Hall-Scott, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1959

124 N.L.R.B. 1305 (N.L.R.B. 1959)

HALL-SCOTT, INCORPORATED 1305
tive bargaining within the meaning of Section 9(b) of the Act: All
employees including the accounting clerks, payroll clerk, statistical
typist, accounts receivable clerk, multilith operator, secretary to the
sales manager , and all regular and part-time employees employed at
the Employer's hotel, New Orleans, Louisiana, but excluding tem-
porary or casual employees, watchmen, guards, and all supervisors as
defined in the Act."
[Text of Direction of Election omitted from publication.]
6 The parties agreed that two bootblacks should be included in the unit if employees of
the Employer, but excluded if concessionaires . There is insufficient evidence in the
record to determine the relationship existing between the bootblacks and the Employer.
We shall, therefore , permit them to vote subject to challenge.
Hall-Scott , Incorporated, and its successor , Sequoia Wire and
Cable Company 1 and August E. Sommerfeld
Sheet Metal Workers International Association, Local Union
No. 170 and August E. Sommerfeld . Cases Nos. 21-CA-2805
and 31-CB-950. October 21, 1959
DECISION AND ORDER
On February 26, 1959, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondents named above had not engaged in the unfair
labor practices alleged in the consolidated complaint herein and recom-
mending that the complaint be dismissed in its entirety, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report and a
supporting brief 2
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case.
We find merit in the exceptions and accordingly adopt the findings,
conclusions, and recommendations of the Trial Examiner only insofar
as they are consistent with our findings, conclusions, and order herein
set forth.
1 At the close of the hearing , the Trial Examiner dismissed the complaint as to
Sequoia Wire and Cable Company because the record failed to show that it was a suc-
cessor to Hall - Scott, Incorporated . As no exceptions to the ruling have been filed, it is
adopted pro forma.
3 The Respondent Union also filed exceptions to a single subsidiary finding of the Trial
Examiner We agree with the Respondent Union that there is no basis in the record for
the Trial Examiner ' s finding that when Sommerfeld was demoted from leadman to welder
in July 1957 his rate of pay was set below that of the other welder.
124 NLRB No. 168.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts in this case are fully set forth in the Intermediate Report
and are briefly summarized as follows :
Sommerfeld, the Charging Party, had been an active supporter of
the Union and had aided in organizing the Employer's plant in 1954.
After the Union was certified, however, and had negotiated an agree-
ment with the Employer, Sommerfeld, dissatisfied with the agreement
that was reached, attempted to persuade his fellow employees to reject
it. Some months later Sommerfeld left the Employer's plant but was
rehired in September 1956. From that date to his discharge a year
later in September 1957, Sommerfeld engaged in a series of actions
against the Union which were obviously designed to embarrass and
harass it. When he was rehired in September 1956, Sommerfeld spoke
to Hartley, the business manager of the Union, about complying with
the valid union-security clause under which Sommerfeld was obli-
gated to join the Union. Hartley advised Sommerfeld that he would
have to pay an initiation fee of $50, but agreed to seek a waiver of the
fee from the Union's executive board in view of Sommerfeld's mem-
bership in another union at his previous place of employment. How-
ever, when Hartley learned that Sommerfeld had immediately become
active in promoting a decertification petition against the Union, he
made no effort to obtain the waiver for Sommerfeld.
Sommerfeld did not apply for membership in the Union until No-
vember 1956, after Hartley wrote the Employer asking for his dis-
charge in accordance with the provisions of the contract. Sommerfeld
then applied for membership but his application was rejected because
he insisted on writing the words "under protest" on the application
form. Sommerfeld did at that time, however, pay the $50 initiation
fee and was issued a temporary receipt by the chief steward at the
plant. Sommerfeld at that time also executed a dues checkoff au-
thorization. However, because his application was not considered
acceptable, Sommerfeld was never admitted to membership. He
continued to pay dues which were accepted, but for which he never
received an official receipt.
In December 1956 Sommerfeld filed unfair labor practice charges
against the Union which were based in part upon his belief that the
Union's initiation fee was excessive. The Regional Director dismissed
these charges. In March 1957 Sommerfeld assisted another leadman
in circulating a deauthorization petition.' The Board's Regional
Director dismissed the petition because it had been solicited by super-
visors. Sommerfeld then signed charges against Hartley with the
Respondent Union's executive board, alleging, inter alia, that Hartley
had failed to issue official receipts to him for his initiation fee and
monthly dues.
