Babcock & Wilcox Co.

National Labor Relations Board - Board Decisions

Jun 30, 1954

108 N.L.R.B. 1622 (N.L.R.B. 1954)

1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BABCOCK & WILCOX COMPANY and INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS
AND HELPERS OF AMERICA, AFL. Cases Nos. 32-CA-263
and 32-RC-478. June 30, 1954
DECISION AND ORDER
On July 10, 1953, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceedings, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint and recommended that these allegations be dis-
missed, and he did not recommend that the election be set aside.
Thereafter, the Respondent and the General Counsel each filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner,
except to the extent that they are inconsistent herewith.
1. The Trial Examiner found that Respondent's employment
manager, R. F. McBride, interrogated two job seekers, later
employed by the Respondent, concerning their attitudes toward
unions. He found the interrogation not violative of the Act,
however, because he believed the employees' subsequent em-
ployment by the Respondent dispelled any coercive effect the
interrogation might otherwise have had.
Chairman Farmer and Member Rodgers are satisfied, in the
circumstances revealed by this record, that Respondent's
inquiries of the prospective employees as to their union sym-
pathies went beyond the routine compilation of hiring statis-
tics.' Rather, in view of the many threats made during interro-
gation conversations--of which McBride's was only one instance
--and the surrounding facts and circumstances, it may be
reasonably inferred that the questioning of applicants by
McBride unlawfully restrained them in the exercise of their
rights under the Act.'
Members Murdock and Peterson also disagree with the Trial
Examiner. They believe that the interrogation of these em-
ployees before they were hired conveyed to them the impression
of employer hostility toward their concerted activities and was
therefore coercive and unlawful without regard to the presence
iCompare McGraw Construction Co., Inc., 107 NLRB 1043.
2 N. L. R . B. v. Syracuse Color Press , Inc., 209 F. 2d 596 (C. A. 2).
108 NLRB No. 233.
BABCOCK & WILCOX COMPANY 1623
or absence of further unfair labor practices . This impression
of hostility was not necessarily dissipated by their subsequent
employment - -they may have reasonably believed that the
employer's decision to hire them was not incompatible with the
employer ' s previously evidenced attitude of antagonism toward
their union activities.
Accordingly, the Board finds that McBride's interrogation of
Hugh Edwards and Marvin Brock violated Section 8 (a) (1) of
the Act.
2. Respondent requested Police Chief W. R. Bruce to inter-
view and check the moral character of prospective employees.
The record contains uncontradicted testimony that Bruce, in
doing so, interrogated and warned job applicants against joining
the Union and asked them to report to him any attempt the
Union made to solicit them to become members. The Trial
Examiner found the Respondent not responsible for Bruce's
coercive remarks on the ground that the evidence was insuffi-
cient to establish that he was, in making these remarks, acting
within the scope of the authority delegated to him by the Re-
spondent . We disagree . Bruce's unlawful acts were within the
general area in which he had been authorized to act by the
Respondent , and his conduct was not so different in kind from
that authorized as to be outside the scope of his apparent
authority .? Accordingly, we find that Respondent violated Sec-
tion 8 (a) (1) of the Act by the unlawful remarks made to pro-
spective employees by its agent , Police Chief Bruce.
3. The Trial Examiner concluded that the Respondent's
counsel, Thomas J. Tubb, did not exceed the bounds of legiti-
mate trial preparation by his questioning of Respondent's em-
ployees. While we concur in this conclusion , we consider too
broad the rationale employed by the Trial Examiner--that an
attorney has the right to question a client's employees about
their union sympathies and activities in order to determine
possible bias and to evaluate the testimony of prospective wit-
nesses. It is sufficient to point out that there is no evidence
that either the purpose or the effect of Respondent counsel's
conduct in interviewing Respondent's employees was to infringe
upon their right to engage in concerted activities . Tubb did
ask Respondent ' s employees several questions about their union
activities in the past , questions which later proved unnecessary
in this proceeding . But the record contains uncontradicted
evidence , to which the Trial Examiner did not allude, which
indicates that the great preponderance of Tubb's questions
related to issues material to this proceeding . Also indicative
of Tubb 's intention to refrain from unduly intruding upon the
privacy of the employees in their union affairs is the fact that
he asked only about past events, and not about their attitudes
toward the Union or reasons for engaging in union activities.
