Shawnee Industries Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1963

140 N.L.R.B. 1451 (N.L.R.B. 1963)

SHAWNEE INDUSTRIES, INC., ETC. 1451
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union Local No. 728 and the Southern Confer-
ence, as set forth above,4 occurring in connection with the operation of Brown Trans-
port Corp. and the freight carriers in and around and operating in the Atlanta,
Georgia, area, who employ members of the Respondent Union Local No. 728, 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent Unions have violated Section 8(e), as set forth
above, I shall recommend an order requiring that they cease and desist from the
enforcement by affirmative act of the current agreement or any like agreement or
contract as shown by prior conduct, and also recommend that they take certain
affirmative action designed to effectuate the policies of the Act. The wide impact
of the Unions' unlawful activities, found herein, make it incumbent upon me to
recommend the issue of a broad order so as to enjoin the recurrence, throughout the
Atlanta, Georgia, area, of the conduct found to be unlawful as stated by me above.
It would be appropriate, I think, to incorporate in an order a provision that the
Respondent Unions furnish a copy of the notice attached to this Intermediate Report
as an appendix, to each of the offices of the parties named as Parties to the Contract
in the complaint in this case, and to the Charging Party, to post at their respective
offices and places of 'business if they so elect to do.
CONCLUSIONS OF LAW
1. Truck Drivers & Helpers Local Union No. 728 and Southern Conference
of Teamsters, both affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
2. By engaging in and by inducing and encouraging many employees of com-
panies engaged in the carrying of freight in the Atlanta, Georgia, area, members
of the Respondent Local Union, to engage in a refusal in the course of their em-
ployment to handle freight brought to docks of their respective employers from or
by Brown Transport Corp, at Brown's Atlanta, Georgia, terminal and the conse-
quent interruption of the flow of interstate commerce through the 35 Parties to the
Contract with the Teamsters Union named in the complaint, the Respondent Unions,
Local 728 and the Southern Conference, have engaged in and are now engaging in
unfair labor practices within the meaning of Section 8(e) of the Act.
3. The unfair labor practices found above are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act, and are in con-
travention of Section 8(e).
[Recommendations omitted from publication.]
4 At hearing motion was made on the part of the Southern Conference of Teamsters to
be separated from this case. I now decide that the Southern Conference, as party to the
contract, Is as much involved here as a party as the Respondent Local Union 728
Shawnee Industries. Inc., subsidiary of Thiokol Chemical Corpo-
ration and Lodge 954, International Association of Machinists,
AFL-CIO. Case No. 16-CA-1628. February 26, 1963
DECISION AN]) ORDER
On October 3, 1962, Trial Examiner .John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
140 NLRB No. 139.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain affirmative action, as set forth in the attached Intermediate
Report. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter , the Respondent and
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to a three-
member panel [ Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the Trial Examiner 's rulings made at the
hearing and finds no prejudicial error was committed . The rulings
are hereby affirmed . The Board has considered the entire record in
this case , including the Intermediate Report, the exceptions, and
briefs, and adopts the findings, conclusions , and recommendations of
the Trial Examiner with the following additions , exceptions, and
modifications.
We agree with the Trial Examiner that the Respondent unlawfully
discriminated in regard to the hiring of Hensley and Sheets.' How-
ever, contrary to the Trial Examiner, we also find that similar unlaw-
ful discrimination occurred with respect to the hiring of Talbot and
Scott.
In his consideration of the allegations of the complaint concerning
Talbot and Scott, the Trial Examiner did not conclude , in recommend-
ing dismissal of such allegations , that antiunion factors were absent in
Respondent 's consideration of Talbot's and Scott 's application for em-
ployment. Rather, he concluded in effect that, as no vacancies existed
for these employees at or about the time of the alleged unlawful re-
fusals to employ them, the General Counsel had failed to prove that
unlawful discrimination in fact occurred2 We believe that the Trial
Examiner has misconceived the applicable law. Under the Act an Em-
ployer must consider a request for employment in a lawful , nondis-
i In the absence of exceptions , we adopt pro forma the Trial Examiner ' s conclusion that
the Respondent did not violate the Act by reason of its failure to hire Harlin
2 The Trial Examiner concluded that the case as to Talbot and Scott was tried only on
the basis that they were not employed for alleged vacancies existing on or about the dates
of the filing of their job applications . He, thus, considered the possibility of vacancies
at later dates to be an immaterial consideration We agree with the exception of the
General Counsel to the effect that with respect to these two employees the complaint
alleged essentially that they were discriminated against in the consideration of their
application for employment generally and not with respect solely to any particular job
vacancies that existed only at or about the time of the filing of the applications Clearly,
the question of Respondent 's continuing refusal to employ Scott and Talbot was litigated
at the hearing.
In view of the foregoing , we hereby grant the General Counsel ' s motion to amend the
complaint to allege specifically that Respondent refused to employ the alleged discriminatees
not only "on or about" the dates specified but also "at all times thereafter " Such
amendment merely conforms the complaint to evidence adduced and allegations litigated
at the hearing
SHAWNEE INDUSTRIES, INC., ETC. 1453
criminatory manner, and the question whether an application has
been given such consideration does not depend on the availability of a
job at the time an application for employment is made. Consequently,
the Act is violated when an employer fails to consider an application
for employment for reasons proscribed by the Act, and the question
of job availability is relevant only with respect to the employer's
backpay obligation.'
Thus, the primary issue is whether the Respondent refused to con-
sider Scott and Talbot for employment because of their union activity.
As detailed in the Intermediate Report, both of these individuals, like
Hensley and Sheets, had been quite active in the Union during the
1950's, having been both officers and committeemen for the Union.
Though such activities occurred prior to organization of the Re-
spondent Corporation, they were well known to Respondent through
the knowledge of Manufacturing Manager Appleby, and Manager of
Quality Control Kamp, who had been Scott's and Talbot's superiors
when they worked for another company which occupied the premises
now utilized by the Respondent. As for Scott individually, the
credited testimony shows that Appleby told him during the summer
of 1961 that Respondent did not want him because he had given
Appleby "too much hell" in the past in carrying out his union re-
sponsibilities.4 Further, in March 1962, Scott again inquired about,
and was interviewed for, a job at the plant. At that time his applica-
tion, submitted the previous summer, could not be found; he was told
to file a new one and further informed by Employment Interviewer
Johnson that "maybe we will have something in two weeks or so and
will give you a call." Scott filed an application on March 7, 1962,
but did not thereafter hear from the Respondent. The record is
devoid of any credible nondiscriminatory explanation for Respond-
ent's failure to hire Scott.
Talbot, like Scott, sought employment during the summer of 1961,
but in a telephone conversation with Kamp was told that he, Kamp,
could not hire Talbot because Talbot's name was on a list out at the
plant. At that time, Kamp denied that Talbot's being on the list had
8 See: Consolidated Western Steel Corporation, et al., 108 NLRB 1041, 1044; Akin
Products Company, 99 NLRB 1270, 1275; Pacific American Shipowners Association , et al.,
98 NLRB 582 , 596; Del E. Webb Construction Company, 95 NLRB 75 , 81, A B Swinerton,
Richard Walberg and Howard Hansard, d /b/a Swinerton and Walberg Company , 94 NLRB
1079, 1080 ; Arthur G . McKee and Company, 94 NLRB 399 , 401; Daniel Hamm Drayage
Company, Inc., 84 NLRB 458 , 460, enfd . 185 F. 2d 1020 (CA 5). To the extent that
Climax Spinning Company, 101 NLRB 1193, is inconsistent with our Decision herein, it
is hereby overruled
4 The evidence here, and certain of that considered with respect to the other dis-
criminatees , relates to events predating the 10 ( b) period However , such evidence can
properly be considered as background to explain ambiguous and equivocal conduct such as
Respondent ' s failure to hire Scott and other applicants , and may be used to supply the
real reason for alleged unlawful actions occurring within the 10(b) period. Paramount
Cap Manufacturing Company , 119 NLRB 785, 787
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything to do with his union activities but rather resulted from his
being slow. We cannot, however, accept Kamp's explanation. In
December 1961, Kamp told Sheets, who, as noted above, the Trial
Examiner properly found was not hired because of his union activities,
that he, Sheets, was on the list which top management would not let
Kamp hire. Then, in reply to a question Kamp explained to Sheets
that the list was made up of troublemakers and that Sheets was so
classified because of the way he had handled his union duties. Thus,
it is clear that union activities was a qualification for inclusion on the
list of persons classified as troublemakers. But, as noted, Kamp's
explanation to Talbot for his listing was limited solely to the fact he
was slow, which certainly alone would not qualify Talbot for inclu-
sion in the list of troublemakers. Consequently, as Talbot, like Sheets,
was extreinely active in the Union and as no other plausible basis ap-
pears for his blacklisting, we infer and find that he was placed on the
list of unemployables because of his union activities. This conclu-
sion finds additional support in our findings of violation with respect
to the other discriminatees in this case, for such findings evidence a
policy by Respondent not to employ persons who in recent years had
been high officers in the Union and otherwise active therein. In any
event Talbot never heard from the Respondent with respect to his job
application filed in the spring of 1961 with the State employment
commission or his later application filed April 5, 1962, directly with
the Respondent.
In view of the foregoing, we conclude that the Respondent would
not consider Scott or Talbot for employment or employ them because
of their past extensive participation in union affairs and activities.
Accordingly, we find that Respondent in violation of Section 8(a) (3)
and (1) of the Act discriminated in regard to the hire of Jack Scott
and E. Oram Talbot when it failed to give nondiscriminatory con-
sideration to their applications of March 7 and April 5, 1962,
respectively.
THE REMEDY
Having found that Respondent also unlawfully discriminated
against Scott and Talbot with respect to their applications for em-
ployment, we shall order the Respondent to offer them immediate em-
ployment in the same or substantially equivalent positions at which
they would have been employed absent the discrimination against
them if such positions became available subsequent to the filing re-
spectively of their March 7 and April 5, 1962, job applications with
the Respondent. We shall further order that the Respondent make
Scott and Talbot whole for any loss of earnings suffered by them as
a result of the discrimination against them by payment to each of them
SHAWNEE INDUSTRIES, INC., ETC. 1455
of a sum of money equal to that which they would have earned from
the date after the discrimination, when a job for which they were
qualified became available, until the date of such offer, less their net
earnings during the period. Such backpay shall be computed on a
quarterly basis as provided in F. TV. Woolworth Company.-, Interest
at the rate of 6 percent per annum shall be added to all backpay pro-
vided for in this proceeding to be computed in the manner set forth in
Isis Plumbing c6 Heating Co.'
