Murray Ohio Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 14, 1961

134 N.L.R.B. 141 (N.L.R.B. 1961)

MURRAY OHIO MANUFACTURING COMPANY 141
Murray Ohio Manufacturing Company and International Union,
United Automobile , Aircraft & Agricultural Implement Work-
ers of America , AFL-CIO. Cases Nos. 26-CA-955 and 26-CA-
955-2. November 14, 1961
DECISION AND ORDER
On September 2, 1960, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 Intermediate
Report attached hereto. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed as to such alle-
gations. Thereafter, the Respondent and the Charging Party filed
exceptions to the Intermediate Report and supporting briefs.
The Board l 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the modifications noted below.
The Board concurs in the Trial Examiner's finding that Respondent
did not discriminately apply its employee evaluation plan in failing to
recall James E. Fowler, Ralph S. Durham, and George L. Womble
upon resumption of operations at the beginning of the 1960 produc-
tion season. In so doing, however, we do not adopt the Trial Ex-
aminer's finding that the Respondent's employee evaluation or rating
system of 1957 was not, as of that time, discriminatory per se. In a
previous proceeding 2 in which the matter was fully litigated, we
found that the rating system employed herein was unlawful in its
conception and initial formulation. In that case we also found that
Respondent had availed itself of the rating system at the opportune
time to discriminate against the complainants therein. Since the ful-
fillment of the plan's purpose, however, Respondent has modified its
employee evaluation program so as to restrict its application to tempo-
rary employees engaged at the end of the season, and the events in
issue in this case occurred in 1960, more than 2 years after the plan's
adoption. The Trial Examiner has found that the plan was not unlaw-
' Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers herein to a three -member panel [Members Leedom , Fanning , and Brown].
2 The Murray Olio Manufacturing Company, 134 NLRB 175 For the reasons set forth
in the dissenting opinion in the case cited , Member Leedom agrees with the Trial Ex-
aminer's finding herein concerning Respondent's employee evaluation system Ile would
therefore adopt the Trial Examiner ' s findings and conclusions without any modification
134 NLRB'No. 22.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully implemented in the cases of the above-mentioned employees and
we are satisfied that this record supports his findings.
ORDER
The Board adopts the Recommendations of the Trial Examiner with,
the modification that provision 2(d) read: "Notify the Regional Di-
rector for the Tenth Region in writing, within 10 days from the date,
of this Order, what steps the Respondent has taken to comply-
herewith." 3
' In the notice attached to the Intermediate Report as the Appendix the words "Deci-
sion and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner " 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 "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an_
Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought undef Section 10(b) of the National Labor Relations.
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard in Lawrenceburg, Tennessee,
on July 19, 20, and 21, 1960, pursuant to due notice. The complaint, issued on May
11, 1960, and based on charges duly filed and served, alleged that Respondent had'
engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act
by (1) discharging four employees and failing to recall seven others because of their
union membership and activities, and (2) certain specified acts of interference,
restraint, and coercion.
Respondent -answered, denying the unfair labor practices. Respondent's various
motions for dismissal, on which ruling was reserved at the hearing, are disposed of
by the findings herein.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted in the answer that Respond-
ent, an Ohio corporation engaged at Lawrenceburg, Tennessee, in the manufacture
of velocipedes, bicycles, wheel toys, and fans, is engaged in commerce within the
meaning of the Act (i e., annual. extrastate sales and shipments in excess of
$100,000), and that the Union is a labor organization within the meaning of Section,
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and issues
This is the fourth in a series of unfair labor practice proceedings which have been
brought and heard since June 1958, and which followed the transfer of Respondent's
operations from Cleveland, Ohio, to Lawrenceburg, Tennessee; in 1956. Two of the
three previous cases have been decided by the Board (122 NLRB 1306; 128 NLRB
184), and the third is presently before it on the Intermediate Report of Trial Exam-
iner Lee J. Best, IR-831, issued November 19, 1959. The background of the present
case is fully disclosed by the above cases See particularly paragraphs III, A and B
of the Intermediate Report in 128 NLRB 184, and paragraphs III, A, B, and C of-
IR-831, supra.
The present complaint, which alleges a discriminatory discharge of 4 employees
(Guy D. Smith, James F. Mathis, Johnny J. Carter, and Clyde P. Richardson) and
a failure to recall 7 others (James E. Fowler, Robert Hyde, Jack Land, George-
Womble, Arthur L. Mitchell, William H. Miller, and Ralph S. Durham), was based
on charges of discrimination against a total of some 24 employees. The issues were,
narrowed further at the hearing by dismissing the complaint on Respondent's motion,
unopposed by the General Counsel, as to Hyde, Mitchell, and Land, as well as to an
I
i MURRAY OHIO MANUFACTURING COMPANY 143
alleged discriminatory 3-day suspension of Marshall Lumpkin, on none of whom the
General Counsel offered evidence to support his-complaint allegations.'
The issues in the present case are largely factual, turning on the credibility of
opposing witnesses for the most part, though there is documentary evidence which
aids substantially in resolving the conflicts in a number of instances . Except as to
Fowler, there is no issue as to Respondent's knowledge of union membership, Re-
spondent stipulating that the Union informed it that the other seven were members
of the organizing committee. Evidence was also presented as to their wearing of
union buttons and T-shirts and of participation in other union activities. The
General Counsel relies on the stipulation, on the background furnished by the prior
cases, and on certain alleged instances of interference, restraint, and coercion (some
of which were admittedly outside of the Section 10(b) period) to establish the
claimed discriminatory motivation.
An issue was also presented whether Smith, Mathis, and Richardson were construc-
tively discharged or whether they quit voluntarily. Respondent's defense as to Carter
was that he was discharged for unsatisfactory performance, after warnings. Fowler,
Womble, Miller, and Durham were temporary employees who were laid off at the
end of the season in 1959 and were not recalled during the 1960 season . Respondent
defended its action in their cases on the basis of its evaluation ratings, which ren-
dered them ineligible for reemployment. As the latter issues closely resemble those
which were litigated at considerably more length in the proceeding involved in
IR-831, supra, we begin with the alleged discriminatory failure to recall the
temporary employees.
B. The failure to recall
The General Counsel contends here (as he did in the case heard by Trial Examiner
Best, IR-831, supra) that the rating system was designed only as a guise and pretext
to cover Respondent's unlawful acts in not recalling the four employees td employ-
ment. No evidence was offered here that the program was designed with such
proscribed intent, and Trial Examiner Best found none in the case before him.
