Meinholdt Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1970

183 N.L.R.B. 1258 (N.L.R.B. 1970)

1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meinholdt Manufacturing , Inc. - Hydra-Tool Com-
pany , Inc. and Truckdrivers and Helpers Local
No. 696 , affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case 17-CA-3714
June 26, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH , AND JENKINS
On April 30, 1969, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that the Respon-
dent had not engaged in certain other unfair labor
practices and recommended that the allegations of
the complaint, pertaining thereto, be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
For the reasons stated by the Trial Examiner, we
find substantial evidence to support the conclusion
that the Respondent discharged Harold Irwin
because of his union activities, thereby violating
Section 8(a)(3) and (1) of the Act. In addition to
those factors cited by the Trial Examiner, we note
that, according to Irwin's uncontroverted
testimony, word of the campaign to solicit
authorization card signatures, and the identity of
those responsible, had circulated throughout the
entire plant within several hours after the campaign
had begun. In these circumstances, Irwin's involve-
ment in this organizational effort is unlikely to have
escaped the Respondent's attention.
Moreover, as the Trial Examiner found, there is
substantial evidence indicating that the asserted
reason for discharging Irwin on the day he began
soliciting cards for the Union is pretextual in na-
ture. The Respondent contends that Irwin was
discharged because of excessive absences from his
machine on the day in question. However the
Respondent made no attempt to ascertain whether
Irwin's absences from his machine, which Plant Su-
perintendent Allen observed, were in fact unjustifi-
able or were, as Irwin avers, required by the nature
of the work he was then performing. In this respect,
Irwin testified that large quantities of cutting oil
had to be applied constantly to a part he was
machining , that the squirt can he used held one pint
of oil, and that he had to make six or seven trips to
the machine shop to refill the can. On those occa-
sions , he shut off the machine. According to Irwin,
this accounted for the "excessive absenteeism"
from his machine. Allen himself conceded that the
amount of oil required varies with the nature of the
item being machined, that a great deal of oil was
required for the operation Irwin was engaged in
when he was discharged, and that he had been
mistaken about the size of the job Irwin was then
performing, admitting that it was much larger than
he had originally asserted. In addition to these fac-
tors, some of which were cited by the Trial Ex-
aminer , we also deem it significant that both Allen
and Vice President Hays admitted that they never
checked Irwin's production records and did not
know how his production compared with others
employed in his classification, although these
records were available and a comparison could
have been easily and quickly made. Finally,
although we are precluded from finding that Irwin's
first discharge was unlawful because of the 6-month
proviso of Section 10(b) of the Act, the circum-
stances surrounding that discharge may neverthe-
less be used to shed light upon the real reason for
the discharge here in question. The Trial Examiner
concluded that the first discharge was based at least
in part upon the Respondent's concern that Irwin
not talk to other employees about wages, hours,
and working conditions. On the basis of his credi-
bility resolutions, the Trial Examiner found that Ir-
win's second discharge was, in Vice President Hays'
own words, for the "same thing" as before.
Although the Trial Examiner did not note it specifi-
cally, the record discloses that since Irwin had not
been warned about leaving his machine before his
first discharge, the "same thing" cannot mean
"leaving his machine," which the Respondent con-
tends was the reason for his second discharge. We
find that the "same thing," to which the Respond-
ent alludes, Irwin's concerted activity, and that by
discharging Irwin for that reason, the Respondent
violated Section 8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Meinholdt Manufac-
turing, Inc. - Hydra-Tool Company, Inc., Topeka,
183 NLRB No. 129
MEINHOLDT
Kansas , its officers, agents , successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as modified herein.
1. Delete paragraph 2(a) and substitute the fol-
lowing:
"(a) Offer Harold Irwin immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges enjoyed , and make him whole for any
loss he may have suffered by reason of the dis-
crimination against him in the manner set forth in
the above Decision entitled `The Remedy."'
2. Delete footnote 27 and substitute the follow-
ing:
"27 In the event that this Order is enforced by a
Judgment of a United States Court of Appeals, the
words in the notice reading `Posted by Order of the
National Labor Relations Board ' shall be changed
to read ` Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."'
3. Substitute the attached notice for the Trial
Examiner's notice.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions of the Act not found herein.
Member Fanning, dissenting in part:
I agree with my colleagues that the Respondent
violated Section 8(a)(1) of the Act to the extent
that it imposed upon Harold Irwin a restriction
against discussing with other employees at any time
wages and other terms and conditions of employ-
ment, and implicitly threatened to discharge him
for failure to abide by that restriction.
I cannot agree, however, that Irwin's subsequent
discharge was discriminatorily motivated. It is true
that Irwin engaged in organizational activities. On
the date preceding his discharge, Irwin obtained
blank authorization cards and before the start of
work the next morning began distributing them to
employees who he thought would be interested in
the Union. That same afternoon he was discharged.
There is no evidence, however, that the Respond-
ent was aware of Irwin's activities. According to
his own testimony, Irwin was apprehensive about
being discovered while trying to obtain card signa-
tures and, while the cards were in his possession,
kept them hidden from view. Further, according to
Irwin, no member of management observed him
with the cards or in the process of getting them
signed. In these circumstances, I am unable to infer
that the Respondent had knowledge of Irwin's ac-
tivities.
Nor does a preponderance of the evidence in
other respects support the conclusion that Irwin
was discharged for his union activities, or even
MFG., INC. 1259
because he ran afoul of the Respondent's afore-
mentioned unlawful restriction against discussing
wages and other terms and conditions of employ-
ment. The Respondent's assertion that it discharged
Irwin solely because of his excessive absences from
his machine finds support in the record.
Irwin was first employed by the Respondent for a
7-month period ending on April 1, 1968. The Trial
Examiner found that during this initial period of
employment management spoke to Irwin about
staying at his machine and not visiting other em-
ployees during working time.
Irwin 's work performance following his reinstate-
ment on May 13, 1968, shows no discernible im-
provement. He received oral warnings from time to
time prior to a written warning on August 22 for
"spending too much time away from [his] assigned
work station." Irwin was also cautioned: "This is an
offense which requires one written warning before
discharge." As to this incident, Irwin himself
testified that Allen, his immediate supervisor, told
him "I would be fired if this continued and I
received numerous oral warnings prior to that
time." Irwin makes no claim that these warnings
were unjustified and admits that following the writ-
ten warning , oral warnings became ordinary daily
occurrences. Allen testified without contradiction
that on one occasion Irwin told him that he ap-
preciated Allen's tolerance for him. The Trial Ex-
aminer found "no evidence to indicate that Allen
was motivated by anything other than concern over
Irwin's work performance in issuing the written
warning ." One or two days before Irwin's
discharge-on a date clearly preceding his union
activities-Allen observed him away from his
planer while the machine was in operation and gave
him a firm reprimand. Immediately preceding Ir-
win's discharge on October 17, Allen observed him
leave his work station on several occasions, and one
time he saw Irwin, carrying two bottles of a soft
drink, go to an area of the plant where, according
to Allen, he had no reason to be. This was reported
to Hays who summoned Irwin to his office and told
him he was being terminated for excessive absences
from his machine . I would find that the General
Counsel has not sustained his burden of proving
that Irwin was discharged for discriminatory
reasons, and conclude that the Respondent, in
discharging Irwin, did not thereby violate Section
8(a)(3) of the Act.'
