Murray Ohio Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 6, 1959

122 N.L.R.B. 1306 (N.L.R.B. 1959)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions in summary
As noted heretofore, General Counsel apparently rested the major part of his
entire case upon the single question of the Union's majority on August 30. Had
he succeeded in proving that the memorandum of understanding was violative of
the Act, the admitted and proven fact that management officials agreed to and did
urge employees to join, after its signing, would have assumed greater significance.
Under the circumstances, however, the contract not being proven illegal, the Trial
Examiner perceives nothing in the evidence which establishes that either before or
after August 30 has either the Employer or the Union exceeded the free-speech
privileges accorded by Section 8(c) of the Act. There is no credible evidence of
economic threats or of promises of benefit made conditional upon employees
joining.
The Trial Examiner therefore concludes and finds that the preponderance of
credible evidence is insufficient to sustain allegations of unfair labor practices by
either of the Respondents.
Upon the basis of the foregoing findings and conclusions of facts, and upon the
entire record in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
2. Bernhard-Altmann Texas Corporation is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Bernhard-Altmann Texas Corporation has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (2), and (3) of the Act.
4. International Ladies' Garment Workers' Union, AFL-CIO, has not engaged
in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of
the Act.
[Recommendations omitted from publication.]
Murray Ohio Manufacturing Co., Lawrenceburg , Tennessee,
Division and International Union , United Automobile, Air-
craft & Agricultural Implement Workers of America, AFL-
CIO. Cases Nos. 10-CA-3040 and 10-RC-3872. February 6, 1959
DECISION, ORDER, AND DIRECTION OF ELECTION
On September 8, 1958, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, and recommending further that
the election held on September 11, 1957, in Case No. 10-RC-38721
be set aside and a new election be held, as set forth in the copy of
the Intermediate Report attached hereto.' He further found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended that the complaint
be dismissed with respect thereto. Thereafter, the Respondent and
' Pursuant to the Board's Decision and Direction of Election , 118 NLRB 1027.
2 On May 21 , 1958, the Board issued a Supplemental Decision and Order , 120 NLRB
1060, directing a hearing before a Trial Examiner , on certain objections filed by the Union
herein to the conduct of the election . On May 23, 1958, the Board ordered Cases Nos.
10-RC-3872 and 10-CA-3040 consolidated.
122 NLRB No. 152.
MURRAY OHIO MANUFACTURING CO . 1307
the Union filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed 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 Inter-
mediate Report,' the exception and briefs, and the entire record
in the case and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.5
ORDER
Upon the entire record in these cases and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Murray Ohio Manufac-
turing Co., Lawrenceburg, Tennessee, Division, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging self-organization or concerted activities among
its employees for their mutual aid or protection as guaranteed in
Section 7 of the Act, by threatening employees with reprisals be-
cause of such activities, or by promising rewards on condition that
employees abandon their membership in or activity on behalf of
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, AFL-CIO, or any other labor
organization.
(b) Interfering with its employees' rights to an uncoerced Board
election.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their right to engage in,
or refrain from engaging in, any or all of the activities specified
in Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
3 The Trial Examiner in stating that the Respondent had violated the Act by Foreman
Lough's threat to Charlie P. Barton inadvertently used the name Brown Instead of
Barton. Accordingly, the Report is hereby corrected.
4 Roth cases in these proceedings involved essentially questions of fact and both
Respondent and the Union have excepted to all adverse credibility findings of the Trial
Examiner . We see nothing in the record that would warrant any reversal by us of such
credibility findings. Standard Dry Wall Products , Inc., 91 NLRB 544, 545.
6 The Charging Party has filed exceptions to -the Trial Examiner's failure to find cer-
tain additional incidents to be further violations of Section 8(a) (1). Inasmuch as we
have already found ample evidence of conduct violative of Section 8(a) (1), and because
further findings of such additional conduct would be cumulative in nature, we find it
unnecessary to consider the legality of the additional incidents referred to. Likewise, as
we have ordered the election set aside , we find it unnecessary to pass on exceptions to
the Trial Examiner's failure to find certain other pre -election conduct objectionable.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at its place of business in Lawrenceburg, Tennessee,
copies of the notice attached hereto marked "Appendix A." 6 Copies
of such notice, to be supplied by the Regional Director for the Na-
tional Labor Relations Board, Tenth Region, shall, after being duly
signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Notify the aforementioned Regional Director for the Tenth
Region in writing, within 10 days from the date of this Order, as
to what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint to the
effect that Respondent discriminatorily discharged Doyle C. Wallace
or otherwise violated the Act, be, and hereby are dismissed.
IT IS FURTHER ORDERED that the election in Case No. 10-RC-3872,
held September 11, 1957, be, and it hereby is set aside and that Case
No. 10-RC-3872, be, and it hereby is remanded to the Regional
Director for the Tenth Region, for the purpose of conducting a new
election at such time as he deems that circumstances permit the free
choice of a bargaining representative.7
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
7 Any new election shall be conducted among the employees in the unit found appropri-
ate in the Decision and Direction of Election in this case issued August 14, 1957, who
are employed during the payroll period immediately preceding the date of issuance of the
notice of election.