The Trial Examiner properly concluded that a broad cease-and-
desist order was warranted in this proceeding, but, apparently by in-
advertence, provided in his Recommended Order for only a narrow
order prohibiting the Respondent from "In any like or related man-
ner interfering ..." with its employees' protected concerted activi-
ties. We shall, consequently, provide that the Order be modified by
substituting for the above-quoted words, "In any other manner
interfering ...."
ORDER
The Board adopts the Trial Examiner's Recommended Order with
the following changes :
1. Section 1(d) shall be modified by striking the words "'In
any like or related manner interfering" and substituting "In any
other manner interfering."
2. Section 2(a) shall be modified by striking the language
thereof in its entirety and substituting: "Offer Clyde Hensley,
E. D. Sheets, Jack W. Scott, and Oram Talbot immediate employ-
ment at the same or substantially equivalent positions at which
they would have been employed had they not been discriminated
against, without prejudice to any seniority or other rights and
privileges they might have acquired, the right of Scott and Talbot
to employment to be determined as provided in the section of the
Decision entitled "The Remedy" and make the above-named four
employees whole for any loss of pay each may have suffered as a
result of the discrimination against them as provided in the
sections of the Decision and Intermediate Report entitled "The
Remedy."'
5 90 NLRB 289.
6 138 NLRB 716 Member Leedom dissents from the inclusion of interest on Respond-
ent's backpay obligations for the reasons stated in the dissent in the Isis Plumbing case
7In conformity with the changes in the Order , the last indented paragraph of the
notice shall be changed to read as follows:
WE WILL offer Clyde Hensley, E D Sheets, Jack W. Scott, and Oram Talbot im-
mediate employment at the same or substantially equivalent positions at which they
would have been employed had they not been discriminated against, without prejudice
to any seniority or other rights they may have acquired, and make them whole for any
loss of earnings they may have suffered by reason of the discrimination against them
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed,' the General Counsel of the National Labor Relations
Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued a complaint on April 27, 1962, against Shawnee Industries, Inc., Subsidiary
of Thiokol Chemical Corporation, herein called the Respondent, alleging that it had
engaged in certain unfair labor practices affecting commerce within the meaning
of Section 8 (a)( I) and (3) of the National Labor Relations Act, as amended, 61 Stat.
136, herein called the Act. The Respondent's answer denies the allegations of unlaw-
ful conduct alleged in the complaint.
Pursuant to notice, a hearing was held in Shawnee, Oklahoma, on June 19, 20, 21,
and 22, 1962, before Trial Examiner John P. von Rohr. All parties were represented
by counsel and were afforded full opportunity to adduce evidence, to examine and
cross-examine witnesses, and to file briefs. Briefs were subsequently filed by the
General Counsel and the Respondent and they have been carefully considered?
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent Shawnee Industries, Inc., a partially owned subsidiary of Thiokol
Chemical Corporation, is an Oklahoma corporation with its plant and principal place
of business located in Shawnee, Oklahoma, where it is engaged in the manufacture
of missile handling equipment.
During the 12 months preceding the month of April 1962, Respondent received
goods valued at in excess of $50,000 from States other than the State of Oklahoma.
During the same period it shipped from its plant directly to companies located out-
side the State of Oklahoma parts and products valued in excess of $50,000.
The Respondent concedes, and I find, that it is and has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Lodge 954, International Association of Machinists, AFL-CIO, herein referred to
as the Union, is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Shawnee Industries, Inc., was incorporated on January 1, 1961, and commenced
operations in February 1961. On September 12, 1961, Shawnee became a wholly
owned subsidiary of Thiokol Chemical Corporation.
The present plant and premises of Shawnee formerly were occupied by Jonco
Aircraft Division of Fairchild Engine Corporation, hereinafter referred to as Jonco-
Fairchild 3 This company was engaged in the manufacture of tooling and compo-
nents for airframes and aircraft wings for the aircraft industry. In the summer of
1960 Jonco-Fairchild began laying off employees in apparent anticipation of ceasing
operations altogether. Insofar as the record indicates, the plant was finally closed
in October 1961.
With the cessation of Jonco-Fairchild, the Shawnee, Oklahoma, area (population
about 30,000) was faced with the loss of one of its principal industries 4 To meet
this problem, various residents of the community, including businessmen, towns-
'The original charge herein was filed on March 9, 1962 Thereafter amended charges
were filed on March 9 and 20 and April 23 and 24, 1962, respectively
21 hereby grant the Respondent's motion, which was attached to its brief, to correct
the transcript in the following respects: page 381, line 9, "was considered" to "was not
considered" ; page 410, line 15, "One" to "No"; page 411, line 25, "machine operator's
aids" to "machine operator A's"; page 412, line 20, "Yes, sir" to "No, sir"; page 412,
line 23, "classification He could " to "classification so he could" ; page 467, line 3, "Or
references, sought as to dates" to "On references sought after dates "
3 Jonco Aircraft Corporation, originally an independent company, became a division of
Fairchild Engine Corporation in the fall of 1956.
4 The plant Is located on a highway approximately 6 miles from Shawnee
SHAWNEE INDUSTRIES, INC., ETC. 1457
people, and former employees, donated sums of money toward a fund which ulti-
mately totaled $200,000 to be used to attract new business to the vacant plant.
Paul F. Willis, who was the president of Jonco-Fairchild during the greater period
of its operations,5 was selected as the keyman to take whatever steps were necessary
to reactivate the plant.
As indicated, Shawnee Industries, Inc., began operations in February 1961. Al-
though it subsequently became a subsidiary of Thiokol, Willis indicated that Shawnee
proposed to manufacture any product on a contract basis that it was capable of pro-
ducing. While this continues to be its policy, Respondent Shawnee has been prin-
cipally engaged in the manufacture of missile ground support equipment as a sub-
sidiary subcontractor for Thiokol.
From its inception the management and supervisory hierarchy of Shawnee in-
dustries was comprised of much the same personnel who held substantially equiva-
lent positions with Jonco-Fairchild. We have already noted the affiliation of Willis
as president of both companies. In addition are the following: L. L. Harris is the
assistant general manager and acts as Willis' assistant at Respondent Shawnee In-
dustries. He was employed with Jonco-Fairchild from 1951 until 1958 in a similar
managerial capacity. C. E. Appleby is manufacturing manager of Shawnee. He
had been previously employed by Jonco-Fairchild from 1952 through 1960, there
holding for the most part the position of company general foreman. Vernon Kamp
holds the position of manager of quality control with Shawnee. He had been em-
ployed with Jonco-Fairchild from 1953 to 1960 as supervisor of the test laboratory
and process and materials coordinator. John B Reed, chief tool engineer of Shaw-
nee, and Albin Frey, a foreman of Shawnee, also had formerly worked for Jonco-
Fairchild in supervisory capacities.
Since August 1953, the Charging Union was certified as the collective-bargaining
agent for Jonco-Fairchild's production employees, successive collective-bargaining
agreements covering these employees having been in effect from that point to the
cessation of the Company's operations. This brings us to the principal issue in this
case, which is the allegation that the Respondent discriminatorily failed and refused
to hire five of the most active union members of Jonco-Fairchild. It is the General
Counsel's position, as stated in his brief, that these former employees were refused
employment by the Respondent "because of their past memberships and activities
on behalf of the Charging Party, when the Charging Party was the bargaining repre-
sentative of the employees of Jonco-Fairchild." More specifically, the complaint
alleges that the Respondent refused to employ the following employees in violation
of Section 8(a)(3) and (1) of the Act on or about the dates beside their names:
E. D. Sheets, October 1, 1961; Clyde Hensley, November 1, 1961, Raymond A.
Harlin, December 1, 1961; Jack Scott, March 7, 1962; and E. Oram Talbot, April 5,
1962
Since the original charge in this case was filed on March 9, 1962, the cutoff date
pursuant to Section 10(b) of the Act is thus established as being September 9, 1961.6
Respondent cannot be held accountable for any unfair labor practices that may have
occurred prior to the latter date
Respondent denies that it failed or refused to hire the above-named employees
because of antiunion considerations. Rather, and as its principal affirmative de-
fense, it contends that the applicants actually hired by it in the various job classifi-
cations were better qualified for their respective positions than were the alleged
discriminatees. We turn now to a consideration of the facts as disclosed in the
record.
B. The Respondent commences operations; its hiring policies
When Respondent Shawnee Industries first was about to commence operations,
the key employees (that is those who occupied the previously mentioned managerial
5 Willis left Jonco-Fairchild in February 1960, at which time he became associated with
the Utah Tool & Manufacturing Co, in Ogden, Utah
6 The original charge of March 9, 1962, named only Jack Scott as a discriminatee
A first amended charge naming all of the diseriminatees was filed on March 20, 1962
Contrary to the assertion of the Respondent, I agree with the General Counsel's position
that the 10(b) cutoff date as it affects all of the discriminatees is controlled by the date
on which the original charge was filed. Once the Board's jurisdiction 1s invoked by the
timely filing and service of a charge, any similar unfair labor practices uncovered during
the investigation of such charge is not barred by the statute merely because such practice
was not specifically alleged This is particularly true where, as here, the nature of the
alleged violations are related and basically arise out of the same situation. See Catisey
Lumber Company, 86 NLRB 157, enfd. 185 F. 2d 1021 (C.A. 5) ; N L.R B v. Anchor
Rome Mills, 228 F. 2d 775 (C.A. 5).
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or .supervisory positions) were hired personally by President Paul F. Willis. There-
after, as operations gradually expanded, the responsibility for hiring production em-
ployees was delegated to C. E. Appleby, the manufacturing manager. Appleby con-
tinued to be responsible for the hiring of employees until September 5, 1961, when
Alfred Dwain Howard was hired as personnel manager. A personnel department
was established at that time and Howard was in charge of all hiring from that date
forward. Appleby hired approximately 50 production employees prior to the time
Howard came with the Company? Howard testified that the Respondent presently
employs approximately 250 production employees.
