D. W. Hearn Machine Works

National Labor Relations Board - Board Decisions

Sep 25, 1970

185 N.L.R.B. 736 (N.L.R.B. 1970)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. W. Hearn d/b/a D. W . Hearn Machine Works
and International Union , United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW) and Elvin Eugene Couch. Cases
16-CA-3720 and 16-CA-3830
September 25, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 25, 1970, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in certain,
unfair labor practices alleged in the consolidated com-
plaint and recommending that the consolidated com-
plaint be dismissed in its entirety, and that the settle-
ment in Case 16-CA-3720 be reinstated, as set forth
in the attached Trial Examiner's Decision. Thereafter,
the Charging Party filed exceptions to the Trial Exam-
iner's Decision.
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 these cases to a three-
member panel.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exception, and the entire
record in these cases, and hereby adopts the findings,
conclusions, and recommendations of the Trial Exam-
iner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the consolidated complaint be, and it hereby is, dis-
missed in its entirety.
IT IS FURTHER ORDERED that the settlement in
Case 16-CA-3720 be, and it hereby is, reinstated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J BOTT, Trial Examiner: It having been charged
on October 6, 1969, in Case 16-CA-3720 by International
Union, United Automobile Aerospace and Agricultural
Implement Workers of America (UAW), herein called the
Union, and by Elvin E. Couch, an individual, on December
16, 1969, in Case 16-CA-3830 that D W Hearn d/
b/a D. W. Hearn Machine Works, herein called Respondent,
had engaged in unfair labor practices, the General Counsel
of the National Labor Relations Board issued a consolidated
complaint and notice of hearing on January 30, 1970,
in which he alleged that Respondent had engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of
the Act. The consolidated complaint also alleged that
Respondent had violated the terms of a settlement agreement
in Case 16-CA-3720 On February 4, 1970, the General
Counsel issued an amended consolidated complaint in which
he eliminated certain alleged threats to employees as a
basis for the allegation that the settlement agreement had
been violated but retained them as alleged separate violations
of Section 8(a)(1) of the Act Respondent filed an answer,
and a hearing was held before me in Oklahoma City,
Oklahoma, on March 13, 14, 15, and 16, 1970, at which
all parties were represented. Subsequent to the hearing,
General Counsel and Respondent filed briefs and Mr Couch
filed proposed findings of fact which have been carefully
considered.
Upon the entire record' in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent, D W Hearn, is the sole owner of D.
W. Hearn Machine Works, and is doing business under
that name at a plant in Oklahoma City, Oklahoma, where
he is engaged in the manufacture of machines and automo-
tive parts. During the year prior to the issuance of the
complaint, Respondent sold and distributed products valued
in excess of $100,000, of which products valued in excess
of $50,000 were shipped in interstate commerce.
I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Ii. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
' General Counsel has filed with me a corrected copy of page 503
of the transcript which was furnished him by the court reporter The
The Charging Party has moved that the record be reopened to corrected page accurately reflects the testimony of the witness, and
adduce additional evidence The matter alleged in the motion is not there being no opposition to General Counsel's motion to correct the
within the scope of the consolidated complaint issued herein Accordingly, record, the motion is granted, and the corrected page has been physically
we deny the motion. attached to volume IV of the transcript
185 NLRB No. 100
D W HEARN MACHINE WORKS 737
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Settlement Agreement in Case 16-CA-3720
The events in these cases are related in time at least
to the Union's attempt to organize Respondent's 30 or
so employees in August 1969 William Brooks, who led
the union drive and signed up approximately 20 employees
was terminated shortly after the union activity began, but
upon a charge filed by the Union alleging that Brooks
had been discriminated against because of his union activity,
all parties entered into a settlement agreement which was
approved by the Board's Regional Director on November
28, 1969, in which Respondent, although not admitting
the commission of any unfair labor practices, agreed to
make whole Brooks, who had refused reinstatement to
his former position, by paying him the sum of $985 00,
and by agreeing to post appropriate notices in its plant
stating that it would not thereafter "interfere with, restrain
or coerce" employees in the exercise of their statutory rights.
On December 16, 1969, Elvin Couch filed a charge
of unfair labor practices against Respondent claiming that
Respondent had discriminated against him in violation of
Section 8(a)(3) of the Act. The Regional Director investigat-
ed the charge and having concluded that the earlier settle-
ment had been violated, set it aside Thereafter he issued
the consolidated complaint which includes allegations of
discrimination against both Brooks and Couch as well
as allegations of threats of discharge in violation of Section
8(a)(1) of the Act
It is settled, and it is conceded, that continuing violations
of the Act justify a regional director in vacating a settlement
agreement and proceeding with a complaint which covers
Respondent's unlawful conduct before as well as after the
settlement In determining whether the settlement agreement
has been violated, presettlement conduct may be considered
as background evidence on the question of Respondent's
motive in its post settlement activities i
The threshold question, therefore, is whether there is
"evidence of substantial unlawful conduct following the
settlement agreement,"' but Respondent's total treatment
of Couch both before and after the settlement agreement
may be considered for whatever light it may throw on
Respondent's motive in his case as may its activities in
regard to Brooks or any other employee °
B Alleged Discrimination Against Couch
1 Couch's employment history
The consolidated complaint as amended alleges that since
on or about August 22, 1969, and continuing to date,
Respondent has harassed and assigned Couch less desirable
work, and General Counsel introduced evidence regarding
a dozen or more incidents in which Couch was involved
which he claims support the allegation Some of the inci-
dents, if they were separately viewed, are insignificant,
' Northern California District Council, 154 NLRB 1384, affd sub
nom N.L.R B v Northern California District Council of Had Carriers,
289 F 2d 721 (C A 9), Baltimore Luggage Company, 126 NLRB 1204,
1208
W Ralston & Co, 131 NLRB 912,917
' Northern California District Council, supra
and some of the occurrences were extremely involved, at
least in the telling. Since the whole picture must be viewed,
these factors alone would make the unraveling difficult
enough, but because General Counsel contends and Couch
testified that the essence of his complaint is that the easier
or more desirable work that he used to perform has been
taken from him and he has been left principally with
dirty and unpleasant jobs, the search must begin when
Couch was first employed by Respondent as a custodian
and janitor at $1.10 an hour in 1962
As a custodian Couch's duties consisted of cleaning the
shop and the machines, picking up scrap, emptying oil
waste, filling oil cans, and cleaning toilets Couch also
drove the company truck part-time when first hired, but
this part of his work gradually increased over the years.
