Central Pipe Fabricating and Supply Co.

National Labor Relations Board - Board Decisions

Oct 12, 1955

114 N.L.R.B. 350 (N.L.R.B. 1955)

350- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chine hand "A," also known as planer machine operators, perform
planing operations on the surface of die blocks preparatory; to the
diesinking operation. The die repairmen, also known as die polishers,
perform polishing operation on forging dies. As these employees are
not journeymen craftsmen of the diesinking trade and do not appear to
be in line of progression to the diesinker classification, we shall exclude
them from the voting group hereinafter established.
We find that the craft unit sought by the Petitioner and consisting
of employees in the classifications of diesinkers and trimmer diemak-
era to be a true craft group within the diesinker craft. In view of the
foregoing and upon the entire record, we further find that the fol-
lowing group of employees may, if they so desire, constitute a craft
unit of employees. We shall direct a self-determination election among
all diesinkers and trimmer diemakers 7 employed at the Employer's
East Moline, Illinois, operations, excluding all other employees and
supervisors as defined in the Act.
However, we shall make no final unit determination at this time. If
in the election herein directed a majority of the employees vote for
the Petitioner, the. Regional Director is instructed to issue a certifi-
cation of representatives for the unit herein described, which in these
circumstances we find to be appropriate for purposes of collective bar-
gaining. If, on the other hand, a majority vote for the Intervenor,
which has requested no election in the overall production and mainte-
nance unit it presently represents, the employees will be taken to have
indicated their desire to remain in that unit and the Regional Direc-
tor is instructed to issue a certificate of results of election to that effect.
[Text of Direction of Election omitted from publication.]
MEMBER MUnl)ooK took no part in the consideration of the above
Decision and Direction of Election.
9 The employees in this classification are G. Adolph Bucherer , Ernest F. Erdely, Jr.,
William R'. Skinner, LeRoy E. Miller, Joseph F. Meyers, Earl L. Strupp, Jack M.
Christiansen, Otto Seihost, Roy M. Doyle, and Glenn H. Hull.
Central Pipe Fabricating and Supply Co. and Leon L. Neale
Pipefitters Local 392, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL and Leon L. Neale . Cases Nos.
9-CA-828 and 9--CB-241. October 12, 1955
DECISION AND ORDER
On June 3, 1955, Trial Examiner Louis Libbin issued his Inter-
mediate ;Report in the above-entitled proceedings, finding that the
114 NLRB No. 63.
CENTRAL PIPE FABRICATING AND SUPPLY CO. 351
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Re-
spondent Union filed exceptions to the Intermediate Report and a
supporting brief.
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 Inter-
mediate Report, the exceptions and the brief, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modification noted below.
For the reasons set forth in the Intermediate Report, we agree with
the Trial Examiner's conclusion that the Company discriminatorily
discharged employee Neale because of his refusal to pay strike assess-
ments to the Union. We also agree with the Trial Examiner's con-
clusion that the Union caused the Company to discharge Neale for
that reason.
The following are the facts bearing on the matter of whether the
Union caused the Company to discharge Neale. Neale, like the Com-
pany's other utility employees, was not a union member. After the
Union's strike committee levied a strike assessment against the em-
ployees within its territorial jurisdiction, Cornett, the union steward
at the Company's plant, spoke to the utility workers and made it clear,
as detailed in the Intermediate Report, that they would have to pay
the strike assessments or suffer the loss of their jobs. Shortly there-
after, the Union, through Cornett and Business Agent Douglas Her-
thel, solicited the Company's help in collecting an assessment from
Neale and from another utility employee, Nick Noe.
With respect to Neale, Herthel and Company Superintendent Bar-
tholomew engaged in a phone conversation during which Herthel
inquired of Bartholomew as to why Neale had not yet paid his-assess-
ment, and also requested Bartholomew to ask Neale if he would pay
the assessment if given an extension of time. After ascertaining from
Neale that he would pay if given an extension, Bartholomew reported
this fact to Herthel, and then returned to Neale with the information
that he had "got Doug [Herthel] cooled off now." Later, approxi-
mately 5 days before Neale was discharged, Bartholomew upbraided
Neale for putting him in a "hell of a spot" by refusing to pay the
assessments after Bartholomew had been "good enough to get [Neale]
an extension from [the Union]." Neale replied that he had been ad-
vised by agents of the Board that he was within his legal rights in
refusing to pay the assessments, whereupon Bartholomew rejoined
that Neale had "better think it over." He also warned Neale that "you
know what that will mean, don't you, if you don't straighten out with
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[the Union]." When Neale thereupon suggested that it would prob-
ably mean he would be fired, Bartholomew, without answering Neale's
suggestion , smiled and walked away. In addition, Bartholomew, on
several occasions before Neale's discharge, warned the utility workers
that failure to pay their assessments had resulted in "[the] Union
boys . . . giving him hell" and "putting him on the spot." After the
period of the extension granted by Herthel had expired and Neale
still had not paid the assessment, Neale was discharged. Neale was
the only employee who did not pay the strike assessments.
From the foregoing facts, particularly the Union's announcement
to the utility workers that they must either pay the strike assessments
or lose their jobs; Herthel's phone conversation with Bartholomew,
concerning an extension of time for Neale; 1 and Bartholomew's re-
peated statements to the effect that the Union had him "on the spot"
because some of the utility workers had not paid the strike assess-
ments , we find that the Union brought pressure to bear upon the Com-
pany and caused the Company to discharge Neale because he had not
paid the strike assessments . The Union thereby violated Section 8
(b) (2) of the Act.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, Central Pipe Fabricating and Supply Co.,
Cincinnati, Ohio, its officers, agents, successors, and assigns, shall:
A. Cease and desist from :
(1) Encouraging membership in Pipefitters Local 392, United As-
sociation of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL, or in any
other labor organization of its employees, by discharging employees
for failure to pay strike assessments, or by discriminating against
them in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of their employment, except to the
extent permitted by Section 8 (a) (3) of the Act.
(2) Soliciting employees to pay strike assessments to the aforesaid
Union, or to any other labor organization, and from threatening
employees with loss of employment for failure to pay the strike
assessments.
'In its brief to the Board , the Union asserts that "at most" the evidence shows that
Business Agent Herthel "acquiesced" in Superintendent Bartholomew 's request for an
"extension" of time for Neale to pay the strike assessments . That Neale was being
offered an "extension " of some sort with the Union's "acquiescence " indicates that the
imposition of sonic sanction was, with the Union's consent, being postponed. These facts,
.by themselves, would appear to be enough to form the basis of an inference that the
Union was bringing pressure to bear upon the Company to discharge Neale.
CENTRAL PIPE FABRICATING AND SUPPLY CO. 353
(3) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section'7'of
the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action which it is found will ef-
fectuate the policies of the Act :
(1) Preserve and make available to the National Labor Relations
Board, or its agents, upon request, for examination and copying, all
payroll records, social-security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of back pay due and the rights of employment under the terms
of this Order.
(2) In the event of resumption of operations, offer to Leon L. Neale
immediate and full reinstatement to his former or substantially equiv-
alent position, without prejudice to his seniority or other rights and
privileges.
(3) In the event operations are resumed, post in its plant copies of
the notices attached to the Intermediate Report and marked "Appen-
dix A."' Copies of said notice, to be furnished by the Regional Di-
rector for the Ninth Region, shall, after being signed by Respondent's
representative, be posted by Respondent immediately after resump-
tion of operations and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered; de-
faced, or covered by any other material.
