Chicago Roll Forming Corp.

National Labor Relations Board - Board Decisions

Oct 23, 1967

167 N.L.R.B. 961 (N.L.R.B. 1967)

CHICAGO ROLL FORMING CORP. 961
Chicago Roll Forming Corp . and James L. Scott
Machinery , Scrap Iron , Metal and Steel Chauffeurs,
Warehousemen , Handlers, Helpers and Alloy
Fabricators Union , Local 714 , I.B. of T. and
James L. Scott . Cases 13-CA-7256 and
13-CB-1999
bons were incorrect Standard Dry Wall Products , Inc , 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We find no such basis for disturbing the Trial
Examiner's credibility findings in this case
3 [Certain inadvertent errors in the Trial Examiner ' s Decision have
been corrected by the addition , in brackets , of the corrections immediately
following the appropriate words or phrases ]
TRIAL EXAMINER'S DECISION
October 23, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 1, 1967, Trial Examiner James F. Foley
issued his Decision in the above-entitled proceed-
ing, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondents filed exceptions to the
Decision. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions, and the
entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondents, Chicago Roll Forming
Corp., its officers, agents, successors, and assigns,
and Machinery, Scrap Iron, Metal and Steel Chauf-
feurs, Warehousemen, Handlers, Helpers and
Alloy,Fabricators Union, Local 714, I.B. of T., its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
In Paragraph B, 2(c), substitute for the words "to
be furnished" the words, "on forms provided."
The Respondents ' request for oral argument is hereby denied, as the
record and exceptions adequately present the issues and positions of the
parties
2 The Respondents have excepted to certain credibility findings made
by the Trial Examiner It is the Board's established policy not to overrule
a Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolu-
JAMES F. FOLEY, Trial Examiner: These cases,
13-CA-7256 and 13-CB-1999, were brought before the
National Labor Relations Board (herein called the Board)
under Section 10(b) of the National Labor Relations Act,
as amended (herein called the Act), 61 Stat 136, 73 Stat.
519, against Respondent Chicago Roll Forming Corp.
(herein called Employer), and Respondent Machinery,
Scrap Iron, Metal and Steel Chauffeurs, Warehousemen,
Handlers, Helpers and Alloy Fabricators Union, Local
714, International Brotherhood of Teamsters (herein
called Union), on a complaint issued by the General
Counsel of the Board (through the Regional Director for
Region 13 at Chicago, Illinois), on July 29, 1966, and an-
swers filed by Respondent Employer on August 8, 1966,
and by Respondent Union on August 10, 1966. The al-
legations in the complaint of illegal conduct by Respond-
ent Employer are premised on a charge filed against it on
November 29, 1965, and an amended charge filed against
it on July 15, 1966. The allegations in the complaint of il-
legal conduct by Respondent Union are premised on a
charge filed against it on May 9, 1966, and an amended
charge filed against it on July 28, 1966.
It is alleged in the complaint that on or about
November 21, 1965, Respondent Employer threatened
employees with discharge and other reprisals for engaging
in protected activity within the meaning of Section 7 of
the Act, in violation of Section 8(a)(1) of the Act; and on
or about November 22, 1965, discriminatorily discharged
employees Eddie Walker and Willie Hawkins, and on or
about November 24, 1965, discriminatorily discharged
James L. Scott, for engaging in protected activity, in
violation of Section 8(a)(3) and (1) of the Act.
It is also alleged in the complaint that Respondent
Union restrained and coerced employees in violation of
Section 8(b)(1)(A) of the Act because they engaged in
protected activity, and caused, and attempted to cause,
Respondent Employer to discriminatorily discharge
Walker and Hawkins on or about November 22, 1965,
and James L. Scott on or about November 24, 1965, for
engaging in protected activity in violation of Section
8(b)(2) of the Act.
General Counsel's motion at the commencement of the
hearing for leave to amend the complaint to allege that
Respondent Employer's illegal conduct was due specifi-
cally to the union activity of the named employees as well
as other protected activity was granted. Respondent Em-
ployer and Respondent Union in their answers deny the
illegal conduct alleged in the complaint against them.
They were permitted to amend their answers to include
denials that they engaged in any illegal conduct because
of union activity by the named employees.
A hearing on the amended complaints and answers was
held before me in Chicago, Illinois, on November 21, 22,
23, 25, and 26, 1966. The parties were afforded opportu-
nity to offer evidence, make oral argument, and file briefs.
Counsel for General Counsel and for Respondent Union
filed briefs after the close of the hearing.
I General Counsel's motion to stnke from the record evidence in-
troduced by Respondent Employer is denied
167 NLRB No. 134
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Employer, an Illinois corporation with an
office and place of business in Chicago, Illinois, is en-
gaged in the manufacture, sale, and distribution of metal
industrial pallet racks. During the calendar year 1965, it
sold and shipped directly from its Chicago plant products
valued in excess of $50,000 to customers located in
States other than the State of Illinois. This out-of-State
business is representative of the out-of-State business
Respondent Employer does annually. Respondent is, and
has been at all times material to the issues in the com-
plaint , an employer engaged in and affecting commerce
within the meaning of Section 2(6) and (7) of the Act. The
assumption of jurisdiction will effectuate the purposes of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues before the Trial Examiner are:
1. Did Respondent Employer threaten employees
with discharge and other reprisals for engaging in union
activity, and thereby interfere with, restrain, and coerce
employees in violation of Section 8(a)(1) of the Act?
2 Did Respondent Employer discharge Eddie
Walker, Willie Hawkins, and James L. Scott for engaging
in union activity to encourage membership in the Union
in violation of Section 8(a)(3) and (1) of the Act?
3. Did Respondent Union threaten employees with
discharge and othe was made plant superintendent. He
held this position until September 23, 1966. Prior to this
appointment, he was the leadman in charge of the roll
forming department. Respondent Employer and Re-
spondent Union had a collective-bargaining agreement
(herein called the Contract) for the period May 1, 1964, to
April 30, 1967, with an automatic renewal provision. The
Contract covers Respondent Employer's production,
maintenance, and shipping room employees, and has a
union-security provision providing for employee member-
ship in Respondent Union after 30 days from the first
day of employment.
In the larger of Respondent Employer's two buildings,
there are two bays, each 40-feet wide and 150-feet long,
in the center of which are three roll forming machines. On
either side of the machines are facilities for welding and
fabricating. There are punch presses, a shearing machine,
and an electric saw. Steel coils are rolled into various
shapes and sections by the roll forming machines. The
machines and the area on which they are located are
identified as the roll forming department. A leadman
operates the machines with the assistance of six em-
ployees. The principal units or subsections that make up
an industrial pallet rack are the frames and beams. They
are manufactured or fabricated in the area adjoining the
roll forming department identified as the welding and
fabrication department. The small hardware for the rack
is manufactured or fabncated in a part of these areas
which is identified as the accessory department.
Respondent Employer's second building houses the
paint shop and the shipping department. In the paint shop
are two paint booths where the beams, frames, and other
units are automatically painted. The beams are painted in
one booth and the frames are painted in the other. A hang
line or conveyor, automatically powered, brings the
beams and frames to the paint booths. When a unit
emerges on the line from a booth, the places missed by
the paint machine are touched up. Some of the beams are
set together or sandwiched. Employees hang the beams
or frames on the conveyor line, operate two hand spray
guns for the touchup work, take the units off the line and
stack them, and do the sandwiching work. There are eight
employees in the paint shop including the leadman. One
rank-and-file employee regularly operates one spray gun
while the other is operated by the leadman.
In November 1965 Virgil Stalker, the superintendent's
brother, was leadman in charge of the roll forming depart-
ment. James Bone was leadman in charge of the welding
and fabrication department. He had held this job since
September 1965, when he was transferred to it from the
job of leadman in the paint shop. Bone left Respondent
Employer's employ in May 1966 for other employment.
In November 1965, Roman Revering was leadman in
charge of the paint shop. He was leadman since Sep-
tember 1965 when Bone was transferred from it to the
welding department. Revering operated one of the spray
guns and Leonard Burton operated the other. Burton
began this job about November 1964 and has continu-
ously worked at it since that time. To protect himself
from the paint, Revering wore a mask over his face, and
a cloth on his head. Burton let the paint get on him. He
did not use either a mask or cloth.
Twelve welders, a foot press operator and two laborers
were assigned to Bone's department in November 1965.
One of the laborers was Scott. Bone as leadman was
given orders to fill. He assigned the work to welders in ac-
cordance with the orders. He helped the men make the
setups and supervised the work they did to see that it was
of the required quantity and quality. He would explain to
them the welding work to be done. This included an ex-
planation of the blueprints for the particular unit being
manufactured. Bone's duties as leadman took slightly
more than 50 percent of his working time. He worked
with his hands the remainder of the time. He occasionally
welded but also helped with the crane, sandwiching and
getting stock ready to be worked on He inspected the
work of the welders and told them what corrections to
make He was responsible for the completion of the work
order insofar as it was handled by his department. He
kept reports on the progress of all orders, including the
name and work of the employees working on the particu-
lar order. He had a desk in the welding department for the
performance of paperwork. Bone did not pass out
paychecks. He did not have the authority to hire, fire, or
promote. He recommended employees for hire. They
were interviewed by management. He recommended the
discharge of employees, the disciplining of employees,
and the promotion of employees. They were not
discharged, disciplined, or promoted entirely on his
recommendation. Bone was paid by the hour, and
received the prescribed premiums for overtime work the
hourly workers received.
If there was not enough work in his department to keep
some of his welders or laborers busy, Bone would tell Su-
perintendent Stalker, and the latter would transfer them
or instruct Bone where to transfer them. When Bone
needed additional workers, he would inform Stalker, and
the latter would obtain additional help for him or give
Bone authority to obtain help from the leadmen in charge
CHICAGO ROLL FORMING CORP. 963
of the other departments. When there was overtime to be
worked in the welding department , and he was authorized
by Stalker , Bone recruited employees in his department
to do it, and selected the ones to do it. If workers had to
be obtained from other departments for work in the weld-
ing department , Stalker would obtain them or authorize
Bone to recruit them in other departments and to select
the employees for the overtime from those volunteering.
If there was overtime work authorized to be done in other
departments and volunteers were needed , in some in-
stances Stalker would ask Bone or his brother Virgil to
recruit volunteers in the required classifications in all the
departments , and they would do so . Bone was identified
as a foreman when he was placed in charge in the paint
department. This identification was later changed to lead-
man. There is a reference to working foreman in the Con-
tract.