Finally, I do not agree that the Respondent vio-
lated Section 8(a)( I) of the Act by threats implied.
in a statement Hays made later to an employee,
Schliuning, during a conversation initiated by the
latter, to the effect that Irwin was discharged for
doing "the same thing again." Although the Trial
Examiner discredited Schliuning's version of this
conversation and found as a matter of fact that
Hays did not tell Schliuning that Irwin was
' See Southwest Latex Corporation v N L R B, 426 F 2d 50 (C A 5)
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for engaging in union activities, he
nevertheless inferred that Hays implied that "a fate
similar to Irwin's" awaited Schliuning if the latter
should engage in union activities. In view of the
Trial Examiner's credibility resolution in this regard
and because I do not believe that Irwin was in fact
discharged for discriminatory reasons, I find no un-
lawful threat contained in Hays' remark to Schliun-
ing.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Truckdrivers and Helpers Local No. 696, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor or-
ganization by discriminatorily discharging any
of our employees.
WE WILL NOT threaten any of our employees
with discharge or other reprisals because of
their concerted or union activities.
WE WILL NOT prohibit our employees from
discussing their wages and terms and condi-
tions of employment with other employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-or-
ganization, to form labor organizations, to join
or assist Truckdrivers and Helpers Local No.
696, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor or-
ganization , to bargain through representatives
of their own choosing, and to engage in other
concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activi-
ties.
WE WILL offer Harold Irwin immediate and
full reinstatement to his former job or, if that
job no longer exists , to a substantially
equivalent position , without prejudice to his
seniority or other rights or privileges, and WE
WILL make him whole for any loss he may have
suffered as a result of his discharge.
MEINHOLDT
MANUFACTURING, INC. -
HYDRA-TOOL COMPANY,
INC.
(Employer)
Dated By
(Representative ) (Title)
We will notify Harold Irwin if he is presently serv-
ing in the Armed Forces of the United States, of his
right to full reinstatement , upon application after
discharge from the Armed Forces , in accordance
with the Selective Service Act and the Universal
Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 610 Federal Building, 601 East 12th
Street, Kansas City, Missouri 64106, Telephone
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S . DAVIDSON , Trial Examiner : Pursuant to
a charge filed on October 22, 1968, by
Truckdrivers and Helpers Local No. 696, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, hereinafter referred to as the Union, a com-
plaint issued on January 20, 1969. The complaint
alleges that Respondent violated Section 8(a)(1)
and (3 ) of the Act by threatening employees with
discharge , prohibiting an employee from talking to
other employees about terms and conditions of em-
ployment at the plant , creating an impression of
surveillance among its employees , and discharging
Harold E . Irwin on October 17, 1968, because of
union activities . In its answer , Respondent denies
the commission of any unfair labor practices.'
A hearing was held before me in Topeka, Kansas,
on March 6, 1969. At the close of the hearing, oral
argument by Respondent was heard and the parties
were given leave to file briefs, which have been
received from counsel for the General Counsel and
Respondent.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Kansas corporation, operates a
manufacturing facility in Topeka, Kansas, where it
' In its answer and at the hearing , Respondent sought dismissal of the in-
dependent violations of Sec 8(a)( I) alleged in par 5 of the complaint on
the ground that they were beyond the scope of the charge filed by the
Union I find that the charge was sufficient to support these allegations in
the complaint N L R B v Kohler Company , 220 F 2d 3, 7 (C A 7),
N L R B v Louisiana Manufacturing Company, 374 F 2d 696, 704-705
(C A 8), North American Rockwell Corporation , v N L R B , 389 F 2d 866,
870 (CA 10)
MEINHOLDT MFG., INC.
engages in the manufacture of metal working
equipment. In the course and conduct of its busi-
ness operations, Respondent annually purchases'
goods or services directly from outside the State of
Kansas valued in excess of $50,000 and annually
sells and ships products valued in excess of $50,000
directly to points outside the State of Kansas. I find
that Respondent is an employer engaged in com-
merce within the meaning of the Act and that asser-
tion of jurisdiction herein is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Harold (Gene) Irwin first started to work for
Respondent in September 1967. Around April 1,
1968, Irwin was discharged. On May 13, 1968,
Irwin was reemployed. On October 16, 1968, Irwin
contacted a union representative and obtained
some blank authorization cards. On the following
day he solicited signatures on the cards from other
employees at the plant. That afternoon, Irwin was
called to the office and discharged.
The complaint alleges that Irwin's second
discharge was caused by his union activities. It al-
leges also that Respondent's vice president, Hays,
threatened Irwin with discharge for discussing
wages, hours, and working conditions with other
employees and unlawfully prohibited him from talk-
ing to other employees about these matters at the
time of his May 13, 1968, rehire. The complaint al-
leges further that Hays threatened another em-
ployee, Larry Schliuning, with discharge for engag-
ing in union activities on October 23, 1968, and
that by its consultant and former owner, Charles
Meinholdt, Respondent created an impression
among its employees that their union activities were
under surveillance.
B. Irwin's Initial Employment and Discharge
When Irwin was first hired in September 1967,
he was trained and assigned to work as a planer
operator. At the time of his hire there was only one
planer in the shop and he was the only regularly as-
signed planer operator. During his initial period of
employment a second planer and planer operator
were added.
' Although Irwin denied that he had been warned about leaving his
machine before his first discharge , he conceded that he had small informal
talks about it without identifying those who spoke to him about it Hays
testified that Irwin had been warned and criticized for leaving his machine
before his discharge He also testified that he could not recall the exact
content of his conversations with Irwin during this period There is no
evidence that Irwin was given any written warnings at this time I conclude
1261
The planers are large pieces of equipment used
to machine large metal parts of the products
fabricated by Respondent. The planers are the most
expensive pieces of machinery that Respondent
owns, and their output is essential to the operations
of the rest of the plant. During the time material
herein Respondent did not have enough planers to
keep up with its production needs. As a con-
sequence, the planer operators worked substantial
overtime, and Respondent continued to increase
the number of planers in the shop.
Irwin's first discharge, which occurred more than
6 months before the charge was filed, is not alleged
as a violation of the Act. However, the circum-
stances which led to that discharge are material to
the allegations of the complaint concerning the
statements made to Irwin at the time of his rehire
and his second discharge.