Though the system is thus not discriminatory per se, as Trial Examiner Best found,
yet when considered against the background of hostility toward the Union and
recent unfair labor practices, close scrutiny must be given the individual evaluations,
of union adherents to determine whether Respondent's supervisors made use of the
system so as to discriminate against them.
Preliminarily it is to be noted that certain changes in the rating system were put
into effect on August 27, 1959. It was then decided that permanent employees would
not again be rated, but only temporary employees who were employed at the end
of the season. It was also decided that permanent status would be accorded to
previous temporary employees who were recalled prior to April 6, 1959, whereas
those reemployed after that date would continue to be temporary employees.
As Durham, Womble, Miller, and Fowler were recalled or employed after April 6,
they were classified as temporary employees, and their clearance slips, issued on
separation (Fowler on October 5; the others on December 4), bore the following,
rubber stamp notation:
SEASONAL-TEMPORARY
SEPARATED-TEMPORARY
WORK FOR WHICH EMPLOYED, COMPLETED
At the end of the 1959 season, the personnel office prepared rating sheets on all
temporary employees and sent them out to the various superintendents to be com-
pleted and returned to personnel, where the results were tabulated. Some 500 tem-
porary employees were rated, of whom 51 received below 23, with knowledge on the
part of the foremen and superintendents who made the ratings that such a rating
would disqualify the employee for reemployment. The four employees here involved
received ratings substantially below 23.
On January 4, 1960, after tabulation of the ratings, Cromer Smotherman, per-
sonnel director, issued a directive to Lloyd George, employment manager, in which
he listed the names of the 51 low-rated employees and in which he informed George
that they were not to be considered for rehire.
We turn now to the evidence which relates more specifically to the individual cases,
starting with Fowler, who was the first to be laid off.
1 Although union counsel endeavored ifroin time to time during the hearing to litigate
the discharge of certain employees named in the charges but omitted from the complaint,
Respondent's objections to such attempts were sustained
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. James E . Fowler
Fowler was a new employee , who was first hired on May 13, 1959. As there
was no stipulation by Respondent of knowledge that Fowler was a member of the
organizing committee , we begin with other evidence which concerns knowledge.
Fowler testified that he was a member of the committee and that he wore a union
T-shirt and button for about 3 weeks before his layoff on October 5. It was stipulated
that Herbert G. Jaco ( a nonsupervisor who failed to respond to General Counsel's
subpena ) would testify, if called, that he observed Fowler wearing a union button in
the department during the month before Fowler's layoff. Charles Haymons, fore-
man, and Andy Tomschey, superintendent, denied having seen Fowler wearing the
union insignia and denied knowledge of his union membership.
Fowler also testified to a conversation with Tomschey on one occasion when he
was wearing his union insignia and when Tomschey allegedly talked with him for
some 30 minutes concerning the Union. At the end of the conversation Fowler asked
Tomschey to approve some "down" time , and Tomschey agreed to do so but added,
;`When Wright (UAW Representative) gets in, you won't get no down time," and
that if Fowler would pull off his button and T-shirt, he would have a better chance
of staying there. Tomschey flatly denied any such conversation with Fowler.
Further conflicting testimony was given concerning Fowler's job performance and
as to certain warnings and incident reports which entered into Fowler's rating.
Fowler was rated at 12, the lowest rating which Haymons and Tomschey gave to
any employee in their department, and Fowler's name was included on Smother-
man's list to George.
Haymons testified, with corroboration from Tomschey, to having warned Fowler
on a number of occasions for running scrap and to Fowler's unsatisfactory explana-
tions and excuses. On June 8, July 2, and August 13 (predating the time of Fowler's
alleged wearing of a union button), Haymons prepared separate incidents reports
and read them to Fowler. On the last occasion Haymons had discovered Fowler
at work while under the influence of alcohol and took him to Tomschey, who sent
him home after preparation of a formal report and a warning of discharge. Hay-
mons and Tomschey testified that Fowler admitted that he had had "a couple of
beers."
Fowler denied on direct examination that any supervisor criticized his work until
after he started wearing a union button, denied that he was given any written warn-
ing or incident report, and denied that he was ever called into the office and criticized
about his work. On cross-examination, Fowler admitted making excessive scrap
on occasions but denied that he was spoken to concerning it. He admitted further
making mistakes on chain guards (the subject matter of one of the incident reports)
and admitted that he was spoken to concerning that. Fowler also admitted that he
was sent home early one day, but testified that it was because of his emotional con-
dition resulting from some hard luck and not because he had been drinking.
Acceptance of Fowler's uncorroborated testimony would not only require rejec-
tion of the mutually corroborative testimony of Haymons and Tomschey, but would
require a finding that the three formal incident reports were complete fabrications,
despite any suggestion from the evidence that such was the case. Fowler's reluctant
admissions on cross-examination , after denial of criticism or warnings on direct,
and his admission that he was sent home on the occasion of -the final incident, illus-
trate the unreliability of his testimony and lend further support to the Haymons-
Tomschey testimony, which I credit. I credit similarly their denials of knowledge
of Fowler's union membership and activities and Tomschey's denial of the alleged
conversation with Fowler.
On the issue of discriminatory intent, the significant fact is that all three incidents
preceded Fowler's alleged wearing of union insignia . Plainly, therefore, Respondent
could not have set about building up an unsatisfactory work record in anticipation
of an opportunity to use it discriminatorily against an employee who was not then
a union adherent. Furthermore the evidence showed that Fowler was laid off
along with some 30 others in his department and that some 9 others were not re-
called because of low evaluation ratings. The General Counsel made no showing
as to the union membership or lack of it as to any of the others, nor did he offer ref-
utation of Haymons' testimony that employees Griggs and Stultz in his department
were to his knowledge members of the Union's organizing committee , that they
wore union insignia , and that they are still employed.
I therefore conclude and find on the entire evidence, and for the foregoing rea-
sons, (1) that Respondent was without knowledge of Fowler's alleged membership
on the organizing committee or of his other alleged union activities, and (2) that
the evidence otherwise failed to establish that Respondent's failure to recall Fowler
was discriminatorily motivated.
