other employees and when the next union
meeting was to be held. As found by the Trial Examiner, Respondent
was not pleased with Townsend's open and vigorous support for the
Union and Bass urged him on several occasions to abandon that support
and declare his penitence to management.
1 The General Counsel limited his exceptions to the Trial Examiner's dismissal of cer-
tain 8 ( a) (1) allegations discussed hereafter. In the absence of additional exceptions,
we adopt pro forma the Trial Examiner 's dismissal of the 8(a) (3) allegations.
155 NLRB No. 28.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plainly, no justification appears for Respondent's interrogation of
Belew by Hammett and Best. And, contrary to the Trial Examiner,
it matters not that Townsend was openhanded and defiant about his
unionism, for the test of interference, restraint, and coercion does not
turn on the success of the conduct directed against an employee. It is
a violation of the Act if the questioning takes place under circum-
stances which impart to it a tendency to interfere with the free exer-
cise of rights under the Act. Considering the circumstances of this
case, we believe that the questioning of Belew and Townsend violated
Section 8(a) (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices affecting commerce, we shall order that it cease and desist
therefrom and take certain affirmative action in order to effectuate the
purposes of the Act.
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the entire rec-
ord in this case, we hereby delete the Trial Examiner's conclusion of
law No. 3, and adopt the following conclusions of law :
3. By interrogating employee Belew concerning his reasons for
supporting the Union, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a) (1) of the Act.
4. By interrogating employee Townsend concerning the number of
signed union cards he had obtained, and the date of a forthcoming
union meeting, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
6. Respondent has not engaged in any other unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act as alleged
in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Murray Ohio Manufacturing Company, Lawrenceburg,
Tennessee, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their reasons for joining
or supporting any labor organization.
(b) Interrogating its employees concerning the number of signed
union cards obtained, or the date or dates of forthcoming union
meetings.
MURRAY OHIO MANUFACTURING COMPANY 241
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Lawrenceburg, Tennessee, copies of the
attached notice marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for Region 26, shall, after being
duly signed by the Company's representative, be posted by the Com-
pany immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges violations of the Act not found
herein.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order".
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT interrogate our employees concerning their reasons
for joining or supporting any labor organization.
WE WILL NOT interrogate our employees as to the number of
signed union cards they have obtained.
WE WILL NOT interrogate our employees concerning the date
or dates of forthcoming union meetings.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in their right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization.
MURRAY OFIIO MANUFACTURING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 746 Federal Office Building, 167 North Main Street, Memphis,
Tennessee, Telephone No. 534-3161, if they have any questions concern-
ing this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed June 15, a first amended charge filed July 6, and a second
amended charge filed July 23, 1964, by International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO, herein
called the Union, against Murray Ohio Manufacturing Company, herein called the
Respondent, the General Counsel of the National Labor Relations Board, herein
called the Board, by the Regional Director for Region 26, issued a complaint dated
October 1, 1964, alleging that the Respondent had engaged in conduct violative of
the National Labor Relations Act, as amended, herein called the Act. On October 9,
1964, the Acting Regional Director for Region 26 issued an amended complaint
alleging further violations of the Act by the Respondent. The Respondent's answer
to the complaint as amended denied the allegations of unlawful conduct alleged
therein.
Pursuant to notice, a hearing was held before Trial Examiner Thomas N. Kessel at
Lawrenceburg, Tennessee, on November 16, 17, and 18, 1964. All parties were
represented by counsel who were afforded full opportunity to be heard, to examine
and cross examine witnesses, and to present evidence. The General Counsel's brief
submitted after the close of the hearing has been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The complaint alleges that the Respondent is an Ohio corporation with a place of
business in Lawrenceburg, Tennessee, where it manufactures velocipedes, bicycles,
and wheel toys, and that in the year preceding issuance of the complaint the Respond-
ent sold and shipped from its plant products valued in excess of $50,000 directly
to points outside the State of Tennessee . The Respondent 's answer admits all these
allegations except that it is incorporated under the laws of the State of Ohio. From
the admitted facts, I find that the Respondent is an employer engaged in commerce
within the meaning of the Act and that the purposes of the Act will be effectuated
by the Board's assertion of jurisdiction over its operations in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership the Respondent's
employees.
III. THE UNFAIR LABOR PRACTICES
A. Alleged Section 8(a) (1) misconduct involving employee Harry A. Belew
Employee Belew has been employed by the Respondent since 1957 and works
under Foreman Charles Hammett in a stockroom . On August 17, 1964, he put on
his union button and wore it at work . On the same date the Union sent a letter to
MURRAY OHIO MANUFACTURING COMPANY 243
the Respondent listing a group of employees , including Belew, who had volunteered
to serve on the Union 's organizing committee . Before then Belew had not revealed
his union sentiments to the Respondent 's supervisors or engaged in any union activity
in their presence.
Belew testified that on August 17 at 1:30 p.m, Foreman Hammett spoke to him
privately and asked why he was wearing the union button . Belew replied he was
seeking protection ; that he had a job today but might not have one tomorrow
Hammett assertedly responded , "You ain't got one now for sure." Belew called
for an explanation , but Hammett would not answer his question . He said merely,
"You just made it hard for yourself."
Belew related that the same day, at 1:45 p.m., he asked Hammett what he had
meant by his remark that he did not have a job. Hammett denied that he had said
this and had been misunderstood by Belew. The latter insisted that this was what
Hammett had said, but continued to receive denials. Hammett then inquired, "Have
you ever stopped and thought about your family?" Belew asked what this meant
and Hammett added, "Well, how are they going to get food to eat and how are they
going to live?" Belew told Hammett not to worry about his family . In turn Hammett
said , "Well, you made your bed hard." Again Belew told Hammett not to worry
about that and the discussion ended.
Still on August 17, at 2:15 p .m, according to Belew, William Stapleton , superin-
tendent of the stockroom and receiving department , asked him , "Have you stopped
and thought about your family9" Belew asked what he meant and Stapleton replied,
"Well, you don 't know it, but I'm going to fix it where you can 't get a job nowhere
else." Belew told him, too, not to worry about his family.
On August 18 Foreman Jerry Best invited Belew to come to the stockroom over
which he had charge . There, according to Belew, Best , in the presence of employee
Bryson Keeter, asked why he had suddenly started wearing a union button , and why
he had changed his position and gone over to the Union . Belew revealed he had
been for the Union a long time but had kept his views to himself . Best still wanted
to know why he had come out for the Union and Belew explained he had been
mistreated and wanted job protection . Best agreed he had been mistreated and said
he didn't blame him for supporting the Union.
Upon returning to his stockroom after the conversation with Foreman Best, Belew
was met by Hammett who asked where he had been . When Belew revealed he had
been speaking to Foreman Best he was ordered by Hammett to stay in his own stock-
room and to go there immediately . Belew went first to the drinking fountain and
upon his return was asked by Hammett whether he was willing to remove his union
button. Belew refused , thereupon Hammett said , "Well, okay, if that's the way you
want, but you are going to make it hard on yourself."
