Rish Equipment Co.

National Labor Relations Board - Board Decisions

Jan 22, 1965

150 N.L.R.B. 1185 (N.L.R.B. 1965)

RISH EQUIPMENT COMPANY 1185
All production, shipping , and receiving employees employed by us at-our
New York, New York, location , excluding the driver , the color matcher,
sales employees , office clerical employees, watchmen , guards, and super-
visors as defined in the Act.
WE WILL offer Clarence Williams and James Hilton immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges , and make them whole for any
loss of earnings suffered by reason of the discrimination against them provided
in the section of the Trial Examiner 's Decision entitled "The Remedy."
All our employees are lice to become or remain , or refrain from becoming or
remaining , members of the above -named Union , 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 by Section 8(a)(3) of the Act.
LEWIS ROBERTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)'
NOTE.-We will notify Clarence Williams and James Hilton if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or *covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500,
if they have any questions concerning this notice or compliance with its provisions.
Rish Equipment Company and Chauffeurs , Teamsters & Help-
ers Local Union #175, affiliated with International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America . Cases Nos. 9-CA-3072 and 9-RC-5417. January 22,
1965
DECISION AND ORDER
On November 2, 1964, Trial Examiner Thomas N. Kessel issued
his Decision in the above-entitled proceedings, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. -
The Trial Examiner further recommended that, with respect to
the election conducted in Case No. 9-RC-5417, the challenged ballot
of employee Jerry W. Dove be opened and counted, as his ballot
may be determinative of the results of the election.' He also recom-
1 An erratum dated November 4, 1964, issued by the Trial Examiner, limited this recom-
mendation to the ballot of Dove , and noted that his original Decision inadvertently rec-
ommended that the challenged ballot of employee Ratliff also be opened and counted, even
though he found Ratliff ineligible to vote in the August 30, 1963, election. [The
corrected paragraph has been substituted for the original paragraph under section IV.]
150 NLRB No. 116.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that if, after the counting of Dove 's ballot and the issuance
of a revised tally of ballots , the Union was shown to have obtained
a majority of the votes cast in the election, it be declared the winner
in-the election and certified as the exclusive collective -bargaining
representative of Respondent 's employees in the appropriate unit.
If, however, the revised tally demonstrates that the Union has not
obtained a majority of the votes cast , the Trial Examiner recom-
mended that the election be set aside and a new election ordered,
because of Respondent 's conduct which he found impaired the em-
ployees' freedom of choice . Thereafter , Respondent filed limited
exceptions to the Trial Examiner 's Decision and a supporting brief.
Pursuant to the,provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and
Members Fanning and Brown].
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 these cases , and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, Rish
Equipment Company, its officers , agents, successors , and assigns,
shall take the action set forth in the Trial Examiner 's Recommended
Order, with the following modification :
Add the following as paragraph 2(b), the present paragraph 2(b)
and those subsequent thereto being consecutively relettered :
"(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 Service Act and
the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.''
IT IS FURTHER ORDERED that the representation proceedings in Case
No., 9-RC-5417 shall be, and they hereby are, remanded to the
Regional Director for Region 9 for the purpose of opening and
counting the challenged ballot of employee Jerry W. Dove and issu-
ing a revised tally of ballots , and for the further purpose of certifying
the Union as the exclusive collective -bargaining representative of Re-
spondent's employees in the appropriate unit if it is found to have ob-
tained a majority of the votes cast in the election , or, if it has failed to
RISH EQUIPMENT COMPANY 1187
secure the required majority, to set aside the results of the August 30,
1963, election and conduct a new election at such time as he
deems the circumstances will permit the free choice of a bargaining
representative.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge dated January 15 and an amended charge dated February 3, 1964,
filed by Chauffeurs , Teamsters & Helpers Local Union # 175, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, herein called the Union , against Rish Equipment Company, herein called
the Respondent , the General Counsel of the National Labor Relations Board , herein
called the Board , by the Regional Director for Region 9, issued a complaint, dated
February 28, 1964, alleging that the Respondent had engaged in conduct violative of
Section 8 (a)(1) and ( 3) and Section 2(6) and ( 7) of the National Labor Relations
Act, herein called the Act. " The Respondent 's answer denies the complaint allega-
tions of statutory violation . On March 9, 1964, the Regional Director issued a sup-
plemental decision in Case No . 9-RC-5417 consolidating the hearing directed in that
proceeding on objections to an election and challenged ballots with the hearing in
Case No. 9-CA-3072. At the same time the Regional Director directed the Trial
Examiner conducting the hearing to prepare and serve the parties with a, decision
resolving the issues before him in the representation proceeding and to make recom-
mendations concerning them. Pursuant to notice , a consolidated hearing was held
before Trial Examiner Thomas N. Kessel at Bluefield , West Virginia , on April 14
and 15 and on July 7, 1964. All parties were represented by counsel or other repre-
sentative who were afforded full opportunity to be heard , to examine and cross-
examine witnesses , and to present evidence . After the close of the hearing ,the
Respondent submitted a brief which has been duly considered.
Upon the entire record in the case, and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The Respondent is a West Virginia corporation which sells and services heavy con-
struction equipment at various locations in several States. The particular operation
involved in these proceedings is located at Bluefield , West Virginia . During 1963 the
Respondent sold goods and materials valued in excess of $50 ,000 which it shipped
across State lines directly to customers from its Bluefield plant . In the same year the
Respondent received shipments valued in excess of $50 ,000 which were transported
across State lines directly to its Bluefield plant. From these facts I find that the
Respondent is engaged in interstate commerce within the Act's meaning and that the
purposes of the Act will be effectuated by the Board 's assertion of. jurisdiction over
its operations in these proceedings.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership the Respondent's
employees.
III. THE OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION AND THE
CHALLENGED BALLOTS IN CASE NO . 9-RC-5417 , AND THE UNFAIR LABOR PRACTICES
IN CASE NO. 9-CA-3072
On August 30, 1963 , an election was conducted by the Regional Director among
the employees at the Respondent 's Bluefield plant to determine whether they desired
to be represented in collective bargaining by the Union . The tally of ballots issued
after the election shows that of 27 eligible voters, 13 cast ballots for the Union and
12 against . Five ballots remained unopened because ' they were challenged. Of these,
four were challenged by the Respondent on the ground that the voters, Edwin C.
Wickline, Robert Witt , Jerry W. Dove, and Crockett G. Ratliff, were not its employees
at the time of the election . The fifth ballot was challenged by the Union on the
ground that it was cast by an employee , Joseph M. Meade, who was ineligible to vote
because of his casual or temporary employment . On September 6, 1963 , the Union
and the Respondent separately filed timely objections to conduct affecting the-results
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the election. Thereafter, the Regional Director investigated the challenges and
the objections and on March 9, 1964, issued his supplemental decision disposing of
some of the challenges and objections but, as noted, leaving others to be decided after
a hearing by a Trial Examiner. Wickline and Witt were found by the Regional
Director to have been terminated by the Respondent for cause before the election
and the challenges to their ballots were, therefore, sustained. Questions of fact were
raised by the investigation concerning the Union's claim that Dove and Ratliff had
been unlawfully discharged before the election and the Respondent's insistence that
they, too, had been justifiably terminated for cause. A fact question was raised con-
cerning the status of Meade as a casual or regular part-time employee. There thus
remained for determination at the hearing the challenges to the ballots cast by Dove,
Ratliff, and Meade.
The Regional Director found upon investigation that the Respondent's objections
to the Union's election conduct were both factually unsupported and without merit.
He accordingly overruled these objections. He also overruled certain of the Union's
objections to the Respondent's election conduct, but found that other objections
raised material issues of fact and law which should be determined after a hearing.
Particularly, these objections pertained to the alleged unlawful terminations of Dove
and Ratliff, a speech to employees at the plant the night before the election by Chap-
man I. Johnston, the Respondent's vice president, in which he allegedly proclaimed
the Respondent's refusal-to recognize or bargain with the Union if it were to win the
election and also implied curtailment of the plant's operations if the employees
selected the Union as their representative, interrogation of employees by alleged
supervisors concerning their union sympathies and activities, and threats of plant
closure if the Union were to prevail in the election.
The above-described threats and interrogations are alleged by the complaint in
Case No. 9-CA-3072 as violative of Section 8(a) (1) of the Act. There are a few
additional statements to employees ascribed to the Respondent's supervisors and
agents which are also alleged as Section 8(a) (1) violations. The terminations of
Dove and Ratliff before the elections are alleged in the complaint as violative of
Section 8(a)(3) of the Act. The terminations in the week after the election of
employees Ronald Bailey, James Dalton, Paul Hurst, and B. V. Rowland, and the
Respondent's refusal thereafter to reinstate them are also alleged as violative of Sec-
tion 8(a) (3) of the Act.
At the hearing and in its brief the Respondent offered economic justifications for
the terminations of the foregoing six employees and maintained that their selection
for discharge or layoff was motivated by considerations unrelated to their union
sympathies or activities. As to the alleged Section 8 (a) (1) misconduct, the Respond-
ent's defense essentially is a denial of commission of the conduct attributed to its
supervisors and agents and also a disclaimer of responsibility for the conduct of two
persons on the ground that they were not its supervisors but were mere rank-and-file
employees.