MURRAI OHIO MANUFACTURING COMPANY 145
2. Ralph Durham -
Durham had worked for Respondent during the 1958 season , was rated as
average or satisfactory after his layoff, and was recalled on April 20, 1959, as a
temporary employee in department 92. He was laid off on December 4, was later
given an evaluation rating of 14, and was included on Smotherman 's list to George.
Foreman Roy Williams, who had participated in the ratings, admitted that Dur-
ham and Womble (section 3, infra) were the only employees on his crew of six
men who were members of the organizing committee and who wore union insigina
on the job, and admitted that they were the only two who were rated below 23 at
the end of the 1959 season?
Durham testified that in March 1960, he spoke to Williams in a poolroom, in-
quiring if it was time for him to be called back. Williams replied that he and Fore-
man Norwood were checking the roster and Durham's name was coming right up.
Williams admitted that Durham spoke to him- and that he told Durham his name
was "getting near," but he testified that he had forgotten at the time what Durham's
rating was.
Durham testified further that he called Lloyd George on April 15 and that George
informed him that he was not being called back because he annoyed the hands, but
George did not specify the source of his information. George did not testify. Dur-
ham denied that any of the supervisors spoke to him about annoying people and
denied further that he had ever been reprimanded about his work. On cross-
examination, Durham specifically denied that he was informed on May 4 that an
incident report had been written concerning his walking on stacked cartons without
a plywood board, denied that on July 7 he was warned about the improper handling
of portable rollers, and denied that on October 8 he was reprimanded about throwing
cartons to the top of a stack in a boxcar.
Durham's testimony to the foregoing effect was convincingly refuted by Foreman
Williams, who testified in detail concerning the three incidents, and whose testimony
was documented by incident reports which he had prepared-contemporaneously?
Williams testified that he reprimanded Durham on each occasion, that he warned Dur-
ham on the second occasion he would be given a 3-day layoff for the next offense,
and that on the third occasion he warned Durham that for the next offense he would
be discharged.
As there is no suggestion from the record that these incident reports were fabri-
cations (they were also signed by Maskovyak and Smotherman), Williams' testi-
mony is credited-over Durham's,' whose unreliability as a,witness was demonstrated
by his insistence that his clearance slip did not contain at the time he signed it the
line, "Work for which employed, completed." That line was 'part of a single
rubber-stamp impression , the remainder of which Durham acknowledged
Williams' poolroom conversation with Durham, his prior rating of Durham and
Womble as satisfactory, and his 1959 rating of them as unsatisfactory after knowl-
edge of their union activities, were plainly circumstances indicative of a discrim-
matory intent, particularly when viewed against the background of union hostility
as disclosed in the earlier proceedings. But Respondent's affirmative showing re-
futed the inference which would otherwise be drawn. Williams' explanation
that he forgot at the time Durham's low rating is plainly understandable in view of
the setting of Durham's inquiry. Furthermore the final decision not ;to recall Dur-
ham had been made by Smotherman on January 4.
Durham 's performance during the 1959 season plainly warranted a lower rating
than the borderline "average" he received in 1958. The fact that-two of the three
incidents occurred before Durham 's connection with the organizing committee pre-
cludes any finding that Respondent had deliberately set out in advance to build up
an unsatisfactory work record against him. (Compare here the earlier case, 128
NLRB 184, where the Board affirmed, without discussion, Trial Examiner von Rohr's
findings on the discharge of Virgil Nutt.)'
I therefore conclude and find that the General Counsel failed to establish by a
preponderance of the evidence that Respondent was discriminatorily motivated in
failing to recall or reinstate Durham.
a As Smotherman listed two other employees in department 92 who were not eligible
for recall, they presumably worked under a foreman, other than Williams.
' Ruling was reserved at the, hearing on, these and other incident reports, whie'i Re-
spondent's evidence showed were part of the material on which the foremen based their
evaluation ratings at the end of the season Those reports are now received in evidence,
i e , Respondent's Exhibits Nos 12, 13, 14, 16, 17, 23, 24, 25, 27, and 28.
630849-62-vol 134-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. George L. Womble
Womble's case closely resembled Durham's. He was a temporary employee who
had worked during the 1958 season, was, like Durham, rated average, was recalled
on April 20, 1959, as a temporary employee, and was laid off on December 4. He
also received a rating of 14, and was included on Smotherman's list to George. On
inquiry to George in April, Womble was informed he would not be called back
because his foreman reported he did not make a hand and did not work.
As in Durham's case, Respondent relied on Williams' testimony, documented by
incident reports concerning prior warnings for improper performance and loafing
on the job. Specifically, Williams testified that on June 3 he reprimanded Womble
for kicking cartons of velocipedes from the top of a stack onto the floor. On Sep-
tember 9 while the conveyor line was jammed with cartons and while the other
employees were at work, he discovered Womble reading a newspaper. Williams
talked with Lough concerning each incident, and Lough directed the preparation of
incident reports on each because of prior warnings given Womble on similar mat-
ters. Williams informed Womble that incident reports had been written and warned
him against repetition of the offenses.
Womble flatly denied both on direct and on cross-examination that he had been
warned or criticized about his work, denied specifically the incidents of June 3 and
September 9, and denied that he had been informed of the incident reports. Aside
from Womble's-denials there is no evidence which indicates that the incident reports
(also signed by Maskovyak and Smotherman) were fabrications. Furthermore
Womble's testimony showed elsewhere indications of bias or interest. Thus, though
denying that at the conclusion of his conversation with George in April he had
threatened to make the Company pay for an injury to his arm, Womble admitted
that he told George the Company ought to pay for it and that he asked George what
it was going to do. Under all the circumstances, Williams' testimony is credited
over Womble's.
The evidence thus showed that Womble's performance had deteriorated after
his "average" rating at the end of the 1958 season. Williams' testimony concerning
the 1959 rating justified the lower rating on that basis and contained no indications
that the results were contrived with intent to eliminate a member of the Union's
organizing committee. Indeed, as in Durham's case, one of the two incidents which
entered into the unsatisfactory rating had occurred before Womble had gone on the
committee Cf. 128 NLRB 184 supra.
I therefore conclude and find on the entire evidence that the General Counsel
failed to establish by a preponderance of the evidence that Respondent was dis-
criminatorily motivated in failing to recall or reemploy Womble.
4. William H. Miller
Miller had worked as a temporary employee during the 1958 season, was rated
at a borderline 23, and was recalled on April 28 for the 1959 season as a temporary
employee. He was rated after layoff at 15 and was included on Smotherman's list.