On August 19 Belew passed out union handbills to employees at a plant gate before
his 7 a m. starting time. Belew testified that at 12 30 p.m. that day he asked Ham-
mett why he had told other employees he was "contagious" and instructed them to
stay away from him and to let him alone . Hammett replied he had said these things
to prevent trouble. Belew asked what he meant by "trouble," and was told that
regardless of what happened , whether in the plant or at the clock line, "if anything
happened" he would be "the first one to go." Belew insisted there would be no
trouble if employees Tom Boyd and Bryson Keeter would let him alone. He com-
plained that they were urging him to "sign them up on working hours" and were
jerking his union cards from his pocket . Hammett said he would not intervene
because Belew had turned against him.
Belew further testified that on August 24, Hammett , in the presence of employees
Boyd, Keeter, Potts , Fisher, and Frazier, asked him how many signed union author-
ization cards he had obtained over the weekend , and how many cards the Union
had obtained . Belew said he didn 't know, and suggested that Hammett go to the
Union 's meeting for this information.
Belew claimed that he was "mistreated" after he put on his union button by being
assigned jobs which he was unable to perform . His attention was directed to testimony
that he had wom the button to protest earlier mistreatment . He explained that the
mistreatment changed after he wore the button in that he ceased to receive help as
before in performing his duties . He claimed that previously he was permitted to
"loaf" when his work was caught up, but afterward he was kept busy with other
jobs. Other employees get away with more than he, said Belew. Now Hammett
insists that the stockroom be kept spotless . Previously he didn't have to put every-
thing away at the end of the day . Acknowledging that before wearing the union
button he had been given too many assignments , just as now, he explained the
difference as a continuation of past treatment "only more so " Referring specifically
to the harassment to which he was subjected after coming out for the Union, Belew
212-809-66-vol. 155-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related that on August 20, Superintendent Stapleton said to him in the presence of
Foreman Morgan that he liked to work "so well before working time he was going
to give [him] an extra job that morning." This apparently was a reference to Belew's
early morning handbilling for the Union on the preceding day. Stapleton then
allegedly directed Belew to haul certain cartons from a boxcar using a forklift.
Belew was unable to perform this job because the forklift could not raise the cartons
sufficiently high. Stapleton therefrom sent him back to the stockroom. Belew
claimed he had never before been assigned this duty. He related that in the after-
noon of the next day Stapleton sent instructions to him by employee Keeter to bring
a handtruck to his office. On his arrival Belew was told to take some "hot stuff" to
the toolroom. Stapleton asked whether he had cleaned the stockroom and was
informed there were still two loads of trash to be removed. He ordered Belew to
"clean it up regardless of what time you get through." Belew further testified that
on August 25 Hammett ordered him to sweep the stockroom in a particularly
meticulous way. He followed with a series of other orders described at length by
Belew. The implication, though by no means clear, is that Hammett was piling on
work. One of Belew's assignments that day was to obtain kickstands from tubs
stacked three high. When Belew explained to Hammett the difficulty confronting
him he was told to use the forklift and if he was still unable to carry out the assign-
ment "it would be his hard luck." Belew claimed this was not one of his regular
assignments.
Hammett conceded that he saw Belew wearing the union button on August 17.
He denied knowing his union sentiments before then. He admitted asking Belew
that day why he wore the button and was told he was not getting a fair share of
overtime. Hammett promised to check the time records and to give Belew an
answer. Belew then asserted the Respondent was making millions in profit and that
he wanted his share. Hammett disclaimed such knowledge and debated whether
Belew knew what he was talking about. Belew claimed he had no job protection.
Hammett said he had none either and that each man's job depended on the Respond-
ent's operations. Belew said he had no guaranty he would have his job the next
day. Hammett answered he, too, had no such guaranty. Belew asked whether he
would be called back after the Respondent's customary December plant layoff.
Hammett reminded him he had been called back each year before then, but did not
know what would happen in the future He added he did not know whether he,
himself, would be called back. He denied any remarks to the effect that Belew
had made things hard for himself by wearing a union button. Hammett testified
that soon after the foregoing conversation Belew returned and asked what he had
meant by his statement that he had no job guaranty. He answered as before and
added there was no guaranty of a job anywhere. Hammett also told Belew he had
misunderstood what he had said about keeping his job. He conceded at one point
in his testimony that he had told Belew that he didn't have a job "now for sure."
At a later point he testified that when Belew mentioned his lack of job guarantee he
said, "You don't even have one today for sure." He denied this remark was con-
nected with the fact that Belew was wearing a union button. He also denied that
in this or any previous conversation that he had told Belew to think about his wife
and children.
Hammett observed the next day that Belew had been absent from the stockroom
for about an hour. When he learned that he had been with Foreman Best he told
Belew to go to work. He claimed he said nothing else at the time. He denied that
he had then or at any other time requested Belew to take off his union button.
Regarding Belew's assertion that he had encouraged employees to ostracize him,
Hammett denied he had referred to Belew as "contagious." He testified that he had
been informed by employee Keeter that other employees had been "kidding" Belew
at the clock line about his union button and that Belew had been angered. There-
upon, Hammett told the other stockroom employees to let Belew alone and warned
that continuation of their kidding might lead to a fight which might cause someone's
discharge.
Hammett denied he had ever asked Belew either privately or in the presence of
other employees how many signed union cards either he or the Union had obtained,
and that Belew suggested that he go to a union meeting for such information. As
to Belew's insistence that his duties since wearing the union button were more
onerous than before, Hammett maintained that there is no difference and that
Belew's workload is no greater than that of other stockroom employees. He denied
telling Belew it would be his "hard luck" if he could not carry out a certain assign-
ment involving the transportation of kickstands with a fork lift.
Superintendent Stapleton admitted that he had observed Belew wearing the union
button when he put it on his uniform, but denied generally ever talking to him about
the Union and denied specifically the remarks attributed to him by Belew. Aside
MURRAY OHIO MANUFACTURING COMPANY 245
from his greeting to him on the day he first saw him with the button he hasn't since
spoken a word to him. From his observation Belew's duties have not been different
since wearing the button than before.
Employees Boyd, Keeter, Frazier, and Williams Staggs, all stockroom employees,
testified that Belew's duties have been unchanged since he started wearing the button.
They denied that Hammett had instructed them to ostracize Belew by calling him
"contagious." Hammett they said, had told them to avoid trouble which might
result from their teasing Belew about the button. They further denied hearing the
threats and interrogations ascribed by Belew to Stapleton and Hammett in their
presence.
Foreman Best acknowledged a conversation with Belew concerning his wearing of
the union button. He had been a car pool rider with Belew in 1962 and 1963 and
felt he knew him quite well. Accordingly, when he saw Belew's button he took it
upon his himself to inquire whether Belew had been mistreated, what was his prob-
lem, and what made him change his mind about the Union. Belew explained that
he had visited his northern relatives and had seen how well they fared in the
unionized plants where they worked. He felt he would gain financially if the
Respondent's plant were similarly unionized. Best denied conceding to Belew he
had been mistreated on his job and that he didn't blame him for supporting the
Union. He admitted pointing out that if the plant were unionized and there was a
strike Belew's family might have difficulty being fed. He noted he would be in
the same fix, but observed that the State's right-to-work law would allow those
employees against the Union to work while those in favor of it were on strike.
