Lyon, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1963

145 N.L.R.B. 54 (N.L.R.B. 1963)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union. In so finding I credit Butler over Lester because I regard him on the basis
of all factors in the case, including demeanor, as a more reliable witness. Having
credited Butler over Lester as well as Vance Ward, I find it unnecessary to resolve
the conflicts between these employees and Sam Moore about the alleged admission
by Lester that he had quit his job and by Ward that he had been fired for drinking.
I have found that Butler discharged Vance Ward, Vernon Ward, and Robert
Lester for cause on October 29. I further find that George Lester was employed
until October 27 as a temporary employee and that he was not denied employment
on October 29 or 30, or thereafter, because of his union activities. His temporary
employment, as credibly related by Butler, had terminated on October 27, and there
is no evidence that he sought employment thereafter which was denied to him for
any reason.
I credit Moore's testimony that Garner and George Lester had tried to prevent
Moore and Clifton Horne from working on October 30 and that Lester had stated
no one would be permitted to work unless all employees were allowed to do so. I
credit Butler's testimony, supported by testimony of Young and Garner, that he had
instructed these two employees to go to work on October 30 and that each had
offered an excuse for not doing so. I reject the inconsistent and implausible testi-
mony of these employees that they returned the next day and were told by Butler
he had orders from Weisman to discharge everyone.
Summarizing my findings, I conclude that when the three warehouse employees
were discharged for cause on October 29 the others decided to put pressure on
Butler to reinstate them by withholding their services In effect they were economic
strikers who could lawfully be replaced. Garner, a furniture finisher, was replaced
by another finisher hired by Butler on October 30. Two other warehouse employees
were hired on October 30 and 31. These two employees are no longer employed
because of curtailment of the Respondent's needs. Absent evidence that the strik-
ing employees had sought and were for unlawful reasons denied reinstatement, there
is no basis for a finding in this case that the Respondent in violation of Section
8(a) (3) of the Act discharged or otherwise terminated the employment of the com-
plaining employees and thereafter unlawfully refused to reinstate them. Because the
record as a whole does not preponderate in favor of a finding that the Respondent had
engaged in such conduct, as alleged in the complaint, I shall recommend that the
complaint be dismissed.
CONCLUSIONS OF LAW
1. Sarah Swartz, Herman Weisman and M. James Weisman d/b/a S. Swartz is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act
2. Local 169, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act have not been sustained.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
Lyon , Incorporated and Aluminum Workers International Union,
AFL-CIO
Lyon , Incorporated and Aluminum Workers International Union,
AFL-CIO. Cases Nos. 06-CA-1444 and 26-RC-1849. November
19, 1963
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On July 17,'1963, Trial Examiner Jerry B. Stone issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
145 NLRB No. 3.
LYON, INCORPORATED 55
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, and recommended further that the
election held on December 14, 1962, in Case No. 26-RC-18491 be set
aside and a new election held, as set forth in the attached Interme-
diate Report.2 The Trial Examiner also found that the Respondent-
Employer had not engaged in certain other unfair labor practices and
recommended that the complaint be dismissed as to such allegations.
Thereafter, the General Counsel and Respondent filed exceptions to
the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reveiewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications :
The complaint alleges that the Respondent, through its Night
Superintendent Todd, violated Section 8(a) (1) of the Act by threat-
ening certain of its employees with economic reprisals against them
and their families if these employees engaged in union activities.
The Trial Examiner found that the statements made by Night Super-
intendent Todd did not reveal a threat of company action to the
i Pursuant to a stipulation for certification upon consent election dated November 2,
1962.
2 On March 27 , 1963 , the Board issued a Decision and Order directing a hearing before
it Trial Examiner on certain objections filed by the Union herein to conduct affecting the
results of the election , and further ordering Cases Nos 26-CA-1444 and 26-RC-1849
consolidated In view of its disposition of the case , the Board does not determine nor
pass upon the merits of objection No 7, which was not referred to the Trial Examiner.
In adopting the Trial Examiner 's finding that Steven Goodson is a supervisor , we rely
additionally on the fact that Goodson received his orders directly from the plant super-
intendent , and that no other individual was given the responsibility of seeing that the
necessary cleanup work was done There is no evidence , as the Trial Examiner observed,
that the plant superintendent engaged in any active direction of the cleanup crew, and it
is not unreasonable to infer that the plant superintendent with a substantial work force
of almost 400 employees was not likely to concern himself directly with the supervision
of janitorial services . While it is understandable that maintenance work of this kind is
in large measure of a routine nature, the evidence supports the Trial Examiner ' s finding
that Goodson exercised more than routine direction in the assignment and performance of
this work ; particularly is this true in the selection of employees in the cleanup crew for
special work on weekends . We note also in this connection that Goodson ' s signature on
the employees' timecards is it necessary condition to employees receiving credit and pay
for the hours of work recorded thereon
We adopt the Trial Examiner ' s recommendation that the election be set aside because
we agree that Goodson 's conduct , as set forth in the Intermediate Report, interfered with
the employees ' right to a free and untrammeled election choice However , we base our
decision also on Plant Manager Watt's conduct in pinning a "Vote no" sign on an em-
ployee 's back By such action , Watt clearly indicated to employees under his supervision
his approval of Goodson's activities in distributing such cards.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for engaging in union activity. Contrary to the Trial
Examiner, we find that employees were threatened by Respondent's
supervisor with economic reprisal by the Respondent.
One night during the period September 10 to 12, Todd had occasion
to speak to Jamie Arbuckle, Jimmy Mixon, and Henry Arbuckle.
According to the Trial Examiner's credited version of this incident,
Todd related to these employees some of his union experiences and
also "told the employees that if they worked for the Union they
would be hurt and hurt more than they thought and their families
would be hurt also, and that . . . every Arbuckle by name around
there would be hurt, that Arbuckle's father was old and that it would
be hard for him to secure a job." When viewed in the context of the
organizational activities in the plant at the time, the fact that the
Respondent knew of the prounion sentiments of the Arbuckle brothers
who worked for Respondent, and in view of other unlawful discrim-
inatory acts engaged in by Respondent, we find that this constituted
a real threat to the job security of the employees with the Respondent,
and violated Section 8 (a) (1).1
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner 4 with the following modifications :
Paragraph 1(b) is hereby amended by deletion of the period fol-
lowing the word "Act," and by addition of the following :
by conditioning such benefits on the employees giving to it copies
of their affidavits given to an agent of the Board.
The companion notice provision shall be similarly modified.
[Text of Direction of Second Election omitted from publication.]
8 Otis L. Broyhill Furniture Company, 94 NLRB 1452.
4 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in these cases, and pursuant to Section 10(c) of the
National Labor Relations Act , as amended , the National Labor Relations Board hereby
orders that Respondent , Lyon, Incorporated, its officers, agents, successors, and
assigns, shall:
INTERMEDIATE REPORT AND REPORT ON CERTAIN OBJECTIONS
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on January 4 and February 21, 1963,
respectively, by Aluminum Workers International Union, AFL-CIO ( herein some-
times called the Union ), the General Counsel of the National Labor Relations Board,
by the Regional Director for the Twenty-sixth Region ( Memphis, Tennessee ), issued
his complaint dated February 21, 1963, against Lyon, Incorporated ( herein some-
times called the Employer , the Respondent , or the Company). In substance the
complaint alleged that Respondent had engaged in and was engaging in conduct
proscribed by Section 8(a)(1) and (3) of the National Labor Relations Act (herein
called the Act), and that such conduct affected and was affecting commerce as set
LYON, INCORPORATED 57
forth in Section 2(6) and ( 7) of the Act . Respondent 's answer admits many
of the facts pleaded in the complaint , but denies the commission of any unfair labor
practices.
On October 8, 1962, the Union filed a representation petition in Case No.
26-RC-1849 alleging that a substantial number of employees of the Company wished
to be represented by the Union, and that the Union desired to be certified as
representative of the employees for purposes of collective bargaining , pursuant to
Section 9 ( a) and ( c) of the Act . Thereafter on November 2, 1962, the Company
and the Union executed a stipulation for certification upon consent election (Case
No. 26-RC-1849 ) which was approved by the Acting Regional Director ( National
Labor Relations Board, Twenty-sixth Region ). This stipulation provided that the
representation election in this matter would be conducted on December 14, 1962.1
The election by secret ballot was conducted ( under the supervision of the Regional
Director for the Twenty-sixth Region, Memphis , Tennessee ) on December 14,
1962, among the employees in the stipulated appropriate collective-bargaining unit 2
at the Employer 's Grenada , Mississippi , plant. Upon the conclusion of the elec-
tion a tally of ballots was furnished the parties in accordance with the Rules and
Regulations of the Board . The tally of ballots shows that there were approximately
328 eligible voters and that 389 ballots were cast , of which 84 were for the Petitioner,
230 were against the Petitioner , 73 were challenged , and 2 were void.
On December 19, 1962 , the Union filed timely objections to the election and to
conduct affecting the results of the election , a copy of which was duly served upon
the Employer?
The Regional Director of the Twenty-sixth Region of the National Labor Relations
Board caused an investigation to be made of the objections and thereafter on Febru-
ary 1 and 26, 1963 , issued and served upon the parties his report on objections, and
a supplemental report on objections The Employer filed timely exceptions to the
aforesaid reports on February 21 and March 11, 1963, respectively . Thereafter on
March 27, 1963, the Board issued its order adopting the Regional Director's recom-
mendations that a hearing be held on objections Nos. 2, 4, and 9 and that objections
Nos. 1 , 3, 5, 6, 8, 10, and 11 be overruled . The Board decided to defer ruling
on the Employer 's exceptions relating to objection No 7 4 until after a hearing on
the issues raised by objections Nos. 2 , 4, and 9 The Board ordered that a hearing
be held to resolve the issues raised by the Petitioner 's objections Nos. 2, 4, and 9,
and the Employer 's exceptions thereto, and provided that such hearing could be
consolidated with the hearing scheduled in Case No . 26-CA-1444 and held before
a Trial Examiner to be designated by the Chief Trial Examiner . On April 11,
1963, Cases Nos. 26-CA-1444 and 26-RC-1849 were consolidated by order of the
Acting Regional Director for the Twenty-sixth Region of the National Labor Rela-
tions Board.
Pursuant to appropriate notice, a hearing , in the matter of the aforesaid con-
solidated cases , was held before Trial Examiner Jerry B. Stone at Grenada , Missis-
sippi on April 29 and 30 8 and May 1, 1963. All parties were represented at and
participated in the hearing and were afforded the right to present evidence, to ex-
amine and cross -examine witnesses , to offer oral argument , and to file briefs . Briefs
from the General Counsel and Respondent ( Employer ) have been received and
considered.
Upon the entire record in this case , and from my observation of the witnesses,
the following findings of fact , conclusions of law, and recommendations are made.6
1 The approved stipulated appropriate collective-bargaining unit was:
Included: All production and maintenance employees , including press, buff, chrome,
paint, shipping and receiving, toolroom , production control , quality control , mainte-
nance , material control , setup employees , truckdrivers , laborers , and janitors
Excluded : Sales, purchasing , personnel department , office clerical , temporary em-
ployees, guards, professionals , and supervisors as defined in the Act.