In the event Respondent fails or refuses to comply with the terms of the order in Case
No. 10-CA-3040, the Regional Director , upon the written request of the union , is author-
ized to conduct the new election directed herein.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT discourage self-organization or concerted activi-
ties among our employees for their mutual aid or protection as
guaranteed in Section 7 of the Act, by threatening employees
with reprisals because of such activities, or by promising em-
ployees rewards on condition that they abandon their member-
ship in or activity on behalf of International Union, United
Automobile, Aircraft & Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization.
MURRAY OHIO MANUFACTURING CO . 1309
WE WILL NOT interfere with our employees' rights to an un-
coerced Board election.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their right to en-
gage in, or refrain from engaging in, union or concerted activities
for the purpose of collective bargaining or other mutual aid or
protection except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a) (3)
of the Act.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
AFL-CIO, or any other labor organization.
MURRAY Orno MANUFACTURING CO., LAWRENCE-
BURG, TENNESSEE, DIVISION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDATIONS
ISSUES
The primary issues herein are (1) whether Doyle G. Wallace was discharged on
or about June 6, 1957, because he joined or assisted the Union ( International
Union, United Automobile, Aircraft & Agricultural Implement Workers of Amer-
ica, AFL-CIO) or because of his unsatisfactory performance record; (2) whether
Respondent (Murray Ohio Manufacturing Co.) by the aforementioned and certain
other conduct unlawfully interfered with, restrained, or coerced employees; and
(3) whether an election conducted on September 11, 1957, should be set aside and
a new election held.
BACKGROUND
Respondent is a corporation engaged in the manufacture of velocipedes, bicycles,
and wheel toys. Its plant was originally located in Cleveland, Ohio. During the
latter part of 1955 Respondent started its operations in Lawrenceburg, Tennessee,
the plant involved herein. Production at the Lawrenceburg plant began about.
April 1956. As operations in Lawrenceburg progressed Respondent closed down
its operations in Cleveland until ultimately the Cleveland operations were discon-
tinued and all of Respondent's manufacturing facilities were located in ]..awrence-
burg.
During 1956 the Union, which had represented Respondent's employees in Cleve-
land, commenced its organizational campaign at the Lawrenceburg plant. On or
about May 22, 1957, the Union filed a petition for certification (Case No. 10-
RC-3872). A hearing was held in 10-RC-3872 on June 18, 1957. On or about
August 14, 1957, the Board issued a Decision and Direction of Election 1 pursuant.
to which an election by secret ballot was conducted on September 11, 1957.
Eleven hundred eighty-two valid votes were cast, 558 were cast for the Union, 624
were cast against the Union, and 6 were void. There were no challenged ballots.
On or about September 17, 1957, the Union filed timely objections to the election
1118 NLRB 1027.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and on or about May 21, 1958, the Board directed a hearing on objections 1, 2,
and 3 2 and "to determine the circumstances of the Employer's conduct during the
3-week period preceding the election."
Discharge of Wallace 3
Doyle G. Wallace started working for Respondent on October 25, 1956, as a
press operator on the second shift. In November 1956, following a nervous col-
lapse, Wallace was transferred to an arc welding job on the first (day) shift.4
Wallace was the only experienced welder in the department in which he worked.
His base rate of pay was $1.10 per hour but the job also was on a piece-rate basis
and Wallace's earnings in March 1957, approximated $1.50 per hour. He was
primarily engaged in welding a sprocket assembly. On or about March 25, 1957,
Respondent started producing "a new wheel with a sprocket that had to be welded
on to it" and on that date Foreman Paul Pfeiffer asked Wallace to do this weld-
ing. Wallace asked Pfeiffer if the job was piece rated and was told that it was
not at that time. Wallace then refused to do the work because of the difference
in pay ($1.10 per hour instead of his current earnings of $1.50 per hour). Fore-
man Pfeiffer reported Wallace's refusal to Superintendent McCormick who called
Wallace and asked his reason for refusing to do the work. Wallace gave the same
reason to McCormick, namely, the difference in pay. McCormick thereupon took
Wallace to the office of Personnel Director Smotherman. Wallace then, for the
first time on this date (on or about March 25, 1957), stated that the reason he
was refusing to do the job was that welding was giving him headaches .5 Person-
nel Director Smotherman then told Wallace that he should see a physician and
get a certificate concerning his headaches. Wallace then left the plant and re-
turned the next day with a physician's certificate that Wallace was under treatment
for severe headaches prabably due to nervous tension. Upon receipt of this cer-
tificate Respondent's nurse recommended that Wallace be relieved of his job of
welding. Wallace was then given a job on the spoking line at $1.10 per hour.
Within a day or so a trucker or stock chaser job became available and at Wallace's
request he was given this job which paid $1.20 per hour. Wallace held this job
until his discharge on June 6, 1957.
The duties of a trucker or stock-chaser job, which Wallace held from roughly
April 1 until his discharge on June 6, were to supply operators on the assembly
line (approximately 15) with small parts and to sweep and to keep the floor around
their machines clean. Except for a period of time hereinafter noted, Wallace was
the only trucker or stock-chaser supplying parts to these operators who were on a
piece or incentive rate of pay. Shortly after Wallace became a trucker or stock
chaser (during April) he complained about having strained an abdominal muscle
and on the advice of a physician was relieved of heavy lifting. He was told by
Foreman Pfeiffer that help would be provided for heavy lifting. A few days
(2 or 3) later Foreman Pfeiffer observed Wallace doing heavy lifting and again
told him not to do such but to request help for heavy lifting. The following day
Assistant Foreman Fisher observed Wallace doing heavy lifting and asked him
(Wallace) "should he be lifting in his condition ." Wallace replied that if he hurt
2Namely that Respondent (1) threatened that it will discontinue business or move its
establishment if the petitioner wins the election ; (2) made threats of discharge of anyone
they knew to have voted for the petitioner; and (3) made promises of benefits to vote
against the petitioner. The Board's direction of a hearing is reported in 120 NLRB 1060.