Couch was promoted to shipping and receiving clerk
in 1966. He continued to drive the truck and was also
put in charge of the tool room, but his duties in the
latter respect were mainly custodial He testified that Hearn
told him when he promoted him that he "would be wearing
several hats," that he would be "doing shipping and receiv-
ing, inspecting and packing parts, and general work pertain-
ing to the distribution of the parts he manufactured."
Couch said that shipping and receiving was approximately
50 percent physical labor and the rest clerical. During
part of the period when Couch was shipping and receiving
clerk he was also in charge of the stockroom. This assign-
ment began when he was assigned shipping and receiving
duties and lasted 7 or 8 months when he was relieved.
According to him, he was not told that he would no
longer be in charge of the stockroom, but one day Hearn's
son "moved all my things out into the hallway outside
the door and that was it" It also appears from Couch's
testimony that during his stockroom assignment there was
some "confusion" and "conflict" in the stockroom which
he attributed to an "overlapping" of authority. This "over-
lapping" of authority appears to have been caused by Hearn
hiring another employee to do some of the same kind
of work that Couch was doing in the stockroom Before
Couch was moved out this person had assumed most of
his duties.
Couch testified that he was "shipping clerk number one"
when he was put in charge of the stockroom, but on
October 1969, Kay Whiteman had become, in Couch's
own words, "shipping clerk number one," and he was
now number two. It also appears from Couch's testimony
that his inspection duties evaporated during his stay in
the stockroom.
While Couch was assigned to the shipping room he
had other duties besides shipping and receiving. He contin-
ued to drive the truck, which included, in addition to
transporting materials to and finished parts from the plant,
hauling trash to the dump and scrap to junk dealers
He also agreed that he did "some yard work, trimming
the bushes around the building" and "some custodial work"
like cleaning stopped up drains. Also, "if directed to,"
he would burn trash, empty burner barrels, and do occasion-
al cleaning and painting.
After Couch was moved from the stockroom he was
required to count parts, sweep and mop the halls, clean
machinery, and paint "more frequently" than he had been
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while he worked in the stockroom. This, he said, was
a small part of his duties, and he performed these assign-
ments not routinely, but only when directed to
One of Couch's principal tasks after he left the stockroom
was banding and addressing boxes of merchandise for ship-
ment. He was gradually relieved of this work between
December 15 and 31, 1969, and these duties were taken
over by Irvin Shoals. Couch still drives the truck and
counts parts which he then transports to employee work
stations
2. Couch's union activities
Brooks, whose discharge was the basis for the settlement
agreement in the first case, successfully circulated union
cards among the employees on August 13, 14, and 15,
1969. Couch assisted Brooks and signed a card himself
Hearn testified that he was informed on the night of August
15 that Couch was helping Brooks pass out union cards
at the plant. The Union filed a petition for an election
with the Board on August 20, and the election took place
on October 9. Couch wrote and distributed letters to employ-
ees in support of unions to counter Respondent's antiunion
communications to employees before the election, and he
also served as the Union's observer at the election. On
November 13, Couch, with company knowledge, took time
off from work to appear as a witness in the case involving
Brooks which was scheduled for hearing that day, but
cancelled when the case was settled
3. Specific incidents principally relied
upon as evidence of harassment
a. Coffee drinking
On August 22, 1969, as Couch was standing in his
work area drinking a cup of coffee, Hearn came by and
told him that he did not want him drinking coffee except
on breaks or lunch hour. Couch replied , "All right, Mr
Hearn ," and has not done it since He testified that ever
since the coffee machine was installed in the stockroom
in 1968 he has seen machine operators carry coffee to
their machines and drink it while the machines are running,
but nothing has been said to them . Hearn testified that
he had never seen Couch drink coffee during working
hours before this time, that it is his policy not to permit
coffee drinking by anyone except on their own time and
that he does not knowingly tolerate violations of this policy.
b. The Perfection American misshipment
On or about October 1, 1969, 2,000 synchronizer rings
were shipped to the Perfection American Company by
mistake and were lost and could not be accounted for
until the customer notified Hearn of their receipt about
10 days later. On October 13, Hearn handed Couch an
interplant memorandum referring to the error and warning
Couch that, "Further gross negligence will not be tolerated."
Couch told Hearn at the time that he was not responsible
for the shipment, but he said that Hearn maintained that
he was.
According to Couch, the Perfection American shipment
which erroneously included the 2,000 rings was ready,to
go out at 4 30 p m when he usually stopped work, so
Kay Whiteman told him that he could leave and she
or one of the other employees who were working late
would take care of the shipment The bill of lading from
which cartons are addressed was not ready when he left
at 4 30, Couch said, but he added that in some cases
he had addressed cartons from the shipping order or from
memory
Shortly after the Perfection American shipment left the
plant it was discovered that the 2,000 rings were missing.
Both Couch and the stockroom girl were instructed to
find them and they searched the plant. The stockroom
girl recalled packing the merchandise, but at this time
Perfection American had not reported receiving the ship-
ment and Couch had no theory at the time about where
the missing cartons might be. When notification came from
Perfection American, Couch then remembered that the
Perfection American shipment had been dispatched on the
day the parts were missed, but he maintained that since
he was not present at the shop at the time and since
Kay Whiteman "had assumed responsibility," he had no
knowledge that the parts had gone to Perfection American
and was not responsible. Couch admitted, however, that
when he got the written reprimand from Hearn he did
not tell anyone that Kay Whiteman "had assumed the
responsibility" for the shipment. Couch also agreed that
whoever addressed and shipped the cartons in question
was responsible for their loss, and he conceded that he
frequently relied on his memory and not written documenta-
tion in stenciling addresses on cartons for shipment to
Perfection American.