3 When Sommerfeld was reemployed in 1956 he was given the job title of leadman, a
classification which at the time of the Board 's Decision and Direction of Election in 1955
had been held to be a supervisory position.
HALL-SCOTT, INCORPORATED 1307
Sommerfeld testified that he became aware that as a leadman he
was a supervisor and therefore not required to join the Union when
the Regional Director dismissed the deauthorization petition. There-
upon, in May 1957, he canceled his dues checkoff authorization. Early
in July 1957 he was demoted from leadman to welder for nondiscrimi-
natory reasons. A week or so later Sommerfeld wrote Hartley re-
questing a refund of his initiation fee and dues for the period when
he claimed he was a supervisor. Although it was sent by registered
mail to the union office, the letter was returned to Sommerfeld un-
claimed. At this point Sommerfeld brought a civil action against
the Union to recover the initiation fee and dues.
Since Sommerfeld was again clearly a nonsupervisory employee
after his demotion in July and had not paid dues since then, the Union
wrote to the Employer on September 11, 1957, requesting Sommer-
feld's termination for failure to pay the required dues. On September
16 or 17, a few days after this request for termination was received,
the Employer's personnel manager warned Sommerfeld that he would
be discharged unless the required payments were made. Sommerfeld
assured him that the matter would be settled on September 19. On
that date Sommerfeld's action against the Union for reimbursement
of his initiation fee and dues was tried. Sommerfeld and Hartley
met in the corridor outside the courtroom following the trial, at which
time Sommerfeld offered Hartley at least $20 in cash as payment for
his past dues. Hartley said it was not enough but failed to tell him
how much was due. There is some dispute, which the Trial Examiner
did not resolve, as to whether Sommerfeld then offered Hartley an
additional amount. However, we regard this as unimportant since
Hartley refused to accept any amount on the ground that he did not
have an official receipt book with him.
Four days later, on September 23, Sommerfeld was called to the
personnel manager's office and was discharged, despite the fact that he
advised the personnel manager that his tender of dues on September
19 had been rejected.
The Trial Examiner found that Sommerfeld had not made a proper
tender of dues and that the union-security provision in the contract,
which required the Employer to discharge delinquent employees 10
days after notice from the Union, was intended only for the conven-
ience of the Employer and not as a grace period for the delinquent
employee. He also concluded that Sommerfeld had not been dis-
criminatorily discharged and that Sommerfeld's alleged failure to
tender the proper amount of dues to Hartley on September 17 did not
constitute a pretext for the discharge.
The General Counsel contends in his exceptions that the reason
for Sommerfeld's discharge is attributable to his campaign against
the Union and that his purported failure to make a proper tender of
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues was only a pretext for his discharge. Our views are in accord
with those of the General Counsel.
Even if we were to assume that Sommerfeld's tender of $20 on
September 19 was insufficient payment for the back dues and rein-
statement fee, we would still be satisfied that Hartley did not reject
Sommerfeld's offer for that reason. Hartley made no effort to advise
Sommerfeld of the amount necessary to bring him back into good
standing. Nor was Hartley justified in rejecting the tender of dues
because he had no official receipt book with him. That Hartley's re-
fusal to accept the money was based upon his willingness to leave
Sommerfeld in bad standing is evidenced by the fact that the Union
had previously accepted an initiation fee and monthly dues from
Sommerfeld without ever giving him more than a temporary receipt.
If Sommerfeld was not entitled to an official receipt because he had not
filed an acceptable membership application, that fact still prevailed,
and Hartley as a responsible official of the Union could not justify a
refusal to accept union dues because he had no official receipt with
him. Sommerfeld was prepared to pay whatever dues and fees were
required of him and was quite willing to make such payments without
a receipt. That Sommerfeld's choice of a place and time to make his
tender was inauspicious does not detract from the bona fides and the
validity of the tender. We are convinced that Hartley used Sommer-
feld's dues delinquency as an excuse to get rid of him and was deter-
mined that Sommerfeld should not again be permitted to get back
into good standing with the Union.