3 This is one of those situations where there are serious conflicts of evidence and resolu-
tion of the question of whether Wallace was discharged in violation of the Act depends to
a large extent upon whether Wallace or witnesses for Respondent are to be relied upon.
The Trial Examiner will state in narration what the Trial Examiner believes and finds
to be the facts as revealed by the evidence adduced. The findings of fact are based upon
the Trial Examiner's consideration of the entire record and observations of witnesses. All
evidence on disputed points is not described so as not to burden unnecessarily this report.
However, all has been considered and, where required, resolved. In determining credibility
In these proceedings the Trial Examiner has considered inter elite the demeanor and con-
duct of witnesses, their candor or lack thereof ; their apparent fairness, bias, or prejudice ;
their interest or lack thereof; their ability to know, comprehend, and understand matters
about which they have testified; whether they had been contradicted or otherwise im-
peached ; and consistency and inherent probability of the testimony.
.y Prior to his employment with Respondent Wallace had been a welder "for some
8 or 10 years."
5Prior to the date under consideration Wallace had complained about headaches and
had been given a lighter welder 's hood.
MURRAY OHIO MANUFACTURING CO. 1311
himself any more he would sue the Company . Fisher reported this matter to
higher officials of Respondent and Wallace was called to the personnel office where
Personnel Director Smotherman criticized Wallace for his conduct and told Wal-
lace that Respondent "wasn 't going to have anything like that going on around
the plant."
About 2 weeks later (during May 1957), Wallace dropped a pan of parts on his
foot and injured a toe. As a result of an emotional appeal, the next 4 days
Wallace was allowed to do pretty much as he pleased, during which time he did
very little work and his job was taken over by someone else. Between the time
that Wallace resumed his duties and the date of his discharge he was criticized
and warned on several occasions that he was spending too much time talking and
too little attention to his duties . He was specifically cautioned about these matters
on June 5 and 6. On June 5 Wallace was observed by his immediate supervisor
(Fisher) engaging in a lengthy conversation and asked if he had anything to do
on his own job. Wallace replied he might have but that he was doing the work
of three men. On June 6 Wallace was told to be sure and clean up the floor
before quitting time. Later that day he was observed by Fisher engaging in a
lengthy conversation and was asked why he was not sweeping. Wallace replied
he was doing the work of three men and did not have times Shortly before quit-
ting time on June 6, Wallace was discharged . The reason assigned therefor was
Hindering other employees from working and not doing own work properly.
After this was repeatedly called to his attention, he was insubordinate to his
foreman on two occasions and discharged for this reason.
The next morning (June 7) Wallace went to Foreman Pfeiffer's home and
awakened him at 5:30, and told him that he had a chance to go to work on a
construction job that day, but could not get the job without a reference. Wallace
made an emotional appeal to Pfeiffer and Pfeiffer wrote out a recommendation
reading as follows: 7
To whom it may concern I recommend Doyle Wallace as an honest and good
worker. Mr. Wallace worked for me for 7 months as a stock man and welder.
And I'm sure if you will give Mr. Wallace a job he will prove a good depend-
able man for the job.
Wallace testified that he became "active" on behalf of the Union right after the
petition was filed in Case No. 10-RC-3872, that he got some signatures to union
cards-but did not say how many or whether before or after his discharge and
the record warrants an inference that it was after-and that prior to his discharge
at a "couple" of union meetings he made speeches-Wallace's testimony warrants
an inference that they were organizational type speeches.
Wallace testified that sometime between May 22 and June 1, 1957, Assistant
Foreman Fisher (Wallace's immediate supervisor) approached him on the job and
inquired as to what he (Wallace) thought about the Union and upon his reply
that he thought it was a good thing Fisher remarked that he did not believe a man
should pay a portion of his earnings to Communists and the conversation ended
with his (Wallace's) remark that he did not appreciate being called a Communist.
Fisher denied that any such conversation took place. The Trial Examiner believes
a resolution of this conflict of evidence unnecessary to a decision in this matter
and is not making a resolution thereof. However, for the purpose of decision the
Trial Examiner is assuming, arguendo, that Wallace's version is an accurate reflec-
tion of what occurred.
Wallace testified that on June 5, 1957, Assistant Personnel Director Carl Alex-
ander approached him about joining one of the plant's ball teams and that during
the conversation which followed Alexander queried him as to what he thought
about the Union and why. Wallace testified that when he (Wallace) replied that
he thought the Union was a good thing and related his reasons Alexander declared
that if the Union was voted in, the plant would close for 3 months and then new
0 Wallace denied that he was ever reprimanded or criticized and denied Fisher's ver-
sions of these conversations. In the light of the entire record and inherent probability
his denials are not credited by the Trial Examiner. Wallace's version of the June G
conversation is noted below.