During the time Bone was leadman in the welding and
fabricating department, he was also the union steward of
Respondent Employer's production, maintenance, and
shipping employees covered by the Contract . Bone was
first elected union steward by the employees in 1963, and
held this office continuously until he terminated his em-
ployment in May 1966 . He was reelected at an election in
1964. Prior to each election , either Richard Schumacher,
business representative of Respondent Union, or Frank
Hilburger , also a business representative of Respondent
Union , telephoned President Beebe and arranged for the
election to be held in the plant. Hilburger , or both he and
Schumacher , were present at the election . One of them
talked to the employees before the election . Hilburger
and an employee counted the votes, and Hilburger an-
nounced the results. The Contract does not provide for
the election or appointment of a steward , or detail a
grievance procedure . However , it does refer to discussion
between management and "the steward" of a discharge,
layoff , or voluntary termination of an employee, and does
provide for the filing of grievances . During Bone's em-
ployment , the established practice for Respondent
Union ' s participation in the processing of a grievance
began with the initial presentation by the union steward
(Bone) to the plant superintendent (Stalker) or the
presence of the steward at the initial step if the employee
himself made the initial presentation to Respondent Em-
ployer. If the grievance could not be settled at the initial
step , or by Stalker and Bone, then it became the problem
of President Beebe and Bone. If it could not be settled at
this level , then it was considered by Beebe and the
Union's executive officials, usually Schumacher and Hil-
burger. Their participation began when Bone notified
them that the grievance was not settled at the plant level.
Beebe testified that he and Bone settled four or five
grievances around November 1965, and one of them in-
volved an employee of the roll forming department. Bone
could not recall discussing any grievances with Beebe. I
credit Beebe 's testimony.2
C. Undisputed Facts about the Discharges
On Monday morning, November 22, 1965, employees
Willie D. Hawkins and Eddie Walker were discharged by
Gobal Stalker, Respondent Employer' s plant superin-
tendent . On Wednesday, November 24, 1965, between
7:30 and 8 a.m., Stalker discharged James L. Scott. Haw-
kins and Walker began their employment on October 19
and 22, 1965, respectively. Scott began his employment
on May 15, 1962. Scott was considered by Respondent
Employer to be an able and conscientious employee. He
was a member of Respondent Union. Under the Contract,
Hawkins and Walker were probationary employees for
60 days from the first day of employment. They were not
members of the Union. Both had the classification of
laborer. Hawkins'worked in the paint department on the
hang or conveyor line, under leadman Revering . Walker
helped the operator of the shearing or cutting machine.
This machine was located in the accessory department.
They were paid in full by check a short time after Stalker
told them to clock out. Scott also had the classification of
laborer. While he began his employment with Respondent
Employer as a laborer, he had been a welder, with that
classification , in the welding department for some time
until September 1965. At his request, he was then as-
signed to laborer's duties. The flame of the welding gun
he used as a welder had damaged one of his eyes , and the
injury had been aggravated by the time of the assignment
to laborer's duties.
Hawkins and Walker, who are cousins , received per-
mission from Respondent Employer to be absent from
work on Thursday, November 11, and Friday,
November 12, 1965, to attend a funeral in Cleveland,
Ohio. During the late afternoon of November 23, 1965,
Scott was assigned by Respondent Employer to work in
the paint department on November 24, 1965. He said to
Stalker that he could not take the job assignment in the
paint department. On the morning of November 24,
1965, about 7:30, he refused to take the job assignment in
the paint department. He conveyed the refusal to Stalker
and Bone. Stalker thereupon discharged him and paid him
for time up to 9 a.m. This was the time the office person-
nel who prepared the checks came to work.
On early Monday morning, November 22, 1965, James
Bone, the union steward under the Contract, received in
the mail delivered to Stalker 's office a letter sent to him as
union steward by Scott. Stalker handed the letter to Bone,
and the latter opened it in Stalker 's presence . He read it
and handed it to Stalker to read , and Stalker read it. The
letter is a document:' bearing the date "Nov . 1965," con-
sisting of two paragraphs , and signed on its face by Scott,
Fedro Williams, and three other employees, and on its
reverse side or back'by Hawkins and Walker and seven
additional employees . In the first paragraph it is stated
that the employees who signed the document protested
Bone being both union steward and foreman because he
could not fairly represent the union members by acting
for them and the Company at the same time . It is stated
in the second paragraph that a copy of the document was
being sent to Bone, Richard Schumacher , business
representative of the Union , and to Joint Council No. 25
of the Teamsters . Scott sent each of them a handwritten
copy on November 20, 1965. There were four handwrit-
ten copies in Scott's wife 's handwriting. Scott kept one
copy . Scott drafted the protest at his home during the
week ending November 6, 1965 , and his wife made four
copies of the final draft. Fedro Williams , and the other
three who signed it on its face , along with Scott, met at
Scott's home on the evening of Saturday , November 6,
z Bone testified that he "signed up" the employees for the Union , and stance where he had to refer a problem to Schumacher and Hilburger He
handled their gripes for them with Stalker According to Bone , all said this was in 1963
grievances were resolved by Stalker and him He recalled only one in- ' The document is herein referred to as a protest and as a petition
310-541 0 - 70 - 62
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and signed it. Scott signed at the same time . Hawkins,
Walker, and the other seven who signed on the back, af-
fixed their signatures at the plant , or in its parking lot,
between Monday and Thursday of the following week.
They signed on November 8, 9, 10, or 11.
D. The Contentions of the Parties
General Counsel contends that Scott, Hawkins, and
Walker were discharged, and employees were threatened,
because they participated in the protest against Bone.
Respondent Employer's defense of the discharges is that
Scott was discharged for refusing to work in the paint de-
partment, and Hawkins and Walker were discharged for
laziness, absenteeism, and lateness. Respondent relies on
the same defense, and also contends that Bone had
nothing to do with the discharges, and in any event
Bone's conduct and statements cannot be imputed to it as
Bone was not its agent.
B. Conflicting Evidence About the Discharges and
Threats
1. General Counsel's evidence
In support of the General Counsel's contention regard-
ing the discharge of Walker and Hawkins on November
22, evidence was offered that between 9 and 10 a.m. on
November 22, Bone asked Fedro Williams, who signed
the protest, if the employees who signed it were trying to
"stab him in the back," and said "they would get us, one
by one, for signing that petition"; Bone spoke to Scott
about the same time and asked him about a signature that
was on the back of the handwritten copy he had received,
and Scott told him it was Roman Reveling's but he had
decided not to sign it and had scratched it out, Bone then
said to Scott that Hawkins and Walker were not members
of the Union but had signed the petition and asked Scott
if he was going to take their names off it, and when Scott
said "no," he said he was going to fire them; Stalker came
to Walker's work station about 10:30 a.m. and told him to
clock out and go home, and when asked why by Walker,
he said it was because he signed the petition when he was
not in the Union and had no right to sign it; Walker met
Bone when he went to the timeclock and punched out and
asked him why he was fired, and Bone told him it was be-
cause of the petition he signed;' Stalker came to Hawk-
ins' work station between 10:30 and 11 a.m. and asked
him if his name was Hawkins, and when he said it was, he
told him to change his clothes and punch out, and as he
walked away Hawkins followed him, and asked him if
anything was wrong with his work, and he said no, but
that the big bosses could not keep him anymore because
he was trying to make trouble between the Union and the
men, and he also said there was nothing he could do when
Hawkins asked him if he could have another chance; and
about 5 minutes after Hawkins talked to Walker, Stalker
came into the locker room where Hawkins and Walker
had gone and handed them checks in the amounts owed
them by Respondent Employer.
In support of the contention that Scott was discharged
on November 24, 1965, for initiating the protest and sign-
ing it, General Counsel also offered evidence that about
10 minutes before the end of the workday on November
23, Stalker and Bone came to Scott's work station in the
accessory department where he was operating the electric
saw and Bone told Scott to report the following morning
to the paint department and replace Leonard Burton;5
Scott asked why Bone wanted him to replace Burton and
Bone answered that it was hard for one man to work on
the "paint" as long as Burton had, and they were going to
replace Burton with him, and Scott said he could not take
the paint job as he had sinus and Bone replied, "You just
go to the paint shop in the morning," and he said, "Okay,
I'll see about it"; Scott reported to Stalker in the front of
his office at 7:30 a.m. the next morning, November 24,
and told him he could not take the paint job because of
sinus, that the paint job was worse than welding, and
Stalker said he would have to get Bone, that he had
nothing to do with the assignment, and left to get him, and
returned with him; Bone said to Scott that he advised him
to take the paint job and Scott replied he could not take it
because of his health, and Bone again said he advised him
to take the job, and Scott replied he did not need Bone to
advise him but to represent him, and Bone then said to
Stalker that if Scott did not take the job to give him his
check; Stalker said okay, he would have his check ready
by 9 o'clock, and for Scott to wait in his car, and Scott
said he would wait in the washroom, and Stalker said he
could wait there; and Stalker brought Scott's check to
him in the washroom where he had gone, about 9 a.m.,
and Scott left.
General Counsel's evidence represents further that
Scott visited Richard Schumacher, business representa-
tive of the Union, about 10 a.m. on Wednesday,
November 24, and talked to his secretary; on either the
following Friday or Monday, Thrusday being Thanksgiv-
ing, Scott talked to Schumacher and asked him if he
received a copy of the protest he had sent to him, and he
said he would look into it, and then he told Schumacher
he had been fired for refusing, because of his health, to
take a job operating a spray gun in the paint department,
and Schumacher said he should have taken it, and an-
swered yes when Scott asked him if he should have taken
it against his health, and that Schumacher told him he
would have to talk to President Beebe and would call him
back later, and called him back to tell him Beebe was out
of town; when Scott telephoned Schumacher on Friday,
December 3, the latter had talked to Beebe and had
located the protest, and that he said that President Beebe
said he could not take him back under any circumstances,
and that he (Schumacher) would try to get him another
job, and Scott in reply to Schumacher said he liked the job
he had, and asked Schumacher to see if he could get it
back for him, and asked him to investigate and file a
grievance, and Schumacher replied they did not write
grievances; Scott went to the Joint Council about a week
later, and told someone there he had been fired by
Respondent Employer, and was told by him he should
pick up a grievance form from the Union; that he again
talked to Schumacher 2 or 3 days later and said to him the
Council said he should pick up a grievance form from
him, and Schumacher said the Union did not handle a
grievance form, and he did not know anything about such
a form, and there was nothing he could do about Scott's
discharge since he quit; and that Scott had no further con-
tact with the Respondent Union or the Respondent Em-
ployer.