Determination of the issues posed by the foregoing recital depends entirely on
resolution of the conflicts between Belew and his contradictors. After careful and
cautious review of all the testimony and with regard to the demeanor of the wit-
nesses while testifying, I have decided Belew's testimony is too unreliable to predicate
findings of violations thereon.
Belew impressed me as a hypersensitive person obsessed with the notion that he
was, in effect, the scapegoat in the stockroom even before he revealed his union
sympathy and actively supported the Union. He appeared so intent upon vindicat-
ing his complaint of mistreatment that he overstated. This became apparent when
he sought first to establish that his mistreatment began with his open declaration of
support for the Union, but then, when reminded of his testimony that he had come
out for the Union because of past mistreatment, shifted by explaining the mistreat-
ment was both before and after but was accentuated following the wearing of the
button. I am not convinced he was harassed after August 17 by the imposition of
new and especially arduous duties although he may well have rationalized this was
so. Belew was hard pressed to recall specifically how his work after August 17
became harder than before. To an extent, as with the removal of trash, his work
after August 17 concededly was less arduous. As to the charge that Hammett and
Stapleton piled on arduous duties, some of which he could not perform, it is sig-
nificant that when Belew reported that he was unable to perform them there was
no insistence that he continue these duties or any criticism or reprimand for his
failure to carry out orders.
I have the firm impression that Belew was looking for opportunities to provide
basis for a charge of statutory misconduct against the Respondent, and that in the
process he misinterpreted things said to him and then refused to accept explanations
which should have satisfied him no threats or harassment were intended. Thus, in
the face of Hammett's repeated denial to him that he had said he no longer had a
job and that Belew had misconstrued his words, Belew insisted he had been threatened.
Assuming that Hammett had improvidently given Belew the impression that his
job was jeopardized because he had turned to the Union, Belew's unbending refusal
to accept his explanation that he had not meant to say this but had said something
entirely different indicates less concern with the removal of the threat from his
mind than with the opportunity for establishing Hammett's misconduct. This attitude
causes me too seriously to distrust Belew's motivation to permit his testimony to
serve as a basis for a finding that the Respondent had violated the Act.
It is clear that the Respondent's supervisors were displeased with the fact that
Belew had come out for the Union and that Hammett and Best sought to encourage
his change of mind. So long as they did not seek to accomplish this result by
coercive tactics, they were privileged to speak to Belew about his openly declared
union sentiments. I credit their testimony that they did not in their conversations
overstep the bounds of free speech. I also credit Stapleton's testimony concerning
his relations with Belew. Accordingly, I find that the General Counsel has not
sustained the allegations that the Respondent violated Section 8(a)(1) of the Act
by coercion of Belew and shall recommend that such allegations be dismissed.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged unlawful "incident reports"
The General Counsel contends that on June 3 and 4, 1964, certain of the
Respondent 's foremen observed a group of employees during their lunch period at a
restaurant in the company of the Union 's International representative and that in
reprisal for this association the Respondent issued to three of these employees written
reprimands called "incident reports." One of these three employees also received a
3 days' suspension which the General Counsel contends was in reprisal for the fore-
going union activity . The Respondent admits issuance of the incident reports and
the suspension but maintains it did so for valid reasons unrelated to the fact that
the employees in question had associated with the Union 's representative.
There is no need for involvement with the General Counsel's evidence from which
it may be inferred that the Respondent 's foremen had seen the employees with the
Union's representative at the restaurant , or with the denials by these foremen that
they had actually observed the employees together with the Union 's representative.
The General Counsel does not contend that the foremen had engaged in unlawful
surveillance . Furthermore , the issues raised by the General Counsel concerning the
incident reports and suspension are resolved in favor of the Respondent without
regard to whether the foreman had seen the employees under the claimed
circumstances.
Five or six employees , including James D. Shaffer, Harold Gray , and Paul H.
Odom, constituted the group which lunched at the restaurant in the evenings of
June 3 and 4, 1964 . On June 5 Shaffer received an incident report signed by General
Foreman Bob Walker who supervises the department where Shaffer is employed.
The report states that at 8:10 p.m. that day Shaffer had been seen by Foreman
Calvin Crews of department 93 running between the velo and fan assembly lines in
the plant at the beginning of the meal period and that Crews had reported this
conduct to Walker. The report further noted that Shaffer had violated the safety
rule against running in the plant. His explanation that he had merely been walking
fast was noted, but was apparently disbelieved as the report concluded with the
notation that he had been reprimanded for his conduct and the report was being
filed with his personnel records.
Shaffer testified that about 11.15 p.m. on June 5, 1964, Foreman Walker told him
he had received information that he had been running in the plant that night while
going to supper and that Shaffer would receive an incident report for this conduct.
It is established that all employees have been advised that the plant safety rules
forbid running and that they carry small cards containing these printed rules. Shaffer
denied he had been running and asked Walker to reveal his informant . Walker
replied merely that he was issuing the incident report. At 11:50 p.m., that same
night, Shaffer spoke again to Walker and asked for the name of his informant.
Walker told him he had already gone home but he would have this person on the
following Monday state to Shaffer 's face he had seen him running , Walker never
brought about this confrontation . Shaffer denied he had run as reported . He testi-
fied he had merely walked fast. He claimed he had run in the plant at other times
but had not been stopped or reprimanded . He recalled that about a week and
several days before June 9 he had run in the plant past Foreman Jaco and that
nothing had been said . He claimed that on June 29 he saw an employee , Roberts,
who was late returning to work from supper run directly in front of Foremen Walker
and Box. Other witnesses for the General Counsel claimed they, too, have seen
employees run in the plant with nothing said by supervisors who observed them.
Foreman Walker testified that he had been informed about Shaffer's running first
by Foreman Crews and then by Foreman Wray who related that Shaffer had almost
knocked him down while running. Upon receiving this information he had sum-
moned Shaffer and told him what he had learned. Shaffer asked for the name of
Walker's informant, but Walker refused to reveal the name. Walker denied that
Shaffer had then demanded a face-to-face confrontation . He testified that Shaffer
denied the charge and insisted he could produce five persons who would support him.
Walker expressed willingness to hear them. Later Shaffer told Walker these persons
did not want to become involved. Walker stated he had no alternative, but would
have to prepare the incident report. He denied knowing at the time that Shaffer was
active in the Union and that he had been seen with the Union's representative at the
restaurant. He further denied that he had ever seen Shaffer or another employee run
in the plant.
Foreman Crews testified that he had observed Shaffer running in the direction of
the plant cafeteria during the lunch period . Shaffer, he said, had tried to get beyond
other emnloyees who were congesting the aisle and alternately ran and walked. He
compared his movements to those of a "broken field runner " Crews claimed he
could not stop Shaffer because of the speed at which he was traveling and the noise
MURRAY OHIO MANUFACTURING COMPANY 247
in the area . He simply reported Shaffer's conduct to Foreman Walker and this ended
his connection with the incident . Crews denied that he had known at the time that
Shaffer had been at the restaurant with the Union 's representative.
Foreman Wray testified that he, too , had seen Shaffer running. The latter had
almost collided with him in the plant aisle . He claimed he did not stop Shaffer as
there was no time to do so. He thereupon reported the incident to Foreman Walker.
Wray denied that he had known of Shaffer 's meeting at the restaurant with the
Union 's representative.
