NLRB v. Murray Ohio Manufacturing Company, 15014

• Citation: 326 F.2d 509
• Decision Date: 14 January 1964
• Docket Number: No. 15014,15015.,15014
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MURRAY OHIO MANUFACTURING COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

326 F.2d 509 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MURRAY OHIO MANUFACTURING COMPANY, Respondent.

Nos. 15014, 15015.

United States Court of Appeals Sixth Circuit.

January 14, 1964.

COPYRIGHT MATERIAL OMITTED

Stephen B. Goldberg, Atty., N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

Frank A. Constangy, Atlanta, Ga. (Constangy & Prowell, Atlanta, Ga., William E. Boston, Lawrenceburg, Tenn., on the brief), for respondent.

Before WEICK and O'SULLIVAN, Circuit Judges, and BOYD, District Judge.

O'SULLIVAN, Circuit Judge.

The National Labor Relations Board here petitions for enforcement of two orders finding respondent, Murray Ohio Manufacturing Company, guilty of violations of Section 8(a) (1) and 8(a) (3) of the National Labor Relations Act, (§ 158(a) (1) and (3), Title 29 U.S.C. A.). The orders require respondent to cease and desist from conduct found to be unfair labor practice, and direct the reinstatement with pay of twenty-two employees in Case No. 15,014 and two employees in Case No. 15,015. The basis of the order in No. 15,014 was alleged discrimination in the use of an employee evaluation program which resulted in twenty-one of the involved employees not being recalled upon resumption of work following a seasonal shutdown, and discriminatory failure to rehire the other of the twenty-two involved. Like use of the employee evaluation program was the charge as to one of the employees in No. 15,015. The other employee in the latter case was found to have been discriminatorily discharged.

Respondent, Murray Ohio Manufacturing Company, referred to herein as the company, had, for a number of years, maintained its main plant at Cleveland, Ohio. There it manufactured toys, bicycles, window fans and other items of a related nature. In 1956, the company began operations in Lawrenceburg, Tennessee, and by September, 1957, all of its Cleveland operations had ceased. The labor union (UAW, AFL-CIO) which had represented the company's employees in Cleveland, had by this time begun an organizational campaign among the employees at Lawrenceburg. On May 22, 1957, the union petitioned for certification as the bargaining agent for these employees. An election was held on September 11, 1957, with the union losing by a vote of 624 to 558. This election was set aside by the Board on February 6, 1959, upon its finding that the company had, in resisting the union campaign, violated Section 8(a) (1) of the Act. Murray Ohio Mfg. Co., 122 N.L.R.B. 1306, enforced by this Court's order reported at 279 F.2d 686 (CA 6, 1959). Among the violations found were remarks by supervisory personnel threatening discharge of some employees if they voted for the union and predictions that the plant at Lawrenceburg would shut down if the union won the election. These events, however, are not involved here, having been already litigated and sanctions imposed for the violations found. But they are relied on by the Board here as relevant background to its finding of discriminatory use by the company of its evaluation program. All of these events occurred more than six months prior to the filing of the complaints involved here. They can be used as background only if there is evidence, independent of such background, of new violations occurring within the six months period of statutory limitations. Local 1424, I. A. M. v. N. L. R. B., 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed. 832.

1. CASE NO. 15,014

A. The Company's Evaluation Program

A. H. Willis was the company's vice-president in charge of production. Until September, 1957, he divided his time between Cleveland and Lawrenceburg, but began to give his full attention to the latter plant in September, 1957, when the Cleveland operation was fully terminated. This was the same month in which the union election was held. Late in that month, Willis instituted an employee evaluation program to determine which of the company's employees would be recalled for the 1958 season. The work of the company is seasonal, with the beginning of the season occurring at the middle of January. Production then accelerates until it reaches its peak in July, at which time it begins curtailment and ends in complete shutdown in December. Willis testified that in September, 1957, he made a survey of the Lawrenceburg operation and concluded that labor costs were about five percent above normal. He concluded, also, that an excessive number of workers had been hired by the company during the plant's first year of operation. The Lawrenceburg operation proved to be bigger than originally contemplated. They had planned on an operation with about 500 employees, but after a year their employee complement had increased to around 1100. Willis testified that to solve the company's excessive labor costs, he decided to eliminate all employees whose performance was below average. With his supervisory staff, he decided to employ basically the same evaluation system that had been used in Cleveland to determine whether new employees were qualified to become permanent.