4 Bone testified that he talked to Stalker shortly -before the latter
discharged Walker and Hawkins
5 As stated above, from about a year prior to November 23 and up to
the hearing which began on November 21, 1966, Burton operated a spray
gun in the paint shop or department
CHICAGO ROLL FORMING CORP. 965
General Counsel's evidence is the testimony of Pres-
ident Harold Beebe of Respondent Employer regarding
Respondent Employer's operations and Bone's status as
a leadman and union steward, corroborated by the
testimony of Stalker and Bone; the testimony of Fedro
Williams for the conversation Bone had with him about
the protest; the testimony of Walker for the conversation
he had with Stalker and the conversation he had with
Bone regarding his discharge, for his signing the protest,
and his work performance and absences and lateness as
an employee of Respondent Employer; the testimony of
Hawkins for the conversation he had with Stalker regard-
ing his discharge, his signing the protest, and his work
performance, absences, and lateness as an employee; and
the testimony of James L. Scott regarding the history of
his employment including his taking a laborer's job after
being a welder, because of health, his preparation of the
protest, with the assistance of his wife, the signing of it,
and the sending of it to representatives of Respondent
Employer, Respondent Union, and the Teamsters Joint
Council, the conversation Bone had with him regarding
the protest and the signing of it by Walker and Collins, his
alleged assignment by Respondent Employer and
Respondent Union to operating a spray gun in the paint
shop, a job he had never held, and which he considered
injurious to his health, a day or so after the protest was
received by the Employer and the Union, his discharge
when he refused to take the assignment, his conversations
with Union Business Representative Schumacher about
the discharge and the protest, and Schumacher's refusal
to furnish him with a form on which he could file a
grievance in writing because of his discharge.
General Counsel's evidence also includes the rebuttal
testimony of Scott that on the morning of November 24,
when allegedly, Bone said to Stalker to give him his check
if he refused to take Burton 's job and Stalker told him he
would have the check ready by 9 a.m. Scott asked Bone
to file a grievance for him, or to give him a statement of
reasons for his discharge, and Bone refused to file the
grievance or give the statement, and said to Scott that a
letter would reach the union hall ahead of him, and if what
they were doing in his case had been done in the case of
Leonard Jones they would not have had the problem with
Jones that they had. Jones' threats to another employee
brought the police to the plant, and he was either
discharged or about to be discharged, and the Union in-
tervened and persuaded Respondent Employer to give
him another chance. However, in April or May 1966, he
was discharged for stealing. Jones was one of the em-
ployees who signed his name on the face of the protest.
2. Respondents' defenses
Respondent Union and Respondent Employer offered
in their defenses the testimony of President Beebe, Haw-
kins, Walker, Stalker, Bone, and Schumacher.6 This
testimony of Bone, Stalker, and Schumacher contradicts
the testimony of General Counsel's witnesses. Their
counsel also vigorously cross-examined all of General
Counsel's witnesses. Respondents contend that the
cross-examination discloses that Williams, Scott, Walker,
and Hawkins, who testified for General Counsel, are not
credible witnesses.
Bone denies that he talked to employee Fedro Williams
about the protest and the employees who signed it on the
morning of November 22 just prior to the discharges of
Walker and Hawkins. He testified that about a week after
their discharges, he asked Williams, a welder who worked
under him, in a laughing manner as he was passing him,
what he was trying to do to him by signing the protest and
kept walking, and Williams laughed and kept working. He
denied that he said to Williams they would fire one by one
the employees who signed it. Williams testified on cross-
examination that the body of the protest was prepared in
his presence by Scott at the November 6 meeting. This
testimony is in conflict with Scott's testimony that the
protest, which is in Scott's wife's handwriting, was
prepared by Scott during the week before the November
6 meeting, and that he dictated it to his wife, and that she
made four copies in longhand.
Bone testified that he did have a conversation with
Scott about the protest on the morning of November 20
[22]. He testified, however, that he merely asked Scott
why he did not let him know that the employees were
questioning the feasibility of his being a leadman and a
union steward at the same time, so that he could request
the Union to hold another election. According to Bone,
Scott answered that that was what he wanted. Bone de-
nied he asked Scott why Walker and Hawkins signed the
protest since they were not members of the Union, or
asked him if -he was going to have their signatures
removed from it, or that he threatened to fire them for
signing it.'
Bone and Stalker testified that Scott had worked in the
paint department on the hang line on many occasions
after he reverted to the classification of laborer in Sep-
tember 1965.8 Stalker testified that he, and not Bone, in-
structed Scott on the afternoon of November 23 to report
to the paint department the following morning. He said he
told him to report for work in that department on the hang
line, and did not tell him that he was to operate a spray
gun as a replacement for Burton. Stalker testified that
Bone went with him to the electric saw where Scott was
working, and was present while Stalker gave Scott this in-
struction. Bone testified that he did not recall accompany-
ing Stalker to where Scott was working at the electric
saw, or being present while he instructed Scott. Stalker
testified that he told Bone on occasions prior to
November 23 that Scott was balking at working in the
paint department, and that he said to him on November
23 to go with him to where Scott was working, and hear
Scott balk at working in the paint department when he in-
structed him to do so. Bone testified that he did not recall
Stalker making these statements to him, or requesting him
to accompany him to Scott's work station on November
23.
" General Counsel in rebuttal recalled Walker, Hawkins, and Scott
Schumacher testified that Hilburger talked to Bone on November 24
after he had talked to Scott, and he and Hilburger had read the protest,
and he overheard Hilburger asking Bone if the employees wanted another
election Bone in his testimony made no reference to talking to Hilburger
about another election, although he talked to Hilburger on November 24
or 26, after Scott's discharge and the protest He said Hilburger called him
and asked him what it was about, and he told him He did not disclose
what he and Hilburger said No election was held in any event Bone con-
tinued as union steward and leadman until he left Respondent Employer's
employ in May 1966. At that time, Bobby McPeter, leadman in charge of
the accessory department was elected union steward.
8 This is undisputed The testimony of Scott, Bone, and Stalker dis-
closes that Scott worked in the paint department on the hang line as late as
2 weeks prior to his discharge Since his classification change in Sep-
tember 1965 from welder to laborer, he had worked about equal time at
both of these jobs. He volunteered for overtime work as a laborer on the
hang line in the paint shop when he held the classification of welder. Scott
and the other welders were paid the welder's rate when they did work
usually performed by a lower classification of employee.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bone's testimony that he was unable to recall his visit
to Scott's work station with Stalker on the afternoon of
November 23, and Stalker's testimony that Bone and he
went to Scott's work station at the electric saw on
November 23, and he ordered Scott, in Bone's presence,
to work in the paint department on the hang line the fol-
lowing day are in conflict. Moreover, the testimony of
Stalker and Bone's inability to recall what happened on
November 23 are in conflict with the testimony of Scott
that Bone and Stalker both came to his work station on
the afternoon of November 23, and that Bone, in
Stalker's presence, told him to report to the paint depart-
ment the next morning to replace Leonard Burton. It is
undisputed that Burton had worked continuously as a
spray gun operator for a year prior to November 23,
1965, and had continued to work at this assignment after
that date, and was working at it when the hearing began
on November 21, 1966. It is also undisputed that the
operation of the spray gun required some training, that
Scott had never operated a spray gun in the paint depart-
ment and that he had worked only on the hang line in that
department. Scott testified that he never objected to
working on the hang line in the paint department, that it
was pleasant where he had worked on the hang line
because it was warm, and there was only a small amount
of paint mist.
Stalker testified that on the morning of November 24,
Scott refused to go to the paint department, and said he
had contacted the Union, and was told by a union
representative that he did not have to take this assign-
ment . Stalker also testified that when Scott refused to
take the paint department assignment , he located Bone,9
who returned with him to the front of his office, and there
Scott told Bone, as he told him, that a representative of
the Union had said to him that he did not have to work in
the paint department. Scott denied he made this state-
ment to Stalker or Bone. Stalker also testified that Bone
asked him what the job assignment in the paint depart-
ment was, and he answered that it was to work on the
hang line. Bone testified that he did not recall Scott saying
that a representative of the Union had told him that he did
not have to work in the paint department and did not re-
call asking Stalker what the job assignment was. Schu-
macher testified he never told Scott he did not have to
work in the paint department. There is no evidence that
Scott talked to Schumacher or Hilburger prior to the
November 24 conversation with Stalker or Bone. Bone
also testified he was not present when the particular as-
9 Bone testified, contrary to Scott and Stalker, that he was in Stalker's
office and came out after the conversation between Scott and Stalker
began Both Scott and Stalker testified that Stalker went looking for Bone
and brought him to the front of his office
10 I hereby reopen the record and receive therein an order issued by me
to show cause why the complaint insofar as directed against Respondent
Employer should not be dismissed as it appeared that the charge outstand-
ing at the time the complaint was issued charged Respondent Employer
only with illegal conduct occurring before the 6-month period prior to the
date of the service of the charge 1 also receive in evidence the General
Counsel's response to the order, filed May 2, 1966, and the attachments
The attachments are the January 12, 1966, letter of refusal to issue com-
plaint, the envelope stamped "Unclaimed," and "Returned to Writer,"
that contained the copy of the January 12 letter sent to Charging Party
Scott and returned to the Regional Director within 10 days of sending, the
Regional Director's letter of June 29, 1966, revoking and withdrawing
both his letter of May 23, 1966, in which he again notified Charging Party
Scott of his refusal to dismiss complaint in the case against Respondent
Employer, and his letter of June 7, 1966, in which he notified Scott of his
refusal to issue a complaint in the case against Respondent Union, the Re-
gional Director's letter of June 7, 1966, in which he notified Scott of his
signment was given to Scott by Stalker and that he never
knew what the assignment was. So the testimony of
Stalker and Bone as to what happened before the
discharge on November 24 is in conflict. Bone testified
that on November 24 he suggested to Scott that he go to
the paint shop and give it a try, and see what he could do
there, but Scott said he could not work in the paint shop.
