Indiana Material Handling Products, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1973

203 N.L.R.B. 1068 (N.L.R.B. 1973)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indiana Material Handling Products, Inc. and Teddy
R. Justice, Clarence C. Yeary, Buster Oneal Lovell,
James P. Woods , Jackie F. Bernard, Johnny Lee
Hodge, Harold D. Bowling, Albert J. Ford, Robert
L. Tolin, Leonard R. McClain, Paul Maynard Eik-
man, and Charles F. Sheats. Cases 25-CA-4777-1,-
2,-3,-4,-5,-6,-7,-8,-9,-10,-11, and- 12
June 1, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On October 4, 1972, Administrative Law Judge Sid-
ney Sherman issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed limited
exceptions and a supporting brief, and Respondent
filed exceptions and a supporting brief and an answer-
ing brief to the General Counsel's exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Indiana Material Handling
Products, Inc., Indianapolis , Indiana, its officers,
agents , successors , and assigns , shall take the action
set forth in said recommended Order.
DECISION
SIDNEY SHERMAN, Administrative Law Judge: The initial
charge herein was served upon Respondent on February 17,
1972, the complaint issued on March 31, and the case was
heard on May 23 and 24. After the hearing briefs were filed
by Respondent and the General Counsel. The issues litigat-
ed involved alleged violations of Section 8(a)(1) and (3) of
the Act.
Upon the entire record,' the following findings and rec-
ommendations are made:
I RESPONDENT'S OPERATIONS
IN COMMERCE
Indiana Material Handling Products, Inc.,2 herein called
Respondent, is a corporation under Indiana law, and is
engaged at its plant in Indianapolis, Indiana, in the manu-
facture and sale of plastic coaters, metal fabricators, rubber
and plastic tank linings, and related products. It annually
sells and ships to out-of-state points goods valued at more
than $50,000. Respondent is engaged in commerce under
the Act.
II THE UNION
Local 1057, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO, hereinafter called the Union, is
a labor organization under the Act.
III THE MERITS
The pleadings, as amended at the hearing, raise the fol-
lowing issues:
1. Whether Respondent violated Section 8(a)(1) of the
Act by interrogation and threats of layoff?
2. Whether Respondent violated Section 8(a)(3) and (1)
by setting an unreasonably high production quota and issu-
ing reprimands for failure to meet that quota, in reprisal for
the employees' union activity?
3. Whether Respondent discharged or laid off employees
because of their union activity?
A. Sequence of Events
The union campaign to organize the instant employees
was launched on July 15, 1971,3 with a meeting held in a
local tavern. A number of cards were signed within the next
few days, and on July 20, the Union wrote Respondent,
claiming majority status and requesting bargaining. In its
reply of July 22, Respondent questioned the union majority
status , suggesting a Board election. On the same day the
Union filed a petition for such an election, which was held
on September 10, resulting in 19 votes for the Union, 17
against , with 2 challenged ballots. Pursuant to a stipulation
of the parties, the challenges were withdrawn and the two
ballots opened and counted. Both were cast against the
Union, and on October 28, the Regional Director certified
the results of the election. On November 12, Respondent
effected the first of a series of layoffs, which, by March 3,
1972, involved a total of 22 employees, the vast majority of
whom had signed a union card. There have been no new
hires since November 12, and 6 of the laid-off employees,
all of them card signers, have been recalled.
B. Discussion
1. Interrogation
Price testified, without contradiction, that several days
1 For corrections of the record , see the orders of June 20 and August 3, 2 The name of Respondent as it appears in the complaint has been amend-
1972 See also the order of September 14, 1972, receiving in evidence Resp ed to conform to the correct name as shown by the record
Exh. 4(a)-(m) and 5 7 All dates are in 1971, unless otherwise indicated
203 NLRB No. 161
INDIANA MATERIAL HANDLING PRODUCTS
after the Board election Foreman Patterson asked him if he
knew who were the instigators of the union activity at the
plant and who the union officers might be.
2. Production quotas
The General Counsel contends that the Company violat-
ed Section 8(a)(3) and (1) by its action in maintaining unrea-
sonably high production quotas between August 25 and
November 15, and by issuing reprimands to employees for
failing to meet such quotas.
Respondent conceded that between August 25 and No-
vember 15, it maintained a count of the individual produc-
tion of certain of its welders, and that this was the first such
action taken since 1964 , and Respondent's president,
Foerderer, acknowledged that early in September he au-
thorized his supervisors to reprimand employees for insuffi-
cient output. Production Manager Moffatt explained that
Respondent's job orders for assembly racks were bid on the
basis of an assumed output of 20 rack "ends" per man-day
and 20 units per 2 man-days on the final assembly opera-
tion; that sometime in July it was determined that these
levels were not being achieved ; that Respondent initiated a
count of the output of those welders working on racks in an
effort to identify the laggards. Moffatt added, without con-
tradiction, that, in hiring welders in May, June, and July
1971, he often asked the applicants if they could produce 20
items a day.
Bowling, a welder , testified that on one occasion between
August 25 and September 10, Patterson asked him and two
other welders why their production had declined from the
20 items completed the day before , and that Bowling was
thereafter assigned to other work . However , there was no
evidence that such change in assignment was intended by
Respondent, or regarded by Bowling, as disciplinary action.
Bernard, a welder, testified that in September or October
Foerderer called together some of the welders and asked
why they were not producing 20 racks a day; that one of the
welders, Hodge, declared that this could not be done with-
out sacrificing quality; and -that Foerderer finally said that,
if the men could live without producing 20 racks a day, he
probably could, too. Bernard conceded that he usually pro-
duced 20 racks a day, and Hodge, himself, testified that 20
racks per man-day was the average output before the advent
of the Union. The record 4 shows, moreover, that that level
was frequently reached during the period of the production
count, and there was no evidence that this required any
extraordinary effort.
Moreover, the only evidence of disciplinary action taken
against a welder for insufficient output was that Respon-
dent discharged Clayton for producing only 7 or 8 units per
day and that on October 22, Tolin was given an oral repri-
mand for inadequate output. The record shows that Clayton
was discharged on June 10, which was before the advent of
the Union and the initiation of the production count, and
that during the 9 work days prior to his reprimand Tolin's
production had averaged about 17, which was substantially
below the level of the output of the other welders during that
4 G.C. Exh. 16.
1069
period. There was no evidence nor contention that any
welder's earnings were reduced for failure to maintain a
particular rate of output.