The evaluation system set up at Lawrenceburg consisted in part, in the use of rating sheets prepared by Willis which were distributed to department superintendents and foremen: The superintendents had the responsibility of making the ratings. The rating sheets used were described as the same as those frequently used "in all industries where they are starting plants where they have new employees being hired and especially at seasonal times." The sheets provided for ratings of above average, average, below average and unsatisfactory, in five categories: quality of work, quantity of work, dependability, knowledge and versatility, and attitude and cooperation. A sixth category, relations with others, provided for three ratings — unsatisfactory, below average, and satisfactory. Each rating was assigned a numerical value. For instance, a worker who produced an average quantity of work received a grade or score of 4 for that category. An average rating in each of these categories would result in a total score of 24. At the conclusion of the evaluations the completed rating sheets were turned in to the personnel department for summarizing. The summary disclosed that of a total of 1079 employees rated, 100 scored below 23. It was then decided that these 100 would not be recalled for work in the coming 1958 season. Of the 100 not recalled, 21 filed complaints with the Board charging that the evaluation system had been discriminatorily applied to them because of their previous activity during the union organization campaign.

After an extensive hearing, the Board's trial examiner found that respondent's evaluation system had not been conceived with a discriminatory purpose and was not discriminatory per se. He held that no violation of the Act was committed in the respondent's failure to recall 17 of the 21 complainants. He found, however, that as to the remaining four, viz.: Ronald Hartlein, James V. Sudduth, A. F. Jenkins, and Robert W. Brown, they were not recalled because of previous union activity and were victims of illegal discrimination. The trial examiner's Intermediate Report and Recommended Order was made on November 19, 1959. The National Labor Relations Board on November 15, 1961, with two members dissenting, reversed its trial examiner as to the 17 whose complaints were dismissed and held that all 21 of the complainants had been illegally discriminated against. The dissenters were of the opinion that the Board's general counsel had not met its burden of proving a § 8 (a) (3) discriminatory motive in the company's failure to recall the 21 alleged discriminatees, emphasizing that no evidence was offered to show that there was any disparity of treatment between the 21 who complained and the 70 odd others who were not recalled, but did not complain.

The Board majority's conclusion was arrived at by a sequence of inferences. It was of the opinion that because of the previously proven company misconduct in resisting the union's organization campaign and the closeness of the representation election, it was likely that the company feared that the election would be set aside. From this it was inferred that such fear motivated the company to conceive and use its employee evaluation program to rid itself of known union enthusiasts. There was evidence that the 21 complainants were such and, therefore, inferred the Board, their low ratings were the product of such illegal plan. We are of the opinion that such speculation cannot be accepted as justifiable inference.

The general counsel offered no evidence to show that the ratings given the alleged discriminatees were arrived at by any different method than that used in rating the balance of the 1079 employees who were rated. There was no attempt to show that the 21 complainers were the only, or the outstanding, union protagonists. There was evidence of their activities, but none to show whether any, or many, of the 558 who voted for the union were less or more active in the campaign than the complainers. The grades given to the 21 complainants on the rate sheets ranged from a low of 4 to a high of 16, all substantially below the passing grade fixed by Willis at 23. The reports detailed the conduct, attitudes, abilities, work habits and deportment of each employee. In keeping with an established company practice, supervisory personnel would, from time to time, make what were called incident reports describing specific occasions when an employee's misconduct came to the attention of foremen or other supervisors. Such reports were considered in the ratings given to some of the complainants, but the rating as a whole was based upon the general conduct and ability of the particular employee.

The burden was on the general counsel to...