The testimony of both Stalker and Bone is in conflict with
the testimony of Scott that Bone said to him twice that he
advised him to take the paint job, and then said to Stalker
that if Scott refused to take it to give him his check, and
when he refused to take it, Stalker then said to him that he
could have his check at 9 a in , when the office help ar-
rived.
In resolving these credibility conflicts, there is to be
considered the testimony of President Beebe that after
Stalker informed him that he had discharged Scott for
refusing to work in the paint shop, he asked Bone to come
into his office, and in response to his inquiry as to what
happened, Bone said he advised Scott "he should take
new work, and he said he will not report to the paint
shop," and that Stalker wanted to discharge him. It is to
be noted here that Scott was one of two laborers attached
to the welding department under Bone, even though
laborers could be assigned to laborers' work in any one of
the departments.
There is also to be considered the testimony of Schu-
macher that Scott talked to him on the telephone on the
morning of November 24, and informed him that he was
fired because he refused to work in the paint department;
that Schumacher telephoned President Beebe on
November 24, and asked him to reemploy Scott, and
Beebe said he needed men in the paint department and
Scott could have his job back if he took the assignment in
the paint department; and that Schumacher talked to
Scott later that day and told him what Beebe said, and ad-
vised him to take the job in the paint department and file
a grievance, and that Scott said he did not want a job with
Respondent Employer.
Schumacher denied Scott asked him to file a grievance
for him. Schumacher also testified that Teamsters Coun-
cil asked him to meet with it in January 1966 regarding
Scott's discharge, and that he told the Council representa-
tives that Respondent Union had done nothing about
Scott's case because in January 1966 the Regional Office
had denied the unfair labor practice charge that Scott had
filed against Respondent Employer, and that he showed
them the "petition" in which it was denied.10
refusal to issue a complaint in the case against Respondent Union , and the
letter of Irving M Herman, Director, Office of Appeals, in the office of
the General Counsel, Washington, D C , in which he acknowledged a
timely appeal from the Regional Director's notice of May 23 of a refusal
to issue a complaint in the case against Respondent Employer I also
receive in evidence the Regional Director's letter of notice of May 23,
1966, of refusal to issue a complaint in the case against Respondent Em-
ployer, his notice of June 7, 1966, of refusal to issue a complaint in the
case against Respondent Union, and the affidavit of service of the order to
show cause on all parties with attached return receipts of certified mail
showing receipt of the order by all parties The letter of revocation and
withdrawal of June 29, 1966, and the notice of refusal to issue complaint
of June 7, 1966, in the case against Respondent Employer were sent cer-
tified mail, return receipt requested, to the same address of the Charging
Party to which the notice of refusal to issue of January 12, 1966, was sent
There is no evidence of their being returned unclaimed The reissued
notice of refusal to issue of May 23, 1966, was sent to the address of
Joseph Minsky, Esq , Chicago, Illinois , attorney for Charging Party Scott
A copy was sent to the same address of Scott to which were sent the other
notices of refusal to issue and the letter of revocation and withdrawal I
(Footnotes continued on following page)
CHICAGO ROLL FORMING CORP. 967
Counsel for Respondent Union cross-examined Scott
intensively in regard to the communication he had with
Schumacher. Scott, on direct examination , had testified
that he had visited the office of Respondent Union on
Wednesday, November 24, following his discharge, but
did not see Schumacher or Hilburger as they were not in,
that he talked to Schumacher on the following Monday,
and the latter said he would have to talk to Beebe and
would call him back; that Schumacher called him on
Wednesday and said Beebe was out of town, and that
when he called Schumacher on Friday, December 3,
Schumacher told him he had talked to Beebe and Beebe
said he would not take him back under any circum-
stances. Scott testified he had four or five conversations
with Schumacher. The cross-examiner sought admissions
from Scott that he talked to Schumacher only twice by
telephone, that the telephone conversations were on the
same day, and that Schumacher told him, in the second
conversation, after he had talked to Beebe, that the Union
could get his job back for him if he would work in the
paint shop, that he should start to work there and file a
grievance, and the Union would try to get him out of
there, and into another job. Schumacher's testimonyas
Respondent Union's witness, was to be that he talked to
Scott only twice, that both conversations were on Wed-
nesday, November 24, the day he, was discharged, and
that he told Scott that Beebe would take him back if he
worked in the paint department, and Scott said he did not
want a job in Respondent Employer's plant." Scott in-
sisted that he did not talk to Schumacher until the follow-
ing week. It was his recollection he talked to him on Mon-
day, November 29; Wednesday, November 30; and
Friday, December 2. He conceded, however, he may
have talked to Schumacher twice on Friday, December
2, instead of once on that date, and once on the prior
Wednesday, but denied that Schumacher said Beebe
would take him back. He also conceded that it may have
been on Friday, December 2, when Schumacher said he
could do nothing for him as he had quit, and refused to
furnish him with a grievance form or to file a grievance for
him. Scott had testified on direct examination that Schu-
macher made these refusals in a conversation they had a
few days after Scott contacted the Joint Council on or
about December 10.
Stalker testified that on November 8, 1965, he saw
Hawkins loafing in the paint department, and saw Walker
loafing at his work station which was the cutting or shear-
ing machine . According to Stalker, he told both of them
at the times he saw them on November 8, that they had
to do their share of the work Stalker testified that on
Saturday, November 13, the day following the 2 days
Hawkins and Walker were authorized to take off to at-
tend a funeral, Frank Gordon, their stepfather,
telephoned him, and asked him where they were, and said
that he had not heard from them for some time. Stalker
also testified that on Monday, November 15, 1966, he
removed Hawkins' and Walker's timecards from their
usual location at the timeclock, and when they reported
to him because they could not clock in, he told them both
that he was not satisfied with their work, that they were
late and absent an excessive number of times, and that the
warning he was giving them was the last. Stalker then
testified that on the morning of November 22, he saw
Hawkins sitting down in the paint department when four
employees who had the same assignment as he had were
working, and at that time he told him to clock out and get
his check. He also testified that after the reprimand on
November 15, Walker did his work adequately on that
day and on November 16 and 17, but lapsed back into his
old idleness on November 18 and 19. He did not testify
as to any event that allegedly triggered Walker's
discharge on November 22. He did testify that on the
morning of November 22, he instructed Walker to clock
out and get his check. Stalker testified that Hawkins and
Walker were discharged for failing to do their work
properly and for excessive absenteeism and lateness
The probative evidence is that Hawkins, 21 years of
age, and Walker, 23 years of age, were employed 27 and
34 calendar days, respectively, and during that time were
absent 3 days and late 3 times. Two of the three days
were the Thursday, November 11, and Friday,
November 12, that they were authorized by Stalker to
take off to attend a funeral of a relative in Cleveland,
Ohio. Hawkins received the permission from Stalker on
the morning of November 11. Both came to the plant on
Saturday, November 13, about noon, and received their
paychecks. Other employees were working overtime. At
that time, Bone saw Walker and said that they would see
them on Monday. Hawkins talked to Bone by telephone
on November 11, when he also talked to Stalker, and
Bone told him at the time it was all right to take the 2 days
off for the funeral, and to report for work on Monday.
Hawkins testified that the other day they were absent was
during the first 2 weeks of their employment when they
overslept and missed their ride with employee Frank
Gordon who was driving them to work at the time. One
or the other of them reported them absent. Bone recalled
that one of them called in during the early part of their
employment. Gordon, who was an employee at the
Belmont Bowling Alleys, on midnight to morning shift, as
well as an employee of Respondent Employer, would
pick them up in his automobile about 6:30 a.m. at an in-
tersection near the Royal Hotel where they both lived.
He, like Hawkins and Walker, was on his way to work.
An employee by the name of Streator, who lived near
them, drove them to work during the remaining 2 weeks
of their employment. They missed their ride with him
three times and were late as a result. They rode to work
in a taxicab each of these three times. Walker borrowed
the cab fare from Bone on two of the occasions On the
third occasion, Walker again sought a loan to pay the fare,
but Bone told him he did not have it . The loans from Bone
were repaid.
Both Hawkins and Walker denied that Frank Gordon
was their stepfather or any relation of theirs.12 They de-
nied they were loafing on November 8. Hawkins denied
he was loafing on November 22. Both denied Stalker
talked to them on November 8 and 15, and that Stalker
pulled their cards on November 15. Hawkins testified
that he had a personal conversation with Stalker only
(Footnotes continued from preceding page)
take official notice that timely appeals were taken to the letters of refusal
to issue complaint of May 23, 1966, and June 7, 1966 The above docu-
ments have been received into the record as Trial Examiner's Exhibits
The Respondent Employer did not raise the defense of the statute of
limitations, contained in the proviso to Sec 10 (b) of the Act , in its answer,
at the hearing, or in response to the order to show cause
" Beebe as Respondent Employer's witness testified that he talked to
Schumacher only on November 24
12 As stated supra, Walker testified that Frank Gordon, an employee of
Respondent Employer, drove them to the plant during the first 2 weeks of
their employment He had met him while both Gordon and he worked at
the Belmont Bowling Alleys Gordon recommended Walker and Hawkins
to Bone.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he was hired, when he was fired, and in the last
week of October 1965. On this last occasion, according
to Hawkins, Stalker came to the paint department, and
called him to where he was standing , and said to him that
he had been late too many days, but he did not want to
fire him as "Pops" said he was doing all right on the hang
line. He said to Hawkins that he would have to get his at-
tendance back.
Bone denied that he talked to Walker on November 22
after Stalker discharged him. He testified, however, that
he had a conversation with Stalker just prior to the time
they were discharged, and that Stalker asked him to in-
form Walker and Hawkins that Stalker wished to see
them . Both Hawkins and Walker testified they were
discharged at their work stations by Stalker. Hawkins
testified that Bone was foreman of the paint department,
and Walker testified that Bone was his leadman. Bone
testified that he was not a leadman for the paint depart-
ment when Hawkins was employed there, or leadman for
the accessory department when Walker worked on the
shearing or cutting machine in that department. He said
that he gave instructions to employees in those depart-
ments only when asked to do so by Stalker. Bone also
testified that 3 or 4 days after the discharges of Hawkins
and Walker, he discussed their discharges with Stalker,
and stated to Stalker that they had signed the protest but
were not members of the Union. Bone testified that
Stalker said at that time that he discharged Hawkins and
Walker because of lateness and absenteeism. Schu-
macher testified that he learned at the hearing on
November 21, 1966, for the first time, that Respondent
Employer had had two employees by the names of Haw-
kins and Walker, and that they had been discharged on
November 22, 1965.