It is clear from the foregoing that Respondent did not set
any "quota" for its welders in the sense in which that term
is usually employed; namely, a minimum rate of output to
be achieved in order to qualify for incentive earnings. All
that appears is that Respondent indicated both before and
after the advent of the Union what it regarded as an accept-
able rate of output for its welders, which rate was the basis
for its job bids, and that even after the Union's advent no
action was taken against any employee for failure to main-
tain that rate, except for the isolated, oral reprimand in
Tolin's case. It will accordingly be recommended that the
instant allegations be dismissed.
3. Threats of layoff
Yeary testified that in a preelection conversation Moffatt
remarked that Respondent had been getting along for many
years without a union and did not feel it needed one, there
had been a layoff in 1967 (which had involved the witness),
he did not want to see it happen again, and he would like
the witness to vote "No."
Moffatt insisted that in his preelection conversation with
Yeary and other employees he followed a prepared script
(G.C. Exh. 7), which reads as follows:
The NLRB election is coming up on Friday, at 7:30
to 8:30 A M in the lunch room. There are several things
I think you ought to think about in making up your
mind how to vote.
There has been good job security here over the years.
We haven't had layoffs for lack of work since back in
'67-'68. We have also had good wages, including five
increases in the last two years or so, most of which
applied to all job classifications. Our fringe benefits
have been equally good. We have fully Company paid
life insurance-$2500.00, A.D. & D. insur-
ance-$2500.00, $50.00 S. & A. insurance, basic Blue
Cross-Blue Shield major medical policy for employees.
We have liberal paid holidays and vacations. We have
had lots of physical plant and working conditions im-
provements, including hoists, the stone parking lot, a
good lunch room, improved rest rooms, new plant line
and other new equipment, a safe place to work, new
welding screens, moving the swing boards to another
area to keep the main plant area quieter, etc.
We have all of this without a union. Back in 1967-68,
we had a union and you probably heard what hap-
pened. We went over a year with no wage or fringe
benefit or working conditions improvements. We don't
want this to happen again and we are sure you don't
want it to happen again. One way to make sure it
doesn't, is to vote "NO" in the election. You may also
want to think about paying union dues every month,
union initiation fees, and about strikes and the wages
you would lose in strikes. You'll have to make up your
own mind. But think very carefully about what hap-
pened when we had a union and what we have been
able to achieve without a union since then.
While the foregoing script contains the comments as-
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cribed to Moffatt by Yeary, they appear at widely separated
points and in a different context from that indicated by
Yeary's testimony . The General Counsel does not contend
that the remarks are unlawful as they appear in the fore-
going script , and, when he was asked under cross -examina-
tion whether Moffatt's statements to him were delivered in
the sequence in which they appear in the foregoing quota-
tion, Yeary answered only that he did not remember or did
not know . In view of Yeary's vagueness , Moffatt is credited.
Eikman testified , without contradiction , that in a preelec-
tion conversation, after deprecating the need for a union,
Supervisor Patterson stated that in case of a layoff Eikman
would be the first to go because he lacked seniority . Howev-
er, I find nothing in these remarks that could be construed
as a threat that designation of the Union would lead to
layoffs .5
Rhodes testified , without contradiction , that in a conver-
sation a few days before the election Patterson observed
that there had been no layoffs for a long time and that, if
the Union did "get in," Patterson would be "the first one to
go." Apparently , the General Counsel would have the infer-
ence drawn that Patterson meant to imply that, if the Union
won the election , he, himself , would be discharged by Re-
spondent in reprisal for his union activity or prounion senti-
ments or for not having succeeded in stopping the Union.
There was no evidence that Patterson favored the Union.
On the contrary, the General Counsel's position elsewhere
is that Patterson sought to discourage union activity by
interrogation and threats . This position has been sustained,
above, with respect to interrogation , and it is clear that
Patterson did speak against the Union in preelection discus-
sions with employees . If, then, Patterson meant to say that
Respondent would discharge him for failing to wage an
effective campaign against the Union, he was merely mak-
ing a prediction about future events over which he had no
control.6
Hodge testified that, on September 9, Patterson remarked
that there had been no layoffs in a long time and there was
no need for a union , and that Patterson was not reading
from a paper at the time . However, Hodge acknowledged
that, in describing this conversation in a pretrial affidavit,
he had not imputed to Patterson any reference to layoffs. In
any case, there would be insufficient reason to construe
such a reference as implying a threat of layoffs if the Union
prevailed in the election . It would seem just as logical, if not
more so, to find that any reference by Patterson to the
dearth of layoffs in the past was intended only to support
his contention that the employees did not need a union.
In sum , there appears to be insufficient evidence of any
threats of layoff or other reprisal for union activity.
S Eikman made a rather confused reference to past layoffs in his testimony,
from which it might be inferred that Patterson reminded him that he had
been a victim of a previous layoff. Even so, that would not be sufficient to
establish a threat here. Patterson 's remark would be more readily construable
as meaning that under a union regime layoffs would be governed strictly by
seniority , and Eikman would be vulnerable because of his lack of seniority
(Eikman had in fact worked for Respondent a total of 6 years, but his last
hiring date was June 30, 1971. Patterson's remark evidently assumed that his
seniority would run from that date under a union contract.)
6 Another possible interpretation is that the Union would force Respon-
dent to discharge Patterson because of his antiunion activity. Such a pre-
diction would clearly not be coercive.
4. The layoffs
Before the layoffs began there were about 60 individuals
engaged in production work in Respondent's plant, of
whom 40 were regular, full-time employees of Respondent,7
and 17 were short-term, part-time employees of Respon-
dent, who worked up to 25 hours a week. The rest were
employees of Manpower, Inc., who were supplied to Re-
spondent pursuant to a contractual arrangement. Only the
40 regular, full-time employees were treated by the parties
as in the bargaining unit and were eligible to vote in the
election.
As already related the layoffs began on November 12 and
continued to March 3, 1972.
Respondent's explanation for the layoffs was that on No-
vember 12 work on a large contract was nearing completion
and there was not enough other work for the existing com-
plement. An exhibit in evidence shows a sharp drop in sales
beginning in November and continuing through April 1972.
There being no refutation of such evidence, it is found that
the decision to reduce the work force was economically
motivated.