2 There were several individuals who voted challenged ballots.
3 The Petitioner 's objections were numbered 1 through 11.
4 The Regional Director had recommended that Petitioner 's objection No 7 be sustained,
that the election be set aside , and that a new election be ordered.
5 The transcript is corrected to so reflert.
e All credibility resolutions are based in whole or in part on my observation of the
witnesses ' demeanor The testimony of witnesses at variance with the facts found has
been discredited
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Based upon the pleadings , it is found that the Respondent is, and has been at all
times material to the proceeding , a Delaware corporation operating a plant located
in Grenada, Mississippi , where it is engaged in the manufacture of automobile wheel
covers. Respondent , during a representative 12-month period, at its Grenada,
Mississippi , plant, purchased and received goods and materials valued in excess of
$50,000 directly from points outside the State of Mississippi . During the same
period , Respondent manufactured , sold, and shipped finished products valued in
excess of $50,000 directly to points outside the State of Mississippi . It is found
that Respondent is engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings it is found that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES AND THE REPORT ON OBJECTIONS
A. The unfair labor practices
1. The events primarily pertaining to the alleged unfair labor practices
concerning Robert O'Bryant
The evidence relating to the alleged unfair labor practices concerning Robert
O'Bryant touch the issues raised as to (1) whether Respondent discriminatorily
discharged Robert O 'Bryant on September 6, 1962, ( 2) whether Respondent dis-
criminatorily refused to reinstate O'Bryant on September 10, 1962 , and (3 ) whether
Personnel Manager Ketchum, on September 10, 1962, told an employee that the
Respondent would not have a union in its plant 7
a. The commencement of union activity 8
Sometime prior to September 3, 1962, employee Robert O'Bryant told some of
his fellow employees , who were interested in collecting money for making a tele-
phone call to contact a union , that his brother ( John ) was with a union. On
September 3, 1962, at 9 p.m, Claude Mitchell, representative of the Union, con-
tacted O'Bryant at the Little Widgit Cafe in Grenada , Mississippi . O'Bryant , there-
after, told employees at the Respondent 's plant that if they were interested in the
Union that a union representative would be at the Little Widgit Cafe on September 4
at 3 p.m.
O'Bryant, and approximately 14 other employees of Respondent , met with Union
Representative Mitchell at the appointed time on September 4, 1962. They met
in an open area in the back of the restaurant . Unionism was discussed , union cards 9
were passed out , and some union cards were signed . O'Bryant thereafter , at work,'°
handed out approximately 10 union cards and talked to around 20 other employees
in the buff department about signing the union cards.
b. O'Bryant 's cessation of employment 11
On September 6, 1962, two of O'Bryant's fellow employees told him that he was
going to be fired. At the beginning of the night shift O'Bryant went to see Person-
7 Unless O'Bryant 's testimony , to the effect that he asked Ketchum what he thought
about the Union and that Ketchum replied that if the Union were voted in the Respondent
would go along with it , touches upon this issue, I find no evidence adduced by the General
Counsel in support of this issue.
8 Based on a composite of O'Bryant and Orr 's credited testimony
° Cards designating the Union as collective -bargaining representative
10 During the lunch hour and after work hours
U The facts concerning O'Bryant's termination and his conversations with Ketchum and
Todd on September 6, his conversation with Ketchum and Watt on September 10, and his
conversation with Ketchum on November 16 are based on a composite of the credited testi-
mony of Ketchum , Todd, Watt , and O'Bryant. Ketchum was a very impressive witness
who testified in a frank , forthright manner and I find him fully credible as a witness
Todd , as a witness , appeared to be sincerely attempting to tell the truth Despite his
testimony to the effect that Ketchum completed the back of the "Final Pay" ticket on
LYON, INCORPORATED 59
nel Manager Ketchum at his office. O'Bryant was sitting in the lobby outside of
Ketchum's office when Ketchum and Night Superintendent Todd left Todd's office
and entered a hallway. Ketchum saw O'Bryant in the lobby and asked him if he
wished to see him. O'Bryant replied that he did. Todd, Ketchum, and O'Bryant
entered into Ketchum's office and sat down.
O'Bryant asked Ketchum if he could be transferred from the night shift to the
day shift. Ketchum told O'Bryant that they had discussed the matter before, that
he could not make an exception in his case, and that the answer remained the same
(no). O'Bryant told Ketchum that his wife was a nervous wreck "staying out there
by herself," patted his stomach, stated that he was losing weight, that his health
was bad, and that if he could not get on the day shift that it would break up his
home. Ketchum told O'Bryant that the Company did not want that to happen,
but that he could not transfer him. O'Bryant stated that if he could not get trans-
ferred that he would have to quit. Ketchum told O'Bryant that this was natural,
that it was the end of the workweek, and that now was a good time to do it.
O'Bryan told Ketchum that he would rather work until November 1 before quitting.
Ketchum told O'Bryant that they had had previous discussions about his inability
to work in various departments and that anyway he was not going to make a top
rate inspector. Ketchum told O'Bryant that since there was a question of his ability
to perform the work properly, that he should go ahead and quit now since it was the
end of a workweek, and that the Company was not going to spend more time and
money on him. Ketchum, explained that he could hire a new man and have him
qualified equally to O'Bryant by November 1, 1962. O'Bryant stated that it was
"okay." Ketchum obtained a "Final Pay Ticket" slip 12 and filled out the slip in-
dicating on it that O'Bryant had quit. O'Bryant signed the "Final Pay Ticket" and
asked about the effect on his "unemployment" pay. Ketchum told O'Bryant that
he didn't know how they (the Mississippi Employment Security Commission) would
rule on the question, that all that he could do would be to report what was on the
record to the effect that O'Bryant had quit, that he would note on the record about
O'Bryant's inability to work in certain departments in case that would help O'Bryant
any. Ketchum told O'Bryant that he was sorry, to go ahead and finish the night,
and that would be all to it. Ketchum and O'Bryant terminated their conversation
and left the office. O'Bryant worked for about an hour and a half, signed a "sick
leave" slip, and went home.
The next day Ketchum completed on the back of the "Final Pay Ticket" an
evaluation of O'Bryant's work up to the point of termination. This evaluation
reflected that O'Bryant's job attitude and attitude toward work were below average,
that his cooperation with others was average, and his attendance was average, it set
forth that O'Bryant had stated he would have to resign effective November 1 unless
he could get a day job, and that it was agreed to terminate him this date instead of
investing more time and money in his tiaining The evaluation further set forth
that reemployment was not recommended.
September 6, which in fact did not occur, I am convinced that his testimony otherwise is
credible. Watt appeared, as to most of his testimony, to be an honest witness However
Watt appeared to be attempting to "sell" his version I do not believe that he was as
"disinterested" in some of the events as he testified to have been O'Bryant appeared to
be a sincere witness, but from my observation of him I am convinced that his recollection
of what actually occurred is not accurate His testimony reveals that he was "mixed up"
on September 6 as to his job status, and that he was mixed up at a hearing before the
Mississippi Employment Security Commission as to when he first learned that he had
"quit " I am convinced that his recollection of the events is not accurate but that he in
fact has confused various statements by other persons (he had talks with townspeople-as
an example) and other events with the events to which he testified Basically Ketchum's
version of the events is the reliable version To the extent that testimony of the witness
is not reflected herein it is discredited. As an example, I do not credit O'Bryant's testi-
mony to the effect that (1) on September 6 he was told by Ketchum that it had already
been decided to terminate him, (2) he was not told that he was signing a "quit" slip, and
(3) lie told Ketchum that If he found he could not work at night that he would give
2 weeks' notice and not that he would rather work until November 1 before quitting Nor
do I credit O'Bryant's testimony to the effect that Ketchum asked him on September 10 to
write a letter saying that lie was against the Union, nor to the effect that Ketchum told
him that he thought the Union was "low down, rotten," and it made hint sick to think
about it; nor to the effect that he asked Ketchum on November 16 what he thought about
the Union and that Ketchum replied that if the Union were voted in the Company would
go along with it
12 Described by Ketchum as a "quit slip."
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 10, 1962,13 O'Bryant went back to the Company to see Personnel
Manager Ketchum and saw him in Watt's office. O'Bryant asked Ketchum if he
could get his job back. Ketchum told O'Bryant that he (O'Bryant) had quit the
other night and "that is just all there is to it." O'Bryant told Ketchum that he
wanted his job back, that he had not wanted to quit, that he did not know that he
signed a "quit" slip. Ketchum told O'Bryant that it was obvious that it was a
"quit" slip, that he (Ketchum) had filled it out, laid it on the desk, that O'Bryant
had looked at it and signed it, and that there did not appear to be a question about
it. O'Bryant told Ketchum that he had heard from some employees that the Com-
pany had already made its mind up to fire him on September 6 anyway, and wanted
to know if this were true. Ketchum told O'Bryant that this was not so. O'Bryant
told Ketchum that he had met with Mitchell (the union representative), that the
Company made a lot of money in selling wheel covers, that his pay had been good,
that some of the other employees ought to receive a raise, and that the Company
should rotate the shifts. O'Bryant also discussed the employees' pay scales in
Alabama and other places. Ketchum then asked O'Bryant what he specifically
wanted and O'Bryant stated that he wanted his job back. Ketchum told O'Bryant
that the Company would have to consider him the same as any other new em-
ployee and that they would see what developed.
O'Bryant saw Ketchum again on November 16, 1962, and asked about getting a
job. Ketchum told O'Bryant that they were not hiring anyone O'Bryant related
that he thought he was a branded man, that he thought Governor Barnett had put
out a letter for employers not to hire him. Ketchum told O'Bryant that he
(O'Bryant) knew what the people in Grenada thought about the Union before he
got in it, that he did not know anything about the Barnett matter, that if O'Bryant
had made his bed hard that he would have to sleep in it.
Conclusions as to the Issue Relating to O'Bryant
The General Counsel contends that in the instant case that an inference of com-
pany knowledge of O'Bryant's union activity prior to September 6, 1962, should be
drawn from the circumstances of the case including the fact that the Respondent's
plant is a small plant and is in a small town . The parties stipulated that Grenada,
Mississippi , is a town of 12,000 people (7,000 of whom are white) and Watt testified
that the plant employed 511 employees when he became plant manager in October
1962. Ketchum testified to the effect that he had no information on September 6
as to O'Bryant's union interests . I am convinced that Ketchum testified truthfully
and that an inference of company knowledge of O'Bryant's union activities should
not be drawn from the facts of this case. I do not draw such an inference The
facts reveal that O'Bryant's termination on September 6 resulted from his desiring
to transfer to the day shift and his stating that he would have to quit I conclude
and find that the evidence does not support a finding of a discriminatory discharge of
Robert O'Bryant on September 6, 1962, and recommend that the allegation as to an
8 (a) (3 ) and (1) violation in this respect be dismissed.
When O'Bryant again saw Ketchum on September 10, 1962, Arbuckle had related
to O'Bryant facts concerning O'Bryant's union activity. Ketchum, however, had
"In the meantime Plant Manager Eynon made a speech to some of Respondent's em-
ployees on September 8, 1962 Whether all employees were spoken to is not clear The
credited testimony of Orr, Owens, and Jamie Arbuckle reveals at least that employees on
the day and night shift of their respective departments were in a group (or groups) when
Eynon spoke. The General Counsel does not allege or contend that the speech is violative
of Section 8(a) (1) but contends that it reveals union animus . Orr's version of the speech,
if considered alone. broaches an 6(a) (1) violation. I am convinced, considering the testi-
mony of Orr, Owens, and Arbuckle, that Eynon's speech (or speeches) was to the follow-
ing effect : Eynon told the employees that the Respondent did not want a union in the
plant telling them what to do, that some of the employees were attempting to get others
to sign union cards , and that the employees should "please" not sign the cards. Evnon
showed the employees a union authorization card and told them that the Respondent knew
approximately who was passing the cards, knew most of the ones who had signed, and
knew who would sign the cards. Eynon told the employees that if they were misled,
pressured , or threatened relative to signing the union cards to let him or their super-
visors know about it, and that he would see to it that they (the ones responsible) would
be fired or prosecuted for it In addition, as regards the question of animus, Watt testified
to the effect that he was opposed to union affiliation and that he had implemented company
policy by putting out antiunion literature
LYON, INCORPORATED 61
already evaluated that O'Bryant should not be reemployed.14 Despite the fact that
Respondent hired other persons thereafter,15 I find it clear that Respondent's reason
for not hiring or rehiring O'Bryant was based on his past work record and his quitting
on September 6, 1962. I conclude and find that the General Counsel has not estab-
lished that the refusal to reinstate O'Bryant on September 10, 1962, and thereafter
was for a discriminatory reason, and recommend that the allegation as to an 8(a)(3)
and (1) violation in this respect be dismissed.16
The complaint, paragraph 9, alleged that Personnel Manager Ketchum on or
about September 10, 1962, told an employee that the Respondent would not have
a union in its plant. I find no evidence which supports this allegation. The testi-
mony of O'Bryant to the effect that he asked Ketchum what he thought of the
Union-and that Ketchum replied that if the Union won they would go along with
it has been discredited, but, if believed, clearly reveals the contrary to what was
alleged. There being no evidence supporting the allegation, it is recommended that
paragraph 9 be dismissed.
2. Events primarily pertaining to the unfair labor practices concerning Harvey Orr
The evidence relating to the unfair labor practice concerning Harvey Orr touch
upon the complaint issue as to whether Orr was discriminatorily transferred on
October 10, 1962, from his diesetter job to a stockhandling job, and to whether Orr's
pay was reduced and thus constituted illegal interference with the results of the
election as alleged by the Petitioner's objection No. 2.
The September 24 Transfer of Harvey Orr 17
The Respondent commenced operation around October 1961. From that date
through the year 1962 Respondent hired many employees who were without prior
experience. In selecting the job assignments for its new employees it may be said
to have operated on a basis of trial and adjustment.
Harvey Orr was hired by the Respondent on March 28, 1962, and assigned work
as a stockhandler with a rate of pay of $1.20 per hour. The Respondent found need
around April 13, 1962, for a diesetter. The Respondent decided to try Orr at the
diesetting job. Orr worked from April 13 to July 9, 1962, as a diesetter on the day
shift. "1
Respondent followed a program of rotating employees from the day and the
night shift in the diesetting department to enable the employees to gain experience
in the work with men on both shifts. Supervisor Seifert was available only for in-
struction and training on the day shift. There is a leadman over the night shift.
This procedure clearly is used to further the employees' training and experience.
Orr worked on the night shift as a diesetter from July 9 to September 17, 1962.
During his first week on the night shift Orr broke two dies. As a result, Supervisor
Seifert placed a written memorandum on July 17, 1962, in Orr's personnel file. He
did not present a written reprimand to Orr but spoke to him about the errors.
Seifert credibly testified that there was not "much of a fuss" raised at that time.
After assignment as a diesetter, most diesetters had received wage increases after
less employment time as a diesetter than the time that Orr had so been employed.
Orr asked Seifert sometime after July 17 and prior to August 10, 1962, if it were
not about time for him to receive a raise. Seifert told Orr that three of the newest
employees had not received raises, that the only thing against Orr was that he had
goofed up a couple of days (the breaking of the dies), and that one of the others
had been absent quite a bit.18 The Respondent's reason for not giving the other
1-Ketchum, on September 7, 1962, made such an evaluation on the back of O'Bryant's
final pay ticket.
15 How many or for what jobs was not established
l"I have considered in connection with the 8 ( a)(3) and ( 1) allegations pertaining to
O'Brvant the conduct of Respondent as revealed by all of the evidence in this case.
11 Based on a composite of the credited testimony of Watt, Seifert, and Orr The basic
facts are generally undisputed As indicated herein I do not credit the reasons given or
assigned by Watt and Seifert for the September 24 transfer of Orr. As to the difference
between Watt's and Orr's versions as to the January 6, 1962, conversation, I find Orr the
more credible witness Watt, for example, testified that he was not interested in Orr's
decision about his affidavit. From my observation of the two as they testified, I find Orr's
testimony more believable and so credit. I discredit Watt's testimony in contradiction of
the facts set out
is Seifert started to but did not state the reason for holding up the third employee's
raise.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two employees raises is established as absenteeism for one, and slowness for the
other. Seifert told Orr that if he would continue to do good work, do his best not
to "goof up" anymore, and if he saw that Orr would make it, that there would be
raises soon. On August 10, 1962, Orr and the two other employees received raises.
The raise brought Orr's rate of pay up to $1.30 per hour.
Orr continued to work on the night shift as a diesetter until September 17, 1962.
In the meantime, On attended the union meeting at the Little Widgit Cafe on
September 4, 1962, signed a union card, and handed out union cards.
On September 11, 1962, Orr wore a union sticker 19 to the plant.
Watt spoke to Orr that day and asked if he could look at it and Orr told him
that he could. Personnel Manager Ketchum asked Orr what it was he had and On
told him "not too much of nothing very important." On September 12, 1962, the
Respondent received a letter dated September 10, 1962, signed by Orr and two other
employees informing the Respondent that they had signed union authorization cards.
On Monday, September 17, 1962, Orr was transferred back to the day shift as a
diesetter. On Monday, September 24, 1962, just before quitting time, Supervisor
Pete Seifert told Orr that he was to go back on production the next day, to report to
Chuck Watt, and stated, "I don't think you are going to make it in set up." On
was then placed back on the job of stockhandler at the same rate of pay that
he received as a diesetter-$1.30 per hour.
Supervisor Seifert testified that his personal record revealed a notation as to Orr's
transfer as follows- "Not able to do job "
Plant Manager Watt testified that the following statement furnished to counsel
for General Counsel by Respondent set forth the reason for Orr's transfer:
At the time of his transfer Orr had only been employed by the Company
six months. He had at first been a production machine operator and later was
changed to die set-up work. He had no experience in such work and was being
trained by the company. He continued in this capacity and showed satisfactory
progress at first, however, as the demands for increased competency and in-
creased ability arose, it was found that he was not able to progress satisfactory.
On several occasions his work was improperly done to the extent that it became
apparent that he was not suited for die set-up work. On one occasion in
particular his unskillful or careless setting of the die resulted in its being broken.
After careful consideration by his supervisor, it was decided to return him to
the job which he had previously held.
Respondent witness Seifert testified that he had had complaints that On was
spending a lot of time away from his work area, that after September 17, 1962, he
had caught On away from the department and told him that when he finished a job
to report back to the press area and stay until the next job, not to loiter in other
departments. Seifert testified that the next time that he caught On away from the
department,20 he went to Watt, asked Watt if he would want to transfer the man
back to production, and told Watt that he (Seifert) did not think the man would
make it as a diesetter. Seifert testified that Watt, who had been spending time in
the pack department,21 thought Orr was very slow and taking too long in (die)
setups, that Watt stated he would give him another job. Seifert testified that On
tried to avoid loading empty reels by being farthest away from the reels 22 Seifert
testified that the breaking of the die was not the main reason for Orr's transfer but
that it revealed carelessness. Seifert testified that the reason for Orr's transfer was
as follows-
Being away from the job. I feel that I went along with him even though he
was slow and kept him that length of time and then when he starts wandering
off like he did the last month or so, that's when-I figure that if anyone is
not interested enough in their job to at least be there trying to learn, well,
then we don't need them in our department.
On January 4, 1963, the Union filed charges in Case No. 26-CA-1444 alleging
inter alia that Harvey Orr had been transferred to a less desirable job classification
on October 5, 1962. General Counsel's Exhibit No. 1-A reveals that this charge
was received by Respondent on January 8, 1963. On January 6, 1962, Harvey Orr
11 Described as round and having written on it "Aluminum Workers International Union,
A171-CIO."
20 As revealed by Seifert's other testimony the does not contend that he spoke to Orr on
the second occasion.
21 Apparently affording him an opportunity to observe Orr.
re The reels apparently are loaded by any diesetter close by at the time that they
become empty.
LYON, INCORPORATED 63
went to Plant Manager Watt's home and told Watt that he would like to know
why he had been transferred back to the stockhandling job and that he would like
to be returned to the diesetting job. Watt told Orr that before he could promise
anything that he (Orr) would have to prove to him first that he would not "take
a hand in the union anymore and push it and go with it." Watt told Orr that
Mitchell, the union representative, and some of the National Labor Relations Board
men would probably be around to get him to write a statement, if so, not to do it.
Watt then asked if Mitchell had been to see Orr since the election, and if Mitchell
had said anything about a statement. Orr told Watt that Mitchell had not asked
about a statement and had not been around, but that Bill Rutledge, another union
representative, had been around and had asked about a statement. Watt asked if
Orr had signed anything and Orr told Watt that he had signed an affidavit for his
job position back, that it was not that he was dissatisfied in the department that he
was in, that he worked with some good people there, but it was the principle
involved. Orr told Watt that he had nothing against him, that he liked him.
Watt told Orr that because they felt differently about the Union it should not make
them bad friends. Orr told Watt that he did not know that he would have to testify
against the Company 23
Conclusions as to Orr's Transfer
It can be summarized from Seifert's testimony that the reason of the transfer was
Orr's being away from the job. Orr's version of what transpired on September 24
when Seifert allegedly caught Orr away from work reveals that Orr was not told
that he was being transferred because he was staying away from his work, rather
Orr was told that Seifert did not think he would make it as a diesetter. The only
incidents relating to improper work as a diesetter related to the breaking of the
dies in July, after which Orr received a raise on August 10, and after which he
worked as a diesetter until September 24. Based on what Seifert told Orr, and on
Seifert's notation that Orr was transferred because he could not do the job, I con-
clude that "being away from the job" was not the reason. Based on Orrs' continued
employment after the July die-breaking incidents, and his subsequent raise, I con-
clude that inability to do the job was not the reason for his transfer. Considering
all the facts foregoing and Orr's known union adherence made known to the Re-
spondent by the letter on September 12, Orr's wearing the union insignia on Septem-
ber 11, Orr's transfer to the day shift on September 17, 1962, Orr's transfer back to
the stockhandlers job on September 24, 1962, and the inconsistency of the reasons
asserted by the Respondent's supervisors-inability to do the job-and being away
from the job, I conclude that the reasons asserted were not the real reasons but
were pretextuous reasons for his transfer, and that the transfer to the stockhandling
job was motivated by Orr's adherence to the Union. It is clear from Watt's testi-
mony that the diesetting job as compared to the stockhandling job is a more skilled
job, higher paid work, and has increased opportunity for the employee. It follows
that a transfer from diesetting to stockhandling is a transfer to a less desirable job,
and when motivated by considerations of an employee's union adherence, the trans-
fer is a discriminatory one and constitutes a violation by Respondent of Section
8(a)(3) and (1) of the Act.
The evidence clearly shows that Orr's discriminatory transfer occurred on Septem-
ber 24, 1962, before the petition for representation election had been filed (Octo-
ber 8, 1962). Such conduct of the Respondent in this regard, occurring prior to
the filing of the representation petition, is not properly to be considered as conduct
constituting interference with the results of the election.24
3. Events primarily pertaining to the alleged unfair labor practices concerning
Jamie Arbuckle
The evidence relating to the alleged unfair labor practices concerning Jamie
Arbuckle touches upon the issues raised as to (1) whether Jamie Arbuckle was
discriminatorily transferred on November 21, 1962, from his job as paint setup
man to the job of stockhandler; (2) whether Jamie Arbuckle was discriminatorily
(constructively) discharged on January 31, 1963; (3) whether Night Superintendent
Todd threatened employees concerning their union activities in September 1962; 25
21 In the sense that he was not sure that his affidavit would result in his having to
testify against the Company.
24 Goodyear Tire and Rubber Company, 138 NLRB 453.
zs The complaint alleged that Ketchum similarly threatened employees. I find no evi-
dence in the record submitted in support of this allegation.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) whether Todd and Ketchum, in September 1962, interrogated employees con-
cerning union activities; and (5) whether Plant Manager Watt interfered with,
restrained, or coerced employees by promising economic benefits conditioned upon
employees making statements for the Respondent, and furnishing copies of state-
ments made to Board agents.
The Events of September 9 Through 12 26
On Sunday, September 9, 1962, employee Jamie Arbuckle approached Night
Superintendent Gerald Todd and told him that his name had been connected with the
union activity, that he wanted to clear his skirts, and that he wanted to talk to
someone from management. Todd told Arbuckle that the only person he could get
in contact with at that time was Ketchum. Arbuckle stated that he would talk to
Ketchum. Todd called Ketchum and the latter came to the plant to his office where
he met Todd and Arbuckle.
Arbuckle told Personnel Manager Ketchum that he wanted to talk to someone,
that he had found out that his name had been connected with the Union, and that
he wanted to clear his skirts and get it straight now so that there would be no mis-
understanding about his position.27 Arbuckle told Ketchum that both of his
brothers were mixed up in this thing (union) but that he had a wife and children,
and that he could not afford to and did not intend to get mixed up in the "mess "
Arbuckle stated that he wanted everyone to know he was against the Union, and
offered to help if there were anything that he could do 28
Ketchum told Arbuckle that it was entirely up to him, that they appreciated his
statement Arbuckle told Ketchum that his brother had 41 cards signed, and that
he had been trying to talk to his brother to get him straightened out.
Arbuckle also related information concerning Mitchell, the union representative.
He told Ketchum where Mitchell was staying, the kind of car Mitchell was driving
and the license number, the names of a number of employees who had attended the
original union meeting at the Little Widgit, the names of employees passing union
cards on the day and night shifts, and that Robert O'Bryant was the leader of the
Union.
Arbuckle told Todd that if he could get the cards from his brother (Billy) that
he would bring them to him (Ketchum). Ketchum told Arbuckle not to bring
26 The facts concerning Jamie Arbuckle' s conversations with Todd and Ketchum, occur-
ring between September 9 and 12, 19(i2, are based on a composite of the credited testimony
of Ketchum, Todd, and Jamie Arbuckle I find Ketchum and Todd more credible as wit-
nesses than I find Arbuckle and so credit their testimony wherein points of major conflict
exist between their versions of the events and Arbuckle's version Ketchum and Todd as
witnesses revealed a frank demeanor and a seriousness of intent to tell the facts as ob-
jectively as they could. Arbuckle as a witness revealed a demeanor that was far from
frank and an intent to tell the facts in an unobjective way I particularly notice the
inconsistency in his testimony relating to alleged interrogation by Todd, and to the timing
of the alleged interrogation by Todd, and to the timing of the alleged interrogation by
Ketchum as related to his signing of a union card. Thus, Arbuckle testified on direct
examination that Todd had interrogated him about signing a union card, and admitted,
when confronted on cross-examination with a prior statement, that he was not sure
whether Todd had asked him about the signing of a card Arbuckle also testified that the
conversation with Ketchum occurred between September 10 and 12 and after he bad signed
a union card On cross-examination Arbuckle placed the time of signing the union card
as the middle of September, on cross-examination and when confronted with his union
card, Arbuckle testified that he signed the card on September 13 and could have so testified
if he had wanted to when first asked The testimony of the witnesses at variance with
the facts found has been discredited. Unless indicated otherwise, the name Arbuckle
when used in this report refers to Jamie Arbuckle
1'' Arbuckle's testimony was to the effect that Ketchum questioned him as to whether he
had signed a card, whether he was for the Union, how many union representatives there
were, names, where the representatives were staying, and that lie told Ketchum of his
brother's activity and Ketchum questioned him as to the number of cards his brother had
gotten signed and asked Jamie Arbuckle to talk to and see if he could get his brother,
Billy, to surrender the cards, give them to him, take to the merchants , or just destroy
them I do not credit Arbuckle's testimony to this effect.
=s The complaint alleges in effect that Ketchum engaged in illegal interrogation con-
cerning the Union and union activities on September 20, 1902. The evidence connected
with the event recited above appears directed to this point. I have not credited
Arbuckle's testimony to this event and do not find that the credited evidence to this event
supports a finding of an 8(a ) ( 1) violation.
LYON, INCORPORATED 65
the cards to him, that he did not want to get mixed up in the card business, that
he (Arbuckle ) could get the cards ( if he wanted to), tear them up, give them to
someone downtown , throw them in the river , or do whatever he wanted to.
At this point in the discussion it was about the night lunchtime , Arbuckle stated
that he was going to town , that he thought he could see his brother ( Billy), and
if he could that he would get the cards tonight. Arbuckle stated that he might not
get back very quickly. Todd told Arbuckle that if it took a little longer than the
lunch period that it would be all right . About an hour later Arbuckle returned
and told Ketchum that he had been unable to find his brother ( Billy), but he would
see him before the night was over and get the cards for him.
A letter dated September 10, 1962, signed by employees Harvey G. Orr, William
Arbuckle, and Charles H. Jones was transmitted to and received by the Respondent
on September 12, 1962. This letter advised the Respondent that the aforesaid
employees had signed union authorization cards in order to obtain a National
Labor Relations Board election to determine whether a majority of the employees
desired the Union as their collective representative.
During the period of time September 10 through the 12, one night,29 on an
occasion when Jamie Arbuckle , Jimmy Mixon, and Henry Arbuckle were turning
their timecards in at Gerald Todd 's office, Todd spoke to them about his personal
experience with the Union . Todd stated that he had belonged to a union in 1924
and was making $90 a week for 5 days' work , that the Company 's contract with
the Union had expired and that the Company had made a good proposal ( money-
wise ), that the union officials had turned the proposal down and called the employees
out on strike , that the strike lasted for 13 months , and that he had gone back to
work at $3 05 per day. Todd stated that during the strike he did not have cigarettes
to smoke, the seat of his breeches was out, and that he had pawned his watch to
get money to drive his car to his mother to borrow money with which to buy food.
Todd told them that from what he had heard of the town and surrounding com-
munity that if they worked for the Union that they and their families could get
hurt because it was usually the innocent persons who suffered. Todd told them
that every Arbuckle by name around here would be hurt and that Arbuckle's father
was old and that it would be hard for him to secure a job.30
Arbuckle also testified on direct examination that Todd questioned him during
the occasion of his talk about the "sad union story" as to whether he had signed
a card and that he answered no. On cross-examination Arbuckle, when confronted
with a prior statement , admitted that he was not sure whether Todd asked him
whether he had signed a card or not. Under such circumstances , and absent other
evidence , I conclude and find that the General Counsel has not established that
Todd illegally questioned employees about their union activities or desires.
Arbuckle's testimony was to the effect that Todd told the employees that if they
worked for the Union they would be hurt and hurt more than they thought and
that their families would be hurt also, and that Todd said that every Arbuckle by
name around there would be hurt, that Arbuckle's father was old, and that it would
be hard for him to secure a job.
The General Counsel contends that the testimony of Arbuckle to the above
effect supports a finding of a Section 8(a)(1) violation . I do not concur. I am
convinced that Todd related to the employees his personal experience with the
Union . I do not find that Todd 's statements to the employees revealed a threat
of company action to the employees for engaging in union activity. Accordingly,
I conclude and find that the General Counsel has failed to establish that Respondent
by Todd 's actions in this regard violated Section 8(a) (1) of the Act.
29 The facts relating to Night Superintendent Todd's conversation with Jamie Arbuckle
and several other employees are based on a composite of the credited testimony of Todd
and Arbuckle. Arbuckle placed this event as occurring in early September and before his
conversation with Ketchum. His testimony also revealed however that the event occurred
before he signed a union card and after his brother had notified the Company by letter of
his union activity (on September 10) His testimony relative to the Ketchum conversa-
tion reveals that he told Ketchum that his brother was for the Union Under all the
circumstances, r am convinced that Ketchum's timing of his conversation with Arbuckle
as being on September 9, and Todd's timing of his conversation in the instant matter, as
being afterward, as being correct It would appear that Todd's conversation with Arbuckle
occurred between September 10 and 12, 1962. Except as herein set out the testimony of
the witnesses contradictory thereof is not credited
30 Although, in general , I find Todd a more credible witness than Arbuckle, in connection
with the credited facts I believe Arbuckle's testimony relating to his father and to some
of the other details set out to be credible and so credit.
734-070-64-vol. 145-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Alleged Discriminatory Transfer 31 and Constructive Discharge of
Jaime Arbuckle
Jamie Arbuckle commenced work at the Respondent in October 1961 as a spray
painter with a wage rate of $1.20 per hour. In December 1961 Arbuckle was made
a "paint setup man" and group leader. Shortly thereafter his wage rate was changed
to $1.40 per hour. During the period of time thereafter and up to November 21,
1962, Arbuckle received two 10-cent per hour raises and one 5-cent per hour raise
(resulting in a wage rate of $1.65 per hour), and when he worked on the night
shift he received a 5-cent per hour differential on wages of $1.70 an hour. Ap-
proximately prior to 3 or 4 weeks before November 23, 1962, Jamie Arbuckle had
been transferred from the night shift where he worked as a leadman, to the day
shift where he worked as a paint setup man under Leadman Vick Vance. Arbuckle's
rate of pay on the day job was $1.65 per hour. Jamie Arbuckle worked as day-
shift paint setup man until the night of November 21, 1962, when he and his
brother, Henry Arbuckle, night paint setup man, were transferred from their paint
setup jobs to stockhandling jobs. The change in jobs resulted in a decrease in
wage rates for Jamie Arbuckle to $1 30 per hour.
As previously indicated, the union activity of Respondent's plant commenced
sometime around the first of September 1962. Jamie Arbuckle indicated to Per-
sonnel Manager Ketchum and Superintendent Todd on September 9, 1962, that he
was against the Union and was interested in helping the Company against the Union.
Thereafter he again on occasion repeated this viewpoint. On October 10, 1962,
around the time that the Union filed its representation petition, Jamie Arbuckle signed
a petition against the Union.
John Gee credibly testified that the paint setup man's duties were to mix the paint
to be used, make sure of the correct viscosity of the paint, to set up the correct paints
on the operation lines, to make minor repairs on hand guns and the automatic guns,
to relieve painters on the line when necessary, and to assist the leadman in any way
he could Gee credibly testified that the paint setup man's responsibility ordinarily
was to mix the paint and that the viscosity of the paint should be checked before
each paint setup and before mixing. Gee further credibly testified that the day
paint setup man attempted to mix most of the paint for the night shift also, that the
night crew mixed paint when necessary, and attempted to leave the job set up in
order to eliminate downtime when the day-crew operation started.
During the 3- or 4-week period prior to November 21, 1962, during the time
that Jamie Arbuckle worked as day paint setup man and Henry Arbuckle worked as
night setup man, certain problems occurred in the paint setup department.
The problems that occurred, during the 3- or 4-week period prior to Jamie and
Henry Arbuckle's transfer from paint setup to stockhandling, were unusual in nature
and had not occurred to such an extent in the past. During this period of time
Jamie Arbuckle was working as paint setup man on the day shift and Henry Arbuckle
was working as paint setup man of the night shift.
The problems that occurred may be summarized as follows: (1) the improper
mixture of a red color which was used on the day shift resulted in 400 wheel cover
rejects, (2) the removal of identification markers on five 5-gallon pails of paint
(on the day shift) required the running of paint sample tests in order to deter-
mine the proper color of black of the paint and in order to identify for use 20 gal-
lons of black paint,32 (3) the failure of Jamie Arbuckle to fulfil his duty of placing
certain locating rings on a designated place on tables located on a moving conveyor
31 Based on a composite of the credited testimony of Watt, Gee, Vance, Ketchum, and
Arbuckle Gee and Vance both testified in a frank, forthright manner and appeared en-
tirely credible. Watt, who in several aspects of his testimony injected his comment on
matters that he said he was not interested in, which comments I found unbelievable, other-
wise appeared to be testifying frankly and sincerely. I found Watt more credible as a
witness than I found Arbuckle Arbuckle, as previously stated, did not make a good
appearance as an objective witness As to the points of major conflict between his testi-
mony and that of Watt, Gee, Vance, and Ketchum, I credit Watt, Gee, Vance, and Ketchum.
However the consistency of the facts reveals the crediting of all as to many minor details.
Except as herein set out, the testimony of the witness contradictory thereof is not credited.
32 1 am convinced that Vance, the leadman with closest responsibility for supervision in
the area, was more accurate in his description of the number of paint pails involved, and
that Gee confused the number of pails of paint remaining after the tests were made. It is
obvious that some lossage resulted from the tests and perhaps from the cleaning of the
paint pots. In any event Vance, in my opinion, is more reliable in his testimony as to
the number of pails involved.
LYON, INCORPORATED 67
belt (the placement of the locating rings in the designated place, and the place-
ment thereon of the part to be painted, fixes the part to be painted in position to
be painted by the automatic paint guns), and (4) the improper harnessing of the
automatic paint guns, on one occasion, by Jamie Arbuckle resulted in some lost
production time. There were other problems involving foreign substance in paint
thinner, in paint, and in the paint pots. These were (5) the finding of an unidentified
foreign substance in the paint thinner, which when used ruined some white paint,
(6) the finding of methane paraffin in some ruined white paint, and (7) the discovery
of acid in a paint pot, the apparent attributable cause of some burns on em-
ployees' fingers.
The General Counsel's witness Arbuckle did not dispute the occurrence of most
of the problems. As to the improper mixing of the red color resulting in the 400
rejected wheel covers, Arbuckle testified that on the occasion on the day shift that
this occurred that the paint being used was paint that had been used by the night
shift and tagged, that it was used because the "tagging" was presumed to be correct,
and that Leadman Vick Vance was the one who actually hooked the paint up.
Arbuckle denied knowledge 33 of the removal of the identification markers from
the black paint pails but stated that on occasion the markings were rubbed off by
people sitting on the cans, that this had occurred with reference to partly filled cans
(one-half gallon of paint being involved). Arbuckle's testimony did not touch
upon the matter of his failure to properly place the locating rings on the conveyor
tables, nor did he testify concerning the methane paraffin's ruining the white paint.
Arbuckle testified that as to the foreign substance in the thinner that he believed
the problem had occurred more than once, that on the occasion that he remembered,
he had opened a new can, had discovered the foreign substance in the thinner, had
reported the same to Supervisor Gee, and had been told to mark the thinner can
with "do not use."
Jamie Arbuckle testified to the effect that problems, as described beforehand, had
occurred before, and would recur, that there were always problems in production
work, and that there was nothing unusual about the problems occurring. Seifert,
Watt, Gee, and Vance testified in effect that there were always production problems
but not to the extent or nature of the problems as described herein. Watt testified
that the problems of rejects was caused normally by faulty painting and not by the
use of incorrect paint.
The Improper Harnessing of the Hoses on the Automatic Paint Guns
On a Sunday, during the 3- or 4-week period prior to Jamie Arbuckle's demotion
transfer on November 21, 1962, Arbuckle was instructed to repair some automatic
paint guns. There were two automatic paint guns to repair. Arbuckle repaired one
of the automatic paint guns to his satisfaction. After taking all the hoses off of
the second automatic paint gun and putting on new hoses, he discovered that he
could not get the second automatic paint gun to work. Arbuckle contacted the
maintenance superintendent, secured a "print," 34 and received help from a main-
tenance man in replacing the hoses on the second automatic paint gun.
The next day Vick Vance and Jamie Arbuckle reported to work 30 minutes prior
to the time that production was scheduled to commence.35 After Vance and Arbuckle
had hooked up two of the automatic guns they started hooking up the third and
fourth paint guns. Arbuckle told Vance that he had worked on the (fourth) gun
and had had help from maintenance, but that he was not sure that the gun would
work properly. Vance looked at the gun and said he would have to switch two
hoses. Within about 5 minutes thereafter, Vance had switched the hoses and the
gun was ready by the time that the production men reported for work. When the
third gun was hooked up,36 it was discovered that the hoses were crossed and that
paint was being pumped into the airlines. This necessitated having maintenance to
work on this gun. Maintenance worked on this (third) automatic gun approxi-
mately 2 hours, completing the work around 9 a.m 37
"I do not credit his denial
94 Apparently revealing how to connect the hoses, etc.
I find Vance's testimony that he reported ,30 minutes before production time on the
day involved more reliable than Gee's inasmuch as he was involved in the actual hooking
up of the automatic paint guns
Whether Arbuckle or whether Vance hooked up the fourth gun is not clear.
Gee's relation of the time necessary to complete the work appears reasonably reliable.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Incident of the Acid in the Thinner in the (Cleaning) Paint Pot
On the occasion that acid was discovered in the "thinner" in the (cleaning) paint
pot,38 the day crew had used the paint pot to clean the guns in the afternoon.
Following this time the night crew had been on duty, and the next morning when
the day crew returned to work acid was discovered in the cleaning paint pot when
they started to hook up to the pot.38 Gee checked with the night crew and was
told that they had run into acid in the (cleaning) paint pot mixed with the thinner.
Gee credibly testified that the colored weekend cleanup crew did not use the (clean-
ing) paint pot involved, and had other paint pots designated for their use.
Jamie Arbuckle testified to the effect that on the occasion that something was in
the paint pot, it was possibly "strickling" [strychnine] 40 fluid, which had been placed
in the paint pot with the thinner by the colored weekend crew, and that his brother
had been the one to next hook up the paint pot. Jamie Arbuckle also testified that
his brother had "got something on his gloves" that ate a hole in the gloves, but that
it was paraffin off of the top of the stools and not acid that caused the holes.
Arbuckle admitted on cross-examination that something had gone wrong with the
paint pot resulting in his brother's getting burned a little, that Gee had said that
the thinner would be sent back, that what had happened was that at the company
from where it had been received the drum had not been washed out before it had
been filled. Arbuckle testified as to the improper harnessing of the automatic guns,
that the incident had occurred, that while harnessing the guns he had run into,
problems, had asked for and received help from maintenance, and that the incident
had resulted in no loss of time by the production line.41
The determination of the degree of production problems oftentimes involves such,
nebulous factors that exact measurement is difficult The persons actually involved
are in the best position to so determine. I am convinced that Gee and Vance truth-
fully stated their evaluation that the problems referred to in this report were unusual
and above the extent of normal problems. The problems, as described, also appear-
to be unusual and more than coincidence, when considered together and when
occurring within a 3- and 4-week period.
On November 21, 1962, Paint Supervisor Johnny Gee discussed the problems
that had been occurring in the paint department with Plant Superintendent Keeder42
Keeder and Gee then went in to see Plant Manager Watt. Keeder related to Watt
that there had been paint lines mixed up, paint hoses mixed up, acids in the paint,
acids in the thinners, identification markers removed from paint cans, the use of
the wrong types of black paint (shiny or black), the use of a red color not purchased:
by the Company, and a problem about "rings" on 43 the conveyors which was reoc-
curring. Keeder stated that he suspected sabotage, that the situation was not im-
proving, that something had to be done about the problems, and that he was in favor
of taking action on the problem immediately. Watt asked for suggestions. Keeder
stated that it was the function of the paint setup men to take care of the paint,
the paint hoses, and the conveyors. Keeder added that even the viscosity of the
paint was out of control, that the initial action in correction should start with the
paint setup men who had the responsibility of seeing that these jobs were taken care
of and done correctly. Watt agreed with Keeder. Keeder recommended that the
day and night paint setup men be taken off the job and if the situation did not
improve that they proceed further until the cause of the problems were determined.
Watt agreed with the recommendation and it was decided to speak to the day and
night paint setup men at the end of the day shift.
At the end of the day shift, Johnny Gee, Keeder, Personnel Manager Ketchum,
and Watt met with the day and night paint setup men who were Jamie Arbuckle
and Henry Arbuckle.
38 A particular paint pot was used for the purpose of cleaning out the paint heaters,
paint guns, and hoses when a change was made from one color to another color paint.
89 Apparently, the paint guns are hooked up to the paint pot containing thinner and,
the thinner flowing through the guns and hoses cleans out the paint.
90 Possihle reference to strychnine, an amorphous acid
" I do not credit Arbuckle's testimony to the effect that no production line time was,
lost Arbuckle also contradictorily testified to having been complimented on his work,
and also to the effect that "nothing" was said to him one way or the other about his work
41 Keeder had recently replaced Charles Watt as plant superintendent and the latter had,,
been made plant manager.
11 Elsewhere described as locating rings.
LYON, INCORPORATED 69
Keeder told the Arbuckles that they knew of the difficulties in the paint depart-
ment with mixup of hoses, the acids in the thinner, the color mixups (red color and
black paint), the identification markers being off the paint cans, and the menthol
alcohol and that the problems kept getting worse. Keeder told the Arbuckles that he
had to do something to eliminate the problems, that the problems occurred in their
area of responsibility and smelled either of sabotage or incompetence, that he had
to start somewhere and that he was starting by taking them off their jobs, and that
if he had to go further to find out the cause he would pursue it to the end. Henry
Arbuckle asked how he could be suspected of sabotage when he had been burned
by the acid 44 and Jamie Arbuckle wanted to know if he were being accused of
sabotage, and if so, what. Keeder told the Arbuckles that he did not accuse them
of sabotage, that he had said "we suspicion" it. Jamie Arbuckle stated that he
knew where he stood now, that he knew where he was going from here. The
Arbuckles were then told that they were being placed on other jobs. They were
placed on stockhandling jobs effective November 23, 1962 45 Jamie Arbuckle's rate
of pay on the stockhandling job was $1.30 per hour.
Watt told Keeder to watch the situation closely and to report back to him on
what was happening. Keeder later, within 2 days, reported that he had proven
his point, pointing out to Watt that he had seen the production yesterday and that
be was showing him the production now.46
The General Counsel contends that the November 23 transfer of Jamie Arbuckle
was a discriminatory transfer in violation of Section 8(a) (1) and (3) of the Act.
I do not find that the preponderance of the evidence supports a finding of an
8(a)(1) and (3) violation in this respect. The credited evidence does not reveal
that the Resrondent had direct knowledge of Arbuckle's union activity. The evidence
reveals that he signed a union card on September 13, 1962, that Arbuckle was pre-
senting himself to the Respondent in September as an ally, and that in October he
signed an antiunion petition. The evidence also reveals that Arbuckle did not follow
uo h;s offered help to the Respondent, and reveals some company knowledge of
Jamie Arbuckle's brother's (Henry Arbuckle) union activity. Considering the fore-
going as the basis for company knowledge and motivation for a discriminatory
transfer of the Arbuckles, I do not find that the evidence preponderates for a finding
of discriminatory transfer of Jamie Arbuckle.
It is clear that unusual problems occurred on the paint lines and in the area of
general responsibility of the two Arbuckles. Considering all the facts, it appears
reasonable that the Respondent would suspect that sabotage or incompetence was
behind the unusual problems. If sabotage or incompetence existed, it does not
appear unreasonable that protests relative to Henry Arbuckle's having been burned,47
or that other individuals could have made the errors, should have been ignored by
the Respondent. Such protests could reasonably be expected whether the Arbuckles
were to blame for the incidents or not. Under all the factual circumstances of this
case,48 I conclude and find that the General Counsel has not established by a pre-
ponderance of the evidence that the transfer of Jamie Arbuckle to the stockholding
job on November 23, 1962, was in violation of Section 8(a)(3) and (1) of the Act.
Jamie Arbuckle continued to work as a stockhandler through Monday, January 28,
1963. On Tuesday and Wednesday, Arbuckle was off from work. On Thursday,
Arbuckle showed up at the plant and saw Personnel Manager Ketchum and
Plant Superintendent Watt.
44 The incident of acid In the thinner in the paint cleanup can
46 Arbuckle testified that the transfer was effective November 24-the day after
Thanksgiving
49 Arbuckle testified to the effect that after he became a stockhandler , if anything, there
were more rejects He testified that he had no way of knowing what the total plant
production was. The General Counsel contends that an inference should be drawn from
Respondent's failure to adduce the production reports. In the circumstances of this case
and my view of Arbuckle 's credibility as a witness , I do not draw such an inference The
facts reveal that the Respondent was enlarging Its number of employees up until December.
I find the testimony credible to the effect that production Increased
41 From the evidence characterized as slightly burned
48 The facts set out foregoing and following in this report have all been considered in-
eluding the evidence of union animus and propensity for illegal action on the part of the
Respondent.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Events of January 31 and February 2 and 5, 1963 49
Just prior to Arbuckle entering Watt's office , Ketchum's secretary had told Watt
and Ketchum that Jamie Arbuckle was there and wanted to quit, that she had told
him that if he talked to them that he might be able to straighten himself out. Watt
told the secretary to send Arbuckle in, and Arbuckle entered the office.
Ketchum asked Arbuckle why he had been out on Tuesday and Wednesday.
Arbuckle related that he had been to a funeral . Watt asked Arbuckle what he
wanted to see him about . Jamie Arbuckle then stated that he wanted to get
himself straightened out, that he was all messed up, that the Union had him all
messed up, and that he wanted to get straightened up and get rid of Mitchell.50
Arbuckle stated that he had given the National Labor Relations Board man an
affidavit , had tried to contact him but had missed him, and that he wanted to get
the affidavit back to show to Watt and Ketchum in order that he could get the charges
dismissed . Arbuckle also stated that he was going to write Mitchell (the union
representative ) and tell him that he did not want him bothering him anymore
Arbuckle told Watt and Ketchum that he had belonged to the Union before and
should have known better than to be in this mess, that the Company could not afford
to give the employees what the Union was asking for, that he had a good job and
should have been happy, and that he was going to write a letter to Watt explaining
all the things that had happened . Watt told Arbuckle that he was not asking him
to do anything , that if he wanted to do so, he was the one that was doing it. Arbuckle
told Watt that he was aware of the situation that he had created and was going to
clear his conscience , that he had not done any of the things that happened on the
paint lines intentionally but could have done them by accident . Arbuckle explained
that the Union had him "shook up," that as soon as he was away from work that
someone had "hold of " him "about the Union ," that he had found out he could
not do two jobs, one for the Union and one for the Company , and do his job right.
Arbuckle stated that he saw the "red paint"-that he could not think right, that
he knew that the things Keeder had spoke about had happened but that he did
not know if be did them , that he could have done them. Arbuckle stated that he
had been working real hard for the Union with Mitchell and had had his mind
on the Union when at work, that he could have done the "things ," but not intention-
ally Jamie Arbuckle told Watt, as he was leaving, that he would see him on
Monday. Arbuckle , in fact, never returned to work
The General Counsel alleges that Arbuckle was constructively discharged on
January 31, 1963.
Considering all the evidence in this case, including the fact that Arbuckle's transfer
on November 23, 1962, was not a discriminatory transfer, and the fact that the
alleged constructive discharge occurred several months later , I do not find that the
evidence preponderates in support of a finding that Arbuckle was discriminatorily
(constructively ) discharged on January 31, 1963.
The Events of February 2 and 5, 1963
Later Watt related to Lester Inman , one of Respondent 's attorneys, what had taken
place with Jamie Arbuckle . Inman told Watt that Jamie Arbuckle "might could"
help the Company with its case and suggested that Watt pursue the matter and talk
4 The facts relating to the events of January 31 and February 2 and 5 , 1963, are based
on a composite of the credited testimony of Watt , Ketchum , and Arbuckle As to the
major conflict in the testimony , I credit Watt and Ketchum and discredit Arbuckle Watt
and Ketchum testified substantially in effect with the facts set out above Arbuckle ' s tesiS-
mony was to the effect that he went in on January 31 and told Ketchum and Watt that
he was quitting because of humiliation and embarrassment but agreed to think it over,
that thereafter Watt sent for him and he went to see Watt at home on Saturday, Febru-
ary 2, 1962 , that Watt spoke of Arbuckle 's hardship and offered to help him but that he
(Arbuckle ) must help him (Watt ) first , that Watt asked him to make a statement admit-
ting his fault as to the problems to the paint department , and then asked him to get a
copy of his statement made to the National Labor Relations Board , and that he ( Arbuckle)
refused to do so Arbuckle also testified that Wait sent for him a few days later and that
he was interviewed at the Company by Respondent ' s attorney , Kullman, that Watt again
tried to get him to give a statement supporting Respondent and told him that he would
like to help him and get him started on the ladder back up As previously stated, I find
Watt and Ketchum to be more credible witnesses and have credited their version of the
testimony and discredit Arbuckle 's testimony where in conflict and not set forth in the
facts found. As indicated herein, however, I discredit some of Watt ' s testimony.
so The union representative.
LYON, INCORPORATED 71
to Jamie Arbuckle. Watt, on Friday, February 1, 1963, told Vick Vance to get
in contact with Jamie Arbuckle for him. Vance contacted Jamie Arbuckle and told
him that Watt wanted to see him at his ( Watt 's) home. Jamie Arbuckle told Vance
that he would go to see Watt.
Jamie Arbuckle went to Watt's home on Saturday , February 2, 1963, around 10 a.m.
Arbuckle substantially repeated what he had told Watt on Thursday to the effect that
he had not intentionally made the various mistakes, but could have made some of
them, that he had been upset on account of the Union. Watt told Jamie Arbuckle
that he knew of his bad financial shape, and wanted to help him, but before he
helped him he wanted a statement to the effect that Arbuckle could have been at
fault in the various mistakes . Watt asked Arbuckle if he had a copy of the statement
he had made to the National Labor Relations Board man . 51 Jamie Arbuckle told Watt
that he would give him a letter stating all the things he had told him, that he did not
have a copy of the statement he had made to the National Labor Relations Board,
but was going to write a letter to the National Labor Relations Board in Memphis
asking for his affidavit , stating he wanted to drop the charges , and that he would
not appear in court even if called. Jamie Arbuckle told Watt that he had worked
hard and would work hard again , that he could still make the Company a good man.
On Monday , February 4, 1963 , Jamie Arbuckle did not report to work. On Tues-
day, February 5, 1963, Personnel Manager Ketchum went to Jamie Arbuckle's
house and asked what was the matter . Arbuckle testified that he had not been down to
work, that the maid was sick and his wife was working, and that he was looking
after the children . Arbuckle told Ketchum that he did not know if he were coming
back to work or not. Later that day, Vick Vance came to Arbuckle 's house and told
him that Watt wanted to know if he would come to the plant and talk to him.
Arbuckle told Vance that he could not go then because he could not leave the chil-
dren by themselves , but that as soon as he could, he would. Vance stated that Watt
wanted Arbuckle to call him if he could not come. Arbuckle called Watt and told
him that he could come after 4 p.m. when his wife got off work, but that he did not
have transportation . Around 3:30 p.m. Arbuckle 's brother-in-law came by and
stayed with the children , and Arbuckle borrowed his car and went to see Watt at
the plant.
Arbuckle saw Watt in his office and told him that , after thinking it over, he just
could not have done "those things ." Watt introduced Arbuckle to Frederick
Kullman, Jr., one of Respondent 's attorneys , and Watt left the office . Kullman asked
Arbuckle questions as to whether Arbuckle could have been at fault as to the various
problems that had occurred 52 Arbuckle told Kullman no , that he could not have been
at fault. Kullman had a yellow pad while talking to Arbuckle but wrote nothing
down. Kullman excused himself from the room momentarily and then returned to the
room with Watt. Watt told Arbuckle that he thought that he had been going to
help them by giving them information to help the Company defend the charges
against it . Watt again talked about Arbuckle's financial trouble and that he would
like to help him "get started on the ladder back up" but that before he could help him
that Arbuckle had to help him. Arbuckle in effect told Watt that the blame for the
incidents could not be placed on him , that there were five people who mixed the
paint, set up the lines , and worked on hoses. Arbuckle stated that as to the time
that he remembered a hose mixup , that he had gotten help from the maintenance
department . Arbuckle told Watt that with that many people that he could not see
how it could be said that he had done it, and that he knew that he had not Watt
angrily stood up and said that he did not see any reason to pursue the meeting any
further, that he was sorry for Arbuckle , that he would like to help Arbuckle, but
could not help Arbuckle unless Arbuckle helped him (Watt ). Arbuckle stated that
he was sorry but that he could not admit to something that he did not think he
"had any part of."
Watt 's conditioning of his help to Arbuckle upon the receipt of a statement from
Arbuckle in Respondent 's defense ,53 and connected with his questioning of Arbuckle
as to whether Arbuckle had a copy of the statement he had made to the National
Labor Relations Board, necessarily exerted an inhibitory effect on the willingness of
R Although , in general , I find Watt more credible as a witness than Arbuckle, I find
that on the basis of the overall evidence that Arbuckle's testimony relating to Watt's
conditioning his help , and to Watt's question about the National Labor Relations Board
affidavit , more credible and believable than Watt' s version
r2 The problems relating to the incorrect mixing of paint, the incorrect viscosity of
paint, the incorrect colors , the crossed up lines ( automatic guns ) previously described
elsewhere in this report
c3 Under the circumstances , such conditioning of help amounts to a promise of benefit.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,employees to make statements to Board agents, and thereby the Respondent inter-
fered with employees' exercise of their rights under Section 7 of the Act. I conclude
and find that the Respondent by the foregoing conduct violated Section 8(a) (1) of
the Act 54
B. The Objections
At the time of the hearing in this matter there were four undisposed-of objections.
The Board had reserved to itself the determination and disposition of Petitioner's
,objection No. 7. Petitioner's objections 2, 4, and 9 are issues for consideration by me.
1. Petitioner's objection No. 2
Petitioner's objection No. 2 alleged "the reduction in pay of employees Jamie
Arbuckle, L. E. Hamilton, Henry Orr, and the reduction of Henry Arbuckle to a
lower job classification." By virtue of the preliminary reports and orders, the issue as
-to Petitioner's objection No 2 had been narrowed to concern only Henry Orr and
Jamie Arbuckle and only evidence was adduced as to Orr and Jamie Arbuckle. The
-evidence clearly revealed that Orr was discriminatorily transferred on September 24,
1962, and prior to the date that the petition for representation election was filed
(October 8, 1962). Thus the Respondent's conduct relating to Orr, occurring prior
to the filing of the representation petition, is not properly to be considered as a basis
for setting the election aside.55 The facts pertaining to Arbuckle's transfer on
November 23, 1962, have previously been set forth in this report in section III, A, 3.
I have found that his transfer was not discriminatory in nature. Considering the
foregoing, and all the evidence, I recommend that Petitioner's objection No. 2 be
overruled.
2. Petitioner's objection No. 4
Petitioner's objection No. 4 alleged "threats by company supervisory personnel to
,discharge any employee who was for the Union." At the hearing the Petitioner moved
to withdraw this objection. There was no opposition to this motion, and there
was no evidence adduced in support of this objection. Inasmuch as the motion to
withdraw was made at the hearing, and as no evidence was adduced to support said
,objection, it is recommended that Petitioner's objection No. 4 be overruled.
3. Petitioner's objection No. 9
The Petitioner's objection No. 9 alleged the "use and distribution of `Vote No' signs
by the plant manager and other supervisors on the plant premises during working
hours on the day before and the day of the election." The evidence adduced touching
upon this objection pertained to the status of Steven Goodson as a supervisor and to
the conduct of Goodson and Plant Manager Watt.
Goodson's Status as a Supervisor
Plant Manager Watt testified to the effect that the Employer had a cleanup crew
consisting of eight employees and a leadman named Steven Goodson, that Steven
Goodson received his orders from the plant superintendent and took care of the
jobs (cleaning up of different areas) that the plant superintendent wanted done, and
that Steven Goodson worked right with the men.56 Watt described Goodson's duties
as being routine and testified to the effect that the jobs performed by the cleaning
crew were of a routine and recurring nature with the same jobs being performed
daily.
Watt testified that Goodson spent approximately 75 percent of his time engaged
in activities in which he personally performed, physical work. Watt testified that
s4 See Texas Industries Inc.; et al. , 139 NLRB 365 , wherein the Board stated, "The
Board has held that such statements given the Board agents are confidential , and that an
-employer's demand on employees for copies thereof or interrogation about their contents
necessarily exerts an inhibitory effect on the willingness of employees to make such state-
ments , and thereby interferes with employees ' exercise of their rights under Section 7 of
the Act " I find that Watt' s conditioning of help in the circumstances described , exerted
the same type of inhibitory effect upon employees with respect to their willingness to give
statements to the Board agents.
ss Goodyear Tire and Rubber Company, 138 NLRB 453.
eo Watt did not testify to any supervision that the plant superintendent engaged In
directly in connection with the cleaning crew otherwise . Elsewhere Watt' s testimony re-
-veals that the plant superintendent 's job takes him in and through the plant frequently.
LYON, INCORPORATED 73
Goodson cleaned up and painted equipment,57 operated a large crane in the movement
of equipment and the movement of sulfur dioxide tanks, drained oil sumps and
removed waste oil and drums with a tow motor, fueled the two tow motors, mowed
the company lawn (50 percent of the time that the lawn is cut), drove a truck on
miscellaneous missions, stocked 12 vending machines, and handled change for
the vending machines. He also testified that Goodson makes trips to buy supplies,
(paint), had the automobile and truck serviced and was responsible for maintenance
records, and that Goodson worked on the weekends, on occasion, with the other
men engaged in painting (offices, etc.), and that if only one painter were needed on,
the weekends, the person used was Goodson. Watt testified that Goodson and the
other employees worked together in cleaning the machines for painting, and that
Goodson spray-painted the machines.
Personnel Manager Ketchum testified to the effect that Goodson was hourly paid
and received time and a half pay for all weekly hours over 40 hours, that at the time
of the election (December 14, 1962) he was pretty certain that Goodson's rate of pay
was $1.60 per hour, and that he believed that Goodson's rate of pay on May 1, 1963,
was $1.70 per hour. No evidence was adduced at the hearing of admitted super-
visors' pay, or of the pay rates of the eight admitted employees who worked on the
cleanup crew. Jamie Arbuckle, when a paint setup leadman, received $1.65 per
hour while working on daytime.
Plant Manager Watt testified to the effect that Goodson did not have the authority
(1) to hire and fire employees, (2) to effectively recommend the discharge or hiring
of an employee, (3) to effectively recommend the promotion or the demotion of an
employee, (4) to effectively recommend the raise or the cut in pay of an employee, (5)
to grant employees time off, and (6) to effectively take any action which results in
the change of the personnel status of any employee and that Goodson's assignment or
direction of work was of a routine nature.
Foreman Heath testified to the effect that supervisors did not wear company
identification badges, that leadmen wore gold badges, and that employees wore blue
and white badges.58 Heath testified to the effect that Goodson did not wear a
badge.59 Personnel Manager Ketchum testified to the effect that when the plant
first commenced operations that everyone wore a badge but that later it was decided
that persons on the office payroll did not have to have badges, that Goodson was
carried on the office payroll and was classed as office maintenance. Jamie Arbuckle
testified to the effect that Leslie Little worked with Goodson with the cleaning crew
and that Little wore a yellow badge.so
The parties stipulated that Goodson attempted to vote in the December 14, 1962,
election but was challenged because his name was not on the voting list. Ketchum
testified to the effect that Goodson and several other employees' names were left off
the voting list by mistake.
As to the eight cleaning employees, other than Goodson, Watt testified to the
effect that they had certain daily routine and recurring jobs to do and daily reported'
to these jobs. Thus (1) two employees (in a truck), daily and recurring through
the day, removed 55-gallon drums full of refuse from the basement of the buffing
department and replaced in the basement empty barrels to catch refuse as it ac-
cumulated from the operation of the buffing wheels, and disposed of the refuse by
carrying to and dumping at the city dump. In addition, when caught up with this
work, these employees disposed of wastepaper, stored in the plant, by burning at
a designated area or by carrying to and dumping at the city dump. (2) Two em-
ployees (one working in the chrome department and the other in the paint depart-
ment areas) disposed of scrap paper accumulated on the floors of the chrome and
paint department, and replenished a stock of separators for operational use.81 These
employees kept the chrome and paint department clear of scrap paper on the floor.
"Foreman Heath also testified that he had seen Goodson operating a crane, painting,,
cleaning up material for painting, mowing the lawn, driving a truck, driving a tow motor,
fueling the tow motor, and pushing drums around the plant on a handtruck on a tow
motor, and operating the crane in moving the sulfur dioxide tanks. Heath testified that
generally when he saw Goodson that he had helpers with him.
"Although testifying to the effect that he was foreman over the press line and had'
been a supervisor for 2 months, Heath testified that he wore a "leader badge "
0 Heath testified that he saw Goodson in the plant but had never seen him with a^
badge on.
60 Apparently Arbuckle described the gold leader badge as being yellow.
61 The Employer makes wheel covers. The dividers are used to separate the wheel
covers and thus to eliminate scratching of the same by their being rubbed together.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) One employee used a small two-wheel truck and picked up large waste cans full
of waste, emptied the same, and placed the empty can back in position. These cans
were located in the different departments of the Company. (4) One employee swept
certain areas of the plant. He did this manually and with a motorized sweeper.
(5) One employee cleaned up the office and restrooms. (6) One employee cleaned
the toolroom, cafeteria, lounge rooms, and lounge areas.
Foreman Heath testified that two of the cleaning crew worked under him. In
answer to questions pertaining to Goodson's instructions of the cleaning crew
employees, Heath testified, "Well, he may need somebody somewhere else and he
will move them to another department .... Well, he had a certain job he would
give a man. He would just come get him and tell him what to do and he would
probably go back to what he was doing when he got through." Heath also testified
that he had not seen Goodson "often" give instructions to the cleaning department
employees.
Jamie Arbuckle testified to the effect that on a large number of occasions that he
had seen Goodson and his cleanup crew working in the plant on the weekends, that
he saw Goodson directing which men in the cleanup crew would work in one area
and telling others to work in other departments. Arbuckle testified that he had
seen Goodson sign the timecards of the cleaning employees as "Steven Goodson-
cleaning supervisor." Watt testified to the effect that he laid out the jobs to be
performed for the weekend work and determined the number of men to be used.
The following excerpt from the testimony concerning Goodson, which reveals Watt's
answer to his counsel's questioning, sets forth the manner of selection and utilization
of the cleaning employees on the weekend:
Q. I believe you did say that he generally selected the men that he brought
in and did put them on the various tasks?
A. Yes, on the jobs that they were familiar with that he would get the job
done faster, better. He would bring in the experienced men.
Foreman Heath testified to the effect that he was told by the plant superintendent
to tell the cleaning men to come to work on the weekend, or else that Goodson told
the men to do so. Heath also testified that he was the one who handed out paychecks
to the men in his department.
Watt testified to the effect that some of the weekend work involved painting of
offices.62 Gee testified to the effect that Goodson's cleanup crew took care of cleaning
excess paint off of equipment and cleaning the paint booths.
The testimony of the various witnesses as to Goodson's duties and the work of
the cleanup crew does not appear to be in real conflict and is credited except as to
the area wherein the testimony broached into conclusionary matter such as the
description of Goodson as being a leadman or supervisor, or as to his duties and
assignment authority as being of a routine nature.