On the basis of the foregoing, we conclude that the Respondent
Union in requesting Sommerfeld's discharge violated Section 8 (b) (2)
and (1) (A) of the Act and the Respondent Employer in effecting the
discharge violated Section 8 (a) (.3) and (1). On its part the Em-
ployer had reason for believing that the Union's request for
Sommerfeld's discharge was caused by discriminatory motives.
Sommerfeld had advised the Employer's personnel manager on Sep-
tember 23 that he had made an offer of his dues which had been
refused.
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondents, set forth above, occurring in
connection with the operations of the Respondent Employer described
in section I of the Intermediate Report, attached hereto, 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.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, it will be ordered that they cease and desist therefrom and
HALL-SCOTT, INCORPORATED 1309
take certain affirmative action designed to effectuate the policies of the
Act.
Inasmuch as the Employer has permanently ceased its operations
at Burbank, California, but has continued its operations at its plant
at Berkeley, California, we shall order the Employer to offer to rein-
state August E. Sommerfeld to a position substantially similar to that
which he had at the time of his discharge. Such reinstatement shall
be without prejudice to his seniority or other rights and privileges,
provided, however, that if no employment is immediately available,
August Sommerfeld shall be placed upon a preferential hiring list,
prepared in accordance with such rules of seniority as have heretofore
been applied in the conduct of the Employer's business, and he shall,
thereafter, in accordance with such list, be offered reemployment in a
position substantially equivalent to his former position as such em-
ployment becomes available to the Employer's Berkeley, California,
plant.
We shall further order that the Respondents jointly and severally
reimburse August E. Sommerfeld for the expenses of moving himself
and his household, in the event employment becomes available at the
Employer's Berkeley, California, plant.
We shall further order that the Respondents jointly and severally
make whole the said August E. Sommerfeld for any loss of pay he
may have suffered as a result of the discrimination against him. Such
back pay shall begin on September 24, 1957, and continue to the date
of his reinstatement, or the date upon which reinstatement is offered
to him or the date upon which he is placed upon a preferential hiring
list, except that, in accordance with our practice, the period from the
date of the Intermediate Report to the date of the Order herein shall
be excluded in computing the amount of back pay to which Sommer-
feld is entitled, because of the Trial Examiner's recommendation that
the complaint be dismissed. Such back pay shall be computed in ac-
cordance with the formula established in F. W. Woolworth Company,
90 NLRB 289.
The Regional Director is hereby directed to take all reasonable.
measures to assure that the back pay is borne by the Employer and
the Union.
It will be ordered, further, that the Union notify the Employer,
in writing, that it has no objection to the employment of Sommerfeld
as recommended herein. The Union shall not be liable for any back
pay accruing after 5 days from the date such notice is given. Absent
such notification, the Respondent Union shall remain jointly and
severally liable with the Respondent Employer for all back pay that
may accrue.
• We shall further require, in accordance with our usual practice,
that the Respondent Employer, upon request, make available to the
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board and its agents all pertinent records necessary to compute the
amount of back pay due.
CONCLUSIONS OF LAW
In addition to the conclusions of law Nos. 1, 2, and 3 as set forth in
the Intermediate Report annexed hereto, the Board makes the fol-
lowing conclusions of law :
4. The Respondent, Hall-Scott, Incorporated, has engaged in
and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) and (1) of the Act.
5. The Respondent, Sheet Metal Workers International Asso-
ciation, Local Union No. 170, has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2) and
(1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent Employer, Hall-Scott, Incorporated, Berkeley,
California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in any labor organization by dis-
charging any of its employees or discriminating in any other manner
in respect to their hire and tenure of employment except as authorized
in Section 8(a) (3) of the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to August E. Sommerfeld immediate and full reinstate-
ment to a position substantially equivalent to that which he had at the
time of his discharge, without prejudice to his seniority or other
HALL-SCOTT, INCORPORATED 1311
rights and privileges, as provided in the section of this Decision and
Order entitled "The Remedy."
(b) Jointly and severally with the Respondent Union, Sheet Metal
Workers International Association, Local Union No. 170, make whole
the said August E. Sommerfeld for any loss of pay he may have
suffered by reason of discrimination against him, in the manner set
forth in the section of this Decision and Order entitled "The Remedy."