Willis testified that from the outset he established two criteria which were to be
followed in the hiring of production employees. These were (1) the Company hire
employees who were best qualified to meet its needs; and (2) where people were
equally qualified, preference be given to those from the Shawnee area over those
from the outside. According to Willis, he issued instructions of this hiring policy
to all those responsible for procuring personnel, including Appleby and Howard.
One further aspect of Respondent's hiring policy should be considered at this time.
Thus Respondent took the position at the hearing, as emphasized in its brief, that
it "attempt[ed] at all times to obtain the best qualified personnel available, par-
ticularly those with prior experience in the missile field." [Emphasis supplied.]
In this connection, it will be recalled that Respondent is largely engaged in the
manufacture of components for missile ground-handling equipment,8 as opposed
to Jonco-Fairchild's former production of aircraft components. Testimony was
adduced to indicate that the former work was more complicated than the latter.
However, based ,upon the evidence and testimony on this subject, all of which I have
carefully considered, I am convinced and I find that Respondent's emphasis upon
the weight which it gave to prior missile experience as a qualification for employ-
ment has been highly exaggerated. I find this to be true for the following reasons.
In the first place, it is undisputed that President Willis set the standards for employ-
ment. It was his testimony also that he sought to hire people who had been en-
gaged in the missile field. Yet, with respect to the missile experience of the staff
of managerial and supervisory employees, it is obvious from his own testimony that
Willis was scarcely acquainted with the amount or kind of missile experience, if any,
of these so-called key personnel whom he personally hired. Ti us, his testimony is
as follows:
Q. (By Mr. PARKER.) I withdraw my original question. Jr. Willis, what is
your experience in the missile field?
A. My experience in the missile--
Q. Prior to Shawnee Industries.
A. Prior to Shawnee Industries I was with the Utah Tool & Manufacturing
Company in Ogden, Utah.
Q. Was that the company that you operated as your busine s?
A. I operated as a corporation in conjunction with other people.
Q. And in this particular business you made component parts of missiles,
did you not?
A. Yes.
Q. Now, what about Mr. Kamp, what experience had he had in that field?
A. Well, I procured him from a laboratory in Colorado. I believe he was
with the Marietta-Martin Company or with the Beach Laboratory doing missile
work.
Q. And that was research type work, was it not?
A. I don't know specifically the type of wwork. I don't know.
Q. What about Mr. Appleby, where did you acquire him from?
A. I acquired Mr. Appleby from, I believe, the Murphy Boiler & Pipe
Company.
Q And the Murphy Boiler & Pipe Company had nothing to do with missile
work, did they?
A I am not sure of that. They built high pressure vessels and exotic in-
stallations, I understand, for the missile industry.
Q. Let me ask this. How much experience did Mr. Appleby have in the
field of missile work prior to acquiring him for Shawnee Industries?
A. To my knowledge, whatever time he spent after he left Jonco.
Q. And what was that time he spent; how much time did he spend9
7 Testimony of Personnel Manager Howard.
8 This is in connection with the Minuteman missile program It does not, however,
participate in the development or construction of the missile itself.
SHAWNEE INDUSTRIES, INC., ETC. 1459
A. I don't know. He worked at Murphy Pipe & Boiler Company, and I was
in Utah.
Q. Has Mr. Appleby ever informed you that while he worked for Murphy
Boiler & Pipe Company that he engaged in work involving missiles? Has he
ever informed you of that?
A. I did not understand the question.
Q. I say, has Mr. Appleby ever informed you that while working for Murphy
Boiler & Pipe Company that he engaged in the work involving missiles? Did
he ever so inform you?
A. I don't recall. Someone told me that they built high pressure vessels
for different defense installations and it may or may not have been Mr. Appleby.
Q. (By Mr. PARKER.) Prior to the time Mr. Appleby went to work for
Shawnee Industries, did he ever inform you that the work he had engaged in with
this Murphy Company, that he was involved in missile work?
A. No.
Secondly, the record reveals that many production workers were hired who had
no previous missile experience. Moreover, while the Respondent did hire some
employees who had worked for companies engaged in the missile field, it was not
shown that these companies were engaged in the same type of ground support missile
work as was the Respondent. Thirdly, the alleged discriminatees in this case were
highly skilled crafftsmen, having qualified for such jobs as tool and-diemaker,
tooling inspector, sheet metal machinist, milling machine operator, jig builders, and
the like. The testimony in this case indicates, indeed it is common knowledge, that
skilled craftsmen of this type are often required to work from blueprints and
customarily are required to build, repair, or inspect any new parts which their em-
ployer may require. These employees are not engineers or designers of new
equipment . Their' skill is utilized to build the models or parts which have been
laid out for them. Thus, Willis conceded in his testimony, "Well, we have operated
on some two hundred or three hundred or four hundred items ... I know we have
been required to start on items and build them as the engineers from Utah [presum-
ably the parent comptlny] work on them, beside our people, and develop the engi-
neering as we go.. ." [Emphasis supplied.] Furthermore, although Respondent
stressed that it purr tsed complicated new machinery which employees are now
required to use, Wihi; conceded that these employees were first required to receive
special training in its use. Fourthly, it is noted that during the months of March
and April 1962, Respondent ran advertisements in several newspapers for new em-
ployees in the various job classifications which are involved in the instant case.
Significantly, no mention was made in any of the advertisements that experience in
the missile field would be necessary or helpful.9
In sum, and for the foregoing reasons, I find at the outset that Respondent has
exaggerated and given undue emphasis to any requirement that prior experience
in the missile field was a prime factor in its determination of the qualifications of
applicants who applied to it for employment. As noted mo.e fully hereinafter, this
factor becomes particularly significant when one considers that as a defense to this
case Respondent cites lack of experience in missile work as a principal reason
for not hiring certain of the alleged discriminatees herein. With this general back-
ground applicable to all of the alleged discriminatees, we turn now to a consideration
of the individual cases.
C. Clyde Hensley and E. D. Sheets
Inasmuch as their most recent experience with Jonco-Fairchild was in the classi-
fication of tooling inspectors , the cases of Hensley and Sheets will be considered
jointly. Respondent states in its brief that both Hensley and Sheets applied for the
position of toolmaker . This, a factor which has some bearing on the case, is not
necessarily so. The official application blanks of Respondent Shawnee Industries
provide space for and request information concerning the applicants ' past experience.
At no place in the application are the applicants requested to state the specific posi-
tion for which they have applied. Thus, the applications may show the employees to
have had experience in and to be qualified for more than one job classification.
9 As to experience, the advertisements alluded to only the following- "Applicants must
read prints, make own set-up have required hand tools Physical examination required."
681-492-63-vol. 140-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clyde Hensley was employed by Jonco-Fairchild from July 1951 until September
1960.10 From 1951 to 1954 he worked as a jig builder and at the latter date
transferred into tool inspection. At the time of the plant closing in 1960, Hensley
was classified as class A tool inspector, the top rank in this classification. Addition-
ally, during his employment he was promoted to the classification of leadman and
in that capacity supervised the work of other tooling inspectors, class A and B.
The latter position merited him an additional 15 cents an hour over the rate of class
A tool inspectors. In 1957, Jonco-Fairchild presented Hensley with the following
written commendation which was signed by his supervisor and the department
head:
Your alertness and efficient manner in which your work is performed (Ref.
FAJ5-44121 913 & 914) has, in my opinion, saved our department much em-
barrassment and our company untold dollars. Thanks, keep up the good work.
While employed with Jonco-Fairchild, Hensley joined the Union in early 1953
and thereafter held the following offices: 1954, recording secretary; 1956, president;
1957, steward; 1958, president, committeeman and chairman of grievance committee;
1959, president, committeeman and chairman of grievance committee; 1960, financial
secretary and treasurer; at present, financial secretary and treasurer."
In January 1961, Hensley, accompanied by Oram Talbot, the latter an alleged
discriminatee who was president of the Local Union at the time, visited Willis in a
downtown office of the plant Willis at this time was in the process of organizing
Shawnee Industries but had not as yet officially left the Utah Tool & Manufacturing
Co. One Mr. Staub, who had been in a managerial capacity with Jonco-Fairchild
at the time of its close, was also present with Willis. Except for one item, there is
no dispute concerning the substance of this conversation. Hensley, principal
speaker for the union people, told Willis that they were there as representatives of
Local 954 After some conversation concerning Willis' efforts to get the plant started,
Hensley asked Willis if he would recognize the old Jonco-Fairchild contract and
also inquired if former employees would be on recall. Willis replied that he had
been away from that company for some time and that he was not familiar with
the terms of the contract. Hensley finally stated that he would like to see the
Machinist Union represent the employees of the new company and that the I.A.M.
was "hard to beat." According to the testimony of Hensley and Talbot, Willis at
this point responded by saying that he did not know whether the Machinists would
be hard to beat or not. Although Willis denied making the latter remark, I credit
the corroborated testimony of Hensley and Talbot.
Hensley filed his first application for employment with Respondent Shawnee at the
office of the Oklahoma Employment Commission in Shawnee in latter February or
early March 1961. (It will be recalled that Respondent did not establish a personnel
office until September 1961.) He filed a second application at the same place on
April 21. On October 10, 1961, Hensley filed a new application, this time at the
plant. On this occasion Hensley spoke to Ruby Brown, a clerk in the personnel
office, and requested to see the personnel manager. Hensley testified without
contradiction that at this time "She [Ruby Brown] turned to another girl working
there in the reception room, and this girl went to the personnel manager's office
and came back and told Ruby that he could not see me at the present, but that he
would call me if they could use me." It is undisputed that Hensley was never
interviewed or contacted further with respect to his application.
Everett D Sheets was employed by Jonco-Fairchild from September 1954 until
he was laid off in May 1959. Sheets, who had many years of previous experience
as a toolmaker and tool inspector,12 was originally hired by Jonco-Fairchild as tool
inspector. While continuing to work in this capacity throughout his employment with
Jonco, he was ultimately promoted to tooling inspector leadman over five or six
tooling inspectors on the second shift.13 There was no foreman on this shift and
leadman Sheets was responsible for the work of these employees.