On inquiry to George, Miller was informed the reason was low quality work.
Miller was the only employee on the second shift in his department who was a
member of the organizing committee. He gave testimony concerning repeated con-
versations with Foreman Herbert Putman and Supervisor Bobby Walker, which,
though not denied, will be set forth at some length because of its direct bearing on
discriminatory motivation .4
Some 3 days after Miller began wearing his union button in August, Putman asked
Miller why he was wearing a pin and if he thought the Union would help him. After
making a sales talk as to why the Union was no good, Putman told Miller that even
if he did not think of himself he should think about the fact that his kin people might
want a job sometime, and that Miller should not hurt their chances of getting on at
the plant. Putman concluded by saying he would like to see Miller change his mind
and take off the pin.
Some 2 weeks later Walker called Miller into the office where the following con-
versation ensued:
[Walker] told me that he would like to see me take off the union pin and
start working as hard for the company as I had been working for the union.
I told him, I said, "I believe I have been working hard enough on those frames
for eight hours."
4 All the conversations occurred shortly after Miller began wearing his union button
and were apparently outside the Section 10(b) period. The General Counsel expressly
disclaimed them as Section 8(a) (1) violations.
MURRAY OHIO MANUFACTURING COMPANY 147
And he said, "I don't mean like that."
And I said, "Oh, you mean talk in favor of the company and not in the union?"
And he said, "Yes."
And so I then told him "I know I have to watch myself on the job because
I-the first time I messed up I would be fired."
And he said, "Yes, the company can't be for you if you ain't for us."
Then he told me about, he said, Murray was a young company in town
and he said I had a chance of going up all the time but couldn't if a union came
in or if I didn't take off the pin.
Miller testified to further separate conversations with Walker and Putman when
employees Garner, Johns, and Staggs were working nearby. Walker asked Miller,
"How is the UAW?" and stated he had talked lots of employees into taking off their
pins, and that he would keep trying. Putman started a talk against the Union, and
an argument followed between them, with Miller contending that a supervisor had_
no right to talk discouragingly to employees concerning the Union.
Though Respondent did not call either Putman or Walker in denial of Miller's
testimony, it did call Garner and Staggs who testified they did not hear any con-
versation between Putnam and Miller when the Union was discussed. They were not
questioned concerning the conversation between Walker and Miller.
Though both Putman and Walker participated in the 1959 rating of Miller and
though Putman had initiated and signed two incident reports later referred to,
Respondent failed to call either of those foremen, but based its case on Miller's
rating on the testimony of Frank Hawk, the general foreman over Miller's depart-
ment. Hawk testified that he had many occasions to reprimand Miller in 1959 con-
cerning his smashing of frames, that Miller's work in 1959 was worse than in 1958,
despite an additional year's experience, and that on two occasions in 1959 formal in-
cident reports were prepared. On the first occasion, which Hawk fixed as near the
end of August, Putman requested Hawk to take a hand because Miller was smashing
heads. Miller's excuse to Hawk was that he could not get the headcaps on right.
Hawk ran the machine itself and could find nothing wrong with it. He reprimanded
Miller, reminded him of a prior morning some 10 days earlier, and informed him
that an incident report would be made.
Hawk testified that exactly the same sort of event formed the basis of the second
incident report. Putman again asked Hawk to take a hand, and Hawk reminded
Miller of the prior warning, and reprimanded him for watching the girls on the
lacing line rather than paying attention to his work. Hawk also testified that he
reprimanded Miller for not working on August 29, a scheduled Saturday. Miller had
applied for and had been denied permission to attend a picnic, but had taken the
day off despite a specific direction to work.5
Hawk also testified to the evaluation rating of Miller in which he had participated
along with Putman and Walker. Hawk testified that he rated some 124 employees
in 1959, of whom 23 were rated below 23, and that none of the latter were called
back. He also testified that during the 1958 season, a single incident report had
been made on Miller, who had been rated exactly at 23 for that season.
Respondent also offered two incident reports which were fully prepared, except
for signatures, by Putman. Though the subject matter of Miller's actions corre-
sponded with Hawk's testimony, Putman's description showed himself, not Hawk,
as the movant vis-a-vis Miller. Thus, his report not only referred specifically to
his own warnings to Miller, but listed himself, not Hawk, as the supervisor who
informed Miller that incident reports were being made. Significantly also, Putman
dated his first report June 26, though Hawk placed the incident late in August, and
again in testifying to the second incident on September 1, Hawk fixed the earlier one
at "less than n month prior to this." Both incidents therefore occurred, under Hawk's
testimony, after Miller, to Respondent's knowledge, was placed on the organizing
committee and after Putman and Walker had begun their series of antiunion conver-
sations with Miller.
Miller himself denied that he had received warnings on incident reports about low-
quality work in 1959. Though he testified that he and another employee were cau-
tioned once in 1958, he denied specifically any such occurrences either in September
1959 or on June 26, and though Miller admitted he had missed a single Saturday
in September, he testified it was Putman who criticized him for not coming in, that
he informed Putman the reason was an injured hand, and that someone had called
5 Though Hawk testified that Miller had missed working on another Saturday in August,
there was no specification of details and no suggestion that that absence formed the basis
of any reprimand Miller denied repeatedly and convincingly that he had missed more
than a single scheduled Saturday, and his testimony is credited
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in for him . Putman admitted the call but said it was "no good" because the party
who called did not state his name.
In summary, Miller 's testimony concerning the undenied statements made by Put-
man and Walker 6 plainly established a prima facie case of discrimination , particu-
larly since Miller was the only member of the committee on his shift and because
of his prior satisfactory rating. Hawk 's testimony does not suffice to overcome the
preponderant weight of the General Counsel 's evidence . Here neither the evalua-
tion rating nor the incidents reports can be given full faith and credit for the following
reasons: Putman and Walker who made the statements indicative of discrimina-
tory intent had themselves participated in Miller's downgrading . Their influ-
ence on the results , though undisclosed , may nonetheless be regarded as substantial
in view of their attitude toward Miller . As to the incident reports, Hawk's testimony
was plainly at variance , both as to the dates and as to the extent of the participation
as between himself and Putman , who prepared the reports and who cast himself as
the chief actor , both in warning Miller and in informing him of the preparation of
the reports.