The foremen and supervisors who, according to the General Counsel's witnesses,
had witnessed specific employees running in the plant but who had failed to stop or
discipline these employees denied that they had seen the alleged running. Superin-
tendent Stapleton conceded that during his tenure as superintendent he had never
disciplined an employee for running , but explained this was because he had never
witnessed such infraction of the plant safety rules.
In view of the specificity of the Respondent 's rule against running in the plant
and the fact that all employees have been apprised of the rule , I cannot find, as the
General Counsel would have me, that this is a rule which the Respondent 's super-
visors do not regard seriously . Nor can I make such finding on the basis of the
testimony by the General Counsel's witnesses that employees have not been disci-
plined for breach of the rule when their infractions were observed by supervisors,
for these supervisors denied that they had seen the running which assertedly occurred
in their presence . The General Counsel's witnesses may sincerely have reasoned
that the supervisors must have seen , and therefore did see, employees run in the
specific circumstances which they recall. However , there is always conjecture in a
claim of a witness as to what another person may have seen . In view of the positive
denial by the supervisors that they saw the running described by the General Coun-
sel's witnesses , and because these supervisors gave the appearance of credible wit-
nesses, I find, as they testified , that to their knowledge the rule against running is
uniformly obeyed in the plant and that they do not know of instances in which it
was breached . I do not, therefore , find any disparate application of the rule against
Shaffer. Nor do I find that the rule was pretextually invoked to punish him for his
union activities . I am satisfied from testimony by Foremen Crews and Wray that
Shaffer did run and that they had witnessed this conduct . I credit their denials, as
well as Foreman Walker's, that they had known of Shaffer 's restaurant meetings on
June 3 and 4, 1964, with Union Representative Wright before the night of June 5
when the running incident occurred . I consequently find the allegation that Shaffer
had received the incident report that night in reprisal for his association with Wright
not to have been sustained . I shall, accordingly, recommend the dismissal of the
allegation of the complaint alleging the issuance of the incident report to Shaffer
as violative of Section 8 (a) (1) of the Act.
On June 9, 1964 , employee Odom received an incident report signed by his
foreman, James A. Jaco, which states that his specific infraction consisted of cutting a
"wrong stencil causing delay in starting Fan Packing Line." The report warned
that "any other violation will result in disciplinary action." The General Counsel
does not dispute the charge that Odom had improperly cut a stencil which delayed
production , but maintains that it took only a minute or two for him to prepare a
new one. The General Counsel contends that the issuance of the report so soon
after Odom had been seen by Jaco at the restaurant in the company of the Union's
representative signifies that its purpose was to coerce Odom to compel him to cease
engaging in union activities . The Respondent, on the other hand, insists that the
report was issued because of the gravity of Odom's error and that it had nothing
to do with his union activities.
One of Odom's duties is to cut stencils used to imprint identifying symbols on
the Respondent 's products as they move along a production line. When the products
are packaged the symbols are also imprinted on the cases so that when they are
placed in the warehouse they can be identified as products manufactured for a par-
ticular customer . Odom had failed to include the special letter and number symbol
on the stencil denoting that the products were to be set aside in the warehouse for a
certain customer . Had his mistake not been detected before the products were
taken from the line and stored in the warehouse considerable time and trouble would
later have resulted in locating them at an expense estimated by General Foreman
Walker of several thousand dollars.
Odom testified that when he was told by Jaco he would receive an incident report
for his error Jaco advised him in the future, should he have to correct a stencil,
to go to the stencil room via the "back way" so that he would not be observed from
the superintendent 's office. This implies that Jaco was instructing Odom in the
avoidance of other reprimands for similar errors. From this the General Counsel
argues that Jaco had regarded Odom's error as too trivial to merit issuance of an
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident report. Odom claimed he had cut stencils improperly in the past I assume
he meant to add that he had not received incident reports as reprimands for these
mistakes. He could not recall when he had made these past mistakes Nor did
these improperly cut stencils result in the stopping of the line with the removal of
the products which have been incorrectly stenciled
Jaco testified that an inspector had informed him of Odom's stenciling error and
that he had directed Odom to cut a new stencil. Meanwhile the products on the
line had to be taken off and placed on the floor with the risk of damage to their
surfaces. Jaco related that he had told Odom he had made a serious mistake, that
Foreman Walker who had been at the line and had seen what had happened agreed
with him that an incident report should be issued, that Walker prepared the report,
and he, Jaco, signed it Jaco denied knowledge of Odom's union sympathies or
activities. He denied telling Odom to avoid going by the superintendent's office if
he had to correct other stencils Foreman Walker testified that he had seen the
products removed from the conveyor line to the floor and estimated that 10 to 12
minutes' conveyor time was lost because of Odom's mistake. When Jaco spoke to
him about issuing an incident report to impress upon Odom the seriousness of his
mistake he agreed this should be done.
I am convinced that Odom received his incident report because Jaco and Walker
felt that the seriousness of his mistake warranted this form of reprimand and not
because they desned to take advantage of Odom's error to discourage continuation
of his union activities. In the circumstances, I regard their reprimand as so reason-
able that I am persuaded it would have been given regardless of their knowledge
that Odom had been seen at the restaurant with the Union's representative. That
Jaco may have cautioned Odom in the future to avoid detection in going to the
stencil room to make corrections does not impress me that he regarded Odom's
mistake as trivial. On the contrary, it indicates his realization of the concern of his
superiors about stenciling errors. Knowing that Foreman Walker was cognizant of
the actual consequences of Odom's error and the potentially greater consequences
which were avoided by the inspector's detection of that error, Jaco could hardly have
overlooked Odom's dereliction even if he might in other circumstances have been
inclined to do so. As to Odom's past errors which might have been overlooked by
Jaco or some other foreman familiar with them, no significant inference may be
drawn therefrom in view of Odom's poor recollection of the circumstances and his
concession that these other mistakes had not involved the interference with produc-
tion caused by the stenciling error in issue. The General Counsel having failed to
sustain the allegation that the Respondent violated Section 8(a) (1) of the Act by
the incident report which it issued to employee Odom, I shall recommend its dismissal.
On June 9, 1964, employee Gray was sent home from work and on June 11 was
suspended for 3 days. He also received an incident report signed by his foreman,
Joe Stanford, which charged him with "not doing job properly and leaving line early
to go to lunch " The report recommended the foregoing suspension and warned
that Gray's failure to improve in his work and job interest would result in his dis-
charge. The General Counsel contends these actions were resorted to by the
Respondent to compel Gray to cease engaging in union activities following the
Respondent's discovery that he had been at the restaurant with the Union's repre-
sentative on June 3 and 4. The Respondent maintains it suspended and reprimanded
Gray solely for failing properly to perform his duties.
Gray's lob on June 9 was to check bicycle wheels to determine whether they were
"true." He testified that upon return from his supper period on June 9 he was
summoned to the office where Foreman Stanford in the presence of General Foreman
George Taylor accused him of letting an untrue wheel pass his inspection and further
accused him of leaving early to go to supper. He denied he had left early and main-
tained that the wheel in question was only slightly out of line. He was nevertheless
told to leave and to return to work on June 11. He came back to the plant on that
date and was informed by Personnel Director George that he had been sent home
because of his lack of interest in his job and that he was to receive a 3-day layoff.