The General Counsel, nevertheless, contends in effect,
that the layoffs of the full-time employees could have been
postponed or obviated, at least in part, by assigning them
to work that was done by part-time or Manpower employ-
ees during the period after November 12. On November 12,
Respondent laid off five full-time welders, all union adher-
ents, including Justice and Price, both of whom, as related
below, had indicated to Supervisor Patterson their align-
ment with, or sympathy for, the Union. None of the part-
time employees was shown to have had any interest in the
Union and, it is clear, in any event, that the Union had no
interest in them, since they were outside the bargaining unit.
Nearly all of them were welders 8 and after November 12,
they did a total of 150 hours' work before they, too, were
laid off, on November 17.9 It seems, therefore, that the five
full-time welders laid off on November 12 could have been
retained for nearly a week longer by assigning to them the
work thereafter done by most or all of the part-time employ-
ees. While the favoritism thus shown the part-time employ-
ees may be thought to have been a relatively small matter,
one cannot fail to be impressed by the absence of any at-
tempt by Respondent to justify such action on economic or
operational grounds or on any of the grounds stressed by it
in explaining its layoff selections generally; namely, seniori-
ty, competence, and regularity of attendance. Indeed, if
relative pay rates are any criterion, one would have to as-
sume that the full-time men were the more competent.10 As
t See G C. Exh 9
8 Resp Exh 4. There were a few laborers and one painter. It was stipulated
that Respondent 's full-time welders were qualified to do the work of those
classifications
9 Resp Exh 4
10 Their hourly rate was $4 15 as against $3 70 for the others. See G C. Exh.
15A-H There was no suggestion that it was this difference in pay that
prompted Respondent to hold on to the part-timers till November 17 In any
event, any such suggestion would be refuted by the fact that , after that date,
Respondent continued to employ full -time welders at the higher rate It is
therefore evident that Respondent considered any saving from the lower
rates of the part-time men to be offset by the disadvantages inherent in a
two-shift operation or by the superior productivity of the full-time men or
by both these factors.
INDIANA MATERIAL HANDLING PRODUCTS
for seniority, the record is clear that, with one exception,
those laid off on November 12 had more seniority than any
of the part-timers.11
The testimony of Respondent 's witnesses on the point
was far from enlightening. When questioned about the re-
tention of the part-time employees, Foerderer disclaimed
any knowledge of the matter, indicating that Moffatt was
more familiar therewith . However, the latter would not even
acknowledge that any part-time employees had been re-
tained beyond November 12.12
Absent any attempt to explain its deviation here from the
criteria cited in justifying its other selections , the inference
is warranted that Respondent gave the part-time employees
more consideration because , not being in the bargaining
unit , they were , unlike the full-time employees , outside the
orbit of any union activity.
As for the Manpower employees, the record shows that
long before the advent of the Union Respondent had been
using such personnel to supplement its regular work force.
The record shows also that Respondent continued to use
such personnel during the period of the layoffs but at a
considerably reduced level as compared with the prior peri-
od.13 Respondent detailed a number of reasons why it pre-
ferred to continue to assign such work to Manpower
employees rather than recall its own employees from layoff,
including the fact that such work was in general unskilled
and under its contract with Manpower, Inc. Respondent
paid only $2.60 an hour therefor, whereas its average hourly
cost for each of its own employees, including fringe benefits,
etc., was $5.45. In addition, it was explained that Manpower
work was irregular , and it was , therefore , easier to rely on
Manpower to supply employees as needed than continually
to canvass the entire roster of laid-off employees to de-
termine which of them, if any, would accept a few days'
work at drastically reduced wage rates, which would net
them little more than they would receive in unemployment
compensation benefits . None of the foregoing evidence was
disputed by the General Counsel, except for an attempt to
show that during the layoff period a few Manpower employ-
ees did perform work such as had been done by the laid-off
employees. Thus, Lovell testified that, until November 29,
at least one of the Manpower men worked as a machine
operator , punching holes in swingboards . Respondent's rec-
ords pertaining to Manpower operations show no work
done on swingboards after October 21, and Lovell finally
acknowledged that the Manpower man was not doing that
work during the week prior to November 29. Lovell added
that after he was recalled on April 10, 1972, he was assisted
"Compare Resp . Exh. 4(a)-(m) and 7. The one exception was Bowling,
who had slightly less seniority than two of the part- time welders.
12 In its brief , Respondent alludes to a statement in its Exh. 2 to the effect
that the part-time employees were laid off on November 17, "when they
completed certain work on the second shift ." However, there was no evidence
as to what the work was nor why it could not have been assigned to any of
those laid off on November 12. Moreover, even if it be construed as implying
that the part-time employees were engaged in some sort of work that could
not be assigned to anyone else, the foregoing quoted language would not be
competent evidence of that fact, in view of its self-serving nature and the fact
that it appears in a memorandum , which shows on its face that it was
pre1pared post !item motam
Virtually no Manpower work was done during December 1971 and
January 1972.
1071
for 2 weeks by a Manpower man, Baker, who did some spot
welding. However, Moffatt insisted that Baker was author-
ized only to help move parts through the spot welder and
he denied that he saw Baker do any welding. Even if Lovell
be credited, his testimony would be too slender a reed on
which to support a finding of any material diversion to
Manpower employees of work that might have been done
by the laid-off employees.
Accordingly, it is not found that the use of Manpower
personnel during the layoff period was discriminatory.
There remains to be considered the General Counsel's
contention that individual employees were selected for lay-
off on the basis of their known or suspected union activity.
In support of this the General Counsel cites the fact that a
disproportionate number of union adherents were included
in the layoff. The record shows that, of the 40 in the bargain-
ing unit on November 11, 22 were laid off between that date
and the date of the hearing. The record shows, also, that of
the foregoing 40 employees 20 had indicated their union
adherence by signing authorization cards and another,
Sheats, although not signing a card, had acted as union
observer in the election and was for that reason admittedly
regarded by Respondent as prounion, and still another,
Howard, had attended a union meeting. Thus, based on the
laws of chance, little more than half of the laid-off employ-
ees should have been union adherents. In fact, 20, or all but
2 (Martin and Houston) were union adherents, and, of the
18 who were retained, only 2 (Hurd and R. Willey) had
signed union cards.