Under the circumstances , and in view of the failure to call Putman , the reports
plainly cannot be considered as corroborative of Hawk 's testimony . Though Re-
spondent made no explanation of its failure to call Putman and Walker , or of why it
was reduced to reliance on Hawk to defend against Miller , it is plain from all the
evidence that Hawk undertook to substitute himself for Putman as the active
participant vis-a-vis Miller in all the incidents which Respondent relied upon in
downgrading Miller. Thus, in addition to the incident reports, which showed Putman
as the chief protagonist for the Company , Miller's undenied testimony showed that
it was Putman who criticized him for missing a Saturday and to whom he made his
explanations.
Finally it is to be observed that if Hawk 's testimony be accepted that the first
incident occurred late in August ( and there is no evidence which authenticates the
June date on the report ), then both reports were prepared after Miller went onto
the committee and after Putman and Walker had begun their campaign against him.
Under all the circumstances I credit Miller's testimony , and I conclude and find that
Respondent contrived Miller's rating , with the active participation of Putman and
Walker, so as to discriminate against him for reemployment because he was a
member of the Union's organizing committee.
C. The discharges
1. Johnny J . Carter
Carter , a permanent employee , had been employed since September 1956 as a
press operator on the day shift under Foremen White and Boston, General Foreman
Jay Sayre , and Superintendent Starkey. He was recalled each year after layoff at-
the end of the season , but was discharged on February 10, 1960, after the-preparation
of a series of incident reports similar to those involved under section B, supra.
Carter testified that Sayre once spoke to him about the Union, asking where he
got that 65 percent of parity, and told Carter he thought Carter would be better off
and would get along with people better if he got off the committee . Sayre denied
that testimony ; he testified that his only conversation with Carter ' concerning the
Union occurred shortly after Carter 's injury on November 18, 1959, when Carter
volunteered to Sayre that he was for the Union because he had not been able to obtain
a job which he wanted.
Carter testified that on February 10, while he was running tank halves, Boston
and White found slugs in them and later sent Carter into the office to see Superin-
tendent Starkey . Starkey told Carter he thought he had given Carter enough chances
and discharged him. The clearance slip assigned the reason as unsatisfactory
performance.
Sayre and Starkey gave mutually corroborative testimony to other occasions prior
to February 9 when they had reprimanded Carter either concerning his continued
violation of safety rules, or concerning his running of slugs, of each of which he was
warned of discharge for the next offense. On January 26, Carter was suspended for
3 days for the safety-rule violation . Not only was the foregoing testimony docu-
mented by formal incident reports prepared contemporaneously , but Carter admitted
6 Respondent 's oblique attempt to refute a minor portion of Miller's testimony by Garner
and Staggs was wholly unpersuasive in the face of ,its failure to produce Putman and
Walker themselves , particularly since Miller's testimony did not indicate that the other
employees had necessarily heard the final conversation with Putman.
MURRAY OHIO MANUFACTURING COMPANY 149
much that they charged him with, admitted the warnings and the layoff , and admitted
being informed of the incident reports. Indeed , Carter admitted that after a slug
incident on February 8, Starkey told him ' that "there was going to' be hell raised,"
and that if it happened again he would be fired. - -
The next day Foreman Boston reported that Carter had run another batch of
tank halves with slug, marks. While Sayre and Starkey personally ran the bad
pieces through further operations in an attempt to salvage them , Carter continued to
run some 50 'additional defective pieces with slug marks ." Thereupon they called
Carter to the office , whose excuse, as usual , was that he could not see the marks.
Starkey reminded Carter of the previous day's warning and discharged him.
The mutually corroborative testimony of Sayre and Starkey, confirmed in signifi-
cant and substantial respects by Carter's admission , established a plain case of dis-
charge for cause . I so find . I also credit Sayre's denial of Carter's testimony
concerning their alleged conversation.
2. James Mathis
Mathis, first employed in May 1958 , was a first-shift press operator in the press-
room under Superintendent Starkey and Foreman Adrian Simms . Except for dis-
puted statements attributed by Mathis to Starkey upon Mathis ' termination on Janu-
ary 15, 1960, the essential facts are not greatly in dispute . And since the mutually
corroborative testimony of Starkey and Sayre received substantial and significant
confirmation from Mathis' testimony on cross-examination , as well as from a written
statement which Mathis had voluntarily given shortly after his termination in apply-
ing to the State board for unemployment compensation , their testimony concerning
the termination , which received further corroboration from Foreman Simms and
Max Methvin ( a time-study employee ), is fully credited.
Briefly, the evidence showed that on January ' 15, 1960, Mathis made two com-
plaints to Simms that his machine was not operating properly , that Simms assigned
him temporarily to other work while checking the die, and later put another employee
on Mathis ' machine. Mathis complained about that to Starkey and Sayre, who
took him to the office , heard his story, and then called in Simms and heard his side.
Though Mathis claimed that his own account was substantiated during an inspection
outside the office, that testimony was not only denied by Starkey, Sayre, and Simms
but ultimately proved immaterial when Mathis admitted on cross-examination that
Starkey directed Sirnms to put Mathis back on his old job and that he refused it.
Mathis also admitted that he told Starkey he was going to quit because he was not
going to be kicked around any longer , but he testified that that followed his charge
that Starkey had cut his pay after he had put on the union badge and after Starkey
had ordered him to "shut his mouth " about union talk in the office . It was at that
point, under Mathis' testimony , that Starkey added the disputed statements which
would have established , if credited , the discriminatory intent , i.e., that it was a
good thing that Mathis was going to quit because "we are fixing to get rid of all
you guys that are wearing union badges ," and "I told Mr . Simms to not let you guys
have those good jobs." '
Under the credited testimony of Starkey , Sayre, and Simms, after Starkey directed
Simms to put Mathis back on his old job, Mathis refused , saying that he did not want
the "damn job" and was not going to "kiss anybody's " for a job. Mathis went
back to his machine , worked a few minutes , and then returned to Starkey 's office
where he interrupted a conference between Starkey and employee Methvin . Mathis
announced he was quitting ; he rejected Starkey's renewed offer of his former job,
stating that he was going to quit and wanted a clearance slip. Mathis admitted that
Starkey warned him he would be terminating his employment . Starkey finally
wrote out a clearance slip inserting the word "Quit" as the reason , and Mathis
signed it.