(c) Jointly and severally with the Respondent, Sheet Metal Work-
ers International Association, Local Union No. 170, reimburse the said
August E. Sommerfeld for the expenses incurred by him in traveling
and moving himself and his household in the event employment be-
comes available at the Employer's Berkeley, California, plant.
(d) Send to August E. Sommerfeld a copy of the notice attached
hereto marked "Appendix A."' A copy of said notice, to be furnished
by the Regional Director for the Twenty-first Region, shall, after
being duly signed by a representative of the Respondent, Hall-Scott,
Incorporated, be mailed immediately upon receipt thereof to the said
August E. Sommerfeld, directed to his last known address.
(e) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all records necessary to analyze the amount of back pay due and
the rights of August E. Sommerfeld under the terms of this Order.
(f) Notify the Regional Director for the Twenty-first Region in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
B. The Respondent Union, Sheet Metal Workers International As-
sociation, Local Union No. 170, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Requiring, instructing, or inducing the Respondent Employer,
its officers, agents, successors, or assigns, or any other employer to
discharge employees because they are not members in good standing
in the Respondent Union, except in accordance with Section 8(a) (3)
of the Act.
(b) In any like or related manner causing or attempting to cause
the Respondent Employer, its officers, agents, successors, or assigns,
or any other employer to discriminate against any employee in viola-
tion of Section 8(a) (3) of the Act.
(c) In any like or related manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act.
* In, the event that, this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify the Respondent Employer, in writing, that it withdraws
its objections to the employment of August E. Sommerfeld by the
Respondent Employer, and requests the Respondent Employer to
offer to the said August E. Sommerfeld immediate and full reinstate-
ment to a position substantially similar to that which he had at the
time of his discharge, as provided in the section of this Decision and
Order entitled "The Remedy."
(b) Jointly and severally with the Respondent Employer make
whole the said August E. Sommerfeld for any loss of pay he may have
suffered by reason of their discrimination against him, in the manner
set forth in the section of this Decision and Order entitled "The
Remedy."
(c) Jointly and severally with the Employer reimburse the said
August E. Sommerfeld for the expenses incurred by him in traveling
and moving himself and. his household, in the event employment be-
comes available at the Employer's Berkeley, California, plant.
(d) Post at its office in Los Angeles, California, copies of the
notice attached to this Decision and Order marked "Appendix B." 5
Copies of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by the Respondent
Union's representative, be posted by the Respondent Union inunedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to its members are customarily posted. Reasonable steps shall
be taken by the Union to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Send to August E. Sommerfeld a copy of the notice attached
hereto marked "Appendix B." A copy of said notice, to be furnished
by the Regional Director for the Twenty-first Region, shall, after
being duly signed by a representative of the Respondent Union, be
mailed immediately upon receipt thereof to the said August E. Som-
merfeld, directed to his last known address.
(f) Notify the Regional Director for the Twenty-first Region in
writing, within 10 days from the date of this Order, what steps the
Respondent Union has taken to comply herewith.
MEMBER FANNING, dissenting :
For the reasons stated in the Intermediate Report, I would dismiss
the complaint in this case.
MEMBER BEAN took no part in the consideration of the above
Decision and Order.
5 See footnote 4.
HALL-SCOTT , INCORPORATED
APPENDIX A
NOTICE TO AUGUST E. SOMMERFELD
1313
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT encourage membership in Sheet Metal Workers
International Association, Local Union No. 170, or any other
labor organization by discharging any of our employees or dis-
criminating in any other manner in respect to their hire or tenure
of employment, or any term or condition of employment, except
to the extent permitted by Section 8 (a) (3).
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Sheet
Metal Workers International Association, Local Union No. 170,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, 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 in Section 8(a) (3) of
the Act.
WE WILL offer to August E. Sommerfeld immediate and full
reinstatement to a position substantially equivalent to that which
he had at the time of his discharge, without prejudice to any
seniority or other rights and privileges previously enjoyed, and,
jointly and severally with Sheet Metal Workers International
Association, Local Union No. 170, reimburse him for the expenses
incurred by him in traveling and moving himself and his house-
hold, and make him whole for any loss of pay suffered as a result
of the discrimination against him.