In July 1961, Willis happened to stop at the home of Sheets when he saw a sign
advertising bird dogs for sale. (Willis testified that he did not know this was Sheets'
to The final layoff of Hensley, as well as the other alleged discriminatees herein, was
due to the cessation of operations by Jonco-Fairchild
11 Hensley , as a union representative , also signed the contract which was in effect in 1959
12 Sheets' application reflects that in latter 1947 he was employed by McDonnell Aircraft
Co as a toolmaker. Thereafter, and continuously up to his employment with Jonco-
Fairchild, he worked for other companies either as toolmaker or tool inspector
is He held this position during the last 6 to 9 months of his employment with
Jonco -Fairchild.
SHAWNEE INDUSTRIES, INC., ETC. 1461
home at the time.) After discussing the dogs, Sheets asked Willis how things were
progressing at Respondent's plant, indicating also that he was interested in going back
to work. According to Sheets, Willis said "that things looked pretty fair, and he
expected that I should be back there within the near future." Willis testified, "I
believe he [Sheets] asked me how things were looking down there and I gave him
an encouraging answer to the effect that I felt we were possibly on the verge of
getting underway." Willis conceded that Sheets indicated he would like to have a
job with Respondent Shawnee, but denied telling Sheets that he would be called
back in a short time. I credit Sheets' version as aforesaid.
On September 11, 1961, Sheets filed an employment application at Respondent's
personnel office. On this occasion he spoke to Howard, who had been hired as
personnel manager less than a week earlier. Advising that he presently was a
justice of the peace, Sheets pointed out to Howard his previous experience, as de-
tailed in his application, including his employment with Jonco-Fairchild. Accord-
ing to Sheets' uncontroverted testimony, Howard ended the conversation by saying
that he (Sheets) should be hearing from him within a couple of weeks. Sheets did
not, however, hear from Howard at any time thereafter.
Sheets returned to the plant about a week after filing the above application and
this time requested to see Willis He was informed that Willis was in a meeting
and did not get to see him. The following week he returned to the plant again. This
time he was told by Ruby Brown that Howard and Willis were busy, that they could
not see him. He met with the same experience when he paid another visit to the
plant some 2 weeks later On this occasion he decided to wait at the guard shack.
Sheets testified that when Respondent's manufacturing manager, C. E. Appleby, passed
by late in the afternoon, he approached Appleby and stated, "Ed, I have been out here
seeking employment several times and I have never been able to see anybody. Some-
body has blackballed me." Sheets testified that at this point he added that he felt
this was because of his union activities. According to Sheets, Appleby replied that
he did know about this but that he would find out and let him know. Appleby's
version of this conversation was substantially the same as Sheets. It is undisputed
that he did not contact Sheets thereafter.i4
As is by now apparent, Sheets was very persistent in his efforts to obtain employ-
ment with the Respondent. During the next several months he made several tele-
phone calls to the plant. On one such occasion, in October 1961, he succeeded in
speaking to Willis. Concerning this conversation, Sheets testified as follows: "I
told Paul, I was trying to get back on at the plant and so far I hadn't been able to
see anybody other than the first trip I made out there, and that I would like to find
out why and get things straightened out to where I could go back to work. He said,
`You was hired by me by the recommendation of a real good friend, Jim Rowland.
Here you come along and my supervisors tell me you have been giving me
trouble at the plant . . . ' I told Mr. Willis my contentions on this thing was
that we had a contract, and Mr. Willis stated, 'well,' he says, 'I don't see the union
getting you a job now . . .' I said, 'Mr. Willis, what do you want me to do, eat
crow? I need the job. I want to go back to work . .' He said, 'I don't want
you to eat crow, but come in and see my assistant' He mentioned L. L. Harris "
Willis, who conceded having a telephone conversation with Sheets about this time,
testified that he was called from a meeting to take the telephone call and that the
conversation was brief. The only testimony that Willis gave in describing this
conversation was that Sheets made an inquiry about employment and that he referred
him to the personnel director. Willis denied, pursuant to questions from his counsel,
the substance of Sheets' version of this conversation, as aforesaid. I credit Sheets'
version of this conversation 15
On an evening in latter December 1961, Sheets and his wife called at the home of
Vernon Kamp. Kamp was responsible for the hiring of all tool inspectors at
14 Appleby testified that after this conversation he checked with Vernon Kamp Accord-
ing to Appleby, Kamp advised him that no one was blackballed.
1s Sheets impressed me as an honest and forthright witness and I am convinced that his
testimony was not fabricated. This impression of Sheets was buttressed by a careful
study of his testimony which showed it to be consistent and not shaken under strenuous
cross-examination. Moreover, in crediting Sheets over Respondent witnesses, as I do here
and in other instances, I have taken into consideration the evidence in its entirety, in-
cluding the fact that reasons given by Respondent witnesses for failing to hire Sheets
and Hensley, as hereinafter noted , do not stand up under scrutiny,
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Shawnee.is Kamp 's wife also was present. All four parties to this con-
versation testified at the hearing. In substance, Sheets' version was substantiated
by his wife while Mrs. Kamp substantiated that of her husband. The Sheets' version,
of which Mrs. Sheets was somewhat the more detailed, is as follows . After passing
amenities 'about their families, Sheets finally got to the point of inquiring why he
had not been hired. Asserting to Kamp that someone was keeping him from being
rehired, Sheets stated that he would like to know who it was so that he could go and
talk to that person. Kamp answered Sheets by stating that there was a certain list of
people that top management would not let him hire and that he (Sheets) was on
that list because he, with the others, were labeled as troublemakers. During the
conversation Sheets referred to the hiring by Respondent of one Roy Humphreys
(about whom more will be said later) as a tooling inspector, stating that he could
not understand why a "guy like Humphreys" had been hired as a class A tooling
inspector. Kamp responded to this by saying that Humphreys would work anywhere
he was told, that he would do what was asked regardless of what it was, that he was
congenial, and that "he wasn't mixed up in the union squabbles." Concerning this
conversation, Mrs. Sheets added that Kamp said that "they" (referring to manage-
ment) could not stand the Union and that "if the union had been out there until this
time that it would have broke them already." Mrs. Sheets testified also that during
the conversation she spoke up and said that "He [her husband] had certainly learned
his lesson about getting into union activity so strong, that it was better to let someone
else fight the battles and stay out of it ...: .
The Kamps' version of this conversation, insofar as related to matters material
herein, consisted mostly of denials that Sheets was told he was on a list that man-
agement could not hire or that Kamp in any other way manifested, as the Sheets
testified, that Sheets was not hired because of union activity or because he belonged
to a 'group of troublemakers. They also denied that Kamp made a statement about
Humphreys being hired because he was not mixed up in union squabbles. However,
the affirmative testimony of Kamp concerning the conversation is most revealing.
Thus, on direct examination by Respondent's counsel, Kamp testified as follows:
"Yes. He [Sheets] asked me point blank if his union activities were preventing him
from being hired, and I said no. And Mrs. Sheets offered the statement that `Ed
has learned his lesson.' And I said that this was not the problem. And I further
explained that we couldn't get the approval of management, to rehire him." [Em-
phasis supplied.] I regard the latter testimony as important for two reasons. One,
it is an unequivocal admission by Kamp that management would not consent to the
hiring of Sheets. This in substance confirms a significant part of Sheets' testimony
concerning this conversation. Two, unless Kamp had something to conceal, it would
have been a very simple matter for him to state forthrightly, either to Sheets during
this conversation or elsewhere in his testimony at the hearing, the reason for man-
agement's refusal to approve Sheets for hire or to identify the person who was re-
sponsible for any such decision. This he failed to do.17 I credit the Sheets ' version
of this conversation as heretofore set forth.
Sometime in February 1961, Sheets encountered Willis and L. L. Harris in a local
restaurant. When Harris asked why Sheets had not been out to the plant to see
him, Sheets answered that he had attempted to do so but had been given the run
around. In any event, Sheets went to the plant and had a talk with Harris on the
next day. Sheets at this time related the experience of his visit at Kamp's home in
December 1961. Sheets testified, credibly, that Harris told him that "particular
people shouldn't have said things the way they did say them." Harris testified he
did not recall making this statement. Concerning this conversation, Harris' testi-
mony included the following:
Q. Let me ask you this specifically. Did Mr. Sheets tell you that Mr. Kamp
had told him that he could not be hired because of union activities?
19 Personnel Manager Howard's participation in the hiring of skilled employees was
more of a routine nature. Although he reviewed the applications of all employees, appli-
cants for skilled jobs were referred to the respective department bends for interview The
evidence is clear that Howard relied upon and accepted the latter's recommendations.
"Elsewhere in his testimony Kamp testified that he consulted with Apnlehy concerning
Sheets' qualifications for employment with the Respondent. This matter will be dis-
cussed later. However, he did not claim that Appleby held up the hiring of Sheets He
could not very well do so, for the evidence is clear that Kamp was solely responsible for
the hiring of tool inspectors Moreover, Kamp was on the same level in management
hierarchy as Appleby. As will be noted hereinafter, Appleby did not work with Sheets,
as a supervisor or otherwise , during Sheets ' employment with Jonco -Fairchild.
SHAWNEE INDUSTRIES, INC., ETC. 1463
A. Well, there was some discussion that I cannot recall and cannot answer
that question positively.
Although during this conversation Harris told Sheets that as far as he knew h^
(Sheets) was in the good graces of the Company, Sheets was not offered a job with
the Respondent at this time or at any time thereafter.18
D. Additional evidence; analysis and conclusions as to Hensley and Sheets
As has been noted, it is Respondent's position that Hensley and Sheets were not
hired because of their limited experience and/or because it was able to hire "better
qualified" tool inspectors. We look now to the tool inspectors who were hired by
the Respondent.
On September 19, 1961, Kamp hired one J. W. Brinkley as a tooling inspector.19
Brinkley's previous experience was as follows: Employed by Jonco-Fairchild from
June 1952 to May 1954 as tooling inspector "B"; employed with Convair in Fort
Worth, Texas, from February 21, 1957, to August 8, 1959, as inspector receiving
"B", 20 employed by the Tri-City Bowling Lanes from July 1, 1958, to the time of
his hire by Kamp on September 19, 1961, as managing mechanic.