3International Longshoremen's and Warehousemen's Union, C. I. 0. (Sunset Line and Twine
Company), 79 NLRB 1487, at 1509.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, therefore , that Respondent ' s counsel did not exceed
the bounds of privileged inquiry in preparing Respondent's
defense in this proceeding.4
4. We find, in agreement with the Trial Examiner, that by
the following acts the Respondent violated Section 8 ( a) (1) of
the Act:
(a)'Foreman Herbert Seifert ' s promise of benefit made to
Ben Bacus on or about April 1, 1952, on condition that Bacus
report to him the Union's activities in the plant.
(b) The threat communicated by Foreman Seifert to Bacus on
or about April 11 that the leaders of the Union's campaign would
suffer detriment because of their union activities if the Re-
spondent should discover their identity.
(c) Foreman Seifert ' s threat of reprisal made to Bacus a few
days before April 23, 1952, which was occasioned by Bacus'
expressing an interest in joining a union.
(d) Employment Manager R . F. McBride ' s interrogation of
Roosevelt Cooperwood.
(e) Foreman Jack Young ' s interrogation of Harold Lancaster
and James Wilson.
5. With regard to the Union ' s objections to the election, the
Trial Examiner found several instances in which the Respondent
violated Section 8 ( a) (1) during the period between the issuance
of notice of hearing in the representation case and the election.
However , he did not recommend that the election be set aside,
finding these incidents so isolated as not to have interfered
with the employees' free choice to any substantial or material
extent . We have found additional instances whereby the Re-
spondent violated Section 8 ( a) (1) during this period . However,
as more than a year has elapsed since the time of the election,
we find that no useful purpose will be served in our setting the
election aside. Accordingly, we shall dismiss the representa-
tion petition without prejudice to the filing of a new petition.
THE REMEDY
Having found that Respondent interrogated its employees,
sought to secure information from them concerning the Union's
activities , and made threats of reprisal and promises of benefit
to them regarding their refraining from, or participating in,
concerted activities , we shall order the Respondentto cease and
desist therefrom and to take certain affirmative actiondesigned
to effectuate the policies of the Act.
We are also convinced that the unfair labor practices com-
mitted by the Respondent are potentially related to other unfair
labor practices proscribed by the Act, and that the danger of
their commission in the future is to be anticipated from the
Respondent's conduct in the past. The preventive purpose of the
Act will be thwarted unless our order is coextensive with the
•Compare Partee Flooring Mill, 107 NLRB 1177.
BABCOCK & WILCOX COMPANY 1625
threat . Accordingly, in order to make effective the interdepend-
ent guarantees of Section 7 and thus effectuate the policies of
the Act, we shall order the Respondent to cease and desist
from in any manner infringing upon the rights of employees
guaranteed by the Act.
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Respondent , Babcock &
Wilcox Company, West Point , Mississippi , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating or questioning employees or prospective
employees concerning their union membership , activities,
connections , or sympathies ; threatening employees with the
loss of their jobs or impairment of job security or tenure
because of union activity or membership ; inducing or requir-
ing employees or prospective employees , by promise of
benefit or otherwise , to communicate to the Respondent in-
formation concerning the union activities of other employees;
and making remarks to employees or prospective employees
the purpose or effect of which is to coerce employees in the
exercise of rights protected by Section 7 of the Act.
(b) In any other manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
International Brotherhood of Boilermakers , Iron Shipbuilders
and Helpers of America, AFL, or any other labor organization,
to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities , except to the
extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act, as
guaranteed by Section 7 thereof.
2. Take the following affirmative action which the Board
finds necessary to effectuate the policies of the Act:
(a) Post immediately in conspicuous places in its plant
located at West Point , Mississippi , copies of the notice attached
hereto and marked "Appendix A."5 Copies of said notice, to
be furnished by the Regional Director for the Fifteenth Region,
shall, after having been duly signed by Respondent' s repre-
sentative , be posted by Respondent immediately upon receipt
thereof , in conspicuous places, including all places where
5 In the event this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant
to a Decree of the United States Court of Appeals , Enforcing an Order.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered, by any other
material.