(4) In the event operations have not been resumed by the date of
issuance of this Order, mail to all utility employees on its payroll rec-
ords since June 1, 1954, signed copies of the notice attached to the In-
termediate Report and marked "Appendix A." 3
(5) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days of the date of this Order, what steps the Re-
spondenthas taken to comply herewith.
II. The Respondent, Pipefitters Local 392, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL, its officers, represen-
tatives, agents, successors, and assigns, shall :
2 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order." 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, Enfoicing an Order."
3 See footnote 2, supra
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Cease and desist from :
(1) Causing or attempting to cause Central Pipe Fabricating and
Supply Co., its officers, agents, successors, or assigns, to discriminate
against employees in violation of Section 8 (a) (3) of the Act.
(2) Threatening employees of the above Company with loss of em-
ployment for failure to pay strike assessments.
(3) In any other manner restraining or coercing employees of the
above Company in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the Act.
B. Take the following affirmative action which it is found will ef-
fectuate the policies of the Act :
(1) Notify Leon L. Neale and the Respondent Company immedi-
ately, in writing, that it has no objection to Neale's employment by
the Respondent Company, and that it formally requests his reinstate-
ment in the event the Respondent Company resumes operations.
(2) Post at its business offices and meeting halls in Cincinnati, Ohio,
copies of the notice attached to the Intermediate Report and marked
"Appendix B."' Copies of the notice, to be furnished by the Re-
gional Director for the Ninth Region, shall, after being duly signed
by an official representative of the Union, be posted by the Respond-
ent Union immediately upon receipt and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Union to insure that these no-
tices are not altered, defaced, or covered by any other material.
(3) In the event operations of the Respondent Company have not
been resumed by the date of issuance of this Order, mail to all utility
employees on the payroll records of the Respondent Company since
June 1, 1954, signed copies of the notice attached hereto marked "Ap-
pendix B."
(4) In the event of resumption of operations by the Respondent
Company, mail signed copies of the notice attached to the Intermedi-
ate Report as Appendix B, to the Regional Director of the Ninth Re-
gion, for posting, the Respondent Company willing, in the places
where notices to employees are customarily posted. Copies of the no-
tice, to be furnished by the Regional Director for the Ninth Region,
shall be returned forthwith to the Regional Director after they have
been signed by an official representative of the Union, for such
posting.
4 Appendix B of the Intermediate Report shall be, and hereby is, amended in the same
manner as Appendi x A. See footnote 2. above.
0
CENTRAL PIPE FABRICATING AND SUPPLY CO. 355
(5) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days of the date of this Order, what steps the Re-
spondent has taken to comply herewith.
III. The Respondents, Central Pipe Fabricating and Supply Co.,
its officers, agents, successors, and assigns, and Pipefitters Local 392,
United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL, its
officers, representatives, agents, successors, and assigns, shall jointly
and severally make whole Leon L. Neale for any loss of pay he may
have suffered because of the discrimination against him, in the man-
ner set forth in the section of the Intermediate Report attached hereto,
entitled "The Remedy."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Leon L. Neale, an individual, the General Counsel of the
National Labor Relations Board, herein respectively called the General Counsel
and the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio),
issued a consolidated complaint, dated April 8, 1955, alleging that Central Pipe
Fabricating and Supply Co., herein called the Respondent Company or the Company,
had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) of the National Labor Relations Act, herein called the Act, 61 Stat. 136, and
that Pipefitters Local 392, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and Canada, AFL, herein
called the Union or Loul 392, had engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and (2) of the Act, all affecting commerce
within the meaning of Section 2 (6) and (7) of the Act. Copies of the charges,
complaint, and notice of hearing were duly served upon the Respondents.
With respect to the unfair labor practices, the complaint alleges that the Respond-
ent Company (1) interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act by soliciting employees to
pay a strike assessment to the Respondent Union, collecting strike assessment from
its employees for the Respondent Union, and by threatening employees with reprisals
if they did not pay a strike assessment to the Respondent Union, and (2) dis-
criminated with respect to the hire and tenure of employment of Leon L. Neale
because of his refusal to pay the strike assessment to the Respondent Union; the
complaint also alleges that the Respondent Union (1) restrained and coerced the
employees of the Respondent Company in the exercise of the rights guaranteed
in Section 7 of the Act by threatening employees with reprisals if they did not pay
a strike assessment to the Respondent Union and (2) attempted to cause and caused
the Respondent Company to discriminate with respect to the hire and tenure of
employment of Leon L. Neale because of his refusal to pay the strike assessment
to the Respondent Union. Each Respondent duly filed an answer in which it denied
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held on April 27 and 28, 1955, at Cincinnati,
Ohio. All parties were represented at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, to present oral argument at the close of the hearing, and thereafter to file
briefs as well as proposed findings of fact and conclusions of law. The Respondents'
motions to dismiss the complaint, made at the conclusion of the hearing and upon
which I reserved ruling, are disposed of in accordance with the findings of fact and
conclusions of law made below.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company is an Ohio corporation which, until January 1, 1955,
maintained and operated a plant at Sharonville, Ohio, where it was engaged in the
3 8 7 644- 5 6--v o f 114--2 4
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production and fabrication of pipe. During the period from October 1, 1953, to
October 1, 1954, the Respondent Company shipped products, valued in excess of
$100,000, from its Sharonville, Ohio, plant to points located outside the State of
Ohio. On January 1, 1955, the Respondent Company transferred all its physical
assets to a disconnected employer. Although no longer engaged in the operation
of any business, the Respondent Company continues to exist as a solvent corporation.
Upon the foregoing admitted and stipulated facts, I find that the Respondent
Company was engaged in commerce within the meaning of the Act at the time
when the alleged unfair labor practices occurred and that the Board is not divested
of its jurisdiction over this proceeding by the subsequent cessation of the Respondent
Company's operations on January 1, 1955.1
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that Pipefitters Local 392, United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction : the issues
At all times material herein, and at least since June 1, 1953, Local 392, the
Respondent Union, has been recognized by the Respondent Company as the exclusive
bargaining representative of the Company's employees. Included in the bargaining
unit was a group of employees, numbering from 20 to 30 as of June 1, 1954,
classified as utility employees. This was a general labor class, performing non-
skilled work not claimed by the journeymen and apprentices. None of the utility
employees were members of the Respondent Union, although about 12 of them
had submitted membership applications, action upon which was tabled by the
Respondent Union.
At a general meeting of the Respondent Union on May 28, 1954, the member-
ship voted to strike the heating and air-conditioning piping contractors in Cincinnati,
Ohio. On June 1, the day the strike became effective, a meeting was held by the
strike committee, composed of a plant representative of each struck employer. The
next day Ralph Cornett, Respondent Union's steward at the Company, a nonstruck
plant, inquired of Douglas Herthel, assistant business agent of the Respondent Union,
as to the outcome of the strike committee meeting. Herthel informed Cornett that
the committee had levied a strike assessment of 10 percent of each week's take-home
pay against each employee working under the jurisdiction of the Respondent Union,
that the assessment was to become effective beginning with the week of June 7, and
that both the journeymen and the utility employees at the Respondent Company
were subject to this assessment.
It was the duty of Cornett, as union steward, to collect these assessments from the
employees of the Respondent Company. These collections were made at the plant
during working hours for a period of about 5 weeks. As the utility employees had
not been accepted into membership in the Respondent Union, a number of them
raised questions as to their obligations to make these payments and as to the conse-
quences of their failure to pay. Cornett succeeded in collecting the assessments from
all utility employees except Leon L. Neale, the Charging Party, who refused to pay.
On July 20, 1954, Neale was discharged allegedly for cause.