Gray further testified that on June 9 he had been transferred from the tricycle
wheel job on which he had been working from mid-April to duties which he had
formerly performed on the bicycle wheel line. He denied being told when trans-
ferred the reason therefor. That night, following the transfer, his foreman. Stanford,
accused him of marking inspection cards on several bicycles showing he had insnected
them, whereas in fact he had not He was told he had done this so he could leave
his job early to go to supper. Gray acknowledged he had remarked to Stanford,
"I wouldn't start any trouble over this if I were you." At this point Stanford took
him to the office where he was sent home. Gray testified that he had not intended
his remark to Stanford to be a threat but that he had only meant to convev his
desire not "to get involved" and not "to get fired." He further acknowledged that
MURRAY OHIO MANUFACTURING COMPANY 249
Stanford that night had brought a bicycle to him which he had inspected and passed
and had shown him that the tire on a wheel had not been properly placed on the
rim. Gray also testified that he had seen untrue wheels brought back to other
employees who, he implied, had permitted them to pass inspection. Presumably
Gray meant by this testimony that they had not been disciplined for letting these
defective wheels pass inspection He believed this happened about four or five times
during the 6 months before June 9.
Stanford testified that Gray had started working under him in 1963. He described
him as an employee who required fairly close supervision and as a fair worker.
Following Gray's return to work in March 1964, after the customary winter layoff,
he was not, according to Stanford, "a very good" employee. His job required him
to stand while working, but Gray insisted on sitting while he performed his inspec-
tion duties. Stanford claimed the job could not be performed satisfactorily while
sitting On March 27 he noticed that Gray had passed two bicycles with loose
head nuts and then saw that he was spinning front wheels too fast to check for loose
spokes He also observed that Gray was sitting while working. He demanded that
Gray stand and do a better job. Gray promised to improve and explained that his
back was hurting. He had been absent from work for a few days before March 16,
1964, because of a claimed back ailment and upon his return had requested other
duties. Stanford had suggested that if he were to go to a doctor and bring back
a statement he would try to work out something. Gray did not, however, bring
him such a statement. When Gray complained on March 27 about his painful back
he again was told by Stanford to obtain a medical statement. On March 30 Stanford
observed loose spokes in a wheel which presumably had passed Gray's inspection.
Stanford found him once more sitting at work and still spinning wheels too fast. No
doctor's statement had yet been submitted. Again Gray was admonished. When
he repeated the complaint about his painful back and indicated resentment over
Stanford's criticisms, the latter spoke to Foreman George Taylor, his superior, who in
turn spoke to Gray and criticized his failure to follow orders and to work satis-
factorily. Thereupon, an incident report, dated March 30, 1964, signed by Stanford,
was issued to Gray charging him with sitting at work and neglecting duties despite
a previous warning. The report warned of disciplinary action if Gray's attitude did
not improve. An explanatory statement appended to the report described the
March 27 incident and Gray's poor job attitude.
Stanford related that after the foregoing incident Gray's attitude did improve.
Nevertheless, he failed to receive the 5-cent hourly wage increment which he would
ordinarily have received at that time but for Stanford's continued dissatisfaction with
his iob performance. Gray indicated his desire to transfer to another job. On
April 15 an opening developed on the velo line for which he applied. Stanford and
Taylor gave him permission to transfer but warned that if he did not improve he
would be sent back to the bicycle line. He was then transferred to the velo line
where he worked under Foreman Crews.
On Tune 9 Gray returned to the bicycle line where he again worked under Stan-
ford. The latter had been having trouble that night with front wheels which were out
of line. He accordingly instructed Gray to be particularly careful with his inspections.
An hour later he found a bicycle at his station with a ticket indicating that another
out-of-line front wheel had come through. He spoke to Gray about this and empha-
sized that he should be watchful. About 6 p in. this experience was repeated. Just
before the lunch period that night Stanford saw from his office that Gray was stamp-
ing tickets denoting inspections for bicycles which had not yet reached him on the
line. He left his office, presumably to speak to Gray, but before reaching Gray, the
latter had already departed for supper. When Gray returned Stanford pointed out to
him he had left work ahead of time to eat. He also told Gray that he had been
marking inspection tickets prematurely. Gray insisted that he had virtually com-
pleted his inspections before marking the tickets, but Stanford maintained he could
not have gone that far with his inspections as Stanford had observed when he left
work. Gray then acknowledged he may not have made the required inspections
and declared to Stanford. "I wouldn't cause no trouble over this if I was you."
Thereupon Stanford took Gray to Foreman Taylor who sent him home until June 11.
Before Gray's return on that date the decision was reached, presumably by Stanford
and Taylor, to impose a 3-day disciplinary suspension and to issue an incident report.
Stanford denied that Gray's union activities had any connection with these disciplinary
measures. He denied knowing at the time about Gray's June 3 and 4 meetings at
the restaurant with the Union's representative.
Foreman Calvin Crews testified that when Gray was assigned to him on the velo
line Foreman Taylor had instructed him to send Gray back to his former job on
the bicycle line if he did not work satisfactorily. At first Gray's work under him
improved to the extent that Crews, on May 25, recommended his 5-cent hourly
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increment. Within a few days his interest lagged, he let poor quality products pass
inspection, and Crews on several occasions personally brought these items back to
him with instruction to be more careful. Satisfied that Gray was not panning out
on the job, Crews spoke to Taylor who sent him back to the bicycle line on June 9.
Crews denied knowing about Gray's union activities.
The foregoing accounts by Stanford and Crews were corroborated by Foreman
Taylor. He testified that when Stanford brought Gray to his office on the night of
June 9 and related that Gray had threatened him with the remark "I wouldn't cause
any trouble over this if I were you," he had no alternative but to send Gray home
until June 11. Before Gray's return on this latter date Taylor examined the circum-
stances and decided upon the discipline subsequently imposed. Taylor also denied
any knowledge of Gray's union activities.
The foregoing explanations by the Respondent's foremen for the actions against
Gray satisfy me that his June 3 and 4 meetings with Union Representative Wright in
the drive-in restaurant had nothing to do with his suspension and the issuance of the
incident report to him on June 11. It cannot be disputed that Gray's poor employ-
ment history before June 9 made him vulnerable to discipline for further derelictions
The General Counsel does not contend that his June 9 transfer back to his former
bicycle inspection duties was unlawfully motivated, nor is there any basis in this
record for such belief. This circumstance highlights the impatience which Stanford
and Taylor doubtless felt over Gray's failure to respond to his work with the interest
and diligence they had sought from him. When in the face of Stanford's concern
on June 9 over the improper inspection of wheels, for which Gray had not been
blamed, and his cautioning of Gray to be careful, the latter permitted one faulty
wheel and then others to pass and finally was observed, as Stanford credibly testified,
prematurely making inspection tickets so he could leave early for supper, it was not
unreasonable to expect that a suspension and incident report would follow. Such
discipline was inevitable in my view especially after Gray's apparent threat to Stan-
ford not to "start any trouble." It matters not what Gray had privately meant by
his words. They were reasonably regarded by Stanford as a threat and invited the
discipline which resulted. That discipline would, in my opinion, have followed
regardless of the Respondent's knowledge of Gray's union activities. Because I find
that these activities did not motivate either the suspension or the incident report to
Gray of June 11, 1964, I shall recommend that the allegations that the Respondent
thereby violated Section 8(a)(3) and (1) of the Act be dismissed.