The experience of Sheets and Hensley has been set forth previously herein. A
comparison from any point of view makes it obvious, and it is found, that the ex-
perience of Hensley and Sheets as tool inspectors far exceeded and was much more
recent than that of Brinkley. In explaining his reasons for hiring Brinkley, Kamp
testified that he interviewed Brinkley three times and ascertained that Brinkley pos-
sessed certain qualifications which he needed at the time. Brinkley having worked
for the past 3 years as a bowling alley mechanic, I can hardly see where he thereby
acquired any special skills, not to mention experience in the missile field, of which
Respondent stressed it was so much in need. Accordingly, I can give little weight
to the testimony of Kamp with respect to Brinkley's so-called special skills 21
R. L. Humphreys, who was hired by Respondent on August 23, 1961, was reclassi-
fied as tooling inspector "A" on October 16, 1961. Although Humphreys apparently
was given no specific job title when first hired, it is apparent from Kamp's own
testimony that Humphreys' first duties were intended to include tool inspection
work. Thus, when first asked about his reason for hiring Humphrey, Kamp testified,
"I needed a general all around inspector, someone that could handle receiving inspec-
tion and shipping inspection if necessary and any assembly inspection that we might
have, detail and process inspection and Mr. Humphreys was qualified in this field
and we hired him." Although Kamp testified that at first Humphreys' duties involved
receiving inspection, he conceded that from the beginning he performed tooling in-
spection and machine parts inspection. As noted, Humphreys was made a class "A"
tooling inspector on October 16, 1961. In response to leading questions put to them
by Respondents' counsel, Kamp and Personnel Manager Howard testified that Hum-
phreys' classification as tooling inspector "A" was a "misnomer." They testified that
18
According to Sheets, Harris also made the statement that he was not hired because
the Company was doing a different type of inspection than the type he had done. Oddly
enough, Harris, according to his own testimony, was not involved in any way in the hir-
ing of employees "in the shop." He participated only in the hiring of supervisory
personnel
10 It should be borne in mind, as detailed heretofore, that during the week prior to
September 19 Sheets had been at the plant several times to see about a job. His latest
employment application had been filed with Howard on September 11
It is additionally noted that at one point Howard, pursuant to a leading question,
testified that Brinkley is now doing instrument repair work However, Kamp on cross-
examination testified without equivocation that Brinkley was hired by him as a "tooling
inspector "
20 Brinkley stated in the application which he filed with Respondent that during this
period he was employed by Convair as tooling inspector "A." However, in response to a
reference form which was subsequently sent out by Personnel Manager Howard, Convair
advised that he had been employed by it during the period above stated as inspector re-
ceiving "B." I regard the information furnished by Convair as being more reliable than
that stated on Brinkley's application.
21 I do not deem it necessary to detail Kamp's testimony in this respect, all of which I
have carefully considered. Much of it was vague, confusing, and unspecific. For example,
although at one point he testified that Brinkley informed him of the experience he had
acquired while working with Convair, he later testified that he did not recall whether
Brinkley told him of performing any tool inspection work while employed with this
company.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this classification was given to him for the purpose of giving him an increase in wages.
Howard and Kamp did not elaborate as to why the classification was a "misnomer"
or what other type of work Humphreys allegedly was engaged in at this time. On
the other hand, Kamp testified that at the time of this reclassification Humphreys was
doing the same type of work as Brinkley, the latter a tooling inspector. In view of
this latter admission and in accord with Kamp's initial testimony that he hired
Humphreys to perform tool inspecting work, I reject his and Howard's testimony
that Humphreys' reclassification on October 16 was a "misnomer" and find that he
was engaged in tool inspection work at this time 22 Having thus noted Humphreys'
job status with,the Respondent, we now turn to his qualifications. Insofar as Hum-
phreys' past experience is concerned, the only testimony in this regard came from
Hensley when called as a General Counsel witness. Hensley's testimony, which is
unrefuted, was that Humphreys had been employed at Jonco-Fairchild for 3 or 4
years and worked there as an inspector of general assembly of production parts.
He did not work as a tooling inspector. Only on cross-examination did Kamp
state that he had talked with other supervisors, whom he did not identify, about
Humphreys' capabilities.23 He did not indicate the information which those super-
visors allegedly imparted to him But of greater significance insofar as it bears
upon Respondent's alleged policy of employing the most competent and best-
qualified employees is the fact that Kamp admitted knowing at the time he hired Hum-
phreys that Humphreys had a drinking problem. Kamp testified that at the time of
his hire Humphreys "asked for another chance" and that "I wanted to give the man
another chance, and he had never worked for me and I wanted to see if I could help
him." Humphreys remains in the employ of the Respondent, although Kamp testified
that he recently had issued a warning slip to him relative to his drinking.24
Three additional tool inspectors were subsequently hired by the Respondent, none
of whom were from the Shawnee area. These were: Omen L. Townley, hired
on November 20, 1961; William G. Leakes, hired on February 22, 1962; and Owen
C. McMenamy, hired on April 17, 1962. All of them had been employed by the
Convair Company at Fort Worth, Texas, prior to their employment with the
Respondent. Each was interviewed and hired by Kamp. While working for Convair,
both Leakes and McMenamy were classified as tooling inspectors "B." Townley
appears to have been employed in a similar capacity. The experience of these
employees in tooling inspection ranged from 10 to 15 years. While I have no doubt
but that these employees were qualified to perform the work for which they were
hired, what is relevant to this case is whether Respondent's reasons for the hiring
of these employees in preference to Hensley and Sheets casts any light as to whether
the latter employees were discriminatorily denied employment. I am persuaded that
this question must be answered in the affirmative, particularly when viewed in the
perspective of the evidence in its entirety. Thus, Respondent stresses that a principal
reason for the hiring of these employees was the fact that they had acquired
previous experience in the missile field However, as found earlier in this report,
Respondent's emphasis on prior missile experience has been greatly exaggerated.
The anomalousness of Respondent's position in this respect becomes sharply apparent
when one considers that neither Brinkley nor Humphreys had any experience in the
missile field prior to their being hired, yet both are classified as tool inspectors and
are performing tool inspection work. Moreover, when such qualified tooling inspec-
tors as Hensley and Sheets were available, the hiring of three employees for these
'job vacancies from as far distant as Fort Worth, Texas, was in direct contravention
of its expressed policy of hiring qualified residents of the Shawnee, Oklahoma, area.
I am also persuaded that Kamp, for discriminatory reasons, at no time gave serious
consideration to the employment applications of Sheets and Hensley. Kamp testified
that he "definitely" considered the applications of Sheets and Hensley at the time
he "needed some inspectors." However, at no time did he interview either of these
2 In this connection , the record is clear that there was an overlapping and inter-
mingling of work functions in Kamp's inspection department. As noted hereinafter, it is
undisputed that Omen Townley and Owen McMenamy, who were employed by the Respond-
ent subsequent to Brinkley and Humphreys, were hired as and worked as tool inspectors.
Thus, in testifying about certain inspection work which Brinkley performed on Air Force
equipment, Kamp testified that Townley and McMenamy also participated in this very
same work To follow this through, note also Kamp's testimony above that Humphreys
performed the same type of work as Brinkley.
z3 R. L . Humphreys did not work for Kamp during his previous employment with
Jonco-Fairchild
24 The above discussion is not intended as any reflection upon Humphreys It is neces-
sarily recited here because it is relevant to Respondent ' s asserted hiring policy.
SHAWNEE INDUSTRIES, INC., ETC. 1465
employees as he had all of the other tool inspectors whom he hired. His testimony
concerning his reasons for not interviewing Sheets and Hensley was vague, confusing,
and entirely unconvincing. On the one hand his testimony seems to indicate that he
did not deem it necessary to interview these employees because he was satisfied that
their experience, as shown on their applications, satisfied him that they were not
qualified for the position of tool inspector. But in another part of his testimony he
,indicated that he spoke to other supervisors with regard to their qualifications and
that "the recommendations pointed to the fact that their capabilities were limited
especially in the phase and field that we were working and without exception it
was recommended that if possible we find other people who were better qualified."
Kamp's testimony concerning the "recommendations" he allegedly received from
other supervisors is as unconvincing as was his testimony as to why he did not
interview these employees. Although I do not wish to prolong this report, I think it
necessary to examine his testimony in this regard. On direct examination, Kamp
testified that he spoke to Mr Weimer, whom he identified as Respondent's chief
inspector, about Hensley's qualifications. At this point he did not testify as to what
Weimer told him. The only testimony on this point was brought out on cross-
examination as follows:
Q. What supervisor did you talk to in regard to Mr. Hensley?
A. Mr. Weimer, he is chief inspector.
Q. All right. At that time wasn't Mr. Weimer foreman of the jig shop at the
time Clyde Hensley was an inspector?
A. Right. He is the one that complained so much about his getting the work
done.
Q. And, isn't it true that Mr. Hensley as an inspector could either buy the
tool or whatever you want to refer to it as, or reject it, that came out of Mr.
Weimer's jig shop?
A No Mr. Hensley at this time was on cycling inspection of jigs, to the best
of my knowledge. This had nothing to do with the actual production of tools.
Q. During the time that Mr. Hensley was employed at Jonco as an in-
spector, as a matter of fact, didn't he inspect tools which came from Mr.
Weimer's jig shop, and either buy them or reject them?
A. This could be.
Other than this aimless testimony, neither Kamp nor any other Respondent wit-
ness offered any testimony whatsoever that was critical of Hensley's work as a tool
inspector.25 Kamp's testimony above hardly supports his earlier testimony concern-
ing "recommendations" he received from former supervisors about Hensley's
qualifications.
I think it appropriate to mention here that as a witness Hensley impressed me as
being an extremely intelligent person. Yet he was a man of quiet reserve. His
answers to all questions put to him were clear, concise, and unevasive. In short,
it was my observation that Hensley was not only an honest witness, but his personal
attributes in my judgment were such as to make him a highly desirable employee.
Kamp's efforts to belittle this man as a qualified tool inspector do not bear the ring
of truth. Speaking for itself is the fact that while Hensley was employed by Jonco-
Fairchild his capabilities and qualifications were so recognized that he was elevated
to the status of leadman over a group of class A and B tool inspectors What is
more, we have seen that Hensley's alertness and competence were specially cited
in a commendation from that employer for saving the Company "much embarrass-
ment and untold dollars."