The issues raised in this proceeding are (1) whether, in connection with the collec-
tion of the strike assessments, the Respondents interfered with, rests ained, or coerced
the employees in the exercise of their rights guaranteed by Section 7 of the Act, (2)
whether Neale was discharged for failing and refusing to pay the strike assessments
or for cause, and (3) whether the Respondent Union attempted to cause or caused
the Respondent Company to discharge Neale because of his fail{ire and refusal to
pay the strike assessments.
B. Interference, restraint, or coercion
1. The facts
Union Steward Cornett admitted that he went around the plant during, working
hours requesting all the employees to pay the 10 percent strike assessment. For
IN. L. It B. v Cowell Portland Cement Co., 148 F. 2d 237, 241-242 (C. A. 9), cert.
denied 326 U. S. 735.
CENTRAL PIPE FABRICATING AND SUPPLY CO. 357
a period of about 5 weeks after June 7 , 1954 , he customarily collected the assess-
ments on the day after payday, which fell on a Wednesday. Each time he collected
an assessment , he gave the employee a slip of paper which contained the printed
words "Permitted to Work" and "Local 392." Before handing the slip to the
employee, Cornett wrote on it the employee 's name, the words "strike assessment,"
the amount received from the employee, the weekly period covered by the payment,
and his own initials on the bottom. The evidence is undisputed that this slip was
given to the employee as a receipt for the payment of the strike assessment indicated
therein, and it was so understood by the employee receiving it.
Harold Ervin , a utility employee, testified that about a month before Neale's
employment termination, which was July 20, 1954, he and a group of utility em-
ployees were outside the plant building and Shop Steward Cornett was asked to
come out to meet them. Ervin testified that the men asked Cornett if they would
have to pay the assessment and what benefits they would get out of it as they were
not members of the Union, and that Cornett replied that he did not know whether
they would get any benefits. Ervin further testified that-
We asked him if we'd have to pay the assessment , and he said "Yes," it would
be best if we did, and we says, well, if we didn't pay it what would happen,
and he says, "Well, there probably would be some changes made."
According to Ervin's further testimony, "a lot of them" asked, "What if we don't
pay?" and Cornett answered that question "maybe two times."
Nick Noe, a utility employee, testified that sometime in the morning about June
5 or 6 he asked Cornett in the shop "if we were going to have to pay the strike assess-
ment and he said , `You shore do."'
Noe also testified that about noon during the same day he and a group of other
utility employees were outside the plant building and they had the following con-
versation with Cornett: They asked Cornett why they would have to pay the strike
assessment when they did not belong to the Union. Cornett replied, "Well you fel-
lows are all working, aren't you?" At that point Frank Maher, one of the employees
in the group, asked "what protection we would get from the Union?" Cornett told
them that they had no protection because they did not belong to the Union. Maher
then asked, "Well, supposing we don't pay this?" Cornett replied, "Well, you'll pay it
or else."
Leon L. Neale, a utility employee, testified that several days after June 15 he
was in a group of employees , sitting outside in the warehouse during lunchtime, and
the question of the strike assessments arose, a topic of conversation which was general
among the utility employees at that time. According to Neale's-testimony, some-
one in the group asked Cornett how long the strike assessments would last, and
Cornett replied that that was a matter to be decided by Local 392, "that all he
[Cornett] knew about it was that he had got orders that it was either paid or else."
Neale testified that employees Ervin and Noe were not in the group at that time.
As previously noted, all the employees, except Neale, eventually paid the strike
assessments.
Cornett admitted requesting all the employees to pay the strike assessments and
did not deny having the above conversations. He did however deny telling Noe,
Neale, or any other employee that they would have to pay the assessment "or else."
He also denied -that he indicated by the use of any other words that he would take or
attempt to take any action against them if they did not pay the strike assessments.
Cornett, when called as a witness by the General Counsel, testified in a reluctant
and evasive manner. His demeanor on the stand did not impress me favorably nor
inspire confidence in the trustworthiness of his testimony. Ervin, Noe, and Neale
testified in a clear, positive , and convincing manner. Neale frankly and unhesitat-
ingly admitted certain matters in connection with his employment record, despite the
fact that such admissions appear to be unfavorable to the General Counsel's case
as to him. Under all the circumstances, and upon the basis of the entire record, I
credit the testimony of Ervin, Noe, and Neale, as set forth above, and find that Cor-
nett made the statements attributed to him . However, for the reasons indicated be-
low, 2 I find that the conversations to which Noe testified occurred after June 7.
2 Noe had placed these conversations as occurring about June 5 or 6 These two dates
fell on a Saturday and Sunday when, the record shows, Noe was not working. The
strike assessments did not become effective until the week beginning with Monday, June 7,
and Cornett customarily made his collections after payday which fell on a Wednesday.
Noe admitted that the first time he paid any assessment was after June 13 for the week
of June 7-13 Moreovei, Ervin , who testified after Noe , stated that Noe was present in
the group of utility employees which had the conversations with Cornett and to which
358 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
Noe testified that when Cornett asked him for the assessment for the week of
June 28 to July 4, Noe told him that he needed the money that week and could not
pay it. According to Noe, Cornett told him "they wanted the money in town at the
Union, and he had to get it together, it had to be paid." Noe further testified that
about July 16 he had the following conversation with Harold Bartholomew, plant
superintendent of the Respondent Company, and a supervisor within the meaning of
the Act:
Harold called me beside of the time clock and he said that he-that the Union
boys had been giving him hell because I hadn't paid that one week's assessment,
and I told him that I would pay it from my next pay check, and in the con-
versation he said, "I can't make you pay it," or, "I can't tell you to pay it," he
said, "If you will.pay it," he said, "they will get off my back...." That's when
I told him that I would pay him on my next pay check.
After the next payday, Noe paid Cornett the strike assessment for a 2-week period
from June 28 to July 11.
Bartholomew admitted that about July 15 Cornett told him that Noe had not paid
his 10 percent strike assessment and that Cornett asked Bartholomew to find out
whether or not Noe was going to pay his assessment. Bartholomew further admit-
ted that he then spoke to Noe and asked Noe if he was going to pay the assessment,
and that Noe told him he was going to pay it. He did not deny having made the
other statements attributed to him by Noe and his testimony is not inconsistent with
that of Noe.
Cornett did not testify with respect to the above matters.
Under all the circumstances, I credit the testimony of Noe and Bartholomew, as
related above with respect to the incident concerning Noe's payment of that week's
assessment, and find that Cornett and Bartholomew engaged in the conduct and
made the statements above set forth
As previously noted, Neale was the only employee who persistently refused to pay
the strike assessments. Cornett had also informed Douglas Herthel, assistant busi-
ness agent of the Respondent Union, that Neale had refused to pay the strike
assessments.
About the latter part of June, Bartholomew had a telephone conversation with
Herthel, the assistant business agent of the Respondent Union, concerning the grant-
ing of an extension of time to Neale for the payment of his assessments. Neale testi-
fied that he was in thelofice and answered the phone when the call came in, that the
person asked for Cornett, that he called Cornett to the phone, that after a few minutes
Cornett asked Neale to call Bartholomew to the phone, and that Neale did so and
then continued his work in the warehouse. Neale further testified that the following
occurred: After a few minutes, Bartholomew came into the warehouse and asked
Neale if he would be willing to pay his strike assessment if Local 392 gave him an
extension of time. Neale replied that "maybe" he would. Bartholomew then went
back and talked some more on the telephone. After hanging up the telephone re-
ceiver, Bartholomew told Neale that he had "got Doug cooled off now" and that Doug
had agreed to give Neale an extension till Wednesday to pay his strike assessments.