I consider first the evidence of the Respondent's conduct claimed to have affected
the results of the election and also to have violated Section 8 (a)( I) of the Act.
On August 29, 1963, the night before the election, a meeting was held in the plant
attended by all the employees and by the Respondent' s managerial staff. The head-
quarters for the Respondent's multistate operations are also located in Bluefield sev-
eral miles from the plant. Attending the meeting were Executive Vice President
Johnston; General Service Supervisor Clyde V. Stanton, in charge of service opera-
tions at all of the Respondent's plants; and General Parts Supervisor Samuel J.
Hyams, in charge of pacts operations at all of the Respondent's plants, from the head=
quarters staff. The principal address to the assembled employees was delivered by
Johnston. His remarks on this occasion are the basis for objection No. 3 filed by the
Union to election conduct.
Employee Alfred G. Shrader recalled that Johnston had spoken about the "triangle"
formed by the Respondent's plants at Charleston, West Virginia, and Coeburn and
Roanoke, Virginia, and that if the Respondent were "forced to" one of the other
plants in the triangle would take over the Bluefield operation. He could not recall
what remarks Johnston had made leading to his reference to the "triangle." Shrader
professed poor memory of the details of Johnston's speech. He first testified that he
had not mentioned the Union, but then remembered Johnston had talked about the
insurance plan which the Respondent had formulated after a survey, that it repre-
sented the best which could be offered, and that it would not be changed "if the
union came in." He recalled that Johnston' had referred to the Union as a "mouth-
piece" for the employees, and that he informed them his door was open to them if
they wished to discuss their personal problems. -
RISH EQUIPMENT COMPANY 1189
Herbert P . Hurst, one of the terminated employees herein , testified that he could
not recall Johnston 's exact words at the August 29 meeting, but that "more or less"
Johnston had said he "wouldn 't recognize the union."
Ronald L . Bailey, another of the terminated employees, could recall only that
Johnston had talked at the August 29 meeting mostly about the Respondent 's insur-
ance plan and , referring to the Union , had said the plant would not be changed
regardless of the outcome of the representation election.
Bernard V. Rowland, a terminated employee, testified that the only thing he could
recall about Johnston 's comments at the August 29 meeting was his explanation of the
hospitalization program and how it would not be changed even if the Union "went in."
Otherwise , he could recall nothing said by Johnston about the Union.
Former employee Joe S. Barnett testified that Johnston had said the August 29
meeting had nothing to do with the Union or the election to be held the next day.
He claimed Johnston told the employees the Union would not get them anything the
Respondent was not going to give them "anyway" and that raises would be granted
as profits were made. The employees were informed by Johnston that his door was
open to them whenever they wished to speak to him. He spoke of the layoff in the
parts department and explained that this action had been planned earlier and had
nothing to do with union activity . He talked about the insurance plan and empha-
sized the increased premium costs which would be borne by the salaried personnel
and not the hourly rated employees . He declared the insurance plan to be a good
one and that it would not be changed whether the Union got in or not. Johnston also
referred to the possibility that business conditions might someday ' necessitate the
transfer of-the Bluefield operations to the Roanoke, Charleston , or Coeburn plants.
Johnston acknowledged in his testimony that the employees were "wined and
dined" although claiming they were not treated more elaborately than at past meet-
ings of employees . While he maintained that the Respondent 's policy was to have
"service meetings" monthly for employees at each plant he conceded that the
August 29 meeting was the first held at Bluefield since the Christmas 1963 meeting.
He explained that consolidations and other physical activities involving the Respond-
ent's Bluefield and Princeton , West Virginia , plants had necessitated the avoidance
of meetings in the intervening period.
Johnston denied he had told the employees he would refuse to recognize or bar-
gain with the Union , or that he would not change the Respondent 's policy concerning
wages or its group insurance program. He related that he had assured the employees
the insurance and pension plan would never be taken from them and had said this to
dispel rumors that the Respondent intended to terminate the plan . He had pointed
out it would not be changed because it had been approved and was controlled by the
Federal Government . What he meant by this, he explained at the hearing, was that
the pension plan had been approved by the Internal Revenue Service after a "long
drawn-out procedure ." He also denied telling the employees the Union could not
get them anything . He ' denied any mention of removal of the Bluefield plant by
merging it with one of the other plants in the "triangle ." He further denied calling
the Union a "mouthpiece " for the employees or saying that the employees would
receive only those wages and benefits which the Respondent would grant , or that no
concessions would be made in bargaining negotiations with the Union.
General Parts Supervisor Stanton also denied that Johnston had declared he would
refuse to recognize or bargain with the Union , or that Johnston had said he would
make no changes in wage rates or in the insurance plan. He recalled , 'contrary to
Johnston , that he had referred to the "triangle" but had said in this connection that
if Bluefield 's business decreased to the point where it failed to show a profit its opera-
tions would possibly be handled by one of the other plants in the triangle. Stanton
claimed Johnston had added that in this event Bluefield employees would be given the
opportunity to transfer to the Respondent 's other plants. Stanton did not hear any
reference by Johnston to the Union as a "mouthpiece " for employees.
Objection No. 4 filed by the Union to the Respondent 's election conduct, alleged
also by the complaint as violative of Section 8 (a) (1) of the Act, principally involves
threats of plant closure to employees claimed to have been made by the Bluefield
plant Parts Manager James Stone, Assistant Parts Manager Ray Stamper , and by Serv-
ice Manager Julian R. Umberger . The Respondent concedes that the latter is a
supervisor for whose conduct it is responsible , but denies that Stone and Stamper are
supervisors or responsible agents. The evidence concerning the claimed supervisory
status of these persons will be considered later. Presently , I shall delineate the evi-
dence of threats attributed to them and Umberger.
Employee Dove testified that in August 1963, Stamper told him and employee
Dalton that Vice President Johnston "would close the place down if the union was
voted in ." He maintained Stamper had made this comment many times between May
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Dove 's termination on August 17. Employee Shrader attributed similar remarks
to Stamper and Umberger . He recalled that the remarks were made in July but could
not be certain whether they were made in the early or latter part of the month. He
conceded the possibility that the remarks were made either early or late in the month.
Employee Ratliff also claimed Umberger had said the plant would be closed if it were
unionized . Except that this occurred in July 1963, Ratliff , too, could not remember
in which part of the month the remark was made. Employee Barnett related that in
July 1963 as he worked with other employees cleaning the parts department 'he
jokingly commented about the dust in the bins, whereupon Stamper remarked , "Well,
there is probably more dust than this ; that [if] the union goes in, we'll have to close it
down ." Again , this witness was unable to specify in which part of July the incident
occurred . Employee Dalton testified that Stamper told him "the company said they
would close down the shop " if the Union were to win the election . Dalton further-
more claimed Umberger had told him that he would not work "under a union because
it was a bunch of gangsters ," and that if the Union were voted in the Respondent
would close the plant . Dalton was not certain of the exact dates when Stamper and
Umberger had made their remarks to him. He acknowledged that Stamper's state-
ment could have been made in early July 1963, and , although believing that Umber-
ger's statement was made after mid -July, conceded he did not know whether it was
made before then.
Stone, Stamper, and Umberger denied they had made any of the comments ascribed
to them by the foregoing witnesses.
The Union 's objection No. 5 is largely a repetition of the Union 's other objections.
In 'addition it specifies that by interrogation of employees concerning their union
sympathies and activities and "by other acts" the Respondent 's conduct affected the
results of the election . The complaint lists various items of Section 8(a) (1) conduct
alleged to have been committed by the Respondent 's supervisors and agents which may
be categorized as the "other acts" referred to by objection No. 5.
Supporting the foregoing objection is Dove's testimony that during a coffee break in
August Stone addressed a group of employees and said, pointing to Dove, "There's one
that signed a union card . We know who all signed . Over half of you signed." Then
Stone named those whom he accused of signing cards. Dove further testified that in
July and August 1963 Stamper had several times during coffee breaks accused
employees of signing cards. He related that in August Stamper had also accused him
and Dalton of being the ringleaders in the union movement.
Shrader testified that Stone had asked him in July 1963 whether he had signed a
union card and when he replied he had not Stone retorted , "You know damn well you
did." Shrader was uncertain with respect to Stone's interrogation , as he was concern-
ing remarks he attributed to others , in which part of July it occurred : He recounted
that Stamper "was always trying to guess who the guys were that signed the cards, and
I was always one of the favorite subjects," but could fix no specific date for this con-
duct . Shrader had been seeking a raise before the election . At the August 29 meeting
of employees , above-described , he had approached Hyams, the general parts super-
visor, about the matter . Shrader testified that Hyams had replied he could not
receive a raise until he went from his job as inventory clerk to parts clerk and that he
had not received the promotion because of "the situation caused by the Union."
Ratliff recalled an incident which he believed occurred in July 1963 when Stamper
in his - presence and Dalton 's named the persons who had attended the Union's first
meeting and mistakenly included Ratliff 's name . He further testified that in June
Umberger jokingly asked where was the paper "that Hoffa has got going around here
that everbody is signing."