Irwin received two wage increases during the first
period of his employment. At the time of his
discharge, he and the other planer operator then
employed were seeking a further wage increase,
and both had engaged in several discussions with
Respondent's vice president, Hays, and its pre-
sident, Wills, toward this end. In addition to a wage
increase, Irwin had requested additional premium
pay for hours worked in excess of 60 a week and
had stated a preference to work longer hours rather
than have Respondent hire another planer opera-
tor. During this period, Irwin discussed wages and
working conditions with other employees. They did
not, however, engage in any union activity.
During Irwin's initial period of employment,
members of management had spoken to Irwin,
about staying at his machine and not visiting with
other employees during working hours. Willis had
observed that Irwin was not at his machine on
several occasions when he went through the shop
and spoke to Hays about it. Hays talked to Irwin
about leaving his machine and involving himself in
the production problems of other employees which
were none of his concern.'
On the night before his discharge Irwin had a
further discussion of wages with Hays. Following
this discussion, Hays spoke with Willis, and they de-
cided to discharge Irwin. When Irwin reported to
work the following morning, his supervisor gave
Irwin his check and told Irwin that he had been in-
structed by Hays to let Irwin go. Irwin asked the
reason for his discharge, but his supervisor did not
give him a reason. Irwin left and did not seek
further explanation of his discharge from other
management officials.
from the testimony of Irwin and Hays that Irwin was criticized for leaving
his machine and talking to other employees Whether the criticism
amounted to a warning is to some extent a matter of characterization How-
ever, in the face of Irwin 's denial and Hays ' uncertain recollection, I con-
clude that Irwin was not explicitly warned that he faced disciplinary action
if he failed to take corrective action
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irwin was not examined at any length as to the
content of his conversation with Hays on the night
before his discharge. Hays testified that he could
not reconstruct that conversation in its entirety, but
that he believed that they discussed Irwin' s wages
and the time he spent away from his machine. Ac-
cording to Hays, their conversation ended in a dis-
agreement, but he could not recall the nature of the
disagreement other than the general areas. Hays
made no claim that the possibility of Irwin's
discharge was discussed at that time. However, he
testified that after their conversation, he discussed
the matter with Wills, and they decided that Irwin
should be terminated. According to Wills, they de-
cided to discharge Irwin because of his on-the-job
activities.
On January 1, 1968, Respondent had distributed
to its employees a statement of policies which were
in effect at the time of Irwin's discharge.3 Among
the general rules was one which stated: "Refrain
from visiting around the plant during working
hours. (Unnecessary visiting and loafing will not be
tolerated.)" Directly related to this rule were two
other statements concerning offenses which could
lead to discharge. One of them which appeared
under the heading, "Offenses which may require
one written warning before discharge" was "Pro-
ductivity, or workmanship, not up to standard;
or making scrap due to carelessness." The other
which appeared under the heading, "Offenses
which may require two written warnings before
discharge," was "Misuse of company time, such- as
loitering , engaging in unnecessary conversation, not
keeping engaged in assigned work, and interfering
with other employees on work routine." Although
Irwin was given a written warning referring to the
first of these offenses after his reemployment, as set
forth below, he was given no written warning for
either of these offenses before his first discharge.
The inference is strong that Irwin's first discharge
was caused by his activities in seeking additional
wage increases and improvements in benefits rather
than by deficiencies in his work performance. The
discharge occurred immediately after several
discussions in which he sought a further wage in-
crease and an additional overtime premium.
Respondent did not follow its stated disciplinary
policies with respect to the offense for which it al-
legedly discharged Irwin. There is no evidence of
any incident immediately preceding the discharge
other than Irwin's talks with Hays to precipitate the
discharge. As set forth below, it is uncontradicted
that at the time of Irwin's reemployment, Hays told
Irwin he had been "bugging" Respondent too much
about wages and working conditions and that it was
his big mouth which had gotten him in trouble be-
fore. In these circumstances, and in the light of the
vagueness of Hays' testimony as to the events im-
a The statement of policies was amended and redistributed to employees
on May 2, 1968 The changes were not material to any of the issues in this
case
mediately preceding Irwin's discharge, I conclude
that it was not caused simply by Irwin's absences
from his machine, but by his activities in pressing
Respondent for improved benefits.
C. The Reemployment of Irwin
On or about May 13, 1968, Irwin telephoned
Respondent's plant and spoke with Hays. During
the conversation, Irwin asked if there was any pos-
sibility of his returning to work for Respondent.
Hays told Irwin that he would consider rehiring
Irwin under certain conditions and suggested that
he come to the plant if he wanted to talk to Hays
about it further.
Within a day or two Irwin went to Hays' office to
discuss his rehiring, and agreed to return to work
for the same amount that he had been paid before
his discharge.
During their conversation Hays set forth certain
conditions which he expected Irwin to meet if he
wanted to be rehired. According to Irwin, Hays told
him that he would not tolerate Irwin's talking to
other employees about wages or management-em-
ployee relations in general, commenting that Irwin's
big mouth had gotten him in trouble before and
that Respondent would not tolerate it again. Irwin
conceded that Hays also mentioned that a condi-
tion of his reemployment was that he stay on his
machine, but he testified that Hays stated in addi-
tion that Irwin had been "bugging" him too much
for more money or better conditions and that Hays
did not want Irwin "bugging" him or the other em-
ployees about it. According to Irwin, Hays did not
indicate that the prohibition against talking to other
employees about wages and working conditions was
limited to working time.
Hays testified that he could only recall the high
points of his conversation with Irwin. According to
Hays, Irwin was in a penitent mood and conceded
that he made mistakes during his previous employ-
ment, offering assurances that they would not recur
if he was rehired and asserting that he would stay
on his machine and produce. Hays testified that he
told Irwin that he could do whatever he wanted on
his own time but that during working hours he was
to keep his machine running or Responden, would
not consider rehiring him. Hays conceded that
there was a statement made about Irwin's talking to
others about wages and working conditions, but
testified that the restriction "would" have been
confined to working hours when Irwin was sup-
posed to be on his machine. Hays testified that
these instructions were not normally given to new
employees at the time of hire, but as Hays had
previously had a problem with Irwin before for
which he had fired Irwin, the warnings were given
to Irwin.4 Hays did not deny telling Irwin that he
4 In this connection Hays testified that the problem was not talking about
wages and conditions but Irwin's failure to produce his work and spending
his time away from his machine involving himself with others
MEINHOLDT MFG., INC.
had been "bugging" Respondent too much for
more money or better conditions and that it was his
big mouth which got him in trouble before.
Irwin and Hays agreed that at the time of Irwin's
rehire he was told that as a condition of his rehire
he would have to stay at his machine, and that he
was also told that he was not to talk to other em-
ployees about wages or working conditions. In
dispute is whether the second restriction was re-
lated to the first and limited to working time, or
whether it was presented as a separate matter of
concern and unlimited as to time.
