Grand Foundries, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1965

151 N.L.R.B. 1170 (N.L.R.B. 1965)

1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX-Continued
CARL WICKEN
Quarter
Gross
backpay
Interim
earnings Expenses
Net interim
earnings
Net
backpay
1959-3-------------------------- $508.80 -------------- -------------- -------------- $508.50
1959-4-------------------------- 1,074 24 $590 00 $41 30 $548.70 525 54
1960-1-------------------------- 1,092 90 662 00 55.90 606 10 486.80
1960-2-------------------------- 1,145 31 704 00 50.00 654.00 491.31
1960-3 -------------------------- 1,133 51 120 57 1 70 118.87 1,014 64
1960-4 -------------------------- 1,204.45 70.77 -------------- 70.77 1,133.68
1961-1 -------------------------- 1,032 12 ------------- -------------- -------------- 1,032.12
1961-2-------------------------- 1,147.30 -------------- -------------- -------------- 1,147 30
1961-3-------------------------- 1,199.53 38 17 .60 37.57 1,161 96
1961-4-------------------------- 1,149.26 8.70 .60 8.10 1,141.16
1962-1-------------------------- 1,175.82 659 25 27 50 631.75 544.07
1962-2-------------------------- 1,239.73 783 00 32 50 750 50 489 23
1962-3-------------------------- 518.01 360 00 16.50 343.50 174 51
Total Net Quarterly Backpay- ------------------------------------------------------ 9,851 12
Pension Insurance------------------------------------------------------------------ 2,123 29
Total Backpay as of8 /10/62---------------------------------------------------------- 11, 974.41
Grand Foundries , Inc. and Sheet Metal Workers International
Association , Local Union No. 146, AFL-CIO. Case No. 17-CA-
2447. March 25, 1965
DECISION AND ORDER -
On December 23, 1964, Trial Examiner Thomas F. Maher issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in his attached
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Fanning and Jenkins].
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 briefs , and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the modifications
indicated herein.'
'We also find that works Manager Furlani ' s promise of a wage increase to employee
Braden constitutes a violation of Section 8(a) (1) of the Act.
151 NLRB No. 118.
GRAND FOUNDRIES, INC. 1171
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Order Recommended by the Trial Examiner and
orders that the Respondent, Grand Foundries, Inc., Springfield,
Missouri, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as
modified below :
1. Change the period following "... conditions of work" in sub-
paragraph 2(a) to a semicolon and add the following:
"provided, however, that nothing in this Decision and Order
shall require the Respondent to vary or abandon any wage, hour,
seniority, or other substantive feature of its relationship with its
employees which the Respondent has established while bargaining
with the Committee, or to prejudice the assertion by its employees
of any rights they may have as a result of the establishment of
the Committee."
2. Delete the words "or preferential hiring" from paragraph
2 (c) of the Order.
3. Insert the following as subparagraph (d) in paragraph 2 and
renumber all subsequent paragraphs accordingly :
"(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 necessary to analyze the amount of
reimbursement due under the terms of this order."
4. Renumbered paragraph 2(e) (former paragraph 2(d)) is
am ended to read as follows :
"Post at its Springfield, Illinois, place of business, copies of the
attached notice marked "Appendix." Copies of said notice, to be fur-
nished by the Regional Director for Region 17...." (instead of
"cc pies of said Order.").
Delete the last paragraph in the notice attached to the Trial
Examiner's Decision marked "Appendix," beginning "All our em-
ployees . . ." and substitute the following :
"All our employees are free to become or remain, or to refrain
from becoming or remaining, members of any labor organization,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized by Section 8(a) (3) of the National
Labor Relations Act, as amended."
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on May 18, 1964, and thereafter amended on May 20, June 23,
and July 21, 1964, by Sheet Metal Workers International Association, Local Union
No. 146, AFL-CIO, Charging Party herein, the Regional Director for Region 17 of
the National Labor Relations Board, herein called the Board, issued a complaint on
behalf of the General Counsel of the Board on July 28, 1964, against Grand Foun-
dries, Inc., Respondent herein, alleging violations of Section 8(a)(1), (2), and (3)
of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.),
herein called the Act. In its duly filed answer Respondent, while admitting certain
allegations of the complaint, denied the commission of any unfair labor practice.