Bartholomew admitted having several conversations with Neale about strike assess-
ments. He testified that Neale had told him that he could not pay the strike assess-
ment because he did not have the money 3 and that he would probably pay it if he
could have an extension. He also admitted having a conversation with Herthel about
the latter part of June in which Herthel wanted to know why Neale had not paid his
10-percent strike assessment, that he replied that Neale told him he did not have the
money, and that Herthel asked him to ask Neale if he would be willing to pay if he
got an extension of time. He further testified that he did not "believe" he went back
to Neale immediately after the telephone conversation but that either the same day or
later he told Neale that Herthel had agreed to an extension of time.
Herthel admitted that during the period in question he had frequent telephone con-
versations with Cornett and Bartholomew but denied speaking to Bartholomew about
Neale or about an extension of time for Neale to pay his assessment. He admitted
Ervin testified Ervin placed this meeting as being about a month before July 20, the
date of Neale's employment termination, and testified that "it could have been" the same
meeting referred to by Noe. Under all the circumstances, and in view of Noe's un-
certainty as to the exact date, I am convinced and find that those conversations occurred
sometime after Time 7
3 Neale denied that he ever told Bartholomew he could not pay the strike assessment
because he did not hive the money.
CENTRAL- PIPE FABRICATING AND SUPPLY CO. 359
that he could not recall everything that was said in his conversations with Barthol-
omew.
Bartholomew was a -very reluctant witness. The above-related admissions were
drawn from him by the General Counsel only after his recollection was refreshed by
showing him the affidavit which he had earlier executed before an agent of the General
Counsel during the course of the investigation of this case. Under all the circum-
stances, I find that during a telephone conversation with Bartholomew about the
latter part of June, Herthel wanted to know why Neale had not paid his 10-percent
strike assessments and asked Bartholomew to inquire if Neale would be willing to
pay if an extension of time were granted; that, while Herthel was still on the tele-
phone, Bartholomew made such an inquiry, as Neale testified, and returned to resume
his telephone conversation; that Herthel then agreed to give Neale an extension of
time for the payment of his assessments; and that, immediately after the conclusion
of this telephone conversation, Bartholomew informed Neale of the extension of time
granted by Douglas Herthel and made the statements attributed to him by Neale.
Cornett admitted that, beginning with the time when he first started to collect the
strike assessments and every week thereafter, he spoke to Neale at the plant about the
payment of his strike assessments . On the first occasion, Neale told Cornett that he
would not pay the strike assessments because he did not belong to Local 392 and
would receive no benefits from it. On another occasion, Cornett told Neale that he
"probably should be the very first one to pay the strike assessments" because he was
a "scavenger on the job with Local 392" for the last 3 or 4 years. Neale denied the
accusation, stating that the positions he held did not require him to join the Union.
Cornett pointed out that Local 392 had decided that all utility men would have to pay
the strike assessments .4
Cornett and Neale were in agreement that on the last occasion when Cornett spoke
to Neale, the latter told Cornett that he would bring his assessment payments to the
union hall that night. This occurred about July 2, which was after the conversation
in which Bartholomew had informed Neale that Herthel had agreed to give him an
extension of time. Cornett admitted that he had kept Herthel informed about his
unsuccessful efforts to collect the strike assessments from Neale. Cornett further
testified that the third time he spoke to Herthel about it was at the union meeting
when he told Herthel that Neale had promised to bring his assessment payments to
the union hall that same night.
However, after consulting with the Regional Office of the Board that afternoon,
Neale decided not to pay the strike assessments. Neale testified that subsequently,
about July 15, he was in Bartholomew's office when the telephone rang, that he
answered, and that the call was for Bartholomew. After concluding his telephone
conversation, Bartholomew came over to Neale and, according to Neale's further
testimony, the following conversation ensued: Bartholomew accused Neale of putting
him in "a hell of a spot," stating that "I was good enough to get you an extension from
Local 392 for this strike assessment" and that "now you are refusing to pay." Neale
replied that he refused to pay because he had been advised by the Board that he did
not have to pay that assessment. Bartholomew told Neale that he "should go ahead
and straighten it with 392" and that "after a period of 5 years they would have to take
you into their local." Bartholomew advised Neale that he "better think it over,"
warning that "you know what that will mean, don't you, if you don't straighten out
with Local 392?" Neale replied, "Yes, it will probably mean that I was being fired or
was going to get fired." According to Neale, Bartholomew "made no attempt to
answer that particular question, but he gave me a broad smile and walked away
from me."
Bartholomew testified that he did not "believe" he had a conversation with Neale
about July 15 with respect to strike assessments and, in substance, denied that a con-
versation occurred, as related by Neale. He admitted, without contradiction, that
Cornett had asked him to see Neale to find out whether or not Neale was going to pay
the strike assessment, and did not deny being called to the telephone by Neale, as
related above. He also admitted having had several conversations with Neale about
strike assessments but testified that he had told all the utility men, at one time or
4 The findings concerning the conversations between Cornett and Neale are based on
the credited testimony of Neale. Cornett did not deny having had the above conversa-
tions. He testified that Neale failed to pay the assessments and "maybe he said he
wasn't making much money, he was in a hard shape, or something like that " He
admitted that he did not remember everything that was said and that Neale "could have
said something to that effect" that he did not want to pay because he did not have a
vote in the Union. I credit the testimony of Neale concerning his conversations with
Cornett.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD___
another, that the assessment "was entirely up to them , that we were no part of it.','
When called as the first witness by the General Counsel , Bartholomew admitted that
Neale told him that he was refusing to pay because he had been to the National Labor
Relations Board and was advised that he did not have to pay the assessment. When
called the next day as the last witness for the Respondent Company in the presenta-
tion of its case, Bartholomew denied that Neale had ever made such a statement to
him. Bartholomew did not testify in a frank and straightforward manner: He dis-
played a reluctance to disclose facts which might be regarded as unfavorable to the
Respondent Company and admitted their truth only when confronted with his prior
affidavit. Under all the circumstances, I credit the testimony of Neale, as above
related.
Employee Ervin testified that after the incident when Cornett told a group of utility
employees that if they did not pay the strike assessments there "probably would be
some changes made," he and two other utility employees asked Superintendent
Bartholomew if they would have to pay the assessments, and that Bartholomew re-
plied that "as far as he knew we would not have to pay them." Ervin further testi-
fied that about a week or two later the same group again talked to Bartholomew
and that-
we asked him again what the score was, because things were getting riled up
around there, and he says he didn't know for sure, but he says it would prob-
ably end up we'd have to pay it.
According to Ervin's further testimony , the group spoke to Bartholomew again about
a week later and-
we asked him then that if we'd have to pay it and he says, "Well, it,would be
best if we did," and we says, "Well, if we didn't what would happen?" and he
says "They'd [the Union would] be on him," I guess, if we didn't. . . . He
said it would probably put him on a spot if we didn't pay it.
Neale testified that the first day the employees heard that strike assessments were
levied against them, a group of utility employees asked Bartholomew about the
necessity for making these payments and the consequences for failing to pay. Ac-
cording to Neale, Bartholomew stated that he knew no more about it than the em-
ployees and did not know what the outcome would be.
Bartholomew did not specifically deny the above conversations . He testified gen-
erally that at one time or another every utility man asked him if they had to pay
the strike assessments and what would happen if he did not pay, and that he told
them that "we were a disinterested party, that the strike assessment was strictly
out of our hands, that was between them and the local." Neale testified that Bar-
tholomew never told the employees in his presence that payment of the strike assess-
ments was none of the Company 's affairs.