(b) File with the said Regional Director, within ten (10)
days from the date of this Order, a report in writing setting
forth in detail the steps which Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the petitionfiledin Case No.
32-RC-478 be, and it hereby is, dismissed.
Member Beeson took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
you that:
I
WE WILL NOT interrogate or question employees or
prospective employees concerning their union member-
ship, activities, connections, or sympathies; threaten em-
ployees with the loss of their jobs or impairment of job
security or tenure because of union activity or membership;
induce or require employees or prospective employees,
by promise of benefit or otherwise, to communicate to
us information concerning the union activities of other
employees; or make remarks to employees or prospective
employees the purpose or effect of which is to coerce
employees in the exercise of rights protected by Section
7 of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the right to self-organization , to form labor organizations,
to join or assist International Brotherhood of Boiler-
makers, Iron Shipbuilders and Helpers of America, AFL,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
BABCOCK & WILCOX COMPANY 1627
employment as authorized in Section 8 (a) (3) of the Act,
as guaranteed by Section 7 thereof.
BABCOCK & WILCOX COMPANY,
Employer.
Dated ................ By....................................................
(Representative ) ( Title)
This notice must remain posted for 60 days from the date
hereof and must not be altered, defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge filed by International Brotherhood of Boilermakers, Iron Ship-
builders and Helpers of America, AFL, herein called the Union, the General Counsel of the
National Labor Relations Board, respectively called herein the General Counsel and the Board,
issued a complaint dated November 26, 1952, against Babcock & Wilcox Company, herein
called the Respondent, alleging that the Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, herein called the Act.
After the holding of a hearing in Case No. 32-RC-478, the Board issued a Decision and
Direction of Election, dated June 3, 1952.1 An election was conducted by the Board among
the Respondent's employees on June 19, 1952. On June 23, 1952, the Union filed objections
to the election. In his report on objections, dated August 29, 1952, the Regional Director for
the Fifteenth Region found "substantial, credible and persuasive evidence supporting the
allegations of the objections," and recommended that the Board sustain the objections and
direct a new election. By an order dated September 19, 1952, the Board directed that a hear-
ing be held on the issues raised by the objections and that ". . . the Hearing Officer desig-
nated for the purpose of conducting the hearing, shall prepare and cause to be served upon
the parties a Report containing resolutions of the credibility of witnesses, findings of fact,
and recommendations to the Board as to the disposition of said objections." On November 26,
1952, the Regional Director issued a combined notice of hearing and order consolidating the
complaint and representation cases.
The Respondent filed an answer on about December 8. 1952, in which it admitted the juris-
dictional allegations of the complaint but denied the commission of any unfair labor practices.
A hearing was held before the undersigned Trial Examiner at West Point, Mississippi, from
January 26 to January 30, 1953.
Both from the entire record in the case and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a New Jersey corporation, having its main office in New York, New York.
It owns and operates aplantat West Point, Mississippi, where it is engaged in the manufacture
of boilers and boiler parts. The Respondent also owns and operates plants in Ohio, North
Carolina, Georgia, and Pennsylvania. The West Point plant is the only one involved in this
proceeding.
iThe original charge in Case No. 32-CA-263 was filed by the Union on April 15, 1952. On
the same date the Union filed a waiver insofar as such charge constituted a basis for object-
ing in the representation proceeding.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the period of 12 months before the issuance of the complaint herein, the Respondent
manufactured at its West Point plant and sold for distribution outside the State of Mississippi
boilers and parts having a value in excess of $50,000. During this same period, the Respond-
ent caused to be purchased and delivered to the West Point plant substantial quantities of
raw materials from outside the State of Mississippi.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, is a labor organization which admits to membership employees of the Respondent.
III. THE OBJECTIONS TO ELECTION AND THE UNFAIR LABOR PRACTICES
A. Background: sequence of events
George Lockwood, International district representative of the Union, commenced organiza-
tion of the Respondent's employees about the latter part of August 1951. However, it appears
that the Union did not conduct an intensive campaign until about the middle of March 1952.