7 Wallace's version of this conversation is entirely different from that given by Pfeiffer
and, if credited, tends to support the claim that Wallace was not discharged for the
reasons assigned. However, the Trial Examiner does not credit his version . Pfeiffer's
account is more probable in the light of the credited testimony and is not inconsistent
with human experience under circumstances disclosed by the record.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hands would be hired to replace those who were for the Union. Alexander's ver-
sion of this conversation is totally different from that given by Wallace. Accord-
ing to Alexander, Wallace approached him (Alexander) about a job paying more
money than he (Wallace) was then making and suggested that the reason why
some of the employees were in favor of the Union was because there were many
instances where senior employees were making less money than junior employees.
Alexander denied making the statements attributed to him by Wallace.
Both versions of this conversation are supported by other portions of the record
herein. However, in the light of Bill Hannon's remarks (hereafter noted), the
credited evidence involving similar statements and the apparent temperament of
Wallace and Alexander, the Trial Examiner believes and finds Wallace's version
more probable and finds that Alexander made the statements attributed to him
by Wallace.
Wallace testified that on June 6 (close to the middle of the day) while he
(Wallace) and Assistant Foreman Fisher were moving a heavy box, Fisher com-
plained about how difficult it was to move such box and he (Wallace) responded
that "it will be quite a lot easier when we get organized" and Fisher then declared
"this damn Union is going to cause somebody to lose their job." Wallace further
testified that about 2 weeks after he was discharged he met Fisher on the square
in Lawrenceburg, Tennessee, and remarked to him that he (Wallace) guessed
Fisher was satisfied now that he (Wallace) was discharged and that Fisher an-
swered that he had turned in a complaint about Wallace for his conduct on June 6
but he (Fisher) "didn't think it would get me fired." Wallace further testified that
he "wouldn't know what complaint it could have been unless it was the one where
the remarks were made when we were moving the heavy box of metal." Fisher
testified that he helped Wallace move heavy boxes, but it was during the period
when Wallace was not supposed to do heavy lifting because of a strained abdomi-
nal muscle and that he never discussed the Union with, or mentioned the word
Union to, Wallace. Fisher denied making the statements attributed to him by
Wallace. As noted above, on June 5 and 6, Fisher observed Wallace engaging in
lengthy conversations and criticized him for doing so and not performing his duties.
Fisher did turn in a complaint concerning these matters. The Trial Examiner
believes and finds that Fisher is a more reliable witness than Wallace and credits
his denials noted immediately above.
Counsel for the General Counsel urges that there is little doubt that Wallace
was a formidable threat to Respondent's antiunion campaign-that as a Baptist
minister in a Southern community, Wallace wielded an infinite amount of influence
over employees, which obviously extended far beyond the confines of the depart-
ment in which he worked, and reached even the most isolated community of em-
ployees. There is no doubt that Respondent engaged in an antiunion campaign
(noted hereinafter) and the record reveals that Wallace is a Baptist minister in a
Southern community. However, there is no evidence that Wallace wielded an infi-
nite amount of influence over employees. There is no evidence that prior to his
discharge he wielded any amount of influence over employees of Respondent or
that prior to his discharge he influenced employees one way or another insofar as
their union membership or activity was concerned. Counsel for the General Coun-
sel argues further that Respondent was content to overlook Wallace's deficiences
as long as he remained silent about the Union but that "once the Respondent
detected Wallace's union activities, which were of an outstanding nature," Wallace
was under close surveillance and shortly thereafter was summarily discharged with-
out prior warning. As noted above, the facts do not support this contention. True,
Wallace was under close surveillance, but, because of his faulty work record rather
than his union activities. So far as the Union is concerned, he was not an unusu-
ally active member prior to his discharge and, unless Wallace's entire testimony is
accepted at face value, there is no evidence that Respondent was hostile to Wallace
because of his union activities-whatever the extent thereof may have been. In
addition, the credited evidence herein reveals that Wallace's discharge followed,
and was consistent with, warnings given him that his work record must improve.
On the evidence which the Trial Examiner believes and finds should be credited,
the Trial Examiner is unable to find that the discharge of Wallace was without
economic justification and believes and finds that the record lacks a preponderance
of evidence that antiunion considerations motivated this discharge. Accordingly,
the Trial Examiner recommends that the allegations of the complaint with respect
to this matter be dismissed.
Interference
As noted above, Wallace testified that sometime between May 22 and June 1,
Assistant Foreman Fisher approached him and inquired as to what he thought
MURRAY OHIO MANUFACTURING CO. 1313
about the Union and upon his reply that he thought it was a good thing, Fisher
remarked that he did not believe a man should pay a portion of his earnings to
Communists. Fisher denied that any such conversation took place. Here, as in the
situation involving Wallace's discharge, the Trial Examiner believes a resolution of
this evidence unnecessary. Assuming that Fisher made the remarks attributed to
him, the remarks, either standing alone or in conjunction with other conduct found
violative of the Act, would not warrant a finding of violation of Section 8(a)(1)
or a basis for setting aside the election.
About June 1, 1957, Foreman Richie Krigger told R. W. Springer
He didn't want the Union in, that he knew every man who signed a card and
every meeting that they attended, and [Springer] had better leave it off.
Foreman Paul Roller said to James Pratt, around the first of June 1957,
I hear you say if the union comes in you'll get a $1 an hour more. . . you
boys are going to fool around here and be on the outside and wanting in.