With respect to Sheets, Kamp testified that he spoke to Appleby about this em-
ployee's qualifications but Kamp did not testify as to what report he allegedly re-
ceived from Appleby at this time. Appleby, however, testified that he talked to
Kamp about Sheets, his specific testimony being, "I told him [Kamp] that I felt he
[Sheets] was not qualified as tooling inspector or a machine parts inspector." Un-
der the circumstances of this case, I believe this latter testimony merits close
scrutiny. First, it is significant that according to Appleby's own testimony Sheets did
not work under his supervision or directly for him at any time while both were em-
25Iiamp also testified that he spoke to John Reed, presently Respondent's chief tool
engineer and formerly a Jonco-Fairchild supervisor, about Hensley's qualifications Con-
cerning this Kamp testified only that, "He [Reed] said illr Hensley . . had the qualifi-
cations and was a good jig builder . . . when he went to work for Mr Reed " Kamp
conceded that he never talked to any supervisor under whom Hensley worked while
employed at Jonco-Fairchild.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed at Jonco-Fairchild.26 What was the basis, then, for Appleby's opinion of
Sheets' capabilities? The sole such basis given by Appleby was that he had observed
some rejection tags attached to tools which Sheets had inspected and that "on several
occasions Roy Davis [a foreman who worked for Appleby] came to me personally
complaining about the type of inspection remarks that was on some of these tags
that had been inspected by Ed Sheets." I think it obvious from the foregoing that
Appleby scarcely was in a position to form any qualified opinion with respect to
Sheets' capabilities. Indeed, I think only a person with considerable personal bias
would prevent the hiring of another employee on the basis of such limited fa-
miliarity with that other employee's capabilities. But what makes Appleby's testi-
mony all the more incredulous is the fact that the very employer involved at this
time unquestionably regarded Sheets as a most competent employee, else it would
not have promoted him to the position of leadman on the night shift over approxi-
mately five or six other tooling inspectors 27 I do not credit Appleby's testimony
to the effect that he told Kamp that Sheets was not a qualified tool inspector.
On the basis of all the facts and the entire record, I am convinced and find that
Respondent by failing to hire Hensley and Sheets discriminated against them be-
cause of their union membership and activities, thereby violating Section 8(a)(3)
and (1) of the Act.
As heretofore set forth in detail, Respondent's explanations for failing to hire
Sheets and Hensley simply do not stand up under scrutiny.28 Evidence of overt hos-
tility to the union activities of former Jonco-Fairchild employees is clearly mani-
fested in Kamp's conversation with Sheets in latter December 1961, and in Willis'
telephone conversation with Sheets in October 1961, all of which have been related
earlier in this report. Further evidence of the Respondent's union hostility is set
forth hereinafter, particularly in the case of Jack W. Scott 29 In the area of anti-
union motivation, I have also attached some significance to the fact that four of the
five alleged discriminatees herein were former officers of the Union 30 It is true, as
the Respondent points out, that it hired some 10 former Jonco-Fairchild employees
who held official positions with the Union. However, the record reveals that only
one of these, C. E Birchall, was a former officer of the Union With the further
exception of E. T. Littleton, who once was chairman of the plant grievance commit-
tee, the others held such lesser -positions as stewards or committeemen. In any event,
it is well settled that a discriminatory motive otherwise established is not disproved
by an employer's showing that he did not weed out every adherent of the Union.
N.L.R B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276
(C A. 5), cert. denied 344 U S. 865.
There remains for determination a finding as to when the violations as to Sheets
and Hensley occurred Recalling that the 10(b) cutoff date is September 9, 1961,
it is apparent that no violation can be found to have occurred when Respondent
first hired Humphreys for tool inspection work on August 23. 1961.31 However, the
evidence surrounding the circumstances of Humphreys' initial hire has been con-
sidered as background evidence, particularly as it cast light upon Respondent's mo-
tives in this case. But is a different matter with respect to J W. Brinkley This
employee was hired as a tool inspector on September 19. 1961, which was well
within the 10(b) period. Accordingly, since Sheets filed his application with the
Respondent prior to the hiring of Brinkley, I find that the violaton as to Sheets
occurred on September 19, 1961. Hensley, it will be recalled, filed applications for
employment with the Respondent at the Oklahoma Employment Office in Shawnee in
late February or early March 1961, and again on April 21, 1961. On October 10,
1961, he filed an application directly with the Respondent's personnel office. Since
the evidence does not reflect with certainty that the applications which Hensley
or other applicants filed with the Oklahoma Employment Office actually were
ze It will be recalled that Appleby worked at Jonco-Fairchlld as general foreman
21 As has been noted, Sheets held this position during the last period of his employment
with Jonco-Fairchild.
as See N L R.B v Griggs Equipment, Inc. 307 F 2d 275 (CA 5), where the court
found this a significant factor in inferring discriminatory motivation. See also T.I.L.
Sportswear Corporation, 131 NLRB 176.
29James W Witcher, a union representative, testified concerning a casual conversation
he held with Willis in May 1952 Since in my opinion this conversation adds nothing to
the case, I do not deem it necessary to set forth or to resolve the conflicting testimony
concerning it.
80 Only Raymond Harlin was not a former union officer. However, he was a shop steward
in 1957 and zone committeeman in 1958 and 1959.
31 As noted, Humphreys was reclassified as tooling inspector "A" on October 16, 1961.
SHAWNEE INDUSTRIES, INC., ETC. 1467
considered by the Respondent,32 I do not believe a finding of a violation with respect
to Hensley can be made prior to his filing an application with the Respondent on
October 10. The first tool inspector hired by the Respondent subsequent to that date
was Omen L. Townley, who was hired on November 20, 1961. Accordingly, I find
that the violation as to Hensley occurred as of that date.
E. Raymond A. Harlin
Raymond A. Harlin,33 was employed with Jonco-Fairchild for approximately 5
years. He was first employed by that company for 1 year during the period 1954-55
as a filler and burner learner in the sheet metal department. After a layoff and
other employment he returned to Jonco-Fairchild in March 1956, and thereafter re-
mained in its employ until April 2, 1960. During this latter period Harlin was classi-
fied as a sheet metal machine operator "A." For approximately 3 months during
1959 he acted as leadman over a group of 18 to 20 sheet metal operators.
Harlin became a member of the Union in 1955. In 1957 he held the position of
shop steward and subsequently held the position of zone committeeman in the years
1958 and 1959 34
Harlin filed an application for employment with the Respondent on December 1,
1961. At this time he was interviewed by Monroe Johnson, who worked as employ-
ment interviewer under Personnel Manager Howard. Harlin's testimony concerning
this interview was that "Mr. Johnson said that due to the background of my applica-
tion he felt I could seek employment with the Company if and when they got a
workload that would permit it." He contacted Johnson again in February 1962
and testified that this time "Mr. Johnson said that he hoped to have sheet metal in
the shop, that it looked good, and possibly they would have sheet metal in the shop
around April, maybe about the middle of April 1962." This was the last contact
Harlin had with the Respondent; he had not been hired as of the date of the hearing.
The complaint alleges that Harlin was denied employment "on or about Decem-
ber 1, 1961." This date corresponds to the date on which Harlin filed his applica-
tion. However, as I understand the General Counsel's theory of Harlin's case, it
is not contended that Harlin was discriminated against until on or about April 15,
1962. Thus, the General Counsel introduced in evidence newspaper advertisements
which Respondent ran with three different newspapers on April 15, each of which,
inter alia, advertised openings for sheet metal operators. This evidence was intro-
duced as a part of General Counsel's case-in-chief and was no doubt intended to
support a prima facie showing of discrimination against him, particularly to the
extent of showing that the Respondent had a job opening for him at this time.
Further, the General Counsel's brief states only that "Respondent on April 15,
1962, advertised for a sheet metal operator who was experienced with the afore-
mentioned machinery." No contention was made by the General Counsel either
at the hearing or in his brief that prior to this time any job opening existed for which
Harlin was qualified 35
Notwithstanding the advertisements of April 15. the record discloses that Respond-
ent did not hire any sheet metal machine operators on or after that date. Personnel
Manager Howard, in explaining the newspaper advertisements, testified without
contradiction that at the time these advertisements were placed the Respondent had
bid on a contract which, if received, would have necessitated the hire of employees
in that classification. The advertisements were placed, he said, to build up his appli-
cation files in anticipation of a need for such personnel. According to Howard's un-
refuted testimony, the said contract was not received and the Company has not in
fact hired any sheet metal operators. It hardly need be said that a discriminatory
az Evidence with respect to Respondent's utilization of employment applications filed at
the Oklahoma Employment Commission was not fully developed There is only testimony
from Willis that prior to the hiring of Personnel Manager Howard, applicants were told
to apply to the Oklahoma Employment Commission for an interview and that final em-
ployment was done by various people at the Company Willis also testified that after
Howard was hired he contacted the employment commission and that "some kind of
arrangement was worked out." Thus, the record does not indicate whether all applica-
tions filed with the unemployment office were referred to and considered by the Respondent
as At the hearing the complaint was amended to show the correct spelling of his name
to be Harlin rather than Harlan.
84 Harlin testified that as zone committeeman he processed grievances of other employees
in the second and third steps of the contract's grievance procedure He testified that in
this capacity he dealt mainly with Alvin Frey, the sheet metal foreman.
31 Nonetheless I have considered the evidence as it relates back to December 1, 1961, the
operative date of the complaint.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to hire within the meaning of Section 8(a)(3) of the Act cannot be found
unless it is shown that a vacancy existed. Accordingly, I shall recommend that
Harlin's case be dismissed.
It should be added that I have not overlooked the fact, as disclosed in the record,
that sometime after December 1, 1961, but long prior to April 15, 1962, Respondent
hired one C. Doyle Stearman as a sheet metal operator "C." He was subsequently
transferred to the job of truckdriver and was not replaced. The record does not
disclose the circumstances of Stearman's hire. I find that the evidence, all of which
I have carefully considered, is insufficient to establish that Respondent discriminated
against Harlin at the time it hired Stearman In reaching this conclusion, I have
considered that (1) it was not shown that either Appleby or Kamp, who were
principally responsible for the discrimination heretofore found, were involved in
the hiring of employees in the sheet metal department; in fact, the record does
not disclose who hired Stearman; (2) Harlin had not been an officer of the Union and
there was no showing of independent animus toward him.36
F. Oram Talbot
Except for two brief layoffs, Talbot was employed by Jonco-Fairchild from
August 1954 until October 1960. He was classified as instrument repairman "A,"
which involved inspection work of precision instruments and tools used by other
employees. He was also certified by the Air Force as a magnetic parts inspector
and a fluorescent penetrant inspector.