I find that on the occasions concerning which Ervin and Neale testified , Bartholo-
mew made the statements attributed to him by Ervin and Neale.
2. Conclusions
It is well settled that Section 7 of the Act guarantees to employees the right to
refrain from assisting the Respondent Union by the payment of strike assessments.
(See, e. g. Peerless Tool and Engineering Co., 111 NLRB 853.) It is equally well
settled that statements or conduct of agents of the Respondent Union which were
reasonably calculated to restrain or coerce the employees in the exercise of this statu-
tory right constitutes a violation of Section 8 (b) (1) (A) of the Act. (See, e. g.
Seamprufe, Incorporated, 82 NLRB 892, 894.) By the same token, conduct or
statements by agents of the Respondent Company which "tended to interfere with the
free exercise of employee rights under Section 7 of the Act" constitutes a violation
of Section 8 (a) (1). Northeastern Engineering, Inc., 112 NLRB 743.
With these principles in mind , I now turn to a consideration of the facts in this case.
a. Respondent Union 's violation of Section 8 (b) (1) (A)
The utility employees, who were not members of the Respondent Union and were
not accepted into membership despite the applications of a large number , were un-
willing to pay the strike assessments because, as nonmembers , they could not see what
benefits they would derive. However, they were greatly concerned as to the conse-
quences of their failure to make these payments and queried Union Steward Cornett
in this respect. In these circumstances , Cornett's explanation to the group of utility
employees, which included Ervin, that if they did not pay "there probably would be
some changes made," carried an implied threat of economic reprisals, such as loss
CENTRAL PIPE FABRICATING AND SUPPLY CO. 361
of employment, which was reasonably calculated to restrain or coerce the employees
in the exercise of their statutory right to refrain from paying the strike assessments.
Similarly, Cornett's statement to the group of utility employees, which included Noe,
that "you'll pay it or else," and his statement to the group of utility employees, which
included Neale, that "he had got orders that it was either paid or else," carried implied
threats of physical or economic reprisals which were also reasonably calculated to
restrain or coerce the employees to whom the statements were addressed. The
threat of economic reprisal implied by these statements was even made more apparent
to the Noe group of employees. For, when they first asked Cornett why they would
have to pay the strike assessments when they did not belong to the Union, Cornett
retorted, "Well, you fellows are all working, aren't you?" In the light of this re-
tort, the employees might 'reasonably have believed that the "you'll pay it or else"
statement, which immediately followed, constituted a threat of loss of employment
for failure to pay the strike assessments.
Cornett was the agent of the Respondent Union charged with the collection of the
strike assessments and the Respondent Union is responsible for his conduct in the
performance of this duty. I find that, by the above threats and conduct of Union
Steward Cornett, the Respondent Union restrained and coerced the employees in the
exercise of their rights guaranteed by Section 7 of the Act and thereby violated Sec-
tion 8 (b) (1) (A) of the Act.
At the hearing the General Counsel attempted to show that the slips, given to
the employees as receipts for the assessments collected, constituted work permits
which were required as a condition of employment, in violation of the Act. Assistant
Business Agent Herthel credibly testified, without contradiction, that these receipt
books were given to the stewards for use as receipts in the collection of strike assess-
ments because they had an oversupply of them in the union office and that, in order
to cut down overhead, they were using them in the last 3 or 4 strikes. The uncon-
tradicted evidence shows that no one connected with the Respondent Company ever
asked to see these slips, that the employees never showed these slips to anyone con-
nected with the management of the Respondent Company, and that they were re-
garded by all parties as receipts for strike payments and not as work permits. Upon
the basis of the entire record, I find that the General Counsel has not sustained the
burden of proof that these slips constituted, or were used as, work permits or that
their use, under the circumstances disclosed by the record, violated the Act.
b. Respondent Company's violation of Section 8 (a) (1)
Plant Superintendent Bartholomew, an admitted supervisor of the Respondent
Company, actively assisted the Respondent Union in the solicitation and collection
of the strike assessments from the utility employees. Thus, on one occasion when
employee Noe failed to pay I week's assessments, Bartholomew, at the request of
Union Steward Cornett, called Noe aside, told him that the "Union boys had been
giving him hell" because Noe had not paid that 1 week's assessment, and made it
clear that the "Union boys" would get "off his back" if Noe would pay it. After
the next payday, Noe paid the assessment in which he had been delinquent. On
another occasion, Bartholomew, at the request of Assistant Business Agent Herthel,
asked Neale if he would pay his assessments if Local 392 gave him an extension
of time, and later advised Neale that Herthel had granted him such an extension.
When the extension of time had elapsed and Neale still failed to pay any of his as-
sessments, Bartholomew upbraided Neale for putting him in a "hell of a spot" by
failing to pay the assessments after Bartholomew had gotten the Union to give him an
extension of time. When Neale told Bartholomew that he would not pay the as-
sessments because he had been advised by the Board that he did not have to make
these payments, Bartholomew admonished that he "better think it over," urged
him to "go ahead and straighten it out with Local 392," and warned, "you know
what that will mean, don't you, if you don't straighten it out with Local 392."
Bartholomew made no reply to Neale's construction of Bartholomew's statement that
it would probably mean that he would get fired, but merely smiled and walked
away. Bartholomew was aware that the utility employees did not want to pay
the strike assessments but were concerned as to whether their failure to pay would
affect their job tenure Under all the circumstances, I find that Bartholomew's
warning to Neale that "you know what that will mean, don't you, if you don't
straighten it out with Local 392," and his conduct in smiling and walking away
without disputing Neale's interpretation that it would probably mean that he would
be fired, constituted, in its setting, a veiled threat of Neale's loss of employment if
he failed to pay his assessments. Finally, on two other occasions when a group
of utility employees inquired as to the necessity for paying the assessments and the
consequences of their failure to pay, Bartholomew told them, on the first occasion,
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "it would probably end up" that they would "have to pay it ," and, on the second
occasion , that if they did not pay, the Union would "be on him" and "it would
probably put him on a spot."
It is no defense that Bartholomew 's conduct and statements may have resulted
from pressure exerted upon him by agents of the Respondent Union. "It is well
established that the test of interference , restraint , and coercion does not turn on the
Respondent 's motive, but rather on whether the Respondent engaged in conduct
which tended to interfere with the free exercise of employee rights under Section
7 of the Act ." Northeastern Engineering , Inc., 112 NLRB 743. Upon the basis of
the entire record, I find that by the above described conduct and statements of
Bartholomew and by Bartholomew 's threat of economic reprisal to Neale, the Re-
spondent Company engaged in conduct which tended to' interfere with, restrain, and
coerce the employees in the free exercise of their rights guaranteed by Section 7
and thereby violated Section 8 (a) (1) of the Act.
The complaint also alleges that Cornett was a supervisor of the Respondent Com-
pany and that the Respondent Company also violated Section 8 (a) (1) by Cornett's
conduct in connection with the strike assessments . The record shows, without
contradiction , that for a period of about 6 months prior to June 7, 1954, Cornett was
a foreman over a group of welders and received 25 cents an hour above the journey-
man rate. The record also shows, without contradiction , and I find, that beginning
with the week of June 7, 1954 , Cornett ceased to be a foreman and was reduced
to his journeyman status at the journeyman rate. As I have previously found
that the conduct of Cornett in connection with the collection of the strike assess-
ments all occurred after June 7, 1954 , during which time Cornett was not a
supervisor for whose conduct the Respondent Company was liable, I find it un-
necessary to determine whether Cornett occupied the status of a supervisor prior
to June 7, 1954.