Respondent attributes this disproportion to coincidence,
contending that it could not have selected employees on the
basis of union activity, because it had no knowledge of, nor
reason to suspect, the identity of any union adherents other
than Ford, Hodge, Sheats, Eikman, and Hurt. Ford and
Sheats had been union observers in the election, and before
the election Respondent had received an anonymous letter,
which led it to suspect that either Hodge or Eikman was the
instigator of the union movement.14 Hurt was known by
Respondent to have engaged in union activity in a 1967
organizational campaign.15 Justice testified, without contra-
diction, that in a preelection discussion with Patterson,
when the latter stated he was "looking for" votes against the
Union, Justice declared that he did not think Respondent
"stood a chance," and Price testified, without contradiction,
that a few days after the election, in response to an inquiry
by Patterson about the identity of the union officers, Price
averred that he understood that he had been elected chief
steward. Except for Hurt, all of the afore-named employees
were laid off. It may be appropriate to consider their cases
first.
Two of these individuals, Justice and Price, were laid off
on November 12. It has already been found that the reten-
tion of part-time employees until November 17, in prefer-
ence to Justice and Price, among others, was discriminatory.
There remains to be considered whether the retention of
other, full-time employees to various dates beyond Novem-
ber 17, in preference to Justice and Price was, also, discrimi-
natory.
14 In addition , in a preelection discussion Hodge declared to Patterson that
there were worse things than unions.
15 A different union was then involved
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moffatt testified that selections for layoff were initially
limited to welders, because that was the classification which
was first affected by the decline in work, and that in the
layoff of November 12 selections within that classification
were based to some extent on "length of service" with Re-
spondent and "familiarity with the work" but primarily on
regularity of attendance (during 1971). Thus, according to
Moffatt, Justice was chosen to be laid off on November 12,
because he had the highest rate of absenteeism in 1971, and
the record confirms that his rate exceeded by far that of any
of the other welders." All four others laid off on November
12 with Justice (Bowling, Hurd, Tolin, and Price) were
welders who had signed union cards, but all five had the
highest rate of absenteeism in 1971, with the exception of
Martin, a nonunion employee, who had the second worst
record. 17 However, he was laid off on November 17, as soon
as he had completed a special project,'s Thus, one cannot
quarrel with the selection of either Justice or Price for layoff
on November 12, if one credits Moffatt's testimony that the
primary consideration on that occasion was extent of absen-
teeism.19
Hodge had worked as a welder since April 1971 and
apparently had not been charged with any absenteeism in
197120 He was laid off on November 19, with Bernard,
Houston, and Peck, of whom all but Houston were card
signers . Hodge has not been recalled. During 1971, Fink,
Bernard, Houston, and Peck had the highest absenteeism
rate of those welders remaining in Respondent's employ on
November 19, and Moffatt indicated that on that date he
was still giving weight to absenteeism, citing that as a factor
16 See Resp. Exh. 5
17 Although Fink, a nonunion employee , appears in the fourth position on
Resp . Exh. 5 , which in general lists employees in the order of their total
absenteeism during 1971, his total absences during 1971 were actually less
than Hurd's, who is ranked fifth in that respect , and when one considers the
fact that his record is based on service since January 1, 1971, whereas the
records of Tohn and Price, although slightly better than Fink 's, were based
(as was Hurd's) only on service since their hiring dates in June , it is apparent
that his ratio of absences to days worked was far lower than theirs (as well
as Hurd's).
Bernard , a union adherent, also had slightly more absences in 1971 than
Tohn or Price , but his record was based on service since the first of the year
Moffatt explained , moreover, that, in retaining Bernard (until November 19),
he gave consideration to the fact that Bernard had more length of service
than the others.
"Martin , who was 72 years old , testified without contradiction that he
told Moffatt on November 10, or shortly thereafter, that he wished to take
some time off and Moffatt suggested that he take an extended leave . Foerder-
er claimed that a month or two earlier Martin had indicated to him a desire
to go on layoff status upon completion of his special job, pending a decision
whether to retire . Martin professed not to recall this. It is clear , in any event,
that he was retained until November 17, because of the need to complete his
special project, and there was no evidence that he would have been retained
thereafter, had he not expressed a desire for a leave of absence.
19 As for the other, secondary factors cited by Moffatt, Justice 's hiring date
was August 19, 1969, and Price 's was June 18 , 1971. Both of them , thus, had
more seniority than George, and Justice outranked Hiteshaw by about 8
months Hiteshaw and George were still in Respondent 's employ at the time
of the instant hearing . As for productivity , a direct comparison in this respect
between Price and Hiteshaw afforded by G.C . Exhs 17 and 18 shows that
Price averaged 18.8 units per day, while Hiteshaw averaged only 17.25 units
per day . Respondent's reasons for keeping Hiteshaw and George are dis-
cussed in the text, below.
20 His name does not appear on Resp Exh 5, which contains the names
of only 14 of the 20 welders in Respondent 's employ on November I I It is
inferred that the six omitted names , including Hodge 's, were those of welders
who had no absences during 1971
in the case of Peck. However, in order to reach Hodge,
Moffatt had to skip not only Fink, but also Ray, George,
McClain, and Rhodes, all of whom were charged with some
absences in 1971. And, Moffatt admitted that he also skip-
ped Howard, who, although not charged with any absences,
had less seniority than Hodge. Howard was colored and
Moffatt explained that he was retained in preference to
Hodge only because of Respondent's policy of employing
members of minority groups.21 The retention of Fink was
ascribed to his special ability to read blueprints, as well as
to his length of service, which dates back to December 1968.
The retention of Ray rather than Hodge was not explained.
However, in comparing Ray with another discriminatee
(Eikman) Moffatt stressed his length of service (dating back
to September 1965) and the fact that he was a "steady,"
albeit not an outstanding, producer. Ray had far more sen-
iority than Hodge, who had worked for Respondent only
since April 1971, and the production records in evidence
(G.C. Exh. 16 and 17) do not permit a direct comparison
between Ray and Hodge in terms of productivity.
As for George, although he had slightly less seniority than
Hodge, Moffatt testified he preferred George because of his
high productivity, and Respondent's records show that he
was, in fact, the highest producer on rack ends. Absent any
evidence to the contrary,22 such testimony is credited 23
There is, however, a special circumstance affecting
Hodge's case. The record shows that about the time that
Respondent was considering, or effecting, the layoffs of
November 12 and 19, a need developed for the services of
a plastic coater. At that time Respondent had in its employ
one, L. Groce, who had been hired in August as a machine
operator at $3.55 an hour but had proved so unsatisfactory
in that work that he had been relegated to unskilled labor.