HALL-SCOTT, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced , or covered by any other material.
525543--60--vol. 124-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS AND TO AUGUST E. SOMMERFELD
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT require, instruct, or induce Hall-Scott, Incorpo-
rated, its officers, agents, successors, or assigns, or any other
employer to discharge employees because they are not members
in good standing in this labor organization, except in accordance
with Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner cause or attempt to
cause Hall-Scott, Incorporated, or any other employer to dis-
criminate against any employee in violation of Section 8(a) (3)
of the Act.
WE WILL notify Hall-Scott, Incorporated, in writing, that we
withdraw our objection to the employment of August E. Sommer-
feld by Hall-Scott, Incorporated, and request the said Hall-Scott,
Incorporated, to offer to the said August E. Sommerfeld immedi-
ate and full reinstatement to a position substantially equivalent
to that which he had at the time of his discharge, without preju-
dice to any seniority or other rights and privileges previously
enjoyed, and, jointly and severally with Hall-Scott, Incorporated,
make him whole for any loss of pay suffered as a result of the
discrimination against him and reimburse him for the expenses
incurred by him in traveling and moving himself and his house-
hold.
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, LOCAL UNION No. 170,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon separate charges duly filed and served by August E. Sommerfeld, an in-
dividual, the General Counsel of the National Labor Relations Board issued a con-
solidated complaint against Hall-Scott, Incorporated, and .its alleged successor;
Sequoia Wire and Cable Company, herein called the Employer, and against Sheet
Metal Workers International Association, Local Union No. 170, herein called the
Local, alleging that the Employer had discharged Sommerfeld in violation of Section
8(a)(3) of the National Labor Relations Act, 61 Stat. 136, herein called the Act,
and that the Local had caused this discharge in violation of Section 8(b)(2) of the
Act. The unfair labor practices are alleged to affect commerce within the meaning
of Section 2(6) and (7) of the Act.
HALL-SCOTT , INCORPORATED 1315
In respect to unfair labor practices , the complaint alleges in substance that Som-
merfeld was discharged by the Employer upon the demand of the Local, although
he had tendered to the Local a sum of money not less than the amount owed by
him and that at the time of discharge the Employer was aware of this circumstance.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
in Los Angeles , California , on 10 hearing days in November and December 1958,
ending December 19. All parties were represented at the hearing and were afforded
opportunity to examine and cross -examine witnesses and to introduce evidence
pertinent to the issues . At the close of the hearing a motion to dismiss the complaint
as to Sequoia Wire and Cable Company was granted on the ground that Sequoia
Wire and Cable Company was not shown by the evidence to be a successor to Hall-
Scott, Incorporated, within the meaning of Board decisional law.' A brief has been
received from counsel for the Local.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is a California corporation having its principal place of business at
Berkeley, California , and at all times of interest here was engaged in Burbank, Cali-
fornia, in the manufacture of electronic products . During its last fiscal year the Em-
ployer shipped more than $50,000 worth of goods to points outside the State of
California . The Employer is and at all times material has been engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Local is a labor organization within the meaning of Section 2 ( 5) of the
Act and at all times of interest here has been the recognized bargaining representa-
tive of a unit of employees of the Employer.
III. THE UNFAIR LABOR PRACTICES
In late 1954 August Sommerfeld, a welder, and a long-time employee of Bardwell
& McAlister , Inc., became a leader in a movement to organize a group of employees
in the plant for Respondent Local 170. An election was directed in early 1955 and
thereafter the Local was certified as bargaining representative . Sommerfeld was
appointed chief steward in the unit represented by the Local and was head of the
bargaining committee . Before agreement on a contract was reached the business
was purchased by Hall-Scott , Incorporated. Over the strenuous objections of Som-
merfeld and another employee member of the bargaining committee , Edward Mul-
rean, the Local and Hall-Scott reached agreement and a contract was prepared for
signature . Sommerfeld and Mulrean tried unsuccessfully to persuade the employees
in the unit to reject the bargain which the negotiating committee recommended and
when the contract was ready for signature refused to sign it. On July 14, accord-
ing to the testimony of Sommerfeld and Mulrean , they were summoned to the office
of Elgo Sabatini , an official of Hall-Scott , and asked to resign with the alternative of
discharge . Both did so.