Bailey testified that in the latter part of July 1963, Stamper on several occasions had
said to him , "You signed a union card , didn 't you?" and had remarked, "Here comes
Hoffa," and made other similar comments.
Dalton related that in the latter part of July 1963 and again in August Stamper had
accused him and Dove of being the Union 's ringleaders and of starting the union
activities in the plant . He further testified that he heard Respondent 's counsel , George
Gardner, say on election day before the balloting that the "Teamsters Union was a
bunch of gangsters ." Dalton recalled an occasion when Umberger entered the weld-
ing shop and asked what was the union paper "floating around " and said he would like
to sign it . Dalton could not fix the date for this incident.
Stone and Stamper denied they had said the things attributed to them by the fore-
going witnesses . Umberger also denied their claims of things said by him relative to
the Union except that he did not deny the comments about the paper which Hoffa was,
getting signed by employees . All three of these persons testified they had been dis-
RISH EQUIPMENT COMPANY 1191
creetly neutral and had not voiced their opinions about the union notwithstanding
that employees had discussed the subject in their presence and had solicited their
opinions.
Hyams acknowledged that Shrader had approached him at the August 29 meeting
about the transfer to the parts clerk job he had been seeking. Hyams gave his version
of the conversation a different nuance from that attributed to him by Shrader. He
related that he had explained to Shrader that his progress had been carefully watched,
but in the circumstances, which the Respondent could not control, Shrader could not
then be moved into the parts department because it was felt the Union would make
the charge that the Respondent was bribing Shrader to obtain his vote against the
Union. Shrader did subsequently receive his transfer to the parts clerk job where
he received a raise in pay.
An additional item of Section 8(a)(1) conduct, not encompassed by an objection
to the election, is the testimony of employee Barnett'that on the day of the election,
after the balloting had ended, Stamper had told him that the ballot of employee Joe
Meade, challenged by the Union, had been opened and counted and that it had been
a vote against the Union which produced a tie which meant that the Union lost the
election. If Stamper had said this to Barnett he was obviously conveying information
which was untrue. Stamper denied he had done so.
A. Findings concerning the Union's objections Nos. 3, 4, and 5 and alleged
violations of Section 8(a) (1)
I am satisfied that the August 29 meeting of employees was called by the Respond-
ent on the eve of the representation election to get in a last minute appeal for employee
loyalty. It was not, as Vice President Johnston sought to imply, a meeting which
would have been held in the regular course of events regardless of the impending elec-
tion . The timing of the meeting and the fact that no meetings of this sort had been
held since Christmas 1963, convince me that the real objective of the so-called get-
together at which the employees were plied with food and drink was to influence them
to vote against the Union the next day. I am sure this purpose was so transparent
that the employees could not have failed to perceive the Respondent's strategy. The
Regional Director found in his supplemental decision that the Respondent did not
violate the Board's Peerless Plywood rule, 107 NLRB 427, by holding the meeting
within 24 hours before the election. He did find that there was evidence to support
the Union's claim that Johnston had told the assembled employees the Respondent
would not recognize the Union even if it were to win the election,, and that if the
Union were chosen by the employees to represent them the Respondent would not alter
their terms or conditions of employment in collective bargaining. My evaluation of
the evidence in the instant record impels a conclusion that the Union's claim is not
sustained.
The most damaging evidence against the Respondent is Hurst's testimony that
Johnston had said he would not recognize the Union. I do not credit Hurst. He
obviously was offered a mere personal construction of what Johnston had said without
recounting sufficiently the statements from which his opinion was derived. Moreover,
I am unwilling to rely on Hurst's vague memory. Otherwise, I find nothing in the
accounts of the other witnesses to support the Union's version of Johnston's speech.
Bailey and Rowland admittedly had poor recall of what Johnston had said.
Shrader likewise conceded his memory of the details of the speech was poor. But
even if I were to credit everything that they and Barnett claim to recall, I find nothing
in their versions to substantiate the Union's objections. I am convinced, contrary to
Johnston, that he did mention the possibility of merger of the Bluefield operations
with those of another plant in the "triangle." But I am not satisfied, despite some
doubts,' this was a threat of retaliation if the employees were to select the Union as
their representative. No witness claimed Johnston had spoken of this subject in rela-
tion to the Union, and Stanton credibly related that the only contingency mentioned
in connection with the possibility of merger was the Bluefield plant's profit situation.
In view of evidence in the record that the Bluefield business in the summer of 1963
had declined, and the fact that there appears to be some geographical logic to merger
of this plant's operations with those of another plant in the triangular area, I am not
impressed-that Johnston's reference was subtly manufactured from thin air just to
frighten employees from adhering to the Union. Nor do I find in the accounts of
the employees that Johnston's remarks about not changing the insurance and pension
3 These doubts are fostered by the fact that on Johnston's recommendation the Respond-
ent recently had erected a new building at Bluefield and had transferred the operations
of its Princeton, West Virginia, plant to this location.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plan, which the Respondent had been preparing for the employees before the Union's
advent, a declaration that the Respondent would not bargain with the Union about
the plan if it were to become the employees' representative. As I construe their testi-
mony on this subject, particularly in the light of Johnston's better remembered details,
he was trying to convince them that the plan was a favorable one as evidence of the
generosity of their employer. This, in the circumstances, was an obvious argument to
the employees that they did not need the Union to obtain these and other benefits such
as wage increases which Johnston told them would come to them if profits increased.
The sense of what Johnston told the employees about the plan is not that the Respond-
ent would intractably refuse to change it if the Union were selected by the employees,
but that the plan, conceived after long study and consultation with the Federal Gov-
ernment, could not be changed. I do not believe his remarks were reasonably con-
struable as fostering the impression that it would have been futile for the employees
to select the Union as their representative because the Respondent would not have
bargained collectively with it. I further find nothing in Johnston's comment about
his door open to the employees or his characterization of the Union as the mouth-piece
of the employees to warrant invalidating the election. Nor are these remarks viola-
tive of Section 8(a) (1) of the Act. I recommended that objection No. 3 be overruled.
As to the threats of plant closure involved in objection No. 4, I credit the testimony
of Dove, Shrader, Ratliff, Barnett, and Dalton that such threats were uttered by Stone,
Stamper, and Umberger at various times in August and July 1963. I also credit
Dalton's testimony that Umberger had said to him in July that he would not continue
to work for the Respondent if the Union were to win the election as the Union was
a "bunch of gangsters." In crediting the foregoing witnesses I am convinced not only
that they truthfully recounted these threats and the circumstances in which they were
made, but that their memory of them, as contrasted with their inferior recollection of
Johnston's August 29 speech, is sufficiently good to warrant reliance thereon. I do not
believe the categorical denials of Stone, Stamper, and Umberger that they had made
the remarks attributed to them. I do not, however, hold the Respondent responsible
for Stamper's conduct because, as I shall explain later in this Decision, he was not a
supervisor or agent for whose actions the Respondent is chargeable. I do not find
that Stone is a supervisor within the Act's meaning, as I shall subsequently point out,
for whose conduct the Respondent is responsible. Umberger is concedely a super-
visor whose actions are chargeable to the Respondent. While I have found that
Umberger did declare he would not work under the Union for the reason given by him,
I do not perceive in these comments threats or other reasons for invalidating the elec-
tion or for finding that the Act was violated. Threats of plant closure, however, con-
stitute an elementary form of intimidation and tend to inhibit the exercise of a free
choice by employees in the selection of a bargaining representative. Having found
that such threats were committed by the Respondent's supervisors in the course of the
election campaign, I further find that the Union's objection No. 4 has been sustained.
The foregoing threats by Stone and Umberger may be found violative of Section
8(a)(1) of the Act only if the proof shows by the necessary preponderance that they
were made within 6 months from the filing of the charge in Case No. 9-CA-3072 as
required by Section 10(b) of the Act. As the charge was filed on January 15, 1964,
no conduct may be relied upon as a basis for a finding of statutory violation herein
unless shown to have been committed after July 15, 1963. The testimony of the
General Counsel's witnesses reflects too much uncertainty as to precise dates to permit
findings that Stone's and Umberger's threats were made after rather than before
July 15. Accordingly no findings of Section 8 (a) (1) violations based upon such con-
duct are made.
With respect to objection No. 5, I credit the testimony of Dove, Shrader, Ratliff,
Bailey, and Dalton that Stone, Stamper, Umberger, and Gardner had made the com-
ments attributed to them. Here, also, I am convinced that the foregoing witnesses
testified truthfully and accurately. I do not credit the denials of Stone, Stamper, and
Umberger. Gardner did not testify. As I find that the Respondent is not responsible
for Stamper's conduct, I make no further findings concerning it. Stone's emphatic
identification of Dove as a union card signer, his declaration that "we," meaning man-
agement, knew all the signers, his designation of other employees as card signers, his
questioning of Shrader as to whether he had signed a card , and his insistence that
Shrader had done so in the face of his denial not only was undisguised interrogation of
employees concerning their union activities for no legitimate reason but impressed
upon employees that these activities were under the Respondent's surveillance. Stone's
patent hostility while engaging in the foregoing conduct clearly left the stamp of
coercion. His improprieties, occurring before the election and after July 15, not only
tended to inhibit the free choice by employees in the selection of their representative
but violated Section 8(a) (1) of the Act. Objection No. 5 has been sustained.