Counsel for Respondent Union sought to discredit the
credibility of Hawkins and Walker by interrogating them,
on cross-examination and when they were witnesses for
Respondent Union, in regard to their testimony that they
began employment in September 1965, and that they at-
tended a funeral of a relative on November 11 and 12,
1965, when they were given permission to be absent from
work for that purpose. Walker testified that he began
working for Respondent Employer on September 10,
1965, and Hawkins testified he began his employment
with Respondent Employer in the first week of Sep-
tember. Respondent Employer's records received in
evidence shw..v that Walker began employment on Oc-
tober 26, 1965, and that Hawkins began his employment
on October 19, 1965. Walker and Hawkins admitted they
were in error when shown the records of the Respondent
Employer, and conceded they were first employed on the
dates shown on the records.
On cross-examination, Walker and Hawkins, who are
cousins, testified that it was Walker's grandmother and
Hawkins' aunt whose funeral they attended in Cleveland,
Ohio, on Friday, November 12, 1965, but that they had
never met or seen her while she was alive. Hawkins and
Walker testified that they left for Cleveland on Thursday,
November 11, but Hawkins testified they left about mid-
night, while Walker testified that they left at 6:30 p.m.
They both testified that they arrive in Cleveland before
daybreak. They testified they stayed overnight at the
home of Hawkins ' uncle , and that on Friday they at-
tended the church services and were in the funeral
procession that went from the church to the cemetery.
However, they did not know the name of the street on
which Hawkins' uncle's home was located, or the name
of the church or the cemetery. Walker testified they
traveled to Cleveland in a 1956 model year Chevrolet Im-
pala, while Hawkins testified it was a 1960 or 1963 model
year Impala. Hawkins testified that the deceased was
waked in an ordinary home, and not in a funeral home.
They both testified that the driver of the automobile that
took them to Cleveland was named Streator. Streator was
the name of the employee of Respondent Employer who
drove them to work and home again each day during the
last 2 weeks of their employment. They testified that
Streator who drove them to work was not related to the
Streator who drove them to Cleveland. Hawkins testified
that his father made the arrangement with Streator for the
trip to Cleveland, and that they did not pay any of the ex-
penses for the trip. At the outset of his cross-examination,
Walker testified that they were off 4 days from work to
make the trip, and that the 4 days ran from Monday to
Thursday or from Tuesday to Friday. The evidence is
clear that they were away from work on Thursday and
Friday, 2 days only, and that they picked up their weekly
paychecks on Saturday, November 13, at noon.
3. Credibility resolutions
Upon evaluation of the above evidence, in context, and
the demeanor of the witnesses, I make the credibility
findings stated in the following paragraphs.
I credit Fedro Williams' testimony that Bone came to
his work station between 9 and 10 a.m. on November 22,
1965, and asked him if they were trying to stab him in the
back by signing the petition, and also said that "they
would get us one by one for signing the petition." I find
that the "they" was in reference to the management of
Respondent Employer and to the representatives of the
Union. Williams' faulty recollection or lack of knowledge
with respect to the time when the petition was prepared,
and in whose handwriting it was, in Bone's denial that he
spoke to Williams prior to the discharge of Walker and
Hawkins, do not negate the credibility of Williams'
testimony. Williams testified a year after the event oc-
curred. It could well be that he had a faulty recollection
on November 24, 1966, as to everything that occurred a
year earlier on the evening of November 6, 1965, when
he and three other employees met with Scott at the
latter's home, and the five of them signed the petition.
It is undisputed that Williams did not participate in the
preparation of the petition or the reduction of it to writing.
The significant things, as far as he was concerned, that
happened on November 6 were that he met at Scott's
house with him and three other employees, read the peti-
tion, and signed it in their presence and they signed it in
his presence. The difference between Scott's signature
and the handwriting of the body of the petition is not
noticeable to the point that it supports a proposition that
Williams, who lacks experience or knowledge in regard to
handwritings, is not a credible witness because he was not
on notice by just looking at both writings that they were
written by different persons, and thereby recalled that a
year earlier, on November 6, 1965, Scott did not write
the body of the petition or otherwise prepare it in his
presence. Moreover, for the reasons that will be apparent,
I do not consider Bone to be as credible a witness as Wil-
liams. Bone did admit talking to Williams about the peti-
tion, but, as stated, testified that the conversation was a
week after the discharge. I do not credit Bone's testimony
either as to the time of the conversation or the subject
matter of the conversation.
CHICAGO ROLL FORMING CORP. 969
I credit Scott's testimony that between 9 and 10 a.m.
on the morning of November 22, 1965, Bone spoke to
Scott at the tatter's work station, which was the electric
saw in the accessory department, and said that Hawkins
and Scott were not members of the Union but had signed
the petition, and asked what he was going to do about it,
and when he said he was not going to do anything, Bone
said he was going to fire them. I make this finding not
only from Scott's demeanor testimony and his oral
testimony of this event, but also from the evidence of the
conversation Bone had with Fedro Williams, the
evidence that Bone received the petition shortly after
7:30 a.m. on November 22 and showed it to Stalker at
that time, Bone's testimony that he had had a conversa-
tion with Stalker just before Stalker discharged them and
Stalker told him he wanted to see them, and Bone's
testimony that in a conversation with Stalker 3 or 4 days
after the discharge of Walker and Hawkins he said to
Stalker that they had signed the petition although they
were not members of the Union. A factor in this credibili-
ty resolution as well as the one relating to Bone 's conver-
sation with Williams is the fact that Bone was the union
steward, and the complaint in the petition was against
him. This factor could have, and did, impel Bone to speak
out to Scott and Williams, signers of the petition.
I credit the testimony of Walker and Hawkins that
Stalker came to their respective work stations about
10:30 to 11 a.m. on November 22, 1965, and told Walker
to clock out and go home, and Hawkins to change his
clothes and punch out, and when Walker asked him for
the reason, Stalker said he signed the petition when he
was not in the Union and had no right to sign it, and when
Hawkins asked him if there was anything wrong with his
work, he said no, but that the bosses could not keep him
because he was making trouble between the Union and
the men. I also credit Walker's testimony that Walker met
Bone when he went to the timeclock to clock out, and
asked him why he was fired, and Bone answered it was
because of the petition he signed. I make these findings
upon consideration of the demeanor testimony of Walker,
Hawkins, Stalker, and Bone, and the testimony of each of
these witnesses set out supra, and the evaluation of this
testimony in context, and with full realization of the con-
flicts and weaknesses in the testimony of each of the wit-
nesses. I find Walker and Hawkins, even after their inten-
sive cross-examination by counsel for Respondents, to be
credible witnesses with respect to the incidents directly
related to their discharges, and to be more credible wit-
nesses than either Stalker or Bone with respect to these
incidents. I do not credit Stalker's testimony that he
caught Walker and Hawkins loafing on November 8,
1965, or Hawkins loafing just prior to the time he
discharged him on November 22, and discharged them
for that reason. Bone testified Stalker told him he
discharged them for lateness and absenteeism.
Nor do I agree with the contention of Respondents that
their absences and lateness were factors in the discharge.
They were absent 2 days with permission, and were ab-
sent only I other day, early in their employment, because
they missed their ride with employee Frank Gordon who
was then driving them to work. One of them called in to
report the absence for the day, and Bone recalled the
telephone call. Respondent knew of their lateness on
three occasions when they missed their ride with em-
ployee Streator who was driving them. Bone loaned them
carfare on two of the occasions when they arrived late,
and told them he did not have the money when they asked
him for a loan to pay the fare the third time. I credit Haw-
kins' testimony that Stalker reprimanded him only once,
and that it was about his lateness, and at that time Stalker
said he was doing good work in working with "Pops" in
the paint department. I credit Walker' s denial that he had
ever been reprimanded by Stalker or anyone else for late-
ness, absenteeism , or failure to do his work properly.
I credit the testimony of Scott that on November 23,
1965, in the half hour prior to the end of the workday,
Stalker and Bone appeared at his work station, which was
the electric saw in the accessory department, and that
Bone , in Stalker's presence, told him to report to the paint
department in the morning to replace Burton. It is un-
disputed that Burton operated a paint spray gun to touch
up frames and beams that emerged from the paint booths
in which these sections were automatically painted. It is
also undisputed that Bone [Scott] had previously worked
in the paint department on the hang line, and in sand-
wiching work, but never operated a spray gun, and that
Burton had been doing the work continuously for a year
prior to November 23. I also credit the testimony of Scott
that about 7:30 in the morning of November 24, 1965,
Scott told Stalker that he could not take the paint job
because of sinus, that it was worse than welding, and that
Stalker said he would have to get Bone, that he had
nothing to do with the assignment, and left to locate Bone
and returned with him. I also credit Scott's testimony that
Bone then said twice to Scott he advised him to take the
paint job, and then said to Stalker that if he did not take
the job to give him his check, and thereupon Stalker said
okay, that he would have the check ready by 9 a.m.
I do not credit Stalker's testimony that it was he, and
not Bone, who gave the job assignment to Scott, in Bone's
presence, on the afternoon of November 23. Stalker said
he assigned Scott work on the hang line. Bone testified he
did not recall being present on November 23 when Scott
was assigned to work on the hang line in the paint shop,
or recall being present when Stalker made the assignment
either on November 23 or 24. President Beebe testified
that Bone reported to him on November 24 that Scott
was refusing to take new work in the paint department,
and Bone testified he said to Scott on November 24 to
take the job and see if he liked it and if not he could file a
grievance, and he would get him out of the paint depart-
ment. It is undisputed that working on the hang line
would not be new work for Scott, and it would not be
necessary for Scott to see if he liked the work as he al-
ready knew whether he liked or disliked it, since he had
worked at it many times. Viewed together with Scott's
oral and demeanor testimony, this evidence discloses that
the job assigned to Scott was a new job for him, and that
spraying paint was the new job. Bone could speciously
testify he did not recall being present on November 23
when Scott was assigned to work on the hang line, or
when Stalker again made the assignment, on November
24, as Stalker testified he was, because Scott was as-
signed to Burton's spraying job and not to the hang line,
and he made the assignment and not Stalker. It is signifi-
cant that Scott was one of the two laborers attached to the
welding and fabrication department under Bone as lead-
man, even though he was on assignment at the time to
work on the electric saw in the accessory department.