C. Alleged unlawful surveillance of union activities
The complaint allegations of surveillance all relate to such unlawful conduct by
Bob Looney, the Respondent's farm director. Looney's surveillance allegedly
occurred on several occasions in 1964 in Lawrenceburg, Tennessee, where the Union
held its meetings in one of the buildings on the Courthouse Square. Union Repre-
sentative Wright testified that in May or June 1964, on the night of a scheduled
union meeting, he drove along one of the streets leading to the square and stopped
his automobile at an intersection about a block from the entrance to the square.
Looney drove alongside of him at the intersection and continued beyond him. Wright
followed as Looney went half way around the square and then turned off. As Looney
left the square Wright stopped following him. William G. Townsend, whose dis-
charge by the Respondent in April 1964 is discussed hereinafter, testified that in
May or June 1964 he was standing on two occasions with several employees in front
of the meeting hall when he saw Looney drive slowly twice around the square looking
at the parked automobiles. Employee Odom testified that on two or three occasions
in 1964 he saw Looney drive around the square on meeting nights. He could not
recall the exact times. Employee Shaffer testified that in June or July 1964 he
also saw Looney drive around the square a couple of times looking at the parked
automobiles and at people standing near the street. This occurred on the night of a
union meeting. Former employee George W. Matthews testified that in August 1964
as he was approaching the square to attend a union meeting he observed Looney
sitting in a parked automobile at a location behind the union hall. The spot where
he saw Looney's parked automobile is a block away from the union hall which is on
the second story of a building on the square. Matthews was certain that from that
spot one can see people through the rear windows of the second floor. Concededly he
does not know whether "you can see enough to tell who they are."
As the Respondent's farm director, Looney gives farming advice to the Respond-
ent's employees and assists them with problems incident to maintaining farms and
related equipment and property. In the course of these activities he travels con-
stantly and is always on the lookout for employees with whom he has matters to
transact. He has numerous other activities which require him frequently to be at
MURRAY OHIO MANUFACTURING COMPANY 251
the Courthouse Square which is the business center of Lawrenceburg. As a member
of the local farm bureau and of the Boy Scout troop he goes to night meetings at
the square. He also attends night meetings at the square of the Lions Club. He
occasionally goes at night to the drugstore on the square. Looney acknowledged
knowing where the union hall is located and that he may have driven around the
square on nights when union meetings were held. He denied he ever went to the
square to watch meetings. Concededly, he had driven around the square at times
twice looking for a parking space in this congested area. He admitted that in
driving around the square he has seen the Respondent's employees and stopped to
speak to them. He denied he ever parked his automobile at a spot in back of the
union hall from which he spied on a meeting, and, furthermore, maintained that
from the place where Matthews said he had seen his parked car it was impossible to
recognize anyone at a meeting by looking through the dirty rear windows.
The General Counsel's proof, barely sufficient to sustain the complaint's surveil-
lance allegations, vanishes into thin air when measured against Looney's credible
explanation for his frequent nightly visits to the Courthouse Square. Surely, no
adverse inference may be drawn from Looney's mere presence at the square, even
on meeting nights, in view of the numerous logical reasons he provided for his
presence at that location. The fact that he was observed on the night of a meeting
approaching the square in his automobile by Union Representative Wright is utterly
meaningless. That Looney drove around the square on certain occasions more than
one time looking toward the curb side of the street does not justify any belief that
he was spying on the union activities of employees, for how else was he to find a
parking place for his automobile? That he may have looked at persons walking
around the square as he slowly drove by also furnishes no compelling reason for
belief he was trying to identify union adherents going to meetings for his special
activities for the Respondent required him to be on the alert for employees to whom
he could speak about the services he rendered. Not is there any justification even
for the suspicion that if he parked his automobile one night a block behind the union
hall that he had chosen this spot to spy on the activities of employees at a meeting,
for at the distance from the hall where the General Counsel's witness claimed to
have seen Looney's parked automobile it is wholly unlikely that anyone could have
been identified through the meeting hall's dirty rear windows. Furtheimore, I believe
Looney's denial that he had ever parked there to spy, and credit his explanation that
his only reason for parking in this area, if he had done so, would be the lack of
parking space on the square.
Because the complaint allegations as to the Respondent's unlawful surveillance of
union activities in violation of Section 8(a)(1) of the Act have not been sustained,
I shall recommend dismissal of these allegations.
D. The alleged unlawful discharge and interrogation of employee
William G. Townsend
Employee Townsend had worked for the Respondent from April 1958 until his
discharge on April 21, 1964. His unconcealed support for the Union in the period
immediately preceding his discharge was well known by the Respondent. The Gen-
eral Counsel claims he was discharged because he was an outstanding protagonist
for the Union. The Respondent maintains he was discharged because he chronically
complained, bickered, and offended his supervisors.
Townsend testified that he began actively supporting the Union in August 1963.
No finding is required concerning the Respondent's knowledge of his activities before
December 2, 1963. On this date, according to Townsend, he directly informed his
foreman, Billy Taylor, that he was backing the Union. Townsend further testified
that on the aforementioned date Foreman Taylor had acknowledged to him that he
was satisfied with his performance and then, in response to Townsend's inquiry, he
assured him he would be recalled following the plant layoff at the end of the year
At this point Townsend bluntly declared that he wanted Taylor to know he had
signed a union card and was going to help organize the plant. Thereupon, according
to Townsend, Taylor advised that he did not know "about calling back," and that he
did not "have nothing to do with that "
Townsend further related that in January 1964, following his recall that month,
Foreman Joe Bass spoke to him in the plant and expressed his regret that Townsend
had become involved in the union "mess." He stated his need for Townsend and
encouraged him to go to the office and state he was sorry about his union activities.
About a week and a half later Bass came to him at his place of work and again
urged him to advise the office that these activities were a mistake and that he was
sorry. Bass also remarked that Townsend would make a good foreman. About a
month later this conversation was repeated. Townsend replied that he did not want
to be a foreman who treated people as some of the Respondent's foreman do.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 or 3 days before his discharge in April Townsend was working with employee
Pope. Foremen J. B. Ray and Bass came to him and asked how many signatures to
union authorization cards he had obtained from employees, when the Union would
hold its next meeting , and when the representation election would take place. Bass
again stated his regret about Townsend's involvement in the "mess" and expressed
his wish that Townsend inform the office he was sorry about his union activities.
Townsend replied, "You all need a union yourself. We don't want you in ours,
but you all need a foreman's union yourself."
Admittedly, Townsend had a conversation with Foreman Monroe Staggs immedi-
ately preceding his disciplinary layoff and suspension on April 16 which was followed
by his April 21 discharge. He related that his layoff notice stated as a reason for
the action that he had said something about Staggs. He gave this version of the
April 16 encounter with Staggs. The latter had come to his place of work and
remarked, "I thought you was a preacher." Townsend declared, "I am." He asked,
"Why are you telling lies on me?" Staggs revealed that some of the boys had
attributed to Townsend the remark that he, Staggs, had signed a union card. Town-
send explained that he had said merely that Union Representative Wright had
issued this information. Staggs insisted that the person who said he signed the card
was a liar and "a damn son-a-bitch." Townsend countered by telling Staggs he had
regarded him as a "Christian" and ordered him to leave. In parting Staggs warned
that Townsend and Wright would have to prove that he was a card signer, and in
exchange Townsend threatened to turn him in "to the Labor Board."