Hearn testified that Couch told him the parts were missing
and that he had banded them the previous evening On
further investigation Whiteman told him that she was sure
she had packed the parts for she recalled putting another
customer's order number on the boxes. Hearn said that
his first reaction in talking to Whiteman was that she
had actually forgotten to pack the shipment, but when
Perfection American notified him that the parts had been
found he concluded that the error was Couch's.
As a further indication of harassment, General Counsel
contends, and Couch testified that after this incident he
was not supplied with the same kind of information from
the office to assist him in stenciling customer addresses
on boxes as he had been before, and this made his job
more difficult Courch's testimony on this issue is confusing,
somewhat, if not flatly inconsistent, and contradicted com-
pletely by Hearn. Regardless of my ultimate assessment
of Hearn's actions in holding Couch responsible for the
misshipment, I find that there is no evidence of any substance
to support the claim that Respondent made a change in
its procedures after the incident which actually deprived
Couch of information that had regularly been supplied
him before. I also find in this connection that Lyn Thornton,
an office clerical, did not ignore Couch's written request
that he be furnished additional information, and that, as
she credibly testified, she passed it on to Hearn who ignored
it because he did not want Couch putting customer names
and addresses on shipments until he received the bill of
lading covering the shipment.
D W. HEARN MACHINE WORKS 739
c The truck incident
Couch had driven the company truck for years and
normally made arrangements to have it serviced. He testified
that approximately 10 days before November 1 he concluded
that the vehicle ought to be checked for antifreeze, oil
and grease, and other services and so he mentioned it
to Hearn who referred him to Foreman Barfield. Barfield
told Couch that he had made arrangement for service
with a station in Oklahoma City. About November 1,
1969, Couch had the truck serviced and turned the station's
bill into the Respondent's office. Sometime later Hearn
asked him what the bill was for, and he told him. At
that point, Hearn instructed Couch not to have any other
work done without a requisition. Couch indicated agreement,
and he then noted that since winter was coming he had
had the station check the heater and defroster and they
did not work properly Hearn replied, "Don't worry about
it, you probably won't be driving the truck then."
Hearn admitted making the remark about Couch's future,
but he said that Couch had been making derogatory remarks
about the management of Hearn Machine Works to one
of Hearn's vendors and what was in his mind when he
made the statement was the thought that if Couch continued
to make these remarks he would put him in a position
where he would no longer be driving the truck. Couch
did not deny making the remarks attributed to him
d. Painting the factory desk
There is no dispute about Couch having painted a wall-
hung factory desk at Foreman Barfield 's request on Novem-
ber 3 and refusing to sand and repaint it on November
4, although ordered to do so by both Barfield and Hearn.
The incident was offered not only as evidence of harassment
under the theory that this was "dirty " work that Couch
had not done since he was promoted to shipping and
receiving clerk, but also because during the affair Hearn
made a statement to Couch about firing him which is
alleged as a threat in violation of Section 8(a)(1) of the
Act
Couch testified that he painted the desk on Barfield's
orders on November 3 "in my spare time between banding
and addressing cartons" and the job "was quite good,
wasn 't anything wrong with it , except that it didn't seem
to suit Mr . Hearn" who asked him who had ordered
him to paint it . On the following day Barfield told him
to sand and repaint the desk , and Couch said he answered,
"No, I won 't sand and repaint the desk. I don't have
to do unreasonable things that you ask me to do ." Couch
said he then took from his pocket a pamphlet entitled
"Know your rights . What your supervisor cannot do,"
which he had received from the Union , and asked Barfield
if he had ever read i t. When Barfield said he had not
and was not going to, Couch said he replied "Well, I'm
not going to sand and repaint the desk."
Barfield told Couch that he was "going to do whatever
I tell you or else ," and Couch asked if that meant that
he was fired, but Barfield said , "No, but I ' ll see what
Mr. Hearn has to say about it."
In about 5 minutes Hearn appeared , Couch said, and
asked him if he had refused to comply with Barfield's
order Couch admitted that he had and showed Hearn
the UAW pamphlet. He accused Hearn and Barfield of
"trying to run him off" and insisted that he was not
going to be "run off." Then, he said, "one word led to
another." Among the things he recalled were Hearn's insist-
ence that he follow Barfield's orders, to which he responded
that he "would do the things which (he) was supposed
to do." He told Hearn that he was "not going to run
(him) off like (he) did Bill Brooks and Letha Breed,"
and Hearn retorted that, "At least Letha Breed was woman
enough that she quit." Couch then informed Hearn that
he "was a man when you were still in rompers, a member
of a union when he was still in grade school" and one
time president of his local union. Somewhere along here
Hearn contended that "dirty labor unions" had got Congress
to pass a law which prevented him from running his business
as he wished, and if it were not for the National Labor
Relations Board he would fire Couch "so quick it would
make (his) head swim " Couch said that Hearn also stated
that he "would like to see you crawl out that door on
your belly," and that his reponse was that he knew it,
but was not going to leave unless Hearn fired him Hearn
countered by stating that he was "not going to fall into
that trap."
On the next day, November 5, Couch said he sanded
and repainted the desk, even though he had to postpone
some of his other work
Barfield's and Hearn's versions of the desk painting epi-
sode are basically in accord with Couch's, but contain
some variations which color the incident and have some
bearing on motivation.
Barfield testified that Hearn had previously indicated
to him that the desk needed painting and when he noticed
Couch idle one day he asked him to do it. Couch complied,
but he used primer paint which Barfield objected to On
the next day, Barfield voiced to Couch his dissatisfaction
with the primer paint, explaining that such a medium
was used only on machinery, and showed him a can of
green enamel paint to use. To this point Couch made
no objections or comments in regard to his new instructions
Later in the day Barfield saw Couch " idle again," he
said, and asked him if he was going to repaint the desk.
Couch uttered a flat "No" which shocked Barfield, and
he asked him again. Couch again refused, and Barfield
stated credibly and with contradiction that Couch was
becoming "very hostile and raising his voice real loud"
as well as waving his arms as if he "was in defense of
himself." At that point Couch displayed the UAW pamphlet,
and Barfield added to Couch's account of this part of
the incident only the observation that Couch "shook" the
pamphlet in his face
According to Barfield, he did not seek Hearn's assistance,
but Hearn overheard the loud voices and asked what the
problem was. Barfield explained what had happened. Hearn
then asked Couch to follow Barfield' s instructions, but
Couch refused in a "loud and hostile tone." Barfield
said that to that time Hearn's voice was "normal" and
he instructed Couch either to do the job or go home.