John Bogue , who in July 1955 was factory manager for Hall-Scott but who long
since has left that organization , testified that he ordered the termination of Mulrean
as an insubordinate employee and that he knew of no direction to terminate Som-
merfeld. Sabatini and Wallace W. Brennecke , the latter then personnel director,
testified that: Mulrean was to have been terminated on July 14 at the direction of
Bogue; Sommerfeld flew into a rage when he learned of Mu]rean 's fate and quit on
that account ; and Mulrean 's discharge was shown as a voluntary quitting in order
that he might find it easier to obtain new employment . Both Sabatini and Bren-
necke denied that the refusal of Sommerfeld or Mulrean to sign the newly negotiated
agreement was a consideration affecting the terminations.
In its decision accompanying its direction of election , the Board found that all
leadmen with certain exceptions of no importance here were supervisors within the
meaning of the Act. Sommerfeld was then such a leadman , directing the work of 8
or 10 welders , and by the terms of the Board decision was ineligible to vote. Som-
merfeld testified that he was told by Joseph Hartley, the Local 's business manager,
prior to the election that he could not vote, but said in his testimony that he was un-
aware then or for some time thereafter of the reason for his ineligibility . I do not
1 Synns Grocer Co ., et el., 109 NLRB 346.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credit Sommerfeld on this point . No one, it appears , was more active than he in
organizing for the Local and in interesting a sufficient number of employees to insure
success in the balloting . I regard it as wholly incredible that he did not know the
reason why he could not vote.
After his termination in July 1955 Sommerfeld obtained employment elsewhere,
but in September 1956 was invited to return to work at Hall -Scott and did so. Again
he was given a job designated as leadman in the welding department , but never
thereafter had more than one welder working with him. Within a few weeks after
his reemployment he spoke with Hartley at the plant about rejoining the Local. The
employees in the unit in which Sommerfeld worked were covered by a bargaining
agreement between the Employer and the Local requiring membership in the Local
as a condition of employment . Hartley told Sommerfeld that the initiation fee had
been raised to $50. Sommerfeld protested that this amount was extortionate. Hart-
ley explained then that as a matter of comity employees in the plant in units repre-
sented by other labor organizations were permitted when transferring into the unit
represented by the Local to obtain membership in the local without payment of
initiation fee if they were members in good standing of the labor organization
representing the unit from which the transfer was made. Hartley said that he would
recommend to the executive committee of the Local that Sommerfeld 's member-
ship in the International Association of Machinists at his last place of employment
be considered as satisfying this transfer arrangement . He then could rejoin the
Local without initiation charge. Hartley testified that shortly after this conversa-
tion with Sommerfeld he learned that the latter was active in promoting a decertifica-
tion petition in the plant and in consequence decided not to attempt to gain any
preferred treatment from the Local for Sommerfeld . On November 12, 1956, ap-
proximately 7 weeks after Sommerfeld 's reemployment Hartley wrote to the Em-
ployer saying that Sommerfeld had refused to apply for membership in the Local
and requesting that he be terminated in accordance with the provisions of the con-
tract . Sommerfeld was told of this request and then filled out an application for
membership , placing the words "under protest" below his signature and adding a
complaint against Hartley . The application was rejected , and Sommerfeld was told
that no application filed "under protest" would be accepted . Sommerfeld then paid
the $50 initiation fee, executed an authorization for dues checkoff, but never sub-
mitted an application acceptable to the Local. For several months thereafter his
dues were transmitted by the Employer to the Local . Sommerfeld was never ad-
mitted as a member and on an occasion in April 1957 was refused admission to a
meeting on the ground that he lacked membership.