Considering all of the foregoing evidence, I am convinced that the cleaning em-
ployees needed little direction as to the execution of their regular functions, but that
direction was needed in movement of the employees from one area to another area
to insure the overall execution of the cleaning jobs.63 The evidence reveals that
the plant superintendent dispatched the orders of work needed to Goodson and
that Goodson took care of the jobs. Goodson's execution of his "taking care of the
job" necessarily constituted responsible direction of the employees involved and the
necessary assignment of work, and the use of independent judgment. I find that
Goodson is a supervisor within the meaning of Section 2(11) of the Act.
The "Vote No" Signs
On December 13, 1962, "Vote No" cards were distributed at the Employer's plant.64
The "Vote No" cards may be described as follows: The cards were thin cardboard,
82 Watt testified that Goodson and the crew cleaned and painted machinery but it is not
clear whether this was done on the weekends, during the week, or both
82 And such help as Goodson might need with related service or maintenance work
84 There appears no real dispute as to the timing of the "Vote No" cards distribution.
Pruitt in his testimony did not specify the time of distribution except that he distributed
the cards at night and on his own time Jones testified as to the time that he saw the
cards being distributed that he believed it was on the night before the election. This
appears to be his best recollection. Arbuckle testified that he saw Goodson distributing
the "Vote No" cards on the day before the election and that he saw Watt pinning a
"Vote No" card on the back of an employee Watt testified to the effect that he did in
fact pin the card on an employee's back on the day before the election of December 14,
1962. 1 find that the events occurred on December 13, 1962.
LYON, INCORPORATED 75
were of white background, were 4 inches in height and 61h inches in width, and
upon the cards in red letters were the words "Vote No." The height of the letters
was approximately three-fourths of an inch, and the thickness of the stroke of the
letters was approximately one-eighth of an inch.65
Employee Roy Pruitt credibly testified to the effect that he distributed in the
plant approximately 200 "Vote No" cards to employees on the night shift on his
own time (during breaks, etc.), that he did not know who had had the cards printed
but had been told that three other employees had had the cards printed, that he did
not remember seeing any supervisor around when he distributed the cards, that he
had not been told by a supervisor to not pass out the cards, that some of the employees
to whom he had given the cards had scratched out the "Vote No" and put "Yes" on
the cards, and that he had seen a "Vote Yes" sign in one of the company bathrooms.
Charles Jones credibly testified to the occasion on the night before December 14,
1962, that he saw Goodson distributing the cards as revealed by the following
excerpt from his testimony:
A. I saw him bringing some cards out, during work and while the machines
was going. I saw him come up to Heath and Tom McKaren, an operator, while
he was running his machine and hand him some papers, the size of that there
[indicating] and then he took one of those pieces of paper and put it on
McKaren's shoulder, his shoulder, and when turned around it was a "Vote No"
sign.
At the time that Jones was testifying, as the record reveals by the word, "indicating,"
he pointed to General Counsel's Exhibit No. 3, the "Vote No" card previously
described.
Foreman Ernest Heath testified to the effect that he was a nonsupervisory employee
at the time of the election,66 that he pinned one of the "Vote No" cards on himself,
that he had seen Goodson with cards similar to the "Vote No" cards but did not know
whether they were "Vote No" cards, and that he had not seen anything written
on the cards 67
Jamie Arbuckle credibly testified to seeing Goodson distribute the "Vote No"
cards as revealed by the following excerpt from his testimony:
Q. Did you ever see Mr. Goodson with any of those "Vote No" signs?
A. The only time that I saw Mr. Goodson with any was on the-I believe
it was the morning before the day of the election. I saw him go up to two
colored workers that were working on the boil off and talk to them a few minutes
and pin two of those signs on their backs.
Jamie Arbuckle also credibly testified to the fact that he had. seen Watt, plant
manager, pin a "Vote No" card on the back of an employee as revealed by the follow-
ing excerpt from his testimony:
Q. (By Mr. BOLTON.) Did you ever see any supervisor with those "Vote No"
signs?
A. No, but I saw Mr. Watt come by and there was a boy, I believe his name
was Lancaster working, oh, about five or six feet from me on a conveyor line
and he had two of those signs and he pinned one on the front of him and was
trying to pin the other one on the back of him and Mr. Watt comes along and
took the card and pinned it on his back for him.
Watt's version was not substantially different. Watt testified to the effect that the
only recollection he had was that he had touched or hit a man, whose name he did
not remember, on the back, dislodged a sign , and had assisted the man in putting the
sign back where it was. Watt testified in connection with this testimony, as to his
recollection that "we were having a lot of difficulty at that time." On cross-
examination Watt testified that the Company had not been having difficulties at the
time. Although Arbuckle did testify that Watt was a jovial, back-slapping person, I
am convinced that Watt's testimony to this event, as revealed by his contradictory
testimony as to the difficulties, is not completely reliable. I find Arbuckle's version
more credible.
ii General Counsel's Exhibit No 3
61 At the time of the hearing-April 30, 1963-Heath testified that he had been a super-
visor for 2 months.
67 As to the apparent conflict between Jones and Heath's testimony, I find Jones the
more credible witness
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Excepting for Supervisor Goodson's conduct in connection with the distribution
of the "Vote No" cards, I do not see that the Employer as to the "Vote No" cards
interfered with the employees' right to a free and untrammelled election choice. I do
find and conclude, however, that Supervisor Goodson's conduct in distributing the
"Vote No" cards placed the employees in a position of declaring themselves as to
union preference and thus interfered with their right to a free and untrammelled elec-
tion choice.68 It is therefore recommended that Petitioner's objection No. 9 be
sustained, that the election of December 14, 1962 (in Case No. 26-RC-1849) be set
aside and that a second election be directed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic, and commerce upon
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , it is,
recommended that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases, as provided in the
Recommended Order below, which is found necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a) (3) and (1) of the Act by the
discriminatory transfer of Harvey Orr on September 24, 1962, from his job as a die-
setter to a job as a stockhandler, it is recommended that Respondent offer him im-
mediate and full reinstatement to his former position as a diesetter, or to a sub-
stantially equivalent position, without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him,69 by payment to him a sum of money equal
to the difference, if any, between the wages he would have earned, absent the
discrimination against him, and the amount he actually earned, from September 24,
1962, until the date of Respondent's offer of reinstatement as recommended herein.
Such backpay shall be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and with interest
thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
As I have found that Respondent's conduct improperly affected the results of the
election, I shall recommend that the election held on December 14, 1962, in Case
No. 26-RC-1849 be set aside and that a second election be directed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Lyon , Incorporated , is, and has been at all times material herein , engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Aluminum Workers International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8(a)(1) of the Act.
4. By transferring Harvey Orr from his job as diesetter to a job as a stockhandler
because of his activities on behalf of the Union, Lyon, Incorporated, has discriminated
in regard to the hire and tenure of employment of Orr, thereby discouraging
68 The Respondent contends that Goodson, at most, Is a minor supervisor, and that
such conduct committed by a minor supervisor does not warrant the setting aside of the
election. Goodson as a supervisor responsibly directed the overall execution of the
cleaning department employees, and directed such employees to move from section of the
plant to another section Under such circumstances, I do not see that his supervision is
of such minor significance that his conduct can be overlooked
68 Orr's rate of pay was not changed at the time of his transfer. It is a matter of
compliance to determine whether the transfer caused loss of pay to him as to possible
loss of wage increases as a diesetter.
LYON, INCORPORATED 77
membership in Aluminum Workers International Union, AFL-CIO, in violation of
Section 8 ( a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
6. The Respondent did not engage in unfair labor practices within the meaning
,of Section 8(a)(3) or (1) of the Act as alleged with respect to alleged discharges
and/or transfers of Robert O'Bryant and Jamie Arbuckle.
7. The Respondent did not engage in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act as alleged with respect to interrogation or threats by
Supervisors Todd and Ketchum.
8. The evidence does not establish that Lyon, Incorporated , engaged in conduct
that constituted interference with the results of the election (held on December 14,
1962) as alleged by the Petitioner in objections Nos. 2 and 4.
9. By interfering with employees in the exercise of, or refraining of exercise of,
rights guaranteed by Section 7 of the Act, Respondent improperly affected the
results of the election.
RECOMMENDED ORDER 70
Upon the basis of the foregoing findings of fact, conclusions of law, and the
-entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that
the Respondent , Lyon, Incorporated , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Aluminum Workers
International Union, AFL-CIO, or any other labor organization of its employees,
by discriminating in regard to their hire or tenure or any terms or condition of
employment.
(b) Promising employees benefits in a manner constituting interference, restraint,
or coercion within the meaning of Section 8(a)(1) of the Act.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
Aluminum Workers International Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
.aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Harvey On immediate and full reinstatement to his former position
as a diesetter, or to a substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Make whole Harvey Orr for any loss of pay he may have suffered by reason
of the discrimination against him, by payment to him of sum of money equal to the
difference, if any, between the wages he would have earned, absent the discrimina-
tion against him, and the amount he actually earned, from September 24, 1962, until
the date of Respondent's offer of reinstatement as recommended herein Such back-
pay shall be computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, 291-294, and with interest thereon
as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of the amounts of backpay due and to the reinstatement and
related rights provided under the terms of this Recommended Order.
(d) Post at its premises in Grenada, Mississippi, copies of the attached notice
marked "Appendix." 71 Copies of said notice, to be furnished by the Regional
Director for the Twenty-sixth Region, shall, after being signed by the Respondent's
"In the event that this Recommended Order be adopted by the Board, the word
"Order" shall be deemed substituted for the words "Recommended Order "
71 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order he enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Twenty-sixth Region, in writing, within
20 days from the date of this Recommended Order, what steps the Respondent has
taken to comply herewith.72
It is also recommended that the complaint be dismissed (1) as to the allegations
relating to violations of Section 8(a)(3) as pertains to Robert O'Bryant and Jamie
Arbuckle, and (2) as to the allegations relating to violations of Section 8(a)(1)
conduct by Supervisors Todd and Ketchum.
It is further recommended that the election held on December 14, 1962, in Case
No. 26-RC-1849, among the employees of Lyon, Incorporated, at Grenada, Missis-
sippi, in the stipulated appropriate unit, be set aside and that the Board direct that a
second election by secret ballot be conducted among the employees in the stipulated
appropriate unit, at such time as the Regional Director for the Twenty-sixth Region
deems appropriate and under his direction and supervision, pursuant to the Board's
Rules and Regulations.
It is also recommended that Petitioner's objections Nos. 2 and 4 in Case No. 26-
RC-1849 be overruled.
72 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Aluminum
Workers International Union, AFL-CIO, or any other labor organization of
our employees, by discriminating in regard to their hire or tenure or any terms
or conditions of employment.
WE WILL offer Harvey Orr immediate and full reinstatement to his former
position as a diesetter, or to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole for any
loss of pay he may have suffered by reason of the discrimination against him.
WE WILL NOT promise employees benefits in a manner constituting inter-
ference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
any of our employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining members of Aluminum Workers International Union, AFL-CIO, or any
other labor organization.
LYON, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Seventh
Floor Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No.
Jackson 7-5451, if they have any question concerning this notice or compliance with
its provisions.