As noted above, on June 5, 1957, Assistant Personnel Director Alexander warned
Wallace that if the Union was voted in, the plant would close for a short period
of time and then new hands would be hired to replace union adherents.
Robert W. Brown testified that about 2 months before the election (2 months
before September 11, 1957) Foreman Hood approached him on the job and in-
quired if he (Brown) thought the Union would win and upon his affirmative reply
asserted that the Union "wasn't any good," that Respondent "won't operate under
a union" and that Respondent would "close it [the plant] down if the Union comes
in." Hood denied making the statements attributed to him by Brown. However,
Hood reluctantly admitted that about a month before the election he and Brown
discussed the merits of having the Union and at that time he did indicate to
Brown that there was a possibility that the plant would be closed down if the
Union's efforts at organizing were successful. The Trial Examiner credits Brown's
testimony noted above.8
G. M. Head testified that at about 2 months before the election (2 months be-
fore September 11, 1957) Foreman Robert Lough approached him on the job and
said
The Union is trying to come in and organize the plant up there, and if the
Union comes in that the plant would close down, wouldn't be anyone have
no job, that they was not going to operate under a union, that Union had
forced them out of business in Cleveland. That's the reason why they came
down here that they was not going to operate under a union, and so at that
he didn't want the Union coming in there.
Head testified further that "a day or two days before the election" Foreman Lough
urged him to vote against the Union and told him if the Union came in "the plant
would close down, move out; wouldn't be anyone have no job." Lough's testi-
mony is contradictory as to whether he told Head (and others) that if the Union
came in the plant would close down and the Company was not going to operate
under a union. The Trial Examiner credits Head's testimony noted above and
finds that Lough made the statements attributed to him.
Robert W. Brown testified that about 6 weeks before the election (6 weeks be-
fore September 11, 1957) Foreman Robert Lough approached him on the job and
advised him there was a job open in the shipping department for which he (Brown)
was qualified but that he (Lough) had heard that Brown was attending union
meetings and "we can't promote anybody that is against the Company." James E.
Hughes testified that somewhere around the middle of August he was present when
Lough offered Brown a better job if he would stop talking for the Union. Lough
denied that he made the statements attributed to him by Brown and denied that
he had any conversation with Brown with respect to promotion. The Trial Ex-
aminer credits Brown's testimony and finds that Lough made the statements attrib-
uted to him.
R. W. Springer testified that on one occasion he approached Supervisors Burns
and Box and Box told him that if he stayed away from the Union he would be
made a foreman and that upon his (Springer's) reply that he would stay where
he was Box said I will get someone else. Springer was confused as to when this
conversation occurred and fixed the time as either around the first of June or about
7 weeks before the election. In addition, he testified without contradiction that
9 See footnote 3.
505395-59-vol . 122-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a new foreman was hired about June 15 and this conversation was prior to that
time. Box denied that any such conversation occurred. The Trial Examiner credits
Springer's testimony and finds that Box made the statements attributed to him .9
James D. Henson testified that about a month before the election (a month
before September 11, 1957) Personnel Director Smotherman asked him (Henson)
how he thought the employees were going to vote on the union issue and that
when he (Henson) answered it would go 50-50, Smotherman told him to mingle
with other employees and "tell them that the plant would move if the Union came
in." Smotherman denied telling Henson, or asking him , to mingle with other em-
ployees and tell them that the plant would move if the Union came in. Smother-
man admitted, however, that he took an active part in soliciting votes against the
Union and that he told employees on occasions that there was a possibility that
the plant would close down if the Union was voted in. Smotherman also sent a
letter to Respondent's employees dated August 31, 1957, urging them to vote
against the Union. It is not claimed that this letter violates Section 8(a)(1) of
the Act and no determination of such an issue is made herein. However, it is
noted that the letter is a border line one on this issue and is subject to an argument
that it infers that job security will be affected by the Union's winning of the
election. The Trial Examiner has doubts that Smotherman, in his conversations
with Henson, and others, was as careful in his choice of words as he was in the
letter mentioned above and believes it highly probable that in these conversations
exceeded the permissible. The Trial Examiner credits Henson's testimony noted
above and finds that Smotherman made the statements attributed to him.
Yeat Stutts, Jr., testified that on approximately seven occasions between about
a month before the election and about 2 weeks before the election Foreman Ed
Paley told him that if the Union won the election Respondent could not operate
under the Union and would have to close the plant. Ed Paley did not testify in
these proceedings.
Donald F. Toungett testified that about a month before the election he called
upon Foreman Ed Paley at the latter's home and in the course of a conversation
asked Paley whether he thought higher wages and lower production would result
from bringing the Union into the plant and that Paley answered yes, but that
Respondent could not operate on a higher wages basis and would have to close
the plant. Paley did not testify herein.
Charlie P. Barton testified that around August 15 or 16 Foreman Hood called
together a number of checkers and told them to vote against the Union and that
if the Union came in "the plant would close down and we'd all be out of" work.
Hood denied making the statements attributed to him and testified that during a
discussion of the merits of having the Union, in which he argued against such a
proposition, he was asked whether the plant would close if "we did get a union"
and that he answered he did not know. In the light of the entire record, and the
apparent temperament of Hood, the Trial Examiner believes it unlikely that Hood
failed to express himself on whether the plant would or might close and believes
and finds that he made the statements attributed to him by Barton.