On about two occasions during March, Lockwood together with employee James A. Rambo
visited the homes of employees in order to solicit them to join the Union.
By letter dated April 10, 1952, the Union notified the Respondent that it represented a
majority of the employees and requested a bargaining conference. Thereafter, the Union filed
with the Board a petition for certification.
The Respondent discharged Rambo on April 14, 1952. The Union filed an unfair labor
practice charge on April 15. On that same date the Union also filed a waiver of the charge in
the representation proceeding . Pursuant to the Board 's direction , an election was held on
June 19. The Union lost the election by a vote of 92 to 65.
B. The discharge of Rambo
Rambo was hired by the Respondent as a welder on about December 26, 1951. Before that
date he was employed by W. L. Wooten, an individual doing business as West Point Machine
Shop. From about July 1951 until about May 1952, Wooten had a contract with the Respondent
for the unloading and erection of steel at its plant.
Rambo worked as a welder for the Respondent until about 3 or 4 weeks before his dis-
charge. He and another employee were the highest paid welders in the plant. Rambo changed
over to "fitting" at the same rate of pay, and continued on this work until April 12. Herbert
Seifert and Luke Wooten were his foremen. Z
Rambo first learned of the Union's organizational campaign when he was visited by Lock-
wood during the early part of March 1952. On two occasions during March he accompanied
Lockwood when the latter visited employees at their homes. During his lunch hour, Rambo
talked to other employees about the Union.
At about the beginning of April, W. L. Wooten had a conversation with R. F. McBride, Re-
spondent's employment manager. In a joking manner, McBride said to Wooten, "You sicked
the Union on me." He told Wooten that he believed that Rambo and employee Kirby Mitchell,
who formerly had been employed by Wooten, were "agitating for the Union," and asked him
to speak to them "with the idea of trying to get them settled so they could hold their jobs."
Wooten said, "I would fire them if I thought they were detrimental to other men." McBride
replied the Respondent could not discharge them "without a legitimate excuse." 8
z It appears that Seifert and Luke Wooten had joint supervision over the welders and fitters.
3 The above conversation was testified to by Wooten whom the undersigned credits. During
his testimony it was obvious that he was reluctant to testify to any facts which he apparently
considered to be against the Respondent's interests. However, he impressed me as an honest
and sincere witness. McBride admitted having a conversation with Wooten, but testified that
Wooten started it by mentioning that Rambo and Mitchell were working to organize the Union
in the plant. McBride testified that Wooten said, "It looks like I am sicking the Union on
you, don't it?" McBride denied the other statements attributed to him by Wooten. McBride
did not impress me as a reliable witness.
BABCOCK & WILCOX COMPANY 1629
On Saturday, April 12, Clayton Carl, Respondent ' s plant superintendent , told Foreman
Seifert to assign an employee to welding "splice" plates on steel channels in a building
extension that the Respondent was constructing . Seifert assigned Rambo to the job. Employee
Marvin Brock was working with Rambo at the time . Concerning his assignment to the job,
Rambo testified without contradiction as follows-
... Brock was helping me and about 9:30 Mr . Seifert came in and told me he had a job
for me. He took me out to the south side of the building to the lean -to and he had two
plates he wanted to have put on each end to splice the channel that supported the eave
trough and showed me what he wanted done, and I went in to get my plates . First I went
up and told Shorty Brock to take a lead outside . Then I went to get my plates and when
I came back Seifert was out there . He might have said a few words, and then he went
on inside and Brock wasn 't there , the best I remember , and I went back
in to get him and he told me that Seifert told him to go back on inside and jumped
on him. I went to see Seifert then and he told me Brock had some work
to do inside , that I could do it . I told him I wouldn ' t weld any more , I was a fitter. I
didn't even have a shield.
r
... He told me he would fix me up one, and I told him he didn't have to go to all that
trouble, he had welders walking all over each other.
He said , " I will fix you up one ." So he went to his locker and fixed me up a shield
and brought it back and I went outside to do the work.