Given the circumstances of Irwin's discharge, I
conclude that in rehiring Irwin Respondent was not
only concerned over insuring that Irwin stay at his
machine during working hours but was indepen-
dently concerned that Irwin not renew his agitation
for improved wages and working conditions either
directly or indirectly by talking to other employees
about these matters. In these circumstances, and in
the light of the professed incompleteness of Hays'
recollection of his interview with Irwin, I credit Ir-
win's version of his reemployment interview with
Hays as more accurate than that of Hays.-'
D. Irwin's Work Performance After his
Reinstatement
Irwin's work performance was satisfactory for a
period of time following his reemployment. How-
ever, he received oral warnings from time to time
from Plant Superintendent Allen6 about leaving his
work station.
On August 22, 1968, Irwin was given a written
warning by Allen. The text of the warning was:
It is the opinion of the company management
that you are not producing your full capabili-
ties due to the fact that you are spending too
much time away from your assigned work sta-
tion. This is an offense which requires one
written warning before discharge.
Although Irwin attributed this warning to difficul-
ties he encountered in keeping an old planer to
which he was then assigned in a state of repair? and
to Allen's lack of understanding of what was in-
volved in operating a planer, there is no evidence to
S In this connection , I have considered the testimony of Reed that he
overheard Hays tell Irwin that what he did on his own time was Irwin's own
business but that what he did while he was operating the machine was
Respondent 's business However , I do not attach sufficient credence to this
testimony to reject Irwin's testimony Reed was not a participant in the
conversation and was admittedly engaged in his own duties in an adjacent
room while Hays interviewed Irwin Likewise, Wills' testimony as to his
separate conversation with Irwin shortly after Irwin's reemployment does
not negate Irwin's testimony concerning his conversation with Hays at the
time he was rehired Hays who was present indicated that his recollection
was not complete and testified only that he "would" have limited his
prohibition to worktime
6 Allen started to work for Respondent as plant superintendent during
the period between Irwin's first discharge and his reemployment
' Irwin's testimony as to his assignment and the condition of the planer
was not contradicted
1263
indicate that Allen was motivated by anything other
than concern over Irwin's work performance in is-
suing the written warning.
Following his receipt of the written warning,
Irwin was given oral reprimands for leaving his
machine which he himself characterized as ordinary
daily occurrences "that Mr. Allen had molded into
his program." According to Irwin, similar repri-
mands were given to all the planer operators, and it
was Allen's "thing" to keep the planer operators
going as fast as they could by watching them closely
and becoming involved `whenever - they shut a
machine down for any reason. However, Larry
Schliuning, who also worked as a planer operator
during this period, testified that Allen had criticized
his work performance, but that he was never told
that he did not spend enough time on his machine.
He also testified that he could not remember
whether he was criticized for leaving his machine
often. Allen testified without contradiction that on
one occasion Irwin told Allen that he appreciated
Allen's tolerance for him. According to Allen, he
replied that if Irwin knew his problem existed to the
extent that he would express his appreciation for
Allen's tolerance, it was time for Irwin to take cor-
rective action.
Irwin conceded that he was reprimanded on one
occasion for visiting other employees and talking
with them about the Bible and religion, although he
testified that he only did this when he was waiting
for a machine repair or for a forklift to move the
material on his machine.' Irwin also conceded that
he carried a Bible with him at all times and on oc-
casion read it while the planer was operating and he
was supposed to be watching it.9
Allen testified that Irwin on several occasions left
his machine while it was operating, which was not
good practice.10 Allen conceded that these were
periods when the planers could not operate because
they were in need of repair or because the opera-
tors had to wait for forklifts to come and turn or
remove parts. It was permissible for the operators
to leave and get cokes at that time, but when wait-
ing for a forklift the operator was expected to
return to his machine immediately so that the fork-
lift operator would not have to wait for the planer
operator.
s Hays testified that he reprimanded Irwin after receiving complaints
from other employees that Irwin was preaching to them on company time
According to Irwin , it was possible to tell from the sound of the
machine whether it was operating properly and on these occasions he was
prepared to shut the machine off if he heard any improper sound Hays
testified that at the time he reprimanded Irwin for preaching, he instructed
him not to bring his Bible into the plant because he had seen him reading it
when he should have been watching his machine Hays testified that less
than 2 weeks after that he again observed Irwin reading the Bible, but said
nothing further to him about it Hays placed his reprimand at about the
midpoint of Irwin's second period of employment
"According to Allen, other operators also did this , but in those cases
another employee was assigned to watch it and shut it off if anything went
wrong
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hays and Allen testified then in their judgment
Irwin was capable of greater production than he
achieved . However , they did not check production
records to compare Irwin 's production to that of
other operators. 1
Allen testified that a day or two before Irwin's
discharge he observed that Irwin was away from his
planer with the planer in operation . According to
Allen, he told Irwin in a stern tone of voice while
pointing at the machine , "Gene , get back on that
planer and stay there." Allen testified that after this
incident he spoke to Hays about it and they decided
that if Irwin did not change his ways they would
have to terminate him. Hays testified that Allen
told him on this occasion that he had given Irwin a
very firm warning to stay on his machine and that
he did not know what else he could do as he had
been as stern as he could be with Irwin. According
to Hays , he told Allen they had gone far enough
and if it happened any more they would have to let
Irwin go . Irwin testified that within a day or two of
his discharge he received an ordinary daily type of
reprimand that Allen had molded into his program.
Irwin characterized Allen in giving these repri-
mands as "reasonably stern and thorough as he
could be."
E. The Union Activities of Irwin
On the night of October 16, 1968, Irwin con-
tacted J. J. Glenn, a union representative, and
talked to him about getting a union in the plant.
Glenn gave him about 100 union authorization
cards which he told Irwin to get signed by the em-
ployees. According to Irwin, he told Glenn he was
afraid of getting fired and discussed his fears with
Glenn. Glenn told him that as long as he did not
misbehave, he had nothing to worry about. Glenn
told him to stay on the job, carry out his duties, and
get as many signatures as he could on the parking
lot and wherever he could.
The following morning, Irwin went to the plant
about three quarters of an hour before starting
time.He attempted to talk to employees he thought
would be interested in the Union. He gathered a
number of signatures that morning in the
washroom, in the area of his machine, and in the
parking lot before he started to work. At the nor-
mal time he started to work, and worked until
noon. During his noon break he went out on the
parking lot and gathered more signatures. When
the lunchbreak ended he went back to work. Ac-
cording to Irwin, he did not ask any employees to
sign cards during working hours.
ii According to Hays, it would be a long drawn out procedure to make
such a check According to Allen, the records were readily available and it
would not take long to make a comparison
1z Schliuning testified that they were at Irwin's machine at the time and
that Irwin appeared to be in the middle of a setup
" According to Irwin, Hays said Irwin had gone to the machine shop four
times that afternoon and that was too much Hays denied mentioning any
During that day he kept the union authorization
cards in his shirt pocket with the printed side facing
him so that there was about an inch or so of blank
card showing from his pocket. During the morning
Irwin gave some blank cards to Larry Schliuning,
another planer operator.12 Irwin did not observe
any of the authorization cards being passed around
in the plant during that day. Irwin did not observe
that Allen, Hays, or any other management official
had seen him with the cards or in the process of
getting them signed.