In the spring of 1957 Sommerfeld assisted another leadman , Joseph Schettler, in
the circulation of a decertification petition in respect to the Local . Sometime in
April of that year the petition was dismissed by the Board's Regional Office on the
ground that signatures had been solicited by a supervisor-Schettler . For the first
time, according to Sommerfeld, he then became aware that a leadman was con-
sidered to be a supervisor ; that he was without the protection of the Act ; and that
he could not be compelled to become or remain a member of the Local . In conse-
quence in late May he canceled his dues checkoff authorization and thereafter paid
no money to the Local. On July 8 Schettler and Sommerfeld were demoted from
their status as leadmen . Sommerfeld thereafter was classified as a welder, and
his wage rate was cut below that of the welder working with or under him. Ten
days later, on July 18, Sommerfeld wrote to Hartley representing that he was not
obliged to pay dues to the Local and requesting that all money he had paid be
refunded . In August Sommerfeld filed an action in a Burbank court against the
Local seeking a refund of the initiation fee paid in November 1956 and of all dues
paid since that date. Judgment was against him, but upon motion it was vacated
and the matter set down anew for September 19. On Wednesday , September 11,
Hartley for the Local wrote to the Employer saying that Sommerfeld had failed to
remain in compliance with the union -shop provision of the contract and requesting
his termination . The letter was received by the Employer on September 16.
Sommerfeld quickly became aware of its existence . On September 16 or 17
Sommerfeld spoke with Wallace Brennecke who after an absence from the Em-
ployer's plant of over a year had been rehired as personnel manager a few days
earlier. Brennecke warned Sommerfeld that he must comply with the requirements
of the contract and that unless he was shown some evidence that Sommerfeld had
paid his dues or that the Local 's demand had been withdrawn his discharge would
result. Sommerfeld told Brennecke that he was to meet Hartley in court on
September 19 and would settle the matter then.
After hearing from Sommerfeld that he had paid his initiation fee and dues in the
total amount of about $75 to the Local at a time when his status as a supervisor did
not require him to be a member of the Local , the court entered judgment for
HALL-SCOTT , INCORPORATED 1317
Sommerfeld in that amount against the Local. After the hearing but before the
announcement of the judgment Sommerfeld and Hartley in the presence of a
number of witnesses met in a corridor of the courthouse . Sommerfeld said that he
was ready to pay his dues and offered Hartley $20 . Hartley said that $20 was
insufficient ; that the reinstatement fee amounted to that much; and that Sommerfeld
must in addition pay a month 's dues of $5 . Hartley denied in his testimony that
there was a further offer from Sommerfeld . The latter insisted that he then offered
$40 to Hartley. At some point in this conversation Hartley said that he had no
official receipt book with him and could not accept money for that reason. Hartley
testified that he told Sommerfeld to pay his dues at the office of the Local.
Sommerfeld denied that such a direction was given him. Other witnesses testified-
some that Sommerfeld offered only $20, others that he offered more. For reasons
which will appear, I find it unnecessary to determine just what amount was offered by
Sommerfeld on that occasion . Sommerfeld worked the next day, a Friday, and on
the following Monday, September 23, was called to Brennecke 's office. He told
Brennecke that he had offered to pay his dues to Hartley on the 19th . Brennecke
said that he had checked with the office of the Local and learned that Sommerfeld's
dues were not paid. Sommerfeld was then discharged.
The General Counsel argues that the discharge was unlawful , first because
Sommerfeld had offered to pay his dues to the Local prior to the action of discharge,
and that even if he had not the Local sought his discharge and the Employer
effected it because of Sommerfeld 's anti-Local activity . The bulk of the testimony
in this record is directed to establishing the existence of an animus on the part
of the Local and the Employer toward Sommerfeld deriving from Sommerfeld's
conduct in opposing the Local or its officers.
Sommerfeld 's opposition to the terms of the contract entered into between the
Local and the Employer in July 1955 turned him from a strong supporter of the
Local to a determined enemy. His emotional involvement in his battle with the
Local has, I am convinced , reached such intensity as materially to affect his capacity
to testify fully and objectively concerning his relations with the Local. In short,
I do not regard Sommerfeld as a wholly reliable witness even though I shall find
that in many respects he was truthful . A further quandary is presented in that
I do not wholly credit any of those who testified concerning the July 1955 termina-
tions. Bogue could not recall just how Mulrean had demonstrated insubordination
and, although this may be understandable in that more than 3 years had elapsed since
that event when Bogue came to the stand , it seems odd that Vince DeGennaro,
Mulrean's immediate superior , knew nothing , if his testimony is to be believed, of
any design to fire Mulrean until the deed was done. Gennaro said that he had no
serious complaint about Mulrean and regarded him as a valued employee. I do
not believe that Mulrean , a leadman , would have been discharged for the reason
assigned without consultation with Gennaro . However, if other motivations ex-
isted, unconnected with Mulrean's work performance , Gennaro might not have been
entrusted with information about them . I have no doubt that Mulrean's discharge
was ordered by Bogue but I do not believe that it was caused by any insubordination
in regard to Mulrean 's work . I also have no doubt that Sommerfeld was sum-
moned to Sabatini 's office on the occasion of Mulrean 's discharge , that he lost his
temper when he learned of the intended action , and that he too was discharged on
that occasion . It seems likely that the opposition of Mulrean and Sommerfeld to
the agreement which Hall-Scott found acceptable lies at the bottom of this difficulty
but I see no need to reach a final decision in the matter . As I view the evidence in
this record , the discharge or quitting on July 14, 1955 , even if it was caused by
Sommerfeld 's intransigence as a member of the bargaining committee , has little
probative weight in reaching a decision on his later discharge in September 1957.
