Camco, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1962

140 N.L.R.B. 361 (N.L.R.B. 1962)

CAMCO, INCORPORATED 361
York metropolitan area on the premises at which the picketing, herein found to be
unlawful, has or is being engaged in by .the Respondent Union.
(c) Notify the said Regional Director, in writing, within 20 days from its receipt
of this Recommended Order, what steps the Respondent Union has taken to comply
therewith.7
It is further recommended .that, unless the Respondent notifies said Regional Direc-
tor within 20 days that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take the
action aforesaid.
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 140 BEDDING, CURTAIN & DRAPERY WORKERS
UNION, UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO
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 you: that:
WE WILL NOT, under any conditions prohibited by Section 8(b)(7) of .the
Act, picket or cause to be picketed, or threaten to picket or cause to be picketed
The Waterbury Mattress Company or Sealy Greater New York, Inc., where
an object thereof is to force or require them to bargain with us concerning the
hiring or reinstatement of their employees, unless and until we be currently
certified as the representative of such employees under the provisions of Section
9 of the National Labor Relations Act.
WE WILL NOT by picketing , threaten, coerce, or restrain Jacob Davis d/b/a
Jerome Furniture Co., Ralph L. Winston, Inc., Seymour Studin and Abraham
Studin, d/b/a Madison Quilt and Mattress Shop, Mancuse Furniture Corpora-
tion, Fleischer Brothers Furniture Corporation, Abraham & Straus, Inc., Major
Furniture, Inc., or other retail establishments engaged in commerce, as defined
in the Act, within the New York metropolitan area, where an object thereof is
to force or require such employers to cease using, selling, or otherwise dealing
in products manufactured and distributed by The Waterbury Mattress Company
and Sealy Greater New York, Inc., or to cease doing business with such persons,
or forcing or requiring such employers .to bargain with us concerning .the hiring
or reinstatement of their employees, unless and until we be currently certified
as the representative of such employees under the provisions of Section 9 of the
National Labor Relations Act.
LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION,
UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
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, 745 Fifth
Avenue, New York 22, New York, Telephone No. Plaza .1-5500, if they have any
question concerning this notice or compliance with its provisions.
Camco , Incorporated and District Lodge No. 37 , International
Association of Machinists , AFL-CIO. Case No. 23-CA-1393.
December 28, 1962
DECISION AND ORDER
On August 9, 1962, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that
140 NLRB No. 27.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in certain "technical violations" of the
National Labor Relations Act, but that it had not engaged in other
unfair labor practices as alleged in the complaint, and recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Intermediate Report. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Art, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and finds merit in the exceptions of the General Counsel. We there-
fore adopt the findings and conclusions of the Trial Examiner only to
the extent that they are consistent herewith.
1. The complaint alleged that between February 9 and 16, 1962,1
the Respondent, by interrogating employees about their union activi-
ties and by threatening employees that they would be discharged if
they engaged in union activities, violated Section 8 (a) (1) of the
Act. The Trial Examiner, while concluding that the Respondent
made certain statements to employees which constituted "technical
violations" of the Act, found that these violations did not warrant
the issuance of a cease-and-desist order. We do not agree that a
remedial order is not warranted under the circumstances of this case.
As found by the Trial Examiner, on seven different occasions in a
period of 3 days between February 13 and 15, Respondent's super-
visors interrogated employees concerning their union activities. Thus,
on February 15, Shop Superintendent Walter Theek asked employee
Locke if he had attended the union meeting and mentioned the
benefits that the Respondent had given the employees; on February
13, Foreman J. C. Cook asked Locke whether he had heard rumors
"going around" about a union and he also told Locke "to keep his
feet on the ground" and that it would be to Locke's benefit if he
"stayed out of it"; and during this same period, Foreman Arthur
O'Pry on separate occasions asked employees McCall, Clepper, Cox,
Yeager, and Williams whether they had attended the union meeting.
We find that by this extensive campaign of interrogation, coupled
with promises of benefit and implied threats, the Respondent re-
strained and coerced employees in violation of Section 8(a) (1) of
the Act,' and that this coercive conduct warrants the issuance of a
remedial order.'
1 Unless otherwise specified, all dates are in 1962
2 We deem it unnecessary to consider other conduct also alleged as violations of Sec-
tion 8(a) (1) of the Act as any findings thereon would not affect the scope of the Order
herein.
s Alamo Linen Service, 136 NLRB 1127.
CAMCO, INCORPORATED 363
2. The complaint further alleges that by discharging 11 employees
between February 13 and 16 because they had joined or assisted the
Union, the Respondent violated Section 8(a) (3) and (1) of the Act.
The Trial Examiner found that the General Counsel failed to sus-
tain his burden of proof and recommended dismissal of these allega-
tions of the complaint.
In the early part of February, the Respondent had approximately
120 production and maintenance employees at its Houston, Texas,
plant. Approximately 95 of these employees worked in the machine
shop and tooling departments.' Of these 95 machine shop and tool em-
ployees, 16 attended a union organizing meeting on February 10.
On February 13, 1 employee 5 was terminated 6 by the Respondent and,
on February 16, 10 more employees' were terminated. No other
production and maintenance employees were terminated by the Re-
spondent during February,8 and all of the 11 terminated employees
had attended the union meeting.
The Trial Examiner found that the 10 employees terminated on
February 16 were selected for discharge on a nondiscriminatory basis,
as part of a reduction in force made necessary by a decline in the Re-
spondent's business; that the 11th employee, McMen, Was discharged
on February 13 because the Respondent was not satisfied with his
work; that Irby, one of the employees laid off in the reduction in force,
was terminated for the additional reason that there was a threatened
garnishment against his wages; and that McCall, who Was also one of
the employees selected for termination in the reduction in force, had
quit his job before he was laid off.
We disagree with the Trial Examiner and find that by terminating
these 11 employees the Respondent violated Section 8 (a) (3) and (1)
of the Act. In making this finding we shall assume, as the Trial Ex-
aminer found, that there was in fact an economic justification for the
Respondent's reducing its employee complement during February.'
However, we are convinced that the particular employees who were
terminated by the Respondent were selected for termination not be-
4 These employment figures are taken from a listing of maintenance and production
employees prepared by the Respondent and admitted into evidence at the hearing.
John McMen.
e As the Respondent does not normally rehire employees who are laid off or terminated,
such layoff or termination is equivalent to discharge.
7 William J. Locke, Jr., Harold C. Carrier , Dwain M. Irby, James L. Ledbetter , John W.
Hughes, Robert S. Barnett, William M . Bownds, Jimmy Lynn Cox ( name corrected at the
hearing ), Delbert G . Clepper, and Jeffrey L. McCall.
8 The Trial Examiner found that 15 employees were laid off in February . However, the
record establishes that only 11 employees were terminated by the Respondent and that,
in addition to these 11 terminations , 4 employees quit during February and 2 others went
on leave of absence.
8 We note, however , that the record is not entirely clear as to whether in fact there was
any economic basis for these terminations . Thus, two of the Respondent 's employees
terminated on February 16 had been working on the Respondent ' s automatic screw ma-
chines, apparently doing the same type of work as that which was subcontracted out at
approximately the same time . In addition , within 2 or 3 weeks after the February 16
terminations , the Respondent began to replace the terminated employees
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of lawful considerations, but rather because of their union
activity.
In the first place, the record establishes, and we find, that the Re-
spondent at the time of the discharges knew which of its employees
had engaged in union activities. Foreman O'Pry, one of the Respond-
ent's supervisors, admitted that he knew that a union meeting was go-
ing to take place on February 10. We have also found that, just prior
to the February 16 terminations, the Respondent had engaged in an
extensive campaign of unlawfully interrogating employees as to
whether they had attended the union meeting. In view of these facts,
there is ample reason to infer that the Respondent had, as of that time,
learned which of its employees had attended the meeting.1° We also
regard as significant in this connection the timing of the discharge
so soon after the union meeting. Thus, as noted, Foreman O'Pry ad-
mitted that on February 9 he had heard of the union meeting scheduled
for the next day. On February 10, 16 employees attended this meeting.