Carl McKissack testified that during the last week in August Foreman Hood
asked him how he felt about the Union and that he told Hood he had "not thought
too much about it" and Hood replied by stating that the Union "wasn't any good,"
that Respondent had left Cleveland because of the Union and was not going to
have it here, that the plant would close down if the Union came in and that there
was a better job for him [McKissack] if he [McKissack] would assure Personnel
Director Smotherman that he would not have anything to do with the Union.
McKissack testified that he went to see Smotherman but he was out and he talked
to Mr. George, Smotherman's assistant. McKissack testified further that he told
Mr. George that he "wanted the better job Mr. Hood promised: and that he
[McKissack] had decided he would not have anything to do with the Union.
McKissack testified further that Mr. George stated that he had reports that McKis-
sack was prounion and expressed surprise and disappointment over this activity but
did not "talk about the better job."
Mr. George did not testify herein.
According to Hood, McKissack asked him about a truck driver opening and he
(Hood) answered that he did not know about an opening for a truck driver but
that there were other iob openings and that he (McKissack) might get one of
these jobs. Hood testified further that McKissack expressed concern that possibly
the personnel office was getting untrue information about him (McKissack) and
that he (Hood) suggested that McKissack confer with Smotherman. Hood testi-
4 See footnote 3.
MURRAY OHIO MANUFACTURING CO. 1315
fled further that McKissack went to see Smotherman but he was not available and
McKissack talked to Lloyd George. Hood denied that the Union was mentioned
in the conversation between himself and McKissack. In the light of the entire
record herein, McKissack's version of this conversation, rather than Hood's, appears
to be nearer to what probably occurred and the Trial Examiner credits McKissack
and finds that Hood made the statements attributed to him.
Roland A. Hartlein testified that approximately 3 weeks before the election,
when he and two other employees were in Foreman Papp's office awaiting reas-
signment, Papp declared, "well boys 2 weeks from now old brother Hoyt Wright
[the Union's International representative] can leave town for good." Hartlein com-
mented that the election was 3 not 2 weeks away and Papp remarked "well, he
won't be the only one that's had it. There are a bunch of others around here
that's had it too. You can see what the Union done for those poor sons of guns
in Cleveland. They are out of a job and too old to go anywhere else and get
a job."
Papp did not testify herein.
Franklin D. Dickson testified that about 3 weeks before the election Foreman
George Burline inquired of him whether "anybody said anything about the Union"
and upon his affirmative reply and "I [Dickson] was a fool to vote for it, if they
come in the plant would close down."
Burline did not testify herein.
About a week and a half before the election Bill Hannon, Respondent's vice
president, during a discussion of production with 16 workers, and in answer to
an inquiry as to whether production would be lower if the Union came in, said
production (for piece-rate purposes) would be lower but Respondent would not be
able to sell its products and as a result the employees would only get 6 or 8
months' work out of a year.'°
Approximately a week before the election Respondent's president, C. W. Hannon,
read a speech from a prepared document to a group of between 300 and 400
employees. In the speech Hannon outlined Respondent's history and its prior
experiences with the Union involved herein and urged employees to vote against
the Union in the coming election. Hannon indicated that Respondent had moved
from Cleveland to Lawrenceburg because, inter alia, of its difficulties with the
Union and that if the Union created a similar situation in Lawrenceburg there was
a possibility that Respondent would liquidate its business. Although the matter is
not free from doubt, the Trial Examiner believes and finds that the speech was a
noncoercive antiunion solicitation.
G. M. Head testified that a few days before the election, Respondent's assistant
traffic manager, Michael Maskovyak, told him, and others, that Respondent did not
want the Union and could not operate under a union. Charlie P. Barton testified
that Maskovyak said that if the Union won the election the plant would close
down, that the Hannons [president and vice president of Respondent] had enough
money to retire and they did not have to run under a union and would just close
down and retire. Maskovyak testified that during the 2 months immediately pre-
ceding the election he held a series of meetings in which he addressed groups of
employees from prepared notes and that the theme of these talks paralleled the
speech by C. W. Hannon, heretofore noted. Maskovyak denied that he told the
employees the plant would close down but testified he did tell them that Respondent
could not operate unless it could make a profit and that if the same conditions
were brought about in Lawrenceburg that had taken place in Cleveland there was
a possibility that the plant would close. Although the matter is not free from
doubt, the Trial Examiner believes and finds that Maskovyak's talks were non-
coercive and credits his testimony rather than the testimony of Head and Barton
where there are conflicts concerning this matter."
James D. Henson testified that about a week before the election Foreman Heller
urged him to vote against the Union. Henson's testimony on this matter is far
from clear. On direct examination he testified that Heller told him that if the
Union came in the plant would shut down on account of they could not work with
the Union. On cross-examination he testified that Heller told him the Union
might shut the plant down. Heller's testimony is not much clearer except that
he did deny that he told Henson if the Union came in the plant would shut down
and did testify that he told Henson there was a possibility that the plant would
close just like it happened in Cleveland.