On'January 4, 1960, Mathis signed the following statement in applying for unem-
ployment compensation:
I was employed at The Murray Ohio Mfg. Co., Lawrenceberg, Tenn. from
1-4-60 to 1-15-60 when I vol . quit as I had a misunderstanding with my foreman
and I quit. . . .
Mathis admitted that the statement was written out as he talked and that he signed
it, but testified he told the agent of the State board that he quit because of a mis-
understanding with his foreman over union activities.
The foregoing evidence plainly established and I find that Mathis was neither
actually or constructively discharged , but that to the contrary - he voluntarily quit
his employment.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Guy D. Smith
Smith had worked as a press-operator since 1956, first on the handpresses for over
a year and thenceforth on the multislide (an automatic press) until November 13,
1959, when he refused a temporary assignment back to a handpress and quit. What
is in issue is whether the quitting was voluntary on Smith's part or whether the cir-
cumstances established a constructive discharge because of Smith's membership on
the organizing committee. The determination of that issue turns mainly on the
following disputed questions:
(a) Whether Superintendent Starkey promised Smith when he was transferred
to the multislide that he would not have to go back to the handpress.
(b) Whether Starkey discriminatorily refused to allow Smith the option of taking
a layoff in lieu of a temporary assignment to the handpress.
(c) Whether the shunting of Smith to another job was due to a shortage of steel
for his machine, as claimed by Respondent's witnesses and denied by Smith.
(d) Whether Respondent's discriminatory intent was further reflected in Starkey's
attempts in August 1959 to persuade Smith to come over "to the Company's side."
Smith alone testified for the General Counsel without corroboration. Foremen
Harvard Boston and Eddie Woodard and Superintendent Starkey gave testimony for
Respondent which was not only mutually corroborative in substantial and significant
respects but which also received confirmation from Smith's signed statement given on
October 20 in applying to the State board for unemployment compensation. That
statement read in material part as follows:
I worked for the Murray Ohio Manufacturing Company, Lawrenceburg,
Tennessee until November 12, 1959 when I voluntarily quit because: I had been
running a down slide machine making $1.75 per hour, a guarantee of $1.60 per
hour. My foreman told me he was going to transfer me to a hand press which
had a guarantee of $1.10 per hour and most of the men operating them could
make around $1.50 to $1.60 per hour (production was set at $1.35). I did not
ask if this was a temporary move or not and he did not tell me if it was a
temporary move. I refused the move and quit... .
Though Smith denied that he informed the agent of the State board that his quitting
was voluntary, he finally (and reluctantly) admitted that he had given the rest of
the statement, including the sentence, "I refused the move and quit." 7
The foregoing circumstances plainly impel the acceptance of the testimony of
Respondent's witnesses where Smith 's is in substantial conflict. The following dis-
position is accordingly made of the subsidiary issues listed above:
(a) Starkey's denials are credited over Smith's claim of a promise not to be as-
signed back to handpresses. Significantly, Smith failed to confront Starkey with his
alleged promise at any time during their discussions.
(b) Respondent's policy of permitting layoffs in lieu of transfers to other work
applied only to hourly rated workers, not to production (incentive) workers such as
Smith. Starkey testified credibly that he informed Smith of the distinction when
Smith sought a layoff; and there was no evidence that Respondent discriminatorily
failed to extend the rule to Smith. Indeed, employee Charles McDowell, who was
called by the General Counsel to illustrate the discrimination against Smith, ad-
mitted that he was an hourly rated employee when as was given the option of
taking a layoff.
(c) Undisputed evidence showed that Smith's termination occurred during the
period of the lengthy steel strike late in- 1959, that there was a shortage of steel
generally for Respondent's operations, and that only about half of the automatic
presses were being operated at the time of Smith's termination because of lack of
steel. Respondent's witnesses testified credibly that there was in fact no steel avail-
able for the multislide machine on November 12, nor later for another automatic
press to which Smith was briefly assigned . Smith's claims to the contrary are not
credited.
(d) Smith testified that shortly after he was put on the Union organizing committee
in August, Starkey expressed his disappointment and asked him to "pull off."
Starkey repeated his request on at least two other occasions. Starkey admitted
the substance of Smith's testimony, but denied that he requested Smith to pull off the
committee or to take off his union button. Starkey testified that he and Smith were
good friends who had hunted and fished together, that he considered Smith a good
man whom he wanted on his side, and that he told Smith so. As no denial was
v It-was plain from all the evidence that Smith was well aware the transfer was tempo-
rary , including Smith 's own testimony that he claimed the right to be laid off.
MURRAY OHIO MANUFACTURING COMPANY 151
offered of the relations between the two men , Starkey's credited testimony adds
nothing of substance to the General Counsel's claim of a discriminatory motivation-8
The ultimate facts thus show, and it is hereby found, that Smith flatly refused,
both on the afternoon of November 12 and on the morning of November 13, to ac-
cept a temporary assignment to a handpress and that he sought a layoff slip which
was refused him. In the final interview in the personnel office, Smith admitted that
he repeated to George his refusal to accept the assignment to the handpress and that
he told George he was quitting. That testimony squared plainly with the statement
which Smith gave the State board and with the testimony of Respondent's witnesses.
It is therefore concluded and found on the basis of the entire evidence that Smith
voluntarily quit his employment.
4. Clyde B. Richardson
Richardson had been employed since September 1956 as a laborer and checker
in the shipping department (department 92). At the time of his separation on
March 3, he was working on a crew under Foreman John O. Norwood, who ad-
mitted that Richardson was the only employee on his crew who had ever worn a
union button.
Richardson gave undenied testimony that on March 1, 1960, Superintendent
Robert Lough inquired if Richardson attended the union meeting on the previous
Saturday night, reminded Richardson that he had gotten some breaks in that many
employees did not get a checking assignment , warned Richardson against cam-
paigning for the Union on company time under penalty of layoff and discharge, and
told him that jobs were scarce.9
Richardson's termination followed hard on the heels of Lough's interrogation and
warning. The only witnesses were Richardson and Norwood, and since Norwood's
explanations of his treatment of Richardson were inconsistent and implausible (as
will be seen), Richardson's testimony, as summarized below, is credited.