Schliuning obtained signatures on cards during
working hours. According to him, he called em-
ployees whom he believed that he could trust to his
machine and asked them to sign cards. They
walked behind his machine where they could not be
seen signing the cards. Schliuning did not observe
any company officials looking on while he gathered
the signatures.
Hays testified that before Irwin's first discharge,
around April 1, he had heard some rumors from
others in the plant that Irwin was prounion. How-
ever, according to Hays, this had no bearing on Ir-
win's discharge. He testified also that he had no
knowledge of any kind concerning the authoriza-
tion cards which Irwin had on October 17. He de-
nied that anyone had informed him of Irwin's union
activity at any time during that day, and he testified
that he did not become aware that there was union
activity in the plant until some time later.
Allen also denied observing Irwin's union activi-
ties or that he had any knowledge of any union ac-
tivities on that day.
F. The October 17 Discharge of Irwin
During the afternoon on October 17, Allen came
to Irwin's work station and told him to shut down
his machine and go to the office. Allen accom-
panied Irwin to Hays' office where Hays told Irwin
he was being terminated for excessive absences
from his machine.13 Irwin said little in response
other than to acknowledge that he had received a
termination statement.14
Irwin testified that he had been especially careful
that day not to get out of line and to keep his
machine running efficiently and accurately. How-
ever, he testified also that the job he was working
on at the time required constant use of cutting oil
during the machining. The can used by Irwin held a
pint of oil, and, according to Irwin, each time the
can needed refilling , he had to shut the machine off
and take the can to the machine shop and refill it.
Irwin testified that his work made it necessary for
specific number of absences , but testified that he discharged Irwin for
spending an unnecessary amount of time away from his machine and not
doing his assigned work Allen testified Hays told Irwin he was being
discharged because of the problems they were having with him
" In explanation Irwin testified that he had been advised by Glenn the
night before not to aggravate or argue with anyone because it might be
called insubordination
MEINHOLDT MFG., INC.
him to make six or seven trips to the machine shop
for that purpose on the afternoon of his discharge.
According to Irwin, other planer operators also left
their machines that day to obtain tools which they
shared with one another, to go to the restroom, to
get cokes, or to find a supervisor to obtain his ap-
proval of work. Irwin testified that every time he
left his machine that day, he shut it off.
Hays did not observe Irwin on the day of his
discharge, but testified that he acted on facts re-
ported to him by Allen and decided to discharge
Irwin in view of the firm warning Irwin had been
given a day or two before. Allen testified that on
that day he observed Irwin leave his work station
several times in the morning and the afternoon,
which in his opinion was quite a bit more than was
necessary. He testified that just before Irwin's
discharge he observed Irwin leave his work station
with two cokes and go to the south bay of the plant,
where, according to Allen, Irwin had no reason
connected with his work to go. According to Allen,
on that occasion Irwin was not waiting for a forklift
because he looked at the part in Irwin's machine
and observed that there was more work to be done
on it. After that observation, Allen reported to
Hays and they decided to discharge Irwin. Accord-
ing to Allen, he did not observe other planer opera-
tors away from their machines at the times he ob-
served Irwin away from his.
Allen conceded that he did not know the reasons
why Irwin left his machine on the day of his
discharge,15 but Allen testified that he believed he
knew enough about the work to know that the
frequency of Irwin's trips was excessive. Allen ini-
tially testified that the nature of the work being
done by Irwin that day was not such as to require
more than one trip to fill his oil can. However,
Allen based that testimony on his recollection of
the size of the slot being machined by Irwin, and
conceded that it was considerably larger than he
first stated. He then conceded that the amount of
oil required varied with the size of the slot and that
a great deal of oil was required for the slot Irwin
was working on." Oil was kept in the machine
shop, which was 50 to 75 feet from Irwin's
machine , and in the south bay. According to Allen,
Irwin was required to leave the machine to obtain
oil in the south bay.
G. The Conversation Between Schliuning and
Meinholdt on October 22
On October 22, Charles "Shorty" Meinholdt,
former owner of Respondent, was present at the
plant and spoke to Larry Schliuning. Meinholdt
said to him "Well, bub, I heard you were one of the
big instigators of the Union ." Schliuning asked
"Allen testified that he knew where Irwin went on only a few of his trips
away from his machine , and when asked to specify described only one in-
stance
16 Allen initially testified that the slot varied from five-eights to three-
1265
Meinholdt who he had heard that from, and Mein-
holdt replied that he had his sources. After they
discussed the advantages and disadvantages of the
Union for a while, Schliuning told Meinholdt that
he had talked to employees about it when they
came to him with questions and that he answered
them as best as he could.['
H. The Conversation Between Hays and Schliuning
on October 23
Several days after Irwin's discharge on October
23, Hays and Schliuning conversed in the plant
near Schliuning's machine. Irwin's discharge was
discussed at this time, but exactly what was said is
in dispute.
According to Schliuning, he had been induced by
a fellow employee to apologize to Hays for getting
the Company in trouble by becoming involved in
union activities. He testified that he called Hays
over to the machine and told him he thought he
had done the wrong thing and had hurt the Com-
pany, referring to his union activities. Initially
Schliuning testified that Hays "said he had been in-
volved with Gene Irwin, too, before and his attitude
had misled him, and he had talked to Gene and
warned him on previous occasions and that he had
fired him because of the union and let him come
back to work, agreeing upon that Gene Irwin said
that he would not cause anymore troubles or start
anything around the shop anymore and he had
done the same thing over again." According to
Schliuning, Hays added that Irwin had made a fool
of him and that Irwin had misled him because he
was the talkative type. Schliuning testified that
Hays said that he had been misled, that Irwin had
done the wrong thing again, and that he thought
Irwin might have made a fool of Schliuning, too,
the way he had involved Schliuning in union activi-
ty.
On cross-examination, Schliuning testified that
Hays said he had fired Irwin because of union ac-
tivities but did not say whether it was the first or
second time , and that Hays did not state what the
nature of the trouble was for which Irwin was fired
the first time, but that Hays said that Irwin had
done the same thing again. Schliuning testified that
he believed that Irwin had been active in the Union
before his first discharge, but did not know that for
a fact.
Hays testified that he recalled having the conver-
sation with Schliuning and parts of it. According to
Hays, he and Schliuning first discussed some
production problems that Schliuning was having.