Couch answered that he would neither perform the work
or leave the plant and advised Hearn that if he wanted
him to leave he would have to fire him. This was the
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first time that firing or discharge was mentioned by anyone
and it was preceded by Couch's shaking the same pamphlet
in Hearn's face that he had in Barfield's
Barfield agreed with Couch about Hearn mentioning
the Labor Board in connection with a reference to firing
Couch, but he said that Couch had first accused Hearn
of assigning him "dirty jobs" because of his union affiliation
in order to force him to quit his job. Couch said this
would not happen and that Hearn would have to fire
him It was then that Hearn said he could not under
the law fire Couch because of his activities, for if he
did Couch would file an unfair labor practice charge with
the Board. He said Couch replied that he would and
that he would "do that even before I go home "
Hearn went back into his office, and Barfield said Couch
stood idle for about 45 minutes. Hearn returned and read
a memorandum to Couch on the subject of "insubordina-
tion" in which he recounted what had just happened and
concluded by warning Couch that "Any future refusal
to work on such jobs will result in your being discharged
from the company." He then handed Couch the document.
The next day Couch sanded and repainted the desk.
To Couch's and Barfield's accounts of what happened
on November 4 Hearn added these items essentially. In
his conversations with Couch both he and Couch were
"quite angry" and were engaging in a "shouting match"
which he characterized as "disgraceful " Couch mentioned
quitting or being fired, and Hearn conceded that he said
he could not tell him to quit and that if he fired him
he would file an unfair labor practice charge He also
admitted that the Labor Board was probably mentioned.
His remark about Couch "crawling out the door" was
made after he spoke to Couch the second time and reminded
him that he had treated him kindly over the years, had
provided opportunities for him which he had not made
the most of and had made every effort to get along with
him He then commented that Couch's return for such
treatment seemed to be his unreasonable conduct. It was
then that Couch stated, "You can't give me a position"
and added that he was more a man than Hearn would
ever be Hearn then told him that if he were "half a
man that he'd crawl out the shop on his belly, the way
he'd been acting "
e The table cleaning incident
Ten days later , on November 14, while Couch was count-
ing parts , Barfield asked him to clean some drill press
tables. Couch said that since he was busy he continued
with what he was doing until Barfield returned in about
45 minutes and asked him if he was not going to do
the work. He said he replied that he was not because
it was not his job to do it, and if Barfield wanted "to
make anything out of it, we'll take it to the National
Labor Relations Board." Barfield ordered Couch to clean
the tables or go home, but Couch said he would not.
As in the desk painting incident, Couch justified his
refusal to carry out his supervisor's orders on the ground
that table cleaning had not been part of his job as shipping
and receiving clerk and because it was the job of the
"clean -up people," two of whom were present at the time.
Hearn testified that he had noticed the drill press tables
in an aisle in the way of traffic and asked Barfield to
have someone clean them and put them back in storage.
When Barfield told him later that Couch had defied his
instructions and threatened to take the matter to the Board,
Hearn decided to take no action, even though he felt
that inaction would injure his relationship with his supervi-
sor, because he had a settlement agreement in the Brooks
case pending before the Board . He said he told Barfield
to try to get along with Couch to avoid any labor problems.
Hearn actually executed the settlement agreement in Brooks'
case that day.
Barfield's testimony is basically like Couch's in regard
to this incident, but he added that Couch was doing no
productive work of any kind when he asked him to clean
the tables. I credit Barfield's version in respect to Couch
being idle in this instance and in the previous incident
when Barfield gave him his instructions.
f. Couch is reprimanded for washing up early
It is contended that at quitting time on the same day
that Couch was directed to clean tables and refused he
was the victim of additional discrimination by having his
privilege of clean-up time withdrawn. Couch testified that
on November 14, "At 4:25 I finished counting all the
parts that would go into a container . . . and made out
the form . . . and then I went at 4:28, which was two
minutes till quitting time, I went to the washroom , washed
my hands and joined the other employees at 4 29 back
at the lunch table near the time clock. Since it was Friday,
why, all the employees were waiting there to get their
pay checks and clock out and go home, I joined them.
Mr Hearn singled me out and said, 'I don't want you
washing up on my time' He said, 'You continue counting
parts until the bell rings to go home.' " Couch replied,
"Yes, Mr. Hearn."
There is a bell that rings at 4:20 at Hearn 's, called
the cleanup bell, to announce to the machine operators
and others in the machine tool section that production
may be stopped and the area around the machines cleaned
up. There are certain employees who are not supposed
to clean up when the 4:20 bell rings, and Couch admitted
that he is one of them . Hearn also admitted that some
of the machine operators who clean their machines at
the 4:20 bell probably "get the jump" on the washroom
before 4:30. Couch pointed out, however, that of the 15
odd employees at the clock at quitting time on November
14, 3 of them were not affected by the 4:20 cleanup bell,
meaning they had no more right to be there than he
had. Couch also stated that he knew exactly what time
he quit work and entered the washroom "because previously
I had been, let's say instructed to work and to carry
out these jobs that I was doing until the end of
the . . work." He also testified, however, that he
checked the clock because he "was aware that I was being
harassed."
Hearn testified that he saw Couch heading for the wash-
room as soon as the 4:20 cleanup bell rang It occurred
to him that Couch had no machine to cleanup and employees
were not supposed to wash their hands anyway until after
the final bell. As Couch left the washroom, Hearn joined
D W HEARN MACHINE WORKS
him and walked with him toward the timeclock, telling
him that in the future he should wash his hands after
the final bell because he was not operating a machine.
Couch merely replied, "Aye, aye, sir."
g Emptying a barrel of waste
In late November, Hearn told Couch to emply a barrel
filled with scrapings like steel wool from the grinder. Couch
said he did it, although it was not his job, but the job
of cleanup boys and porters two of whom were "on the
job at that time."