C. The discriminatory discharge of Neale
Leon N. Neale was first employed by the Respondent Company in April 1953 as
a utility employee He performed clerical duties in the warehouse and was in charge
of the toolroom, checking tools in and out and maintaining a toolroom inventory.
Neale was discharged on July 20, 1954 , under the following circumstances , accord-
ing to his testimony:
Along about 1:00 o'clock , 1:30, Harold [ Bartholomew ] come up to me and he
says, "I got some unpleasant news for you ." I says, "What is it? Am I getting
fired or laid offs" And he says , "Yes, we're having a cut down in personnel,"
and I said, "When it is?" And he says, "This afternoon ," and I says, "Well,
they finally did it, didn 't they?" He said, "What do you mean ?" I said, "Well,
it's finally union retaliation , isn't it, for not paying the strike benefits?" And
he kinda laughed at me and told me, he says "There will be-I'll get a couple
of checks for you," and he says also "There will be a letter before you leave
this afternoon that I will give you when you leave."
Neale asked Bartholomew whether he would state in this letter-
That this was caused by union retaliation and he says no, he says , "You know
we can't do that," but he says, "I'll fix up something for you in some, other
way," it would be all right.
About 4 o'clock in the afternoon Bartholomew gave Neale a letter, dated that day,
and reading as follows:
Reasons for Lay Off
Due to cut back in personnel being the most logical for following reasons.
Incompetent after a year 's training.
Not keeping small tools repaired.
Allowing unauthorized personnel in the tool room
H. J. BARTHOLOMEW.
About 5 or 10 minutes later, Neale was alone in the office with Bartholomew and
the following conversation ensued, according to Neale:
I said "Harold, how in the world can you use the word `incompetent' in this
letter?" He says, "Well," he says, "for several things." I says, "Well, what do
you mean, several things," and he says, "Take those levels in there," he says,
"for instance," he says, "you never did fix those for me " I says, "Harold, you
know better than that," I said, "I fixed those levels as best I could," I says, "We
don't have any tools to fix those levels with." I says, "they require precision
tools to fix levels," and he says, "Oh, well," he says, "for other various reasons."
CENTRAL PIPE FABRICATING AND SUPPLY CO. 363
He.,says, "Actually the letter speaks for itself," and I turned and walked away
from him.
Bartholomew testified that early in the afternoon on July 20 he told Neale that
he 'was being discharged, explained why he was being discharged, and stated that he
had saved Neale's job on two previous occasions by interceding on his behalf but that
there was nothing he could do about it this time. Bartholomew admitted that dur-
ing the course of the conversation that afternoon, Neale made the accusation that
"he was being fired for not paying the assessments or some such thing," asked Bar-
tholomew why he did not admit that it was on account of this assessment that he
was being fired, and also questioned what he meant by the word "Incompetent" in the
letter. He denied that he laughed at Neale when he made the above accusation and
testified that he told him it was not true. He testified that he did not "recall" Neale
asking whether Bartholomew would state in the letter that it was retaliation for re-
fusing to pay the strike assessment, and denied telling Neale that he could not put
such a reason in the letter but that he would fix something up to put in it. He fur-
ther testified that he told Neale that "this letter clearly stated why he was being fired,"
and that "the letter explains itself, that after a year's training he was incompetent, he
could not take care of the job after he had been taught."
I have already found that Bartholomew was not a credible witness. Under all the
circumstances, and for the reasons previously indicated in this report, I credit Neale's
version of the conversations, as related above, and find that Bartholomew made the
statements and conducted himself in the manner to which Neale testified.
As a defense to Neale's discharge, the Respondent Company relies on a combina-
tion of factors. Thus, the Company contends that at the time of Neale's discharge
an economic cutback in personnel was in progress, that Neale had been an unsatis-
factory employee for a long time, and that his discharge on July 20 was precipitated
by the discovery of unauthorized personnel in the toolroom that morning, despite
prior instructions and warnings to the contrary.
Plant Manager Archer, who had general overall direction of the plant, testified
that in January 1954 he complained to Bartholomew about errors and shortages of
material appearing in Neale's inventory for 1953, the first year of the plant's opera-
tion . However, Plant Superintendent Bartholomew and Paul Siegler, comptroller of
the Respondent Company, apparently felt that Neale was not wholly at fault. For,
Siegler testified that he and Bartholomew convinced Archer that "there was some
confusion during the first year of operation up there and we felt that he [Neale]
was entitled to a little extra instruction." Moreover, Siegler admitted that flanges,
which was the principal material missing in the inventory shortage, were stored in
unlocked bins in the warehouse where any employee could walk in-
Archer also testified that he was dissatisfied with Neale's record keeping and that,
"around the first of March or the first of May," he instructed that Neale be discharged
for failing to keep accurate records 'and for "allowing personnel to string in and out
of the tool room all the time." Here again, Bartholomew and Neale apparently felt
that the fault did not lie wholly with Neale. Archer testified that Bartholomew and
Siegler persuaded him not to discharge Neale because they felt that "maybe we were
giving him too much work to do." Besides, no system of record keeping had been
installed. As a result, they limited Neale's area of operations, and on several occa-
sions during April and May, Siegler spent some time with Neale in setting up a filing
system and a tool check system. They also decided to authorize only journeymen
electricians to go into the toolroom and so informed Neale.
Archer further testified that while making his customary tour through the plant
on the morning of July 20, 1954, he observed Neale in the toolroom with 3 or 4
journeymen, whose names he did not recall, "pawing around the stock bin," and
that he immediately went to Shop Superintendent Bartholomew and told him,
"That was all, brother, I was tired of messing with him." Archer did not testify that
the journeymen whom he observed in the toolroom were unauthorized personnel. On
the other hand, Bartholomew testified that Archer informed him that morning that
he had discovered 3 or 4 unauthorized personnel in the toolroom with Neale, that
Archer merely told him to "break it up," and that he went to the toolroom and found
Foreman John Cook with several utility men there with Neale.
Late that morning or early in the afternoon, Archer, Bartholomew, and Siegler
held a conference in which the following occurred, according to their testimony-
Archer stated that he definitely wanted Neale discharged. Bartholomew brought up
the matter of the Union's strike assessment and told Archer that Neale had been
to the National Labor Relations Board about it and that "it might stir up a little
trouble if we discharged him at that time because it would appear likely that we were
in cahoots with the Union in doing it." The 3 men discussed the situation for
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
awhile and , according to the testimony of Siegler whom I regard as the more neutral
of the 3 witnesses , "we decided" to let Neale go, "regardless of the consequences."
Bartholomew then had Siegler make out Neale 's checks and informed Neale of his
discharge.
Neale admitted that during the course of his employment he had been criticized
in connection with his work , the last time being about 11/2 months before his dis-
charge. He also admitted that he had been criticized by Bartholomew and Siegler,
the last time being about 11/2 months before his discharge , for letting personnel
come into the toolroom . However, he credibly testified , without contradiction, that
he had explained to Bartholomew and Siegler that he could not keep everyone out
because there were too many keys to the toolroom in the possession of other em-
ployees, that his duties took him away from the toolroom , and that, although he
would lock the toolroom , he frequently returned to find it open. Although Barthol-
omew replied , according to Neale's further uncontradicted and credited testimony,
that he would make an effort to collect the outstanding keys, the record does not
show that this was accomplished and Neale testified that to his knowledge "those keys
were never gotten up." According to Neale's further uncontradicted and credited
testimony , Jerry Askey and Foreman John Cook were among those who had keys
to the toolroom. Neale frankly admitted that , while he did not remember whether
there were any unauthorized personnel in the toolroom on the morning of July 20,
"there is a possibility " that there may have been.