Shortly after Staggs' departure Townsend was summoned by Foreman Billy Taylor
to the office. Upon arrival Townsend found Taylor, Staggs, and Superintendent
Skinner present. Describing what took place Townsend testified that Skinner, appar-
ently referring to an earlier experience, remarked that he had told Townsend in
the past to say nothing about the foremen. He then informed Townsend he was to
receive a 3-day layoff. Townsend protested that they had found "nothing wrong"
with him except that he had signed a union card and was going to help organize the
plant. This he added was his "rights and freedom." Skinner's reply was interrupted
by Townsend's complaint that he was "getting tired of being called son-of-bitches and
being nagged by the little foremen." Skinner told him to return on Tuesday of the
following week, April 21, when he would be informed whether he still had his job.
Townsend related that he came back to the plant before starting time on April 21.
He punched his card and reported to Foreman Taylor. The latter sent him to
Skinner's office. From there he was sent by General Foreman Frank Hawk to the
main office. There he was advised to return at 10 a.m. He came back at that time
and was confronted by Superintendent Skinner and Personnel Manager Smotherman.
Skinner admonished him for returning to the plant at starting time rather than at
10 a.m. as he had been instructed. He added that "he couldn't tell [Townsend] any-
thing" and reminded him that he had directed him in the past not to speak about
the foremen. Townsend's recollection of things said at this 10 a.m. meeting was
not clear and his testimony is confusing. He appears to have testified that Smother-
man asked him whether he wanted to continue his employment and that he answered
affirmatively; that he was told that he was a chronic complainer and that the Respond-
ent's offices in Nashville would be contacted, presumably to determine whether he
should be retained or discharged. He was told to return to the plant at 1 p.m. when
he would receive a definite answer concerning his employment. At 1 p.m. he came
back to the plant and was informed by Skinner that he was being discharged because
he was a chronic complainer. Townsend's insistence that they knew this was not
the reason for his discharge was unavailing.
As to the accusation that he was a chronic complainer Townsend testified he had
never before been called that He conceded that in the course of his 6 years' employ-
ment his duties had been changed on a "permanent" basis more than five times and
that he had complained to Foreman Taylor on four of these occasions that his new
assignments were too tough. He denied that he had complained more than other
employees and pointed out that he had been invited by Foreman Taylor to come to
him "any time" with his complaints. He characterized the entire plant as a "general
complaining outfit," in which even the foremen are complainers
Townsend maintained that following his return to work in January 1964 he con-
stantly received difficult assignments. In his words "they was throwing the work on
me." In the rotation of jobs among employees he always got the hardest ones. He
denied , however, complaining about these daily job changes. He did complain,
he said, about a change in January 1964 when the crew on a particular job to which
he had been assigned was reduced from three to two men. The extra work which
devolved upon him and the other remaining crewman made the work so hard that
he complained to Foreman Taylor. The latter said nothing to him about the
matter. During the third week following his return in January a procedural change
MURRAY OHIO MANUFACTURING COMPANY 253
was made on a toy tractor operation to which he had been assigned . When Foreman
Taylor apprised Townsend of the specific duties he was to perform the latter indicated
he would be doing the work which formerly had been done by two employees.
Townsend presented his claim to one of two other jobs incident to the operation.
Taylor tersely replied, "You'll do this job ." Townsend asked, "Who's going to help
me?" Walker briefly rejoined, "You 're going to do it by yourself ." Then Townsend
pointed to the increased number of hooks on the conveyer line and stated his doubt
that he could handle his assignment without help. Walker insisted , "You'll do it, or
else." This prompted Townsend to say, "Billy , when you signed the union card
did the foreman do you this way?" Thus provoked , Taylor responded , "Shut your
mouth. Shut your damn mouth ." In turn Townsend dared Walker to "shut it
for me."
Cross-examined , Townsend was reminded of other clashes with management. He
acknowledged that in November 1963 he had been summoned by Superintendent
Skinner who charged him with warning Foreman Jaco to look out or he might get
rid of him as he had Foreman Putnam. Townsend at first had denied the truth of
the charge but then indicated when confronted by Foreman Taylor he "thought [he]
heard something like that or another. It might have been a joke ." His attention
was directed to another incident involving General Foreman Hawk which Townsend
claimed occurred in November 1963 but which Hawk testified occurred on January 30,
1964. The circumstances of this incident are detailed below in the recital of Hawk's
version . It suffices for the moment to state merely that harsh words were exchanged
which resulted in Townsend being summoned again to Superintendent Skinner's
office where the matter was discussed . Townsend was informed on each of the fore-
going occasions that incident reports were being prepared for inclusion in his
personnel file.
Superintendent Skinner testified that he had discharged Townsend on April 21,
1964, because he was a "dissatisfied employee and a chronic complainer ." Admit-
tedly, he had known of Townsend 's union activity since the beginning of February
1964 when he was informed about them by Foreman Hawk. He denied that these
activities influenced his decision to discharge Townsend.
As related by Skinner , Townsend 's discharge was a culmination of a series of
provocations of which his encounter with Foreman Staggs was the last. On
October 15 , 1963, Skinner had prepared an incident report in which Townsend's
specific violation was there recorded as "spreading false information -making remarks
that could cause trouble ." This was the occasion when Townsend was charged with
telling Foreman Jaco, as stated in the report , "he had better watch out , that he had
gotten rid of one foreman and he would get rid of another one ." Skinner had
admonished Townsend at the time that he was not to threaten his foremen. He
revealed to Townsend reports he had received about his constant griping and dis-
satisfaction . As he spoke Townsend frequently interrupted with claims that the
foremen were picking on him and giving him the hardest jobs. Skinner instructed
him to be quiet and to do his job. Townsend was informed that a written warning
slip, an incident report , was being prepared.
Skinner next recounted the January 30, 1964 , incident involving Townsend and
Foreman Hawk. The latter had come to him on that date and reported he was
upset by Townsend 's conduct . He described to Skinner how Townsend had called
to him as he was passing his work station and had complained about the difficulty
of removing handle bars from a crate . Hawk had Pointed out that he had to do the
job just as others , whereupon Townsend remarked "that's a lot of . , or don't
give me that . ." When Townsend appeared before him Skinner criticized his use
of such language in addressing foremen and instructed him to refrain from doing
so in the future . Townsend at first denied to Skinner speaking the words attributed to
him but later defended their use on the ground that Hawk had Provoked him by
calling him an old lady. Hawk, who was present , had insisted that Townsend 's abuse
prompted the "old lady" retort . According to Skinner , Townsend constantly inter-
rupted him so that he several times ordered him to be quiet while he spoke. He
reminded Townsend of his instruction at the time of the Jaco incident not to talk
about the foremen. Townsend 's denial that he had not obeyed Skinner resulted in
his call to Foreman Billy Taylor who confronted Townsend with the charge that
the latter had said to him he "got shed of one foreman and I can get shed of
another." Townsend explained he had only been joking, but Skinner cautioned that
such remarks are no joking matter. He lectured that he was getting tired and angry
about Townsend 's behavior and emphasized this was his final warning . Townsend
was firmly instructed not to repeat his conduct . Skinner signed another incident
report dated January 30, 1964, in which the specific violation with which Townsend
was charged was "insubordination and abusive language."