Bone was still his leadman and, therefore, had at least a
color of authority to assign him to work even though it
was not in the welding and fabrication department.
Stalker was present and ratified the assignment. Since
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bone was the subject of the protest in the petition
because he, allegedly, was acting for the Employer and
the Union at the same time, he had a motive for assigning
Scott to a messy job he had not previously handled. Bone
was not the leadman of Walker and Hawkins when they
were discharged on November 22. The leadman in the
accessory department, probably Bobby McPeter, was
Walker's leadman, and Revering, the leadman in the paint
department, was Hawkins' leadman. So the "dirty work"
was handled by Superintendent Stalker in the case of
Walker and Hawkins.
In crediting Scott's testimony as to what occurred on
November 23 and 24, 1 have considered significant
Bone's testimony that, contrary to Stalker's testimony, he
did not recall Stalker discussing with him, in the period
prior to the assignment on November 23, a reluctance by
Scott to do any more work in the paint department, and
his saying to Bone on November 23, when he asked him
to accompany him to Scott's work station, to watch Scott
balk at an assignment to the paint department, and Stalker
telling him on November 24 he had assigned Scott to
work on the hang line in the paint shop, and that Scott
said on November 24 that the Union said he did not have
to work in the paint department; and Scott's denial that he
objected to working on the hang line in the paint depart-
ment, and that he said on November 24 prior to the ap-
pearance of Bone, and to Bone when he was present, that
the Union said he did not have to work in the paint de-
partment.
I credit Scott's testimony that he visited the headquar-
ters of Respondent Union on the morning of November
24, 1965, after he was discharged, but was unable to talk
to Schumacher, that he talked to him for the first time on
the following Monday morning, November 29, and re-
lated to him what happened, and was told by Schumacher
that he would get in touch with President Beebe, and
would call him back; Schumacher called Scott on Wed-
nesday, November 30, and told him that Beebe was out
of town; and when Scott called Schumacher on Friday,
December 2, the latter told him that Beebe said he would
not take him back under any circumstances, and that
Schumacher said he would try to get him another job; and
he replied that he liked the job he had and wanted Schu-
macher to try to get it back for him, and Schumacher said
there was nothing more he could do for him as he had quit
the job, and refused to furnish him with a grievance form
or file a grievance on his behalf.
I am mindful that Beebe testified that he talked to
Schumacher on November 24 and agreed to take Scott
back if he worked in the paint shop, and that Schumacher
testified he talked to Beebe on November 24, and Beebe
did agree to take Scott back if he worked in the paint de-
partment, and that on November 24 he advised Scott to
take the job, and file a grievance, and Scott said he did not
want a job with Respondent Employer. But I am also
mindful that Scott gave the testimony that on November
24 Bone refused to file a grievance for him, or give him a
statement of the circumstances of the discharge, and said
a letter would reach the union hall ahead of him, and that
if they had done in Leonard Jones' case what they were
doing in this case, they would not have had the problem
with Jones that they had. I am satisfied from the
testimony of Schumacher, Bone, and Beebe that Union
Steward Bone communicated with Hilburger on
November 24 and discussed with him what happened, in-
cluding the incident of the petition or protest, and that
Schumacher or at least Hilburger saw the protest by
November 24. It had been sent to them on November 20
and received by the Union on November 22. 1 am also
satisfied that Schumacher communicated with Beebe on
November 24, and knew on that date what happened, but
did not answer Scott finally until Friday, December 2.
The Employer and Union decided to take the position
that Scott refused to work in the paint department on the
hang line, and was discharged for cause. Scott's responses
to the questioning of counsel for Respondent Em-
ployer in a vigorous cross-examination convince me that
Schumacher did not inform Scott of what the Union's
position was in response to his request of November 29,
until Friday, December 2, even though Schumacher and
Hilburger had been in touch with Beebe and Bone since
November 24.
F. Analysis and Concluding Findings
1. Procedural issue
The proviso to Section 10(b) of the Act provides that
no complaint shall be issued that is based on conduct oc-
curring 6 months prior to the filing of the charge and ser-
vice of a copy upon the person against whom the charge
is made.
The Regional Director on January 12, 1966, refused to
issue a complaint based on the charge filed November 29,
1965, against Respondent Employer because of insuffi-
cient evidence, and on that date sent by certified mail a
letter notice of the refusal to the Charging Party at the ad-
dress he gave on the charge. The letter was returned to
the Regional Director within 10 days of sending, with the
words "Unclaimed" and "Returned to Writer" stamped
on the envelope by the post office. There is nothing to in-
dicate why it was unclaimed. On May 9, 1966, the same
Charging Party filed a charge against Respondent Union
in the same matter. He gave the same address he gave on
the November 29 charge, and to which the notice of
January 12 was sent. The Regional Director, on May 23,
1966, then sent to the Charging Party a second letter
notice of refusal to issue complaint in the case against
Respondent Employer. It was sent to the Charging Par-
ty's attorney, at his office address. No explanation was
given in the notice as to why a notice of refusal was being
issue a second time, or which disclosed that the Charging
Party did not claim the first notice.
On June 7, 1966, the Regional Director refused to
issue a complaint in the case against Respondent Union,
and notified the Charging Party on that date, by certified
mail, at the address he gave on the charge. This was the
address he gave on the November 29 charge, and to
which the January 12 notice was sent. A copy of each
letter notice sent in the case against Respondent Em-
ployer was sent to that Respondent, and a copy of the
letter notice in the case against Respondent Union was
sent to that Respondent. Timely requests for review were
made by the Charging Party to the May 23 and June 7,
1966, refusals to issue complaint, and the notices of these
refusals.
On June 29, 1966, the Regional Director revoked his
refusals of May 23 and June 7, 1966, and the notices of
the same date. No mention was made of the January 12
refusal or of its revocation. The letter notice of revocation
was sent to the Charging Party at the address he gave in
the November 29, 1965, charge, and the May 9, 1966,
charge. This was the same address to which the letter
notices of January 12 and June 7 were sent. A copy of the
CHICAGO ROLL FORMING CORP. 971
letter notice of revocation was sent to both Respondent
Employer and Respondent Union. Respondent Employer
has not at any time raised as a defense the proviso to Sec-
tion 10(b) of the Act. It has been silent in this respect in
its answer, at the hearing, and by not responding to the
order I issued on May 2, 1967, to show cause why the
complaint against it should not be dismissed.
The proviso to Section 10(b) of the Act is for the pro-
tection of the Respondent against whom a charge is filed.
Respondent Employer had been on notice since on or
about January 12, 1966, that the case against it had been
dismissed. There is no evidence that it was responsible
for the Regional Director's decision of January 12, 1966,
not to issue a complaint or for the return of the copy of
the letter notice of the Regional Director's decision sent
to the Charging Party on that date, or that it impeded an
investigation of the November 29 charge. There is no
evidence to explain the failure of the Charging Party to
receive the notice of January 12, 1965 [1966], which was
sent to his correct address, or the failure of the Regional
Director to take any action to reissue the notice until May
23, 1966. There is no evidence to show that the Re-
spondent Employer had notice that the January 12 notice
was not received by the Charging Party.
In these circumstances, it appears to the Examiner that
there was available to the Respondent Employer the
procedural defense that liability against it was barred by
the proviso to Section 10(b) of the Act. It had been rely-
ing on the notice of refusal to issue complaint against it
which it received on or about January 12, 1966. Since
there was no explanation in the second notice of refusal
to issue complaint of May 23, 1966, dealing with the
return to the Regional Director of the copy of the notice
of January 12, 1966, that went to the Charging Party, and
the letter notice of revocation of June 29, 1966, with
respect to Respondent Employer, referred only to the
revocation of the refusal to issue and notice of May 23,
1966, and was silent in regard to the January 12 refusal
and notice, Respondent Employer had a right to assume
this latter action and notice thereof were still outstanding,
and to rely on them The outstanding charge against it
was the first amended charge of July 15, 1966. Under this
charge, it could not have been held liable for conduct oc-
curring prior to January 15, 1966.13 However, the
proviso to Section 10(b) of the Act is a statute of limita-
tions, and is not jurisdictional.14 It is an affirmative
defense, and if not timely raised, is waived. The Respond-
ent Employer had adequate opportunity to raise it, but
has declined to do so. It has waived this procedural
defense, and has elected to defend on the merits. For
these reasons, the complaint is valid against the Respond-
ent Employer, and is not barred by the Section 10(b)
proviso.],
2. The merits
I conclude and find that Respondent Employer
threatened employees in violation of Section 8(a)(1) of
the Act, and Respondent Union threatened employees in
"Koppers Company, Inc, 163 NLRB 517, Olin Industries, 97
NLRB 130, 132-133, N L R B v Silver Bakery, Inc, 351 F 2d 37 (C.A
1), reversing 150 NLRB 421; N L R B v Electric Furnace Co , 327 F 2d
373 (C A 6), reversing 137 NLRB 1077, and Local Lodge No 1424, In-
ternational Association of Machinists [Bryan Mfg Co ] v N L R B., 362
U S 411
" See cases Koppers, Electric Furnace, and Local Lodge 1424, supra,
and N L R B v Nettleton Co , 241 F 2d 130 (C A 2)
violation of Section 8(b)(1)(A) of the Act when James
Bone, leadman for Respondent Employer and union
steward for its employees, on November 22, 1965, asked
Williams if the employees who signed the protest or peti-
tion, and Williams was one of those who signed, were try-
ing to undermine him, and said that "they," meaning the
Respondent Employer and Respondent Union, would get
those who signed it one by one. I conclude and find that
Respondent Employer violated Section 8(a)(1) of the Act,
and Respondent Union violated Section 8(b)(1)(A) of the
Act when Bone, on November 22, 1965, said to em-
ployee Scott he was going to fire employees Walker and
Hawkins because they signed the petition or protest when
they were not members of the Union. _
The signing of the petition or protest, in which the em-
ployees stated that they objected to Bone being a
representative of the Employer and the employees at the
same time, was an exercise of a right of an employee pro-
tected by Section 7 of the Act, whether a member or not
a member of the Union Threats of reprisal for exercising
this right made to employees make Respondent Employer
and Respondent Union liable because Bone , when he
made them, was an agent of both the Employer and the
Union. "1 Williams, a welder to whom Bone made the first
threat, and Scott, a laborer, to whom he made the second
threat, were attached to the welding and accessory de-
partment of which Bone was the leadman in charge. The
fact that Scott had been assigned to work temporarily at
the electric saw, in the accessory department, and was
working at it when Bone threatened the employees, does
not immunize Respondent Employer from liability. Bone
was Scott's supervisor, and Scott considered him as his
boss. The fact that he was a supervisor in the welding and
fabrication department gave him status as one who spoke
for management even though he spoke outside of his own
department. In any event, there is no question but that the
12 welders, including Williams, the 1 footpress operator,
and the other laborer, who were working in the welding
and fabrication department directly under Bone when he
threatened the employees to Scott, felt the restraint and
coercion present in it.