Richardson did not report to work on March 2 because of a severe ice storm and
because he was unable to catch his usual ride to work. He did not call in. When he
reported on the morning of the 3d, Norwood informed him that another man was on
ins job and directed Richardson to report to Dixon, checker with another crew, to
load out boxcars. Richardson replied that he was not prepared to bo outside in the
cold because he had not,worn sufficient clothes,10 and Norwood replied, "That is
what they said tell you." Richardson then stated that he would have to "go get
prepared," and Norwood repeated, "That is all I know they said tell you." Though
Richardson admitted he did not ask Norwood 's permission to leave, he checked out
his timecard and left the plant. Because of weather conditions, it took him most
of the day to hitchhike a ride home.
The following day (Friday), Richardson was ill with sinus and again did not re-
port for work, nor did he call in, because his telephone line was down. On Monday
he talked with George in the personnel department, explained the circumstances, and
denied he had quit. George informed him the Company regarded him as having
walked off the job and quit, and gave him a clearance slip. Though the slip _was not
offered by either party and though the date of his separation does not appear,
George's statement shows that Richardson's separation was plainly based on the
fact that he had left the plant on March 3.
Richardson admitted giving and signing the following statement in applying for
unemployment compensation on March 7:
I was employed at The Murray Ohio Mfg. Co., Lawrenceburg, Tenn., from
1-13-60 to 3-2-60 when I was considered a vol. quit . I walked off the iob and
left the plant without permission. On 3-3-60, I was told to go outside and
load and told my foreman that I was not prepared to load out (I do not know
if he heard me) as there was ice and snow so I went Home. When I reported on
3-7-60 (our telephone lines were out 3-4-60), I was eiven this sep. notice. I
did not know my job had been changed until I was told to load out on 3-3-60
as I had been working inside the plant for app. 5 weeks and I didn't understand
why my job was being changed.
8 The General Counsel disclaimed a Section 8(a) (1) violation because of the Section
10(b) limitation
9It is to be noted that Lough, who was not called by Respondent, was found to have
engaged in a series of acts constituting interference , restraint, and coercion in an earlier
proceeding See 122 NLRB 1306 at pp. 1313. 1316-1315
18 Although Richardson testified it was snowing and sleeting that day and that the
highest temperature was 33 degrees, he had dressed as usual for work within the heated
warehouse . He had not worked at loading out boxcars for some 5 weeks.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norwood 's testimony conflicted mainly with Richardson 's on his , denial that
Richardson said anything about not being properly dressed or about leaving to get
prepared , his denial that he informed Richardson specifically that he was to load
out boxcars , and his claim ( denied by Richardson on rebuttal ), that Richardson's
earlier request to go back to loading out was the basis of his action. Those conflicts
might well have . been somewhat difficult to resolve had it not been for Norwood's
attempts to justify the basis and the circumstances of his transfer of Richardson to
another crew.
Thus , though Norwood testified that it was Richardson 's own failure to report on
March 2 which supplied the chance for him to borrow ( and keep ) a man from
another crew, yet as he admitted that he and Gaines (the other foreman ) customarily
exchanged employees , the change plainly could have been made at any time. Though
Norwood admitted further that Richardson had been regular in his attendance, he
claimed that as he did not know whether Richardson would return on the 3d he spoke
to Gaines as early as noon on the 2d and they agreed that the borrowed employee
(Taylor) would keep Richardson's job permanently . Norwood also admitted that
though he had decided on the afternoon of the 2d that Richardson would not be put
back on his job if he reported'on the 3d , he did not tell Richardson the transfer was
permanent , though he intended it to be.
Further doubt was cast on the reliability of Norwood 's testimony by his attempts
to minimize the severity of the weather conditions on March 3 ( a stipulation largely
confirmed Richardson 's description ) and by his claim that the shipping department
employees dressed the same whether they worked inside the heated warehouse or on
outside loading jobs. Finally , Richardson testified on rebuttal that the only request
he had ever made of Norwood was to go back to a checking job (which paid a
higher rate and which was available only at certain times in the season ), and that
Dixon 's crew, to which he was ordered to report on March 3 , already had a checker-
Dixon himself.
Norwood 's unseemly haste in effecting , midshift, the permanent transfer of another
employee to Richardson 's job, despite the latter 's prior regular attendance , his failure
to inform Richardson the transfer was permanent , and the assigning of Richardson,
without notice, to a job for which , because of outside weather conditions, he was
unprepared , were plainly factors which were indicative of an intent to force Richard-
son to quit . When those are viewed against the immediate, background of the in-
terrogation and warning by Lough , Norwood 's implausible explanations , and the
fact that Richardson was the only Union committee member on Norwood 's crew,
the conclusion is plainly warranted , and I find that Respondent seized upon Richard-
son's leaving of the job on March 3 as a pretext to effect his termination , the real
reason for which was his union membership and activities . As the courts have held,
the existence of a nonprohibited reason for discharging an employee does not negate
a violation of the Act if the discharge is actually for a different and prohibited
reason . Bituminous Material & Supply Co. v. N .L.R.B., 281 F. 2d 365 (C.A. 8),
and cases there cited.
I also find that by Lough's interrogation and warning of Richardson , Respondent
engaged in interference , restraint , and coercion within the meaning of Section 8(a) (1).
D. Additional alleged incidents of Section 8(a) (1) violations
William Bivens gave confusing testimony concerning alleged conversations with
Personnel Director Cromer Smotherman and Foreman Harold Rucker which, when
finally straightened out on cross-examination, boiled down to the following: On De-
,cember 3 while he and Smotherman were discussing the question whether he had
quit his job, Bivens brought up the subject of his union membership, and Smother-
man replied that though he did not care who signed union cards or wore union
T-shirts or buttons, those who did so were working for a union organization, and the
Company did not want them working in the plant. Smotherman denied flatly that
he made the statement which Bivens attributed to him, and his denials are credited 11
Billy Mashburn testified that before the December 1959 layoff, Hawk spoke to
him and Hancock, another employee, and that after reprimanding Mashburn for
not shutting off his machine, Hawk stated, "Well you have been flunkying around
-and you better watch yourself . . . I know you have union activities." Hawk
11 Givens admitted that the only time when he talked with Rucker and Smotherman
together was "back in September," when he went to Smotherman's office to clear up a
report that he was a union spy. As the latter occasion was outside the Section 10(b)
period, and as the complaint failed to charge Respondent with any unlawful conduct by
t Rucker , the consideration of Bivens' testimony 'is limited to the alleged December 3 con-
versation with Smotherman.
