Bear Brand Roofing, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1961

134 N.L.R.B. 1233 (N.L.R.B. 1961)

BEAR BRAND ROOFING, INC. 1233
In view of the foregoing, we shall modify the Decision previously
issued herein so as to conform to this Supplemental Decision. • In all
other respects, the Board's Decision and Order shall remain un-
changed. In determining that the Board's Decision should be modi-
fied as set forth herein, we have considered whether or not the
Respondent has been prejudiced. Because the Order previously
issued herein remains unchanged, we have concluded that no prejudice
has resulted.
[The Board modified the Board's Decision issued on February 28,
1961.]
Bear Brand Roofing, Inc. and International Union of Operating
Engineers, AFL'-CIO.- Case No. '17-CA-1631. December 14;'1961
DECISION AND ORDER
On January 17, 1961, Trial Examiner John P. von Rohr issued his
Intermediate Report in -the above-entitled proceeding, finding that
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 Intermediate Re-
port attached hereto. Thereafter, Respondent and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs. The Respondent also filed a -motion to reopen the record.
On July 28; 1961, the Board, having issued a notice to show cause
on May 4, 1961, reopened the record and remanded the case for a fur=
ther hearing for the purpose of affording Respondent an,opportunity
to cross-examine a witness on his statement to the General Counsel.
On October 2, 1961, the Trial Examiner issued his Supplemental In-
termediate Report adopting and reaffirming. his Intermediate Report
of January 17, 1961. A copy of the Supplemental Intermediate Re-
port is attached hereto. Thereafter, Respondent filed exceptions to
the Supplemental Intermediate Report and a supporting brief.
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 [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error 'was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and .the Supplemental Intermediate Report, the
exceptions' and briefs,, and the entire record in this case, and hereby
I As noted above, the hearing herein was reopened and the ,case remanded to the Trial
Examiner for the purpose of affording the Respondent an opportunity , to cross-examine a
134 NLRB No . 127. 4 - -
630849-62-vol . 134-79 - - -
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopts the findings,2 conclusions , and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of'the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Bear Brand
Roofing, Inc., Phillipsburg, Kansas, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from : -
(a) Discharging employees or otherwise discriminating against
them in their employment because of their concerted or union activi-
ties.
(b) Interrogating employees,, about their union activities and the
activities of other employees, threatening reprisal against employees
because of their union activities, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of their
right to self-organization, to join or assist International Union of Op-
erating Engineers, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in any other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Charles Hodge immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of the Respondent's
discrimination, in the manner set forth in "The Remedy" section of
the Intermediate Report.
witness, Hodge , on a prehearing statement Hodge gave to the General Counsel. At this
subsequent hearing held in accordance with the Board's Order, the Respondent , although
having been given the statement in question , declined to cross-examine Hodge with respect
to the statement. In its exceptions to the Trial Examiner 's Supplemental Intermediate
Report, the Respondent urges that the entire testimony of Hodge (given at the first hear-
ing) should have been stricken , the Respondent 's contention being the General Counsel
had failed to produce the statement at the first hearing, and that the Board' s Rules and
Regulations , Series 8 ( Section 102 .118), requires that the testimony of a witness be
stricken where the General Counsel declines to produce a statement taken of that witness.
The Respondent misinterprets the Board's remand order. The Board did not act "in
direct violation of Its own published rules and regulations ," as Respondent asserts.
The Board merely noted that there was a dispute between Respondent and the General
Counsel , based on affidavits submitted by each, as to whether written statements were
made available to Respondent ; and, because the record did not affirmatively show that
Hodge's statement was made available to Respondent , the Board, acting- in the interest of
caution on Respondent's behalf, decided only that a further hearing was necessary to
perfect the record and to protect Respondent' s rights in the matter.
Accordingly, we reject Respondent 's contention that the Board's remand order was
inconsistent with the Board' s Rules and Regulations, and prejudiced Respondent.
2 The Respondent 's request for oral argument Is hereby denied, as the record, including
the exceptions and briefs , adequately reflect the issues and the positions of the parties.
BEAR BRAND ROOFING, INC. 1235
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary-and useful to determine the amount
of backpay due.and the rights of reinstatement under the terms of this
Order.
(c) Post at its plant at Phillipsburg, Kansas, copies of the notice
hereto attached marked "Appendix." s Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by Respondent or its representatives, be posted
by Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional D}rector for the Seventeenth Region, in
writing, within 10 days from the date of this Order, whit steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegation of the complaint that
Respondent engaged in surveillance and that is discriminatorily ter-
minated the employment of Norman Merklein be, and it hereby is,
dismissed.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
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 our employees that :
WE WILL offer to Charles Hodge immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make,him whole for any loss ;of pay suffered as a result of the
discrimination against him.
WE WILL NOT discourage membership in International Union
of Operating Engineers, AFL-CIO, or any other labor organiza-
tion, by discriminating in respect to the hire, tenure, or other
conditions of employment of any employee.
WE WILL NOT interrogate employees about their union activi-
ties and the activities of other employees and threaten reprisals
against employees . because of their union activities, or in any
other manner interfere with, restrain, or coerce our employees
the exercise of the right to self-organization, to form labor
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations, to join or assist the above-named or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any .and all such activities.
BEAR BRAND ROOFING, INC.,
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 a charge and -an amended charge duly filed , the General Counsel of the
National Labor Relations Board , for the Regional Director of the Seventeenth Re-
gion ( Kansas City, Missouri ), issued a complaint and an amended complaint against
Bear Brand Roofing, Inc., herein called the Respondent or the Company , alleging
that the Respondent had engaged in certain unfair labor practices within the meaning
of Section 8(a) (1) and ( 3) of the National Labor Relations Act, as amended. The
Respondent duly filed an answer in which it denied the commission of any unfair
labor practices.
Pursuant to notice , a hearing was held in Phillipsburg , Kansas, on August 29
before the duly designated Trial Examiner . All parties were represented by counsel
and were afforded full opportunity to adduce evidence , to examine and cross-
examine witnesses , and to file briefs . The parties waived oral argument. Briefs
have been received from the Respondent and the General Counsel and have been
considered.'
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Arkansas corporation with its principal office and place
of business located at Bearden , Arkansas . One of its plants, which is the sole plant
involved in this proceeding , is located at Phillipsburg , Kansas , where it is engaged
in the manufacture and sale of asphalt roofing . The Phillipsburg plant sells and ships
products manufactured by it to points and places located outside the State of Kansas
valued in excess of $50,000 annually. The Respondent admits, and I find, that it is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , AFL-CIO, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues; background
The complaint alleges that the Respondent Violated Section 8(a)(3) and (1) of
the Act by discriminatorily discharging employees Charles' Hodge on May 27, 1960,
and Norman Merklein on July 30, 1960. In addition, it is alleged that Respondent
engaged in certain other acts and conduct which the General Counsel asserts to be
independently violative of Section 8(a) (1).
I The transcript Is hereby corrected in the following respects , ( 1) The name of Fore-
man John T . Novicki is incorrectly spelled In the transcript as Levicki ; it Is corrected
accordingly. (2) The testimony of Charles N. Hodge at page 30, line 21, of the transcript
is corrected to read from "and I says" to "and he says."
BEAR BRAND ROOFING, INC. 1237
Respondent's plant is located in the small town of Phillipsburg , Kansas. During
the period relative to this proceeding, it employed approximately 50 production em-
ployees. Sometime in the latter part of April or early May 1960,2 Charles Hodge
and Norman Merklein evinced an interest to start organizing a union among Re-
spondent's employees . To seek information toward this end, Hodge and Merklein
visited the home of one Bennie Kimball , a former employee of the Respondent
and a union member. Pursuant to Kimball's advise, Merklein contacted Thomas G.
Sears, a representative of the Charging Union herein, and arrangements were made
to inaugurate an organizing campaign. The record is not clear when the first union
meeting was held , but a second union meeting was held on May 24• (apparently within
a short time after the first meeting) in Stuttgart, Kansas, a small town about 8 miles
from Phillipsburg . About 8 or 10 employees , including Merklein and Hodges, at-
tended the latter meeting and an undisclosed number of those present signed union
authorization cards. The Union filed a representation petition in the Board's Re-
gional Office at Kansas City on May 26.
B. The alleged discriminatory discharge of Charles Hodge
Hodge , age 64, was employed by the Respondent as a stillman on September 23,
1958 , and remained in that capacity until his discharge on May 27, 1960 . His prin-
cipal duty was to see that proper temperatures were maintained on certain of the
Company's boilers and stills.
As indicated above, Hodge was initially instrumental in the organization of Re-
spondent 's employees . In addition to contacting Kimball and attending the May 24
union meeting at Stuttgart , Hodge credibly testified that at the plant other employees
would come to him and ask him about the progress of the organizational activities.
The incident which Respondent asserts as being the cause for Hodges discharge
occurred on May 16 or 18 .3 It is undisputed that on this occasion , which was during
the night shift, Hodge permitted the temperature on the No . 2 still to rise to an ex-
cessive degree . He apprised his foreman , John Novicki , of this fact when the latter
reported to work in the morning. Hodge credibly testified that upon being so noti-
fied Novicki went back to change his clothes, after which he returned and told him to
"watch it a little." Novicki as a witness acknowledged that when he arrived at the
plant that morning Hodge told him that the still was a "little hot ," but he said that
because he assumed this to mean that the temperature had not risen above 505° or
510° he went back to change his clothes without making any further check at the
time. However, according to Novicki, when he returned to the area a little later and
observed that the smoke from the still had turned pale yellow in color he promptly
went outside, checked the thermometer, and found that the temperature on the No. 2
still had risen to 525°. Novicki did not testify as to what, if anything, he said to
Hodge at the time. As indicated above, I have credited Hodge's testimony that No-
vicki on this occasion merely told him to "watch it a little." Novicki conceded that
no damage resulted from the fact that the temperature had risen above normal on
this occasion . Nevertheless, and although there is a conflict in the testimony as to
the exact degree to which the temperature rose on this day, the fact remains, and I
find, that Hodge admittedly was responsible for permitting the No . 2 still to become
overheated . However, the Respondent let the matter stand and took no action against
Hodge until May 27, when on this date Hodge, reporting to work in the morning, was
notified by Novicki that he was being discharged for unsatisfactory work.4 It is
2 All dates hereinafter refer to the year 1960.
3 The uncertainty with respect to the exact date of this incident is due to the unfortunate
leading questions of both counsel. Questions propounded to Hodge by the General Counsel's
representative fixed the date as May 16, while questions propounded by counsel for Re-
spondent to Foreman Novicki set the date as May 18 Neither Hodge nor Novicki testified
as to the date in their own words.
4 Hodge, upon being notified of his discharge, told Novicki that he was firing the wrong-
man. At this point there is some difference in the versions as to the remainder of the
discharge conversation. According to Hodge, Novicki then said to him, "Who is the
right man9 If you go up and tell Shank [the general manager ] maybe you can stay on "
Novicki, however, testified that when Hodge made the remark about firing the wrong man
he merely asked Hodge what he meant by the remark. According to Novicki, Hodge
replied, "You know what I mean." He then told Hodge to go speak with Plant Manager
Shank. In the main, the two versions are substantially alike. The one apparent difference
that does exist may have resulted from a genuine misunderstanding or from faulty recollec-
tion In any event, my finding that Hodge was discriminated against is based upon other
considerations including a further conversation between Hodge and Novicki , all of which
is discussed hereinafter.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undisputed that Novicki recommended to Plant Manager Herbert Shank that Hodge
be discharged and that Hodge was discharged pursuant to such recommendation.
C. Company knowledge; conclusions re Hodge's discharge
Although the Respondent asserts that Hodge was discharged for his unsatisfactory
work performance, particularly withregard to the May 16 or 18 incident heretofore
-discussed, Respondent's defense to Hodge's case is otherwise predicated upon its con-
tention that the General Counsel has failed to prove company knowledge of Hodge's
'union activities. Proof of the latter fact is, of course, a prerequisite which the Gen-
'eral Counsel must establish in order to sustain any contention that Hodge was dis-
criminatorily discharged. We turn now to evidence offered by the General Counsel
as it relates to this phase of the case.
Leland Merklein 5 testified to a conversation which he had with Eldred Rajhes,
group leader of the night shift, concerning the subject of union activity as it involved
Respondent's employees. This conversation occurred on the evening of May 25, 2
days before, the discharge of, Hodge. Merklein's credited and uncontroverted testi-
mony concerning this conversation is best set forth in his own words, as follows:
"He,[Rajhes] asked me if there was a union meeting held in Stuttgart the night be-
fore and I said I was surprised, I didn't know anything about it, and he said he heard
there was, and we got to talking, and he asked me who I thought was the one behind
it, and I said I heard Charles Hodge talking about it a while back, and he said he
didn't think too much of it, he just asked me, and he told me to keep quiet, and I
said I would, and that was about the end of the conversation."
In order to impute company knowledge of Hodge's union activity on the basis of
the foregoing testimony, it must be established that Rajhes was a supervisor within
the meaning of the Act. This matter was litigated at the hearing, it being Respond-
ent's position that Rajhes was not a supervisor within the statutory definition and
it General Counsel's position to the contrary. On the basis of all the evidence,
I find that the General Counsel has not established that Rajhes was a ,supervisor
within the meaning of the Act.6 Accordingly, company knowledge cannot be im-
puted - to the Respondent on the basis • of Merklein's testimony concerning his con-
versation with Rajhes on May 25.7
It will be recalled that the Union filed a representation petition on May 26. Plant
Manager Shank testified that he had no knowledge of any union activity at the
plant until he received a telephone call from a Board representative about 5 p.m.
on May 27, which was about 2 hours after Hodge's discharge on that date. There
is no direct evidence to show that Shank was aware of any union activity prior to
this time. Further , and even if it be assumed that this conversation occurred prior
to Hodge's discharge, there is no evidence that anything was said during this con-
versation linking Hodge's name with the filing of the petition.
There remains, however, vital and uncontroverted testimony which I find not
only establishes that Respondent was aware of Hodge 's union activities (or at least
suspected them) but which also reflects the moving motive for Hodge 's discharge.
On.May 29, 2 days after his discharge, Hodge paid a visit to Novicki at the latter's
home. Concerning, this visit Hodge credibly testified, "He asked me in and I went
in and talked , a little bit and I says, `John , I am not sore at you , I think a lot of
you'; and John says, `I think a lot of you, too. I know you had stool pigeons out
there, stool pigeons against me, tried to organize a union behind our back.' " Al-
though Novicki testified at the hearing, he made no denial of any of the foregoing.
As has been seen, it was Novicki who recommended Hodge's discharge.
In addition to the damaging admission which Novicki made to Hodge on May 29,
the other circumstances surrounding Hodge's discharge in themselves are demon-
strative of the pretextual nature of the reason advanced by Respondent for the
termination of Hodge. Although Shank testified that he had doubts about Hodge's
competency long prior to Hodge's discharge,8 it is clear that the immediate cause
5 Leland Merklein is the brother of Norman Merklein, the other alleged discriminatee
herein.
6 So as to avoid breaking the continuity of the above discussion , full consideration of
the evidence pertaining to Rajhes' supervisory or nonsupervisory status is reserved for a
succeeding section, herein.
I There is no direct evidence to show that Rajhes reported the substance of his con-
versation with Merklein to anyone vested with supervisory authority.
8 Novicki testified that on two occasions he criticized Hodge for leaving the stills un-
attended and that on one occasion he criticized Hodge for not cleaning up his work area.
I have no reason to doubt Novicki's testimony to this effect and Hodge's testimony that he
was never criticized for his work performance is not credited This, however, does not
BEAR BRAND ROOFING, INC. 1239
advanced by the Respondent for the discharge was the May 16 or 18 incident where
Hodge permitted the No. 2 still to become overheated. Novicki testified that there
is a danger of a flash fire if a still becomes too hot and Shank testified that if a still
was not properly tended, "it could blow up, it can catch on fire. Besides property
there is personal damage that can happen." While I have no doubt that the dangers
ascribed by Novicki and Shank are possible in case of gross negligence, I am con-
vinced that the situation permitted by Hodge on the day in question did not approach
this extreme, for it would be incredible to believe that if such was the case the
Respondent would permit Hodge to continue on the same job for 9 or 11 days
before taking any action against him. Novicki's excuse for this long delay was that
Shank was involved in the construction of a new felt mill and that "actually I didn't
get much time to see him, in fact, normally during the day I see Mr. Shank very
little because I am pretty busy myself." I reject Novicki's testimony to this effect
as not worthy of belief. If the danger which could result from Hodge's alleged
incompetency was as great as Respondent would have it to be, I cannot believe that
Novicki could not find time to call this to Shank's attention until some 9 or 11 days
later. Moreover, Novicki testified that before he fired anyone it was his normal
procedure to clear it with Shank "unless it is a case where proper discipline is
required at the right time." Again, and particularly in view of Novicki's authority
to take immediate action, it is inconceivable that he would delay so long in taking
any action against.Hodge if the incident was as serious as his testimony would
indicate.9
On the evidence as a whole, I am convinced and I find that the intervening cir-
cumstance between May 16 or 18 and May 27 which precipitated the discharge of
Hodge on the latter date was acquisition by the Respondent of some knowledge
or suspicion that Hodge was engaged in union activities. My basis for so finding
is predicated upon not only the inadequacy of Respondent's explanation for the
discharge of Hodge, but also because of uncontroverted evidence seldom adduced
in cases of this nature, i.e., Foreman Novicki's admission to Hodge, subsequent to
Hodge's discharge, that he knew Hodge was trying to organize a union "behind our
back." 10 Indeed, under the circumstances, this was tantamount to an admission
that Hodge was discharged 'because of his union activities." Accordingly, and in
view of all the foregoing, I find that the Respondent discharged Hodge in violation
of Section 8(a) (1) and (3) of the Act.ia
D. The alleged supervisory status of Eldred Rajhes
With an approximate complement of 50 production employees, it is Respondent's
position that General Manager Herbert Shank and Foreman John Novicki are the
only persons with supervisory status under the definition of the Act. The General
Counsel would include Eldred Rajhes in this category.
affect my crediting Hodge's undenied testimony of his conversation with Novicki on
May 29. As stated by Judge Learned Hand in N L.R B v. Universal Camera Corp., 179
F. 2d 749 (CA. 2), "It is no reason for refusing to accept everything a witness says,
because you do not believe all. of it ; nothing is more common in all kinds of judicial
decisions to believe some and not all."
9 Employees Fred Diereks and Robert Hunzinger, the former a Respondent witness, each
credibly testified to an occasion where they permitted the temperature on the stills to run
up to an excessive degree. According to their credited testimony, the only action taken by
Novicki was a caution to "watch it." There is no evidence that Hodge permitted the
temperature to rise excessively before the occasion in question
1" In this regard the credited and uncontroverted testimony of employee Loren McCord
is noteworthy. Thus, McCord testified that about a month before the discharge of Hodge,
Foreman Novicki asked him if he had ever heard Hodge engaged in union talk McCord
testified that he replied in the affirmative and that he told Novicki he heard Hodge talk
union all the time he (McCord) had been there Inasmuch as it was not shown that at
the time of this conversation Hodge was actually engaged in any organizational activity,
this conversation cannot establish company knowledge as such It is significant, however,
as being indicative of the fact Novicki was on the watch to ascertain knowledge of any
union activity that might occur among Respondent's employees.
n That Respondent discharged Hodge for the reason that he engaged in union activities
is further evidenced by Respondent's subsequent acts and conduct in which the Respondent
displayed its antipathy toward the Union. The evidence in this regard is discussed under
the section entitled "Interference, restraint, and coercion."
12 "The existence of some justifiable ground for discharge is no defense if it was not
the moving cause." Wells. Incorporated v. N.L.R.B., 162 F 2d 457, 460 (C.A. 9). See
also N.L.R.B. v. Jamestown Sterling Corp , 211 F. 2d 725, 726 (C A. 2).
1240 DECISIONS OF :NATIONAL .LABOR RELATIONS BOARD
Rajhes holds the position of leadman on the night shift.13 This shift, which
operates from 3 to 11 p.m., overlaps with the day shift by about several hours.
During the period relevant to this proceeding approximately eight production em-
ployees, including Rajhes, worked on the night shift.14
Rajhes is hourly paid like the other employees but receives 20 cents more per
hour. He has, however, no authority to hire or fire nor can he effectively recommend
any such action.15 Further there is no evidence to indicate that he has any authority
to discipline or suspend an employee for failure to carry out any instructions he
might give or for any other reason. In fact, Rajhes is without authority to gfant
even such minor favors as time off.
It appears to be the General Counsel's position that Rajhes has authority to
"responsibly direct" the employees in their work. In this connection, the evidence
reflects that Foreman Novicki, who remains on the job for the first several hours
of the night shift, lays out the. work to be performed by the night-shift employees
before he leaves the plant. It also appears that the men on the night shift generally
continue to do the same type of work which they performed when the foreman
was still present. Rajhes, who is also engaged in the performance of his regular
work,16 has instructions to call the foreman at his home in the event any problem
should arise.
There is but fragmentary evidence in the record pertaining to Rajhes' direction
of the night-shift employees. In this regard Leland Merklein testified as follows:
Q. (By Mr. ORLOVE.) You said you heard him give orders, can you give
an example of what you heard?
A. I have been on the night shift where he had the front men come back
and help relays up on the rear, there was a break.
Q. You mean call them up from the rear?
A. From the front to the rear.
Q. What would they do?
A. Relay the, valve.
Q. What were they doing before?
A. At the time they wouldn't. be doing anything on account of the belt
would be broke so he called them back.
The only other testimony on this subject is that of Wyn May, an ex-employee
of the Respondent, who testified as follows:
Q. Do you know Eldred Rajhes?'
A. Yes.
Q. Who is he?
A. As far as I know he-is night foreman.
Q. How do you know this?
A. Because I worked the night shift and he gave me orders of what to do.
Q. Can you give us an example of what orders?
A. How to lays up, walk up on the catwalk. and lays up the saturator.
Q. What would you be doing before that?
A. I had been doing several jobs.
Q. Would be tell you to stop what you were doing and go up the catwalk?
A. Yes.
Q. When, if ever, did Rajhes ever change the perforated production to
straight production?
A. One night we had been running perforated and the paper broke and I
was up on the catwalk, helping to relays and I presume he was going back
over the perforated felt.
Q. He had some control over production?
A. Yes.
Q. Has he done this on many occasions?
A. I wouldn't say too many.
In view of all the foregoing, I find that the General Counsel has failed to
establish that Rajhes is a supervisor within the meaning of the Act. At best the
evidence shows that Rajhes, to use Board terminology, "served merely as a conduit
13 The night shift operates only when there is sufficient work to justify the need, which
was the case during the period relevant to this proceeding
14 This is excluding the men who tend the boilers and stills. The shifts involving these
employees operate on a 24-hour basis
15 This according to the credited and uncontroverted testimony of Shank.
16 This is in accordance with the credited testimony of Shank.
BEAR BRAND ROOFING, INC.; 1241
for the, orders',of the foreman." From )the evidence presented I conclude 'that the
instructions which -Rajhes passed on to the employees were routine in nature and
did not require the use of independent judgment. Themere fact that Rajhes was
"in charge" of seven employees for, the balance of the night shift is not sufficient
to warrant, a finding that-he,is a supervisor within the meaning of Section 2(11)
of the Act.17 See The Woodman Company, Inc., 119 NLRB 1784, at 1787.
E. The alleged discrimination against Norman Merklein
Although the complaint technically alleges that the Respondent discriminatorily
terminated the employment of Norman Merklein on July 30, 1960, the gist of the
General Counsel's case is that the Respondent discriminatoriy failed or refused to
reinstate Merklein to his former position at the end of an absence for a knee operation.
Merklein began his employment with the Company on January 11, 1960, and
worked in the capacity of stillman. The union activities in which he engaged (and
because of which the General Counsel alleges he was discharged) have been here-
tofore described in the section entitled "The issues; background."
In the middle of May, Merklein notified Foreman Novicki and Plant Manager
Shank that it was necessary for him to have an operation performed on his knee due
to an old injury. -According to,Merklein he told Shank that he would not be able
to,-do any work for 2 weeks after .the operation, but that in 3 or 4 weeks it would
be possible for him to do a little work. iS It is undisputed that Shank agreed to
hold Merklein's job open for him for about this length of time.
Merklein's last day of work for the Company was on May '24. The operation
was performed on May 26 and he was released from the hospital on May 29.19
Merklein remained idle for an initial convalescence period of about 21/z weeks,
following which he went to his father's farm where he assisted his father by en-
'gaging in such work as running a combine and driving a truck. Thereafter from
time to time he reported to the doctor for examination . Dr. George Osborne testi-
fied that on June 20 he instructed Merklein to increase his regime. Following his
June 20 visit to the doctor Merklein failed to keep a subsequent medical appoint-
ment and he did not show up again until July 24. Dr. Osborne credibly testified
that on this occasion he recommended to Merklein that he resume full activity.
Merklein, who in the meantime had continued to work on his father's farm, did not
report to the Company until July 30. He did, however, visit the plant on two
occasions early in June shortly after his operation . Merklein testified that on the
first occasion he saw Novicki and told him , "Well, it looks pretty bad, it looks like
it might be quite 'a little while." A little later on this same day, according to Merk-
lein, Novicki came up and told him that "there would be no politics ." Merklein testi-
fied further that on the occasion of this second visit Novicki again came up and said
to him that "There wouldn't'be any politics." Merklein said that this time he asked
Novicki what he meant and that Novicki replied, "You know what I mean, besides
you aren't supposed to be in here taking up these boys' time while the Company is
paying them." -
As indicated above, Merklein reported back on July 30, purportedly to see about
his job, and at this time he spoke to Plant Manager Shank. Merklein testified that
when he asked Shank about a job, Shank said, 'Do you mean to say that you ask
for a job'and then came out ands t on us. You told me you was going to be
gone 6 weeks, you didn't come back. Don't you think you should have been kicked
out." Merklein testified that to this he answered "no" and started to walk toward
the door. However, Merklein testified that at this point Shank relented and said,
"Come back, we will work something out in a week or two." Although on direct
examination Merklein testified that he left Shank's 'office at this point, he con-
ceded under cross-examination that during this conversation he told Shank that his
old job was still a little heavy for him. He also conceded that when Shank sug-
gested he might have something for him on the production line he told Shank that
he liked his old job better and that work on the production line "required a lot
of standing."
Several days after this conversation Merklein received a separation notice, a stand-
ard form issued by the Respondent, which bore the date of July 29, 1960.20 He
"There is no evidence to indicate , that management ever advised the employees that
Rajhes was a foreman , hence it cannot be said that he was vested with any ostensible
authority.
1$ Shank testified that Merklein said he would be out for a period of about 3 weeks. -
19 The credited testimony of Dr. George Osborne`
20 Darlene Hindman , Respondent 's office manager, credibly testified that she prepared
this notice after a periodic check of the payroll, which was in accordance with normal com-
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned to see Shank about this matter on August 2. Shank explained that the
separation slip had been issued so that he could draw unemployment compensation.
Shank on this occasion reiterated that he would try to find something for Merklein,
including the possibility of getting him a job in the felt mill which was then under
construction. Merklein did not return to the plant again to see about a job and
none was offered him as of the time of the hearing.
F. Conclusions re Merklem's termination
Upon a consideration of all the foregoing facts it is clear, and I find, that the
General Counsel has not made out a case of discrimination as against Merklein.
In the first place, and considering the testimony in a light most favorable to
Merklein, it will be recalled that before leaving for his operation Merklein notified
his employer that he would be absent at most for no longer than 6 weeks. Instead,
he did not report back to work for a period of approximately 10 weeks. In the
meantime he took no steps to notify the Respondent that it might be necessary for
him to remain out for a period longer than his original estimate. Certainly, the
Respondent could not be expected to hold his job open for an indefinite period of
time. This is particularly true where, as here, Merklein failed to give the Respond-
ent any evidence that he desired to return to his job upon the expiration of his
original leave of absence.21 On this ground alone I would dismiss the case against
Merklein.
Secondly, not only did Merklein delay in reporting back to the Respondent for
some 5 days subsequent to medical advice that he resume full activity, but, as
we have been, Merklein failed to keep an appointment with his doctor prior to
his last visit on July 24. It is entirely possible that he would have received an
earlier release if he had reported back to his doctor as directed. It is thus evident,
and I conclude, that Merklein willfully or negligently delayed in reporting back to
work as soon as he was able.
Thirdly, we have seen that on reporting back on July 30, Merklein notified the
Respondent that (1) he was not yet able to perform the job which he had held be-
fore,22 and (2) he was -not interested in a job on the production line. Indeed, from
the evidence presented it is difficult to determine just what Merklein did have in
mind when he returned to see Shank on July 30. In view of his demonstrated
attitude toward any work it becomes quite apparent why Shank did not offer•him
a definite job at this time.
Finally, there is not direct evidence to show that the Respondent had any know-
ledge of Merklein's union activities Even if it be assumed arguendo that an infer-
ence of Merklein's union activity could be inferred from his" conversations with
Novicki and Shank, the facts and circumstances heretofore discussed would not
warrant a'finding of discrimination; union activity cannot, freeze a man to his job
indefinitely.
In conclusion, I find that the General Counsel has not established that the
Respondent terminated Merklein in violation of Section 8(a) (3) and (1) of the Act.
G. Interference, restraint , and coercion
It is undisputed that Plant Manager Shank called employee Leland Merklein into
his office in the late afternoon of May 27 shortly after a telephone conversation with
a Board agent in which he was advised that the Union had filed a representation
petition. Merklein credibly testified that when he entered the office Shank asked him
if he had heard about the Union and that he asked him also if he was the one who
was bringing the Union in the plant.23
Wyn May testified that on June 2, when he worked as an employee for the Re-
spondent, Plant Manager Shank asked him if a union meeting was to be held
pany procedure. The notice was prepared and mailed at her own behest without Instruc-
tions from anyone. The notice stated the reason for the termination as being "Employee
has not returned to work."
21 Although there was some turnover among the stillmen (which need not be detailed
here ), the evidence reflects that Merklein 's job was not filled until June 20.
ra In addition to his job of maintaining proper temperature in the stills , Merklein's
duties included the physical work of jacking up railroad cars when the occasion demanded
0 Shank conceded calling Merklein to his office on this occasion and that he asked him
if he knew what was going on by way, of union activity. Shank said that out of all the
employees he selected Merklein for questioning because he had in mind promoting
Merklein to the position of group leader.
BEAR BRAND ROOFING, INC. 1243
that night. Accoiding to May, Shank then told him that if there was a meeting and
that if he attended, he (May) should be ready to suffer the consequences. May
quit the Respondent's employ about 8 days after this conversation. Shank denied
that he ever threatened May but said that on one occasion he spoke to him because
an employee told him that May was quitting. On this occasion, according to Shank,
May stated that he wanted no part of the union deal on either side. I do not
credit Shank's demal of the threat to which May testified. At the time of the
hearing May was employed by another company. There was no showing of any
bias or cause for bias.against the Respondent on'the part of May. He impressed'me
as an honest witness and his testimony related above is credited. -
John McGinley, a truckdriver employed by the Respondent, testified that in the
latter part of May or early June, Plant Manager Shank asked him what the truck-
drivers thought about the Union and that he answered Shank by saying that these
employees did not want the Union but that they wanted more money. McGinley
testified that Shank then told him that "we should keep our ears and eyes open and
let him know what was going on." About a month after this conversation, accord-
ing to McGinley's testimony, Shank asked him if he knew anything about a union
meeting that was supposed to be held on the following Saturday night. McGinley
said that on this occasion Shank also told him that he knew three people in the
plant who were working with the Union but that he did not know their names. All
of the foregoing testimony of McGinley is credited and uncontroverted.
Employee Jesse Smith testified that in the latter part of June, while at work,
he asked Shank what would happen if the Union came in and a strike occurred.
Smith testified that during this conversation Shank asked him if he had heard any
of the boys talking union and if he knew who was behind the Union. The ques-
tioning of Smith by Shank is undenied and it is credited.24
I findrtffat-the foregoing instances of interrogation are not instances of objective
inquiry made with a view to determine the propriety of recognizing a ` labor or-
ganization, nor are they "casual friendly, isolated instance[s] of interrogation by
a minor supervisor." 25 Rather, I find them to be a deliberate attempt to identify
union adherents with a consequent coercive effect. As such, and including the fact
that the interrogations were not isolated and occurred in the context of other un-
fair labor practices, I find such conduct by the Respondent to be violative of Section
8 (a) (1) of the Act.26 Similarly, Shank's threat to May constituted an independent
violation of Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that the Respondent engaged -in unfair labor practices
in violation of Section 8 (a) (1) and ( 3) of the Act , it will be recommended that the
24 Counsel for the General Counsel read to Smith a portion of the latter's affidavit
wherein Smith said that one of the company owners, a Mr Cross, purportedly told him
that the plant would be locked up if the Union- came in Although Smith affirmed that
he made the statement, the affidavit was read to Smith without a proper foundation being
laid therefor. Moreover, there is no allegation in the complaint that Mr . Cross, who re-
sides in Oklahoma, participated in any unfair labor practices. Cross did not testify nor
was he present at the hearing. Under the circumstances, and contrary to General
Counsel's position In his brief, I will find no unfair labor practice upon the basis of
Smith's testimony as it involved Cross.
25 Blue Fla8h Express, Inc., 109 NLRB 591
2e The amended complaint alleges that the Respondent engaged ' in illegal surveillance of
its employees' union activity. Counsel-for the General Counsel contends that this allega-
tion is premised upon Shank's conduct in stating to employee McGinley that he keep his
eyes and ears open and let him (Shank) know what was going on. Inasmuch as there is
an absence of any evidence to show that the Respondent attempted to infiltrate employee
meetings, or that It employed spy techniques or that it clandestinely watched employee
union activities, the allegation that Respondent engaged in surveillance is hereby dis-
missed See Donald L Trettenero, et al, d/b/a Trettenero Sand & Gravel Co , 129
NLRB 610.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It will be recommended that Respondent offer employee Charles Hodge immedi-
ate and full reinstatement to his former or substantially equivalent position , without
prejudice to his seniority and other rights and privileges , and make him whole
for any loss of earnings he may have suffered by reason of the discrimination against
him, by payment to him,of a sum of money equal to that which he would have earned
as wages from the date of the discrimination against him to the date of offer of
reinstatement , and in a manner consistent with Board policy set forth in F. W.
Woolworth Company, 90 NLRB 289.
It will also be recommended that the Respondent preserve and, upon request,
make available to the Board payroll and other records to facilitate the computation
of backpay.
It will also be recommended, in view of the nature of the unfair labor practices the
Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union of Operating Engineers , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Charles
Hodge, 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.
4. By engaging in the conduct set forth under section III, above, entitled "Inter-
ference, restraint, and coercion ," Respondent interfered with, restrained, and coerced
its employees and has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1)of the Act.
5. The Respondent has not engaged in surveillance as alleged in the complaint.
6. The Respondent has not engaged in a violation of Section 8(a)(1) or (3) by
its terminating the employment of Norman Merklein.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
• SUPPLEMENTAL INTERMEDIATE REPORT
-Pursuant to the Respondent 's claim that the General Counsel did not produce for
its examination a statement of witness Charles Hodge dated August 16, 1960, the
Board; by order dated July 28, 1961, ordered that the record in this proceeding be
reopened and that "a further hearing- be held . . . with respect to, and limited to,
cross-examination of witness Hodge on his August 16 , 1960 , statement to the General
Counsel; and in that connection therewith the General Counsel shall produce for
Respondent such statement of August 16, 1960 ." i Accordingly, a further hearing
was held before the duly designated Trial Examiner at Kansas City, Missouri, on
July 21, 1961.
The General Counsel furnished the Respondent with a copy of Hodge 's state-
ment dated August 16, 1960, in advance of the hearing herein; the General
Counsel also, made Hodge 's original statement available at the hearing, although
Respondent conceded that it did not question the authenticity of the copy with
which it, had been theretofore furnished. At the hearing counsel for the Re-
spondent stated that he did not wish to cross -examine witness Hodge with respect
to the aforementioned statement . The hearing thereupon was closed . There having
been no further evidence adduced, the Trial Examiner hereby adopts and reaffirms
his Intermediate Report and Recommended Order dated January 17, 1961.2
1 No claim was made by the Respondent at the hearing that the General Counsel
allegedly failed or refused to furnish all statements of witness Hodge.
2 Respondent now contends that the Board cannot cure any error of the General Counsel
for allegedly failing to furnish the affidavit of Hodge at the original hearing by now re-
opening the record. Plainly this contention is without merit. Among other reasons,
suffice it to say that the record here was opened at the Respondent 's request.