On Sunday, Carl inspected the welds made by Rambo . He discharged Rambo on Monday,
April 14. In this connection , Carl was questioned and testified as follows:
Q. Now, tell us what you did on Monday. Describe for us what you did on Monday when
you came in.
A. I came in on Monday after the fellows all went to work I got ahold of Mr . Seifert,
asked him to come over and look at that weld. I asked him who did it. He said Rambo.
I said, "how about bringing Rambo over and let's take a look at it," so he went over and
got Rambo and all three of us took a look at the weld and he asked Mr. Rambo whether he
did this weld. He said yes.
I said, "That is poor weld, Rambo."
He said , " it suits me."
I said, "Now, Rambo, you don't mean that,"
He said , "Well, it suits me."
Q. That was the conversation'?
A. That was the conversation.
Q. Did he at any time offer to do the job over'
A. Not to my recollection.
Q. Did he even suggest that he would like to?
A. Not to my recollection.
Q. Mr. Carl, what would you say his attitude was when you called it to his attention?
A. I would say it was bad. It was indifferent , just as much as it didn't make no dif-
ference whether the job satisfied the company or myself just so long as he was satisfied.
Q. Did you discharge him because of bad work or because of his attitude 7
A. His attitude more than anything else . I didn't take him up there to show it to him
with the intentions of firing him at the time.
Q. You had no intention of firing the man's
A. I had no intentions of firing the man . He told me the second time that that weld
suited him, I told him that was enough, to go to the office and get his money.
Concerning his discharge , Rambo testified as follows:
Well, we went to work at 7:30 and I was putting angles around the plates again , and about
9:30 Mr. Carl and Mr . Seifert came up. Mr . Carl asked me did I do some welding out on
the lean-to. I told him I didn ' t know, but I would go look at it and see , and I went out there
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with him and he pointed to the weld. I told him yes, sir, I did it. He said, "You mean you
would leave a poor job like that".
I said, "I don 't see anything wrong with it."
He said, "I never thought you would leave a job like that . That is liable to fall and kill
somebody."
I said , "Well, your welding foreman inspected it and he didn ' t say anything about it."
He said , "Well, it is a poor job.-
I said , "Well, I still don ' t see anything wrong with it, but if you want me to correct it
I will correct it."
He said, "No, I will get another welder to do that," and he had a few words with Seifert,
then, and I started on back to my job.
He says, "Where are you going."
I said, "Back to work."
He said, "You are not going anywhere. Come back here."
I went back up and he didn 't say anything for a few minutes , and I told him to make
himself clear.
He said, "I will make myself clear. You are through," and I said, "Well, after all the
hard work I have done on this building, you mean I don't even get another chance."
He said, "No , you are through . Pick your check up at the office."
Rambo admitted on cross-examination that he " possibly" had told Carl , "Well, it suits me."
Seifert, who was called as a witness by the General Counsel , testified to the effect that he could
not recall if Rambo offered to do the job over.
Carl impressed me as an honest and reliable witness. Accordingly , his version of the
conversation at the time of discharge is credited.
I do not believe that the General Counsel has sustained the burden of proving that the Re-
spondent discharged Rambo discriminatorily. While the conversation between Wooten and
McBride , found above , casts suspicion upon the Respondent 's motive , it is not sufficient.
The undisputed evidence shows that on the same day as Rambo's discharge employee
William Smith burned off the splice plates in question and welded them to the channels again. 5
He testified credibly that the two weld jobs which he removed were "poor " and did not have
"any strength ." Rambo admitted that his job " might have been rough" and that " it wasn't
a first-class job."
Rambo testified that he had not performed any welding work for about a month before his
discharge. However. Smith testified without contradiction that he also had not done any weld-
ing for at least 2 weeks before the job in question . Further, the evidence discloses that
fitters were paid at the rate of 89 cents per hour . This evidence tends to show that the Re-
spondent did not intend to use Rambo as a fitter exclusively , and that the Respondent did not
assign him to a welding job in order to find an excuse for discharging him.
Accordingly, I find that the Respondent's discharge of Rambo on April 14, 1952, was not
violative of the Act.