Hearn testified that emptying the waste barrel was not
something that only porters and cleanup boys were expected
to do Couch admitted that after he was moved out of
the stock room he emptied barrels like this from time
to time "when asked to do so," but he said that in this
instance he was being interrupted in other work he was
performing, the barrel had remained emply for 3 weeks,
and other employees should have taken care of it.
h. Rearranging the materials in the storage area
Couch testified that on December 11 Barfield asked
him to get some lumber down from the storage area.
When he went for the lumber, Barfield and Hearn were
present looking over the stored material. Hearn commented
on how cluttered the area looked and Couch agreed that
it did. Not long after, Barfield asked Couch to rearrange
the materials in the area, which he did. Couch said this
used to be his work when he was custodian, but had
not been since that time. On cross-examination, Couch
admitted that after he had been taken out of the stock
room he had stored materials in the storage area and,
"when I was directed to," had rearranged the materials
already stored there
Barfield testified that since he has been foreman Couch
has stored and removed materials from the storage area
and other employees seldom visit it. Hearn added the
information that he found the area a mess and told Couch
that it seemed to have been his doing
i The Freedco incident
Couch was still performing shipping and receiving duties
on or about December 11, 1969, when a shipment of
transmission parts to Freedco was delayed 'over night
because the number of boxes on the load did not conform
with the bill of lading. Couch testified that Foreman Barfield
"criticised him" the next day by instructing him to take
one case from the delayed shipment and place it in the
stock room with instructions to the girl in the stock room
to hold it until it could go with another case as one
single order and shipment.'
A few days later the other case of transmission parts
was ready for shipment to Freedco, and Couch, unable
' It was not clear at the hearing and it is not now clear from General
Counsel's brief whether Barfield's "criticism" of Couch was part of Couch's
"harassment " In any case , Hearn made no point of it when he spoke
to Couch later, and my review of the record and Respondent's extensive
treatment of the point convinces me that Couch might have been responsi-
ble for the delay in shipment
741
to find the carton he had placed back in stock, was packing
a new carton from stock when Hearn approached and
asked him what he was packing When Couch informed
Hearn that it was a Freedco order, Hearn asked what
had happened to the box that had been put in the storeroom,
but Couch said he did not know Hearn inquired of the
stock room girls who told him that it had been in the
room, but had disappeared.
Hearn searched for the box, but it was never found.
During the afternoon while he was looking for it he spoke
to Couch again and complained that the "box dust simply
doesn't get up and walk off. I said it had to be moved
by someone or stolen, because it dust can't disappear with
no reason." He admitted that he might also have made
a statement to Couch, as Couch had testified, that, "I
suppose this isn't one of your mistakes either" He also
recalled that Couch replied that he would take the blame
for his own errors, but resented being blamed for the
mistakes of others. Hearn took no action against Couch
in the Freedco matter
I find no evidence in connection with this incident that
Hearn was accusing Couch of stealing, as General Counsel
suggests. Whether Hearn's remark about this not being
one of Couch's mistakes either is more significant will
be treated later in analyzing Hearn's and Couch's reactions
to each other over a period of time.
Between December 15 and 31, 1969, Couch was gradually
relieved of the duty of addressing boxes for shipment.
He also testified that since December 31 a new system
of addressing cartons utilizing preprinted address labels
has been in effect. It also appears that Irvin Shoal, who
was hired in April 1969, does the box banding in shipping
that Couch used to do. Couch spends most of his time
now driving the truck and counting parts.
j. Counting parts
Parts arrive at Respondent in large quantities and unfin-
ished form for later milling and machining, and must
be counted . Couch concedes that Hearn 's long standing
instructions were that parts should be counted by picking
them up two in one hand and three in another and dropping
them in groups of five into a container . This method
of using multiples of five makes it easier to avoid errors.
A few weeks before January 17, 1970, Hearn, having seen
Couch counting parts by using only one hand , had told
him that he had hired a man with two hands and instructed
him to count in the approved manner . Couch testified
at the hearing that he merely replied , "Yes, Mr. Hearn,"
but in a letter he sent the Board on January 17, 1970,
he stated that his answer to Hearn 's criticism was "You
hired a man who also has a brain ." He added that Hearn
said , "You are not using it," to which he replied, "I
am using my brain as well as you are using yours."
Couch testified that he was counting parts again on
January 17, 1970, in a crouched position again using a
technique contrary to Hearn 's instructions, Hearn saw him
and after commenting that Couch was making a WPA
project of the job, told him to "Get up off your rump
and count those parts as I directed you to, three in one
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand and two in the other, and place them in the pan
as directed " Hearn then proceeded to demonstrate how
he wanted the assignment performed. There was a substan-
tial amount of testimony about whether Hearn's method
would have required Couch to assume a position which
would have hurt his already sensitive back I credit Hearn's
statement that such was not his intention and that Couch
could have used mechanical aids to lift the containers.
During the second part-counting incident, the first episode
was referred to by Couch, he said. There is some conflict
about what statements were made in the first and second
cases as well as a relatively minor conflict about the sharp-
ness of Couch's replies. It is unnecessary to determine
when each particular statement was made for Couch agreed
that they were in fact made. Similarly, although I find
that Couch said more than, "Yes, Mr Hearn," when Hearn
told him how he wanted the job performed, and said
at least that he was using his brain as much as Hearn
was, it is unnecessary to go further, for if Hearn's instruc-
tions were proper and not discriminatorily motivated,
Couch's rudeness and insubordination were apparent in
any case. Hearn's account of the incidents are otherwise
substantially in accord with Couch's. He said he was "exas-
perated" by seeing Couch openly defying previous instruc-
tions and made the remarks Couch said he did He denied
that he intended that Couch should perform the work in
an awkward fashion, or lift heavy weights without assistance
Hearn added that when Couch responded to his criticism
by comparing the use of his brain to Hearn's use of his,
Hearn replied, "Well, at least I will be able to tell you
what to do," and walked away
Hearn entered the office Employee Keeling testified credi-
bly and without contradiction that after Hearn had entered
the office, Couch walked by him, paused and said, "If
that son-of-a-bitch comes out here one more time, I might
deck him, I don't know." Later that afternoon, Keeling
told Hearn what Couch had said about him. Keeling also
said Couch had "temper tantrums" and seemed to get
upset when things went against him.