11 Based upon the testimony of Franklin D. Dickson. Hannon did not testify herein.
n It is noted that the General Counsel does not contend that Maskovyak's remarks
violated the Act and that the testimony concerning his remarks was directed to the
objections to the election.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charlie P. Barton testified that about a week before the election Foreman Lough
told him (and James E. Hughes) to tell the men working with them "to vote `no'
at the election, that the Company would close the plant down if the Union came
in, and we'd be all without a job." Lough testified he did not recall the conversa-
tion about which Barton testified and denied that he made the statements attributed
to him. Hughes, a rebuttal witness for the General Counsel, testified that the
conversation occurred 3 or 4 weeks before the election and that Lough told them
to "belittle the Union" and tell the workers "that the Union would do the workers
dirty." As noted above and hereinafter, this is not the only conversation con-
cerning the Union involving Lough. In the light of the credited evidence and the
interests of the witnesses involved and the entire record herein, the Trial Exam-
iner believes and finds that Lough engaged in the conduct and made the statements
attributed to him by Barton.
Carl McKissack testified that about a week before the election Foreman Hughes
told him that if the Union came in the plant would shut down and nobody would
have a job. Counsel for the General Counsel does not contend that Respondent
violated the Act by this statement of Hughes and Respondent did not call him as
a witness. He was called as a rebuttal witness for the General Counsel but did
not testify concerning this matter.
Donald F. Toungett testified that about a week before the election Foreman
Ed Paley talked to groups of employees, that the group meeting which he
(Toungett) attended concerned the Union and its affect on the employees. Toungett
testified that during this meeting Paley was asked if the employees would get
higher wages if the Union came in and Paley told them that if the Union came in
it would bring higher wages and lower production (lower minimum production for
piece workers) but that if that happened Respondent could not operate on that
basis and be able to sell its product and would have to sell the machinery at
half price and move elsewhere. Paley did not testify herein.
Ralph T. Williams testified that about a week before the election Foreman
Pillar called a group of employees into his office and urged them to vote against
the Union and told them that if the Union came in Respondent would have to
close the doors and quit. Williams was not able to supply the details of this
meeting or even enough of the details to determine the context in which these
statements were made. Pillar denied making the statements attributed to him.
According to Pillar, the meeting was called by him to explain to the men under
his supervision why more of them were not being transferred to the day shift and
during the meeting inquiries were addressed to him concerning the Union and its
affect on the employees' working conditions. Pillar testified that he told the em-
ployees he did not want to discuss the matter, but that upon being pressed he told
them they should vote the way they pleased and in response to a question as to
whether there was a possibility that the plant would close down if the Union came
in, he answered that he did not know. In the opinion of the Trial Examiner, the
testimony of Williams concerning this matter is too fragmentary and lacking in
details to determine the context in which Pillar made the statements attributed to
him, assuming that he made such statements. In view of this and Pillar's testimony
the Trial Examiner credits Pillar's denial that he made the statements attributed
to him by Williams."
George M. Head testified that 4, 5, or 6 days before the election Assistant
Personnel Director Alexander came to where he (Head) and Gene McMullen were
talking about the Union and told them "if you and Gene McMullen don't let up
off this union I am going to send you on back to the log woods where you came
from." 13 Head testified further that a day or 2 days before the election Assistant
Personnel Director Alexander
12 Williams was called as a witness by the General Counsel and during cross-examination
counsel for Respondent sought to compel the General Counsel to produce a prehear'ing
affidavit by Williams. The Trial Examiner , bearing in mind the Board's decision In The
Great Atlantic and Pacific Tea Company, 118 NLRB 1280, denied Respondent's motion.
After the close of the hearing the Board's decision in Ra-Rich Manufacturing Company,
121 NLRB 700, issued. Under the Ra-Rich case it appears that Respondent is entitled to
the prehearing affidavit. Nevertheless, Respondent Is not prejudiced by its failure to
receive said document since the Trial Examiner is not crediting Williams' testimony.
Accordingly, the Trial Examiner Is not reopening the record in this matter and affording
Respondent an opportunity to cross-examine Williams further after the production of
the document in question.
is Prior to their employment by Respondent, Head and McMullen had been employed by
a sawmill concern and were engaged in logging operations-securing logs from wooded
areas.
MURRAY OHIO MANUFACTURING CO . 1317
come down through the plant there and come up to me and come to talk to
me about the Union, and told me whenever I went to vote for the Union I
had better vote "no" and help keep the Union out. If it come in there the
plant would close down, would not be nobody have no job. They did not
want the Union in there."
Alexander denied making the statements attributed to him and denied ever
talking to Head and McMullen together. Alexander did testify, however, that he
told Head on one occasion that he (Alexander) thought Respondent's employees
were better off without the Union and that he told various employees that Re-
spondent had moved to Lawrenceburg because of strikes and unreasonable demands
by the Union in Cleveland and that "there was a possibility if they became or-
ganized in Lawrenceburg and made the same demands and same conditions it
would cause them [Respondent] to have to move from Lawrenceburg." The Trial
Examiner credits Head's testimony and finds that Alexander made the statements
attributed to him.