C. Interference, restraint, and coercion
Employee Hugh Edwards was hired by the Respondent during February 1952. On the day
before his hiring, he was interviewed by Employment Manager McBride. Concerning his con-
versation with McBride, Edwards testified credibly as follows:
Well, he wanted to know what I wanted to do and what I could do and I told him I could
burn , I thought, and later on in the conversation he wanted to know, in other words, where
I had been working and I told him on a pipe line job for the William Brothers and Davis
and somehow it come up about the union and I spoke up and told him it was partly organized
on this job, but it wasn't all organized . Then Mr. McBride asked me what I thought about
4At the close of its case, the Respondent moved to strike the testimony of Wooten. Ruling
on the motion was reserved. Except for the testimony related above in connection with Rambo's
discharge, the motion to strike is granted. Wooten is not named in the complaint or in the bill
of particulars.
5 Smith was employed as a welder at $1.11 per hour. Rambo's rate was $1.25 per hour.
Smith left the Respondent's employ during July 1952.
BABCOCK & WILCOX COMPANY 1631
the union and I told him I thought it was all right if it was handled right, and I think that
was about all that was said , all excepting after that then he told me that he would call me
when he needed me, which he did.
Employee Brock testified that about 4 days before he was hired on March 3, 1952. he was
interviewed by McBride ; that McBride asked him for his opinion on unions, and that he told
McBride that unions were "0. K. in places."
It is found that McBride ' s interrogation of Edwards and Brock was not violative of the Act.
Although both employees indicated that they might be in favor of unions , McBride thereafter
employed them . As the act of hiring clearly was incompatible with any hostility on the part
of Respondent toward the applicants because of their union sympathies , the interrogation was
lacking in coercive effect. 6
About April 1. 1952, Ben Bacus, Respondent 's timekeeper , had a conversation with Fore-
man Seifert . Concerning this conversation , Bacus was questioned and testified credibly as
follows: 7
Q. (By Mr. Brissman) Just what was this conversationyou had with Mr. Seifert?
A. Well, as I was making a routine check I saw Mr . Seifert in the plant and I just
asked him what was all this about a union coming in.
Q. What did he say?
A. He said he had heard something about it and asked me what I knew.
Q. He asked you what you knew about the union?
A. Yes.
Q. What did you say to that?
A. I told him I didn't know anything very much about it only what I had heard.
Q. And?
A. And he said he had heard some talk of it and if I heard anything about it he would
appreciate it if I would tell him, he would make it up to me in some kind of way.
It is found that Seifert 's promise of benefit to Bacus if he would keep him informed concerning
the Union 's progress constitutes interference, restraint , and coercion.
On April 11 or 12 . Bacus had another conversation with Seifert about the Union . In sub-
stance, Seifert told Bacus that if the Respondent found out which employees were leaders in
the Union's campaign, "they would be sorry of it and it wouldn't work out well for them." It
is found that Seifert ' s threat of reprisal because of union activity constitutes interference,
restraint , and coercion.
On about June 24, 1952, employees Brock, Edwards, Leo Rambo, and John Thompson had
a conversation with Plant Superintendent Carl. These employees had heard rumors from
merchants about a petition being circulated in the town for the Respondent to discharge
adherents of the Union , and they decided to talk to Carl as a group in order to find out the
truth of the matter . Carl replied to them , "Well , what is bothering you all ? Do you have a
guilty conscience 9 , . , Who the hell has been fired 9 " He also told them that he did not
know anything about the petition , and asked them why they wanted the Union . He said, "it
won't help you." 6
It is found that Carl 's statements were not violative of the Act . He did not make any threat
of reprisal , and his statement that he did not know anything about the petition was sufficient
to deny the rumor. I am of the opinion that his other statements are protected by Section 8 (c)
of the Act , especially since the employees initiated the conversation.
About a week or two before the start of the hearing herein, Thomas J. Tubb, Respondent's
attorney , interviewed and questioned some employees in preparation for the Respondent's
defense . Employees Cooperwood , Lancaster , Leo Rambo , and Thompson testified in this
connection. Cooperwood testified on direct examination that Tubb asked him if he would join
the Union . On cross-examination he denied that Tubb had questioned him concerning his
union sympathies . It is apparent from his testimony that Cooperwood was confused between
6Cathey Lumber Company, 93 NLRB 510.