He admittedly had no experience in plastic coating work.
However, L. Groce had rendered Respondent a conspicu-
ous service in the Board election, having cast one of the two
challenged ballots, which when opened on October 28, de-
cided the election in favor of Respondent. He was given the
plastic coating job, and Moffatt's only explanation for not
offering it to one of the laid-off employees was that at the
time the only employees being laid off were in "higher clas-
sifications ," which evidently had reference to the fact that
L. Groce was assigned to the plastic coating job in mid-
November, at which time the layoffs were confined to the
higher-paid welders24 However, the record shows that,
21 Howard was eventually laid off on November 29, and is named in the
complaint as a discnminatee
22 Respondent's records do not permit a direct comparison between
George and Hodge , since the latter is shown only as working on final rack
assemblies as part of a two-man team.
23 McClain and Rhodes , who had worse attendance records than Hodge,
but were retained on November 19, were card signers, and were laid off on
December 30 One may speculate that Respondent preferred them to Hodge
because he was suspected of being the instigator of the union movement,
whereas they had done nothing more than sign cards However, they had
appreciably more seniority than Hodge and there was no evidence as to their
relative productivity In any event, it would seem that the reasons for their
retention on November 19, in preference to Hodge, were not adequately
litigated, since the focus of the case was on the reasons for Respondent's
preferring nonunion to union employees and not on the reasons for prefer-
nnk one union adherent to another
Their base rate was $4 15 an hour, whereas the base rate for plastic
coating was $3 70 an hour L Groce's rate was $3 55. Layoffs in his pay
bracket did not begin until November 29, when the first machine operators
INDIANA MATERIAL HANDLING PRODUCTS
when L. Groce could not make the grade on his initial job
as a machine operator and was transferred to common labor
work, he retained his $3.55 rate, even though the base rate
for laborers was only $2.55 an hour.25 Thus, it appears that,
while it had no qualms about permitting such an unpromis-
ing novice as L. Groce to retain a rate of $1 above that
applicable to the work he was actually doing as a laborer,
Respondent professed to be averse to transferring one of the
welders to plastic coating because it would have involved
paying him 45 cents over the base rate for that work 26
It is thus evident that, despite all his shortcomings, Re-
spondent showed L. Groce more consideration than it gave
to any of the laid-off prounion welders, all of whom had
more seniority than L. Groce and all of whom were skilled
men of unquestioned competence . Absent any tenable ex-
planation for this, the inference is amply warranted that
Respondent's treatment of L. Groce was a reward for his
conspicuous role in helping to decide the election in
Respondent's favor, and that but for that circumstance Re-
spondent would have assigned the plastic coating job to one
of the welders laid off on November 12 and 19. The question
arises, which one of these welders would have been retained.
In view of Respondent's testimony that it would have re-
tained Hodge until November 29, but for its minority hiring
policy, which required that it keep Howard rather than
Hodge, it is inferred that, of all the welders laid off on
November 12 and 19, Respondent had the highest regard
for Hodge and that, but for L. Groce's signal service in the
election and its suspicion that Hodge was the instigator of
the union campaign, Respondent would have given the plas-
tic coating job to him rather than to L. Groce, with his
unimpressive work record and inferior seniority ranking.27
It is, therefore, found that, by retaining L. Groce for
discriminatory reasons in preference to one of the welders
laid off on November 12 and 19, and, specifically, in prefer-
ence to Hod e, Respondent violated Section 8(a)(3) and (1)
of the Act 2
Eikman, a welder, was laid off on December 30. He has
not been recalled. He had worked for Respondent for about
6 years to October 1970, when he quit. He was rehired in
June 1971. Counting his entire service, he had the most
seniority of the eight welders then remaining in
were laid off. Moffatt explained his failure to assign one of them rather than
L Groce to plastic coating on the ground that by that time he had acquired
some familiarity with that work
25 See Resp . Exh. 6.
26 It may be noted, moreover , that implicit in this position is the assump-
tion that none of the welders would have accepted a 45-cent reduction in their
hourly rate , and that all would insist on retaining their old rate . The reason-
ableness and good faith of such an assumption seems questionable under the
circumstances.
27 Moreover, if one is to take at face value Respondent 's concession at the
hearing that its higher-paid employees were capable of doing the work of any
of the lower-paid classifications, it would follow that any of the welders,
including Hodge , was already qualified to do plastic coating work, whereas
L Groce had to undergo a training program , which he admittedly never
completed . (He quit Respondent 's employ on January 14, 1972.)
28 The fact that George , like L. Groce , also cast a challenged ballot, which
helped to turn the election against the Union, might be deemed to render
suspect Respondent's explanation for retaining him in preference to one of
the prounion welders. However , in George 's case , documentary evidence in
the record substantiates Respondent 's claim that his rate of output on rack
ends was the highest of the 16 welders who worked on those items at one time
or another.
1073
Respondent's employ. Moffatt ascribed his preference for
George and Harvey over Eikman to their superior produc-
tivity. There was no refutation of this explanation.29 Nor
was there any rebuttal of Moffatt's testimony that he kept
Hiteshaw because of his superior productivity, his ability to
read blueprints, and experience in machine building, which
was a higher skill than welding.
With regard to Moffatt's reasons for preferring Garver to
Eikman, the transcript shows the following:
Q. Why did you . . . not lay off instead Vernon
Garver?
A. Well, Garver had much more total experience,
work background with our company.
11
Q. When you say experience, now, are you talking
about ability?
A. Ability and experience.
Q. What do you mean? Would you say he was a
more effective producer, a better producer than the
other men?
A. Yes .. .
Q. You're saying, then, that you based your selec-
tions on production . . . the individual production re-
cords?
A. It may have been partially that, but these records
are over a shorter period of time... .
Q. . . . You have two men in the same classification
like Eikman and Garver. Did you compare their pro-
duction records before you decided which one to lay
off?
A. Production records, yes. Now, this is just a part
of it.
Q. Did Garver have a better production record than
Eikman?
A. Yes, sir, in my opinion.
Q. As between Garver and Eikman, why did you
choose to keep Garver and why did you choose to lay
off Eikman?
A. Well, Garver has more... .
Q. Be as specific as you can.
A. . . . more background with knowledge.
Q. Well, suppose a man has a terrific background
but is unable to produce, is he of any value to you?