Talbot, who joined the Union in 1954, held the following offices: 1955, financial
secretary; 1957, president; 1958, president and committeeman; at present, president
of the local.
It will be recalled that in January 1961, Talbot and Hensley called on Willis to
ascertain what they could about the new company then being formed and what its
policy would be toward the Union. Details of this conversation have been stated
earlier in this report. On January 5, 1962, the Union sent a letter to Willis in
which it took the position that the contract which it had with Jonco-Fairchild was
"binding upon Shawnee Industries Inc., Subsidiary of Thiokol Chemical Corpora-
tion." This letter, which Willis acknowledged having received, was signed by
Talbot and by James W. Witcher, a union representative.
Talbot filed an application for employment with Respondent at the Oklahoma
Employment Office in Shawnee at some undisclosed date early in 1961. Thereafter,
in late summer or early fall, Talbot had a brief conversation with Kamp at the plant
gate. Kamp at this time stated that he was doing all of the inspection, but that
eventually he would need help It is undisputed that sometime later Talbot tele-
phoned Kamp to see about employment.37 Talbot's version of this conversation is as
follows- "I called Mr. Kamp on the telephone to inquire as to the chances of me
getting on, and Mr. Kamp said, `Well, I will tell you, Talbot, I can't hire you. We
have a list out here and you are on it,' and I asked him was that on account of union
activity, or what was the list about, and he said, `Well no,' then he hesitated, and
then he said, `They say its on account of your work ' " Continuing, Talbot testified
further that during the conversation Kamp said, "Well, they say you are slow,"
and that he disputed this by telling Kamp that he had never been reprimanded for
being slow. Kamp, who testified about this conversation, denied telling Talbot that
he was on any list and also denied telling Talbot that "they say you are slow."
Acknowledging that Talbot called him to see about a job, Kamp testified that Talbot
asked if his union activities were keeping him from being hired and that his reply
was in the negative. Kamp said that at this time he only advised Talbot that his
work record "wasn't too good" and that he had been slow in keeping his equipment
certified and up to date. I credit Talbot's version of this conversation 38
Insofar as the record discloses, Talbot heard nothing from the Respondent there-
after. On April 5, 1962, Talbot mailed a new employment application to the Re-
36 While in theory there is some relationship between the cases of all the claimants
herein the evidence in this case is such that the cases of each must be considered on an
individual basis. Thus , a finding of discrimination as to some of the claimants herein
does not warrant a per se finding that there was a violation as to the others.
SI Although Talbot was not specific as to the time of this conversation, Kamp testified
that it occurred about 2 or 3 weeks after his conversation with Talbot at the gate.
Apparently, it occurred sometime after Humphreys was hired, which was on August 23,
1961, since Talbot testified that his reason for making the call at this time was because
he had heard of Humphreys' hire.
Is For the reasons stated, I have discredited Kamp heretofore. Although Talbot was a
slow witness , I am convinced he was telling the truth.
SHAWNEE INDUSTRIES, INC., ETC. 1469
spondent. This is the only application which Talbot filed directly with the Re-
spondent, his earlier application having been filed with the Oklahoma Employment
Office in Shawnee.
The complaint alleges that Respondent discriminatorily refused to employ Talbot
on April 5, 1962. In arguing Talbot's case the General Counsel states in his brief
as follows:
,On April 5, 1962, Talbot again made formal application for employment as a
tooling inspector or magnetic parts tooling and precision parts inspector. On
April 15, 1962, Respondent advertised in various newspapers that it had im-
mediate openings for tooling Class A.
I would first note that although Talbot's application indicates he had experience
in various types of inspection, nowhere on its face does it purport to show that he
was applying for the position of tool inspector class "A." But more important, the
evidence clearly indicates that Talbot worked primarily as an instrument repair-
man while employed with Jonco-Fairchild, with the exception of a brief period
when he was a machine parts inspector. Although the testimony of Talbot indicates
that at times he performed some phases of tool inspection work, I find the evidence
does not establish Talbot qualified for the classification of tool inspector class "A." 39
With respect to the position for which Talbot was really qualified, that of instrument
repairman, it is undisputed that Respondent has not hired anyone in this classification
on or since April 5, 1962, or at any other time reasonably prior to this period.
Similarly, no machine part inspectors have been hired within any proximation of
that date Accordingly, there having been no job openings available for Talbot
since on or after April 5, 1962, which is the operative date of the complaint, I shall
recommend that Talbot's case be dismissed as
Before leaving Talbot's case, I would add this additional comment. As noted, the
operative date as to alleged discrimination against Talbot is on or about April 5, 1962.
At no time, either at the hearing or in his brief, did the General Counsel take the
position that a violation as to Talbot occurred at any other time. Matters involving
Talbot in the late summer or early fall of 1961 appear to have been introduced only
for background purposes or to the extent that they were relevant to the cases of the
other claimants alleged to have been discriminated against at about that time. What-
ever the situation with respect to Talbot in the fall of 1961, I cannot say that his case
was fully litigated on any other basis that that alleged in the complaint.
G. Jack W. Scott
Except for a period of layoff in 1955, Scott was employed by Jonco-Fairchild
from January 1952 to April 1958. First employed as a general helper in the ma-
chine shop, he was made milling machine operator "A" in 1954. In late 1956 or
early 1957 he transferred to tool and die work. He had acquired the status of
tool-and-die maker, class "A," prior to leaving the Company in 1958.
Scott joined the Union in 1952. Thereafter he held the following positions with
the Union: 1954, president and vice president; 1956-57, zone committeeman, chair-
man of the plant grievance committee, and member of the negotiating committee.
In March 1961, Scott filed an employment application for a job with the Re-
spondent at the Oklahoma Employment Office. He testified without contradiction
that a short while later he filed an application with the Respondent which he "de-
livered in person at the plant." 41
Scott testified that he had several conversations with Appleby in early 1961 with
respect to employment, but the only conversation he testified to was one that oc-
curred in June or July 1961. Concerning this conversation, Scott testified as follows:
39 As heretofore indicated, Respondent hired Owen C McMenamy as tooling inspector
"B" on April 17, 1962. Not only did this occur after the operative date of the complaint,
but the significance of his hire has been appropriately considered in connection with the
cases of Hensley and Sheets.
40 In its brief Respondent correctly cited Climax Spinning Company, 101 NLRB 1193,
1204, in which the Board adopted the Trial Examiner's statement that.
It is not enough in order that unlawful discrimination as to a job applicant be
proved, that it be shown that an employer is hostile to a union, that the employer
has discriminated against other employees because of their organizational activities,
and even that the employer has indicated its union hostility to the applicant in ques-
tion at the time of application. All these circumstances are a persuasive demonstra-
tion of an employer's inclination , but they do not prove discrimination unless it is
shown that a vacancy existed
41 This application was not available and presumably was lost.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"I finally caught him outside of the plant on the apron of the hanger and I asked
him, I said, `Ed, I want to know if there is some reason why someone doesn't want
me out here?' . He said, `Yes, there is, you gave me too much hell when you
were out here before' I said, `Mr Appleby, was that me or the union?' He said
it was the union I said, `I was selected by the men to represent them in the union.
I was trying to do a good job for them the same as I was for the company, and if I
couldn't do a good job for them I couldn't do a good job for the company,' and he
said, `That is probably true but that is the way it is.' " Scott's version of this con-
versation was as follows: ". . . he asked me if he was going to get a job or ever
get a job, and I told him no, as far as I was concerned. And he said, `Due to my
union activities?' And I said, `No, it is due to your productivity and uncooperative-
ness, ' and he said, `Well, you know I had to, I was elected in the shop to represent
them.' And 'I repeated to him, then, that that wasn't the reason; that he could look
down through the shop and see the various people working there that used to be
Jonco people and active in the union." I credit Scott's version of this conversation
over that of Appleby.42
On about March 7, 1962, Scott called the plant and spoke to employment inter-
viewer Monroe Johnson Indicating that he was seeking employment, Scott men-
tioned his experience as milling machine operator and too]-and-die maker. Johnson
told Scott to come to the plant for an interview. He did so the next day. Accord-
ing to Scott, Johnson could not find the application he had filed in the summer of
1961. Scott testified that Johnson thereupon told him to file a new application,
stating that "maybe we will have something in 2 weeks or so and we will give you
a call." Scott filed a new employment application with the Respondent on March 9,
1962.
The complaint alleges that Scott was discriminatorily refused employment on or
about March 7, 1962 Insofar as the time element is concerned, Scott's case was
litigated on this basis and it will be so considered by me 43
As indicated heretofore, as a prerequisite to establishing a discriminatory refusal
to hire, it is incumbent upon the General Counsel as a part of his burden ofproof
to show that a job vacancy existed at the time of the alleged discrimination. As in
the cases of Talbot and Harlin, the evidence in Scott's case also falls short in this
respect. Apparently this was recognized by the General Counsel, for neither at the
hearing nor in his brief has he indicated that any job vacancy existed for which Scott
was qualified at any time reasonably prior to March 7, 1962, the operative date of
the complaint. From my own analysis of the evidence I reach the same conclusion.
It is true, as the evidence reflects, that subsequent to March 7, 1962, three employees
were hired in job classifications for which Scott may have been qualified. However,
the General Counsel did not amend the complaint to allege that any violation with
respect to Scott occurred after March 7, 1962, nor do I believe that the case was
litigated on that basis 44 Accordingly, it not having been established that a vacancy
existed at the time Respondent is alleged to have refused employment to Scott, I
shall recommend that the complaint to him be dismissed.