7 Although the evidence indicates that Bacus was not included in the appropriate unit, there
is no contention in the case that he was a supervisory employee.
8 The above statements of Carl are taken from the credited portions of the testimony of
Brock, Rambo, Thompson, and Carl,
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conversation that he had with Tubb and a prior one that he had with Police Chief Bruce,
which will be discussed hereinafter . Lancaster testified that Tubb asked him if he had attended
any union meetings and if he knew Lockwood. Rambo testified that Tubb asked him if Lock-
wood had ever visited his home and if he had attended union meetings . Thompson testified
that Tubb questioned him concerning the union activities of the employees and asked him if
any union meetings were held in his home.
It is found that Tubb 's interrogation of the employees does not constitute a violation of the
Act,9 Contrary to the General Counsel's contention , I am of the opinion that in preparing
his case an attorney has a right to question his client 's employees with respect to their union
sympathies and activities . Otherwise , it is difficult to understand how an attorney could detect
possible bias or properly evaluate the testimony of a prospective witness. In support of his
contention , the General Counsel cites in his brief the Board ' s decision in Katz Drug Company,
98 NLRB 867 . In that case the company through its personnel manager or district manager
engaged in extensive interrogation by soliciting affidavits from 280 of its employees in prep-
aration for a suit in a State court . The Board found a violation of the Act . Aside from the fact
that an attorney was not involved , it appears that the company sought information which was
not necessary to its suit and that the Board relied on this fact in arriving at its finding.
D. The objections
Some few days before April 23, 1952, employee Bacus had a conversation with Foreman
Seifert . Seifert told him that he would be glad when the Respondent got the plant organized
so that Bacus would not have to make out reports. He stated that Bacus was just a "glorified
timekeeper." Bacus replied in a joking manner, " I better join the timekeepers union."
Seifert then said, "If you do you will go out the gate ... on your ... tail .... You all ought
to know you can 't continue talking about the union ." Seifert also told him that it did not look
as though Bacus had enough work to keep him occupied , and that he (Seifert) "guessed" he
should talk " to the boss about it."
It is found that Seifert 's remarks to Bacus constitute interference since they contain
threats of reprisal.
On about June 9, 1952, the Respondent hired some colored employees . In this connection,
Employment Manager McBride testified without contradiction that during the early part of
June he had a phone conversation with W. R. Bruce , police chief of West Point ; that he asked
Bruce to interview and check the "moral character " of some prospective employees and to
send them to him , that Bruce interviewed about 15 or 18 colored persons; and that he (McBride)
thereafter interviewed and hired some of them. These employees were not eligible to vote in
the election which was held on June 19. Employees Spraggms , Cooperwood , Morton, and
Basket testified that they were interviewed by Brucebefore being hired by the Respondent.
Concerning his conversation with Bruce , Spraggins testified without contradiction as follows:
He told me to go out there and work and do what they tell me to do and, you know, go out
and be a good hand, make them a good hand and , you know, don ' t go to laying down on the
job and if anyone asked about the union , he said don 't join the union.
4 n 4 a
Well, he said , "Don't sign anything . If anything come up on our side to come back and
report to him , on our side of it ," he said, so that is all I know.
Cooperwood , Morton , and Basket testified to similar conversations with Bruce.
The record shows that Bruce was the Respondent ' s agent for the limited purpose of check-
ing the moral character of prospective employees . In my opinion the evidence is insufficient
to hold that Bruce was acting within the scope of his authority when he questioned the em-
ployees about the Union. Accordingly, it is not found that the Respondent was responsible
for Bruce's coercive remarks.
Cooperwood testified that after his interview with Bruce he talked to McBride, and that
McBride asked him if he would join the Union. Cooperwood replied that he would not. McBride
denied that he questioned Cooperwood in this respect . His denial is not credited , and it is found
that such interrogation constitutes interference.
9Calcasieu Paper Co., Inc., et al., 99 NLRB 794.
BABCOCK & WILCOX COMPANY 1633
On about June 16, employee Lancaster had a conversation with his foreman, Jack Young.