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continuing, Skinner testified that on April 16, 1964, Foreman Staggs reported
that Townsend was spreading false remarks concerning him and that when Townsend
had been requested by Staggs to stop talking about him he had declared, "I can talk
about anybody and everybody and who I like, and I am not going to stop." Skinner
directed Staggs to have Foreman Taylor bring Townsend to his office. When the
latter appeared Skinner proceeded to apprise him of Staggs' complaint, but was
interrupted by Townsend's outcry that the foremen "big" and "little" were picking
on him and that even an employee had told him to shut his mouth. Over Townsend's
interruptions Skinner succeeded in telling him he had received his final warning. He
directed him to leave the plant and to return the following Tuesday, April 21, at
10 a.m. Townsend became enraged and said he would be paid "for those 3 days"
or he would go to court. Skinner told him this was doubtful and, in any event, "this
could be final for you." Townsend returned to the plant at 7.25 a.m. on April 21.
When Skinner learned of his early arrival he instructed Foreman Hawk to tell him
to leave and to report to the office at 10 a.m. as he had been told to do. Before that
hour Skinner consulted most of the foremen under whom Townsend had worked to
ascertain whether they had noted any improvement in his attitude. Skinner's impres-
sion was that they were fed up with him. He also spoke to Personnel Manager
Smotherman to whom he recommended Townsend's discharge. Smotherman sug-
gested that they first confer with Plant Manager Flesher. He also suggested that
Townsend's 3-day layoff might have straightened him out and that they should talk
to him at 10 a.m. before taking action. Skinner agreed to follow this course. When
Townsend appeared, Skinner, in Smotherman's presence, asked whether he would be
a "happy employee" and would get along with the other employees if he were per-
mitted to return to work. Townsend immediately resumed his plaint that the fore-
men and employers were picking on him. Skinner told him he had seen no change
in his attitude and directed him to leave and to return at 1 p.m. Skinner and
Smotherman then consulted with Flesher who agreed with their joint recommenda-
tion to discharge Townsend. When he returned at 1 p.m. they notified him of their
decision. Townsend's official notification, signed by Skinner, assigned as the reason
for his discharge "constantly expressing dissatisfaction with job assignments. Chronic
complainer."
Some of the detailed aspects of Skinner's account of the circumstances leading to
Townsend's discharge were corroborated by Foremen Billy Taylor and Staggs. In
turn, their version of encounters with Townsend which led to his several meetings
with Skinner and resultant reprimands and warnings were supported by the testimony
of other witnesses. There is no need to burden this decision with a recital of the
testimony of these witnesses for I have credited in full Skinner's impressive testimony
concerning what occurred between him and Townsend. Skinner's testimony con-
vinces me he discharged Townsend for the reasons assigned by him and not because
of Townsend's union activities.
In reaching the foregoing conclusion I have been mindful of the Respondent's
opposition over the years to the Union and its conduct, sometimes unlawful, to pre-
vent the unionization of its plant. I am satisfied that the Respondent was not pleased
with Townsend's open and vigorous support for the Union and that, as he testified,
he was urged by Foreman Bass to abandon that support and declare his penitence to
management . Yet, I do not believe he was, as the General Counsel contends, dis-
charged because he defiantly persisted in espousing the Union's cause. I am per-
suaded by the abundance of credible testimony that Townsend was an unyielding
critic of his foremen whom he had provoked with complaints and threats even before
his open declaration of union allegiance. In fact, it was his threat to Foreman Jaco
that he would get rid of him as he had another foreman and his resultant reprimand
and warning by Superintendent Skinner which induced him to declare his union
adherence. I have no doubt that managerial impatience and annoyance with Town-
send was intensified by his abuse of General Foreman Hawk in January 1964 as
evidenced by Skinner's notice to Townsend that this was his final warning. The
Respondent's resentment stored up against Townsend, for reasons unrelated to his
union sympathies and activities, approached the breaking point when on April 16 he
again clashed with a foreman who was angered by Townsend's repetition of unfounded
assertions that he had signed a union card. Again Townsend defied supervisory
authority when confronted by this foreman, Staggs, and brusquely ordered him to
depart. Skinner's forbearance was once more tested by Townsend's uncompliant
attitude and unwillingness to concede fault. It was then that Townsend passed the
point of no return. Had Townsend revealed a more pliant attitude and intention to
cooperate in the future by avoiding past frictions, Skinner, upon Smotherman's
advice, was prepared to allow Townsend to continue his employment. Townsend's
irreconcilable attitude convinced Skinner that he had not profited by his 3 days'
suspension and that continuation of his past behaviour was to be anticipated. It
CONTINENTAL MANUFACTURING CORP. 255
was then that the decision to discharge him for these reasons was crystallized I do
not receive in these circumstances even partial motivation for the decision to dis-
charge Townsend for his union sympathies and activities. I find that the decision
for this action was based exclusively on Skinner's conclusion that Townsend was
an incorrigible complainer who would always tangle with managerial authority and
whose continued presence in the plant for this reason alone was undesirable.
I find, in accord with Townsend's unrefuted testimony, that Foreman Bass and
Ray had asked Townsend how many signed union cards he had obtained from
employees and when the Union would hold its next meeting. Ordinarily a supervisor's
inquiry of an employee concerning his organizing activities is an unwarranted intru-
sion upon his right of privacy in these affairs and tends to coerce the employee in
the exercise of his statutorily protected right to engage in union activities. I do
not believe the interrogation of Townsend as to his activities or of the time of the
Union's meeting tended to coerce employees. Townsend was too openhanded and
defiant about his unionism to impute coercive tendencies to inquiries of him about
his activities. I doubt whether Townsend or any employee familiar with the fore-
going interrogation would have regarded Bass' and Ray's questions about his card
solicitations as anything more than banter or harmless crossfire between obvious rivals
in the contest over unionization. I shall recommend dismissal of the allegations that
Townsend's layoff and discharge were violative of Section 8(a)(3) of the Act and
that the interrogation of him concerning his union activities was independently,
violative of Section 8 (a) (1) of the Act.
I further find that in connection with Townsend's interrogation by Bass concerning
card solicitations he was encouraged to notify the Respondent that he would with-
draw from the Union and that Bass at the same time indicated his employment status
would otherwise be imperilled by telling Townsend of his need for him. As the
carefully detailed complaint does not allege this threat to be unlawful and because
the General Counsel's brief does not make any contention regarding it, I make no
finding that the Respondent by Bass' threat violated the Act.
CONCLUSIONS OF LAW
1. Murray Ohio Manufacturing Company, Lawrenceburg, Tennessee, is an
employer engaged in interstate commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act have not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Continental Manufacturing Corp. and Aurea E. Ramirez. Case
No. 24-CA-1876. October 19, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
155 NLRB No. 26.