On February 13, McMen, one of the leaders in the organizing attempt,
was discharged, and, on the same day, the Respondent's supervisors
began a 3-day campaign of interrogating employees about the union
meeting. On February 16, 10 more of the employees who were at the
union meeting, and no others, were terminated. The timing of the
terminations of those who had attended the union meeting, so soon
after that meeting and immediately after the Respondent had ascer-
tained which employees had attended the meeting, is in itself persua-
sive evidence that the terminations were related to the union activities
of the employees.
Finally, the Respondent has clearly manifested its hostility to the
union organization. This animus is established by the Respondent's
above-described unlawful interrogation of employees, which included
explicit statements by the Respondent that employees would "benefit"
if they rejected the Union and the suggestion that employees would
suffer if they joined the Union."
The foregoing facts establish, in our opinion, a strong prima facie
case of discriminatory selection. The Respondent's defense, which
the Trial Examiner accepted, is essentially that the 10 employees dis-
charged on February 16 were selected for discharge on February 8,
before the Union activity began, and hence the discharges could not
have been based on the union activity of its employees.12 According to
10 In this connection, it is significant, we think, that of the six employees admittedly
interrogated by the Respondent, five had attended the union meeting This fact is per-
suasive evidence that at the time of the interrogation the Respondent was already in
possession of information regarding the union meeting and that it selected for questioning
those employees who it had reason to believe had attended the meeting.
' Thus, Foreman Cook admitted that on February 13 he told employee Locke that it
would be to his "benefit" for Locke to stay out of the Union and that he should "keep his
feet on the ground."
12 The Respondent's additional defenses as to employees MeMen, Irby, and McCall are
treated separately below.
CAMCO, INCORPORATED 365
the Respondent, its business declined substantially during the latter
part of 1961; and this resulted in the reduction of the number of em-
ployees in the manufacturing departments during January 1962 by
Tightly less than 15 percent, including retirements, resignations, and
terminations. When business did not pick up in January, Respondent
claims that it decided further to reduce its working force by 12 to 14
employees during February; that pursuant to this decision, on Febru-
ary 2, Shop Superintendent Theek was instructed to give Vice Presi-
dent Albert A. Hughes the names of employees selected for termina-
tion; and that, on February 8, 2 days before the union meeting, Theek
submitted a list with the names of the 10 employees to Hughes. Ac-
cording to the Respondent's testimony, which the Trial Examiner
credited, these 10 employees are the same 10 employees who were
terminated on February 16.
Unlike the Trial Examiner, we are unable to accept this explanation
for the February terminations. As noted, the Respondent employs
95 employees in its machine and tooling departments; 16 of these
employees attended a union meeting; and, of these, 11 employees, all
of whom had attended the union meeting, were terminated during
February. The Respondent contends in effect that it was by chance
that all the terminated employees attended the February 10 meeting.
While it may be theoretically possible that the Respondent should
have fortuitously selected for termination only those employees active
in the Union, commonsense and the laws of mathematical probability
indicate that such fortuity was highly improbable.13 In addition
to the mathematical improbabilities involved in the Respondent's
argument that it selected these employees for discharge without refer-
ence to their union activity, the Respondent's explanation as to why
these particular employees were selected as part of the reduction
in force is unpersuasive. Foreman O'Pry testified that he selected four
employees for termination because he "had some trouble with them,
keeping them working" and because he "couldn't handle these people
as well as I could some of the others." Foreman Cook explained that
lie selected four other employees for discharge because "they were away
from the machine a lot" and because they did "too much walking
around the shop." No explanation was offered for the selection of two
other employees terminated February 16. Further, we note that
the Respondent's explanation for the February 16 terminations leaves
unexplained certain significant differences between the timing of its
January reduction in force and the reduction in force that took place
13 On the basis of pure chance and eliminating all other factors , the probability of select-
ing for termination , among 95 employees of whom 16 were union adherents , 11 union
adherents and no others , computed on the basis of the applicable formula, would be
1 chance out of 17 9 billion. Uspensky, Introduction to Mathematical Probability
('McGraw-Hill, 1937), ch 1, cited in Syracuse Tank & Manufacturing Company, Inc,
133 NLRB 513, 525.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in February. Thus, when in January the Respondent determined to
lay off employees for economic reasons, all but 2 of the 12 employees
affected were terminated by January 5. However, in February,
despite the fact that according to the Respondent the decision to
terminate employees was made on February 2, and the names were
selected by February 8, the terminations were not made until Feb-
ruary 16. The Respondent offered no explanation why, in February,
it took over a week to terminate the employees once they had been
selected for termination and, also, why it took 16 days in February
to effectuate terminations which in January were essentially com-
pleted in 5 days. This discrepancy we believe is a further indication
that the Respondent selected the particular employees to be terminated
in February only after it learned which employees attended the union
meeting on February 10.
Where, as here, there is a showing of such great mathematical im-
probability, and there is added independent evidence of employer
hostility to union organization and of contemporaneous unlawful
conduct designed to frustrate union organization, and particularly
where, also as here, the terminations appear closely related in point
of timing to a critical stage of union organization, and the explana-
tions are unpersuasive and do Dot withstand independent scrutiny,
these circumstances combine to provide very persuasive evidence of a
discriminatory motive."
As we have indicated, the Trial Examiner credited the testimony
of the Respondent's witnesses that the Respondent had selected 10
employees for discharge on February 8, before it had learned of their
union activity. However, we have already found that the record
establishes that these employees were selected for discharge because
they had attended the union meeting. In view of the foregoing, we
find that the Trial Examiner's credibility resolutions are contrary to
a clear preponderance of the relevant evidence and we shall therefore
overrule them.15
We shall now turn to the Respondent's contentions that employees
McMen and Irby were discharged for cause.l5
14 Syracuse Tank & Manufacturing Company, Inc., supra, and cases cited therein
15 Salant & Salant, Incorporated , 92 NLRB 417 , 424; N L R B v. Pyne Moulding Corpo-
ration, 226 F . 2d 818 ( CA 2), enfg 110 NLRB 1700; Standard Dry Wall Products, Inc.,
91 NLRB 544 , 545, enfd . 188 F. 2d 362 (CA. 3).
19 The Respondent also contended , and the Trial Examiner found, that McCall, 1 of the
10 employees selected for discharge on February 8, had not been terminated by the Re-
spondent but had quit his job While it is undisputed that, on February 15, McCall had
applied for work at another plant and had indicated that lie was available to begin on
February 19, McCall testified without contradiction that when he went to Respondent's
office to get his final paycheck , he was told by Hughes that he was being laid off for eco-
nomic reasons Although O'Pry testified that Mrs McCall called him on February 16 and
told him that her husband had found a new job, both McCall and his wife denied that
Mrs. McCall made this statement, and vice President Hughes admitted that , as late as
April 6, the Respondent understood that McCall had been terminated and it was only
CAMCO, INCORPORATED 367
The Respondent contended, and the Trial Examiner found, that
the Respondent discharged employee McMen on February 13 because
Vice President Hughes was dissatisfied with his work. We disagree.
The Trial Examiner relied on Vice President Hughes' testimony that
lie was responsible for McMen's discharge; that he had become dis-
satisfied with the operation of the tool crib, where McMen worked,
because of the too frequent reorders of expendable tools, and decided
to "clean house"; 17 and that Hughes had heard complaints from
foremen and had overheard employees complain about having to
wait at McMen's tool crib window for tools and having received
wrong tools. However, Hughes admitted that at no time did he
complain to McMen about his work and, while Hughes testified that
he mentioned his dissatisfaction with McMen to Logan, McMen's
foreman,18 McMen's uncontradicted testimony was that neither Logan
nor any other supervisor or employee complained to him about his
operation of the tool crib. Moreover, the record shows that McMen
was a leader in the union organizing campaign; that about the first
of February, Logan told him that he had done a good job and that
he had recommended him for a 20-cent raise; and that after Morgan
went on a leave of absence, on February 9, Logan transferred McMen
to the first shift at the tool crib which entailed added responsibilities,
such as ordering of tools and the training of a new man for the crib.
Under these circumstances, and in view of our findings, supra, of dis-
criminatory selection, we are convinced that Hughes' dissatisfaction
with McMen's work was a pretext and that McMen was discharged
for union activity.