About September 5, 1957, James V. Sudduth was called into the office of Fore-
man Hardison. Hardison opened the conversation with "James, I guess you know
why you are here. I heard you are for the Union." Upon Sudduth's noncom-
mittal answer as to whether he was for the Union Hardison made an antiunion
talk to Sudduth and also told Sudduth that there were better jobs open for qual-
ified men and that he (Sudduth) was qualified for one of these jobs but that he
(Hardison) could not put a man there that he was not sure of whether he was
voting for the Company or the Union.14
James L. Carlton testified that about 3 days before the election (before Sep.
tember 11, 1957) Foreman Heller, came to where he (Calton) and James Henson
were working and urged them to vote against the Union in the coming election
and told them that if the Union won the election the plant would shut down and
he would sell his house and go back to Cleveland. Heller admitted urging em-
ployees, including Calton and Henson, to vote against the Union, admitted that he
said there was a possibility that the plant would close down and admitted that some
remarks were made about selling property. Heller did not specifically deny (al-
though he did indirectly deny) making the statements about closing the plant
attributed to him by Calton. Heller's sworn testimony is contrary to statements
made in an affidavit which he gave prior to the hearing herein. The Trial Exam-
iner credits Calton's testimony and finds that Heller made the statements attributed
to him by Calton.
On the day of the election Foreman Heller told Calton it was time to go vote
and for him to be sure and vote against the Union.15
James O. Pettus testified that on September 10, 1957, Foreman Hood, told him
and two other employees that they did not need a Union and that if the Union
came in, Respondent would close the plant down for 4 months out of a year and
bring "colored guys down here to take our place." Hood denied making the
statements attributed to him by Pettus. According to Hood
we was talking about the Union and coming election, and they asked me if
I thought the Union would try to move in the colored people, and I told them
I didn't know, that I didn't have any thing to do with the hiring of men,
I didn't think that the Company would unless the Union tried to force them
to bring in colored people.
It is noted that shortly before the conversation under consideration Respondent's
vice president had made a remark indicating that if the Union came in Respondent
would not be able to sell its products and as a result the employees would not
work a full year. In this light and after observing the witnesses and analyzing
the record herein the Trial Examiner credits Pettus' testimony and finds that Hood
made the statements attributed to him by Pettus.
The foregoing reveals that Respondent violated Section 8(a)(1) of the Act by the
following conduct:
(a) Foreman Krigger's threat to R. W. Springer on or about June 1, 1957.
(b) Foreman Roller's threat to James Pratt on or about June 1, 1957.
(c) Assistant Personnel Director Alexander's warning to Wallace on June 5, 1957.
(d) Foreman Hood's threat to Robert W. Brown about 2 months before Septem-
ber 11, 1957.
(e) Foreman Lough's threats to G. M. Head about 2 months before Septem-
ber 11, 1957, and "a day or two" before the election (before September 11, 1957).
14 Based upon the testimony of Sudduth. Hardison did not testify herein.
15 Based upon the testimony of Calton. Heller denied that he told Calton to vote
against the Union but admitted that he "requested" other employees to vote against it.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Foreman Lough's remarks to Robert W. Brown about 6 weeks before the
election.
(g) Supervisor Box's remarks to R. W. Springer around June 1, 1957.
(h) Personnel Director Smotherman 's threat to James D. Henson about a month
before the election.
(i) Foreman Hood 's threat to Charlie P. Barton around August 15 or 16, 1957.
(j) Foreman Hood 's threat and promise of benefit to Carl McKissack during the
last week in August 1957.
(k) Foreman Burline's threat to Franklin Dickson about 3 weeks before the
election.
(1) Foreman Lough 's threat to Charlie P. Brown about a week before the election.
(m) Assistant Personnel Director Alexander 's threat to G. M. Head 4, 5, or
6 days before the election and again a day or two before the election.
(n) Foreman Hardison 's remarks to James Sudduth about Se ptember 5, 1957.
(o) Foreman Heller's threat to James Calton about 3 days before the election.
(p) Foreman Hood's threat to James Pettus on September 10, 1957 . The con-
duct referred to in items (i) though (p) inclusive occurred after the date of the
issuance of the Decision and Direction of Election in the representation case and
interfered with the election and deprived the employees of their freedom of
choice.16 This interference with a free choice of a bargaining representative in
the light of the noncoercive antiunion statements noted above created , in the opinion
of the Trial Examiner, an atmosphere not conducive to the sort of free and un-
trammeled choice of representative that is contemplated by the Act . Accordingly,
the Trial Examiner recommends that the election be set aside and a new election
held.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in these proceedings satisfies the Board's requirement
for the assertion of jurisdiction herein.17
2. International Union , United Automobile , Aircraft & Agricultural Implement
Workers of America , AFL-CIO, is a labor organization within the meaning of the
Act.
3. The evidence adduced establishes that Respondent interfered with , restrained,
or coerced employees in the exercise of the rights guaranteed in the Act, and
thereby violated Section 8 (a)(1) of the Act.
4. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. The evidence adduced establishes that Respondent interfered with the election
and deprived the employees of their freedom of choice.
6. The evidence adduced does not establish that Respondent discharged Doyle
G. Wallace because of his union or concerted activities.
[Recommendations omitted from publication.]
38 See New England Upholstery Co., Inc., 121 NLRB 284.
17 Annually Respondent ships from its place of business in Lawrenceburg, Tennessee,
products valued at more than $50 ,000 directly to customers located outside the State of
Tennessee.
Citrus Division , Kraft Foods Div., National Dairy Products
Corporation and Teamsters, Chauffeurs and Helpers Local
Union No. 79, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America , Petitioner. Case
No. 12-RC-351. February 6, 1959
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election
executed on August 22, 1958, an election by secret ballot was con-
ducted on August 30 and September 6, 1958, under the direction and
122 NLRB No. 158.