A. No, sir.
29 Respondent 's records do not permit a direct comparison between Eck-
man and the other two men since he was apparently assigned with another
welder (Garver) to work as a team on cutting and sawing racks, they being
the only ones so employed Their production count is in the 50-70 range as
compared to the maximum of 23 for the other welders See G .C. Exhs. 17 and
18. It is inferrable, therefore, that the time needed to complete each unit
entering into their production count was not comparable to that required for
the units applicable to the other welders
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, it appears that, initially, Moffatt professed to have
preferred Garver because he had "much more total experi-
ence" and "work background" with Respondent. However,
if it is taken to mean what it appears to mean-that Garver
had much more seniority as a welder than Eikman-the
foregoing explanation is contradicted by Respondent's own
records, which show that Eikman had worked for Respon-
dent a total of 6 years and 7-1/2 months as against only 5
years' and 3 months' service by Garver, and that both had
been classified as welders throughout those periods. Moffatt
next indicated that by "experience" he meant "ability and
experience," and that he thought that Garver was the better
producer.
However, in response to his attorney's plea to be as "spec-
ific" as possible, he took the tack that Garver had "more
background with knowledge," but promptly acknowledged
that an employee's "background" was less significant than
his performance. It is clear from the foregoing that Moffatt
had difficulty in making up his mind whether to attribute
Garver's retention to his allegedly greater "experience" with
Respondent, or his superior "background," "knowledge,"
or ability, and that, insofar as any of the first three criteria
implies that Garver had more seniority as a welder for Re-
spondent, its own records show the contrary to be true.
While there is nothing in the record to refute Moffatt's
testimony that Garver was more productive than Eikman,
Moffatt's vacillation and vagueness as to what weight he
gave to that factor, and his final position that the "specific"
reason for preferring Garver was his superior "background
with knowledge," which, he in effect admitted did not in-
clude actual performance, and which seems to be a return
to his initial, untenable position that Garver had more sen-
iority as a welder than Eikman-all these circumstances
militate against the credibility of Moffatt's reasons for re-
taining Garver in preference to Eikman and warrant a find-
ing that such reasons were pretextual 30
Sheats was also laid off on December 30. He was the only
one of Respondent's five machine builders to be laid off. He
was also the only one of the five who was regarded by
Respondent as a union adherent, he having acted as a union
observer in the election. In seniority he outranked two of the
other machine builders, Tacker and Jackson. Moffatt indi-
cated that the selection of Sheats was based on ability and
attendance. While acknowledging that Sheats ranked third
in ability, if potential alone were considered, Moffatt assert-
ed that Sheats failed to perform up to his potential because
of his tendency to indulge in excessive conversation with
other employees, and that as a result his actual output was
less than that of the others. Sheats, who was hired in July
1963, insisted that he had done no machine building since
1965 or 1966, having been mainly engaged during that pen-
od in repairing machinery. This suggests that it would have
been more appropriate for Respondent to have compared
his performance with that of others similarly employed rath-
er than with that of persons actually engaged in machine
30 In view of this finding , there is no need to consider in detail the reasons
advanced for retaining Ray in preference to Eikman However , it may be
noted that one of those reasons was Ray 's greater "total experience" with
Respondent, which reason , as in the case of Garver, is contradicted by
Respondent's records
building. However, there was no evidence as to what indi-
viduals besides Sheats were engaged in machine repair on
December 30, or how their performance compared with
Sheats'. Moreover, Sheats did not dispute the charge of
neglecting his work to engage in conversation, which could
have applied as well to his more recent maintenance job as
to his earlier work as a machine builder.
Ford was hired in 1965 and laid off on December 30.
Moffatt testified that, although classified as a painter, Ford
had done little painting until the last month of his employ-
ment; that J. Willey, who had been doing most of the paint-
ing, was transferred early in December to other work; that
Ford then replaced J. Willey as Respondent's only full-time
painter; and that it was necessary for that reason to lay off
Ford. There was no contradiction of this. Ford was offered
reemployment in April 1972.
It is concluded from the foregoing that, of the six "more
visible" union adherents who were included in the layoffs,
Respondent has offered a plausible explanation for the se-
lection of all but Eikman and Hodge.
The fact that Respondent gave demonstrably specious,
vague, and shifting reasons for preferring Garver, a nonun-
ion employee, to Eikman, who was admittedly suspected of
being the instigator of the Union, amply warrants an infer-
ence of discriminatory motivation in his case. The reasons
for a finding of discrimination with respect to Hodge have
already been set forth.
As for the rest of the laid-off union adherents, there is no
evidence that Respondent suspected them of union activity
other than what may be inferred from the disproportionate
number of such adherents laid off, or from the fact that
there is involved here a relatively small operation, compris-
ing about 60 employees.
While such factors have been cited by the Board in infer-
ring knowledge of the identity of union adherents and dis-
criminatory motivation for a mass layoff, reliance has not
been placed in those cases on those matters alone but on a
congeries of other circumstances, including strong union
animus, extensive violations of Section 8(a)(1), the timing of
the layoffs in relation to a critical stage in the union cam-
paign, and, above all, the failure to offer a plausible expla-
nation for the selections made 31
Here, it is true that Respondent expressed opposition to
the Union during the preelection campaign, there was inter-
rogation of one employee by a minor supervisor, and, as
found above, the retention of part-time employees from
November 12 to 17 and the layoffs of Eikman and Hodge
rather than Garver and L. Groce were discriminatory.
7i As to the laying off of a disproportionate number of union adherents,
see, e .g , Syracuse Tank & Manufacturing Company, Inc., 133 NLRB 513, 525;
United Butchers Abattoir, Inc, 123 NLRB 946, 949; Camco, Incorporated, 140
NLRB 361, 366, enfd . in part 340 F.2d 803 (C A. 5, 1965).