I have found Bone to be a supervisor within the mean-
ing of Section 2(11) of the Act because the evidence
supra shows that by the exercise of independent
judgment he responsibly directed employees and effec-
tively recommended the hiring, firing, and disciplining of
employees I find infra that he told Stalker to fire Bone
[Scott] and he was fired, and that he was responsible for
the firing of Walker and Hawkins. After Frank Gordon
recommended Walker and Hawkins to him, he effectively
recommended their hiring to Stalker, and they were hired.
The exercise of only one of the authorities in Section
2(11) of the Act is qualification for the status of supervi-
sor." Bone was elected steward in plant elections in 1963
and 1964, and was steward at the time he engaged in the
conduct in November 1965 with which the Respondent
Union and Respondent Employer are charged. Hilburger
and Schumacher, business representatives of the Union,
were present at each election, and each election was held
15 N L R B v Nettleton Co, 241 F 2d 130, 133 (C A 2), enfg 108
NLRB 1670
Is 1 find Bone to be a supervisor for Respondent, and a steward acting
on behalf of the Union as well as the employees
1' Jas H Matthews Company v N L R B, 354 F 2d 432, 434-435
(C A 8), enfg 149 NLRB 161, 165, Irving Air Chute Company, Inc, 149
NLRB 627, enfd 350 F 2d 176 (C A 2)
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after arrangements were made by Schumacher or Hil-
burger with President Beebe of Respondent Employer.
Hilburger counted the written ballots and announced the
results. Bone , as the elected steward at these elections,
represented the employees in matters under the Contract
that could be handled with Stalker, the plant superinten-
dent, and even with President Beebe, that did not require
the direct attention of Hilburger and Schumacher. Bone,
however, was the channel through w ich Hilburger and
Schumacher kept touch with the Employer and the em-
ployees with respect to the Contract, and the channel
through which Hilburger and Schumacher were informed
of matters under the Contract, including those which
required their direct communication with President
Beebe. Moreover, Bone "signed up" employees as mem-
bers of the Union on behalf of the Union. This relation-
ship of Bone with the Union made him an agent of the
Union.18
I conclude and find that Respondent Union violated
Section 8(a)(1)(A) and (2) by causing Respondent Em-
ployer to discharge employees Scott, Walker, and Haw-
kins because they signed a petition protesting Bone's
representation of the employees and the Employer at the
same time; and that Respondent Employer violated Sec-
tion 8(a)(1) and (3) by discharging Scott, Walker, and
Hawkins at the instigation of the Union for reasons other
than the nonpayment of initiation fees and dues.
I have credited Williams' testimony that on November
22, 1965, shortly before Walker and Hawkins were
discharged, Bone said to him that they would get the
signers of the petition one by one, and told Scott that he
was going to fire Walker and Hawkins because they
signed the petition when they were not members of the
Union. I have credited Walker's testimony that when Su-
perintendent Stalker discharged him he said to him he
was discharged because he signed the petition when he
was not a member of the Union and had no right to sign it,
and have credited Hawkins' testimony that when he was
discharged by Stalker, the latter told him he was being
discharged because he was making trouble between the
Union and the men. It is obvious that the making trouble
was the signing of the protest. I have credited Walker's
testimony that shortly after he was discharged on
November 22, when he was on his way to the timeclock
to have his timecard punched with the time of discharge,
he asked Bone why he was fired, and the latter told him it
was because he signed the petition. I have rejected
Stalker's testimony that he reprimanded Walker and
Hawkins for loafing, absenteeism, and lateness, except
the part of his testimony corroborated by the testimony
of Hawkins that on one occasion Stalker reprimanded
him for being late, but said at the same time he was doing
well at his work. Stalker's testimony that they were
discharged for loafing, absenteeism, and lateness is pre-
textual.
Bone testified that shortly before Walker and Hawkins
were discharged on November 22 he had a conversation
with Stalker, and Stalker asked him to tell them he
wanted to see them. He had showed the petition to
Stalker when he opened it in Stalker's presence that
morning. Shortly before they were discharged he told
Williams that the signers of the petition would be taken
care of one by one, and told Scott that he was going to fire
them because they signed the petition when they were not
members of the Union. Bone admitted saying to Stalker
3 or 4 days after the discharge that they had signed the
petition although they were not members of the Union. A
fair inference from the evidence, and I so find, is that he
made this statement to Stalker prior to their discharge and
not 3 or 4 days later. Stalker's readiness to follow Bone's
request that he discharge Scott if he did not agree to work
at the job Bone assigned to him in Stalker's presence in
reprisal for his signing the petition persuades me, and I so
find, that Bone requested Stalker to discharge Walker and
Hawkins because they signed the petition, and he made
it prior to their discharge. This finding is supported by
Bone's statement to Walker immediately after his
discharge that he was discharged for signing the petition.
He knew he would be discharged and for signing the peti-
tion, before the discharge occurred. As I have found,
Stalker told both Walker and Hawkins when he
discharged them they were being discharged because they
signed the petition.
Scott had a good employment record for the 3-1/2
years he was employed by Respondent. He had been a
welder for a considerable period of time until September
1965, when, at his request, he was placed in the lower
classification of laborer. From September to November
1965, he worked mostly as a laborer at the hang line in the
paint department and at the electric saw in the accessory
department. He was one of two laborers assigned to the
welding and fabrication department under leadman Bone
who was also the steward for the Union While laborers
were attached to specific departments, they could be as-
signed to any department in the plant. Scott had never
worked with a spray gun in the paint department. The two
spray gun jobs were held by employees Burton and lead-
man Revering. Burton held the spray gun job for a year
prior to November 23, 1965, and had held it continuously
from that date to the hearing in November 1966. He has
not been replaced, even temporarily by any employee
The testimony shows that Burton did not use a mask to
cover his face or a cloth to cover his head to protect him-
self from the paint. It is clear that spraying paint to touch
up parts of beams or frames that were not painted in the
paint booths is messy work.
I have credited Scott's testimony that Bone accom-
panied by Superintendent Stalker came to his job location
at the electric saw in the afternoon of November 23,
1965, shortly before the end of the workday, and told him
to report to the paint department the following morning to
replace Burton, and although Scott objected, the work
order remained outstanding. I have credited Scott's
testimony that the following morning, he informed Stalker
he would not take the paint job as it would be bad for his
health, and Stalker said he would have to get Bone,
located him, and returned with him to the front of his of-
fice where Scott was standing. And I have credited
Scott's testimony that twice Bone said to Scott that he ad-
vised him to take the paint spraying job, and then said to
Stalker that if Scott refused to take this job to give him his
check, and Stalker thereupon said "okay," and told him
he could have his check at 9 a.m., and about 9 a.m. paid
him by check what Respondent owed him. As stated
above, Burton has not been replaced by anyone. Scott
testified that Bone said to him on November 23 that the
paint spraying job was a hard job and Burton needed a
change. However, when Scott refused to take the job the
18 Local 135, Teamsters (Capital Paper Co), 117 NLRB 635,
643-644, enfd 267 F 2d 870 (C A 7), cert denied 361 U S 914, Local
#1150, Electrical Workers (Cory Corporation), 84 NLRB 972, Local
135, Teamsters (Aetna Plywood & Veneer Co), 126 NLRB 251,
257-258
CHICAGO ROLL FORMING CORP.
change was not made although there were employees in
the paint department who could do this work. I have re-
jected the testimony of Stalker and Bone as to what hap-
pened on November 24, 1965, and Stalker's testimony of
what happened on November 23, 1965, and Bone's
testimony that he could not recall talking to Scott on
November 23 or to Stalker about Scott. The testimony of
both Stalker and Bone is pretextual.
The timing of Scott's discharge by Stalker on
November 24 and the transfer to the paint spraying job
on November 23, in relation to the receipt of the petition
or protest by Bone on November 22, Bone's threats to
Williams and Scott on November 22 because of the peti-
tion, and his criticism of Scott for handling by petition the
employee protest of his dual status as supervisor and
steward instead of asking him to arrange for another elec-
tion, his assigning Scott to the unpleasant work of spray-
ing paint in Burton's place although no other employee
has been assigned to relieve Burton, and the discharge of
Walker and Hawkins for signing the petition, are substan-
tial evidence that Scott was assigned to a job that was un-
pleasant to him even though he disclosed to Bone and
Stalker that he considered the job worse than welding
which had damaged his eye and forced him to abandon it
for laborer's work, in reprisal for preparing and signing
the petition protesting Bone 's dual status as a representa-
tive of the Employer and the employees at the same time.
Scott's credited testimony of his conversations with
Union Representative Schumacher after his discharge,
and the testimony that Schumacher had been in commu-
nication with President Beebe, and Union Representative
Hilburger had been in communication with Bone disclose
that Schumacher ratified the discharge of Scott. The
Union obtained reconsideration of the discharge or con-
templated discharge of Leonard Jones after he had
threatened another employee, and the police were called
to the plant, and Jones was reinstated or not discharged.
The Union did not seek the same treatment for Scott.
Scott's discharge was different. It was the consequence
of his opposing the policy of the Union to have a steward
who was also a supervisor.
In reaching this conclusion, I have considered the
evidence that a total of 14 employees signed the petition,
and the other 11 are either presently employed by
Respondent Employer, or voluntarily terminated their
employment, or were discharged for cause. The evidence
as a whole, however, convinces me that the Union caused
the discharge of Scott, Walker, and Hawkins because of
their union and concerted activity of protesting the
manner by which employees were represented for collec-
tive-bargaining purposes, and that the Employer at the in-
stigation of the Union discharged them for this reason.