It is clear to me, and I find , that the economic layoff then in progress was not a
motivating factor in the decision to discharge Neale. This is readily apparent from
Archer's admission that Neale would have been discharged that day even if no
layoffs were in process and even if the plant were staffed to capacity.5
Nor am I convinced that Archer 's discovery of unauthorized personnel in the tool-
room on the morning of July 20 was the precipitating factor which truly motivated the
discharge . Among the significant facts pointing to a contrary conclusion are the
statements and conduct of Bartholomew in his conversations with Neale at the time
of the discharge . Bartholomew did not inform Neale that Archer had ordered his
discharge because Archer had observed some unauthorized personnel in the tool-
room that morning, or indicate in any manner that Neale 's dereliction in that regard
was the immediate cause for his discharge , as would reasonably be expected if that
were in fact the true precipitating cause. On the contrary , he did not even mention
anything about unauthorized personnel being in the toolroom that morning but
told Neale he was being let out because of a "cut down in personnel ." Even more
significant is Bartholomew 's conduct in not denying Neale's accusation that his termi-
nation was finally caused by union retaliation for failing to pay his strike assessments,
and Bartholomew 's assurance that, while he could not state in a letter that union
retaliation was the reason , he would "fix up something " in the letter "in some other
way." Bartholomew did "fix up" three reasons in the letter which he later gave Neale.
Despite the fact that nothing had occurred in connection with Neale's work per-
formance since Bartholomew had spoken to Neale about the "level situation" about
11/2 months before his discharge , "incompetent" was set forth in the letter as the first
reason. Unable to give Neale a satisfactory explanation as to what he meant by
incompetence , e Bartholomew finally stated that there were "other various reasons"
and that the letter "speaks for itself ." As the second reason , the letter listed the
failure to keep small tools repaired , although there is no showing that Neale had
ever been derelict or criticized in this respect . Significantly , "allowing unauthorized
personnel in the tool room" was listed third in importance.
There is additional evidence in the record which leads me to believe that the pres-
ence of unauthorized personnel in the toolroom was not regarded as such a serious
offense as to warrant summary discharge . Thus, the Respondent Company permit-
ted other unauthorized personnel to have keys to the toolroom , with full knowledge
that Neale's duties kept him away from the toolroom about 50 percent of the time.
8 After Neale 's discharge , other utility employees were laid off solely because of lack
of work and were subject to recall when work became available. Their employment
records contained the initials "TL," which indicated a temporary layoff, and some of
them were in fact subsequently recalled . Neale, however, was not subject to recall but
was discharged His employment record contained the notation , "Final "
e Bartholomew ' s only example of incompetence was his reference again to the fixing of
the levels He did not however dispute, or indicate any dissatisfaction with , Neale's
explanation that the levels could not be fixed any better without the use of precision
tools which were not available.
CENTRAL PIPE FABRICATING AND SUPPLY CO. 365
John Cook, foreman over the utility employees,. and several utility employees were
present in the toolroom on the morning of July 20, according to Bartholomew's
testimony. Yet, Cook was neither criticized nor reprimanded either for being
there himself or for permitting other subordinate utility employees to be there in
his presence. Moreover, the record shows that after Neale's discharge manage-
ment did not display the same concern about the presence of unauthorized personnel
in the toolroom. Thus, no one person was made responsible for the toolroom. And
Bartholomew admitted that he himself observed groups of employees eating lunch in
the toolroom with impunity.
Also significant is the serious discrepancy between the testimony of Archer and
Bartholomew as to Archer's immediate reaction on the morning of July 20. Archer
testified that he observed 3 or 4 journeymen in the toolroom and that, without any
inquiry, he immediately went to Bartholomew and told him "that was all" for
Neale. However, Bartholomew did not corroborate Archer in this respect. Ac-
cording to Bartholomew's testimony, Archer at that time gave no indication that he
regarded this incident as the final misstep causing Neale's termination but merely
told Bartholomew to go to the toolroom and "break it up." Bartholomew found
Foreman Cook and several utility employees in the toolroom. Under all the cir-
cumstances, I am convinced and find that the presence of unauthorized personnel
in the toolroom was not immediately regarded as such a serious offence as to warrant
peremptory discharge but that it acquired this significance subsequently at the con-
ference which Archer had with Bartholomew and Siegler and during which con-
ference Bartholomew raised the point about Neale's failure to pay his strike assess-
ments and his visit to the Board in connection therewith.
Neale was the only employee who persistently refused and failed to pay his strike
assessments. Neale was the only employee who was discharged during this period.
At the request of the Union's agents, Plant Superintendent Bartholomew cooperated
with the Union and took an active part in soliciting delinquent employees to pay
the assessments to the Union. On various occasions, as previously found, Bartholo-
mew told employees that failure to pay the assessments resulted in the "Union
boys" "giving him hell," "putting him on the spot," getting "on him," and getting
"on his back." After 3 or 4 unsuccessful attempts to collect the assessments from
Neale, Cornett and Herthel enlisted Bartholomew's aid in this specific endeavor.
Cornett asked Bartholomew to find out whether Neale was going to pay his strike
assessments. During a telephone conversation with Bartholomew in the latter part
of June, Herthel wanted to know why Neale had not paid his 10 percent strike assess-
ments. After ascertaining Neale's willingness to pay his assessments if Local 392
were to give him an extension of time, Bartholomew succeeded in "cooling" Herthel
off by getting him to agree to give Neale an extension of time until the following
Wednesday and so informed Neale. Thereafter, Neale told Cornett, when the latter
again solicited him, that he would bring his payments to the union hall that night.
That evening at the union hall, Cornett informed Herthel of Neale's promise. When
Neale failed to keep his promise to Cornett to bring his payments to the union hall,
Bartholomew took Neale to task for putting him in "a hell of a spot" by refusing to
pay his assessments after Bartholomew had succeeded in getting the Union to agree
to give him an extension of time. By his statements and conduct on that occasion,
Bartholomew warned Neale that loss of employment would be the consequence of
his failure to "go ahead and straighten it out with Local 392 " When Neale still
failed to pay his assessments, Bartholomew's warning was fulfilled by the discharge
of Neale about 5 days later.
Plant Manager Archer, who handled the Company's labor relations with the
Union, admitted that he first heard about the strike assessments about June 1 and
that early in July he definitely knew that strike assessments were requested of his
employees. When Archer observed some unauthorized personnel in the toolroom
on the morning of July 20, a conference was later held with Bartholomew and
Siegler during which Bartholomew raised the point about Neale's failure to pay his
strike assessments and his visit to the Board in that connection. After discussing
the matter, the decision was reached to discharge Neale, "regardless of the conse-
quences." While informing Neale that he was being terminated because of a "cut
down in personnel," Bartholomew acquiesced, by his silence and conduct, in Neale's
accusation that his termination was due to union retaliation for failing to pay his
strike assessments. Explaining that he could not state that as the reason in a letter,
Bartholomew assured Neale that he would "fix up something for" him "in some
other way." Thereafter, Bartholomew gave Neale a letter in which he did "fix up"
3 reasons, the first 2 of which had no relation to any recent occurrences. Finally,
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he was unable to give a satisfactory explanation of the basis for the first reason,
Bartholomew made the blanket charge that it was "for other various reasons."
Under all the circumstances, I do not credit the testimony of the Company's.
witnesses as to the asserted reasons for Neale's discharge; I am convinced, and find,
that the presence of unauthorized personnel in the toolroom and the then current
economic layoffs were seized upon as convenient pretexts to discharge Neale because
of his failure to pay the strike assessments to the Respondent Union. By such con-
duct, the Respondent Company discriminated in regard to Neale's hire and tenure
of employment, thereby encouraging membership in and loyalty to the Union, in
violation of Section 8 (a) (3) and (1) of the Act.