Pursuant to notice a hearing was held before Trial Examiner Thomas F. Maher
on August 18 and 19, 1964, at Springfield, Missouri. All parties were present and
represented by counsel, afforded a full opportunity to be heard, to present oral argu-
ment, and to file briefs with me. Briefs were filed on October 6, 1964, by counsel
for the Respondent and for General Counsel.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each witness appearing before me,1 I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is a corporation with its plant and principal place of business located
in Springfield , Missouri, where it is engaged in the manufacture of tandem parts for
trucks and tractors. It is admitted that in the course and conduct of its business
Respondent annually sells goods and furnishes services valued in excess of $50,000
to a nonretail manufacturing enterprise with headquarters within the State of Mis-
souri, which enterprise , in turn, annually ships goods or furnishes services valued in
excess of $50,000 directly to points outside the State of Missouri. Upon the fore-
going stipulated facts I conclude and find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is conceded and I conclude and find that Sheet Metal Workers International
Association, Local Union No. 146, AFL-CIO, is a labor organization within the
meaning of the Act.
The Employees' Shop Committee was established in the manner described below
for the purpose of providing representation for hourly paid employees to meet with
representatives of Respondent, in particular Frank Beyer, its purchasing agent and
personnel director, the individual designated by its president to form and meet with
the Committee, and to discuss with it such matters as complaints, safety, production,
and working conditions .2 As this organization thus constitutes an employee repre-
sentation committee whose purpose includes dealing with an employer concerning
grievances and working conditions I conclude and find it to be a labor organization
as thus defined by Section 2(5) of the Act.
l Unless specifically Indicated to the contrary, any credibility evaluation I make of
the testimony of any witness appearing before me is based, at least in part, upon his
demeanor as I observed it at the time the testimony was given. Cf. Retail Clerks In-
ternational Association , AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB
1680, 1682 and footnote 3, Bryant. Brothers Packing Company, 129 NLRB 285. To the
extent that I do not rely upon or I reject in part or entirely the testimony of any given
witness, it is my intent thereby to indicate that such part or whole of the testimony, as
the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB
115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2). To the extent that I credit any
witness only in part I do so upon the evidentiary rule that it is not uncommon "to be-
lieve some and not all " of a witness ' testimony . N.L.R.B. v. Universal Camera Corpora-
tion, 179 F. 2d 749, 754 (C.A. 2).
2 Stated purposes of the Committee were included to Respondent 's posted notice to em-
ployees upon its formation ( infra).
GRAND FOUNDRIES , INC. 1173
III. THE ISSUES
1. The formation and domination of, and interference with, the administration of
the Employees' Shop Committee.
2. Interrogation and promises of benefit
3. The discriminatory treatment of Otis Kerr.
IV. THE UNFAIR LABOR PRACTICES
A. Introduction
Organizing activity among Respondent's employees commenced in late February
1964 when representatives- of the Union distributed literature at the plant exits. One
employee, Otis Kerr, had, in fact, begun his activity in the Union's behalf 4 or 5 days
prior to the union representatives' February 28 appearance.
Close upon the heels of the Union's appearance other significant events occurred,
all of which I have concluded and found (infra) to bear direct relationship to the
Union itself. Thus a Shop Committee was immediately instituted (or, as Respond-
ent claims, reinstituted), employees were singled out for questioning and discussion
concerning the Union, and its leader among the employees, employee Otis Kerr,
became the subject of unusual attention at the hands of management representatives.
B. The Employees' Shop Committee
On March 9, Respondent's President Lewis G. Hutchens caused to be posted a
notice which substantially described the Committee alleged by the General Counsel
to be company-formed and company-dominated. It stated as follows:
It is a pleasure to notify you that I have instructed Mr. Frank Beyer to form
an Employees' Shop Committee. This committee will provide representation
for hourly workers in our Foundry and Wheel Division.
This will provide you and your fellow workers with a means of expressing
opinions and ideas to management; to help in settling grievances that may arise
from time to time; to give you a hand in looking after your own welfare; and
to assist in making this a better place to work.
The committee will be made up of one elected representative from each of
these departments: (1) Melting (2) Core (3) Cleaning (4) Molding (5) Wheel
Division. Mr. Beyer will arrange for the first election to be held during working
hours on Friday, March 13, 1964. All employees who are paid on an hourly
basis will be eligible for election. No foreman or other member of manage-
ment will serve on the committee, nor will they be eligible to vote.
When elected, the committee will meet regularly with Mr. Beyer At these
meetings, no direct member of management will be present; therefore, employ-
ees can discuss any subjects they like, including complaints, safety matters, pro-
duction, working conditions, and so forth. Mr. Beyer will forward the com-
mittee's recommendations and ideas to management, and report back on what
action management decides to take.
The success of our new Employees' Shop Committee will depend on you and
on the men you elect to membership, so give some real thought to your choice.
Mr. Beyer will post notices concerning the election this week, so watch the
bulletin board.