Such discriminatory action by the Respondent Employer
encourages membership in the Union. By this conduct
Respondent Union violated Section 8(b)(1)(A) and (2) of
the Act, and Respondent Employer violated Section
8(a)(1) and (3) of the Act.19
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section
III, above, occurring in connection with Respondent Em-
11 Air Flow Sheet Metal, Inc, 160 NLRB 1643, Union Starch & Refin-
ing Company (Grain Processors' Independent Union, Local No 1), 87
NLRB 779, enfd 186 F 2d 1008 (C A. 7), cert denied 342 U S 815, A
973
ployer operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents engaged in conduct
violative of the Act, I shall recommend that Respondents
be ordered to cease and desist from engaging in such con-
duct, and take such affirmative action as appears necessa-
ry to effectuate the purposes of the Act. I shall recom-
mend that Respondent Employer be required to offer
Scott, Walker, and Hawkins without prejudice to their
seniority and other rights and privileges, immediate and
full reinstatement to their former or substantially
equivalent positions. I shall also recommend that
Respondents, jointly and severally, be required to make
Scott, Walker, and Hawkins whole for any loss of
earnings they suffered by reason of the discrimination
against them, as provided in F. W. Woolworth Company,
90 NLRB 289, with interest at 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB
716.
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. Respondent Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent Employer and Respondent Union have
a valid union-security agreement within the meaning of
Section 8(a)(3) of the Act.
3. Respondent Employer violated Section 8(a)(1) of
the Act, and Respondent Union violated Section
8(b)(1)(A) of the Act, by the threats of Bone, a supervisor
for the Employer and union steward for the Union, to em-
ployees Williams and Scott because they and 11 other
employees signed a petition protesting Bone's dual status
as representative of both the Employer and the em-
ployees.
4. By discharging employees Walker and Hawkins
because they signed the petition protesting Bone's dual
status as a representative of the Employer and the em-
ployees, and by discharging Scott because he prepared,
signed, and distributed this petition, Respondent Em-
ployer violated Section 8(a)(1) and (3) of the Act.
5. By causing Respondent Employer to discharge em-
ployees Scott, Walker, and Hawkins because they par-
ticipated in the protest of Bone's dual status as a
representative of both the Employer and the employees
at the same time, Respondent Union has violated Section
8(b)(1)(A) and (2) of the Act.
6. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and pursuant to Section 10(c) of the Act, I hereby
issue the following:
Nabakowski Co, 148 NLRB 876, enfd sub nom NLRB v. Sheet
Metal Workers, Local 65, 359 F 2d 46 (C A. 6)
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER (e) Post at its plant in Chicago, Illinois , copies of the
attached notice marked "Appendix A."20 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 13, after being duly signed by Respondent Em-
ployer's authorized representative, shall be posted by the
Respondent Employer 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 Em-
ployer to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.21
B. Machinery, Scrap Iron, Metal and Steel Chauf-
feurs, Warehousemen, Handlers, Helpers and Alloy
Fabricators Union, Local 714, I. B. of T., its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees by threats of
discharge and other reprisals in connection with their
right to engage in union and other concerted activity for
the purposes of collective bargaining and other mutual aid
and protection.
(b) Causing or attempting to cause Respondent Em-
ployer to discriminate against employees by discharging
employees Scott, Walker, Hawkins, or any other em-
ployee, because they protest by petition or otherwise the
holding by an employee of the position of a supervisor for
Respondent Employer and the position of a steward for
Respondent Union at the same time, or in any other
manner engaging in discrimination for reasons other than
the failure of employees to tender the periodic dues and
initiation fees uniformly required as a condition of acquir-
ing or retaining membership in the Union where they are
required to do so by a collective-bargaining contract.
(c) By any like or related acts, restraining or coercing
employees in regard to their right to engage in union or
other concerted activity for purposes of collective bar-
gaining or other mutual aid or protection, except to the
extent such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Notify Respondent Employer, and mail a copy to
James L. Scott, Eddie Walker, and Willie L. Hawkins,
that it has no objection to the employment of James L.
Scott, Eddie Walker, and Willie L. Hawkins, and will not
oppose their reinstatement.
(b) Make James L. Scott, Eddie Walker, and Willie L.
Hawkins whole, jointly and severally with Respondent
Employer, for any loss of pay they may have suffered by
reason of the discrimination against them, in the manner
set forth in the section of the Trial Examiner's Decision
entitled "The Remedy."
(c) Post at its business office in Chicago, Illinois, co-
pies of the attached notice marked "Appendix B."22
Copies of said notice, to be furnished by the Regional
Director for Region 13, after being duly signed by
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 13, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith
22 See in 20, supra
A. Respondent Chicago Roll Forming Corp., its of-
ficers, agents, successors, and assigns , shall:
1. Cease and desist from-
(a) Interfering with, restraining, and coercing em-
ployees in regard to their rights to engage in union and
other concerted activity for purposes of collective bar-
gaining and other mutual aid and protection by threaten-
ing them with discharge and other reprisals.
(b) Encouraging membership in Respondent Machin-
ery, Scrap Iron, Metal and Steel Chauffeurs,
Warehousemen, Handlers, Helpers and Alloy Fabrica-
tors Union, Local 714, I. B. of T., by discharging James
L. Scott, Eddie Walker, and Willie L. Hawkins, or any
other employee, because they participated in the con-
certed and union activity of protesting by petition the dual
status of employee James Bone as representative of both
Respondent Employer and its employees by being a su-
pervisor of Respondent Employer and a steward of
Respondent Union, or in any other manner discriminating
against them in regard to wages, hours, or other terms or
conditions of employment, for any reason other than non-
payment of periodic dues and initiation fees uniformly
required as a condition of maintaining or acquiring mem-
bership in Respondent Union where employees are
required by a collective-bargaining contract to be mem-
bers of Respondent Union.
(c) Engaging in like or related conduct that interferes
with, coerces, and restrains employees with respect to
their right to engage in union or other concerted activity
for mutual aid or protection guaranteed them in Section
7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
by Section 8(a)(3) of the Act.
2. Take the following action which will effectuate the
policies of the Act:
(a) Offer James L. Scott, Eddie Walker, and Willie L.
Hawkins, without prejudice to their seniority and other
rights and privileges, immediate and full reinstatement to
their former or substantially equivalent positions.
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Make James L. Scott, Eddie Walker, and Willie L.
Hawkins whole, jointly and severally with Respondent
Union, for any loss of pay they may have suffered by
reason of the discrimination against them, in the manner
set forth in the section of the Trial Examiner's Decision
entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant and material to Respondent Employer's
compliance with the provisions of this Recommended
Order.
20 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
CHICAGO ROLL FORMING CORP.
Respondent Union's official representative, shall be
posted by Respondent Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for Region 13 signed
copies of the notice attached hereto as Appendix B for
posting by the Respondent Employer, if willing, at the of-
fice and places of business of Respondent Employer
where Appendix A is placed.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.23
"See fn 21, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interfere with, restrain, or coerce
employees in regard to their rights to engage in union
or other concerted activity for the purpose of collec-
tive bargaining and other mutual aid and protection.
WE WILL NOT encourage membership in Machin-
ery, Scrap Iron, Metal and Steel Chauffeurs,
Warehousemen, Handlers, Helpers and Alloy
Fabricators Union, Local 714, I. B. of T., by
discharging them because they protested by petition
the holding by one employee at the same time of the
position of supervisor for us and the position of union
steward for this Union and the employees, or by dis-
criminating against employees in any manner for
reasons other than the nonpayment of periodic dues
or initiation fees uniformly required as a condition of
acquiring and retaining membership in the Union.
WE WILL NOT engage in like or related conduct
that interferes with, coerces, and restrains employees
with respect to their right to engaging in union or
other concerted activity for purposes of collective
bargaining or other mutual aid or protection guaran-
teed them in Section 7 of the Act, except to the ex-
tent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL offer James L. Scott, Eddie Walker, and
Willie L. Hawkins, without prejudice to their seniori-
ty and other rights and privileges, immediate and full
reinstatement to their former or substantially
equivalent positions, and make them whole, jointly
and severally with the above Union, for any loss of
earnings, including interest, they may have suffered
from the discrimination against them.
CHICAGO ROLL FORMING
CORP.
(Employer)
Dated By
975
(Representative ) (Title)
Note: We will notify James L. Scott, Eddie Walker,
and Willie L. Hawkins if presently serving in the Armed
Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective
Service Act and the Universal Military Training and Ser-
vice Act, as amended, 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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone
828-7570.
APPENDIX B
NOTICE TO ALL MEMBERS OF MACHINERY, SCRAP IRON,
METAL AND STEEL CHAUFFEURS, WAREHOUSEMEN,
HANDLERS, HELPERS AND ALLOY FABRICATORS
UNION, LOCAL 714, 1. B. OFT.
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees in re-
gard to their rights to engage in union and other con-
certed activity for the purpose of collective bargain-
ing and other mutual aid and protection, by threats of
discharge and other reprisals.
WE WILL NOT cause, or attempt to cause, Chicago
Roll Forming Corp., or any other employer, to dis-
criminate against James L. Scott, Eddie Walker, and
Willie L. Hawkins or any other employee, because
they protested by petition the holding by one em-
ployee of the position of supervisor and union
steward at the same time, or for any reasons other
than their failure to tender the periodic dues and in-
itiation fees uniformly required as a condition of
acquiring and retaining membership in our Union
where they are required to tender them under a col-
lective-bargaining contract.
WE WILL NOT restrain or coerce employees by any
like or related acts in regard to their rights under Sec-
tion 7 of the Act to engage in union or other con-
certed activity for purposes of collective bargaining
and other mutual aid or protection, except to the ex-
tent such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL notify Chicago Roll Forming Corp. that
we have no objection to reinstatement of James L.
Scott, Eddie Walker, and Willie L. Hawkins, and WE
WILL make them whole, jointly and severally with
Chicago Roll Forming Corp., for any loss of
earnings, including interest, they may have suffered
from the discrimination against them.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MACHINERY , SCRAP IRON,
METAL AND STEEL CHAUF-
FEURS , WAREHOUSEMEN,
HANDLERS , HELPERS AND
ALLOY FABRICATORS
UNION , LOCAL 714,
I. B. OF T.
(Labor Organization)
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.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 881 U.S.
Courthouse and Federal Office Building , 219 South
Dearborn Street , Chicago , Illinois 60604 , Telephone
828-7570.
Dated By
(Representative ) (Title)