As to the application of the "small plant" rule , see Syracuse Tank &
Manufacturing Co, supra, 539; Mid-States Sportswear, Inc, 168 NLRB 559,
560, enfd. in part 412 F 2d 537 (C.A. 5, 1969); Wiese Plow Welding Co, 123
NLRB 616; Tru-Line Metal Products Company, 138 NLRB 964; Abingdon
Nursing Center, 189 NLRB 842, enfd 80 LRRM 3232 (C.A. 7, 1972). The
latter cases consider whether the union activity was conducted openly in the
plant or whether there were other circumstances that were likely to direct the
attention of management to such activity Here, for the most part, the solici-
tation of union cards occurred away from the plant and there was no evi-
dence that any supervisor was in the vicinity on the few occasions when it
occurred in the plant
INDIANA MATERIAL HANDLING PRODUCTS
These circumstances warrant subjecting to careful scrutiny
the reasons assigned by Respondent for its layoff selections
among those employees as to whom there is no direct evi-
dence that Respondent had reason to suspect them of join-
ing the Union . Of these "less visible" union adherents,
Bowling, Hurd , and Tolin were included in the initial re-
trenchment of November 12, with respect to which the pri-
mary basis for selection was alleged to be extent of
absenteeism; and, it has been found above , that their defi-
ciency on that score was supported by documentary evi-
dence. Thus, although it has been found that Respondent
preferred, for discriminatory reasons, to retain the part-time
employees to November 17, rather than assign their work to
Bowling, Hurd, and Tolin, among others, there is no pre-
ponderance of evidence that the retention of other, full-time
employees in preference to them was also discriminatory.
Peck and Bernard were laid off on November 19 (together
with Hodge 32 and Houston 33 ). In Peck 's case , Moffatt
cited his 1971 absenteeism, which, considering his relatively
brief service,34 was higher than that of any of those retained,
and his lack of seniority. While George, who had even less
seniority than Peck, was retained, Moffatt ascribed this to
George's outstanding productivity, and, since the documen-
tary evidence as to Peck's production is too fragmentary to
afford a comparison with George's, there is nothing in the
record to refute that explanation.
Bernard 's absenteeism rate was about the same as
Peck's 35 While he, too, outranked George in seniority, the
record again affords insufficient basis for comparing his
production with George's.36
On November 29, Respondent laid off Howard, a welder,
who has already been referred to, and two prounion ma-
chine operators, Woods and Yeary. With regard to the latter
two, Moffatt testified that the choice lay between them, on
the one hand, and Lovell and Sexton, on the other, and that
the final selections were based on an estimate of the relative
ability of all four men. In any event, since Lovell and Sexton
were union adherents, it would be difficult to find that their
retention (until December 30) in preference to two other
union adherents was for discriminatory reasons 31
As for Howard, it is clear that, if anything, Respondent
had shown him special consideration by keeping him as
long as it did . His absenteeism rate was higher than that of
32 One of the "more visible" union adherents discussed above.33 A nonunion employee.
74 He had been hired in June 1971.
35 Bernard was absent 13 entire days and 22 part days from January I,
1971, as against 6 entire days and 6 part days for Peck from June 28, 1971.36 G.C. Exh. 17 and 18 show Bernard 's production only on final rack
assemblies as a member of a two-man team , whereas George worked only
as an individual on rack ends.
37 Certain of Respondent 's exhibits in evidence indicate that, on November
29, Respondent had in its employ one, Davis , classified as a "machine opera-
tor," who was not shown to be a union adherent and who was not included
in any layoff. While he had considerably more seniority than 3 of the proun-
ion machine operators , he had somewhat less seniority , and, if his pay rate
is any criterion , less ability, than Sexton , whose hourly rate was 20 cents
higher than Davis '. However , the fact that Moffatt insisted , without any
contradiction, that Lovell and Sexton were the only two machine operators
left after November 29, warrants the inference that Davis was doing work
outside his classification . This inference is reinforced by the fact that on G.C.
Exh. 9 there appears opposite Davis' name the following notation : "(janitor,
storekeeper , and maintenance)."
1075
any of the welders who were retained on November 29, and
he had the least seniority of all the welders.
On December 30, Respondent laid off the afore-named
Lovell and Sexton, together with two prounion welders,
McClain and Rhodes, and J. Willey, a union adherent, who
was working as a machine operator at the time. In explain-
ing the selection of McClain and Rhodes, Moffatt seemed
to rely on the fact that they had less "total experience" with
Respondent than any of those retained, except Hiteshaw
and George, and, as already noted, ascribed the retention
of Hiteshaw to his ability to read blueprints and possession
of skills other than welding. George's special attributes have
already been considered.
On March 3, Respondent laid off Harris, a prounion
machinist, while retaining Gilliam, a nonunion machinist.
Moffatt averred that Gilliam had more seniority and was
better qualified than Harris. This testimony was not contra-
dicted and the records in evidence corroborate Moffatt on
the matter of seniority.
The General Counsel contends, finally, that, in selecting
employees for layoff, Respondent should not have confined
itself to a comparison of employees within a particular clas-
sification but should also have compared each employee
with all those in lower-rated classification, since, as noted
above, Respondent conceded that any laid-off employee
was competent to do the work of the job classifications
carrying a lower pay rate than the one from which he was
removed. To illustrate this point, reference may be made to
the case of E. Harris, who, as a machinist, was in one of the
highest-rated classifications. As already noted, Moffatt pro-
fessed to have selected him for layoff on the basis of a
comparison with Gilliam, the only other machinist. Under
the General Counsel's proposed procedure, a comparison
would also have been made between Harris and all the
welders who were retained. The General Counsel would
have the inference drawn that the failure so to enlarge the
basis for selection was due to discriminatory considerations.
However, there was no contradiction of Foerderer' s testi-
mony, and it is found, that in the two mass layoffs immedi-
ately preceding , those under consideration Respondent
limited its selections to those classifications directly affected
by the decline in business, laying off the least competent
man in each such classification, and there was no evidence
that Respondent had in the past based its layoff selections
to any extent on a comparison between employees in differ-
ent classifications . Thus, there is no warrant for inferring
that the 1971 layoff procedure was adopted because of the
advent of the Union and in order to facilitate the elimina-
tion of union adherents38
There emerges from the foregoing a picture of an employ-
er who waged a vigorous, albeit, in the main, lawful, preelec-
38 Respondent 's justification for its foregoing policy of not permitting an
employee in one classification to "bump" one in a lower classification was
that it preferred to keep a man on a job with which he was familiar, the
implication being that such an employee would normally have a higher
degree of proficiency on that particular job than one, however competent,
who had been doing entirely different work. (This would not apply, of course
to the case of L Groce , discussed above, whom Respondent transferred to
work with which he was totally unfamiliar , in preference to Hodge . Thus, it
would not have been inconsistent with its policy against bumping a man out
of a job he had been doing for Respondent to have assigned Hodge , instead
of L. Groce, to plastic coating.)
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion campaign, and who, after barely defeating the Union
in the election, laid off virtually all the union adherents. The
fact that Respondent was able , in most instances, to supply
reasons for its layoff selections that sufficed to rebut the
General Counsel's prima facie case did not relieve it of the
necessity for meeting that case in explaining the retention
of L. Groce, Garver, and the part-time employees, in prefer-
ence to union adherents . That discrimination was not prov-
en with regard to the bulk of such adherents is no reason
for overlooking the inadequacy of the reasons given in the
instances cited above or for speculating that such inadequa-
cy was due to some limitations on the part of Respondent's
witnesses or some oversight on the part of counsel.
Conversely, the fact that discrimination has been proved
as to certain of those laid off does not warrant a finding of
discrimination as to all. Even if it be inferred that Respon-
dent was disposed to include in the layoffs the maximum
number of union adherents, it does not necessarily follow
that, but for such disposition, none of such adherents or
only a proportionate number would have been released. An
employer who is determined to rid himself of prounion
employees by fair means or foul may find that he can
achieve that result up to a certain point, if not entirely, by
fair means-that is, by making his layoff selections on the
basis of nondiscriminatory criteria. He violates the Act only
to the extent that he deviates from such criteria for the
purpose of reaching a union adherent. The fact that as a
result of a particular selection procedure union adherents
suffered the brunt of the layoffs may justify scrutinizing that
procedure for the purpose of determining whether it was
contrived with a view to reaching such adherents. However,
the burden of proof on that point remains with the General
Counsel, and there is no preponderance of evidence here
that the criteria of seniority, absenteeism, and competence
cited by Respondent in justifying the bulk of its layoff selec-
tions were adopted because of a foreknowledge that they
would result in the actual elimination of the union faction
or that any other lawful set of criteria would have been more
favorable to that faction. It is only where , as in the case of
the retention of the part-time employees and in the cases of
Eikman and Hodge, the criteria of seniority and compe-
tence were abandoned for no apparent reason or for spe-
cious reasons that the evidence preponderates in favor of a
violation finding.
It is concluded that the selection of Eikman, rather than
Garver for layoff on December 30, was prompted by a
suspicion that Eikman was the instigator of the union move-
ment; the retention of L. Groce beyond November 19, in
preference to Hodge, was for discriminatory reasons; and
but for discriminatory considerations the five welders laid
off on November 12 would have been retained to do the
work assigned the part-time employees after that date. As
for the other actions taken, the reasons assigned therefor by
Respondent are not so implausible as to warrant the infer-
ence that they are pretextual.
Concluding Findings
1. Respondent violated Section 8(a)(l) of the Act by
Patterson's interrogation of Price about employee union
activity, which interrogation, in the context of the unfair
labor practices found herein, was coercive.
2. Respondent violated Section 8(a)(3) and (1) of the Act
by the following actions, which were based on discriminato-
ry considerations:
(a) The assignment, between November 12 and 17, of
certain work to part-time employees rather than to the five
welders laid off on November 12.
(b) The layoff of Hodge on November 19.
(c) The layoff of Eckman on December 30.
3. The foregoing are unfair labor practices affecting com-
merce within the meaning of the Act.
THE REMEDY
It having been found that Respondent violated Section
8(a)(1) and (3) of the Act, it will be recommended that it be
required to cease and desist therefrom and take appropriate,
affirmative action. Such action shall include a proper offer
of reinstatement to Eikman and Hodge and their reimburse-
ment for any loss of earnings suffered by reason of the
discrimination against them. Backpay shall be computed in
accordance with the formula stated in F. W. Woolworth
Company, 90 NLRB 289; interest shall be added to backpay
at the rate of 6 percent per annum. (Isis Plumbing & Heating
Co., 138 NLRB 716.) In addition, it will be recommended
that Respondent be required to reimburse in the same man-
ner Justice, Hurd, Bowling, Price, and Tolin for any loss of
earnings suffered by reason of the failure to assign to them
after November 12 work assigned between that date and
November 17 to part-time employees.
In view of the nature of the violations found herein, par-
ticularly the acts of discrimination, a threat of future viola-
tions exists, which warrants a broad cease-and-desist
provision.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
ORDER 39
Respondent, Indiana Material Handling Products, Inc.,
Indianapolis, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, and concerted activi-
ties on behalf of, Local 1057, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, or any other
labor organization, by discriminating in regard to the hire
or tenure of employment or any terms or condition of em-
ployment.
(b) Coercively interrogating employees about their union
activities or those of other employees.
(c) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-
39 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes
INDIANA MATERIAL HANDLING PRODUCTS
organization, to form, ,loin, or assist the above-named
Union, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Make whole Johnny Hodge, Paul Eikman, Harold
Bowling , Stephen Hurd, Teddy Justice, Ralph Price, and
Robert Tolin in the manner set forth in the section of the
Administrative Law Judge's Decision entitled "The Reme-
dy," for any loss of pay they may have suffered by reason
of its discrimination against them and offer Paul Eikman
and Johnny Hodge immediate reinstatement to their former
position or, if such position no longer exists, to a substan-
tially equivalent position, without prejudice to their seniori-
ty or other rights and privileges.
(b) Notify Paul Eikman and Johnny Hodge if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharged
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amounts of backpay due under the terms of this
recommended Order.
(d) Post at its plant in Indianapolis, Indiana, copies of
the attached notice marked "Appendix."40 Copies of said
notice, on forms to be provided by the Regional Director for
Region 25, shall, after being duly signed by its representa-
tives, be posted by it immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by it to insure that such notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps it has taken to comply herewith.41
40 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
4i In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director for Region 25, in writing , within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1077
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form , join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT layoff or discharge employees or other-
wise discriminate against them because of their interest
in Local 1057 , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO, or any other union.
WE WILL NOT ask you about your union activities or
those of other employees.
WE WILL offer to take back Johnny Hodge and Paul
Eikman at their old job or, if such job no longer exists,
at a substantially equivalent job, and pay them for all
the wages lost because of the discrimination against
them.
WE WILL also pay Harold Bowling , Stephen Hurd,
Teddy Justice , Ralph Price , and Robert Tolin for any
earnings lost because of our discrimination against
them with respect to the period from November 12 to
17, 1971.
All our employees are free to belong or not to belong to
Local 1057, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO.
INDIANA MATERIAL
HANDLING PRODUCTS, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone 317-633-
8921.