RISH EQUIPMENT COMPANY 1193
I regard Umberger's evident jokes about the union paper circulating in the plant as
inconsequential. They neither tended to inhibit nor coerce. I accordingly make no
findings that his conduct either interfered with the election or violated the Act.
Neither do I regard Attorney Gardner's characterization of the Union on the day of
the election as consequential. It neither interfered with the election nor coerced
employees in violation of the Act.
Nor do I find that Hyams' remarks to Shrader contain anything which tended to
inhibit this employee's choice in the election or to coerce him in his exercise of his
statutory rights. I credit Hyams' better detailed and better remembered version of his
interchange with Shrader and am satisfied he explained to him the delicate reason
for delaying his promotion with appropriate circumspection.
B. The claimed supervisory status of Stone and Stamper
Following a formal hearing in Case No. 9-RC-5417, the Regional Director issued
his Decision of Election dated July 26, 1963. In that proceeding the Union had sought
the exclusion of Stone and Stamper as supervisors and the Respondent had sought
their inclusion as rank-and -file employees . The Regional Director found that Stone
was a supervisor and that Stamper was not. Concerning their disputed status he said:
James Stone and Bernard Arney (whose status is not involved herein) are clas-
sified as parts manager and shop foreman, respectively. Although the record
reveals that these employees do not have the authority to hire, fire, or discipline
other employees, they can effectively recommend such action. The record dis-
closes that these employees are in charge of, and responsible for, directing the
work of the employees under them . In furtherance thereof, they assign and
reassign the work of the employees and determine the order and manner in which
the work is to be performed. They check the quality of the employees' work to
see that it is done correctly. They are, apparently, held out to the employees
under them as their supervisors. In view of the foregoing, the entire record, and
the fact that the authority exercised by these employees in directing the work of
the employees under them is not of a merely routine or clerical nature but
requires the use of independent judgment, and they possess other indicia of super-
visory authority, I find that Stone and Arney are supervisors within the meaning
of the Act. Accordingly, I exclude them from the unit. (See, Victory Grocery
Company, a Division of E. J. Keefe Company, 129 NLRB 1415; United States
Gypsum Company, 127 NLRB 134; Dixie Electrotype Co., Inc., 126 NLRB 924).
Ray Stamper is classified as assistant parts manager. There is nothing in this
record to show that this employee has any indicia of supervisory authority, such
as the authority to hire, discharge, adjust grievances, assign work, grant time off,
grant overtime, transfer employees, or change the status of any employee, or to
responsibly direct their work, or to make effective recommendations in these
respects . In view of the foregoing , and the entire record , I find that Stamper
is not a supervisor as defined in the Act, and I include him in the unit found
appropriate herein. (See, Pepsi Cola Bottling Company of Chattanooga, Inc.,
132 NLRB 1441; Bugle Coat, Apron & Linen Service Inc., etc., 132 NLRB 1098.)
As noted , determinations concerning the commission of certain conduct affecting
the results of the election in Case No. 9-RC-5417 and the commission of unfair labor
practices in Case No. 9-CA-3072 depend upon whether Stone and Stamper were
supervisors when the alleged conduct was committed or were mere employees. The
General Counsel contended before me that as the Regional Director had already
decided that Stone was a supervisor in the representation proceeding his decision was
not relitigable in any phase of the instant consolidated proceedings. As to Stamper,
the General Counsel asserted that the Regional Director's decision that he was not a
supervisor was reached without a fully litigated record. He therefore argued that
Stamper's status was litigable before me. The Respondent maintained that the status of
Stone and Stamper was to be litigated de novo and that I was to determine their
status without regard to the Regional Director's decisions concerning them.
Prior to the Board's delegation of authority to its Regional Director to make deter-
minations and to issue directions of election in representation proceedings , Board's
Rules and Regulations, Series 8, as amended, Section 102.67, the Board had declared
that its own determination in a representation proceeding concerning the status of an
alleged supervisor was not binding upon the Trial Examiner subsequently hearing an
unfair labor practice case in which the status of that same alleged supervisor was at
issue where the "representation proceeding did not finally and conclusively resolve
the issue." See Southern Airways Company, 124 NLRB 749, 750, footnote 2, Leonard
Niederriter Company, Inc., 130 NLRB 113, 115, footnote 2. Analysis of the cited
cases indicates the Board's view therein that the issue of supervisory status had not
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been "finally and conclusively" resolved by its decisions in the representation proceed-
ings because at the unfair labor practice hearings there was "additional evidence" pre-
sented for the record relevant to the status of the alleged supervisors warranting recon-
sideration of the Board' s findings in the representation cases. I interpret the Board's
holdings to mean that a party is to be accorded at an unfair labor practice hearing the
opportunity to present evidence which was not included in the record of the repre-
sentation proceeding showing a change in the status of the alleged supervisor since
that proceeding, or evidence concerning facts which may have existed at the time of
the representation hearing but which was unavailable to the parties and which, had it
been considered by the Board, would materially have affected its findings in the repre-
sentation case. I do not regard the Board's position in these cases to mean that a
Trial Examiner is permitted to make an independent evaluation of the exact evidence
relied upon by the Board in the prior representation proceeding and to reach conclu-
sions based solely on the same evidence contrary to those reached by the Board.
The rules pertaining to the delegation of authority to Regional Directors raise a new
element which must be considered together with the foregoing principles. Section
102.67 outlines procedures whereby parties to representation proceedings may obtain
Board review of a decision by a Regional Director. Subsection (f) provides that:
The parties may, at any time, waive their right to request review. Failure to
request review shall preclude such parties from relitigating, in any related subse-
quent unfair labor practice proceeding, any issue which was, or could have, been
raised in the representation proceeding. [Emphasis supplied.]
As the Respondent did not request review from the Regional Director's Decision in
Case No. 9-RC-5417, it is now precluded from relitigating the issue pertaining to the
supervisory status of Stone and Stamper in Case No. 9-CA-3072 if that proceeding
is related to the representation case within the meaning of Subsection (f).
The Respondent made no claim that the supervisory issues concerning Stone and
Stamper had not been fully litigated in the representation proceeding. Nor did the
Respondent claim there was additional evidence to show that the status of these per-
sons had changed after the record was made in the representation proceeding and
before the commission of the conduct attributed to them in the unfair labor practice
case. Nor is there any claim by the Respondent that there was any evidence which
for any reason had not been presented at the representation hearing which would
materially have affected the Regional Director 's findings concerning these persons had
it been considered. In these circumstances, it would appear that the issues had been so
fully litigated in Case No. 9-RC-5417 that a finding is here required that the issues
were finally and conclusively resolved in that proceeding and that I am in Case No.
9-CA-3072 bound by the Regional Director's determination which, under his dele-
gated authority, is equivalent to the Board's determination. Although the General
Counsel asserted at the hearing that the issue concerning Stamper had not been fully
litigated in the representation proceeding, I am not convinced by this naked claim
that in fact the Regional Director did not have before him a record concerning this
person which fully disclosed the relevant facts. The Regional Director's decision
detailing the reasons for his findings implies an opposite conclusion.
I am, moreover, satisfied that application to these proceedings of the Board's Rule
102.67 (f) requires preclusion of relitigation in Case No. 9-CA-3072 of the super-
visory issues resolved in Case No. 9-RC-5417. The Respondent failed to request
review, as noted, and the two cases are related within the rule's meaning. The con-
duct in both cases is identical. There is no time gap in the cases in which the nature
of the issues and the facts on which they depend could possibly have been altered.
And, finally, the issue in the unfair labor practice proceeding had its genesis and
grows out of the Respondent's conduct in the representation case.
For all the foregoing reasons I consider myself bound in these consolidated pro-
ceedings by the resolution of the Regional Director in Case No. 9-RC-5417 that Stone
is a supervisor within the Act' s meaning and that Stamper is not.
Because I was not at the hearing as conversant with the Board's precedents and
the requirements of its Rules and Regulations as I now am after research and delib-
eration (no memorandums or authority were offered by counsel), and because I enter-
tained doubts as to the governing law I deemed it better practice to permit the parties
fully to litigate the issues pertaining to the status of Stone and Stamper. Recognizing
the possibility of disagreement by higher authority with my interpretation and applica-
tion of controlling law, I have also considered the record on the merits and am satis-
fied therefrom that the results should be the same; namely, that Stone is a supervisor
and that Stamper is a mere employee.
The Respondent's Bluefield plant appears to have sales, service, and parts depart-
ments in addition to a grouping of office employees. The parts department sells over
the counter to customers purchasing new and used parts for the heavy construction
RISH EQUIPMENT COMPANY 1195
equipment sold and serviced by the Respondent. Stone is classified by the Respondent
as the parts manager of this department . Stamper was at times relevant to these
proceedings classified as the assistant parts manager.
During the summer of 1963 and prior to the termination of'employees in the parts
department commencing with August 17, there were, in addition to Stone and Stamper,
five full-time and one part-time employees in this department. Some of these employ-
ees worked as new parts clerks, some performed duties related to used parts, and
others did filing or inventory work . The new parts clerks essentially wait on cus-
tomers at the counter. When there are no customers to service these clerks keep busy
cleaning and stocking bins with parts . Those working on used parts tear down old
equipment such as tractors , clean and buff the disassembled parts, paint them, and
put them in bins presumably for sale to customers.