The Respondent contended further, and the Trial Examiner found,
that employee Irby, who was 1 of the 10 employees allegedly se-
lected by the Respondent for termination on February 8, was dis-
charged for cause on February 16 for the additional reason that there
had been a threatened garnishment against his wages. We do not
agree. As found by the Trial Examiner, the respondent had promul-
gated a rule that employees who were subjected to garnishment were
subject to immediate dismissal and that the Respondent had been
notified by a local store that Irby was past due $68 on a credit
account and garnishment was threatened. However, the Respondent
received information of Irby's possible garnishment on the morning
of February 14 and yet Vice President Hughes took no action to
subsequently that it learned about his February 15 application for a new j ob In view of
these facts , we find that McCall had not quit the Respondent 's employ prior to his
termination on February 16.
11 The record shows that there were two employees in charge of the tool crib Morgan
on the first shift and McMen on the second. Although Hughes admitted that he con-
sidered both tool crib attendants responsible for the alleged faulty operations, so far as
appears from the record , Morgan was not discharged.
11 Logan did not testify at the hearing.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge Irby until February 16,19 on the same day that nine other
employees were unlawfully terminated for discriminatory reasons.
Further, although the Respondent testified that it had enforced this
rule, there is no evidence that this rule had been strictly applied
in the past in all situations, such as this, where the Respondent had
merely received a notification that an employee's wages might be
garnisheed sometime in the future.20 Under these circumstances,
and in view of our earlier finding that all 11 employees named in the
complaint, including Irby, were selected for termination because of
their union activity, we find, unlike the Trial Examiner, that the
additional reason advanced by the Respondent for Irby's discharge
was merely a pretext and that Irby was terminated for discriminatory
reasons.
In view of the foregoing, and on the record as a whole, we find
that the Respondent discriminatorily discharged 11 employees on
February 13 and 16, in violation of Section 8 (a) (3) and (1) of
the Act.
TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of Cameo, Incorporated, as set forth in
section I of the Intermediate Report, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action in order to effectuate the policies of
the Act.
We have found that the Respondent discriminatorily selected 11
employees for termination in February 1962. However, as noted
above, it appears from the record that the Respondent may have been
economically justified in terminating some of its employees during
February. While it is possible that some of the discriminatorily
terminated employees might have been affected by such nondiscrimina-
tory reduction of personnel, the record furnishes no basis for determin-
ing the order in which they might have been terminated. Under
these circumstances, we shall order the Respondent to offer, to the
16 While Hughes testified that he did not see the warning letter until February 16, it
was stamped as being received at the Respondent 's office at 10:15 a m. on February 14.
21 In this connection , we note that the Respondent had a fund from which employees
could borrow money, ostensibly for this type of emergency . There is no indication that
the Respondent offered Irby any financial assistance from the fund , nor is there any evi-
dence that Irby's wages had ever been garnisheed or had been subjected to garnishment
before.
CAMCO, INCORPORATED 369
hereafter named employees who were unlawfully terminated in Febru-
ary and who have not been recalled for employment, immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
and, in the event that there is insufficient work for all such employees,
to dismiss, if necessary, all persons who were newly hired after the
discriminatory terminations in February. If there is not then sufficient
work for the remaining employees and those to be offered reinstate-
ment, all available positions shall be distributed among them without
discrimination against any employee because of concerted activities,
in accordance with a system of seniority or other nondiscriminatory
basis. The Respondent shall place those employees, if any, for whom
no employment is available after such distribution on a preferential
list, with priority in accordance with a system of seniority or other
nondiscriminatory basis, and thereafter offer them reinstatement as
such employment becomes available and before other persons are hired
for such work :
John McMen Robert S. Barnett
William J. Locke, Jr. William M. Bownds
Dwain M. Irby Delbert G. Clepper
James L. Ledbetter Jeffrey L. McCall
John W. Hughes Harold C. Carrier
Jimmy Lynn Cox
We shall also order the Respondent to make whole the above-named
employees, against whom it has discriminated, for any losses they may
have suffered because of the Respondent's discrimination, by payment
to each of them of a sum of money equal to the amount that he nor-
inally would have earned as wages from the date of such discrimination
to the date of the offer of reinstatement, or placement on a preferential
list, as the case may be, less his net earnings during said period, the
backpay to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294,
and shall include the payment of interest at the rate of 6 percent per
annum to be computed in the manner set forth in Isis Pbumbing di
Heating Co., 138 NLRB 716 .21
As it is possible, however, that one or more of these employees might
have been discharged in a reduction of the work force even if the
Respondent had selected employees for discharge on a nondiscrimina-
tory basis, this possibility will be taken into consideration in determin-
ing the amounts of backpay due to these employees in compliance with
our Order herein.
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and other unfair labor
' Member Leedom dissents from the inclusion of interest on the baekpay obligation for
the reasons stated in the dissent in the Isis Plumbing case.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices may be anticipated. We shall therefore order that the Re-
spondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Cameo, Incorporated, the Respondent herein, is an employer
within the meaning of Section 2 (2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. District Lodge No. 37, International Association of Machinists,
AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
3. By discriminating in regard to the hire and tenure of employment
of John McMen, William J. Locke, Jr., Harold C. Carrier, Dwain M.
Irby, James L. Ledbetter, John W. Hughes, Robert S. Barnett, Wil-
liam M. Bownds, Jimmy Lynn Cox, Delbert G. Clepper, and Jeffrey
L. McCall because of their activity on behalf of District Lodge
No. 37, International Association of Machinists, AFL-CIO, Re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) and (3) of the Act.
4. By the foregoing conduct, and by interrogating employees as to
their concerted activities, Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed them
in Section 7, in violation of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Cameo, Incorporated,
Houston, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in District Lodge No. 37, Interna-
tional Association of Machinists, AFL-CIO, or in any other labor
organization of its employees, by discriminatorily discharging, ter-
minating, or laying off any employee, or in any other manner discrim-
inating against any employee in regard to hire, tenure, or any other
term or condition of employment.
(b) Interrogating employees concerning their membership in, or
activities in behalf of, the above-named labor organization, or any
other labor organization, in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist the above -named labor organiza-
CAMCO, INCORPORATED 371
tion, or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in other concerted
activities for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to John McMen, William J. Locke, Jr., Harold C. Car-
rier, Dwain M. Irby, James L. Ledbetter, John W. Hughes, Robert
S. Barnett, William M. Bownds, Jimmy Lynn Cox, Delbert G. Clepper,
and Jeffrey L. McCall immediate and full reinstatement to their for-
mer or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make each of them whole
for any loss of earnings suffered by reason of the discrimination
against him in the manner set forth in the section above entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records , social se-
curity payment records, timecards, personnel records and reports, and
all other reports necessary to analyze the amount of backpay due and
the right to reinstatement.
(c) Post at its plant at Houston, Texas, copies of the attached
notice marked "Appendix." 22 Copies of such notice, to be furnished
by the Regional Director for the Twenty-third Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
22 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in District Lodge No. 37,
International Association of Machinists, AFL-CIO, or any other
labor organization of our employees, by discharging, terminating,
681-492-63-vol. 140-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or laying off any employee or in any other manner discriminating
in regard to their hire, tenure of employment, or any term or con-
dition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, the above-named labor
organization, or any other labor organization, in a manner consti-
tuting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act.
WE WILL offer John McMen, William J. Locke, Jr., Harold C.
Carrier, Dwain M. Irby, James L. Ledbetter, John W. Hughes,
Robert S. Barnett, William M. Bownds, Jimmy Lynn Cox, Del-
bert G. Clepper, and Jeffrey L. McCall immediate and full re-
instatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may have suf-
fered as a result of the discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization.
CADiCO, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act after discharge from the Armed Forces.
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 296, if they have any
questions concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10 (b) of the National Labor Relations
Act, as amended , 29 U.S.C. 151 et seq., herein called the Act.
CAMCO, INCORPORATED 373
On March 12, 1962, District Lodge No. 37, International Association of Machinists,
AFL-CIO (hereinafter sometimes called District Lodge No. 37 or the Union), filed
a charge against Camco, Incorporated (hereinafter sometimes called the Respondent
or the Company), and on April 26, 1962, filed an amended charge against the
Company, the charge and the amended charge each alleging that it had engaged in
unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act.
The General Counsel of the National Labor Relations Board, by the Regional
Director for the Twenty-third Region, on April 27, 1962, issued a complaint against
the Respondent in which it was alleged that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act by interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act; by interrogating certain employees
concerning their union activities; by threatening them with discharge or plant shut-
down because of their union activity; and by discharging 1 employee on February 13,
and 10 employees on or about February 16, 1962, because those employees joined
or assisted the Union or engaged in other union activities or concerted activities for
the purpose of collective bargaining or other mutual aid or protection. In its answer
to the complaint, the Respondent effectively denied the allegations of violations
of the Act.
Upon the issues framed by the complaint and the answer, this case came on to be
heard before Trial Examiner Arthur E. Reyman at Houston, Texas, on June 11,
1962, and was closed on June 13. The General Counsel and the Respondent were
represented by counsel and the Union by an International representative. Each party
was afforded full opportunity to be heard, to examine and cross-examine witnesses,
to introduce evidence pertinent to the issues, and to present oral argument on the
record. Briefs have been submitted on behalf of the General Counsel and the
Respondent and have been carefully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF CAMCO, INCORPORATED
The Respondent is, and has been at all times material hereto, a corporation duly
organized under, and existing by virtue of, the laws of the State of Texas, having
its principal place of business at 7010 Ardmore, Houston, Texas, where it is engaged
in the manufacture and sale of precision valves, regulators, and controllers. During
the 12-month period immediately preceding the issuance of the complaint herein,
the Respondent received gross revenues in excess of $500,000. During said period,
the Respondent also shipped, in the course and conduct of its business operations,
products valued in excess of $50,000 directly to States of the United States other
than the State of Texas.
The Respondent is now and has been, at all times material hereto, engaged in
commerce and in operations affecting commerce as defined in Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 37, International Association of Machinists, AFL-CIO, is,
and has been at all material times, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The termination of employment of certain employees on February 13 and 16, 1962
Principally to be resolved herein is the question of whether the Company accom-
plished a bona fide reduction in force by reason of a decline in its business or whether
the decline in business was used as pretext or subterfuge to discharge 11 employees, 1
on February 13 and 10 on February 16, 1962, because they had joined or assisted the
Union or engaged in other union activities or concerted activities for the purpose
of collective bargaining or other mutual aid or protection.'
Harold Edward McGowen, president of the Company, and Albert A. Hughes, its
vice president in charge of production, conferred in November or December 1961
concerning the cutting of the cost of operations because of the declining volume of
I The complaint alleges that John McMen was discharged on or about February 13, and
that William J Locke, Jr, Harold C. Carrier, Dwain M. Irby, James L Ledbetter, John
W. Hughes, Robert S. Barnett, William M. Bownds, James L. (Jimmy Lynn) Cox, Delbert
G. Clepper, and Jeffrey L. McCall were discharged on or about February 16, 1962.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business of the Company at that time when usually it should be moving up instead
of down. The decline in production was mainly due to damage caused by Hurricane
Carla. At that time they reached a decision to reduce overhead and expenses, but
postponed making a reduction in force until after the Christmas holidays. Between
them, it was agreed that operating expenses in the amount of $12,000 should be
trimmed from the manufacturing operations, and that $30,000 per month in expenses
had to be reduced overall. On January 2, 1962,2 President McGowen gave Vice
President Hughes instructions to immediately reduce personnel in the manufacturing
department.3 At that time the decision for further reduction in personnel after the
January reports of business were reviewed was made McGowen's instructions to
Hughes were for him to proceed with a reduction in force to conform to the
budgeted amount of reductions deemed necessary in the manufacturing department.
McGowen testified that the January (and later February 1962) layoffs were similar
and made under the same circumstances as prior layoffs within the Company occa-
sioned by the oil industry crash which occurred in the year 1957.
Employees I. Thomas, E. Alexander, and V. Morris were retired with full retire-
ment benefits effective January 5. Four persons were terminated on January 4, six
employees were terminated on January 5; and one employee was terminated on
January 8. These terminations, together with resignations, resulted in a total of 18
terminations in the manufacturing departments in January. Reductions in force also
occurred in January in the Company's engineering, sales, office personnel, field per-
sonnel, inspection, and accounting departments.
The standard used in determining who was to be terminated, other than voluntary
quits, was that ability and attitude came first and, everything else being equal, seniority
was then considered
In February, after a review of the sales figure for January, another reduction in
force occurred in the various departments. The advertising department was
abolished. It was then decided that the working force should be reduced by 12 to 14
employees. Thereupon, Hughes instructed his department heads to furnish him with
the names of employees that could be laid off with the least interference to the opera-
tions of the Company. On February 1 or 2, he instructed Walter Theek, the shop
superintendent, to let him have as soon as possible the names of employees to be laid
off. On February 8, Theek reported to him the names of the employees selected
for termination. Hughes acted on Theek's recommendation; 15 employees were
laid off in February, 11 of them being those named in the complaint herein as having
been discriminated against by the Company.
McMen was first employed by Camco in the year 1960 and left his employment
during the year 1961. Later, in September 1961, he was reemployed and put to
work on the second shift. He said that his foreman, Dean Logan, on February 13,
told him that he apparently was not happy with his work-"I can't get you as much
money as you want." McMen was terminated on that day.
Locke, who said he had arranged for the meeting at the union hall on February 10,
testified that on the following Tuesday, J. C. Cook, turret lathe foreman on the first
shift, asked him if he had heard anything about the Union and told him that the
Company had the names of all who had been at the meeting. Later, Locke said
Cook talked to him about the Union and on the following Thursday, February 15,
Theek, the shop superintendent, told him he did not want "to see him get hurt," and
that McGowen did not want the Union and would close the plant if the Union was
successful in getting in. Locke had worked under Cook on the first shift for 4 or
5 months. He said his basic reason for going to the Union was because of the
prior layoffs-"we were seeking job security." Locke testified further to a speech
made by President McGowen on October 13, 1961,4 in which he said McGowen was
more or less generally talking about the Union; that "the way I took it, he would close
it down and lock it up before he would let the Union come in ." Locke said that Cook
told him that he (Cook) had been a union official and that Cook had asked him,
"Wouldn't it be better for me to ask the Company for a raise rather than ask some-
body to do my bargaining for me?" He said that during the course of his conversa-
tion with Theek, after Theek asked him what he thought about the Union, he replied
that he did not know but that he was looking for another job because he "just can't
make it."
2 All dates mentioned hereinafter shall be for the year 1962 unless otherwise specifically
noted
3 A monthly sales report generally is available to McGowen and Hughes on the first day
of a month following the month covered by the report, so that at their meeting on Janu-
ary 2 they had before them the report for December 1961.
4 This speech is discussed below under section III, B.
CAMCO, INCORPORATED 375
According to Charles E. Howard, general manager of Barrett Machine Works,
Jeffrey Lynn McCall started to work for that firm on February 19, after having filled
out his application for employment on February 15, McCall stating thereon that he
would be available to start work on February 19. McCall, who had been employed
by the Company since April 1961, worked continuously for the Company until he was
terminated on February 16. He said that about the middle of January 1962 he be-
came more or less dissatisfied with some of the conditions and called a union rep-
resentative to inquire about the Union, and was told that the Union had attempted
to organize the plant once before without success but "if enough people would be
interested or enough people would come down to talk to them about it, they might
discuss it with us further." McCall discussed the matter with some of the other men
and later, in February, talked to one Williams, a union representative , and told him
that he thought they might have enough employees interested to discuss union
organization. On Friday, February 9, Locke arranged for a meeting at the union hall
to be held on the following day, Saturday; the word was spread, and some 16 em-
ployees met at the union hall on Saturday, when they signed authorization cards and
formed an organizing committee comprised of McMen, Locke, Bownds, Baggett, and
McCall
McCall said that on the Tuesday following the Saturday, February 10, union meet-
ing, he had asked Arthur O'Pry, a shift foreman, why McMen had been fired, and
O'Pry told him that McMen was a troublemaker and further that O'Pry said that some
men would be fired before Saturday which "would bring the Union to a screeching
halt." He said that on the next day, February 14, O'Pry asked him if he had attended
the union meeting; that he asked O'Pry if that meant he would lose his job after he
had said that he had attended the meeting; and that O'Pry said, "I really don't know.
I would imagine." McCall said at that time he had already secured another job
when he asked O'Pry, "Does that mean I will be gone?" McCall did not work
on Friday, February 16; he called for his paycheck on the following Monday, called
at Hughes' office when he said that Hughes told him that "this is just a reduction in
work force . . . and can't be helped," and asked McCall what he thought the reason
"for all this was," to which McCall replied that he thought it was because quite a few
people were dissatisfied with wages and some working conditions. His wife had re-
ported him sick on Friday, February 16, although in fact she and he were engaged in
taking their baby to a doctor. McCall was aware of rumors prior to his seeking
other employment to the effect that there would be further layoffs at Camco.
Clepper was employed from December 31, 1959, to February 16, 1962. On
February 16, after being discharged by Cook, he saw Vice President Hughes, who
told him that the Company had decided to lay off a number of men, including him.
Before that, he said that O'Pry on Tuesday, February 13, asked him if he had heard
about McMen being let go because of the Union and that O'Pry asked him if he had
attended the union meeting on the prior Saturday or if he knew anything about the
Union; later that evening he gave O'Pry as a reason for attending the union meeting
that he was "just curious"; and on the following day, Thursday, he said O'Pry asked
him for the names of those present at the meeting and asked him to check off the
names of those not present at the meeting in order to save their jobs, which he refused
to do; that he heard O'Pry ask Carrier on February 16, if he attended a meeting and
why he had attended the meeting and that Carrier had replied that he thought he was
underpaid and that the Union could get him more wages. He said that O'Pry told him
and Carrier that nothing would be done until McGowen returned to town, and also
told them that those who did not have a good excuse as to where he had been the pre-
vious Saturday morning (the morning of the union meeting), "He wouldn't be there
Monday " Clepper said he thought that the reason the men started talking about the
Union in January was because of the rumors prevalent in the plant after the retire-
ment of the three employees in January. He testified that the employees started talk-
ing to the Union in January or February as a result of these retirements . He said that
no official or supervisor of the Company other than O'Pry had ever discussed union
activity with him, that O'Pry had not threatened him or anyone else that he knew
concerning union activities; that when he was laid off he was told by Vice President
Hughes that due to reduction in sales he had been "toying around with a layoff list for
2 or 3 weeks, and he had finally determined who was to be laid off and I was one of
them. He said it was no reflection on my work and he would give me a reference
to another job " Subsequent to February 16, Clepper gave as the reason for his leav-
ing, in an application to the Texas Employment Commission, "Reduction in force."
Carrier said that he heard O'Pry ask Clepper if he had attended the union meeting
and that he himself was asked by O'Pry whether he had attended the meeting, to
which he said that he did not think it any of O'Pry's business or Hughes ' business or
for that matter anybody's business and that he told O'Pry that he had attended the
meeting; that O'Pry, on February 14 or 15, asked him if he would give him the names
376 DECISI('YS OF _N_ATIO`:.1L LABOR RF, 1,ATIO-,,-5 BOARD
of the people who attended the February 10 meeting and he refused . He said that
O'Pry said there would be a number of employees laid off who had not attended the
meeting if he was unable to get a list of the names of those who actually had attended.
He said on Wednesday, February 14, O'Pry asked him three times who was present at
the meeting. He said that February 13 was the first time he had talked to O'Pry about
the Union and that on that day he had told O'Pry that he was neutral as far as the
Union was concerned . He said that he did not at any time talk to any other supervisor
of the Company about the Union. Carrier was employed from June 26, 1961, to
February 16, 1962.
Barnett was employed from December 3, 1959, to November 11, 1961. From that
date until February 5, 1962, he was on military leave . He was discharged on
February 16, 1962. He, too, attended the union meeting and signed an authorization
card and distributed three cards to other employees for signature. He said he was
questioned by O'Pry on February 3 as to whether he attended the union meeting,
to which he replied that he had not. He said that in reply to his question, O'Pry
said that McMen had been fired because he was a union agitator . He testified that no
supervisor other than O'Pry discussed the Union with him; that the reason be and his
fellow employees were interested in the Union was to protect their jobs ( they had
heard rumors of a layoff), and that he also wanted more money.
Bownds worked for the Company after August 1959. He testified concerning
the November 1961 speech made by McGowen and with respect to the February
10 meeting and the formation of the organi7mg committee of employees of which
be was made a member.5 Bownds testified that Cook, the turret lathe foreman,
on the Tuesday morning following the Saturday union meeting, asked him about
the meeting, told him to keep his nose clean, and that it would be better for him
if he stayed out of the Union. He said that on February 14 or 15, he was told
by Cook, Locke being present , that he ( Cook ) had been a union organizer for
12 years and he knew how well "the union big shots had it" but that he was no
longer a union organizer because "it got too corrupt for him ." He testified that
on Thursday evening, just before quitting time, O'Pry came to his machine and
told him that he did not expect to see him there the next day, that he asked O'Pry
why, to which O'Pry said, "Well, because you were at the Union meeting " He
said that he asked O'Pry how he knew he was at the union meeting, that O'Pry
answered "they had ways to find out things like that" On the day his employ-
ment was termniated, he was told by Vice President Hughes that he (Hughes)
did not know the kind of stories he had been hearing about the layoff, but that
it was due to slack work and low sales and a consequent necessity for reduction
in labor force; that his layoff was no reflection on his work.
Ledbetter was employed from December 31, 1959, until February 16, 1962.
He also attended the Saturday meeting of the Union and signed an authorization
card. On the following Tuesday he said that Cook asked him if he had heard
of any union talk to which he replied that he had not; said that on Wednesday
he asked Shop Superintendent Theek "what the scoop was in regard to the Union
talk" and that Theek replied that the Company did not know much about union
talk, asked him if he knew anything about a meeting, and whether or not he
had attended a union meeting; that he replied that he had and that later the same
day, Cook asked him if he had attended a union meeting and when he told Cook
he had, the latter asked why, to which he had replied that he was curious to find
out if the Union would benefit the employees; that that was the extent of the con-
versation except that Cook said "that the Company feels that any man that attends
a union meeting is leaning toward a union," to which he replied that if that was
the way they felt that possibly he must be leaning toward the Union. Previously,
he said, Cook had admonished him to keep both feet on the ground and stay out
of the Union and not to get involved and that he would be taken care of. When
he was given his final check he was told by Hughes that production had been
slack, that sales were bad, they were forced to a cutback, and he was one of the
,unfortunate ones.
Irby was employed from November 20, 1961, to February 16, 1962. He was
present at the union meeting and signed an authorization card. He said that on
the following Wednesday, February 14, Cook asked him if he knew anything about
the Union and that if Irby did he was sure that he would tell him. but that Irby
saic no, he knew nothing about the Union; that on February 15, Cook told him
r The speech of McGowen Is discussed later herein , section III , B. According to the
testimony of Bownds , he first said that McGowen had stated that he was against the
Union and would do everything he could to keep it out , including shutting down , if neces-
sary, but later he said that while McGowen did not use those exact words, that is what
he thought McGowen meant.
CANICO, INCORPORATED 377
and Crawford, a machinist, that he had worked with a union at some prior time
and "that any man that had any dealings with the Union didn't give a damn about
his family." He said that on Wednesday of that week, he had asked O'Pry what
had happened to McMen, to which O'Pry replied that he had been laid off because
he was a union agitator.
Jimmy Lynn Cox, who was employed from December 26, 1961, to February 16,
1962, was 1 of the 16 who had attended the union meeting on February 10. He
solicited two employees to sign union cards. He testified that O'Pry, on February
13, asked him if he had attended the meeting and that he replied that he had
not; that later on February 16, after he was notified of his layoff, he then told O'Pry
that he had attended the union meeting.
Richard Baggett, employed since October 1961, testified that he attended the
meeting of the employees at the union hall on Saturday, February 10, and was
elected one of the organizing committee. He said that the first time he heard
any member of management say anything about the Union was on February 9,
when O'Pry passed by a machine where he and Ed Williams were working, and
when Williams asked O'Pry if he was going to attend the meeting on the following
day, O'Pry told him, "No, he was not invited." He said that on that day O'Pry
later asked him if he was on the union list and he told him, "No, that he had
never worked for a union before and didn't know that he was going to start now.::
He said O'Pry talked to him "a little about company benefits and then went on."
He said that on that day he heard Jack Villagomez, a foreman, when employees
were gathered around a caterer's lunch wagon that evening. say, when someone
"yelled across the crowd and asked Jack if he was going to the meeting tomorrow,"
"Yes, I'm going out there and take names." He said that O'Pry offered him a job
in the toolroom, saying that McMen was no longer there, that he was a trouble-
maker, "and he is gone." Baggett did not take the job. He said that he knew
of a rumor existent in the plant in late January and early February that there was
going to be a layoff; that the general rumor was that there was going to be a layoff
of 22 people and the employees had expected this general layoff in January or
February 1962; and that the employees' action in regard to union organization
was the direct result of the January layoff and the rumor that there was going to
be an additional layoff in February.
Floyd Yeager, employed since December 26, 1961, testified that on February 13,
O'Pry told him that there was some talk of a union and to ignore it; and that on
Thursday of that week O'Pry asked him if he had attended the union meeting
to which he replied that he had not. Yeager had in fact attended the meeting
on February 10. He said he was aware of the rumor in January and early February
that there would be further layoffs and for that reason attended the meeting. He
said that it was a matter of common knowledge in the plant, before that meeting,
that there would be such a meeting ; that he thought the men in attendance there
were primarily interested in what the Union could accomplish for them in the
way of job security.
Michael J. Koscianski, a witness called by the General Counsel and now em-
ployed by the Company, testified that he had engaged in union activities during
the course of his employment, had attended the union meeting on February 10,
and had signed an authorization card. No member of management of the Com-
pany had ever said anything to him about the Union. Through him it was brought
out on cross-examination that Richard Baggett, Billy Long, Floyd Yeager, William
Patterson , and he, who all attended the meeting on February 10, are still em-
ployed by the Company.
William Glenn Patterson testified that he is employed by the Company; had en-
gaged in union activities , and attended the union meetings on February 10; and
that no supervisor had ever mentioned the Union to him or asked any other person
in his presence about having gone to a union meeting.
No substantial facts have been interposed to the defense of the Company re-
garding the discharge of McMen. There is no proof that any of company man-
agement had knowledge of McMen 's attendance at the union meeting or of his
activities on behalf of the Union. The charge that he was a troublemaker, as
stated by the Company, is not refuted nor has it been attempted to refute this
charge. General Counsel says that on the date the Respondent fired McMen "it
commenced a course of relentless interrogation" and 3 days later it fired all other
employees who admitted attending the meeting of February 10. From this, I as-
sume, I am expected to infer that McMen was discharged , not for cause, but be-
cause of his interest in the Union. This I will not do. There is a failure of proof
that he was discharged because he joined or assisted the Union or engaged in other
union activities or concerted activities for the purpose of collective bargaining or
other aid or protection.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In selecting the 10 men it did on February 8 for discharge or termination the
following week , the Respondent followed the same standard or measure it had
adopted in choosing individuals for termination in January; that is, mainly ability.
then attitude , then , all else being equal , seniority.6
The proof clearly shows that McCall had quit his job, having found another
one prior to February 16, and had undertaken to enter upon it on February 19.
It cannot be said that he was laid off, terminated, or discharged.
In regard to McMen, as I have pointed out above, he was discharged for cause.
Vice President Hughes testified, without contradiction:
I am more or less responsible for the discharge of Mr. McMen. Mr. McMen
worked in the tool crib previous to the time he was working with us last. For
about the past 3 or 4 months before all this took place-the tool crib is real dear
to my heart, for we spend a bulk of $8,000 a month in expendable supplies,
consisting of end mills, grills, milling cutters, different items-I haven't been
particularly interested in the way the tool crib has been run since I have been
with Cameo, and I finally made up my mind that we were going to clean house in
the tool crib. And that is the reason Mr. McMen was refused a raise and dis-
charged. And to add a little further to that, the reason I know no one was
keeping an eye on it is because I sign every requisition that is ordered from the
tool crib and there was far too frequent reorders of expendable tools?
A third man, Dwain M. Irby, was included in a February 16 list because the
Company had received a notice of impending garnishment of his wages from a
creditor on February 14. He had already been selected on February 8 as one of
those to be terminated, so that, even though Irby was scheduled for termination on
February 16, he was discharged under the company rule that any person who is
subjected to garnishment of their wages is subject to immediate dismissal. The rule
was stated on the employment application blank used by the Respondent. The
dismissal of Irby was yin accordance with this policy and as applied in previous cases.
The Company makes available financial assistance to employees who become in-
debted or faced with unusual expenses, but its plan was not taken advantage of by
Irby. Consequently, here, counsel for the Respondent apparently felt it sufficient to
show only the violation of the rule as the reason for Irby's discharge and did not
deem it necessary to go further to show why Irby's name appeared on the February 8
list. There is no proof that any official of the Company had knowledge that Irby
attended the union meeting of February 10, and, in fact, Cook had remarked that
he felt that if Irby knew anything about the Union he was sure Irby would tell him.
In these circumstances, I find a failure of proof of discrimination against Irby be-
cause of his union interest or activities, and find that he was discharged for the reason
stated by the Employer.
In January, there were approximately 150 employees in the manufacturing depart-
ment. Vice President Hughes summarized the layoffs of January and February as
follows: In January 1962, a total of 34 employees were laid off, which included 15
employees in the manufacturing departments, 7 in the sales department, 8 in the
accounting and general offices, and 4 in the engineering and inspection department.
There were 29 additional employees laid off in February, which included 18 employees
in manufacturing departments, 4 employees in the sales department, 6 in the general
offices, and I in the engineering and inspection department. A total of 63 employees
were laid off in January and February, 33 having been employees in the manu-
facturing department.
Shop Superintendent Walter Theek is under the direct supervision of Hughes and
supervises the departments in the machine shop. Two foremen work under Theek-
6 The General Counsel contends that seniority was departed from in effecting the Feb-
ruary 16 layoffs "to an extremely significant degree." An analysis of the layoffs, by
seniority dates , was offered in evidence in the form of a written exhibit at the hearing
and was rejected by me At the time of the rejection, I was under the Impression that
the information was derived from sources other than the records of the Respondent.
Apparently I was In error. Therefore, I reverse my ruling In connection with that exhibit
(General Counsel's Exhibit No 3) and receive it into evidence for the purposes of this
case After having considered the list, the dates thereon being true and correct as stipu-
lated by the parties, nevertheless, I find that on the basis of the record herein, the
question of seniority was immaterial since the employer never reached that point where
It considered other things being equal so as to rely upon seniority as a basis for retention
as against termination of any particular employee
'Counsel for the General Counsel first proved and then it was stipulated between the
counsel that an employee named Winters quit voluntarily on February 16 I have yet to
determine the materiality of that fact to this case but mention it for what It is worth.
CAMCO, INCORPORATED 379
Cook, foreman of the turret lathes on the first shift, and O'Pry, foreman of ,the turret
lathes on the second shift. Fifteen turret lathes are operated on both the first and
second shifts with approximately 18 men employed on each shift. No employee em-
ployed on the turret lathes was laid off in the January 1962 reduction in force. It was
on February 1 or 2 that Theek was told by Hughes to further reduce forces by 12 or 14
.employees. Theek instructed Cook to make a list of four people for layoff and gave
the same instructions to O'Pry. Other employees to be laid off were in the automatic
engine lathe section to bring the figure to a total of 10 employees to be terminated.
Cook and O'Pry reported to Theek on February 8, who on that day reported to
Hughes that the men under Cook slated for termination were Locke, Irby, Ledbetter,
and Bownds, that the four under O'Pry were Carrier, Cox, Clepper, and McCall,
and that the two who worked in the automatic lathe section were John W. Hughes
and Barnett. Theek said that he had no knowledge on February 7 or 8 of any union
meeting slated for February 1d; .that there was a rumor extant in the plant yin January
to the effect that there would be some 22 additional people laid off.
Regarding interrogation or alleged interrogation of employees, Theek testified that
on or about February 15, he had a discussion with Locke during which he asked
Locke if he had attended the union meeting and mentioned the benefits the Company
had given the employees. He said that no other questions were asked of Locke
regarding the Union or of any activities in connection with the Union. Theek
testified that he did not at any time engage in any discussion about the Union with
Barnett or with Ledbetter or with Carrier or with Irby regarding union activities.
He denied that he at any time made any statement to any employee that the plant
would be closed down before the Company would recognize or bargain with the
Union and that the only person he asked about attending the union meeting was
Locke.
Cook testified that he asked Locke on February 13, whether he had heard the
rumors "going around" about a union but that he had asked nothing else about the
Union, denied that he has even been an official in any union or that he had ever told
anybody he had been an organizer for any union. He denied that he had ever made
any statement that he had a list of names of employees who attended any union
meetings. He said that Hughes had told Irby in his presence that there was a
garnishment pending against him, that this was against company policy, and that was
the reason he was being terminated. He said that Hughes handed Irby a letter from
Day's store to the Company regarding possible garnishment proceedings against
Irby, which under State law would have made the Company equally responsible for
payment of the debt. Cook said that he had heard during January the rumor that 22
men would be laid off; that he first heard rumors of union activity on February 12
and 13; and that at the time he heard these rumors of union activity, and thereafter,
he made no change in the employees selected by him to be laid off, but adhered to the
criteria used for selecting Bownds, Locke, Irby, and Ledbetter. He said that he at
no time solicited any employee to make a report on union activities of any other
employee, did not threaten any employee with discharge for participating in any union
activity, and did not question any employee about union activities on February 15.
Arthur O'Pry said that at the time he made his report to Theek on February 7,
naming for layoff Cox, Carrier, Clepper, and McCall he had no knowledge of a
union meeting to be held on February 9. He said he had heard the rumors in
January concerning the layoff of approximately 22 employees to be made and that the
rumors continued on into February. He said that he asked McCall on February 13
whether he had attended any meeting, to which McCall replied in the affirmative,
and on that day he also asked Clepper whether or not he had attended any meeting,
that he told Clepper about his experience with a union but did not at any time ask
Clepper to tell him who had attended the meeting He said he had not asked Carrier
whether or not he had attended the union meeting, but that he did make a statement
on February 14 to Clepper and Carrier that if he were they he would try to go out
and get another job because he knew that they were going to be laid off. He denied
telling Carrier that anybody would get hurt if the names of those attending the union
meeting were not turned in or that he had any discussion with Barnett about any
union rumors. He said he did tell Barnett that McMen was ,terminated because he
was a troublemaker, but that was all that he said. He denied that he had any
discussion with Bownds regarding a union meeting, or that he had told Irby that
McMen was terminated because he was a union agitator. He said he had no discus-
sion with Irby regarding McMen; that his only discussion with Cox regarding any
union was that he asked Cox on February 13 whether or not he attended the union
meeting and Cox told him that he had not. He ,said his only discussion with Baggett
was that McMen had been terminated because he was a troublemaker. He said ,that
he did not know whether or not McMen attended a union meeting or whether he had
participated in union activity. He denied that he stated to Baggett that several of the
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men would be let go because they were troublemakers. He asked Yeager on Febru-
ary 13 or 14, whether he had attended a union meeting and Yeager replied in the
affirmative. He asked Williams whether he had attended a union meeting and
Williams said that he had. O'Pry denied making any threat at any time to any of the
men regarding attending any union meeting.
The alleged interrogation, as set forth in the complaint, then resolves into a con-
versation between Theek and Locke; a question by Cook directed to Locke on
February 13, as to whether he had heard rumors about a union; and questions by
O'Pry directed to McCall, Clepper, Cox, Yeager, and Williams as to whether or not
they had attended any union meeting.
O'Pry was a refreshingly frank witness. I believe him when he says that he made
no threats in regard to what might happen because employees he talked to had evi-
denced an interest in the Union or had attended a union meeting . It is quite clear that
he was conscientious in preparing the list of names of men to be terminated in his
department on February 16, and, as a matter of fact, he told Theek that if it were
possible he would like to retain Carrier, the last man listed by him for layoff. In
an effort to understand why O'Pry had asked employees whether or not they had
attended the union meeting, he was asked what his purpose was. O'Pry testified:
The WITNESS: I had been foreman 6 weeks and I was still reasonably close to
the men, and these seven-there were three on one side of the shop and four on
the other-and they were always together, and I just asked them. I was still
reasonably close to them. I felt like one of them really.
Q. (By Mr. CLINTON.) What specific purpose did you have-I believe that
is what the Trial Examiner is trying to get at-in asking them?
A. I felt like in the short time I had been foreman, undoubtedly if they
wanted to attend a meeting I had failed in some way in being a foreman, and if
I could help them in any way, I would like to do so. If they felt the union could
help them, maybe I could too.
Q. Did you make any such statement to any of these men?
A. Yes, sir.
In answer to a question as to what formed the basis on which he made the selection
of Carrier, Cox, Clepper, and McCall, O'Pry said that Cox had been on the machine
for about 2 weeks; "He had no skill whatsoever, so naturally, I chose him." He said:
Carrier and Clepper and McCall were the three men I felt I couldn't handle.
I had some trouble with them, keeping them working. They congregated quite
often since their three machines were together. I felt I couldn't handle these
people as well as I could some of the others.
He also said that the amount of production that they did get out and the amount of
scrap entered into his consideration as to their ability to do the job.
Cook said that he selected the four men that he did to be laid off on the basis of
the following:
Ability to put the iron on the floor, their attitude toward their job, their attitude
toward their foreman, and the fact that they were away from their machine a lot,
they couldn't do work if they were across the shop, here, there, and yonder, too
much walking around the shop.
He said he had admonished them previously that they should stay closer to their jobs
and told them they had to be at the machine to perform their duty.
,It seems that technical violation of Section 8(a) (1) of the Act are clearly proven
on the admissions of Theek, Cook, and O'Pry. The other side of the case shows just
as clearly that the Respondent discharged, or terminated the employment of, each of
11 men for good cause or for substantial economic reasons, and for both reasons.
I do not believe it would effectuate the policies of the Act to enter a cease-and-desist
order against the Respondent considering the whole record herein. Therefore, no
such recommendation will be made.
B. The speech of President McGowen to employees made on October 13, 1961
A few days after a stockholders' meeting, Harold Edward McGowen, president of
the Respondent since the year 1957, read to the assembled employees of the Company
a statement he had prepared for delivery at the stockholders' meeting. The statement
is quoted as written:
During the past year, Cameo produced and sold $6,955,000 worth of goods
and services. On these sales, the profit was $424,000 after taxes. This is a 13%
increase in sales and a 9% increase in earnings over 1960, and gives $1.10 per
share earned on the 385,700 outstanding shares of stock.
CAMCO, INCORPORATED 381
The Camco plan for growth in past years included the location of manufac-
turing plants in foreign countries. The first of these was the plant in Northern
Ireland. The location in the United Kingdom was made attractive by several
features: 1) A low rent Government-owned plant was provided. 2) A ready
work torce of trained labor was available. 3) A common language: common
measurements. 4) The sterling market. 5) Availability of raw materials. 6)
And now, the plant is in the common market. All of these things have worked
to our credit. In addition, the cooperation and enthusiasm of the people of
Ireland for the success of the Cameo operation cannot be over emphasized.
This plant will sell to Europe, Asia, Africa, and South America. To speed the
development of foreign sales for this plant, we now have a trained, multi-lingual
English engineer based in Belfast, Northern Ireland, and working in Europe,
Asia and Africa. He is a Cameo man, for he has worked for Camco in Canada
for five years. As a further sales stimulus, Mr. Pearce, Tony Binning, (a multi-
lingual English engineer who has been with us for over a year) and Mr. Winkler,
our chief sales engineer, are conducting seven schools in Indonesia and Pakistan.
These men will be gone for about two months. Tony Binning will then be trans-
ferred to Belfast in February to work and live. This will give us two trained,
multi-lingual sales engineers in Belfast.
Camco agents in Europe and Asia and Africa have schooled themselves and
their men in our products and services and an increased training program is under
way. We expect the Northern Ireland plant to be increasingly valuable in the
coming years as the consumption of petroleum increases in Europe, North
Africa, Asia, and South America.
The plant in Mexico is an 8,200 square-foot structure. It is leased, has a good
location, and is equipped to furnish Pemex with the oil production tools required.
The Mexican Government encourages the use of goods manufactured in Mexico,
in keeping with its program of National Development. The manager in Mexico
is J. Fred Schnars and he and his family live in Mexico City. We will employ
over 20 Mexicans in this plant before the year is over. This plant is to serve
Mexico only.
We have just selected a building contractor to construct a new addition to our
Houston facilities. This addition will consist of a 28,000 square-foot manu-
facturing plant and will bring our total plant in Houston up to 66,000 square
feet. This space is needed for anticipated increased sales and the addition of
new product lines such as our new packer and our new orifice valve. This
means an investment of $4,500 ,000 for plant and machinery . An architect's
rendering of this building is on display.
1) Plant located where tin building is.
2) Machinery
3) Personnel to be added
4) Third shift-temporary only
5) We will rent temporary space for central warehouse and storage-
the green building south of our property.
I can now announce the purchase of the oil center tool packer line. This
product was introduced in 1957, by Oct. but was shelved when their manage-
ment discovered it was not compatible with their products. We think it fits
Camco and is compatible in all ways with our products and service. This tool
will demand more space for manufacture than our present facilities afford
More about packers-major diversification-you will see many parts coming
through plant in near future.
In addition to Cameo's increased sales efforts and expanded sales coverage,
and its foreign manufacturing plants, part of Cameo's plan has been an in-
tensified and increased research and development program. For the growth
Cameo needs, new products must furnish a good part of the material. En-
gineering facilities have been increased to supply men and tools for new product
development. From their efforts have come the improved controllers, the sliding
sleeves, the concentric valve, the pilot valve, new plungers, and miscellaneous
wireline tools. The wireline skid unit has been carefully packaged so that it
has become a good item for sale The wireline truck capsule is a product for
sale to other service companies anywhere in the world. The new magnaset
series has met with enthusiastic reception from oil production people and we
have great hopes for its market potential. All these new and improved products
insure the growth of Cameo. During the last year, we purchased the plunger
division of the National Supply Company. To this we added the Camco plunger
and its improvements and increased our dominance in this field.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now being introduced at the A.I.M.E. meeting in Dallas and Lafayette, is
the latest major tool development of Cameo. It is a tubing caliper with a
downhole tape recorder. The recorder has fourteen channels and will run for
three hours to record the information produced by an electronic caliper that
scans and measures the amount of corrosion and erosion of metal from inside
the tubing walls. Obviously, this tool has possible applications outside the
petroleum industry, or anywhere where there are piping problems.
Profit Sharing Plan-this plantakes 8% of the profits of Camco and with the
5% invested by the employee, it could accumulate so that a man who goes to
work at the age of 20 and retires at the age of 60 could have $40,000.00 or
over. During this time, he should have his home bought and paid for. Our
medical plan is one of the best in the city and compares with the one that
Humble has. This means that a man who works for Cameo has security as far
as the health of he and his family are concerned, and a good savings plan for
when he retires, plus social security of approximately $150.00 per month, so that
he should be able to live in comfort. I can't speak too strongly or emphasize
too much that you should be in this plan and you should continue to participate.
Union-as you know, some 31/2 years ago, we had a union election in this
plant. This was defeated and since then, we have had absolutely no trouble
in this respect. This Company is of the very firm opinion that we will not have
a union here. We are against the union in all respects and will do our best
to see that it does not come to this plant. If any man feels otherwise, we invite
him to leave and go to another plant. This is the American way of life.
We believe this is one of the best companies to work for in Houston, if not
the best. We keep our wages at the level of industry in Houston, whether union
or non-union, our working conditions are better than most union plants, and
we have an excellent profit sharing plan and medical plan to afford the em-
ployee security for himself and his family.
According to President McGowen, he read the same statement to the employees
that he had made to the stockholders of the corporation with an addendum at the
close which, according to his longhand notes, read:
Close-thank everyone for their loyalty and work-we will continue to make
this the best company to work for in Houston.
McGowen testified that he read exactly from the prepared speech; that he had
recognized the danger of the president of the Company talking to a group in such
a situation and had researched and himself wrote and dictated the speech before de-
livery to the stockholders and then to the employees. He denied that at any time
during the making of his speech to the employees did he state that he would close
the plant before he would have a union . I have adverted above to the recollected
content of McGowen's remarks to the employees as stated by two or three em-
ployees present, whose memory, I have decided, was inaccurate insofar as their
impressions of what really was said . The testimony of McGowen was more precise
than the testimony offered through witnesses called by the General Counsel. I
accept the speech or statement as made by McGowen, as shown by his testimony,
against that of the apparent faulty recollection of the other witnesses.
Counsel for the General Counsel, in his brief submitted to me, dwells particularly
on the following extract from the speech:
This Company is of the very firm opinion that we will not have a union here
We are against the unions in all respects and would do our best to see that it
does not come to this plant. If any man feels otherwise, we invite him to leave
and go to another plant.
As counsel says in his brief:
Such a threat is ordinarily enunciated in connection with union animus of a
degree set forth above and, the witness who testified they recalled such a threat
are credible; on the other hand, Respondent's witnesses are not credible .. .
A finding that the threat was uttered is supported by the record.
It would seem, at the time McGowen made his statement to the assembled em-
ployees, that he was stating the position of the Respondent in regard to overall
background and plans, and could not have been gifted with foresight against the
contingencies of business which occurred beginning 2 or 3 months later, resulting
in layoffs or terminations of employment for business reasons. Had the statement
of McGowen been in the least connected with the terminations made in January
CAMCO, INCORPORATED 383
and those complained of in February, following, I could place some reliance on
the claim that the speech was coercive in nature and intended to interfere with the
rights of employees to join or assist a union, or to engage in other concerted
activities. I cannot make such a finding on inference only. Consequently, the
uncontradicted testimony of McGowen concerning the circumstances of the speech,
taken against that of the faulty memory of witnesses who gave their version of a
"threat to close the plant," as alleged in the complaint, is accepted.
Concluding Findings
It is argued on behalf of the General Counsel that the Respondent has defended
its actions solely on the basis that, for economic reasons, it selected certain individuals
on February 8 for discharge the following week; that pretext only is obvious because
it has been shown that the Respondent also attempted to defend its case on the basis
that two of the discriminatees, Irby and McCall, were terminated because of events
that occurred on February 16; and that the pretext is further exemplified by the pur-
ported reason for the inclusion of Bownds in the layoff because he had no tools
to work with. It is argued further that the entire basic reason assigned for effecting
a layoff, only 1 week after the union meeting, is exemplified as pretext by the fact
that the Respondent contracted out his machine shop work at the time of the layoff,
and the fact that it hired replacements 2 weeks thereafter. Were it shown by the
record that the testimony could fully support the argument made, I would do so.
However, the testimony given in these respects is so vague that I cannot in good
conscience make the findings that have been suggested .8
For the reason set forth above, I find that the General Counsel has failed to sustain
the burden of proof herein, and on the whole record the complaint herein should
be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1 Cameo, Incorporated, the Respondent herein, is an employer within the mean-
ing of Section 2(2) of the Act and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2 District Lodge No. 37, International Association of Machinists, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. Although the record herein establishes certain technical violations of the Act,
principally interrogation of employees, it will not effectuate the purpose of the Act
to enter a cease-and-desist order against the Respondent herein.
4. The record does not establish that the violations complained of in the violations
technically proved required such an order.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, it is recommended that the Board enter an order
dismissing the complaint in its entirety.
The brief filed on behalf of the General Counsel is quoted literally:
Once the Trial Examiner had determined that Respondent's defense is a mere pre-
text, borderline credibility resolutions become obvious Respondent's witnesses not
only testified In support of the pretext-they necessarily agreed to so testify, In ad-
vance of the trial. They thereafter agreed to suborn the truth or to "tell the same
story," as related to the selection for discharge, purportedly on February 8, 1962, of
the 10 discriminatees In short, they agreed to perjure This type of organized
perjury renders the remaining testimony of each of Respondent' s witnesses completely
discredible
This Trial Examiner observed the witnesses as they testified and observed their demeanor.
I see no suggestion of any kind to be found at bearing or in the record herein, which
would even suggest perjury or the subornation thereof. It seems to me that if General
Counsel or his counsel had notice or evidence of such fact, it should have been stated in
open hearing rather than in a brief filed subsequent to bearing, to which other counsel
can have no recourse.