Lancaster testified , " Mr. Young came to the machine and said, ' I hear you boys are going to
have an election here the nineteenth ,' and I told him I heard a little about it and he wanted to
know which side of the fence I was on and I didn 't know right then."
At the hearing the parties stipulated that if employee James Wilson were called as a
witness , he would testify in part as follows:
Young came up to me at my machine in the afternoon . A colored boy was standing there,
Joe V. Cannon. He should have heard what was said. He was my helper. Young said, "I
hear you boys are going to have an election . How do you stand?"
I answered , " I am neutral."
He said, "Oh, you can't be that."
"I am."
He said, " You can 't be that way . You will have to be one or the other , for or against."
"I told him that I could, that the company was a big company and the union was a big
organization. I could get fired either way."
Young said, "You wouldn't get fired either way you vote."
Young denied that he interrogated Lancaster and Wilson concerning their vote in the elec-
tion . He testified , in substance , that he had belonged to the Union in Barberton . Ohio; that
employees , including Lancaster and Wilson , at times approachedhim and asked him questions
about the Union ; and that he answered their questions if he was able.
I believe that Lancaster was the more reliable and credible witness. Therefore , Young's
denials are not credited , and it is found that his interrogation of Lancaster and Wilson con-
stitutes interference.
On about June 17, the Respondent sent the following letter to its employees:
Tomorrow , the National Labor Relations Board will conduct an election at our plant
to determine whether a majority of those who vote desire to change the present relation-
ship under which we have been working together. To get a proper result it is important
that everyone entitled to vote exercise this right.
A vote for the union is a vote for an outside agency to do all your talking in "all
matters pertaining to wages , hours, and working conditions ." A vote of "NO", which is
located on the right-hand side of the ballot, is a vote of confidence in your present
management.
As you consider your action in this important matter, ask yourself if your status
under Company leadership is something you can improve by paying strangers to act as
your leaders.
Consider seriously the kind of leadership you want . It is unselfish leadership , interested
in your personal welfare , or is it self-seeking ? Ask yourself why strangers have become
interested in your welfare.
We have looked upon our organization as a family . In the brief time we have worked
together you have had a fair opportunity to get to know how we look upon our associates
and the kind of people we are.
We will not neglect our responsibilities to you . Although the decision is yours, we are
asking for a vote of confidence . We want your expressions of confidence in us, and we
would like to have you feel that all we have done indicates that the West Point Works is
not only the type of place in which you like to work, but that your management is the type
of management that you want . So, if you don 't want a union , don't be hesitant about voting
"NO".
To summarize , the evidence shows violations of the Act in that Seifert made coercive re-
marks to Bacus , a timekeeper who was not included in the unit ; in that McBride interrogated
Cooperwood who was not eligible to vote in the election; and in that Young interrogated Lan-
caster and Wilson concerning their vote in the election . These isolated incidents constitute
the only evidence in support of the Union's objections . The General Counsel did not contend
either at the hearing or in his brief that the Respondent ' s letter of June 17, 1952, was viola-
tive of the Act. From the record as a whole I do not believe that the Respondent's conduct
after April 15, 1952, the date of the waiver signed by the Union, interfered with the employees'
339676 0 - 55 - 104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
free choice at the election to any substantial or material extent. w Accordingly, it will not be
recommended that the election be set aside.
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 commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor practices, the
undersigned will recommend that the Respondent cease and ' desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication]
10 Wilson and Company Inc., 95 NLRB 882.
THE I T E M COMPANY and NEW ORLEANS NEWSPAPER
GUILD, LOCAL 170, AMERICAN NEWSPAPER GUILD, CIO.
Case No. 15-CA-556. June 30, 1954
DECISION AND ORDER
On September 25, 1953, Trial Examiner Richard N. Ivins,
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was engag-
ing in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent and the Union each filed
exceptions to the Intermediate Report and supporting briefs.
On December 21, 1953, and February 3, 1954, the Respondent
filed motions to supplement its brief, to which, in each instance,
the Union filed statements in opposition. The Respondent's
motions are granted and the supplemental briefs are accepted.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
108 NLRB No. 227.