43 Appleby heretofore had been discredited My observation of Scott was that he was
a sincere and objective witness Moreover, the record reveals, and I find that the
alleged °uncooperativeness" to which Appleby referred in reality related to Scott's union
activities Scott, in his union capacity at Jonco-Fairchild, at times had occasions to dis-
cuss with his supervisors the applicability of a contractual clause which eenerally pro-
hibited supervisors from performing work of a production nature This occurred in the
earlier part of Scott's employment while he worked in the machine shop It was the
machine shop supervisor whom Appleby identified as having complained about Scott's
alleged uncooperativeness Yet, Appleby conceded that after Scott was transferred to the
tool and die department (which in effect was a promotion) he received no complaints about
Scott's work or attitude from that time forward. Scott worked in the tool and die depart-
ment for the last 14 months of his employment with Jonco-Fairchild
's Scott's conversation with Appleby in June or July 1961 has been considered as back-
ground evidence However, no violation can be found to have occurred as of that time
since it is clearly barred by Section 10(b)
u The employees referred to are- (1) W O. Hoover, hired as tool-and-die maker on
March 20, 1962 (he was laid off on May 6, 1962, and has not been replaced) (2) Douglas
A. Martin, hired as a milling machine operator on March 22, 1962, and (3) 'Clifton Adams,
hired as milling machine operator "A" on April 20, 1962
Although, as noted, it was not alleged or contended that any discrimination against
Scott occurred at the time of the hiring of these employees, it might be pointed out that
again there is no indication that either Kamp or Appleby, the supervisors whom I have
heretofore found to be principally involved in the discrimination against Hensley and
Sheets, were in any way involved in the hiring of these employees.
SHAWNEE INDUSTRIES, INC., ETC. 1471
H. The plant rules alleged to be violative of Section 8(a) (1) of the Act
At the beginning of the hearing the General Counsel amended the complaint to
include the following allegations: 45
6(a) Respondent since on or about April 30, 1962, and at all times there-
after, has promulgated and maintained a rule prohibiting its employees from
soliciting membership in the union on its premises during their non-working
hours,
6(b) Respondent since on or about April 30, 1962, and at all times thereafter
has promulgated and maintained a rule prohibiting its employees from distribut-
ing union material on its premises during their non-working hours;
The parties stipulated that Respondent adopted certain "Rules of Conduct" which
were reduced to writing and posted on its bulletin boards. The rules which the
General Counsel attacks as being in violation of Section 8 (a) (1) of the Act, each
of which prohibit the activity referred to under penalty of discharge, 46 are as follows:
(Rule 3) Vending, soliciting, or collecting contributions for any purpose at
any time on the premises, unless authorized by management.
(Rule 5) Distributing written or printed matter of any description on the
premises unless approved by Personnel.
The basic rule of law applicable here has been enunciated by the Board in the
Walton case,47 although it has been recently modified in Stoddard-Quirk Manufac-
turing Co., 138 NLRB 615. In the Walton case, the Board stated as follows:
No-solicitation or no-distribution rules which prohibit union solicitation or
distribution of union literature on company property by employees during their
nonworking time are presumptively an unreasonable impediment to self-
organization, and are therefore presumptively invalid both as to their promul-
gation and enforcement; however, such rules may be validated by evidence that
special circumstances make the rule necessary in order to maintain production
or discipline.
In the Stoddard-Quirk case, the Board limited the scope of the above principle
to the extent that organizational rights to distribute union li terature require only that
employees have access to nonworking areas of the plant premises.
In the instant case the Respondent has not shown the existence of special circum-
stances which would make rule 3 or rule 5 necessary for the maintenance of produc-
tion or discipline. The fact that the rules make no specific reference to union solici-
tation make them no less unlawful 48 This is particularly true where, as here, the
Respondent has engaged in other unlawful conduct which manifestly was designed to
prevent organizational efforts among its employees.49 Accordingly, I find each
of the rules in question to be violative of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
4s The Respondent duly amended its answer to deny these allegations.
40 Rule 3, as here identified, provides for discharge upon the second offense. Rule 5
provides for discharge upon the first offense
47 Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (CA. 5).
48 See Elias Brothers Big Boy, Inc, 137 NLRB 1057.
"Respondent contends that, as to rule 3, the word "soliciting" deals with the collecting
of contributions and that it does not prohibit soliciting . I do not agree that Respondent's
interpretation of the rule Is necessarily the correct one. Indeed , on Its face the rule
would appear to prohibit "soliciting" in the general sense of the word . In any event,
any ambiguity of the rule In this case must be construed In favor of the rights guaranteed
employees under the Act.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondent discriminated in regard to the hire of Clyde
Hensley and E. D. Sheets, I shall recommend that the Respondent offer to each of
them immediate employment with such seniority or other rights and privileges each
would have enjoyed had each been employed on the dates when, absent the Respond-
ent's discrimination against them, the Respondent would have employed them. It
is further recommended that the Respondent make them whole for any loss of pay
each may have suffered as a result of the Respondent's discriminatory refusal to hire
them from the respective dates of discrimination against the discriminatees to dates
when each is offered employment.
The computation of backpay shall include a deduction of the net earnings of
each discriminatee to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings
in one particular quarter shall have no effect upon the backpay liability for any
other quarter. It is also recommended that the Respondent make available to the
Board, upon request, payroll and other records to facilitate the checking of the amount
of backpay due.
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to their employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent 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. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire of Clyde Hensley and E. D. Sheets,
thereby discouraging membership in the Union, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3) of the Act, and has
thereby interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act thereby engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
4. By maintaining in effect a rule which prohibits solicitation of union member-
ship during the employees' nonworking time and by maintaining a rule which
prohibits its employees, when they are on nonworking time, from distributing hand-
bills or similar literature on behalf of any labor organization in nonworking areas
of its property, Respondent has engaged in interference, restraint, and coercion in
violation of Section 8(a) (1) of the Act.
5. The Respondent has not engaged in unfair labor practices as alleged in the
complaint by reason of its refusal to hire Raymond A. Harlin, Jack Scott, or E. Oram
Talbot.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I recommend, in order to effectuate the policies of the
Act, that Respondent Shawnee Industries, Inc., Subsidiary of Thiokol Chemical
Corporation, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Lodge 954, International Association of
Machinists, AFL-CIO, or in any other labor organization of its employees, by
discriminating against applicants for employment or against its employees in regard
to their hire, tenure, or other terms or conditions of employment.
(b) Maintaining in effect a rule which prohibits employees from engaging in
solicitation during their nonworking hours or on company property.
(c) Maintaining in effect a rule prohibiting its employees, when they are on
nonworking time, from distributing handbills or similar literature on behalf of any
labor organization in nonworking areas of Respondent's property.
(d) In any like or related manner interfering with, restraining, or coercing appli-
cants for employment or employees in the exercise of their rights to self-organization,
to form labor organization, to join or assist the aforesaid Union, 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
SHAWNEE INDUSTRIES, INC., ETC. 1473
or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Clyde Hensley and E. D. Sheets immediate employment at the same
or substantially equivalent positions at which they would have been employed had
they not been discriminated against, without prejudice to any seniority or other rights
and privileges they might have acquired, and make them whole in the manner set
forth in the section herein entitled "The Remedy" for any loss of pay each may
have suffered as a result of the discrimination against them.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
and compute the amount of backpay due under the terms of this Recommended
Order.
(c) Post at its plant in Shawnee, Oklahoma, copies of the attached notice marked
"Appendix." 50 Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall, after being duly signed by the Respondent, be posted
immediately upon receipt thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in writing, within 20
days from the date of receipt of this Intermediate Report, what steps have been
taken to comply therewith 51
It is further recommended that unless within 20 days from the date of receipt
of this Intermediate Report and Recommended Order, Respondent notifies said
Regional Director, in writing, that it will comply with the foregoing Recommended
Order, the National Labor Relations Board issue an Order requiring the Respondent
to take the aforesaid action.
60 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 Recommendations of a Trial
Examiner" in the notice. In the further event that the Boaid's Order be enforced by
a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order"
61 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations 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 discourage membership in Lodge 954, International Associa-
tion of Machinists, AFL-CIO, or any other labor organization of our employees,
by discharging or in any other manner discriminating against them in regard
to their hire or tenure of employment or any other term or condition of
employment.
WE WILL NOT maintain in effect any rule which prohibits solicitation of union
membership on company property during nonworking time. Insofar as rule 3
,at page 2 of our Rules of Conduct so restricts the rights of employees, it is
hereby rescinded.
WE WILL NOT maintain in effect any rule prohibiting our employees, when
they are on nonworking time, from distributing handbills or other literature in
behalf of any labor organization in nonworking areas of our property. Insofar
as rule 5 at page 3 of our Rules of Conduct so restricts the rights of employees,
it is hereby rescinded
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named Union or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of collective
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection, and to refrain, from any or all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized by Section 8 (a) (3) of the Act, as amended.
WE WILL offer to Clyde Hensley and E. D. Sheets employment at the same
or substantially equivalent positions at which they would have been employed
had they not been discriminated against, without prejudice to any seniority or
other rights and privileges they might have acquired, in the manner set forth
in the section of the Trial Examiner's Intermediate Report entitled "The
Remedy," and make them whole for any loss of earnings they may have suffered
by reason of the discrimination against them.
All our employees are free to become or remain, and to refrain from becoming
or remaining, members of the above-named or any other labor organization, 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 as amended.
SHAWNEE INDUSTRIES, INC., SUBSIDIARY OF
THIOKOL CHEMICAL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone
No. Edison 5-5341, Extension 284, if they have any question concerning this notice
or compliance with its provisions.
Truck Drivers Union Local No. 413 , International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, and Central States Drivers Council , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and The Patton Warehouse , Inc. and
Arkansas Best Freight System ; The Cleveland , Columbus and
Cincinnati Trucking Co.; C. and D . Motor Delivery , Inc.; Dixie
Ohio Express ; Haeckl's Motor Freight ; Huey Motor Express,
Inc.; W. L. Mead , Inc.; Consolidated Freightways ; Reinhardt
Transfer Co.; Suburban Motor Freight , Inc.; The White
Transportation Co., Parties to Central States Area Local Cart-
age Agreement and Alpha Lines, Inc.; Arkansas Best Freight
System ; Cleveland , Columbus & Cincinnati ; Highway, Inc.;
C. and D. Motor Delivery Co .; Motor Freight Corp .; Haeckl's
Motor Freight ; W. L. Mead , Inc.; Consolidated Freightways;
Suburban Motor Freight ; Reinhardt Transfer Co.; The White
Transportation Co., Parties to Central States Area Over-the-
Road Motor Freight Agreement , and Ohio Rider. Cases Nos.
9-CE-5-1 and 9-CE-5-2. February 26, 1963
DECISION AND ORDER
On November 7, 1961, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
140 NLRB No. 136.