He testified that Schliuning then brought up his
concern about the Union, but that he could not re-
call what the conversation was.
fourths of an inch in width, was three -fourths of an inch deep , and was
probably 12 feet long He then agreed that it was 8 inches by 2-1/2 inches
by 12 feet
17 Schliuning so testified without contradiction
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear that the conversation in question oc-
curred and that Irwin was discussed. However,
Hays denied that he attributed Irwin's discharge to
union activities, and Schliuning's testimony to the
contrary is less than certain. Although Irwin
testified that he did not engage in union activity be-
fore his first discharge, Schliuning initially testified
that Hays attributed Irwin's first discharge to his
union activities and then that he did not know
which discharge he attributed to them. At the very
least, Schliuning's testimony indicates that his
recollection in this respect was unclear, and there is
reason to conclude that Schliuning's testimony that
Hays attributed Irwin's discharge to his union ac-
tivities may stem more from what Schliuning read
into Hays' remarks based on Schliuning's belief that
Irwin had previously engaged in union activities
than from the exact works used by Hays at the
time. Accordingly, I do not find that Hays expressly
attributed either of Irwin's discharges to his union
activities.
There remains for consideration Schliuning's ad-
ditional testimony that Hays said Irwin had been
rehired after assuring Hays that he would not cause
any more trouble but had misled Hays and done the
same thing again . While conceding that Irwin had
been discussed and relating that discussion to
Schliuning's concern over the Union, Hays did not
take issue with the remainder of Schliuning's
testimony, except to deny that he had said he had
fired Irwin. Otherwise he testified only that he did
not recall what he had said. I find it difficult to be-
lieve that Irwin could have been discussed at that
time without some mention of his discharge a few
days before or that Hays' lack of recollection was
as complete as his testimony indicated. Ac-
cordingly, I credit Schliuning's testimony apart
from that in which he attributed to Hays an explicit
admission in so many words that he had discharged
Irwin because of his union activities.18
I. CONCLUDING FINDINGS
a. The alleged violations of Section 8(a)(1) by Hays
on May 15
As I have found above, I have concluded from
the circumstances of Irwin's initial discharge that it
was precipitated by his continuing activity to obtain
wage and benefit increases. While that discharge is
beyond the reach of the complaint in this case, it
19 In its brief , as a basis for discrediting Schliuning's testimony in its en-
tirety, Respondent argues that it is unlikely that Hays would have admitted
an unlawful reason for Irwin's discharge on the day after the charge in this
case was filed , that Schltuntng was biased against Respondent because he
was terminated for violating company rules regarding solicitation during
working hours, and that Schliuning 's testimony displayed incredible in-
gratitude toward Meinholdt who had befriended him As for the first, the
record shows only that a copy of the charge was mailed to Respondent on
October 22, the day before Hays' conversation with Schhuning In his
testimony Hays made no claim of knowledge of the charge at the time he
spoke with Schltuntng As for the second , the record shows only that in
furnishes significant background against which to
assess the conduct at issue in this case. When Irwin
was reemployed in May, Hays made it clear that he
would reemploy Irwin only if Irwin agreed to cer-
tain conditions. One of those conditions was that
Irwin refrain from talking to other employees about
wages and working conditions. Although Hays
testified that the restriction would have been
limited to working time, in view of the character of
Hays' recollection of this conversation and the cir-
cumstances of Irwin's initial discharge, I have con-
cluded that Hays placed no limitations on the
restriction he imposed on Irwin's discussion of
wages and working conditions with other em-
ployees.
Discussion of wages and working conditions
among employees is a concerted activity protected
by Section 7 of the Act. An employer may lawfully
restrict such discussions during working time, but
restrictions which prohibit such discussion outside
of working time interfere with employee rights to
engage in concerted activity and violate Section
8(a)(1) of the Act. In this case, the General Coun-
sel contends further that in the context of his earli-
er discharge, the restriction placed upon Irwin as a
condition of his reemployment carried with it an
implicit threat that Irwin would again be discharged
if he discussed wages and working conditions with
other employees after his rehire. I find merit in that
contention. Accordingly, I conclude that in the
course of rehiring Irwin Respondent through Hays
violated Section 8(a)(1) of the Act by imposing
upon Irwin a restriction against his discussion of
wages and working conditions with other em-
ployees and implicitly threatening that he would be
discharged for failure to abide by that restriction.
b. The October 17 discharge of Irwin
Although Irwin 's original discharge and the
restriction imposed upon him upon reemployment
were not based on union activity, they disclose a
hostility to concerted activity of which union activi-
ty is a form. Other factors present support an in-
ference that it was hostility to Irwin' s union activity
rather than a final loss of patience with his work
performance which caused his discharge. Despite
the written warning given Irwin in August, during
the next 2 months Irwin was given numerous oral
reprimands and not discharged until his union ac-
tivity began. Then on the very day that Irwin began
response to the question by counsel for the General Counsel, "Do you re-
call the time you terminated your employment9", Schltuntng replied, "Yes,
November 20, 1968 " Although Schltuntng was cross-examined , no further
evidence was adduced as to the circumstances under which he left his em-
ployment with Respondent As for the third , Schltuntng conceded that he
considered Meinholdt a friend and that Meinholdt had helped him with
personal problems However, his testimony as to Meinholdt 's conversation
with him about the Union , set forth above, was uncontradicted On the
record before me I can only conclude that to the extent that Schliuning was
influenced by his friendship with Meinholdt , he was influenced to tell the
truth and not to misrepresent
MEINHOLDT MFG., INC. 1267
to solicit signatures on union authorization cards he
was discharged.
It is true, as I have found, that the written warn-
ing and oral reprimands given Irwin following his
reemployment and up to the date of his discharge
appear to have been untainted by any unlawful
motivation and based on Allen's assessment of Ir-
win's work performance.19 However, the testimony
as to Irwin's conduct on the day of his discharge
does not support the contention that Irwin's con-
duct demonstrated additional dereliction on the day
of his discharge. Although Allen characterized Ir-
win's absences from his machine on that day as ex-
cessive, he could furnish little concrete detail to
support that characterization. Allen conceded that
he did not know why Irwin left his machine or on
most occasions where he went when he left his
machine on that day. After initially testifying that
the part on which Irwin was working would have
necessitated only a single trip to refill his oil can, he
conceded that he was mistaken in his description of
the part and that the cut being made by Irwin was
substantially larger and required considerably more
oil. In these circumstances, I credit Irwin that he
was required to leave his machine six or seven
times that day in order to refill his oil can, and that
he exercised care to be efficient at his work on that
day.2°
Hays and Allen also testified that the decision to
discharge Irwin was effectively made a day or two
before the discharge when Allen reported to Hays
that he had given Irwin a very firm warning to stay
on his machine and did not know what else he
could do as he had been as stern as he could be
with Irwin. According to them, they then decided
to discharge Irwin upon further recurrence of his
dereliction. Yet Allen's version of the alleged warn-
ing which triggered this discussion establishes no
more then a stern instruction to Irwin to return to
his machine and stay there, unaccompanied by any
statement to Irwin that Allen's patience was at an
end. In the light of Allen's version of what he said
to Irwin at that time and the deficiencies of his
testimony as to Irwin's conduct on the day of his
discharge, it is difficult to credit the testimony of
Hays and Allen as to their predischarge conversa-
tion and decision.