1
MURRAY OHIO MANUFACTURING COMPANY 153
flatly denied the alleged conversation, and his denials are accepted over Mashburn's
uncorroborated testimony.
C. D. Woodall testified that in January 1960, Superintendent Heller warned him
that if he wanted to keep at work with the Company, he should leave the Union alone
and that if he did not quit "fooling with" the Union, he would go back to the sawmill.
Woodall admitted that he had not worked under Heller for nearly a year, and his
fixing of the time of the conversation was most indefinite. Thus, he testified he thought
the occasion was sometime in January, and on cross-examination he could not say
whether it was early or late, but guessed it was about the middle, of the month.
Though he claimed that it was after he testified about another conversation with
Heller at the prior hearing in January, he could not state whether the new conver-
sation was as early as January 25.12 Heller denied any conversation with Woodall
at all, except "way before the other trial." In view of Woodall's uncertainty in
fixing the time of the alleged conversation, I credit Heller's denials.
Woodall also testified that around February 10, some union cards fell out of his
pocket while he was working and Foreman J. C. Williamson asked what they were.
When Woodall explained that they were union cards to be signed by employees to see
if there could be an election, Williamson cautioned him to put them back in his pocket
and not to let anyone see him showing them around, or he would be fired. Though
Williamson did not testify, Woodall's testimony indicated at worst no more than a
warning against union solicitation on company time. As such, it did not establish
a violation of Section 8 (a) (1).
III. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type contentionally ordered in such cases, as provided under Recom-
mendations below, which I find necessary to remedy and to remove the effects of the
unfair labor practices and to effectuate the policies of the Act.
As the evidence does not disclose the date on which William H. Miller would have
been reached for reemployment, absent the discrimination against him as herein
found, that date must necessarily be established at the compliance stage of this
proceeding.
Because of Respondent's prior record' of unfair labor practices as disclosed in
122 NLRB 1306 and 128 NLRB 184, and for reasons which are stated in Consoli-
dated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend
a broad cease-and-desist order.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Charging Union is a labor organization within the meaning of Section
2(5) of the Act.
2. By discharging Clyde B. Richardson on March 3, 1960, and by failing to offer
reemployment to William H. Miller for the 1960 season, because of their union mem-
bership and activities, Respondent engaged in discrimination to discourage member-
ship in the Charging Union, thereby engaging in unfair labor practices proscribed by
Section 8(a) (3) and (1) of the Act. -
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by 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 having occurred in connection with the
operation of Respondent's business, as set forth in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several States,
and substantially affect commerce within the meaning of Section 2(6) and (7) of
the Act.
5. Respondent did not engage in unfair labor practices by discharging Johnny J.
Carter, James Mathis, or Guy D. Smith, or in failing to reemploy James E. Fowler,
Ralph Durham, or George L. Womble.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case , I shall recommend that Respondent, its officers , agents,
successors , and assigns, shall:
12 The prior hearing was on January 26 and 27, 1960.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Interrogating employees coercively concerning their union membership and
activities and threatening employees with discharge or other reprisals because of their
union membership and activities.
(b) Discouraging membership in the Charging Union, or any other labor or-
ganization, by discharging employees, by failing to offer them reemployment, or by
discriminating in any other manner in regard to hire or tenure of employment, or any
term or condition of employment, to discourage membership in a labor organization.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist the Charging
Union, or any other labor organization, to bargain collectively through representatives
of their own choosing or 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.
2. Take the following affirmative action which I find will effectuate the policies of
the Act.
(a) Offer to Clyde B. Richardson immediate and full reinstatement, and to Wil-
liam H. Miller immediate reemployment, to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and privileges, and
make each of them whole for any loss of pay each may have suffered by payment
to him of a sum of money equal to that which he normally would have earned from
the date of discrimination against him to the date of the offer,of reinstatement or re-
employment, respectively, less his net earnings during said period (Crossett Lumber
Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the,
amounts of backpay due and the rights of Clyde B. Richardson and William H. Miller
under the terms of this Order.
(c) Post in its plant at Lawrenceburg, Tennessee, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the Re-
gional Director for the Tenth Region, shall, after being signed by Respondent's rep-
resentative, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or covered by other
material.
(d) -Notify the Regional Director for the Tenth Region , in writing, within 20 days
from the date of the receipt of this Intermediate Report and Recommended Order,
what steps Respondent has taken to comply herewith.
It is further recommended that unless on or before 20 days from the date of the
receipt of this Intermediate Report and Recommended Order the Respondent notify
said Regional Director, in writing, that it will comply with the foregoing recom-
mendations , the National Labor Relations Board issue an order requiring Respondent
to take the action aforesaid.
It is further recommended that the complaint be dismissed as to Johnny J. Carter,
James Mathis, Guy D. Smith, James E. Fowler, Ralph Durham, and George L.
Womble.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or
in any other labor organization of our employees, by discharging or refusing to
reemploy employees because of their union membership and activities, nor will
we discriminate in any other manner in regard to hire or tenure of employment,
or any-term or condition of employment, to discourage membership in a labor
organization.
WE WILL NOT interrogate employees coercively concerning their union mem-
bership and activities, nor will we threaten employees with discharge or other
reprisals because of their union membership and activities.
SKYLINE HOMES, INC. 155
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to form , join, or assist said International
Union , United Automobile , Aircraft & Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization, to bargain collectively.
through representatives of their own choosing , or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities.
WE WILL offer to Clyde B. Richardson immediate and full reinstatement, and
to William H . Miller immediate and full reemployment , to their former or
substantially equivalent positions , without prejudice to their seniority or other
rights and privileges , and make them whole for any loss of pay they may have
suffered as a result of our discrimination against them.
All our employees are free to become or refrain from becoming members of the
above union , or any other labor organization.
MURRAY OHIO MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
Skyline Homes, Inc. and United Brotherhood of Carpenters and
Joiners of America, Carpenters Union No. 2292.1 Case No.
12-CA-1517. November 14, 1961
DECISION AND ORDER
On June 26,1961, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent 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 Intermediate Report
attached hereto, and finding that it had not engaged in certain other
unfair labor practices and recommending dismissal of the complaint
pertaining thereto. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and briefs in support
thereof 2
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications and additions.
' ,Hereinafter referred to as the Union.
8 The Respondent 's request for oral argument is hereby denied as the record , exceptions,
and briefs adequately present the issues and the positions of the parties.
134 NLRB No. 24.