Respondent has changed its method of checking the
accuracy of part deliveries They are no longer counted
by hand, but are weighed.
As bearing on the question of whether Couch's conflicts
with his superiors are of his own making there is evidence
that he was impulsive, quick to resent interference and
somewhat short tempered before there was any union activity
at Respondent's plant Changes in Couch's duties in the
stock room over the years have already been alluded to.
Couch mentioned "confusion" and "conflict" in the stock
room and some of it from his own testimony appears
to have offended him. He stated that there had been "consid-
erable friction pertaining to the Shipping Department over
the years."
Hearn testified that in July 1969 Couch rammed a stock
room clerk in the back with a string of boxes loaded
on a conveyor, and another shipping clerk told him that
Couch threw things in the stock room When another
employee quit, she told Hearn that she was afraid that
Couch would lose his temper and strike her with some
parts. Former employee Lyn Thornton testified that Couch
would lose his temper, swear, and throw things. Employee
Miller gave specific examples of what he called Couch's
"temper tantrums "
Early in August 1969 Couch asked Hearn to come with
him on a Monday morning to show him "what these
damn people do to me." Hearn followed him to the conveyor
area where he found 12 or 15 boxes neatly stacked on
a pallet, ready to be taken to the stock room Couch
complained to Hearn that, "these boxes clutter up my
shipping area, and you're going to have to stop making
them work on Saturdays around here or I'll have to work
my whole weekend so that I can work on Monday and
have the boxes out of the way."
Hearn told Couch that it would take him only five
minutes to move the boxes and solve the problem, but
he said Couch became insolent for the first time and shouted
that, "You couldn't move those boxes in two hours " Hearn
said that Couch's tone was such that he told him that
in his position he did not have to argue with him, but
to just move the boxes. This testimony is uncontradicted.
Shortly after the union activity began there was an occa-
sion when Couch, thinking that the girls in the stock
room were giving him a "rush act," blocked the conveyor
so that they could not push more than a certain number
of cartons out to him to band. Whiteman, who Couch
had described as "shipping clerk No. 1" and his "superior,"
then pushed all the boxes out to the end of the conveyor,
but Couch pushed them back so that he could do this
work on the conveyor. There is no contention that this
"conflict" had anything to do with union activity
C. Alleged Threat to Letha Breed
This incident was offered to establish an independent
violation of Section 8(a)(1) of the Act and as bearing
on Hearn's motive for his activities in Couch's case. It
will also be recalled that during the desk painting incident
in November 1969 Couch accused Hearn of trying to "run
him off" like he did Brooks and Breed, meaning, in Breed's
case, forcing her to quit. At the outset, however, it must
be emphasized that General Counsel does not contend
that Breed was harassed in any way or forced to quit.
Breed started to work for Respondent in April 1969
as a machine operator She said she tried to promote
the union by talking with other employees, signing a card,
and attending the three meetings the union held for Respond-
ent's employees.
On October 23 (Breed thought it was October 16) after
a conversation with Foreman Barfield about the way she
was recording production, Breed said she decided to talk
with Hearn about it.
When Breed saw Hearn he asked her what her trouble
was and she replied, "Well, I would like to continue to
work here but I would like for you to pull Jeff off."
Hearn replied that he had spent many hours and dollars
on training supervisors and had no such intention Breed
testified that she then said, "I'm sorry you feel that way
Mr. Hearn. I know what it's all about. It's over the election.
I think everybody is entitled to their opinion because this
is the good old United States and you can say what you
want." She said Hearn answered that he could not say
what he liked or disliked, which caused her to ask, "In
other words, you would like me to quit." Hearn replied,
D W HEARN MACHINE WORKS 743
"I cannot fire you, but if you knew how I felt you would
quit." Breed said she then commented that she was sorry
that Hearn felt as he did, that she did not, and to prove
that she had "no hard feelings, I will continue to operate
the machine."
Breed said that she and Hearn both mentioned earlier
more difficult times, and she assured him that before she
"would see your business go down, I would crawl on
my hands and knees out of this building" But, again
to prove to him that she held no resentment against him,
she said she "would continue to work." According to
Breed, at that time Mrs. Hearn walked in and said, "What
do you have to prove to us? You don't have to prove
nothing to us. The machine is stopped out there, and
it should be in operation. I think you should go to work."
Breed went back to her machine and decided to quit.
She asked Barfield for her check and W-2 forms. Later
that day, Barfield asked her for a written statement of
her reason for leaving. She signed a statement that she
had quit voluntarily, and Barfield gave her a written recom-
mendation.
Hearn's version of their conversation is much like Breed's
except that he testified that Breed indicated that Barfields'
treatment of her was based on her union activity and
Hearn told her he did not know what she was talking
about. Breed then asked him if he wanted her to quit,
and he told her he had no intention of asking her to
quit Breed said, "How can I make it up to you?" and
Hearn told her he did not know what she had to make
up to him. Breed asked him again what she could do,
and he said, "Do anything you like," and walked out
of the room.
I credit Hearn's version and I find that he did not
tell Breed that if she knew how he felt she would quit
her job. Breed was not harassed by Barfield as she said
she thought she was, for it appears that the conversation
she had with Barfield just before she went to see Hearn
was about her desire to take a week off from work to
go hunting Barfield indicated that the request would not
be granted, but offered to let her see Hearn about it.
The conversation that followed with Hearn, therefore, was
triggered by Respondent's refusal to accede to Breed's
request. This finding is based on Barfield's credited testimo-
ny on this point, Breed's admissions on cross-examination
that her conversation with Hearn that day included a
request for time off to go hunting, Shoal's credited testimony
that Breed told him on the day she quit that she intended
to get time off to go hunting or quit, Miller's testimony
to the same effect, and Breed's almost immediate resignation
when she returned to her station. In my opinion, Breed's
disappointment in not having been permitted to take time
off caused her to give an erroneous interpretation to Bar-
field's conversations with her and to the meaning of Hearn's
conversation with her thereafter.
D Analysis, Additional Findings and
Conclusions in Couch's Case
The foundation for Couch's case must be that he was
treated differently after Respondent learned that he had
helped Brooks organize Respondent's employees. As in
any other case of alleged employee discrimination by dis-
charge, rather than harassment as in this case, certain
factors, such as, the nature of the treatment viewed in
the light of ordinary employment practices, its timing,
how it compares with the way Respondent treated this
employee before he became active in the union, how
Respondent deals generally with other employees, Respond-
ent's attitude toward unionism at its plant and, of course,
any admissions of motive are relevant considerations in
deciding the ultimate issue.
In Couch's case, General Counsel bases his case primarily
on changes in Couch's work assignments and withdrawal
of the better parts of his job content after he became
active in the Union He also points to Hearn's attitude
toward Couch when he came in contact with him in the
many incidents on which General Counsel builds his case
of discrimination, and, of course, he does not overlook
Hearn's alleged threats to fire Couch and get Breed to
quit as admissions of what really motivated him. After
careful analysis of all of these contentions and the evidence,
including the evidence in Brooks' case, I find that basic
parts of the foundation needed to support General Counsel's
theory are not present. Additionally, although certain actions
of Respondent are suspicious and Hearn himself might
seem to have overreacted in connection with certain inci-
dents in which Couch was involved, his actions and state-
ments in regard to Couch when considered in the light
of Couch's own actions and statements do no appear odd
or unreasonable enough to warrant drawing an inference
from them alone that union considerations motivated them.
The assignments which Respondent made to Couch after
August 15, which General Counsel contends were the kind
of menial tasks that he had not performed after he was
promoted from custodian and must, therefore, have been
imposed on him in retaliation for his union activity, were
in some cases exactly the same and in others substantially
like the jobs he continued to do when directed to after
he was made shipping and receiving clerk and before he
engaged in any union activity
Emptying a barrel of waste, cleaning tables, rearranging
the storage area, and painting, which purported to dramati-
cally portray the demeaning assignments with which
Respondent harassed Couch, had admittedly been done
by him after his promotion. As found earlier, Couch contin-
ued to do those chores when he was told to, and after
he was moved out of the stock room, which was a long
time before any union activity started, he concededly did
them "more frequently." It was not a departure from
past practice and abnormal on its face, therefore, for
Respondent to ask Couch to empty a barrel, clean two
drill press tables and store them, rearrange the storage
area, and paint a desk after he became active in the Union.
Even after Couch was promoted to shipping and receiving
in 1966 the content of his job was not fixed and unchanging,
but was in fact altered in certain respects before the advent
of the Union. As shipping and receiving clerk, Couch
was also in charge of the stock room, but sometime during
his career another employee was hired to do the same
work and he was gradually deposed He also had some
inspection duties at one time, but these also evaporated,
and, more importantly, in his own words, although he
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was at one time "shipping clerk number one," Kay White-
man gradually superceded him and became "number one "
This lack of permanence and continuity of job content,
taken with the variety of other tasks which Couch continued
to perform after he was assigned to shipping and receiving,
blunts the charge that the transfer of the rest of his shipping
department duties to another employee in late December,
1969, was based on new, that is to say, union considerations
It also appears that Shoals , the employee who apparently
is now doing as part of his duties the banding and stacking
of boxes that Couch used to do in shipping and receiving,
was hired by Hearn to assist Couch. I credit Hearn's
and Shoal's testimony that Couch has been uncooperative
with Shoal, and this "conflict" and Couch 's loss of the
rest of his shipping duties is reminiscent of his displacement
of another employee in the stock room in 1967.
In 2 of the 12 or more incidents which it is argued
demonstrate harassment , General Counsel contends that
Couch was unfairly criticized for an error for which he
was not responsible In the Perfection American incident,
however, the evidence , as I have set it out above, shows
that Hearn did make some investigation to determine who
was responsible for the lost shipment , that he first thought
that Whiteman , another employee, had erred , that Couch
did not tell him that Whiteman "had assumed the responsi-
bility" for the shipment and that it was possible that
Couch had improperly addressed the shipment from memo-
ry In these circumstances , whether another employee had
in fact made the error is irrelevant Hearn 's motive, not
his judgment , is in issue, and since his criticism of Couch
does not appear to be unreasonable in the light of the
facts he had at hand , his action is not evidence of discrimina-
tion . It also must be noted that an extension of this episode
which it was claimed showed a type of whipsawing, that
is, thereafter depriving Couch of shipping information in
order to make his job more difficult , has been found not
to be the fact
Similarly, in the Freedco incident where a box of parts
was misplaced and never found , it is not "obvious," as
General Counsel contends, that the loss was not Couch's
fault But in any case, Hearn took no action against Couch,
but said, perhaps caustically , that he supposed that this
was not one of Couch's errors. Couch and Hearn had
had a few words between them before , and Hearn's comment
does not seem out of character or seriously offensive In
any case, Couch had handled the box and Hearn reasonably
could have believed that he was at fault in this instance
too
Couch was reprimanded by Hearn in January 1970
because he was not counting parts the way Hearn wanted
them counted , but Couch admitted that this was so and
that Hearn had reprimanded him before for doing the
same thing . I have also found that the record will not
support a finding that Hearn intended that his procedure
would require Couch to stand or bend uncomfortably
Any annoyance expressed by Hearn during this episode
was adequately explained , justified by the facts and in
harmony with the remarks that Couch made to Hearn.
During the course of certain of the incidents involving
Couch statements were made to him indicating that Hearn
wanted him to quit or hoped to get rid of him, and
from this it is argued that Hearn revealed that his motive
was improper However, since Hearn 's testimony that Couch
had been making derogatory remarks to one of Hearn's
vendors was uncontradicted , his explanation that he had
in mind taking Couch off the truck if this continued cannot
be brushed aside . Although I thought Foreman Barfield
blew up the truck incident into almost unrecognizable pro-
portions , Hearn 's simple request , as the owner of the firm,
that Couch get a requisition for anything other than gas
and oil , cannot be magnified, and Couch did not seem
to think it too important either.
Hearn 's criticism of Couch for drinking coffee on company
time when at least some of the machine operators occasional-
ly drink coffee while their machines are running , and his
direction to Couch not to wash up before the final bell
rang, although a few other employees appear to have beaten
the bell , seemed to be the kind of overreactions which
needed explaining . Hearn did explain his position, however,
and whether or not his explanations completely dissolved
the question mark which hung over his actions, Couch's
own conduct and reactions in other areas and in other
contacts with Hearn must be weighed in evaluating Hearn's
motives
Two weeks before Hearn told Couch he should continue
to work until the final bell rang, Couch and Hearn had
had their most dramatic confrontation in what Hearn
described as a "disgraceful" shouting match which followed
Couch 's refusal to repaint a desk As found above, Couch
had done work of this kind before without protest, but
this time he waved a union pamphlet in Hearn 's view,
as he had in Barfield 's and , in a loud and hostile voice
reiterated his refusal . If this kind of conduct was not
enough to make Couch stand out from other employees
and attract Hearn 's attention , on November 14, Couch
decided that he would not clean tables as directed to
by Barfield Barfield informed Hearn who told him to
try and get along with Couch to avoid additional labor
problems, and thereafter he took no action in regard to
Couch's insubordination . It is apparent from the record,
and it must have been apparent to Hearn , that on November
4 Couch had decided to put in issue and challenge his
employer's authority to direct his work , and that on Novem-
ber 14 he was extending his challenge . Couch told Barfield
to take the matter to the Labor Board for a test if he
did not like his conduct , and he candidly admitted that,
since he thought he was being harassed and that certain
things he was being asked to do were not part of his
regular duties as set forth in certain job descriptions, he
would made a judgment in each case as to whether an
order was proper or not. In his words, "Well, in the
ultimate decision its for me to decide and it's for Mr.
Hearn or I to either-him to fire me or me to quit."
In this context , Hearn 's quiet and mild suggestion at quitting
time, as he and Couch approached the area where employees
received their pay checks, that Couch work until the final
bell rang no longer seems to contain any ulterior meaning.
For essentially the same reasons, I find no threat on
Hearn 's part to fire Couch because of his union activity
during the desk painting incident and no statements by
him which would validly support a finding that his treatment
of Couch in that case or in other instances was based
D W HEARN MACHINE WORKS
on illegal considerations. The entire episode has been set
out before and need not be repeated at length Couch
had twice refused to comply with Barfield's and Hearn's
orders and accused Hearn of trying to get him to quit.
"One word led to another," as Couch said, and both
men became angry Each questioned the other's manhood,
and Hearn reminded Couch of past favors, suggesting that
Couch was returning evil for good The question of whether
Couch should quit or Hearn should fire him became an
issue, and Hearn indicated that he would fire Couch if
it were not for the Board or the Act I accept basically
Hearn 's version that he told Couch that if he fired him,
"you'd probably go down to the UAW and file charges
against me for unfair labor practices" and that Couch
replied that, "he sure would, he wouldn't even go home."
I also accept Hearn's logical explanation that he did not
want an additional charge filed against him and for that
reason he later told Barfield to overlook Couch's insubordi-
nation. As indicated earlier, Hearn signed a settlement
agreement with the Board in the Brooks case on November
14, the same day that Couch refused to clean the tables
and urged the company to "take it to the National Labor
Relations Board "
Having found earlier that Respondent did not threaten
Breed with discharge because of her union activity, that
incident is removed from the case as evidence of Respond-
ent's motive in Couch's case. I have also examined the
evidence in Brooks' case very carefully, and I have concluded
that even assuming that Hearn discriminatorily decided
to accept Brooks' earlier resignation as soon as he learned
that he was the leader in organizing the plant, despite
the fact that earlier in the week he had agreed to let
Brooks stay on indefinitely, the addition of this factor
as background would not establish the illegality of Hearn's
motive in Couch's case.
I have concluded that General Counsel has not established
by a preponderance of the evidence that Respondent har-
assed and assigned Couch less desirable work on account
of his union activity, and this conclusion has been influenced
by one other consideration besides those already stated
Couch's and Hearn's actions and statements cannot be
divorced from their distinctive personalities Both are proud
and very determined individuals, fully confident that they
know best. Couch probably thinks that counting parts
Hearn's way is silly, but it is Hearn's shop, and Hearn
knows it and acts like it Hearn is on the quiet side,
Couch is very articulate, but both are very candid and
745
outspoken if they honestly believe the situation warrants
it. Couch, as the evidence shows, is somewhat short tem-
pered, but Hearn does not easily and happily accept any
challenge, real or imagined, to his ideas or authority He
and Brooks also had a heated discussion about how a
particular job should be performed before Brooks started
the Union only because Brooks questioned the validity
of Hearn's own procedures. Finally, Hearn is younger than
Couch, built this business himself, runs it himself, and
is obviously proud of it. He and Couch clash, and they
did before Couch joined the Union. Couch is sincerely
disappointed by the loss of work which was cleaner and
which he clearly considered more important and prestigious,
and he may resent the rise of others. In any case, he
may have been quick to see discrimination where it actually
did not exist, although it would be foolish to believe that
Hearn was not to some unmeasurable extent offended when
he discovered that Couch was helping Brooks circulate
union cards. The point is that besides the many factors
alluded to, these personality styles and differences made
it doubly difficult to evaluate motivation and determine
whether the two were reacting toward each other without
regard to the new element of unionism which had been
introduced into the relationship. It may be trite to say,
but although the case is not free from doubt, General
Counsel has not established discrimination as alleged by
a preponderance of the evidence, and Couch's attitude
and statements when in contact with supervision contributed
to this to some extent.
Having found that Respondent did not engage in any
independent unfair labor practices after the execution of
the settlement agreement, I shall recommend that the consol-
idated complaint be dismissed in its entirety and that the
settlement agreement be reinstated
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of the Act.
2 The Union is a labor organization within the meaning
of the Act.
RECOMMENDED ORDER
It is hereby recommended that the consolidated complaint
be dismissed in its entirety and that the Board reinstate
the settlement in Case l6-CA-3720