Respondent contends that any inference of dis-
crimination must be rejected, however, because of
the absence of any evidence that Hays or Allen had
knowledge of Irwin's union activities before Irwin's
discharge. It is true that there is no direct evidence
that Irwin's union activities came to their attention
on that day. Both Irwin and Schliuning conceded
that they did not see any management officials or
supervisors looking on when they solicited signa-
tures on union authorization cards, and Irwin's
testimony establishes that he carried the cards in
his pocket in a manner that did not reveal what
they were. On the other hand, the evidence
establishes, that there were approximately 85 em-
ployees in the plant, and the size of the plant, the
timing of Irwin's discharge in relation to the
beginning of his union activity, and Allen's
testimonial failure to support the asserted basis for
Irwin's discharge permit the inference that Irwin's
union activities had come to Hays' attention.
The finding of Respondent's knowledge of Irwin's
activities does not rest on that inference alone.
Although Hays' conversation with Schliuning did
not occur until several days after Irwin's discharge
and I have found that Hays did not explicitly state
that Irwin's union activities caused his discharge,
his statements to Schliuning at that time conveyed
to Schliuning that Irwin was discharged for reasons
related to his first discharge by doing the "same
thing after assuring Hays that he would not cause
any trouble again. The trouble for which Irwin was
discharged in April was his "bugging" of Respond-
ent for a wage increase and additional overtime
benefits. Despite the fact that Irwin had given as-
surances that he would not talk with other em-
ployees about wages and working conditions or
"bug" Respondent and other employees about them,
he had done the same thing again, this time by
going outside to a union.21 Thus, I conclude that
Hays intended to convey to Schliuning that Irwin's
second discharge was caused by his failure to abide
by the restrictions placed upon him at the time of
his rehire aimed at inhibiting Irwin's discussion of
wages and benefits with other employees and his
"bugging" of Respondent and other employees
about these matters.22
Considering Hays' remarks to Schliuning in con-
junction with the other evidence set forth above, I
conclude that Hays had knowledge of Irwin's union,
activities at the time of his discharge and ter-
minated him because of them. It may well be that
Irwin's conduct at work before October 17 could
have justified discipline, 'including discharge. But it
1B Whether or not Irwin 's dereliction more properly fell under one of
Respondent 's rules requiring two written warnings before discharge, there
is no evidence that Irwin was engaging in union or concerted activity at the
time the warning was given or that the warnmg , was based on such activity
Even if Respondent was mistaken in its application of its rules, I find no
basis for inferring that the warning was motivated by anything other than
concern over Irwin's work
20 Although Irwin did not take issue with Hays' assertion as to the cause
of his discharge at the time of his notification , any inference to be drawn
from his silence at that time is negated by the failure of Allen 's testimony to
support the asserted basis for Irwin 's discharge
2i It is true that in April Irwin had not resorted to an outside union and
sought with the other planer operator to negotiate directly with Respond-
ent To the extent that he solicited employees to seek union representa-
tion in October , what he did was not the same as his conduct which caused
his April discharge But the solicitation for union representation could only
be viewed as a step toward renewal, this time with outside aid, of Irwin's
agitation for improved wages and benefits Particularly as Hays testified
that he had heard rumors that Irwin was prounion before Irwin 's first
discharge, the conclusion follows that Hays equated Irwin 's union activities
in October to the conduct which caused Irwin 's first discharge by charac-
terizing them as the same thing in his conversation with Schliunmg
22 In these circumstances and in view of my findings as to the credibility
of Irwin and Allen , I do not credit their dens !t of knowledge of Irwin's
union activities
427-258 O-LT - 74 - 81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears that Respondent's need for planer opera-
tors was great, and even when Irwin drew repeated
reprimands after receiving a written warning,
Respondent chose to live with Irwin and not
discharge him. Only when Irwin added to his ag-
gravation of Respondent by enlisting support for a
union did Respondent see fit to act. The coin-
cidence of the timing of Irwin's discharge with the
commencement of his union activities, Allen's
failure to substantiate the alleged cause of the
discharge, and Hays' statements to Schliuning after
the' discharge, in the context of Irwin's earlier
discharge and reinstatement, lead to the conclusion
that but for Irwin's union activities, Respondent's
patience would not have run out on October 17.
Accordingly, I conclude that Respondent dis-
criminated against Irwin because of his union ac-
tivities by discharging him on October 17, 1968,
thereby violating Section 8(a)(3) and (1) of the
Act.
The complaint alleges also that Respondent vio-
lated Section 8(a)(1) of the Act by Hays' state-
ments to Schliuning concerning Irwin on October
23. Hays' statement occurred following Schliuning's
expression of concern over having done the wrong
thing by promoting the Union and appeared to have
been designed to assure Schliuning that his apology
would be accepted and written off to Schliuning's
having been misled by Irwin as Hays had been. But
Hays' statement also carried with it the threat that
if Schliuning had third thoughts and decided to pur-
sue his union activities, a fate similar to Irwin's
awaited him. Accordingly, I conclude that Hays' re-
marks threatened discharge for those who did the
same thing as Irwin and that Respondent thereby
violated Section 8(a)(1) of the Act.
c. Schliuning's conversation with Meinholdt
The complaint alleges that Respondent created
the impression among its employees that it was en-
gaged in surveillance of their union activities by
Charles Meinholdt's statements to Schliuning on
October 22, 1968. Respondent contends that what-
ever Meinholdt said, it was not attributable to
Respondent as Meinholdt was neither a supervisor
nor an agent of Respondent.
Meinholdt is the former owner of Meinholdt
Manufacturing Company and was the manager of
the company when he owned it. On May 31, 1967,
Meinholdt sold the company to Respondent. He
continued, however, after that date to own the
premises in which Meinholdt Manufacturing Com-
pany conducted its operations. On the date of the
transfer he also entered into an employment con-
tract with Respondent. Under the terms of that
contract, Meinholdt agreed to work for Respond-
$' The chart showed Memholdt 's name in a separate box with no one
under him
24 The employees apparently were not informed of the terms of Mein-
ent, and Respondent agreed to employ him for a
period of 10 years under certain terms and condi-
tions. Meinholdt had the right to work for Respond-
ent during regular working hours during such
periods as he desired for the term of the agreement.