I now turn to a consideration of the Respondent Union's relationship to Neale's
discharge. During June, Union Steward Cornett warned groups of utility employees,
including Neale, that the assessments had to be paid and threatened that loss of
employment would be the consequence of their failure to pay their strike assessments
Cornett took his orders in connection with the collection of the strike assessments
directly from Assistant Business Agent Herthel. He made 3 or 4 unsuccessful
attempts to collect the assessments from Neale, accusing Neale of being a "scavenger
on the job with Local 392" and warning him that all the utility employees "would
have to pay" the assessments. Cornett called upon Plant Superintendent Bartholo-
mew to speak to Neale about the payment of his assessments. He also kept Herthel
informed of Neale's failure to pay, after each unsuccessful solicitation, and was in-
structed to give Neale more time. Herthel was in frequent telephone communica-
tion with Bartholomew. During the course of a telephone conversation about the
latter part of June, Herthel requested an explanation from Bartholomew as to why
Neale had not paid his 10 percent strike assessments, asked Bartholomew to find out
if Neale would be willing to pay if an extension of time were granted, and then agreed
that Neale should have an extension of time until the following Wednesday. There-
after, Cornett again solicited Neale who at that time promised to bring his assess-
ment payments to the union hall that night. At the union hall that evening, Cornett
informed Herthel of Neale's promise. Neale failed to keep his promise and was
the only employee who failed to pay his strike assessments. Shortly thereafter,
Neale was discharged by the Company because of his failure to pay the strike
assessments to the Union.
The Respondent Union, through its agents, had enlisted the aid of Plant Superin-
tendent Bartholomew to get the delinquent employees, Noe and Neale, to pay their
strike assessments to the Union. Bartholomew cooperated with the Union in this
respect. In Noe's case, Bartholomew's efforts resulted in the payment being made.
In Neale's case, Bartholomew's efforts proved to be unsuccessful with the result that
Neale was discharged by the Company for failure to pay the strike assessments to the
Union. Union Steward Cornett's threats of economic reprisals demonstrate the
intention of the Union to cause loss of employment to employees who failed to pay
the assessments. In view of Bartholomew's position as plant superintendent, the
Union's agents undoubtedly were aware that his supervisory authority could be instru-
mental in bringing about the discharge of an employee. In the light of the Union's
intention to cause loss of employment for failure to pay the assessments, the only
reasonable explanation for the Union's conduct in seeking Bartholomew's assistance,
rather than that of an ordinary rank-and-file employee or union member, is the
realization that the supervisory authority of his position would be more likely to
have a successful effect in causing the employee to succumb to his solicitations, and
also could be useful in effectuating the Union's intent of causing economic reprisals
in the event of his failure. Under these circumstances, the Union's agents not only
intended but must have foreseen, or at least should have foreseen, and are therefore
responsible for, the discharge of Neale as a reasonable foreseeable consequence of
Bartholomew's unsuccessful efforts to get Neale to pay the assessments to the Union.
Accordingly, I find that the Respondent Union caused, or attempted to cause, the
Company to discharge Neale because of his failure to pay the strike assessments to
the Union, thereby violating Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CENTRAL PIPE FABRICATING AND SUPPLY CO. 367
V. THE REMEDY
In view of the foregoing findings, and in order to effectuate the policies of the
Act, I will recommend that each of the Respondents cease and desist from the un-
fair labor practices respectively chargeable to each, cease and desist from in any
other manner impinging upon the employees' 'statutory rights, and that they jointly-
and severally make Leon L. Neale whole for any loss-of earnings he may have
suffered by reason of the Respondent Company's discrimination against him, by pay-
ment to him of a sum of money equal to that which he normally would have earned
as wages from July 20, 1954, the date of his discharge, to the date of the Respondent
Company's cessation of operations, less his net earnings during said period. Said
loss of pay shall be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. It will also be
recommended that the Respondent Company make available to the Board, upon
request, payroll and other records to facilitate the determination of the amount due
under this recommended remedy.
It will also be recommended that, in the event the Respondent Company resumes
operations, (1) the Company offer to Leon L. Neale immediate and full reinstate-
ment to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, (2) the Company post in its plant copies
of the notice attached hereto and marked "Appendix A," and that (3) signed
copies of the notice attached hereto and marked "Appendix B" be mailed by the
Respondent Union to the Regional Director for posting at the Company's plant.
The record shows that since January 1, 1955, the Respondent Company has
ceased to operate any business but has continued to exist as a solvent corporation.
Having found that the unfair labor practices were committed with respect to the
utility employees, none of whom were members of the Union, merely posting a
notice in the Union's business office and meeting hall is inadequate, in my opinion,
to effectuate the policies of the Act in the event that the Company has not resumed
operations. Undei these circumstances, I will also recommend that each of the
Respondents mail to the utility employees on the payroll records of the Company
since June 1, 1954, copies of the notices respectively applicable to each and at-
tached hereto as Appendices A and B
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Pipefitters Local 392, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and Canada, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discharging Leon L. Neale because of his failure to pay strike assessments,
thereby encouraging membership in the Respondent Union, the Respondent Com-
pany has engaged in and is engaging in unfair labor practices in violation of Section
8 (a) (3) of the Act.
3. By soliciting employees to pay strike assessments to the Respondent Union,
by threatening an employee with loss of employment as the consequence of his
failure to pay his strike assessments, and by discriminating in the hire and tenure of
employment of Neale, the Respondent Company has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
,4. By causing or attempting to cause the Respondent Company to discriminate
in the hire and tenure of employment of Leon L. Neale in violation of Section 8 (a)
(3) of the Act, the Respondent Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act
5. By threatening employees with loss of employment for failing to pay their
strike assessments and by causing or attempting to cause the Respondent Com-
pany to discriminate against Neale in violation of Section 8 (a) (3) of the Act,
the Respondent Union has restrained and coerced the employees in the exercise of
rights guaranteed in Section 7 of the Act and has thereby engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce-within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX =A
-NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial -Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in Pipefitters Local 392, United Asso;
ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry
of the United States and Canada, AFL, or in any other labor organization of our
employees, by discharging employees for failure to pay strike assessments or by
discriminating against them in any other manner in regard to their hire or tenure
of employment or any'term or condition 'of their employment, except-to the
extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT solicit employees to pay strike assessments to the above-named
Union or to any other labor organization.
WE WILL NOT threaten employees with loss of employment for failure to pay
the strike assessments.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as authorized
by Section 8 (a) (3) of the Act.
WE WILL make Leon L. Neale whole for any loss of pay he may have suffered
by reason of the discrimination against him.
WE WILL, in the event we assume operations, offer to Leon L. Neale immediate
and full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights or privileges.
CENTRAL PIPE FABRICATING AND SUPPLY CO.,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF PIPEFITTERS LOCAL 392, UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA, AFL
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby give notice that:
WE WILL NOT cause or attempt to cause Central Pipe Fabricating and Supply
Co., its officers, agents, successors, or assigns, to discriminate against its em-
ployees within the meaning of Section 8 (a) (3) of the Act.
WE WILL NOT threaten employees of the above Company with loss of employ-
ment for failure to pay strike assessments.
WE WILL NOT in any other -manner restrain or coerce employees of the
above Company, its successors , or assigns, in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make Leon L. Neale whole for any loss of pay suffered because
of the discrimination practiced against him.
PIPEFITTERS LOCAL 392, UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND CANADA, AFL,
Labor Organization.
Dated---------------- By-----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.