Stone described the work of the parts department as routine and claimed its
employees need no directions in the performance of their duties. Each knows what
or how to do his job without direction once he becomes accustomed to the routine.
He acknowledged, however, that parts clerks occasionally come to him for help which
he as the most experienced person in the department provides. Customers sometimes
call for a part needed to repair a complex piece of machienery which a parts clerk
cannot find listed in the manuals which catalogue 4,000 to 5 ,000 separate items. In
these circumstances the clerk seeks Stone's advice which is "most always" respected
and "always obeyed-if I was right."
Stone estimated that 50 percent of his time is spent at manual duties. He also does
clerical paperwork , examines invoices and initials them to show that stock has been
received, and signs purchase orders which the other employees may occasionally do
themselves . He also tallies the timecards for the department 's employees at the end
of each week and initials them. If there is a dispute concerning the entries on these
cards he resolves it together with the office manager.
Stone denied he has any authority to hire or discharge employees or effectively to
make any recommendations effecting their status. He attends weekly meetings held
by the plant manager at which the other department heads and sales representatives
are present. At these meetings the plant manager outlines the work expected from
the parts department for the ensuing week. Stone then conveys these instructions to
the employees of his department and tells them what to do to carry out the manager's
requirements . If an employee were to refuse to obey his orders , he would speak to
the plant manager or in his absence to some other managerial representative. When
new employees are hired, they are brought to him by the manager who tells them
Stone will give them their assignments. Stone starts them at their jobs by telling
them what to do and where to work. From then on the employee gains experience
through association with older employees in the department. Stone noted that he
checks all the locations of the department where its employees work to see whether
they are "in good shape" He testified that the plant manager has discussed with him
the possibility of granting raises to employees in the department and that on these
occasions he asks whether he feels the employee is entitled to the raise whereupon
Stone makes a recommendation . He claimed that his recommendation in these circum-
stances does not have to be and has not always been followed. At a later point in
his testimony he indicated there was only one occasion when an employee came to
him to seek a raise and that he did not have to make a recommendation to the plant
manager as "the raise was already in.'
Stone was paid an hourly rate of $2 in August and September 1963, while the other
employees in the parts department received rates ranging from $1.60 to $1.70 per
hour. Whereas all the other employees punch timecards , Stone apparently is privi-
leged to either punch his card or to sign it. Otherwise be receives no fringe benefits
different from those accorded the other employes of his department.
Concerning Stamper, Dove testified that the employees had been formally notified
by the plant manager when he had been made assistant parts manager and that he,
Dove, had thenceforth regarded Stamper as his superior whose orders had to be
obeyed . He recalled an occasion in June 1963 when Stamper had called the parts
department employees together and had asked for their cooperation during the period
of Stone's vacation when he was to be in charge. Dove claimed Stone or Stamper
told him when to work overtime, that he spoke to either of them about his absences
from work, that he would ask Stone or in his absence, Stamper, for time off, that he
would give his reason for reporting late to work to Stamper , and that on one occasion
Stamper admonished the employees for coming to work late too often. Dove main-
tained that he had asked both Stone and Stamper to get him a raise and that Stamper
had told him and another employee , Jerry Caldwell, he had secured a raise for each
after talking to Stone about the matter. Dove claimed that he went to Stamper as
well as to Stone for advice concerning his work problems . He related that Stamper
attended supervisors ' meetings. Shrader testified that Stone had told him Stamper
1196 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
was next in line in the parts department after him. He related there were times when
Stamper took him from his regular duties and assigned him to other work in the
department.
Stamper had been classified as a parts clerk until June 1962 when he was notified
by the plant manager that he was given the title of assistant parts manager. Stamper
claimed he was told nothing at the time or since to indicate there was to be any change
in his duties or responsibilities. He denied he had ever been given any authority over
employees at Bluefield or that he had exercised such authority. In his view, he was
given the title merely to justify a 10-cent hourly raise which lifted his rate to $1.80
per hour. He insisted that in practically all respects he was like any other employee
in the parts department and received no benefits different from theirs.
The foregoing facts reveal that Stone did not, as Stanton claimed, carry an empty
title. He was in charge of the activities in his department and given the responsibility
of seeing that the employees in it were kept busy. He carried out the plant manager's
orders and checked to see that the work of the department in all its aspects was in
"good shape." His advice concerning wage increases for employees was sought by
the plant manager who by Stone's admission had less contact with these employees.
It is reasonably inferrable that the plant manager respected Stone's superior knowl-
edge of their job performance and that Stone's recommendations were therefore effec-
tive. Stone appeared also to be clothed with the authority of a supervisor and was
reasonably regarded by the parts department employees as their supervisor. He gave
them orders and they sought and followed his advice concerning difficult problems.
New employees were put in his charge with instruction from the manager to receive
assignments from him, and he attended meetings of plant supervisors. All these
things were observable to the employees. Significantly, when Dove and Bailey were
separately terminated, Stone was present on each occasion with the Respondent's
officials. Not to be overlooked is the simple fact that he carried a title which con-
notes authority. In all these circumstances I find that Stone responsibly directed
employees in the performance of their work, that he had authority effectively to
recommend action affecting their status as employees, and that he was held out by
the Respondent as their supervisor. He is, therefore, a supervisor within the meaning
of the Act.
While Stamper's title and the notice received by employees that he had been desig-
nated as assistant parts manager might have led some to believe they should report
to him such personnel matters as absences, tardiness, and requests for leave and wage
raises, I am not convinced that this or any other matter concerning which Dove or
Shrader testified compels a conclusion that he was a supervisor within the meaning of
the Act. There is no evidence which shows that Stamper took authoritative action
with respect to any matter affecting the status of employees. His assertion to Dove
that he had been instrumental in getting him and another employee raises was a mere'
boast. He may very well have put in a good word for these employees with Stone but
it was the latter who made effective recommendations to the plant manager based
upon his personal knowledge of the performance of employees. I believe Stamper's
testimony that no supervisory authority was conferred on him when he received his
title as assistant manager. As to the one time in 1963 when he substituted for Stone
during his vacation, this is too meager a circumstance to warrant a finding that he
thereby was constituted a supervisor. There is no evidence to show whether this sub-
stitution was just for a few days or longer, and there is no evidence it was repeated.
Stone's admonition to Shrader that Stamper was second in command was merely a
notice that Shrader would in contingent circumstances, not shown significantly to
have arisen, be in charge of the department. I am moreover satisfied that Stamper
did not, as he testified, attend supervisors' meetings . I am not persuaded that enough
has been proved to show Stamper was a supervisor within the meaning of the Act.
C. The alleged unlawful termination and refusals to reinstate
The Union's objection No. 1 to the election is based upon the claim that employees
Jerry W. Dove and Crockett, G. Ratliff were unlawfully discharged because of their
union activities before the August 29 election thereby affecting its results. For con-
venience these discharges will be considered together with those of the other employees
alleged by the complaint as violative of Section 8(a) (3) of the Act.
Dove's employment with the Respondent began in June or July 1956. In April
1959 he became a parts clerk and held this job until his termination on August 17,
1963. On this latter date he was informed by Plant Manager Roy Hill that the
Respondent had to do some "cutting" and that the "hatchet" was falling on him. Hill
also remarked to Dove that he had filed applications for jobs with other employers.
Dove conceded that he had filed an application with one other employer before his
termination. Hill had Dove sign a form entitled "Notice of Employee Separation."
RISH EQUIPMENT COMPANY 1197
In appropriate places Respondent had noted on the form that Dove had not been a
satisfactory employee and that it would not reemploy him. The form also noted
"Due to cost of operation in Parts Department, the management finds it necessary to
reduce overhead and cut expenses. Also our type of business is seasonable." Dove
denied he had ever been reprimanded about his work. When the General Counsel
sought through Dove's testimony to show how the Respondent had rated his efficiency
through a departmental "point system," presumably to show he had a good rating,
counsel for the Respondent interposed that Dove's "efficiency or lack of efficiency
wasn't the compelling reason for his discharge." Counsel agreed with my observation
at this point that "we don't have to go into the question of whether he was a qualified
employee, or competent, or efficient."
There were when Dove was terminated two other parts department employees who
performed identical duties. Dove claimed that these employees, Bailey and Caldwell,
had less service with the Respondent than he. Dove's termination occurred during the
period which normally falls in the Bluefield plant's busiest season. He claimed that
when he was separated work in the parts department was not slack.
Dove had made the call to the Union which initiated his organizational activities
among the Respondent's employees. He had signed an authorization card for the
Union, had solicited signatures from other employees, and had attended the Union's
meetings. He was a member of the Union's organizing committee and spoke in the
Union's behalf to most of the employees at the plant and while traveling to and from
work. His support for the Union was undisguised. As already found, he had been
singled out by Stone as a card signer and Stamper had charged him and Dalton with
being the Union's ringleaders. Vice President Johnston conceded his opposition to
the Union.
Ratliff had started his employment with the Respondent in May 1956 and worked
until his termination on August 20, 1963, as an automatic machine welder in the
Bluefield plant's service department welding shop. On this latter date he was informed
by his supervisor, Umberger, that the expenses of the welding shop were being cut
and that his employment was to end that day. In response to Ratliff's inquiry con-
cerning why he had been selected rather than others who had less service, Umberger
said, according to Ratliff, "We're starting at the top, the oldest man and the highest
paid man, and coming down."
Ratliff testified that during his entire employment with the Respondent there had
been only one day in 1957 when he had been laid off, and this was when the welding
shop had just been started. He claimed that work in his shop had not been declining
when he was terminated but that instead it was picking up. There was, he said, "a
good deal of work" to be done. He related he had worked overtime in the month
before his termination and that the two employees who remained in the welding
shop worked overtime in the week after he left. He noted that there was work
"stacked" outside the shop awaiting welding. He could not, however, estimate what
percentage of this work represented customer as distinguished from inventory jobs.
Customer work requires rush performance and may demand overtime work. Inven-
tory work on equipment which remains the Respondent's property need not be rushed
and requires no overtime.
Ratliff testified he had never during his employment been reprimanded about his
work. Counsel for the Respondent conceded that his discharge was unrelated to his
"ability." I assume that counsel was saying that Ratliff was not discharged because
of dissatisfaction with his job performance. Rathff's work as an automatic machine
welder is distinguishable from the duties of a journeyman welder. No apprenticeship
is needed to learn the operation of welding machines. Ratliff acknowledged he was
permitted to operate the semiautomatic welding machine after a few days instruction.
The other machine which he used was fully automatic and presumably was at least
as simple to operate.
Ratliff had signed a card for the Union and had attended a union meeting about 2
weeks before his termination.
Herbert P. Hurst testified that he had started to work for the Respondent in 1960
or 1961. He claimed that he had been a mechanic working under the supervision of
Umberger in the Bluefield plant's service department. He had attended one meeting
held by the Union and had signed an authorization card. The complaint alleges that
he was terminated on September 5, 1963. There is however no proof in the record
with respect to when he was terminated. While the answer denies the allegation con-
cerning his discharge, including the alleged date, the Respondent itself furnished evi-
dence which shows that in fact Hurst had been terminated and no issue seems to have
been made concerning the date of this action. I asssume it occurred in September
1963 about the time of the other terminations in that month.
James H. Dalton had worked for the Respondent from December 1956 to Septem-
ber 5, 1963 . Like Ratliff he had been an automatic machine welder in the service de-
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment . He had been informed of his termination by General Service Supervisor
Stanton in Plant Manager Hill's presence . Stanton told Dalton he was being let out
to cut overhead and was expressly told that this action was unrelated to the Union.
Stanton informed him that he would be rehired but in another department . Dalton
claimed there was no shortage of work when he was laid off. He did not , however,
know whether the work then awaiting completion was for customers or for the
Respondent's inventory . During Dalton 's entire employment he had been laid off
only once before in 1957 or 1958. He could not recall whether this layoff was for 3
days or 3 weeks . There was another occasion when the welding work at Bluefield was
slack and he had been sent by the Respondent to its operation in North Carolina. He
could not recall when this happened . Dalton had signed an authorization card for
the Union and had attended all of its meetings . He had also handed cards to other
employees for their signatures.
Bernard V . Rowland had worked in the Bluefield plant from June 1959 until his
termination on September 5, 1963. His duties in the service department had been to
bore out rollers and to put in bushings after the rollers had been built up by the
welders. He claimed that he was the only employee doing this work . He was noti-
fied of his termination by Stanton in Hill's presence . Stanton told him that work was
slack and that the rebuilding shop would be closed because it was not profitable to
operate. Stanton also told him that his work had been satisfactory and he would be
recommended for other employment . Rowland testified he had never before been
laid off. He recalled that he had put in some overtime before his layoff, but could
not remember just when this had been . He said there was some work remaining to
be done, but would not characterize it as backlog . Rowland had signed a card for
the Union and had attended some of its meetings . He had talked about the Union
with other employees during the lunch hour at the plant.
Ronald L . Bailey had worked for the Respondent from July 1956 until his layoff
on September 3, 1963, as a parts clerk working on used and rebuilt parts. On Sep-
tember 3 he was informed by General Parts Supervisor Hyams of his layoff because
of lack of work in used and rebuilt parts . Hill, Stanton , and Stone were present.
Bailey claimed there was a work backlog at the time. He related that he had never
before been laid off except that in 1958 his workweek had been cut to 4 days during a
2-month period . Bailey denied that he had been contacted by the Respondent in
January 1964 about coming back to work . He acknowledged that the termination
notice he received from the Respondent noted that he was eligible for rehire.
Supporting the Respondent 's justification for all the foregoing terminations that
economic necessity was the reason therefor , Vice President Johnston testified that in
1962 he had recommended to the Respondent 's board of directors the construction of
a new building to house the Bluefield plant and the consolidation in this building of
the Respondent 's Princeton , West Virginia , and Bluefield operations . This was accom-
plished . He had projected by these moves an annual operational saving of $ 60,000.
Johnston related that about April 1963 he had instructed Stanton and Hyams to econ-
omize at Bluefield by a personnel reduction . He did this at a time when he had no
information of union activity in the plant. He testified that in July 1963 he observed
from the monthly reports designated as works in progress reports prepared by the
Bluefield service manager , that there was a decline which prompted him to discuss
with Stanton the necessity for reducing the cost of Bluefield "servicewise." As a
result there was the reduction in force involved in this proceeding.
Johnston acknowledged that the Bluefield plant's business follows a seasonal pattern
in which the busiest time is generally maintained from March 1 to the end of Sep-
tember . He claimed that in 1963 the business decline started in July and that business
did not pick up again until November. He specifically limited this-decline to the
service department . He expressly testified there had been no decline in July and the
ensuing months of 1963 in the parts department.
Johnston had with him at the hearing the works in progress reports for the Bluefield
service department from July 1963 through January 1964 . Without being able to
refer to records for any other period Johnston was unable to testify how the amount
of business for any month in 1963 compared with the business in the same month of
1962 . Nor was he able to state how many employees worked at Bluefield in any
month of 1962 except that he recalled there was an overall force in the Bluefield plant
at the end of 1962 of 39 employees.
Stanton testified that he, in effect, was entrusted by Johnston with the responsibility
for carrying out his orders to reduce expenses at the Bluefield plant. Although his
regular duties as the service supervisor over all the service departments in all the
Respondent 's plants in several States require substantial time and travel , he approx-
imated that 50 percent of his time between July and September 1963 was spent at the
Bluefield plant . He was particularly concerned with ascertaining the reasons for the
RISH EQUIPMENT COMPANY 1199
decline in the business in this plant and, after concluding it would "soon" not pick
up, the layoff and discharge of employees began. He maintained he was personally
involved in the decision to terminate all the employees herein involved.
Concerning Dove, Stanton testified that he was discharged for several reasons. One
was the fact that he had applied for jobs with two other employers in the area who
had made inquiries to the Respondent about him. As to this circumstance, Stanton
claimed that it was more practical to discharge Dove than to terminate some other
experienced employee only to be faced later with Dove's resignation. The other
reason assigned by Stanton for Dove's selection was, as he put it, "he was having his
problems getting along with the other people in the Parts Department. I felt there
were more capable employees other than Jerry." Stanton related that when the
Princeton and Bluefield plants were consolidated Dove was dissatisfied because he was
not then assigned to new parts work and was kept at his used parts job. From then
on he confused his fellow employees by circulating unfounded rumors that half the
shop would be laid off the next day. These rumors went through the plant and pro-
duced dissatisfaction among employees. Stanton had been his immediate supervisor
in 1961. He claimed he had then warned Dove about his rumor mongering. He
expressed the view that Dove "lust didn't pan out as a parts man. We don't think he
had it in him as a parts man in the new parts department." He added that "you can
get a guy that can do twice as much work as he can do."
Stanton denied he ever told Stone to keep Dove in line. He testified he told Plant
Manager Hill in April or May 1963 to get rid of Dove and conferred with him several
times thereafter about his matter. Stanton attributed Hill's delay in discharging Dove
to "cold feet" and implied that it became necessary for him to take the action himself.
Concerning Ratliff, Stanton- testified that the work of the welding shop had slumped
and that Ratliff was selected for termination because his ability was limited to running
the automatic welding machines. There was another employee, Watts, in the welding
shop who was more versatile and who was retained despite Ratliff's longer service with
the Respondent because he was more valuable. Not only could Watts weld, but he
could also operate various machines and was a good mechanic. Moreover, according
to Stanton, Ratliff did not do maintenance work on machinery and was "slack" in his
work. Stanton stated his belief that he had been reprimanded by the service manager
and that a reprimand letter was on file. Stanton testified that the letter, which was
not produced , was probably written in April 1963 . He attributed the delay in termi-
nating Ratliff before August 20 to his desire to give him a second chance to do a better
job. As to the pile of work which Ratliff had said was on hand when he was termi-
nated, Stanton testified that 75 percent consisted of inventory equipment which, if put
in good condition, would merely have added to the Respondent's overall supply of
such equipment and necessitated the payment of additional inventory taxes. Stanton
further maintained that sales of rebuilt inventory parts had been curtailed by the
excessively high prices manufacturers were charging the Respondent for parts used
in the rebuilding process.
James Dalton was selected for termination on September 5, Stanton related, because
he, like Ratliff, could only operate the automatic welding machines and Watts could
do his work besides performing his other machine and mechanical duties. Bernard V.
Rowland had been terminated on September 5 because Watts took over his lathe oper-
ations and the roller assembly and disassembly work he had performed.
From Stanton's testimony it appeared that Watts was retained not only to perform
his regular duties but those of Ratliff, Rowland, and Dalton. Stanton revealed, how-
ever, that since these terminations an employee was hired who can do automatic as
well as hand welding and mechanical work. He pointed out that there was also ar
older employee, Stanley Heath, who was a band welder and that he and the new
employee performed all such welding in the shop. Watts was thereby relieved of his
regular welding duties and was enabled to concentrate on the operation of the boring
bar and lathe. Watts was to be used for welding only in case of emergency.
According to Stanton, Paul Hurst had been employed by the Respondent from
1956 or 1957 until his termination on September 5, 1963. He had worked in the
Bluefield service department as a mechanic's helper. He, rather than any other helper,
had been selected for termination because his knowledge and ability were so limited
that he could perform only jobs which required no skill. He needed constant super-
vision and could not, therefore, be sent out of the shop to do field service work. In
Stanton's opinion , Hurst was qualified for work just above the janitorial level.
Ronald Bailey's September 3 separation from his job in the parts department was
explained by Stanton as the result of his limited experience with used parts. The sales
of used parts, Stanton testified, had begun to decline in April or May 1963 and this
775-692-65-vol. 150--77
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition was still continuing at the time of the hearing. Stanton regarded Bailey as a
very good and faithful employee and believed an attempt had been made to reach
him at his home to offer him work at the Respondent's North Carolina operation.
Stanton testified, "I find out later they couldn't get in touch with him. I don't know."
When Bailey was separated there were, including him, four employees in the parts
department. Another employee has since been hired to bring the complement back
to four employees. This employee, along with the other new parts clerks, do what-
ever work is required in used parts. Asked why Bailey was not offered the job in
new parts given to the new employee, Stanton maintained his recall had been
attempted. Bailey, however, insisted in his testimony that he had "definitely not"
been recalled by the Respondent in January 1964.
Stanton revealed that the six employees claimed in these proceedings to have been
unlawfully discharged or laid off were not the only employees terminated within the
same period. Of the 39 employees at the Bluefield plant during the months of July,
August, and September, 1963, 26 had been employed in the service department. At
the end of the year there were approximately 24 employees in the entire plant of whom
about 12 worked in the service department . By February 1964 the plant force had
been enlarged to about 38 with approximately 17 employed in the service department.
Stanton stated that new employees were hired and the terminated employees were not
recalled to meet personnel needs because those hired "had probably different quali-
fications than the employees we laid off." Apart from Dove, who Stanton said would
not have been reemployed because of Respondent's dissatisfaction with him, the
Respondent would have rehired the others if it had needed them and if they "came
back." I assume he meant that these employees had to take the initiative in seeking
reemployment. He added that there were four employees, Sproles, Barnett, Schrader,
and Arney, who had been recalled, and as noted an attempt had been made to recall
Bailey. Stanton implied that the others had not been recalled because it was more
economical to hire new employees who were already qualified for available jobs than
to recall employees who would require training for work for which they were not
qualified. Stanton's explanation for the hire for one new employee in the welding
shop and the reasons for the failure to recall Ratliff, Dalton, and Rowland have already
been recited. His reason for not recalling Hurst was the lack of need for an
employee with his limited skills.
I find that Dove was discharged on August 17, 1963, because of his leadership in
the union movement. I reject the Respondent 's explanation that he was discharged
for reasons unrelated to his union activities . Whatever economic reasons the Respond-
ent may have had for retrenchment in its other departments at Bluefield, it showed
none in August 1963 for a reduction among the new parts clerks of the parts depart-
ment. Vice President Johnston's testimony conclusively shows that the decline in
business at Bluefield had not affected the sale of new parts, and there was no other
evidence supplied by the Respondent to show that Johnston was mistaken or confused
and that his testimony should be disregarded. The finding compelled by this record
is that there was no economic necessity at the time of Dove's discharge for a reduc-
tion of the new parts staff.
Stanton 's other explanations for Dove's discharge were also unpersuasive . I do not
credit his assessment of Dove as an undesirable employee whom he had ordered the
plant manager to discharge months before August 17. His testimony in these respects
is too implausible to accept as truth. First, Dove's derelictions extraordinarily were
not mentioned by the Respondent's witnesses who should have been even more familiar
with them than Stanton. Neither his direct supervisor, Stone, nor the latter's assistant,
Stamper, both of whom were in daily contact with Dove, spoke one word against him
in their testimony when called as witnesses by the Respondent . Nor did Hyams, the
general parts supervisor , also called as a witness by the Respondent . I infer from the
failure of these witnesses to corroborate Stanton's criticism of Dove as a dissatisfied,
rumor-mongering , inefficient employee doing only a 50 -percent job that they would
not, if asked, have said these things about Dove. Stanton's downgrading of Dove's
performance is doubly puzzling in view of the concession by Respondent's counsel that
Dove's "lack of efficiency" was not the compelling reason for his discharge. . More-
over, it is too unlikely to believe that if Dove was as troublesome and inefficient as
Stanton claimed, that his employment for 4 or 5 months would have been continued
after Stanton had expressly ordered his discharge during a period when Stanton was
troubleshooting at Bluefield and waging an economy drive pursuant to the instructions
of the Respondent 's executive vice president . Assuming that the plant manager had
been too timid to discharge a mere rank -and-file employee as ordered by Stanton, how
is it that General Parts Supervisor Hyams did not take a hand in the matter? So far
as this record shows he was not even involved in it. In the face of all this Stanton's
claims are too unrealistic to credit.
RISH EQUIPMENT COMPANY 1201
Nor am I convinced by the Respondent's claim that Dove's quest for other employ-
ment motivated his discharge. I realize that some employers resent job hunting by
their employees and that the Respondent could well have been displeased by the
inquiry of one or more employers concerning Dove's applications with them for
employment. But its resentment was not the reason given for Dove's discharge. His
applications for other jobs were asserted only as the reason for selecting him rather
than some other employee in a pending reduction in force. This claim lacks sub-
stance as the proof shows there was no necessity for any reduction among the new
parts clerks, and no other employee would have been selected for termination. I am
satisfied that there was no reduction pending among the new parts clerks in August
1963. Actually, a new parts clerk was hired sometime after Dove's termination to
bring the staff back to its August level.
Stanton's explanation for Dove's discharge is in its entirety an improvisation to
mask the real reason for this action. The Respondent's opposition to the unionization
of its employees, its hostility to the Union and its coercive efforts to discourage
employees, its hostility to the Union and its coercive efforts to discourage employee
adherence to the Union have been amply demonstrated in the findings already made.
That the Respondent desired the defeat of the Union in the August 30 representation
election is undeniable. These circumstances, coupled with the inadequacy of the
Respondent's reasons for Dove's discharge, convince me that the Respondent intended
by getting rid of the employee reputedly leading the union movement to discourage its
support by other employees. The Respondent's discharge of Dove for this reason was
violative of Section 8(a)(3) of the Act. Proof of this conduct is also sufficient to
sustain the Union's objection No. 1.
The Respondent's explanation for the termination of the other employees herein
involved is more persuasive. Notwithstanding the patent shortcomings in the Respond-
ent's documentary proof of economic necessity for these terminations I am persuaded
that they were motivated by the desire to achieve savings in operating expenses and
were not designed to discourage union activity or that they were in reprisal therefor.2
While the inadequacy of this proof weakens the Respondent's case, I believe Vice
President Johnston's testimony that an economy program was ordered by him about
April 1963 which he had then directed Stanton to administer. Because I believe John-
ston, I credit Stanton's testimony in this respect. Johnston's account of the Respond-
ent's building expense which he had recommended for the consolidation of the Prince-
ton and Bluefield operations leads to my belief that he was obliged to make good his
prediction to the Respondent's board of directors that significant economies would be
achieved. I would, therefore, have been persuaded of the Respondent's economy
objectives even without a claim that they were triggered by declining business.
In view of the Respondent's unlawful conduct, hereinabove found, and the union
sympathies and activities of the terminated employees, which were known to the
Respondent, I have carefully scrutinized the explanations for the terminations. I
regard them as plausible. The welding shop is now able to carry on its full activities
with one less employee. No one has been hired to replace Hurst in the performance
of his low skill duties, and, although Bailey could have been rehired and assigned to
new parts work, the Respondent did not recall him because it could not contact him.