His salary was at the rate of $50 a day, and he was
not to work more than 4 days in any one calendar
week. Meinholdt had the right to use any of
Respondent's equipment or machinery at the plant
for his personal activities provided that he did not
interfere with Respondent's work production. Any
materials used by him in personal work were to be
billed' to him at Respondent's cost. Any designs or
innovations produced or conceived by him while
employed were to become Respondent's property.
Meinholdt agreed during the term of the agreement
not to compete with the Respondent in their
product lines for a period extending 1 year beyond
the expiration of the agreement.
After the transfer of ownership of the company,
Meinholdt was considered as a consultant to
Respondent and was so identified on an organiza-
tional chart posted on the plant bulletin board.23
Immediately after the change in ownership he took
an extended vacation, and after that worked occa-
sionally at his convenience, on a day-to-day basis as
a troubleshooter. Respondent called upon Mein-
holdt to help solve specific problems as they arose
on the basis of his experience. Meinholdt has not
worked unless requested by Respondent but he has
stopped in the plant for short periods from time to
time, without going on the payroll.
Meinholdt had last worked for Respondent be-
fore the hearing for 7-1/2 days in August, and for 1
day in September 1968. He had not appeared on
the payroll thereafter, although he had visited the
plant.
Some 15 to 20 employees, including Schliuning,
of the 85 at work for Respondent in October 1968,
had been employed when Meinholdt owned the
company, the remainder having been hired after
Respondent assumed ownership of the company. At
the time of the change in ownership, employees
were informed that the ownership had changed and
that Meinholdt was retiring.24
At those times when Meinholdt has been on the
payroll since May 1967, he has worked in close
proximity with other employees of Respondent.
During August 1968, Meinholdt worked 7-1/2 days
assembling a building now used by Respondent. At
that time, Respondent assigned some of its em-
ployees to work for Meinholdt on this specific job
and Meinholdt supervised them. According to
Hays, Meinholdt otherwise never supervised
Respondent's employees in their work, but on a few
occasions he has worked with other employees;
who are assigned to work with Meinholdt by their
holdt 's employment contract and are not told whether he is on the payroll
when he appears in the plant
MEINHOLDT MFG., INC. 1269
supervisor. At such times Meinholdt tells them
what to do.
Schliuning testified that there had been more
than an employee-employer relation between him
and Meinholdt and that to him Meinholdt was a
great friend and no more than a friend after he sold
his interest in the company. 25 He testified that he
thought Meinholdt was talking to him as a friend on
October 22. Schliuning understood that Meinholdt
was a consultant from a chart of the chain of com-
mand that was posted in the plant. He observed
that Meinholdt helped out on any problems that
employees had on their jobs. Schliuning had quite a
few problems running his machine, and he always
felt free to ask Meinholdt to show him what to do.
It is clear that Meinholdt's status changed in
1967 and that the change was known to Respon-
dent 's employees including Schliuning . On one oc-
casion following that change , in August 1968,
Meinholdt supervised some of Respondent's em-
ployees in erecting a building for Respondent on its
premises . Otherwise , the evidence shows only that
he occasionally directed the work of employees as-
signed to work with him and helped employees in
resolving production problems . There is no
evidence that in his capacity as consultant, Mein-
holdt participated in any way in the formulation or
effectuation of employee policies. In these circum-
stances , I conclude , particularly in view of Schliun-
ing's description of his relationship with Meinholdt
after the change in ownership , that when Meinholdt
spoke to Schliuning on October 22, Meinholdt was
not acting as a supervisor or agent of Respondent
and that Respondent had not placed him in a posi-
tion in which Schliuning had cause to believe that
Meinholdt was acting in such a capacity.26 Ac-
cordingly, I shall recommend dismissal of the al-
legations of the complaint based upon Meinholdt's
statements to Schliuning.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above , occurring in connection with the
Respondent 's operations described in section I,
above , have a close , intimate , and substantial rela-
tionship to trade , traffic , and commerce among 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 violated Section
8(a)(1) and (3) of the Act, I shall recommend that
it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
As I have found that Respondent discriminatorily
discharged Harold Irwin , I shall recommend that
Respondent be ordered to offer him immediate and
full reinstatement to his former or a substantially
equivalent position , without prejudice to his
seniority or other rights or privileges , and to make
him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him,
by payment to him of a sum of money equal to the
amount he normally would have earned as wages
from October 17, 1968, to the date of an offer of
reinstatement , less net earnings , to which shall be
added interest at the rate of 6 percent per annum,
in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact and
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent Meinholdt Manufacturing, Inc. -
Hydra-Tool Company, Inc., is an employer engaged
in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Truck Drivers and Helpers Local Union No.
696, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the
meaning of the Act.
3. By prohibiting an employee from discussing
wages, terms, and conditions of employment with
other employees, by threatening employees with
discharge for engaging in concerted or union activi-
ties or discussing wages and conditions of employ-
ment, and by discharging Harold Irwin because of
his union activities, Respondent has engaged in and
is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , I recommend
that Respondent, Meinholdt Manufacturing, Inc. -
Hydra-Tool Company , Inc., its partners , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Truck Drivers
and Helpers Local No . 696, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
ss Memholdt had given Schliuning a great deal of help with some per-
sonal problems , and Shcliuning felt free to ask Meinholdt for guidance and
to seek his help.
26 In Jackson Daily News , 90 NLRB 565, on which the General Counsel
relies, the facts differed materially from those present here There the
Board rejected the contention that the alleged supervisor 's status had
changed before the unfair labor practices attributed to him occurred and
found further that the Respondent had ratified his conduct
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehousemen and Helpers of America, or any
other labor organization, by discriminating in re-
gard to the hire or tenure of employees or any term
or condition of their employment.
(b) Threatening employees with discharge or
other reprisals because of their concerted or union
activities.
(c) Prohibiting employees from discussing their
wages and terms and conditions of employment
with other employees.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights to self-organization, to form
labor organizations, to join or assist Truck Drivers
and Helpers Local 696, affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in any other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection or to refrain from any or all such
activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Harold Irwin immediate and full rein-
statement to his former or a substantially equivalent
position, without prejudice to his seniority or other
rights or privileges enjoyed, and make him whole
for any loss he may have suffered by reason of the
discrimination against him in the manner set forth
'r In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the.words "a Decree of the United States Court of Ap-
peals Enforcing an Order " shall be substituted for the words " a Decision
and Order "
in the above Decision entitled "The Remedy."
(b) Notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.,
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records relevant and necessary to a
determination of compliance with paragraphs (a)
and (b), above.
(d) Post at its Topeka, Kansas, place of business,
copies of the attached notice marked "Appen-
dix."27 Copies of said notice, on forms provided by
the Regional Director for Region 17, after being
duly signed by Respondent's representative, shall
be posted by it 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 al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 17,
in writing , within 20 days from the date of the
receipt of this Decision , what steps the Respondent
has taken to comply herewith .28
" In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "