Big Three Welding Equipment Co.

National Labor Relations Board - Board Decisions

Feb 12, 1964

145 N.L.R.B. 1685 (N.L.R.B. 1964)

BIG THREE WELDING EQUIPMENT COMPANY 1685
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 2107
Clark Building, 701-17 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No.
471-2977, if they have any question concerning this notice or compliance with its
provisions.
Big Three Welding Equipment Company and Johnnie Cecil
Gripon , Ruble C. Gentry, Jr., Guy W. East . Cases Nos. 23-CA-
1575-1, e23-CA-1575-0, and 03-CA-1585. February 10, 1964
DECISION AND ORDER
On August 2, 1963, Trial Examiner Leo F. Lightner 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 attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting argument, and a request for
oral argument.' The General Counsel filed limited exceptions to
the Trial Examiner's Intermediate Report together with 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 [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed.
The Board has considered the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as noted below :
The complaint alleges, inter alia, that Oliver Stansbury, Respond-
ent's plant superintendent, told an employee, R. C. Gentry, that the
latter's discharge was occasioned by Gentry's organizational activities.
The Trial Examiner recommended dismissal of this allegation because
lie found no evidence upon which any such statement could reasonably
be inferred. He acknowledged, however, that the intended import of
what Stansbury actually said to Gentry at the time of the latter's dis-
charge "may have been" as alleged in the complaint.
According to Gentry's credited testimony, he was told by Stansbury
that he was being fired because he was dissatisfied. Gentry replied,
"That is not the reason you are firing me and you know it." Stans-
i Respondent ' s request for oral argument is hereby denied , as in our opinion , the record
and briefs adequately present the issues and positions of the parties.
145 NLRB No. 163.
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bury then said, according to Gentry, "No, it's not and you know what
the reason is and I know what the reason is." This conversation took
place the morning after an evening meeting between Stansbury and
a group of employees, for whom Gentry was the chief spokesman.
Spirited objections had been made by the employees to Respondent's
failure to keep certain promises of pay increases and other benefits.
In this context, and in the light of the other circumstances, we believe,
unlike the Trial Examiner, that Stansbury's aforementioned state-
ment to Gentry unmistakably referred to Gentry's union or con-
certed activities. Accordingly, we find that this statement further
supports the Trial Examiner's finding of an 8(a) (3) violation with
respect to Gentry's discharge, and constitutes an independent viola-
tion of Section 8(a) (1) of the Act, as urged by the General Counsel.
General Counsel's exception in this regard is therefore well taken.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
'The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph
Upon the entire record in these cases, and pursuant to Section 10('c) of the National
Labor Relations Act, as amend, the National Labor Relations Board hereby orders that
Respondents, Big Three Welding Equipment Company, its officers, agents, successors,
and assigns , shall:
The Appendix attached to the Intermediate Report is hereby amended by adding the
following immediately below the signature line at the bottom of the notice:
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces
INTERMEDIATE REPORT AND RECOMMEND ORDER
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Orange,
Texas, on May 7, 8, 9, and 10, 1963, on the complaint of General Counsel, as
amended, and the answer of Big Three Welding Equipment Company,' herein
referred to as Respondent, as amended 2 The issues litigated were whether the
Respondent violated Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the
Act. The parties waived the filing of briefs and oral argument presented by the
General Counsel and Respondent has been carefully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation, maintaining a place of business at Orange,
Texas,3 where it is engaged in the manufacture of oxygen, acetylene, nitrogen, and
'Complaint amended at hearing in order to correctly reflect name of Respondent.
2 The charges herein in Cases Nos 23-CA-1575-1 and 23-CA-1575-2 were filed on
February 20, 1963, and in Case No. 23-CA-1585 on March 13, 1963. A consolidated com-
plaint was issued on March 22, 1963.
a It appears from the evidence that Respondent's principal place of business , or prin-
cipal office, is located in Houston, Texas, and that Respondent maintains facilities at
Odessa, Houston , and Orange ; however, we are here concerned only with the facility main-
tained at Orange, Texas.
BIG THREE `WELDING EQUIPMENT COMPANY 1687
argon . During the 12 months preceding the issuance of the complaint , on March 22,
1963, a representative period, Respondent sold and distributed products of a gross
value in excess of $50,000 to customers outside the State of Texas, and shipped such
products from points within the State of Texas directly to points outside the State of
Texas. The complaint alleges, the answer admits , and I find that said Respondent is
engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that the International Broth-
erhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-
CIO, herein referred to as Boilermakers, is a labor organization within the meaning
of Section 2(5) of the Act .4
The complaint alleges, the answer denies, and I find that on or about November 8,
1962, certain employees of Respondent associated themselves together and formed
an employee representation committee or plan which existed and/or exists for the
purpose of dealing with Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, and/or conditions of work, which employee
representation plan is, and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.5
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The principal issues raised by the pleadings and litigated at the hearing are whether
the Respondent: (a) interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, in derogation of Section 8 (a) (1)
of the Act by threats, promises of benefits, interrogation, discharging employees
for concerted activity, and procuring employees to execute affidavits refuting the
Union, or, (b) whether Respondent's discharge of Guy W. East, on November
20, 1962, and Ruble C. Gentry, Jr., and Johnnie Cecil Gripon, on February 18,
1963, were unfair labor practices in derogation of Section 8(a)(3) of the Act.6
Respondent generally denied the commission of any unfair labor practices. During
the hearing, Respondent, by amendment, asserted that Gentry and East are supervisors
within the meaning of Section 2(11) of the Act. Thereupon, General Counsel
moved to amend the consolidated complaint to allege that the discharges of Gentry
and East were in violation of Section 8(a) (1) of the Act, if the facts establish they
were supervisors.
B. Supervisory personnel
It is undisputed that H. K. Smith, president, and Oliver Stansbury, plant manager
(superintendent), are supervisors within the meaning of Section 2(11) of the Act.
The complaint alleges, Respondent denies, and I find that Major Butler, personnel
director, and Harold Johnson, office manager, are and have been agents of Respond-
ent, acting on its behalf, and are supervisors within the meaning of Section 2(11)
of the Act.7
C. Background and sequence of events
Respondent 's compound , or facility, at Orange includes a large building which
contained two "plants " and a sales office, also a warehouse and -a carbide house.
The Products Respondent delivered to customers include all sorts of welding equip-
ment, such as rods, acetylene gas, and welding machines . Products delivered by
pipeline , cylinder, or tank truck, are nitrogen gas and liquid oxygen and nitrogen.
The "plants" which produced the oxygen and nitrogen are described infra, section E.
In October 1962, Respondent employed approximately 28 individuals at the
Orange facility, exclusive of Johnson , McAfee, Stansbury and Maples, whose duties
as supervisors are outlined infra, sections D, E, and F. Approximately 12 of the 28
employees were engaged as truckdrivers, including dispatchers , and the others were
engaged in various duties in the facility, including 4 "plant operators" and 4
"helpers," whose duties appear infra, section E.
4 However , the Boilermakers are not involved in the litigation herein.
5 Gullett Gin Company, Inc., 83 NLRB 1, enfd . as modified 179 F. 2d 499 ( CA. 5),
reversed ( on other grounds ) 340 U S. 361.
6 During the hearing the allegations of paragraph 7(h), (k), and ( 1) were withdrawn.
7 The allegations relative to W R Shannon, office manager at Beaumont, were with-
drawn on motion of General Counsel. Accordingly, his status as a supervisor is of no
consequence
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruble C. Gentry, Jr., alleged discriminatee, credibly testified that in the early
part of October 1962, there was considerable dissatisfaction with working conditions
at Respondent's Orange facility. Gentry asserted that he was the one who took the
initiative to ascertain if the employees were interested in organizing and getting
recognition. Gentry sounded out his brother-in-law, Johnnie Cecil Gripon, alleged
discriminatee, then talked, individually, to a number of employees about the
possibility of "going union," and found a unanimity of favorable opinion. Gentry
enlisted the aid of Gripon, Guy East, truck dispatcher and alleged discriminatee,
and Robert L. Lyle, office clerk, in organizing a meeting. About the middle of
October a meeting was held at Joe Bailey's Fish Camp at Bridge City, Texas, which
was attended by 15 employees. Gentry was elected as "representative or spokesman"
for the group. The following day Robert Lyle prepared slips stating "I agree to
organize," then each individual who had indicated a willingness "to go union"
was asked to sign such a slip. A second meeting was held approximately 3 days after
the first meeting, and a day or two thereafter Gentry and Rufus Gearen 8 went to
the Boilermakers and talked to Flowers and Pearson, Boilermaker officials, about
obtaining their aid in the organizing effort. Gentry was given authorization cards
and advised that if he would obtain the necessary signatures and return them the
Union could act. The following 2 or 3 days, with the help of Gripon, Gentry
obtained signatures from 23 or 24 employees .9 Other meetings of the employees
followed, culminating in a trip to Houston, on November 5, by Gentry and Robert
Lyle for a conference with Major Butler, whom Gentry described as "a friend of
mine" to get advice. Butler advised Gentry that if Gentry would agree to Butler
talking with President Smith, "You won't have to go union. He will work it out
with you." The status of Butler as a supervisor, at this time, is obscure. However,
it may be inferred Butler was a channel of communication with President Smith.
The following evening Butler, accompanied by Louis Kominczak, described by
Smith as being in charge of all transport equipment, appeared in Orange and
discussed the troubles at the plant with Gentry. Butler, at that time, advised
Gentry he had been sent by Smith. On the morning of November 7, Butler, after
talking to a number of the employees individually, called Gentry to the office
and in his presence called Smith by telephone. Gentry credibly testified that Butler
advised Smith that he thought that Smith should come down and handle the matter
personally, that the men did have problems which had not been exaggerated, and
that Gentry was representing the employees.10 At that time, Gentry also talked to
Smith, and Smith asserted that he was not aware of the problems, but that he
would come to Orange and would correct them. Gentry quoted Smith as saying,
"No man will lose his job over this. I think you are doing a fine job and I am
proud to see a man stand up for his rights." During the conversation Gentry advised
Smith that he was representing 95 percent of the men. I find it reasonable to infer
that Butler was acting for, and on behalf of, Smith.
It is undisputed that Smith arrived at the Orange plant about 10 a.m., on
November 8, went to Gentry's work station, and requested Gentry to call the
employees ogether for a meeting. Smith acknowledged that, at the request of
the employees, members of the Orange plant management were excluded. It is
likewise undisputed that the meeting continued until approximately 3:30 p.m.,
during which time Smith took the entire 28 employees to lunch at the Orange
Bowling Palace. While Gentry spoke first, each man spoke up and related his par-
ticular problems. Gentry related that the night before this meeting, the group had
met in his house and drew up a list of things that they wanted. This list was
presented to Smith during the November 8 meeting, and he agreed to all of the
requests. Gentry also inquired, "Mr. Smith, what is the possibility of us having
our own union." Smith responded, "No sir, no siree I have run this company all of
my life and will continue to run it until the day I die, and no union is ever going
to run it for me. Now, you are a good boy, but that is just the way I stand.
B Misspelled in the early portion of the record as Gearon.
0 Gentry's card is dated October 20, 1962. There is no contention that these cards were
ever delivered to the Boilermakers or that the Respondent had any knowledge of their
existence
10 Major Butler was not called as a witness. Smith asserted that he did not think that
Butler had anything to do with the telephone call, that he could not quite remember all
the details, that he did not know if he had a conversation with Gentry a day or two before
the November 8 meeting, then asserted, "I don't know, but I would take Mr. Gentry's word
for it if he wanted to answer that question." Smith then asserted that it might have
been Genry who called him I credit Gentry's testimony relative to these events
BIG THREE WELDING EQUIPMENT COMPANY 1689
However, I think it is a good idea to have a representative on your own level to bring
your problems to management. That way, we won't be in the dark like we was on
this case " The employees then met and agreed to accept Smith's word relative
to the changes, some (including East) urging that it be given in writing. The
testimony of Gentry relative to the foregoing events, including Smith's reaction when
questioned about the employees having a union, were substantially corroborated by
Guy East, Johnnie Cecil Gripon, Phil Lyle, and John Haure, witnesses for the Gen-
eral Counsel 11 Lyle and Haure are still employees.
Gentry related that he then met with Smith, Major Butler, Stansbury (plant
superintendent), and Brandt.12 It appears undisputed that during the meeting with
the employees Smith had agreed to make the various changes which the employees
requested. Gentry related that Smith advised Stansbury and Brandt, "If these
men had of went a union tomorrow morning, it wouldn't have been their doing it.
We would have forced them to. I have never saw such an abused bunch of men."
Smith at that time advised Stansbury that he was in full charge of the Orange plant.
Previously Stansbury had been in charge of the plant portion and Johnson had
been in charge of the office, sales, and truckdrivers. At this time Johnson was trans-
ferred to Beaumont, and McAfee, who had been assistant office manager, was made
office manager.i3
On November 9, Smith wrote to Stansbury enumerating changes "decided upon
at a meeting with our plant operators, helpers, drivers, and other personnel, to take
effect immediately." They are enumerated as: (1) Stansbury to supervise the entire
Orange operation, except sales (inferentially left under the direction of Brandt),
with Maples as his assistant; (2) trucks not in good condition, "some of which have
11 Smith first asserted that there was no "spokesman" for the group at the November 8
meeting, that at his insistence each man spoke for himself. Smith then could not recall
if Gentry had advised Smith that he was elected as spokesman for the employees, acknowl-
edging "he might have told me that," but Smith did not remember it. However, Super-
intendent Stansbury described Gentry as the employees' "spokesman." Smith acknowledged
that lie assured the employees that he wanted to hear the last gripe they had about any-
thing and that he had guaranteed them complete immunity from anything Smith
"thought" that Butler was present at the meeting, and acknowledged that Butler night
have spent the prior night in Orange. Smith also acknowledged that Gentry "might have
had" a list of requests in his hands Smith first asserted "absolutely not," in answer to a
question of whether Gentry had inquired if they could have a labor organization, then
asserted that there was no discussion of a labor organization "to the best of my recollec-
tion." Smith flatly denied knowing whether the Orange employees were organizing a
union on November 20, when East was discharged. Respondent produced as witnesses
employees Curtis Lafleur, Robert Brinson, Rufus Gearen, Elmer Reynolds, and Jerry Don
Wiggins Only Reynolds and Wiggins were questioned as to what if anything Smith said
relative to a union, on November 8 Reynolds asserted that Smith said that they did not
need a union, he could not recall anything else, then asserted that he was not at the
meeting all the time Reynolds then recalled, upon prompting by the General Counsel,
that Smith had advised the employees that he (Smith) could do anything for the em-
ployees that a union could do ; that Gentry asked Smith about starting a union just
within the Company and Smith responded that he thought it would be better for the men
to do their own talking, that he had run the Company for a long time and no union would
ever run it for him. Wiggins first "did not remember" when asked if Smith was asked if
he would object to the employees having a company union; then having recalled such a
question did not recall the answer; then remembered something was said about a union but
did not remember what it was. Wiggins then recalled that Smith indicated that short of
a union he had no objection to the employees appointing a representative ; then acknowl-
edged that Smith was advised, on November 8, that Gentry had been elected to represent
the employees. Smith's denial that a union was mentioned at this meeting is not credited.
12 Brandt was described as district manager (apparently in charge of sales ) over the
Sabine area which included the Beaumont, Port Arthur, and Orange offices. He was
Office Manager Johnson's immediate superior. Brandt had demised at the time of the
hearing.
11 Smith had difficulty "remembering" these events. He had "an idea" Stansbury had
lunch with the group, then did not know whether he did or not, then was sure he did
He "might have" had a conversation with Stansbury, after talking to the employees, "that
would have been the usual procedure." He did not recall if Butler, Gentry, or Brandt was
present when he talked to Stansbury Stansbury, however, corroborated Gentry's testi-
mony that Smith met with Stansbury and Brandt, and that Gentry was present when
Stansbury was put in charge of the entire plant and advised about the matters covered in
Smith's letter of November 9.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no brakes," were to be replaced with the assistance of Avis; 14 (3) Gentry was to
check on Blue Cross so as to secure maternity benefits as part of the insurance pro-
gram; (4) all hours worked must be put on timecards, and company policy to pay
for all hours worked was reasserted; (5) the same 4-hour standby time, allowed
in Houston, was to be allowed in Orange (standby time was described as having
a driver available, on call at home, on weekends, for emergencies); (6) job classifica-
tions were to be provided, with the understanding that men could be shifted to
other jobs as the need arises; (7) payrolls were to be studied by Avis and Smith
to determine inferentially, the matter of raises; (8) sick leave was to be allowed
for employees with 2 years' seniority, in case of sickness or accident; (9) overtime
to be paid on a daily rather than weekly basis; (10) safety equipment should be
kept up at all times and Stansbury should designate someone to see that safety
equipment is properly maintained; and (11) Smith commented that while he did
not enjoy the (many complaints) he believed they should "take a good look at them
and above all be fair and still get a good day's work." He observed that with
existing relations there should be improvement in employee relations in the future.
Gentry asserted that Smith returned to Orange on Monday, November 12, and
advised Gentry that he came to Orange "to finish this thing up," asserting that he
did not want to send anyone, but wanted to come himself and be sure it was done.
At a meeting of Smith, Avis, and Stansbury, the employee roster was studied and
each man, except two, was given a "salary adjustment." Stansbury advised Gentry
that he was being given an 8-cent an hour raise , bringing him to $1.98 per hour,
that when he started "shifting" and had been shifting for 30 days he would be raised
to $2.10, and after he was "shifting" without Curtis LaFleur (an experienced opera-
tor), who was his first "helper," he would be given an additional 18 cents, bringing
his rate to $2.28 per hour. It is undisputed that other pay raises were granted.
On Saturday, November 17, four of the drivers advised Gentry that they had
been advised by Guy East, dispatcher, that they would not be paid standby time.
On the day prior, East had advised Gentry that Stansbury had jumped him about
the hours his men were working. Gentry suggested they sit down and discuss the
problem with Stansbury. East credibly testified that several of the drivers com-
plained that they were not receiving overtime and other working conditions which
existed in Houston, contrary to the promises of Smith. As a result of these com-
plaints East discussed the matter with Brandt, district manager, Stansbury, super-
intendent, and McAfee, office manager, on Saturday, November 17. East described
a number of drivers as being present during the conversation , including Phil Lyle,
Tom Sonnier, Richard Gardiner, Henry Bertrand, and Guy Jones.15 East related
that Brandt asserted that they must have misunderstood Smith Thereupon East
stated that Smith was supposed to send a letter, relative to these matters, which he
and the drivers had not seen. Stansbury then went to his desk, obtained Smith's
letter of November 9, perused it, permitted Brandt to examine it , but it was not
shown to East or the others. Brandt then asserted that Harry Smith had been mis-
understood . East then "stomped out" then went home.16 The circumstances of
East's discharge on November 20 are considered infra, section D.
On December 1 a party was held which was attended by the employees. Smith
and his wife, as well as Major Butler, were in attendance. Gentry credibly testified
that Smith made certain observations and statements including the fact that he was
glad to see that the employees were happy, that he wanted to keep them that way,
that there would be expansion and promotions. Gentry related that in front of the
entire group Smith stated that he was proud of Gentry for his activities and the way
he was handling things. Smith had Butler stand and advised the group that Butler
was Smith's "right arm" and that he was going to be personnel director effective
January 1, 1963. It is reasonable to infer, and I find, Butler became personnel
director on January 1, 1963.17
"Harper Avis was described as the chief engineer over the three plants operated by
Respondent. Smith referred to Avis as general superintendent He worked out of Houston
15 Lyle, Gardiner, and Jones appeared as witnesses but were not questioned relative to
the events of November 17.
r9 The testimony of Stansbury and McAfee relative to this meeting is considered in fi a,
section D.
17 Smith acknowledged attending this party and making some announcements , including
the fact that Respondent was expanding and the fact that Butler would be personnel
director. However, Smith inferentially denied having asserted that Butler's promotion
would be effective January 1, asserting that he stated that when Butler was qualified lie
would be personnel manager. I do not credit this testimony of Smith, particularly since
Smith acknowledged, "I might have said January 1, but it was qualified to bring him in
when he is ready and gets through his schooling"
BIG THREE WELDING EQUIPMENT COMPANY 1691
On December 10, Gripon advised Gentry that he had been advised by Stansbury
that they would not be making overtime anymore. Gentry 's undisputed testimony
was that he inquired of Stansbury as to the truth of the report and was advised by
Stansbury that Smith had requested that the hours be held down . Gentry then
inquired if when men worked on callouts they would be "knocked off" to prevent
overtime and Stansbury advised this would not be done if he could get around it.
It is clear from the testimony of Haure and other evidence that, on occasion, an
employee might be called out at night , and then released early on Saturday by
whatever number of hours he had worked on the callout . Gentry related that on
December 15, Saturday , Rufus Gearen advised that there was a note on his timecard
to knock off at 12 o'clock because he had been called out for work earlier that week.
Gentry inquired of Stansbury about this and was advised by Stansbury that there
was nothing he could do. Gentry responded that this was contrary to what Smith
had advised the employees , asserting that Smith had stated that "if a man got out of
bed to come to work, he would not be penalized on his shift ." Gentry related that
Stansbury allowed Gearen to go ahead and work , but the remainder of the month
of December and in January, one thing after another was being withdrawn.18 As a
result, on January 18 , Gentry called Major Butler and advised him that things were
dropping right back into the same rut . Butler suggested that they have another
meeting on January 23. Gentry posted a notice of this meeting on the bulletin board,
advising that Butler , the personnel director , would be in attendance.
At the meeting on January 23, with Major Butler in attendance , the same problems
were discussed as had been discussed at the November 8 meeting , except certain
"threats" attributed to Johnson , set forth infra, section F, were not discussed. Dur-
ing this meeting Gentry was reelected as "representative" of the men working in the
plant, while Guy Jones was elected as "representative " for the truckdrivers. Jones
had replaced East, becoming the sole dispatcher , after the discharge of East.19 Jones,
appearing as a witness for Respondent , asserted that he was over all the truckdrivers
and did not want them in "Gentry's hands." He mentioned this fact to Major Butler
who agreed with him . Jones asserted his conversation was overheard by other em-
ployees and resulted in his being elected to represent the truckdrivers . 20 Gentry's
undisputed testimony was that during the meeting on January 23 the matter of pay
increases for several of the men , including Gentry, was among the matters dis-
cussed. At the conclusion of this meeting Butler, Stansbury, Gentry, and Jones met.
Butler described in detail to Stansbury the nature of some of the complaints and
the fact that if an employee had a complaint he would submit it to either Gentry or
Jones , who would then take it up with Stansbury.
During the week ending Saturday , February 16, Jerry Chesson worked days as a
"helper" to Gentry who was "plant operator ." Chesson complained to Gentry
that Chesson had heard that Stansbury was going to make another employee, Kin-
kaid, a "plant operator." Gentry took the matter up with Stansbury, pointing out
to Stansbury that Chesson had been employed for a year and a half and knew the
job pretty well. Stansbury advised that he was following instructions from Avis
and that there was nothing that he could do . Gentry called Stansbury 's attention to
the fact that Smith had given Stansbury a free hand in running the plant. Stansbury
responded that Avis was his boss and he had to do what he was told . Gentry then
responded " in other words we are back in the same rut we were in." Stansbury then
advised Gentry not to be concerned , that his (Gentry's ) raise would be put through.
On Sunday , February 17, Gentry called a meeting of the employees 21 According
to Gentry , Jones asserted that everything that they had worked for had fallen
through. Jones suggested that he and Gentry should go to Houston and talk to
Smith . 22 The group, instead, went to the plant and met with Stansbury. Gentry
advised Stansbury that the employees did not believe "us" anymore because every-
thing that Stansbury had told them had not developed . Inferentially the "us"
referred to Gentry and Jones. Gentry related that Stansbury listened to the various
grievances . Among the items discussed were promised raises, including those to
18 While Stansbury admitted the limitation to 48 hours a week was one of the issues dis-
cussed on February 17, infra, he "could not recall" the incident involving Gearen.
19 The supervisory status of East was asserted by Respondent and is considered infra,
section D . It is undisputed that Jones assumed the same duties.
20 Jones also denied that he was elected to anything on January 23, then acknowledged
that he was "kind of a representative " Jones asserted he did not really know what kind
of a "representative" he was , and did not think he ever did anything in his capacity as
a representative.
zi Jones estimated that 12 were in attendance. Gripon placed the number as 15 or 16.
22 Jones' assertion that it was Gentry who suggested the trip to Houston is not credited.
1692 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Gentry and Phil Lyle; a complaint by Haure that he would be called out at 2 or
3 o'clock in the morning, work 3 or 4 hours, and then be knocked off early at the
end of the week so they would not have to pay him overtime; a complaint by some
of the truckdrivers that they were not getting the same "callout time" as was being
paid in Houston 23 Respondent's witnesses Jones asserted Stansbury failure to call-
out Wiggins to conduct a lab test was discussed. Gentry urged that Dunn, whom
Stansbury had called for the test, had more work hours recorded than Wiggins.24
Gentry and Haure credibly testified that Stansbury advised them that he would call
Harper Avis the first thing in the morning, whereupon it was urged that Stansbury
call Smith rather than Avis, to which Stansbury agreed. Stansbury advised the group
that they could come in the following morning and he would let them know how
everything came out. The following day, February 18, Gentry and Gripon were
discharged, by Stansbury, under circumstances considered infra, section E.
On Sunday, March 3, Gentry called a meeting of the employees at the Boiler-
makers' hall in Orange. Haure credibly testified that those present, constituting 70
percent of the employees, signed union cards. Phil Lyle related that he attended
this meeting as a result of a call from his brother, Robert Lyle.25 Phil Lyle asserted
that his brother Robert Lyle was among those who signed union cards that day.
As they were leaving the Boilermakers' hall, Haure and Lyle observed Dispatcher
Jones sitting in his car watching the group leaving.
Phil Lyle related that the following day, March 4, a group (unidentified except as
to Phil Lyle and his brother Robert Lyle) were at Joe Bailey's (earlier identified
as Bailey's Fish Camp where the group had held its previous meetings) when Major
Butler came in. Robert Lyle advised Butler that they knew what he was there for
and advised Butler that they had signed union cards and further asserted, "We know
that is what you want. But we are free to go union."
On March 5, Smith appeared at the Orange plant, and the employees were called
to a meeting, held in Robert Lyle's office. Phil Lyle arrived late at the meeting.
Smith, in the presence of other employees, questioned Lyle as to his attitude about
the Union. Lyle's answer is obscure. Lyle asserted that as Winters entered, Smith
asked him what he though about the Union and Winters responded, "I would rather
it just stayed Company and not have anything to do with the union." Smith re-
sponded, "Well, that is a fellow there we can depend on being Company " 26
Inferentially on March 11, Butler came to the plant and asked Phil Lyle and
others if they wanted to go out with him. Phil Lyle, Robert Lyle, Rufus Gearen,
Joe Falgout, and Dewey Chance accompanied Butler to the Casa Moreno Cafe, next
to the plant. Each of those named is an employee, except Butler, personnel di-
rector. There was a general discussion about circulating a paper stating that the
employees did not desire a union election held. Phil Lyle identified Falgout, Gearen,
and Robert Lyle as among those urging such a circulation: "They said if we can get
52 percent sign this paper saying we would not have a vote, it wouldn't never come
to a vote." Lyle quoted Butler as turning to Chance and stating, "You know, it's
automatically, you know there won't be as much work, if we go union there will have
to be a reduction in force, and you are the new man." Phil Lyle asserted that Butler
22 These findings are based on the credited testimony of Gentry, Phil Lyle, and Haure
24 Superintendent Stansbury acknowledged that 10 or 12 employees met with him at the
plant on February 17. Stansbury first asserted that the "big gripe" at that time was
Gentry's raise He could not "recollect" if there was a discussion about Wiggins. He ad-
mitted there was a discussion of a 10-cent raise for Phil Lyle. Stansbury denied that
the group asserted that everything that Smith had promised in the letter of November 9
had fallen through. Stansbury then acknowledged that they asked that Stansbury call
Smith "about a few little things I don't recall just what it was." Stansbury admitted
that Avis had instructed him to hold everyone down to 48 hours, allegedly due to slack
business conditions , and that the employees had been so advised . Stansbury denied how-
ever that the employees specifically objected that this was contrary to Smith 's instructions
and asserted that the employees agreed to it. To the extent Stansbury's testimony is at
variance with the credited testimony of the others, I do not credit Stansbury.
25 Rober Lyle, office clerk, did not appear as a witness.
se Smith recalled being in Orange on March 5, and seeing Phil Lyle. However, Smith did
not recall asking Phil Lyle or any other employees any questions about what they thought
of the Union. Winters was not called as a witness Respondent' s witness , Reynolds,
acknowledged that this meeting concerned the employees having signed cards for the
Boilermakers. Reynolds asserted that Smith stated that if the employees wanted to go
union, they should "let us know" and Smith would help them. This testimony of Smith
and Reynolds is not credited.
BIG THREE WELDING EQUIPMENT COMPANY 1693
knew that Chance was the newest driver and Phil Lyle was the second lowest in
seniority.27 Phil Lyle then got into a discussion with Butler relative to Lyle's not
receiving a raise which had been promised by Stansbury.
On the following morning, March 12, when he first reported for work, Phil Lyle
was shown a statement by his brother, Robert, office clerk. At this time the state-
ment contained only the signature of Robert Lyle. The statement read:
WE THE UNDERSIGNED EMPLOYEES OF BIG THREE WELDING
EQUIPMENT COMPANY, ORANGE, TEXAS, WISH THAT THERE BE
NO UNION ELECTION HELD, AS WE NO LONGER WISH TO BELONG
TO A UNION. WE HAVE TAKEN THIS STAND ON OUR ON [SIC]
AND HAVE NOT BEEN PUT UNDER PRESSURE FROM THE COM-
PANY TO DROP THE IDEA OF A UNION, IN FACT THE COMPANY
HAS SAID WE COULD GO UNION IF WE SO DESIRED TO.
Phil Lyle read the statement and threw the document back on his brother's desk.
In Phil Lyle's presence, the document was shown to Dewey Chance and Tom
Sonnier, who also refused to sign it at that time .28 Later that morning, about 10 or
10.30 a.m., while Phil Lyle was making deliveries on his route, he was stopped by
his brother Robert. Robert advised Phil that he was on his way to Beaumont to
obtain signatures to the petition, and that his brother Phil should sign it so as not
to be an outcast. Phil responded that he did not think he should sign because he had
signed a Boilermaker's card, however, he did sign it and his signature appears
opposite No. 14 on the document 29
Richard L. Gardiner, employed as a truckdriver at the time he testified, related
that Robert Lyle asked him to sign the document, advising Gardiner that he (Lyle)
had changed sides. Gardiner refused and his signature does not appear. Later the
same day, March 12, about 4 or 4:30 in the afternoon, Gardiner was present when
a meeting was held which was called by Major Butler and attended by Maples,
assistant superintendent, and some 14 employees. Gardiner related that he as-
serted at the meeting that the "petition" was not fair, that he heard a couple of men
say that "everyone was signing the petition and they felt they should sign it too
because it would be clear to see their names were not on there. In other words,
it wouldn't look very good for you." Gardiner related that Butler then suggested
that they have a vote to see whether or not the petition should be thrown out.
Gardiner concurred that a vote would be fair. A vote was taken, by each man
writing on a piece of paper. The tabulation indicated that 3 voted for the Union nand
11 against 30
John Haure was requested, by Robert Lyle, to sign the "petition" about 4 o'clock
in the afternoon. Maples, assistant superintendent, was present when he signed as
No. 28. Haure identified Major Butler as the one who called the meeting on
March 12 advising the employees "they wanted to discuss some things with us
in the office." Haure corroborated Gardiner's testimony relative to the events at
the meeting, including the identification of Butler as the one who suggested the
taking of a vote to determine the sentiment of the employees for or against organiz-
ing. Haure asserted that Butler, McAfee, and Stinson were present during this
meeting.
D. The discharge of Guy East
East was initially employed by Respondent at Port Arthur on December 20, 1960,
as a truckdriver. In September 1962 he was transferred to Orange and promoted
to dispatcher.
I have found supra, section C, that East was among those who aided Gentry in
setting up the meetings at Joe Bailey's Fish Camp in October 1962. East attended
the November 8 meeting of the employees and President Smith. East credibly
testified that he was among those who wanted Smith's promises put in writing, but
were outvoted by the majority who agreed to accept Smith's word for the changes
n Butler was not called as a witness.
28 Neither Chance nor Sonnier appeared as witnesses, however their purported signatures
appear on the document opposite numbers 24 and 25 ; the document contains 27 purported
signatures.
'9 It is noteworthy in line with this testimony that the signature opposite No 15 is that
of W. It. Shannon, Jr, manager of the Beaumont office, and Nos. 16, 17, and 18 are pur-
portedly individuals in the Beaumont office, while Nos. 19, 20, 21, and 22 are purportedly
signatures of individuals in the Port Arthur office. Since Robert Lyle was en route to
Beaumont and Port Arthur at 10 o'clock, it may be inferred this activity occurred during
his working hours.
30 Gardiner Identified McAfee, office manager, as among those present.
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed upon. East related that Smith agreed to send a letter, which was to be put
on the bulletin board, covering the changes in working conditions.
I have found, supra, that on Saturday, November 17, several of the truckdrivers
complained to East that, contrary to the promise of Smith, they did not have the
same working conditions as those prevailing in Houston . East, at the urging of the
drivers, and with five of them present , took the matter up with Bill Brandt , district
manager, Oliver Stansbury, Orange superintendent , and Billy McAfee, office man-
ager. When Brandt advised that Smith had been misunderstood , East stomped out
of the meeting. I have found supra, section C, that Gentry related this dispute
to the failure of the drivers to receive "standby time." 31
East, by reason of illness, did not return to work until Tuesday, November 20.
When East reported, Stansbury advised East that Smith wanted East to call him in
Houston. East was then advised, by Smith, that Smith wanted to see him in
Houston right away. There is a sharp disagreement between East and Smith rela-
tive to the events which immediately preceded the discharge of East on November 20.
East's version is that Smith accused him of being the instigator of the Union.
East advised Smith that there was no instigator, that everyone wanted it, but nobody
started it. Smith then advised East that Smith had been advised that East was
trying to get the men to walk out the gate. East responded that he did not know
anything about this. East related that Smith was supposed to send a letter which
was to be posted on the bulletin board and had not been. He advised Smith that
Brandt and Stansbury, in a meeting on the prior Saturday, had advised that Smith
had been misunderstood. East then asserted that, as far as the men knew, nothing
had been satisfied. East related that they talked for about 21/z hours, during which
Smith asked East if he was having trouble with McAfee and Robert Lyle, and whether
he had punched McAfee in the nose. East denied any such dispute Smith then
inquired if East would accept a transfer to Port Arthur and East responded he would
accept the transfer, but he would not be satisfied Smith then sent East into the
cafeteria, asserting he had other business to 'attend to.
While East was in the cafeteria he was joined by Major Butler and Louis
Kominczak, who inquired if he had seen Smith and if he had reached any agreement
with Smith. East related to them that Smith had accused him of starting the
Union, while in fact Butler knew that it was Robert Lyle and Gentry who had come
to Houston to see him, and that Gentry had been appointed as spokesman for the
employees. East related that Butler tried to convince him that if he would admit
to Smith that he was the "instigator" that it might help save his job. These three
went to Smith's outer office. Butler and Kominczak were called into Smith's office,
stayed a few minutes, and left. East was then called into the office of Al Herzstein,
vice president, and advised by Herzstein that he was fired, and was given his pay-
check. East advised Herzstein that he would like to say something, and Herzstein
responded that it would not do any good, he was merely carrying out Smith's orders
East then encountered Smith in the hallway and inquired about the job in Port
Arthur. Smith responded there was no place for him East then inquired if he
was being discharged because of his work. East related that Smith responded that
he was satisfied with his work but he was being let go because of his activity in the
Union.32 East was advised, by Smith, that others would be discharged for the same
reason
Smith related that his first meeting with East was in early November, inferen-
tially on November 8. He described East as being a dispatcher on a trial basis,
an undisputed fact. Smith asserted that he called East to Houston, on November
20, because Smith had been advised "by personnel who were over East" that he was
not doing his work satisfactorily and that some of the men under East were com-
81 McAfee acknowledged that one of the complaints of the drivers, on November 8,
according to information furnished to him thereafter, was that they were not receiving
the same privileges as the drivers at Houston. McAfee "did not recall" a•discussion with
East and Brandt on November 17 relative to Smith's letter or relative to the drivers not
receiving "four hour standby time." McAfee then asserted that there might have been
such a meeting but he did not recall it
Stansbury was evasive in responding to questions relative to the November 17 meeting
He acknowledged having a meeting with East during which "standby pay" was discussed,
but he was unable to place the date of the meeting, and could not recall East requesting
that he get Smith's letter out of his desk. Stansbury then acknowledged that "standby
time" was to be allowed in Orange on the same basis that it had been allowed in Houston.
Stansbury asserted that this condition was ,placed into effect immediately. I do not credit
Stansbury.
ii Louis Kominczak did not appear as a witness.
BIG THREE WELDING EQUIPMENT COMPANY 1695
plaining very bitterly about East Smith quoted Stansbury as advising that they
should let East go because East was not suitably qualified for this particular job.
Smith then asserted that he advised Stansbury that he (Smith) could perhaps salvage
East and make a better man out of him. Smith explained that he was considering
transferring East to Port Arthur where East would work under Stinson, manager of
Port Arthur office. Smith asserted Stinson, who thought a great deal of East,
agreed to take East back. Smith quoted Gentry as describing East "as probably one
of the worst employees we had in the Orange plant, and recommending we get rid
of him." Smith asserted McAfee advised that he did not know what was wrong
with East, "but we definitely should fire him." 33 I do not credit Smith's recitation
relative to Gentry.
Smith's version of the meeting in Houston with East was that it started by Smith
explaining to East, by name, the people who were not satisfied with his work in
Orange. Smith asserted that he had called Stinson, Port Arthur office manager,
on November 19, to inquire if Stinson would take East back and Stinson readily
agreed. Smith asserted that East did not seem to like the idea of being transferred
and it did not appear that he would be satisfied with a job in Port Arthur. Smith
related that he talked to East about 30 minutes and could get no satisfaction "as to
his future qualifications to be a good employee." Smith then called in Kominczak
and Butler and asked them to have a talk with East and let Smith know what they
thought of him. Smith asserted, "I certainly didn't want to give up at that time."
According to Smith, Kominczak and Butler returned about 15 or 20 minutes later
and told him that they did not think that East would ever work out. Smith then
called Herzstein and told him to prepare the necessary papers. Smith asserted
that the decision to discharge East was made after he received the report from Butler
and Kominczak. Smith denied that any mention was made of the Union in his con-
versation with East. Smith denied knowing whether there was any "union" activity,
by the Orange employees, on November 20. Smith asserted that the following
conversation in the hallway was brief and he merely advised East that he was not
going to discuss it any further.
Smith then asserted that, between 3 days and a week after November 20, East
called, apologized for being unruly, and requested his job. East called still later
requesting his job, advising that he was willing to go to Port Arthur, and Smith
' McAfee, office manager, after Johnson was removed on November 8, was East's im-
mediate superior. McAfee asserted that on November 20 East was having difficulty with
the truckdrivers, then limited this statement on one truckdriver. Falgout The episode
between East and Falgout is set forth infra. McAfee acknowledged that no other difficulty
between East and any other driver came to his attention McAfee asserted that Smith
had called him to inquire if McAfee thought East would take a job at Port Arthur as
truckdriver. McAfee advised Smith that he thought East would take the job because he
had heard East express a wish to be back on a truck. McAfee asserted that he told Smith
he thought East should be transferred, that he thought East would be happier in Port
Arthur, and that he had heard East was having a lot of trouble with the drivers and a
lot of trouble at home. (Smith asserted that McAfee mentioned East was having problems,
but Smith did not know what kind of problems McAfee meant ) McAfee could not recall
if he advised Smith as to whether East was or was not doing a good job. In contrast,
McAfee then testified that he did not recall making any recommendation to Smith rela-
tive to East. McAfee was then self-contradictory in asserting that he had stated to
Smith that he wanted East off the dispatching job "I did tell him (Smith) that I didn't
want him (East) working for me " McAfee acknowledged that he did not know if East
was having domestic problems at the time of East's discharge I do not credit McAfee
The testimony of Superintendent Stansbury was likewise varied and self-conflicting.
Stansbury first asserted that he called Smith and told Smith that he did not think East
was the man for the job he was on, that he could not get along with him, whereupon
Smith suggested sending East to Houston so Smith could consider a transfer Later
Stansbury was asked what recommendation he made and responded, "I didn't recommend
anything " Stansbury then was self-contradictory in stating that he had recommended
that East be relieved from his job as supervisor. I do not credit Stansbury.
Gentry credibly testified that "we" (undefined) felt that East was "jumping the gun"
and not giving Smith a fair chance. This observation related to the episode involving East
on November 17 On Monday, November 19, Butler called Gentry at the plant and advised
him that Butler and Smith would call Gentry at home Later, that evening, Butler called
and asked what the problem was with Guy East. Gentry responded that East was dis-
satisfied but that Gentry thought they would be able to work it out Butler then advised
Gentry that Falgout was in his office Saturday and that Butler understood that some of
the drivers were complaining about East.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised him that they could not use him. Smith asserted that during this period of
time Mrs. East called him and advised that East had advised her that Smith had
fired him for union activities. Smith acknowledged that when East later called,
relative to returning to work, Smith did not mention the substance of Mrs. East's
telephone call. Smith then denied hearing from any other source, prior to the
filing of the charges herein on March 13, 1963, that East claimed that he was fired
for union activity. However, Smith then admitted that about November 25 or 26
he received a copy of an unemployment compensation claim, filed by Guy East
with the Texas Employment Commission, on November 23, 1962, in which East
asserted that he was called to Houston by Smith, on November 20, accused by
Smith of starting the Union, and that East was discharged for that reason. Smith
also identified a letter prepared by him, dated November 28, 1962, characterizing
the report of East as completely untrue, and asserting that East was removed be-
cause he was not doing his job in a proper manner. To the extent Smith's testimony
conflicts with that of East, I credit East. The testimony of Smith relative to tele-
phone calls from East, subsequent to November 20, is not credited.
East's Status
Respondent contends that East was a supervisor and thus specifically excluded
undbr the definition of "employee," as provided in Section 2(3) of the Act Next
considered is the testimony relative to the duties of East as dispatcher.
It appears undisputed that McAfee, as office manager, prepared sales orders and
turned them over to East. East identified the truckdrivers working under his di-
rection as Falgout, Sonmer, Gardiner, Dewey Chance, Phil Lyle, and Carl Winters.34
Guy Jones was a part-time dispatcher and part-time transport driver, with four
truckdrivers working under his direction. When East was discharged, Jones be-
came a full-time and the sole dispatcher.
The equipment assigned to East was: A truck tractor, which Falgout drove to
Houston 3 days a week, two pickup trucks, one bobtail, one liquid truck, two tractor-
trailers, and one bank truck. It is obscure if any of these was a pump truck.
East's undisputed testimony was that four of his drivers could drive the bank
truck. East would load it and the first driver who came in took in out. East
"imagined" there were times when two drivers were available and he picked the
one to go. On one or two occasions, when empty cylinders were picked up and the
truck used did not have a "lift gate," two men were sent. The decision to use two
men was made by East, or he would consult McAfee. The men selected depended
upon who was in the office at the time, or the men with the "lowest" time were
selected if there was a choice. When two deliveries had to be made and only one
man was available, East drove a truck. When overtime was necessary, East "worked
it out" with McAfee. It was usually McAfee who called truckdrivers out at night,
when needed. East acknowledged receiving calls, at night, for the "pump truck"
and calling either Phil Lyle or Winters, who alternated each week in operating this
truck.
East did not assign the equipment to be used, leaving that to the drivers "depend-
ing on the size of the load they had." East was queried whether he assigned the
route a driver was to take. He responded he gave the driver the delivery order, and
told him where to go, most were a local route running down one steet. Phil Lyle
asserted he was told by dispatchers where to go not how to go. Lyle denied having
any argument with the dispatchers relative to his route, asserting "They know I know
the route better than they do. They can't tell me which way to go and which way not
to go on my route."
East and the drivers reported at 7:30 a.m. and East usually finished about 5:30
or 5:45 p.m. Three times a week, when the load came in from Houston, usually all
the drivers would be there and unload, with East also unloading. On Tuesday
and Thursday nights East and the drivers worked later loading the truck for the
Houston trip, East helped to load.
East was assigned responsibility for the carbide house, a warehouse. Carbide was
shipped in kegs from Port Arthur or Houston. When it arrived, East and the
drivers, if available, unloaded it. It was shipped out on requisition. The carbide
house also contained parts for the tractors and trailers under Jones, and parts
for the plant. Acetylene was stored on a concrete dock in front of the carbide house.
East related that it was Stansbury, McAfee, and East who decided how to keep the
truckdrivers busy when they were not making deliveries. These duties included:
picking up paper and otherwise cleaning up the yard; cleaning up the office; cleaning
31 Gardiner and Phil Lyle appeared as witnesses.
BIG THREE WELDING EQUIPMENT COMPANY 1697
up the carbide house and dock; loading and unloading trucks; and painting cylinders
or truck wheels 35
East asserted that when he became dispatcher he was told that his duties were,
"just getting the deliveries out, seeing that the men run it O.K." He was not told
he had authority to hire or fire. East was told by Brandt that he would get his
instructions from McAfee, who had been dispatcher up to that time. While McAfee
asserted that when he was dispatcher he could recommend hiring and firing, there
is no evidence East was so advised.
East denied having reprimanded anyone. It is undisputed that East did not hire
or fire, or recommend hiring or firing, anyone, and it is obscure whether he could
effectively recommend such action. East related that when he was transferred from
being a truckdriver at Port Arthur to the job of "dispatcher" at Orange he did not
receive any raise in his rate of pay, which was either $1.60 or $1.68 per hour.
McAfee outlined East's duties as dispatching trucks by giving the drivers the de-
livery tickets, receiving merchandise which came in and preparing appropriate
recoids relative thereto, and seeing that the trucks were kept in good working order
by the drivers taking care of minor items, such as stop lights or signal lights, and
"gassed up "
Section 2 (11) of the Act provides:
The term "supervisor" means any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them,
or to adjust their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment.
There is no evidence that East had authority to effectuate or effectively to recom-
mend any of the enumerated actions, except that he did make work assignments.
The resultant question is whether such authority is of a merely routine or clerical
nature, or, in the alternative, whether it required the use of independent judgment.
The court in the Beaver Meadow case 36 said: "We quite agree that Section 2(11)
must be read disjunctively, that the possession of any one of the Section 2(11) powers
will make one a supervisor, and that it is the fact of possession of the power regard-
less of its nonexercise that is determinative."
The Board has held:
It is well settled that the mere title of supervisor as applied to certain positions
does not establish supervisory status under the Act. Rather, it is the functions,
,duties, and authority of the individual which must be determinative according
to statutory standards. And the power or authority bestowed must not "be
`routine' in the natural sense of that word." Nor may the discretion accom-
panying the duties be so circumscribed by limitations, either in the authority
granted or in the specific conditions placed upon the exercise of such authority,
as to negate the use of independent judgment. Further, it may not be a sporadic
assumption of a position of command and responsibility. On the other hand,
the real existence within an individual's regularly assigned duties of any of the
powers enumerated in Section 2 (11) will make a man a supervisor even though
the necessity for the exercise of such power is infrequent. But where the issue
is the actual existence of a supervisory power, the absence of any exercise of
authority may negative its existence. Thus, there is precedent for the position
that frequency or infrequency of the exercise of authority becomes irrelevant
only where there is no question that the authority conferred is supervisory.
[Capital Transit Company, 114 NLRB 617, 618.]
In delineating between authority which is "of a merely routine or clerical nature"
and that "which requires the use of independent judgment," the Board has found the
following, among others, not supervisory: Dispatchers, at an auto transport com-
35 East related the only dispute he had was with Falgout East described Falgout as an
individual who thought he could get by (with a lot ) by reason of friendship . On a Satur-
day, shortly before November 20, East told Falgout to unload his truck Falgout re-
sponded he would "after a while," that he was going to take orders from Jones. East
learned that Jones had routed Falgout , on the Houston run, over a different route the
prior day . East , in Falgout ' s presence , asked Jones " if he was trying to run my truck,"
and if he was Falgout's boss. Jones responded he did not know where Falgout "got the
idea." When East asked Falgout if he was going to work , Falgout responded he was "just
kidding." While Jones appeared as a witness he did not testify relative to this event
31N.LR.B. v. Beaver Meadow Creamery , Inc, 215 F. 2d 247, 251 (C.A 3).
734-070-64-vol. 145-108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany, who routinely report employees' infraction of rules but have no authority to
inflict penalties (Auto Transports, Inc., 100 NLRB 272); shipping and receiving clerk
who transmits supervisors' instructions to other employees working with him and
directs them in routine duties (Massachusetts Mohair Plush Company, 115 NLRB
1516); and employee who makes routine assignments of work, exercises some judg-
ment on a small part of the work, and makes no effective recommendations as to
employees' performance (Angelo C. Scavullo, et al., d/b/a Legion Utensils Com-
pany, 109 NLRB 1327, and Clearwater Fishing Company, 108 NLRB 268). See
also Cinch Manufacturing Corporation, 98 NLRB 781; Carey Transportation, Inc,
119 NLRB 332; American Radiator & Standard Sanitary Corporation, Pacific Order
Handling Division, 119 NLRB 1715; The Connecticut Light and Power Company,
121 NLRB 768.
The burden is upon the Respondent to produce evidence that East possessed super-
visory authority. Local No. 636 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (The Detroit Edison Company and Westinghouse Electric Cor-
poration), 123 NLRB 225, 231.
I find the evidence herein inadequate to support a conclusion that East was a
supervisor. Accordingly, I find no merit in this contention.
Concluding Findings
There remains for resolution the question of whether Respondent discharged East
for reasons proscribed by the Act.
Respondent sought to establish that the discharge of East resulted from an inade-
quate work performance. McAfee first ascribed East's domestic trouble as impeding
his performance. McAfee then acknowledged he never talked to East too much
about it, in fact, did not know East's domestic status at the time he was discharged.
McAfee asserted that East was not getting some deliveries out on time, but acknowl-
edged there had been no customer complaints. McAfee asserted that East was dere-
lict in making out tickets for merchandise received and reporting the return of rental
equipment. However, when queried as to whether he had called these inadequacies
to East's attention McAfee, who was East's supervisor, responded that someone at
the Houston office talked to East about it. More importantly, it does not appear
that these alleged deficiencies were called to the attention of Smith, or entered into
the conversation between Smith and East at the time of the discharge. It is thus
manifest that these reasons were not the motivation for the discharge of East.
Additionally, Respondent urges that the Texas Employment Commission found
that East was "laid off due to generally unsatisfactory performance." Such a finding,
while admissible, is not controlling. Mitchell Plastics, Inc., 117 NLRB 597; Cadillac
Marine & Boat Company, 115 NLRB 107.
There is evidence herein of interrogation, threats, and other manifestations of
animus on the part of the Respondent toward the efforts of the employees to organize,
as set forth more fully infra.
The Board has found a discharge discriminatorily motivated by reason of the
unconvincing character of the reasons adduced to support the discharge, including
the timing of the discharge. Pacemaker Corporation, 120 NLRB 987, 991. See
also United Fireworks Mfg. Co., Inc., 118 NLRB 883, 885.
The timing of the discharge is important. I have found it immediately followed
East's protest that the drivers were not receiving "call in" or "stand by" pay which
had been promised by Smith, as evidenced by Smith's letter to Stansbury on Novem-
ber 9. This "stand by" pay was still a live issue and source of dissatisfaction on
February 17, infra. It is undisputed that East "stomped" out of that meeting when
Brandt advised that Smith had been misunderstood. Immediately, when East re-
ported to work, for the first time thereafter, on Tuesday, November 20, he was ad-
vised to call Smith. Smith's assertion that he called East to Houston to discuss with
him a contemplated demotion and transfer to Port Arthur, I find of no consequence.37
The alternative to a demotion was the discharge effectuated. While such a transfer
was in fact mentioned, and I have so found, it was not the reason underlying Smith's
request that East appear in Houston for a conference. Rather, as I have found, the
reason for the conference was to ascertain the extent of East's participation in the
efforts of the employees to organize, and, I find, to impede that effort. In my view
these and other facts stated herein constitute a prima facie case of discrimination,
the burden of going forward and presenting refuting evidence was upon Respondent.
Antonio Santisteban & Co., Inc., 122 NLRB 44.
37 A discriminatorily motivated demotion, as distinguished from a discharge, is the same
as the difference between Tweedledum and Tweedledee.
BIG THREE WELDING EQUIPMENT COMPANY 1699
The existence of some justifiable ground for discharge or layoff 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). Upon the entire record as a whole, I believe and hold that Respondent's
purported reason for discharging East was a pretext, and that the real reason and
"moving cause" was the known union and concerted activities of said employee and
said discharge constituted discrimination with respect to his hire and tenure of em-
ployment to discourage membership in a labor organization , in violation of Section
8(a)(3) and ( 1) of the Act.
E. The discharges of Gentry and Gripon
Ruble C. Gentry , Jr., was employed by Respondent commencing February 1,
1962, until his discharge on February 18, 1963. At the time of his discharge Gentry
was a "plant operator" under the direct supervision of Stansbury , plant superintend-
ent. Gentry actually operated two so-called "plants." These were comprised of
two expansion engines, four pipeline compressors , two oil separators , two recipro-
cating compressors , two sets of dryers, two sets of pumpers , and two caustic towers.
The "plants" were located one behind the other in the same building . Air is taken
into the plants and through a series of operations , under increasing pressure, im-
purities are removed and liquid nitrogen is separated from liquid oxygen, these prod-
ucts eventually being placed in storage tanks. The liquids were transferred from the
storage tanks to either a pump truck, a liquid transport, or cylinders , for delivery
to customers Gaseous products are delivered by pipeline.
Initially Gentry was hired as a plant "helper," worked at that only 2 days, and
then was put on cylinder testing. In May 1962, Gentry was made an "operator
trainee," working on the day shift until November 20, 1962. Gentry asserted that
Stansbury was available to aid and assist , if needed , and was with him 2 days during
this period . On November 20, Gentry was put on "shifting ," i.e., a rotating shift,
with LaFleur , an experienced operator , as his helper . Reynolds and Scherry were
identified as the other "plant operators," and Dunn as the relief operator who worked
days. Dunn relieved the day-shift operator after which they would rotate shifts.
The plant was in operation 24 hours a day, three 8-hour shifts, 6 days a week. Each
operator had one helper . About 6 weeks after he started shifting , inferentially
in the early part of January 1963, Gentry advised Stansbury that he was well
broken in and did not need LaFleur as a helper. This assertion was corroborated by
LaFleur's testimony that he did not work with Gentry the last 5 or 6 weeks which
Gentry worked.
Johnnie Cecil Gripon was initially employed by Respondent on October 9, 1959.
He was discharged on February 18, 1963. Gripon is the brother-in-law of Gentry.
Gripon was employed as a truckdriver for approximately 1 year in Beaumont. He
was then transferred to Orange and was the "plant pumper" for approximately
2i years . Gripon described the duties of "plant pumper" as filling nitrogen bottles
and compressed air cylinders , which were then stacked in a pile for the truckdrivers
to load and deliver to customers.
I have found supra, section C, that Gentry, prime mover in the organizing effort,
had been designated as spokesman for the employees and Respondent was so advised
in November.
I have found supra, section C, that on November 12, Stansbury advised Gentry
that he was being given an 8 -cent an hour raise , bringing him to $1 98 per hour, that
when he started "shifting" and had been shifting for 30 days he would be raised
to $2.10, and after he was "shifting " without Curtis LaFleur he would be given
an additional 18 cents, bringing his rate to $2.28 per hour 38
I have found supra, section C, that on February 17, 1963, after intervening fruit-
less discussions between Stansbury and Gentry, and others , a group of 12 to 16
employees met with Superintendent Stansbury . The meeting was held for the
purpose of discussing a number of working conditions which had been promised by
Smith in November and had not been placed into effect, and some pay raises which
11 Stansbury 's denial that he ever promised Gentry a raise , "not a definite raise, no," is
not credited
Reynolds , who appeared as a Respondent witness , had been a "plant operator" for
2 years and employed by Respondent for 9 years . He asserted that his rate of pay was
$2 43 an hour and that the regular rate of pay for a plant operator was $2 28 per hour.
LaFleur , witness for the Respondent, had been a "plant operator " for approximately
1i/ years and had been employed by the Respondent for 13 years . While acting as a
"helper" to Gentry he was being paid $2 28 an hour , which lie described as the regular
operator pay.
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been effectuated, including Gentry's. Phil Lyle and Haure corroborated the
testimony of Gentry and Gripon relative to the matters discussed at this meeting.39
This meeting culminated in an undisputed promise by Stansbury to call Smith the
following day, inferentially to get these matters straightened out. Gentry related
that Stansbury assured Gentry that, if he would come in the following morning,
Stansbury would let him know how everything came out. Gentry was not due to
report until the 4 to 12 p.m. shift on February 18.
Gentry went to the plant about 10 a.m. on February 18 and was advised by
Stansbury that he had not found out anything. Gentry remained around the plant
until 2 p.m., then went home. At 2:45 p.m., McAfee called Gentry and requested
that he return to the plant to talk to Stansbury. Upon arrival, Stansbury advised
Gentry, "R. C., you are not satisfied here with us, so you are fired." Gentry advised
Stansbury that he knew that that was not the reason he was being fired. Stansbury
responded, "No, it's not and you know what the reason is and I know what the reason
is." Stansbury then declined to state any other reason for the discharge. Immedi-
ately thereafter, Stansbury called Gripon to the office and advised him, "I am termi-
nating you. You are not happy with your job here." 40
Gripon and Gentry proceeded to Gentry's house where Gentry called Smith.
Gentry inquired if he could come to Houston to talk to Smith. Smith advised
Gentry that he had caused a strike, that Smith did not want to talk to him, and
that he and Gripon were just alike. In contrast , Stansbury acknowledged that the
group which met with him on February 17 were not disorderly, "they came out there
to discuss something, and I was there, and they left." No mention was made of a
strike.
While Respondent has advance multiple and varied reasons for the discharges
of Gentry and Gripon, which are considered infra, the testimony of Stansbury and
Smith, relative to the events of February 17 and 18 stand in sharp conflict. Stans-
bury related he would not have terminated Gentry, "if he hadn't served mean ulti-
matum." Stansbury identified the "ultimatum" as Gentry's demand for a raise,
asserting, "He was such a general nuisance , and when he pushed me for a raise, that
was it." Stansbury's assertion that this demand was made on the morning of
February 17, as distinguished from the meeting on the evening of the 17th, is not
credited. Stansbury could not define the "alternative" if the "ultimatum" was not
met. Stansbury admitted telling Gentry that he (Stansbury) would talk to Smith
on Monday morning, but asserted that he told Gentry that he was certain Smith
would not agree to a raise for anyone until business picked up.
Stansbury asserted that it was on February 17 that he made up his mind to dis-
charge both Gentry and Gripon Stansbury gave as his reason for delaying the
discharges an assertion by Gentry that he owed Smith "a ton of money." However,
Stansbury also related that right after Gentry had borrowed money from the credit
union , before Christmas, Gentry had advised Stansbury that Gentry had taken out
"job insurance" and the only person that could fire him was Smith. Gentry denied
having made such an assertion, attributing it to Stansbury; I credit Gentry.
Similarly, while asserting he decided to fire Gripon on February 17, Stansbury
claimed that Gripon had asserted he could not be fired because he owed too much
money. Stansbury related he was advised of Gripon' s assertion by Jones on
February 18 While Jones appeared as a witness for Respondent he was not
questioned relative to this alleged report. Gripon admitted having a small loan
($290) from the credit union, on which his balance above deposits was only $90.
This was deducted from his final paycheck. Gripon denied the alleged statement.
I do not credit Stansbury.
When Stansbury called Smith on February 18, relative to discharging Gentry
and Gripon, according to Stansbury, Smith told Stansbury to use his own judgment.
Stansbury denied giving Smith "any reason" for the discharges, acknowledging that
"some weeks afterwards" he advised Smith "they were a damn general nuisance."
39 Lyle credibly testified that on Sunday, February 17, Stansbury advised the employees
that they would all get their raises Lyle related that on Monday, February 18, "Oliver
[Stansbury] come up to me [after Gentry's discharge] and told me we didn't have nothing
to worry about, it was just one of them things I didn't have to worry about; I would get
my raise. He just didn't want anymore squabbling"
Haure heard Gentry inquire about a pay raise he had been promised and had not re-
ceived. Haure related that he (Haure) raised a question on February 17 about being
called out at 2 or 3 o'clock in the morning, then being limited to a 48-hour week by being
"knocked off" so they would not have to pay overtime
S0 Stansbury's testimony that he advised Gentry, at the time of Gentry's discharge,
that Gentry was being discharged because Gentry was unhappy with his work, his pay,
and his hours, and that he advised Gripon to the same effect, is not credited.
BIG THREE WELDING EQUIPMENT COMPANY 1701
President Smith, at variance with Stansbury, related that Gentry and Gripon
were discharged for "inefficiency and reluctance to train adequately for their jobs "
Smith then asserted that the "training" applied only to Gentry, that Gripon was
fired for "plain inefficiency." Smith asserted that Stansbury called Smith 2 days
before the discharges (February 16) and advised of his intention to discharge
Gentry and Gripon. Smith requested Stansbury to "try to salvage these men "
Stansbury, according to Smith, responded that it would be difficult but he would
give it his best effort. Smith then asserted that Stansbury had advised, in this first
conversation, that "they" were demanding a pay raise. Smith was then uncertain if
Gripon was demanding a pay raise. Smith asserted that Stansbury did not go into
details about the nature of Gripon's inefficiency. Smith related that Stansbury
called because Smith likes to know when a man is fired, so they can see if they
can keep him gainfully employed, however it is Stansbury who makes the decision.
On the day of the discharges, Smith related, Stansbury called him and told him
that he would have to discharge Gentry and Gripon because he could not keep the
plant operating efficiently with these men working there. Smith at that time ex-
pressed regret. Smith asserted Stansbury did not advise him (Smith) of Stansbury's
meeting with the group of employees on February 17.
Smith denied knowing that Gentry had gone through a training period to become
a "plant operator," and had advanced through "shifting" with an experienced opera-
tor as a helper, to "shifting" on his own. The nature of Gripon's "inefficiency,"
when Gripon had been performing the same task for 2'/z years as the only "plant
pumper," is obscure. To the extent the testimony of Stansbury and Smith con-
flicts with that of Gentry and Gripon, relative to the events of February 17 and 18,
I credit the latter two.
Gentry's Status
Respondent contends that Gentry was a supervisor and thus specifically excluded
under the definition of "employee," as provided in Section 2(3) of the Act.
It is undisputed that each "plant operator" had a "helper," without regard to
whether he was working the day shift or a night shift. Stansbury related that the
operation of the plants, by the manipulation of valves to increase or decrease in-
take, etc, is a function of the "plant operator" not the "helper." The helpers have
duties they perform every hour, but their duties will vary from shift to shift, depend-
ing on the nature of the work, i.e., sometimes the plant runs good and other times
it runs erratic. On some shifts a separator or caustic has to be changed and on
other shifts it does not. Stansbury described the duties of the plant operator with
relation to the helper as including the following- When the caustic needs to be
changed in the caustic towers, when the dryers need to be changed, when the oil
filter needs to be changed, when miscellaneous work, other than the normal opera-
tion, needs to be done, the plant operator advises the helper to do these things.
Elmer Reynolds, a plant operator for 2 years, an employee of Respondent for 9
years, and a Respondent's witness, related that he did not have authority to hire
or fire, or effectively recommend hiring or firing of his helper, that he never rec-
ommended a raise or promotion. Reynolds also asserted that when he needed addi-
tional help that he had to get Stansbury or Maples to authorize the additional help.
Reynolds related that Stansbury lived within 3 miles of the plant and before he
could make a decision, when working at night, he called Stansbury, if something
went wrong On such occasions Stansbury would come to the plant to find the
cause of the trouble.
Curtis LaFleur, who had been a plant operator for 1i/2 years, appeared as a
witness for Respondent. He testified relative to a plant operator's duties in operat-
ing the plant, but not as to the nature of directions given a helper.
John Haure has been employed by Respondent as an "operator's helper" for 11/2
years. Haute related that his work is routine, and his instructions for his regular
duties come from Stansbury. When something "special" comes up the operator tells
him what to do. "Special" was described as helping to load a truck, or when there
is a breakdown, which happens frequently, it is the helper's job to "get" (shut) the
vent line, to cut the air intake. The operator instructs him what to do next, usually
they quickly cut one column off the pipeline to prevent losing "purity " Operators
do not hire, fire, transfer, suspend, lay off, recall, or promote helpers
The Board has found "unit operators," who, while more skilled and experienced
than the three-man crew, of each, had not been told that they are, in fact, supervisors
nor given any oral or written instructions as to the duties of a supervisor, are non-
supervisory. Phillips Petroleum Company, 129 NLRB 813.
Leadmen who operate extrusion machines on three shifts, with one to three
other operators working on the same shift, were found nonsupervisory by reason
of the routine nature of the operation, the fact that leadmen spend virtually all
1 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their time operating machines, their lack of authority to make changes in employee
status, and the independent investigations the Respondent make regarding their
recommendations. In this case, no management representative was present during
the major portion of the night shifts, and the leadmen were paid a higher rate than
other operators. Plastics Industrial Products, Inc., 139 NLRB 1066.
A "rotary kiln" described as a "highly mechanized kiln," was operated 24 hours
a day, 7 days a week, by a fireman and helper on each shift. The duties of the
firemen included keeping records of readings on the instruments of the control panel.
The Board found these "operators," and other alleged supervisors "exercise (no)
more authority or responsibility than is customary for the more experienced and
skilled member of any craft or highly specialized mechanical crew." United States
Gypsum Company, 121 NLRB 370, 373. See also Pervel Corporation, 119 NLRB
497; Warren Petroleum Corporation, 120 NLRB 370.
The burden is upon the Respondent to produce evidence that Gentry possessed
supervisory authority. Local No. 636 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (The Detroit Edison Company, et al.), supra.
I find no merit in Respondent's contention that Gentry was a supervisor.
Respondent's Varied Defenses
Respondent advanced a variety of alleged deficiencies and misconduct on the part
of Gentry and Gripon, as justification for its decision to discharge them. These
are considered seriatim.
One of the duties of a "plant operator" is to keep a company "log." Each log
contains a 24-hour record of hourly readings of various pressures , temperatures,
etc., from various dials on a control panel . Stansbury related that it is vital for a
plant operator to have correct pressure readings when he relieves an operator so
that he can tell the "trend" of the plant, which is never in one stable position. If
pressure is lost the product is lost. Pressure is maintained by valve adjustments.
If an operator fails to make readings for 2 or 3 hours he is at a loss to know the
trend of the column.
Stansbury first asserted he knew nothing about Gentry "faking" log entries prior
to Gentry's discharge . "Not until after I had fired him, no one had told me."
Then Stansbury related that, several weeks before Gentry was fired, Dunn, the
operator who followed Gentry, complained that the logs were "faked " 41 Stansbury
claims he then checked the logs every morning "and I saw where his purities and
all that were running too consistent . Everything was running exact, hour after
hour, which is unusual , which is impossible ." Stansbury asserted that such a
condition would be a "one in a million shot"; that does not happen.42
Stansbury related that the "waste tests" will vary from hour-to-hour while
Gentry's ran consistent . It was Stansbury's impression, after seeing this, that the
logs were faked. Stansbury, who was employed by Respondent for 23 years, and
41 Dunn did not appear as a witness.
'a While a "log" was placed in evidence, it was admitted that this particular log con-
tained no faked entries. The alleged "faked" logs are not in evidence.
Curtis LaFleur, who was Gentry's experienced "plant operator helper" from Novem-
ber 20 to January, related that while so engaged he observed that Gentry was not making
his "purity" tests each hour LaFleur described how lie set a bottle with tubing in a
position requiring its movement to make the "purity" test According to LaFleur, it re-
mained in the same position throughout the shift. LaFleur asserted lie advised Stansbury
of this incident. LaFleur related that one night Gentry was away from the "plant" and
in the office from 6 to 10 p m., then "dummied" in his entries, "[he] just copy them
[readings ] down the way they were at 6,00"; that Gentry stayed in the office "quite a
bit" ; that Gentry spent several hours, one night before Christmas, assembling toys ; that
one night Gentry and some truckdrivers had a dice game in the office which lasted 2 hours ,
and that Gentry was supposed to make an oxygen test and a nitrogen waste test on each
unit every hour and did not on these occasions. LaFleur asserted he reported these events
to Stansbury. LaFleur was self-contradictory in asserting he did not tell Stansbury about
the dice game, "I wan't in charge and it wasn't my place to tell them." Stansbury made
no reference to these alleged reports. I do not credit LaFleur.
Jerry Don Wiggins, a "tester" who worked in the lab, asserted that several times, at
Gentry's request, he "faked" entries on Gentry's log by copying the last entry. Wiggins
could nut recall "the exact day I faked it," then asserted it was not all in one day but
"a few times." Wiggins never reported these facts to any company official prior to
Gentry's discharge . Wiggins was unimpressive and his testimony is not credited.
BIG THREE WELDING EQUIPMENT COMPANY 1703
plant superintendent for an unspecified period, never fired anyone for making false
entries on a log. Stansbury acknowledged that he did not call Gentry in and talk
to him about faking the logs, asserting, "I was trying to catch him on something
real good. I was trying to catch him stealing." I find inadequate evidence to
substantiate Respondent's contention that Gentry actually "faked" the entries on his
logs. I further find that, even were such fact established, "faked logs" did not enter
into Stansbury's determination to discharge Gentry.
Stansbury asserted that Gentry had told employees that Stansbury was a "no
good SOB," and that Gearen so reported to Stansbury. Stansbury acknowledged
that Gearen had told him a lot of things about Gentry after Gentry was fired, then
asserted that LaFleur and Gearen had reported the use of this epithet prior to the
discharge of Gentry. LaFleur was not questioned relative to this alleged remark.
While Gearen corroborated the testimony of Stansbury, and added some derogatory
statements allegedly made by Gentry relative to the Company, Gearen related he
had not reported these statements to anyone prior to his report to Respondent's
counsel on Monday, May 6, long after the discharges herein. I find Gearen's
demeanor unimpressive, his courtroom manner having required reproach. I do
not credit Gearen's testimony that the alleged statements were made by Gentry,
nor Stansbury's testimony that Gearen made his report prior to the discharges.
Similarly, the testimony of Robert Brinson, a Respondent witness, that Gentry said
that Stansbury "was scared to take up for his men, scared of his job," and that
Respondent was "a lousy company," is of little avail in view of Brinson's assertion
that he did not report these remarks to anyone until May 1963. Respondent's con-
tention that these alleged derogatory remarks entered into Stansbury's decision to
discharge Gentry is patently without merit.
Stansbury related that on February 17, 1963, he heard Gripon say that Respondent
was "a chicken S- Company and a man would be better off if he had a job at
a filling station." Gripon denied having made the quoted statement . Gripon as-
serted that at the meeting of February 17, in front of the entire group, he advised
Stansbury that he (Stansbury) had made promises that he had not lived up to.
On this conflict I credit Gripon. Gearen asserted that Gripon griped about the
wages and asserted that Respondent paid "nigger wages." Gearen did not report
this fact prior to the time of the hearing herein . Similarly, Brinson related that
Gripon described Respondent as a "lousy company," but he did not report this
remark to any of Respondent's officials prior to the time of the hearing. Respond-
ent's contention that these alleged derogatory remarks entered into Stansbury's
decision to discharge Gripon, I find, are without merit.
Respondent , by way of defense , asserted that there was pilfering and stealing at
the plant, that while Stansbury had no definite proof as to the identity of the
thieves he had a reasonable basis for believing that Gentry and Gripon were part
of this activity , and this was one of the foremost, if not the consideration for the
discharges . The evidence relative to this defense is next considered.
Stansbury asserted that he "missed" certain items, presumably stolen, from the
plant. He itemized : paint, goggles , tools, shovels , blankets, antifreeze, a spray gun,
acetylene rigs and tips, garden hose and sprinklers , and an electric motor as among
the items. Stansbury admitted he had no knowledge of who took these items, until
testimony was taken in this case . Stansbury asserted that since the discharge of
Gentry and Gripon there had been "not a bit" of stealing at the plant. The basis,
related by Stansbury, for his suspicions were that Gentry kept after him to put
Gentry on the night shift 43 Stansbury then related that things always seemed to
be missing on Saturdays and weekends, that "they" (unidentified) were traveling
down to the plant at night when they were off duty, and hanging around the plant
when they were off duty, and Gentry seemed to have an awful lot of money. Stans-
bury asserted that Gentry was going through desks in the office, and recited that
Gentry had so obtained some "no smoking" signs which he had hung up in Novem-
ber However, the "no smoking" signs were hung up with Stansbury's knowledge.
Stansbury asserted another reason he was suspicious of Gentry was that Gentry
would park his car at the rear of the building, near the "plant" which Gentry
operated, on Saturdays and Sundays, and Stansbury saw Gripon's car similarly
43 I have found above that Gentry was an "operator trainee" on the day shift and the
normal procedure was followed in placing him on the night shift, on November 20, with
an experienced "operator helper," who remained with him until he was fully able to
"operate" on his own, in early January However , there is credible testimony that Gentry
remained on the night shift or shifts , 4 to 12 and 12 to 8 , for only 3 weeks , then rotated
so that he would be on the day shift 1 week out of each 3.
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parked one time 44 Stansbury asserted that employees were supposed to park their
cars in the parking lot.
Stansbury in relating to Harper Avis, general superintendent, his reason for dis-
charging Gentry and Gripon, advised Avis that they were dissatisfied with their work
and unhappy people. He did not tell Avis that he suspected them of thievery, be-
cause he could not prove it. Stansbury asserted that the first time he learned the
alleged identity of who was doing the stealing was after the discharges, inferentially
during this hearing. Stansbury acknowledged having learned that others participated,
according to their own testimony, in thievery, and these persons were not discharged.
Respondent produced as witnesses Gearen, Jones, and Wiggins, who testified relative
to alleged pilferage, all of whom asserted that they did not make any report to
management until shortly before their testimony herein, in May 1963.
Gentry, who acknowledged that he and Gearen collaborated in the removal of
2 gallons of paint during the summer of 1962 without permission, asserted that other
items were "borrowed" and "returned" with the permission of Stansbury, or McAfee,
or were items about to be discarded or partially used cans of paint, obtained with
Stansbury's permission.
Gripon acknowledged having an oxygen and acetylene cylinder at his home,
relating that while working in Beaumont he was advised by Shannon, office manager,
that he could take partially filled bottles home and bring the cylinders back. He
similarly took an oxygen cylinder, partially filled, while working at the Orange
plant. This incident was in the daytime, and Stansbury and all others were at the
plant at the time he took it from the oxygen dock. Gripon acknowledged taking a
small carton of paper cups, to be used at a picnic, and asserted that he told McAfee
that he was taking them. Gripon acknowledged taking partially empty cans of
paint, 2 half-gallons, without telling anyone he was taking them. Gripon acknowl-
edged siphoning some gasoline out of one of Respondent 's trucks one time when he
needed some gas to get to a filling station. Gripon acknowledged tearing down an
old shed and taking the lumber home to build a shed. Stansbury acknowledged
that they were getting ready to haul the shed to the junkyard and that he gave it to
Gripon. McAfee and Stansbury denied that requests were made, or granted, to
borrow a variety of tools, and other enumerated items. In contradiction, Respond-
ent's witness Wiggins asserted that he took paint home after obtaining permission.
The question for resolution is whether Stansbury, in fact, discharged Gentry
and Gripon for pilferage. While it may be assumed, if the pilferage was as wide-
spread as Stansbury sought to establish, that Stansbury had knowledge that pil-
ferage was going on, he acknowledged that on February 18 he did not know who was
engaged in this activity. He did not relate this as a reason for these discharges
to Avis because he had no proof. His asserted reasons for suspicion point only to
Gentry, yet he advanced the same reasons for the discharge of Gripon Stansbury's
testimony was self-contradictory and unconvincing, I find, on the basis of the rec-
ord as a whole, that Respondent, in fact, first learned of the pilferages in which
Gentry and Gripon admittedly participated during the taking of testimony in the
instant case. Insofar as Respondent seeks to establish pilferage as justification for
the discharges, it is predicated upon facts admittedly unknown at that time. There
was no assertion of knowledge or reference to these facts on February 18.45 This
defense, at best, is an afterthought.
Concluding Findings .
There remains for resolution the question of whether Respondent discharged
Gentry and Gripon for reasons proscribed by the Act.
Stansbury asserted his reason for terminating Gentry as "I suspicioned him of be-
ing a thief. He criticized the Company. He criticized me. He was unhappy with
his pay, his hourly scale. He thought he was a privileged character. He faked his
logs. And then he demanded a raise." Stansbury asserted his reasons for terminat-
ing Gripon were: "I suspicioned that he was a thief. He criticized the Company.
He criticized me very vehemently. He thought he was a privileged character."
Stansbury admitted advising a Board investigator that he fired Gentry and Gripon
because they were unhappy with the Company. Stansbury asserted that he advised
Avis that he fired both Gentry and Gripon because "they were very dissatisfied with
44 The evidence permits only a conclusion that the plant was closed on Sunday, since
this was a 6-day-a-week operation.
45 In so finding I am treating solely with the determination, under the Act, of reasons
properly ascribed to the justification of these discharges . I am not passing on the question
of appropriate remedy which is considered , infra.
BIG THREE WELDING EQUIPMENT COMPANY 1705
their work. They were very unhappy people." Thus employee, as distinguished
from employer, dissatisfaction is the premise asserted.
Stansbury did not elaborate on how Gnpon was "inefficient," as related by Smith
as the reason for Gripon's discharge. The fact is that Gripon was performing the
same routine operation for 21/2 years. Similarly, the undisputed fact is that Gentry
was promoted successively from a plant operator trainee, to "a plant operator" with
an experienced helper, then to a full-time operator. The latter promotion occurred
only 5 weeks prior to the date of his discharge. The claim of inefficiency on the part
of Gentry is not substantiated.
I have found, from the testimony of Gentry, Gripon, Phil Lyle, and Haure, that
on February 17, at a meeting of the employees, there was a discussion of pay
raises and working conditions which had been promised by Smith or Stansbury and
not fulfilled The credible evidence reveals that this meeting terminated by Stans-
bury's undertaking to call Smith on Monday morning to get these matters straight-
ened out. It was in this context that Gentry and Gripon were summarily discharged,
without warning, on February 18.
I have found supra, that Gentry, with the aid of East, Gripon, and Robert Lyle,
was the moving force behind the efforts of the employees to organize and to obtain
improvement in wages and working conditions. I have found that the activities of
Gentry, and the activities of East and Robert Lyle, were known to the Respondent.
The activities of Gripon may have been somewhat more obscure. However, the
Board and courts have held the direct knowledge of an employee's union activities
is not a sine qua non for finding that he had been discharged because of such activi-
ties but may be inferred from the record as a whole. The small number of em-
ployees and the abruptness and timing of the discharge are among the factors con-
sidered. Wiese Plow Welding Co., Inc., 123 NLRB 616
I have found supra, that the unconvincing character of the reasons adduced to
support the discharge, as well as the timing of the discharge, are among the factors
appropriately considered in determining the existence or nonexistence of discrimi-
natory motivation.
Upon the entire record as a whole, I believe and hold that Respondent's purported
reasons for discharging Gentry and Gripon were pretexts, and that the real reason
and "moving cause" was the Union and concerted activities of said employees and
said discharges constitute discrimination with respect to their hire and tenure of
employment to discourage membership in a labor organization, in violation of
Section 8 (a) (3) and (1) of the Act.46
F. Interference, restraint, and coercion
Evidence and Findings
The complaint contains 14 specifications of conduct alleged to be in derogation
of the provisions of Section 8(a) (1) of the Act.47 The evidence and findings are
set forth seriatim.
Johnnie Cecil Gripon, credibly testified that one evening shortly before 5 o'clock,
quitting time, a group of employees were in the office ready to punch out when John-
son, office manager, walked in. Johnson observed, "My God, this timeclock is cost-
ing the company more money than it is saving." Gripon responded, "Well, that is
not bad at all. Wait until we go union over here." Johnson responded, "Well, you
know what is going to happen to you if you try to go union over her, they will have
all of you out the gate." 48 Gripon, however, set the time of this event as the early
part of October, then placed it as being after Gentry had gone to the Boilermakers.
4e Even assuming that the Respondent did not discharge East, Gentry and Gripon be-
cause of union activity , but only because they had engaged in concerted activities protected
by Section 7 of the Act , such conduct would nevertheless violate Section 8(a) (1) of the
Act. Whether Respondent ' s conduct be deemed in violation of Section 8(a)(3) and (1),
or only 8 ( a)(1), the remedy would in any event be the same N.L.R.B v. Washington
Aluminum Company, Inc., 370 U S. 9.
47 During the hearing the allegations of paragraph 7, subsections ( h), (k), and ( 1), were
withdrawn.
4e Johnson did not appear as a witness I have found , supra, that Johnson was a super-
visor. McAfee asserted that Johnson could effectively recommend hiring and firing, in
fact, that he had authority to fire employees . McAfee, succeeded Johnson as office manager
McAfee also asserted that he (McAfee ), as assistant to Johnson , could recommend hiring
and firing . The evasiveness of President Smith on the authority of Harold Johnson, par-
ticularly on the question of his ability to effectively recommend hiring and firing, was
unimpressive and is not credited.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have found that Gentry went to the Boilermakers on approximately October 20.
Accordingly, I find Johnson's statement was made at the latter time.
Guy East credibly testified that, on November 6, Johnson inquired as to East's
knowledge of "union talk." When East advised that he had heard about such ac-
tivity, Johnson inquired about East's attitude. East advised he was with the majority.
Johnson then advised East, "Well, don't you know it has been and it always will be
that anybody that talks union talk will be fired?" I find Johnson's quoted statements
were threats and constituted interference, restraint, and coercion in derogation of
the provisions of Section 8(a) (1) of the Act.
It is alleged that on or about November 8, 1962, H. K. Smith offered Respondent's
employees certain fringe benefits and/or improved working conditions, in exchange
for their abandoning further union activities. I have found that Major Butler, on
November 7, after talking to Respondent's employees, advised Smith that he should
come to Orange and handle the matter personally. I have also found that Gentry
advised Smith, at that time, that he (Gentry) represented 95 percent of the em-
ployees. At the meeting with the employees on November 8, Smith asserted that he
had run the Company all his life and intended to continue to run it and no union
was ever going to run it for him.49 Thus the plain import of the promise of benefits,
or palliative, was abandonment by the employees of their union or concerted
activities.
The Board has held: "It is well settled that the test of interference, restraint, and
coercion under Section 8(a) (1) of the Act does not turn on the employer's motive
or on whether the coercion succeeded or failed. The test is whether the employer
engaged in conduct which, it may reasonably be said, tends to interfere with the
free exercise of employee rights under the Act." American Freightways Co., Inc.,
124 NLRB 146.
The benefits herein were not put into effect unconditionally on a permanent basis.
In fact, the failure to place some of them into effect was the essence of the dispute
on February 17, 1963. Nor can it be found that the employees were as free after
the establishment of those benefits which were placed in effect as they were before-
hand to act concertedly, untrammelled by considerations of the impact their decision
would have on their job security, compensation , or relations with the employer.
These benefits were but one part of an overall program of interference and restraint
by the Respondent, as set forth herein.
Interference is no less interference because it is accomplished through allurements
rather than coercion. Western Cartridge Company v. N.L.R.B., 134 F. 2d 240, 244
(C A. 7).
It is well established that an employer cannot offer wage increases conditioned
on the employees' withdrawing from or voting against a union. Medo Photo Supply
Corporation v. N.L.R.B., 321 U.S. 678.
Accordingly, I find Smith's offer of benefits, in the existing context, constituted
interference, restraint, and coercion in derogation of Section 8(a) (1) of the Act
I have found that on November 20, 1962, Smith interrogated East concerning his
union activities, that Smith advised East that he was being discharged because of his
activity, and that Smith advised East that other employees would be discharged for
the same reason. I have also found that on November 20, 1962, Major Butler sought
to convince East that he should admit to Smith that he was the "instigator" of the
concerted activities of the employees to avoid the possibility of a discharge. I find
each of these acts constituted interference, restraint, and coercion in derogation of
the provisions of Section 8 (a)( 1 ) of the Act.
I have found supra, section C that on March 12, 1963, Major Butler told Dewey
Chance that there would be an automatic reduction in force if the Union got in.
I have also found that Chance was the lowest driver in seniority, that Phil Lyle
was the second lowest in seniority, and that both were present when this statement
was made . I find that this statement was a threat, thus it constituted interference,
restraint, and coercion in derogation of the provisions of Section 8(a) (1) of the Act.
It is alleged that on or about February 18, 1963, Stansbury informed an employee
that his discharge was because of his union or concerted activities. While this may
have been the intended import of Gentry's testimony relative to what Stansbury
said to Gentry at the time of his discharge , I find no evidence upon which such a
statement may reasonably be inferred . Accordingly, I will recommend dismissal
of the specification of paragraph 7 (i) of the complaint.
49 Phil Lyle asserted that Smith told the employees "he believed he could handle it with-
out a union , that he had been running the Company all them years without a union, that
he would like for it to stay like it is, if we could see fit." I credit Lyle.
BIG THREE WELDING EQUIPMENT COMPANY 1707
It is alleged that on or about February 18, 1963, H. K. Smith informed an em-
ployee that his discharge was because said employee had engaged in a protected
concerted activity. I have found that Smith did advise Gentry that Smith had heard
that Gentry had engaged in a strike. This was the basis for Smith's refusal to discuss
Gentry's discharge. There is no evidence that Smith asserted that the strike was
the basis or reason for the discharge. There was, in fact, no strike. I will recom-
mend dismissal of the allegations of paragraph 7(j) of the complaint.
It is alleged that on or about March 12, 1963, Major Butler procured employees
to execute affidavits refuting the Union. The evidence is that Major Butler was
present on March 11 when circulation of a petition disclaiming interest in an
election was discussed. There is no evidence which would reasonably support a
finding that Butler prevailed upon Robert Lyle to prepare or circulate the disclaimer
petition or that Butler was active in obtaining any signatures thereto, as distinguished
from the other activities of Butler on March 12, which I have found above. It
is evident, however, that Lyle's activities were performed during normal worktime.
Accordingly, I will recommend dismissal of the allegation of paragraph 7(m) of the
complaint.
I have indicated above numerous credibility determinations, and some of the basis
of these determinations. In addition, I have considered: the demeanor of the wit-
nesses; and the plausibility or implausibility of the testimony of a particular witness
in the light of the record as a whole, including apparent discrepancies, faulty
memories, evident inaccuracies, and self-contradictions. I have also considered the
interest of a particular witness in the outcome of the case or lack of such interest,
and where the witness was still an employee of the Respondent, I have considered
that factor.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship 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 obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain un-
fair labor practices, it will be recommended that it cease and desist therefrom and take
affirmative action designed to effectuate the policies of the Act
Respondent having discharged Guy W. East, Ruble C. Gentry, Jr., and Johnnie
Cecil Gripon, because of their union and concerted activities, I recommend that
Respondent offer to them immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and other rights
and privileges, and make each of them whole for any loss of pay each may have
suffered by reason of Respondent's discrimination against each, by a payment to
each of a sum of money equal to that which each normally would have earned as
wages from the date of the discharge of each, November 20, 1962, as to East, and
February 18, 1963, as to Gentry and Gripon, to the date when, pursuant to the recom-
mendations herein contained, Respondent shall offer each of them reinstatement
less the net earnings of each during said period 50 Said backpay shall be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. Interest on backpay shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that Respondent be ordered to make available to the
Board, upon request, payroll and other records to facilitate checking of the amount
of earnings due.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon rights guaranteed to its employees by Section 7 of the
Act.
101n so recommending, I am not unmindful of the petty pilfering advanced by Respond-
ent as a reason for the discharges of Gentry and Gripon I find the evidence herein in-
adequate to modify the normal recommendation of reinstatement. N.L R.B. v. Sunnyland
Packing Co, 211 F. 2d 923 (C.A. 5).
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Brotherhood of Boilermakers , Iron Shipbuilders , Blacksmiths,
Forgers and Helpers, AFL-CIO, and the employee representation committee or plan
are each a labor organization within the meaning of Section 2 ( 5) of the Act.
3. By engaging in the conduct set forth in the section entitled "Interference,
Restraint , and Coercion ," to the extent therein found , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. By discriminating with respect to the hire and tenure of employment of Guy
W. East, Ruble C. Gentry, Jr, and Johnnie Cecil Gripon, thereby discouraging
the free exercise of the rights guaranteed by Section 7 of the Act , and discouraging
membership in and activities for the above -named labor organizations , the Respond-
ents have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (3) and ( 1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record of the case , I recommend that the Respondent, Big Three Welding
Equipment Company, its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the International Brotherhood of Boilermakeis,
Iron Shipbuilders , Blacksmiths , Forgers and Helpers, AFL-CIO, or an employee
representation committee or plan, or any other labor organization of their em-
ployees, by discharging or refusing to reinstate employees , or in any other manner
discriminating against them in regard to their hire and tenure of employment or
condition of employment.
(b) Interrogating any of its employees concerning organizational activities, or
threatening economic retaliation if any employee engages in such activity , in a man-
ner constituting interference , restraint , or coercion in violation of Section 8(a) (1)
of the Act.
(c) Interfering with , restraining , or coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act by granting them economic benefits or by chang-
ing the terms and conditions of their employment ; provided , however, that nothing
in this Recommended Order shall be construed as requiring the Respondent to vary
or abandon any economic benefit or any term or condition of employment which
it has heretofore established.
(d) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right of self-organization , to form labor organizations , to join or
assist the above-named Union or representation committee or plan, or any other
labor organization , to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activity for the purpose of collective
bargaining or other mutual aid or protection or to refrain from any and all such
activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer to Guy W. East, Ruble C. Gentry, Jr., and Johnnie Cecil Gripon im-
mediate and full reinstatement to their former or a substantially equivalent position,
without prejudice to their seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay they may have suffered by reason of Re-
spondent 's discrimination against them in accordance with the recommendations set
forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records, social security payment, records, time-
cards , personnel records and reports, and all other records necessary to analyze the
amounts of backpay due and the right of employment under the terms of the
Recommended Order herein.
BIG THREE WELDING EQUIPMENT COMPANY 1709
(c) Post at its place of business in Orange, Texas, copies of the attached notice
marked "Appendix." 51 Copies of said notice, to be furnished by the Regional
Director for the Twenty-third Region, shall, after being duly signed by the Respond-
ent, be posted by it immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that such notices are not faltered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this report, what steps Respondent has taken
to comply with the foregoing Recommended Order.
It is further recommended that unless within 20 days from the date of the receipt
of this Intermediate Report, the Respondent shall notify the said Regional Direc-
tor, in writing, that it will comply with the foregoing Recommended Order,52 the
National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
It is further recommended that the allegations in paragraphs 7(i), (j), and (m)
of the complaint be dismissed.
In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of the United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" will be substituted for the words "A Deci-
sion and Order."
5i In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply therewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or an
employee representation committee or plan, or any other labor organization of
our employees, by discriminating in regard to their hire and/or tenure of
employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their interest in, or
intentions with respect to, joining the above named or any other labor organiza-
tion, or threaten said employees with economic reprisals because they engage in
protected activities, in a manner constituting interference, restraint, or coercion,
violative of Section 8 (a) (1) of the Act.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of rights guaranteed in Section 7 of the Act, by granting them economic benefits
or by changing the terms and conditions of their employment, provided, how-
ever, that nothing in the "recommendations" requires us to vary or abandon
any economic benefit or any term or condition of employment which has hereto-
fore been established.
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 orga-
nizations, to join or assist International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or an employee
representation committee or plan, 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 collective bargaining or of mutual
aid or protection, or to refrain from any and all such activities.
WE WILL offer to Guy W. East, Ruble C. Gentry, Jr., and Johnnie Cecil
Gripon immediate and full reinstatement to their former or substantially
equivalent position, without prejudice to seniority or other rights and privileges,
and make them whole for any loss of salary or pay suffered as a result of the
discrimination against them.
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, to remain , or to refrain from becoming or
remaining members of a labor organization of their own choosing.
BIG THREE WELDING EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue , Houston 2, Texas, Telephone No.
Capitol 8-0611, Extension 271, if they have any question concerning this notice or
compliance with its provisions.
Mastro Plastics Corporation and French-American Reeds Manu-
facturing Co., Inc. and Local 3127, United Brotherhood of
Carpenters and Joiners of America . Case No. 2-CA-179.9. Feb-
ruary 12, 1964
SECOND SUPPLEMENTAL DECISION AND ORDER
On March 13, 1953, the National Labor Relations Board issued a
Decision and Order in the above-entitled case,' directing, inter alia,
that the Respondent make whole certain employees discriminatorily
discharged by the Respondent. Thereafter, the Board's Order was
enforced in full by the United States Court of Appeals for the Second
Circuit on July 16, 1954,1 and subsequently that judgment was affirmed
by the United States Supreme Court on February 27, 1956.'
On June 14, 1960, the Regional Director for the Second Region
issued a backpay specification, and, after several procedural diffi-
culties, the Respondent filed a sufficient answer. Upon appropriate
notice, a hearing was held before Trial Examiner Morton D.
Friedman for the purpose of determining the amounts of backpay
due the claimants. On April 24, 1962, the Board issued its Supple-
mental Decision and Order,4 adopting, inter alia, the Trial Examiner's
recommendation that the amounts of backpay specified as to nine
employees who could not be located' be held in escrow until such
time as the Respondent and the General Counsel were afforded a
reasonable opportunity to examine these claimants.
Pursuant to the Board's Order of April 29, 1963, a second supple-
mental hearing was held before Trial Examiner Morton D. Friedman
on July 17 and 18, 1963, to examine the nine claimants. The testi-
1103 NLRB 511.
3 N.L.R.B. v. Mastro Plastics Corp., at at., 214 F. 2d 462 (C.A. 2).
3 Mastro Plastics Corp., et at. v. N.L.R.B., 350 U.S. 270.
4 136 NLRB 1342.
6 Jose Avalo , Luis Diaz , Peter Golpe , Isiah Smith , Salvatore Tripolone , Henry Vargas,
Katherine Crawford Rall, Thelma Del bagno Fisher, and Michael valentine.
145 NLRB No. 158.