My belief that the service department reductions were merely an expense-cutting
device is in large measure derived from Stanton's uncontroverted testimony that of the
force of 26 service department employees in September 1963 only 12 such employees
were working at the end of 1963, and 17 were employed in this department by the
Respondent in February 1964. This represents a substantial reduction over and above
the termination of the four service department employees herein involved. The fact
that in February 1964, after the business of the service department had made a sub-
stantial gain from the summer levels of 1963, the department was operated with nine
fewer employees than were employed in the preceding September provides logical sup-
2 The documentary evidence offered by the Respondent to show a decline in the business
of the Bluefield service department from July 1963 shows a consistent decline from that
month until the end of November . The documents show a rise for December and a sub-
stantial increase in the business of that department for January 1964. In view of the
Respondent's admitted seasonal operations the data contained in these documents would
have been more meaningful had it been compared with the Respondent's business data'
for the same period in preceding years when the service department staff may have been,
as appears to have been true in 1962 , at the same size and when, as also appears, there
were no reductions in force. Thus, if the facts are that in July through November 1962
the business of the Bluefield service department showed a seasonal decline similar to that
of 1963 and the work force was not reduced , a material unanswered question would exist
as to the necessity for the 1963 reductions.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port for the claim that there was need for operational economies in 1963. I am also
convinced by Stanton's reasonable explanation that the used parts business had
declined to the point in September 1963 where Bailey's services as a used parts clerk
were dispensable and that he was laid off for that reason.
In sum I do not find that the record preponderates in favor of a finding that,Ratliff,
Rowland, Dalton,"Hurst, and Bailey were laid off or discharged in violation of Section
8(a)(3) of the Act.
D. The challenged ballots
Having found that Dove had been unlawfully discharged on August 17, 1963, I
further find that he was eligible to vote in the August 30 representation election. As
Ratliff was terminated on August 20, 1963, with no showing herein made of any
reasonable expectation of recall, I find that he was not eligible to vote in the August 30
election. There remains for consideration the voting eligibility for Joseph M.
Meade whose ballot was challenged by the Union because of his alleged casual or tem-
porary employment.
Meade was graduated from high school in June 1963. He was hired by the Respond-
ent for the first time on June 19 and was assigned to duty in the parts department
packing, unpacking, and making deliveries. Stanton testified he was hired to work
regularly on Fridays and Saturdays and on such other days as he was available if
needed. In June 1963 he worked 56 hours, in July approximately 153 hours, and in
August approximately 202 hours. In September he entered Bluefield College and in
that month worked approximately 29 hours, in October approximately 12 hours, in
November approximately 14 hours, and in December approximately 4 hours. At
college he is studying to become an engineer. Stanton testified Meade had been hired
to be trained by the Respondent for a position in management or sales in which he
could utilize his engineering education.
There is no need for involvement with the question of Meade's status as a casual
or temporary employee on a regular or part-time basis. Meade was clearly ineligible
to vote in the August 30 election on the basis of Stanton's testimony that he was in
training for a managerial or sales position.3 He was, therefore, excludable from the
appropriate unit which was limited to various classes of rank-and-file employees. As
a trainee for a position at a managerial or sales level his interests were aligned with
persons in these categories and not with employees in the appropriate unit.
IV. RECOMMENDATIONS CONCERNING CHALLENGED BALLOTS AND CONDUCT
AFFECTING RESULTS OF THE AUGUST 30, 1963, ELECTION
I have determined that Dove was eligible to vote in the August 30, 1963, election.
As his ballot may be determinative of the results of the election, I recommend that it
be opened and counted. If after it is counted and a revised tally of ballots is issued,
it appears that the Union has secured a majority of the votes cast in the election, it is
further recommended that the Union be declared the winner in the election and be
issued a certificate as the exclusive collective-bargaining representative of the Respond-
ent's employees in the appropriate unit. If, on the other hand, the revised tally shows
that the Union has not secured the required majority to establish it as the winner of
the election, I recommend that because of the Respondent's conduct found to have
impaired the freedom of choice of the employees in the election, the results be set
aside and a new election ordered at the earliest date consistent with administrative
convenience.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing the free
flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative of
Section 8 (a) (3) and (1) of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the nolicies of the Act.
I shall further recommend that the Respondent be ordered to offer immediate and
full reinstatement to Jerry W. Dove to his former or substantially equivalent position,
8 Cherokee Textile Mills, Inc , 117 NLRB 350; Diana Shop of Spokane, Inc. and Hughes
Apparel, Inc., 118 NLRB 743.
RISH EQUIPMENT COMPANY 1203
without prejudice to his seniority or other rights and privileges as an employee. I
shall further recommend that the Respondent make him whole for any losses which
he may have suffered because of the discrimination against him by payment to him
of such sum of money as he normally would have earned as wages absent the dis-
crimination. Backpay for Dove shall be computed from August 17, 1963, until the
date of offer of reinstatement to him. Deductions shall be made from backpay pay-
ments to him of interim earnings on a quarterly basis in the manner provided by the
Board in F. W. Woolworth Company, 90 NLRB 289, to which shall be added interest
at the rate of 6 percent per annum.
Because the Respondent by its conduct violated fundamental employee rights guar-
anteed by Section 7 of the Act, and because there appears from the manner of commis-
sion of this conduct a disposition to commit other unfair labor practices, it will be
recommended that the Respondent cease and desist in any manner from infringing
the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Rish Equipment Company is an employer within the meaning of Section 2(2) of
the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Chauffeurs, Teamsters & Helpers Local Union # 175, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act, in the manner hereinabove found, the
Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of employee
Jerry W. Dove, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The allegations of the complaint that the Respondent has discriminated against
Crockett G. Ratliff, Ronald Bailey, James Dalton, Paul Hurst, and Bernard V. Row-
land in violation of Section 8(a)(3) of the Act have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that the Respondent, Rish Equip-
ment Company, Bluefield, West Virginia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Chauffeurs, Teamsters & Helpers Local Union
# 175, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, by discriminating in regard to the hire and tenure of
employment of its employees.
(b) Coercively interrogating employees concerning their union activities and sym-
pathies and creating the impression among employees that their union activities are
under surveillance.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist Chauffeurs,
Teamsters and Helpers Local Union # 175, 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 concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from engaging in such activities as guaranteed
in Section 7 of the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act.
(a) Offer to Jerry W. Dove full reinstatement to his former or substantially equiv-
alent position and make him whole for any loss of earnings suffered as a result of the
discrimination against him in the manner described in the section above entitled
"The Remedy."
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in Bluefield, West Virginia, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director
for Region 9, shall, after being duly signed by an authorized representative of the
Respondent, be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine the
amount of backpay due.
(d) Notify the Regional Director for Region 9, in writing, within 20 days from the
receipt of this Decision, what steps it has taken to comply herewith.5
I In the event that this Recommended Order be adopted by the Board, the words "a De-
cision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a de-
cree of a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
5 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 9, in writing, within 10
days from the date of receipt of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their right to support Chauffeurs, Teamsters & Helpers Local Union # 175,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization, as their collective-
bargaining representative by coercively interrogating them concerning their union
activities and sympathies and creating the impression we are keeping the union
activities of our employees under surveillance.
WE WILL NOT discourage membership in the above-named or any other labor
organization of our employees by discriminating in any manner with regard to
hire, tenure, or any term or condition of employment.
WE WILL offer immediate and full reinstatement to Jerry W. Dove to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of earnings resulting from
our discrimination against him as provided in the decision issued by the Trial
Examiner of the National Labor Relations Board.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization, to form labor organizations, or
to join or assist Chauffeurs, Teamsters & Helpers Local Union # 175, 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 other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from engaging in such activities as guaranteed in Section 7 of
the Act, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as authorized in Section 8 (a) (3)
of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
RISH EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1205
NOTE-We will 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 Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Federal
Office Building, Room 2023, 550 Main Street , Cincinnati , Ohio, Telephone No. 381-
2200 , if they have any questions concerning this notice or compliance with its
provisions.
International Trailer Company, Inc. and Gibraltar Industries,
Inc. and District #12, International Association of Machin-
ists, AFL-CIO. Case No. 5-CA-1796. January 22, 1965
SUPPLEMENTAL DECISION AND ORDER
On October 30, 1961, the Board issued a Decision and Order in the
above-entitled case, finding that Respondents had unlawfully dis-
criminated against certain named employees and ordered that those
employees be reinstated to their former or substantially equivalent
positions and made whole for any loss of earnings.' The United
States Court of Appeals for the Fourth Circuit granted enforcement
of the Board's Order on August 23, 19622 On February 18, 1963,
the United States Supreme Court denied Respondents' petition for
certiorari 3
On October 14, 1963, the Regional Director for Region 5
issued a backpay specification, and Respondent, Gibraltar Industries,
Inc., hereafter called Respondent, filed an answer thereto. On De-
cember 17, 18, and 19, 1963, a hearing was held before Trial Exam-
iner Rosanna A. Blake for the purpose of determining the amount
of backpay due the discharged employees. On August 6, 1964, the
Trial Examiner issued the attached Supplemental Decision and
Recommended Order, finding that the specified claimants were en-
titled to the indicated amounts of backpay, with interest at 6 percent
per annum, running from the date of her Decision and Recommended
Order until paid. Thereafter, Respondent filed exceptions to the
Trial Examiner's Supplemental Decision and Recommended Order
and a supporting brief. The General Counsel filed a memorandum
in support of the Regional Director's specifications.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
3 133 NLRB 1527.
2 307 F. 2d 428 (C.A. 4).
3 372 U.S. 911.
150 NLRB No. 118.