We have used the committee system in the past, and those of you who have
worked here before know that our former committees helped to bring about a
great many improvements which were of benefit to us all. We intend for this
committee to have a real influence, too, and we pledge our whole-hearted
cooperation.
Sincerely,
GRAND FOUNDRIES, INC.,
(S) Lewis G. Hutchens,
LEWIS G. HUTCHENS,
President.
Frank Beyer, whom Hutchens announced he had instructed to form the Commit-
tee, was the Respondent's purchasing agent and personnel director, and its permanent
representative on the Committee. In this regard Hutchens described Beyer as the
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual through whom he communicates with the Committee , stating conversely
in answer to a question by his counsel that the Committee 's purpose was to bring
matters before Beyer so that he could communicate them to Hutchens . Beyer, admit-
ting that he, in effect , was the moderator of the Committee meetings , stated , "There
would be no member of management present except me and I would pass the informa-
tion on both ways." Thus it is evident and I conclude and find that Beyer, in his
relationship with the Committee , and his continuing participation in its affairs, as
evidenced by the minutes of the 10 meetings held between March 17 and August 11,
1964, acted as Respondent 's agent.3
Beyer's description of the establishment of the Committee follows:
I don't recall the exact date but I think it was around the middle of March. I
received an interoffice from the president , Lewis Hutchens , instructing me to
reactivate the committee in a similar manner to the one which we had under
the old operation that moved away . This I did by posting a notice along with a
copy of a ballot , both of which were copied off of previous notices and ballots
used in past year, and were put on the bulletin board asking the men to choose
the man in their particular departments they wanted for their representative.
These ballots were put on their clock card in the clock rack on the evening shift,
after the evening shift was gone, so the men coming to work the next morning
would have a ballot on his clock card. And the notice asked them to vote and
drop this ballot in what we call a suggestion box, which is a rural mailbox with
a slot in the top and locked with all our suggestions for anything going on. And
during the 24-hour period I believe about 98 or 99 percent of the men voted,
and after 24 hours had passed the man that handles all the suggestion boxes,
named Jim Clark, picked these votes up, unlocked the box, picked the votes up,
and brought them to my office . I asked, I believe, Jerry King to have two of
the men in the shop come up to the office and count these votes , along with my
secretary , making a tabulation on what the votes were , which they did. After
the votes were counted and the names of the people were posted , I asked a couple
of the men that were elected when they wanted to meet, when they wanted to
come in and start the usual procedure as we had had in the past and they told
me they would like to meet, I believe it was on a Monday or Tuesday, and they
wanted to every other Tuesday. The first Tuesday that we met we tried to set
up the machinery similar to the one we had in the past.
It appears from the minutes of the Committee meetings which were regularly held
following its organization that Beyer's part in the organization was not merely a pas-
sive one, as he claimed . Thus beginning with the first two meetings , March 17 and
31, he is shown to have called the meeting to order, and to have presented the group
with the completed shop manual which they accepted with but one change involving
seniority . He is shown to be the one who asked for suggestions , and to whom
requests for action were directed ; he gave reports for management on matters that
had been brought up at earlier meetings and on one occasion asked the Committee's
support of the foremen 's efforts to enforce safety rules.
C. Works Manager Furlan's activities
When the union representatives and employee Kerr began passing out literature
and soliciting memberships the Respondent 's reaction through its works manager,
Andrew Furlani , was immediate . Thus in late February he spoke to employee Harold
Braden, asking him if he were for the Union . When Braden replied in the negative
Furlani asked him if he knew of anyone else who was for it. Braden again replied
that he did not. Subsequently , in March, Braden had a similar conversation with
Furlani in his office , Furlani asking the identical questions and receiving the identical
replies. Whereupon Furlani asked Braden how much wages he was earning and when
told, stated to Braden that he "will probably be getting more later ." Finally, Furlani
had a third conversation with Braden , this time in May. Furlani again asked him
if he was for the Union and Braden again assured him that he was not .4
3 Walter Kocher & Co , 104 NLRB 1090 . Counsel for the General Counsel does not con-
tend that Beyer is a supervisor.
4 The credited testimony of employee Braden. Furlani denied this and other conduct
attributed to him. For reasons stated hereafter ( footnote 9) I find it impossible to
accept any of his testimony , except only insofar as it may be corroborated by the testi-
mony of credited witnesses.
GRAND FOUNDRIES, INC. 1175
Employee Donald Smith likewise credibly testified to conversations with Furlani
which approximate those recounted by Braden . Again in his office and early in the
Union's Furlani asked him if he knew if any of the new men were for the Union and
Smith told him he did not know. In a second conversation with Smith several weeks
later in Furlani's office Furlam informed him that two or three of the employees had
informed him who it was that had been talking for the Union and he wanted Smith
to verify the facts . Smith told him that he could not do so.
Another of Furlani's would -be informants was Weldon Stafford, an employee
elected to the Committee in the initial March election . Previously on March 4, in
a conversation in his office Furlani stated to him , "Stafford you are the oldest man
in the core room and I believe the men will listen to you . I want you to use your
influence to keep the Union out. I am not against unions, but I would rather spend
my money some place else." He then went on to say that when "this thing pops"
(referring to the Union ) Mr. Hutchens will pay more money. I know him and I
worked for him a number of years." Thereafter at a committee meeting Stafford
claimed that he had been promised a wage increase and never received it. He had
occasion to discuss this particular matter further with Furlam to whom the problem
had been referred by Personnel Director Beyer following the meeting. On this occa-
sion Furlani heatedly denied having promised Stafford a raise and told him he had no
right to discuss wages (presumably at committee meetings) because he (Furlani)
`'ran the foundry as he saw fit."
D. The affairs of Otis Kerr
Otis Kerr , the Union 's leader among the employees , was employed in Respondent's
grinding department between June 11, 1963, and May 20 , 1964, the date of his dis-
charge. During his tenure of employment Kerr enjoyed a reputation for excellence
of workmanship that was reflected on several occasions by direct management com-
mendation . The first of these occurred in March 1964 when , according to President
Hutchens, he was named "Employee of the Month ," being cited by Hutchens for
outstanding conduct and work habits, exceptional cooperation and setting a fine
example for his fellow workers ; at which time he was also the recipient of a $25
award. When asked at the hearing if any other employee had received this award on
the same stated basis Hutchens replied that he could not recall anyone else but would
have to check his records to be certain.5
Nor was management 's appreciation of Kerr's talents restricted to the March award.
Two months later, on May 5, Works Manager Furlani summoned him to the office
and, in the presence of the Foreman Jerry King, asked him to take over the foreman-
ship of the night shift . Because Kerr felt that he lacked both seniority and experience
for the assignment and because it would present personal problems at home he
declined the promotion. Furlani, persisting in his urging , suggested that Kerr con-
sider the matter overnight . On the following morning Kerr gave his final refusals
On May 14 Kerr's fortunes took a decided turn for the worse . He received a writ-
ten reprimand (supra, footnote 5) for having threatened a fellow employee , Melvin
Crawford , with physical violence on the day before . The circumstances surrounding
the issuance of this reprimand to Kerr and the contrasting treatment to Crawford is
worthy of particular note. Thus Crawford credibly testified to having reported to his
6I do not credit Hutchens except in such instances as his testimony constitutes an
admission against Respondent ' s interests or is corroborated by the testimony of credited
witnesses Hutchens ' testimony concerning Kerr's workmanship is a precise example of
inconsistencies that appear throughout . Thus , when questioned about Kerr's work ability
he was most grudging in his replies . Indeed when asked an introductory question as to
Kerr ' s work attitude his answer was, "As far as I know , it was all right ." Thereafter, he
continued to be vague until confronted directly with the fact of the award itself. In
contrast , however, when it came to recounting Kerr ' s shortcomings Hutchens was a fund
of information
Similarly , Hutchens , when testifying concerning a reprimand he had given in writing
to Kerr, stated that to his knowledge he had no prior reports of Kerr ever causing
"turmoil among employees " ; yet lie admits to having stated in this reprimand that "this
is not the first time you have been reported causing a turmoil among the employees"
Under such circumstances I hebtitate to rely generally upon this witness' testimony, and
I do not.
6 The credited testimony of Kerr. King , who testified thereafter , was not questioned
concerning this incident.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman, Jones, that he was going to get his face "mauled" by Otis Kerr. In explain-
ing to Jones the events leading up to this threat Crawford told him that as he was
starting home Kerr called him to his bench and told him that he had heard that
Crawford had gone to the office and told them that he (Kerr) was working for the
Union. Crawford replied that he had not done so. Kerr then accused Crawford
of talking to several of the employees and Crawford replied that he had as much right
to his opinion about the Union as did Kerr. As Crawford was leaving the scene of
the argument Kerr told him that if he ever went to the office or told any of them about
any activities he (Kerr) would maul his face in. Whereupon Crawford offered to
settle the matter physically right then but nothing further developed along this line.
After Crawford had reported this incident to Jones, Jones consulted with Furlani
and instructed Crawford to report to Furlam's office where he was asked to repeat
the story. Furlani then passed Crawford on to President Hutchens to whom the
story was again reported. As a consequence Crawford was given an oral reprimand
for his part in the dispute and told that he would be dismissed if. he repeated a like
performance. Kerr, however, received a formal, written reprimand for his conduct
which contained the erroneous statement that he had been previously "reported caus-
ing turmoil" (supra, footnote 5), and informing him that he would be dismissed if
this sort of conduct were repeated.
President Hutchens' testimony concerning this reprimand, however, suggests, as
does the differing treatment of the two men, that its purpose was other than plant
discipline and that management's interest in the matter was more than routine.
Thus, when questioned about the details of Crawford's possible provocation of Kerr,
Hutchens replied:
No, I didn't ask him. I just asked him about the situation. Like I said, I don't
know that he had gone to me or somebody else had told me that they had had
this situation , I believe it was the day before. I wasn't interested in what it was
about . [Emphasis supplied.]
But several questions later, when he was asked why, contrary to his usual practice,
he had handled this reprimand personally, he replied that it was "because of the seri-
ousness of the situation." It is apparent to me, and I conclude and find, that the
"seriousness of the situation" was simply that it was Otis Kerr who was involved.
And in this connection it is significant to note that although there is no dispute that
Crawford was required to describe the incident to management officials on at least
three occasions, Kerr, on the other hand, credibly testified, and Hutchens admits, that
as of the time Furlani handed Kerr Hutchens' written reprimand no official of
Respondent ever discussed the incident with him.7
Kerr's next brush with management occurred a week later as a result of an alter-
cation with an employee newly hired under the name and social security number of
Leo McLaughlin, but also known as and presently in the toils of the law as Marvin
Blumer, allegedly his true name. For reasons for simplification I shall refer to him
here as McLaughlin.
On the afternoon of May 20 Kerr was working at his grinder two work stations
beyond McLaughlin, who had been hired for his job 2 days previously and was still
under training. McLaughlin, having previously inquired of employee Gary Mitchell
if he were Otis Kerr, came up to Kerr as the latter was returning to his work station
from a nearby pile of finished stock. McLaughlin said, "Are you Otis Kerr?"; to
which Kerr replied, "Yes, who are you7" McLaughlin told him his name and imme-
diately began to accuse Kerr of having "put the finger" on a friend, the owner of a
local tavern known as the Hillbilly Club. McLaughlin's accusation became inter-
spersed with a variety of cursing which included uncomplimentary references to
Kerr's maternal ancestry, and was accented with a sharp slap to Kerr's face, followed
by more cursing.
The substance of McLaughlin's accusation, as credibly described by Kerr and
employee Gary Mitchell who witnessed the incident, was that in some unexplained
way Kerr was responsible for an official "raid" on the Hillbilly Club, as a result of
which the owner, a friend of McLaughlin, had lost his liquor license and McLaughlin
had lost $15,000, and was still losing money. McLaughlin was never called to testify
nor was the substance of his accusation ever adequately explained by any other wit-
ness. Suffice it to say that upon all of the evidence in the record the accusation has
been established to be groundless, and Kerr was clearly not a party to any Hill-
billy Club raid, nor was he shown to be acquainted with either its owner or with
McLaughlin.
7 Furlani was not questioned concerning the chronology of this incident and Foreman
Jones was not called as a witness.
GRAND FOUNDRIES, INC. 1177
Returning to the scene of battle: McLaughlin's blow to Kerr's face was followed
by the repeated poking of a lighted cigarette into Kerr's bared chest to provide empha-
sis to McLaughlin's vulgarities. Meanwhile Kerr called, "Gary," to Mitchell, to
attract his attention He then sought to mollify McLaughlin by protesting that he
had no idea what it was all about. Failing to succeed in this effort Kerr turned away
saying, "I've had enough of this," and sought out Foreman Jerry King to whom he
complained that McLaughlin had struck him without cause and was accusing him
and cursing him for something he knew nothing about. Kerr then requested that
he be taken to Work Manager Furlani.
King took Kerr and McLaughlin to Engineer Fehling's office, adjacent to Furlani's,
left the two of them with Fehling and went out to locate Furlani. During all of this
time McLaughlin continued his loud and abusive accusations of Kerr, interspersed
by this time with threats of future maiming. Present during all of this was employee
Mitchell who had witnessed McLaughlin' s original assault and had accompanied
the group to the office. Mitchell's presence in the office, credibly witnessing as he
did the entire transaction, was a source of inquiry at the hearing. Mitchell, being a
young man of inquisitive nature, appears to have followed along with the group sim-
ply to see what was happening, remained in the office for the same purpose, and left
only when directed to do so because it was learned that he was there only as a curious
onlooker. Meanwhile, Furlani returned to the office with Foreman King. Furlani,
although already briefed by King 8 as to the incident, first wanted to know what had
happened. When King stated that they had been fighting, Furlani interrupted
McLaughlin's continuing cursing and shouting to say, "You boys know the rules on
fighting. I will have to let you both go." Whereupon Kerr told Furlani that he had
struck no blows, that he had been attacked, but that he had not been fighting. Fur-
lani then asked McLaughlin his side of the story and was given a repetition of the
same Hillbilly Club routine and the accompanying vulgarities. Although Kerr repeat-
edly protested to Furlani that he had not been fighting and that McLaughlin had
struck and abused him, Furlani never requested nor did he ever receive McLaughlin's
explanation of the assault which had taken place at the workbench. Instead Furlani
instructed King to prepare discharge papers for both men and McLaughlin announced
that they would settle the dispute in the parking lot. So far as the record shows this
was the end of McLaughlin's dispute with Kerr.
Kerr meanwhile left to get his tools and returned with a police officer sometime
later. As the conversations in the office were drawing to a close Furlani noticed
employee Mitchell, inquired of him what he was doing there and upon learning he
was merely there out of curiosity asked him to leave. As he did so Furlani stated to
Mitchell, "Now Mitch, you don't know a damn thing about this, do you?" To which
Mitchell replied, "I don't guess." 8
E. Analysis and conclusions
1. The Employees' Shop Committee
A review of the findings concerning the formation of the Employees' Shop Com-
mittee, the manner in which its affairs were conducted, and the close and continuing
control exercised over it by Respondent clearly illustrates a labor organization pro-
scribed by the Act. Thus immediately upon the appearance of the union literature
at its gate Respondent's President Hutchens presented the idea of a committee to the
employees and made the necessary arrangements for its establishment. Albeit
employee Millard Moor may well have been instrumental in reinstituting a plan pre-
viously in operation, as he credibly testified, this fact proves nothing relevant to the
issues herein. Simply because there once was a shop committee in existence does not
make it, little less its successor herein, one that meets the criteria established by the
Act. Nor is employee Moore's interest any more significant. Properly utilized his
interest should have been directed to the employees whose choice such a committee
must necessarily be, and not to the employer who is forbidden to interfere in such
matters by statutory mandate.
8 King's undisputed testimony.
O The foregoing account is a synthesis of the credited testimony of employees Kerr and
Mitchell. Foreman King substantially corroborates the chronology, the fact that it was
Kerr who complained of the assault upon him, the sequence of events in the office, and
the fact that McLaughlin was never required to give his account of the incident.
Furlani also testified at considerable length on this subject He frequently con-
tradicted himself, gave implausible explanations, and generally conducted himself in a
manner not calculated to inspire confidence in his veracity . I reject his testimony in its
entirety.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Just as the Committee was obviously company-inspired, so also Personnel Direc-
tor Beyer's activities throughout its operation clearly mark him as a moving force
in its administration. Upon such facts it is clear that the Employees' Shop Committee
was and is a creature of Respondent and by the conduct outlined herein it has inter-
fered with the Committee's formation and administration, dominated it, and con-
tributed support to it, thereby violating Section 8(a) (2) of the Act.10
2. Kerr's discharge and the interference, restraint, and coercion of the employees
The manner in which Works Manager Furlani conducted himself from the time
the Union appeared upon the scene until its leader among the employees, Otis Kerr,
departed it, manifests an undue interest in the affairs of the Union and an active antip-
athy towards it that is proscribed by the Act. Thus on three separate occasions he
attempted to check up on employee union membership through employee Braden,
and twice through employee Smith. He sought out employee Stafford's aid in com-
bating the Union, suggesting to him that pay would be better if it were kept out. Cita-
tion of authority is unnecessary to conclude and find as I do that such conduct,
particularly as it occurs within a framework of the unlawfully established and domi-
nated Committee (supra) and the flagrance of the discrimination against employee
Kerr (infra) interferes with, restrains, and coerces employees in the exercise of their
statutory rights, thereby violating Section 8(a)(1) of the Act.
Moving on to employee Kerr it is clear that Furlani exerted his strongest efforts
upon the employee known to be the Union's leader. A review of the facts above is
all that is necessary to recognize the duplicity with which Respondent dealt with Kerr.
Unquestionably he was a highly satisfactory employee and one upon whom Respond-
ent was willing to bestow the trust of foremanship. When it named him "Employee
of the Month," with all the accolades and cash which accompanied the award, con-
ceivably the Respondent was unaware of Kerr's union allegiance. In assessing its
motives when it sought to promote him in May, however, I am not so naive as to
doubt Respondent's understanding that this would remove him from the bargaining
unit. But nonetheless it did publicly attest to Kerr's worth.
Having thus failed to promote Kerr out of the bargaining unit I can draw no other
inference but to conclude and find that Respondent's subsequent conduct was calcu-
lated to remove him from the unit more directly and with more finality.
Against such a backdrop as I have inferred from the facts here the circumstances
which attend the Respondent's reprimand and subsequent discharge of Kerr disclose
the true purpose of its action-the elimination of a union leader. Thus when two
employees engage in a heated argument it is immediately branded as a threat of
physical violence and the causing of turmoil; one employee, after being permitted to
explain his version of the incident, is reprimanded orally, as no doubt each deserved,
and the other, Kerr, is subjected to a full-dress reprimand in written form, having
never been asked to explain his actions. Upon consideration of all the facts herein
I have no alternative but to conclude and find that the manner in which Kerr was
thus singled out for a different reprimand, particularly in view of his good reputation
otherwise, demonstrates not so much an attempt at enforcing discipline in the plant
as it suggests a step in the Respondent's campaign to eliminate Kerr for his union lead-
ership. And what occurred to Kerr less than a week thereafter effectively contradicts
any suggestion that discipline and good order and rules were the true reasons for the
action taken against him then.
The McLaughlin incident has all the aspects of a comic opera, excepting only
Kerr's misfortune. Here we have a man employed without experience and turned
over for training to an employee, Cantrell, in the same grinding work where there
worked an employee who had the distinction of having been named "Employee of
the Month," and of having been offered a promotion to Foreman Kerr. And indeed
it appears from the testimony of Foreman King that when McLaughlin was hired two
other employees were likewise hired for a proposed shift that does not appear to have
thereafter materialized.
Looking now to the incident that was generated by this dubious character, McLaugh-
lin, and Furlani's peculiar reaction to it, both as described by credible witnesses, and
as Furlani comported himself when testifying about it himself, I am persuaded that
the whole affair was in the nature of a fabrication to implicate Kerr. Kerr never
knew what the dispute was all about, he was accosted and upbraided in psychotic
fashion, his assailant was never required to justify his peculiar actions and vulgari-
ties, and before Kerr was fully aware of what was happening to him he found himself
fired for a breach of the rules against fighting and because he had been reprimanded
ioN.L.R.B. v. Cabot Carbon Company and Cabot Shops , Inc, 360 U.S. 203.
GRAND FOUNDRIES, INC. 1179
for fighting on a previous occasion (supra). Without belaboring the reprimand and
discharge of Kerr by further discussion, it is, in my judgment, an obvious conclusion
that it was neither the rules, the earlier reprimand, McLaughlin' s accusations , nor the
so-called fighting that caused Kerr's discharge. Upon consideration of all the facts
herein I conclude and find that these or any one of them were but pretexts for the
true reason for Kerr's discharge which I conclude and find to be his union member-
ship and leadership. As such action clearly constitutes a discrimination against Kerr,
for such reasons I accordingly conclude and find that Respondent has thereby vio-
lated Section 8(a)(3) of the Act, and has further interfered with, restrained, and
coerced its employees in violation of Section 8(a) (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has dominated and interfered with the formation
and administration of the Employees' Shop Committee and has rendered unlawful
support to it, thereby violating Section 8(a)(2), that it has discriminated against
Otis Kerr by discharging him thereby violating Section 8(a)(3), and has otherwise
interfered with, restrained, and coerced its employees in the exercise of their statutory
rights in violation of Section 8(a)(1), I shall recommend that Respondent cease
and desist from such conduct; and because of the gravity of the violations found, I
shall further recommend that it cease and desist from infringing in any other manner
upon the rights of the employees guaranteed in Section 7 of the Act.ii Affirmatively
I shall recommend that the Board issue its conventional order of disestablishment of
the Committee, that it reinstate Otis Kerr to his former or substantially equivalent
position, without prejudice to his seniority and other rights and privileges, and make
him whole for any loss of earnings he may have suffered by reason of the discrimina-
tion against him, by payment to him of a sum of money equal to that which he would
have earned as wages from the date of the discrimination against him to the date of
the offer of reinstatement less interim earnings , and in a manner consistent with Board
policy set out in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay
shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend 12 that the Respondent, Grand Foun-
dries, Inc., its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Interrogating its employees unlawfully as to their union membership and
activities and to the membership and activities of their fellow employees.
(b) Promising its employees benefits in return for their opposition to the Sheet
Metal Workers International Association, Local Union No. 146.
(c) Dominating or interfering with the formation and administration of the
Employees' Shop Committee, or any other labor organization of its employees, or
contributing financial or other support thereto.
(d) Discharging or otherwise discriminating in respect to the hire and tenure of
Otis Kerr or any other employee for the purpose of discouraging membership in the
aforesaid Union, or any other labor organization.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Withdraw and withhold all recognition from, and completely disestablish,
Employees' Shop Committee, or any successor thereof, as representative of any of its
employees for the purpose of dealing in respect to grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work.
n N.L.R.B. v. Dxpre88 Publishing Company, 312 U.S. 426, 437.
12 In the event that this Recommended Order be adopted by the Board, the word
"recommended " shall be deleted from its caption and wherever else it thereafter appears ;
and for the words "I recommend" there shall be substituted , "The National Labor Rela-
tions Board hereby orders."
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer Otis Kerr immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other rights and priv-
ileges previously enjoyed, and make him whole for loss of pay in the manner set
forth in the section of the Decision entitled "The Remedy."
(c) Notify Otis Kerr, if he is serving in the Armed Forces of the United States,
of his right to full reinstatement upon application, or preferential hiring, in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(d) Post at its Springfield, Illinois, place of business copies of the attached notice
marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 17, shall, after being duly signed by the Respondent, be posted imme-
diately upon receipt thereof, in conspicuous places, and be maintained for a period
of 60 consecutive days. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from the receipt
of the Trial Examiner's Decision, what steps the Respondent has taken to comply
therewith.14
' In the event that this Recommended Order be adopted by the Board "a Decision
and Order" shall be substituted for "the Recommended Order of a Trial Examiner" in
the notice. In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals "a Decree of the United States Court of Appeals, Enforc-
ing an Order" shall be substituted for "a Decision and Order."
14 In the event that this Recommended Order he adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees unlawfully concerning their union
membership and activities or the membership and activities of their fellow
employees.
WE WILL NOT promise our employees benefits in return for their opposition
to Sheet Metal Workers International Association, Local Union No. 146, or
any other labor organization.
WE WILL NOT dominate or interfere with the formation or administration of
Employees' Shop Committee, or any other labor organization or contribute
financial or other support thereto.
WE HEREBY withdraw all recognition from and completely disestablish Employ-
ees' Shop Committee as representative of any of our employees for the purpose
of dealing concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, and will not recognize it or any
successor thereto for any of the foregoing purposes.
WE WILL NOT discourage membership in the aforementioned Union or any
other labor organization, by discharging or refusing to reinstate any of our
employees, or in any manner discriminating in regard to their hire or tenure
of employment.
WE WILL offer to Otis Kerr immediate and full reinstatement to his former
or substantially equivalent position and make him whole for loss of pay suffered
as a result of the discrimination against him; and if he is presently serving in
the Armed Forces of the United States we will notify him of his rights to
reemployment under applicable statutes.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed them in Section 7 of the Act.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization.
GRAND FOUNDRIES, INC.
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
THE CATHOLIC PRESS SOCIETY, INC. 1181
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue , Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 731, if they have question concerning this notice or compliance
with its provision.
The Catholic Press Society, Inc. and Denver Newspaper Guild,
Local Union No. 74, AFL-CIO. Case No. 27-CA-1578. March
25, 1965
DECISION AND ORDER
On November 12, 1964, Trial Examiner James R. Webster issued
his Decision in the above-entitled proceeding, finding that Re-
spondent had not engaged in certain unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial Examiner's Deci-
sion. The Charging Party filed exceptions to the Trial Examiner's
Decision and a brief in support thereof. The Respondent there-
upon filed a brief in answer thereto.'
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision,
the exceptions, and the briefs, and hereby adopts the Trial Exam-
iner's findings, conclusion, and recommendations .2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner, and
orders that the complaint herein be, and it hereby is, dismissed.
1 We construe point II of Respondent 's brief ("The Exceptions Filed by the Guild
Do Not Comply With the Board 's Rules and Should be Disregarded ") as a motion to strike
the exceptions , and deny the motion. The exceptions adequately comply with the Board's
requirements . Cf. Patrick F. Izzi, d/b/a Pat Izzi Trucking Company, 149 NLRB 1097.
2 In adopting the Trial Examiner ' s conclusion that Whitehead was not discharged in
violation of Section 8(a) (3), we have applied to his findings the legal standard ap-
propriate in so -called "mixed motive" situations . See, e.g., N.L.R .B. v. Whitin Machine
Works, 204 F. 2d 883, 885 ( C.A. 1). We conclude that Whitehead 's discharge did not
violate the Act because in this case the credited testimony does not establish that
protected activities were a factor in Respondent ' s decision to discharge Whitehead.
151 NLRB No. 116.