Within a few days following the 1955 termination Sommerfeld attempted to reach
Hartley to consult with him about it but his telephone messages either were not
delivered or were ignored.
After he was rehired in September 1956 , however, Hartley manifested no
antagonism toward him and indeed suggested a plan whereby Sommerfeld could
avoid payment of the $50 initiation fee. It seems obvious enough that in that month
Hartley bore Sommerfeld no ill will . Of course it is true that Sommerfeld finally
was required to pay the full initiation fee but Hartley could not be expected to seek
special consideration for an individual who was actively seeking to end the Local's
representative status. In the fall of 1956 and extending perhaps into the early
months of 1957, negotiations took place between the Employer and the Local on a
new contract . Thomas Davis, who then was the Employer 's factory manager and
who it develops was a social acquaintance of Sommerfeld , testified that in January
or February 1957, Hartley , Sabatini , and Vice President Beach asked him to get rid
of Sommerfeld , claiming that he was a troublemaker . Davis further testified that
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sabatini told Beach in his presence that negotiations with the Local would be
facilitated if Sommerfeld was discharged. Hartley and Sabatini denied that such
remarks were made. Sabatini testified that he partook in negotiations only once and
then on December 3, 1956. This was shortly after the time that Sommerfeld finally
paid his initiation fee to the Local.
Bernard Horwitz, the Employer's plant administrator in the spring of 1957, testified
that on several occasions he heard Sabatini refer to Sommerfeld as a troublemaker.
Sabatini denied the accusation. About this period Sommerfeld, having become the
owner of a few shares of the Employer's stock, attended a stockholders' meeting
where he spoke critically of the Employer's management at Burbank and of
Sabatini in particular. Following this meeting, according to Sabatini, another vice
president of the Employer, Lawrence, suggested to Sabatini that Sommerfeld be
discharged. Sabatini refused to follow this advice. In June 1957, after the dis-
missal of the decertification petition, the new president of the Employer, Admiral
English, according to Sabatini ordered the preparation of a list of employees who
were receiving premium rates. Allegedly this was for the purpose of reducing such
rates where the need for them was not wholly justified. According to Sabatini 6&
appeared on the list, among them Sommerfeld and Schettler, and by November of
that year all but 22 had been reduced in pay. Sommerfeld testified that when he
and Schettler were demoted in early July, Sabatini commented that the action was
not designed to encourage them to remain as employees. Sabatini testified that on
this occasion Sommerfeld expressed himself forcefully to the effect that the Employer
was a "lousy outfit." Sabatini then suggested that if Sommerfeld felt so about the
Employer he should find another place to work.
Sometime in August 1957, according to Sommerfeld, Plant Superintendent Gordon
said that he would promote Sommerfeld to foreman if he would drop his lawsuit
against the Local. Sommerfeld and Mulrean testified that in late August or early
September Sabatini remarked to the two of them that Sommerfeld was a capable
individual who could become a foreman if he would drop his suit against the Local.
Sabatini testified that on this occasion he told the two men that if Sommerfeld could
be persuaded to join the Local and to pay dues he could avoid discharge and that
Sommerfeld had a real opportunity for promotion with the Employer. Sabatini
denied that he had any knowledge of the suit against the Local at this time and denied
that he had discussed any specific promotion with Sommerfeld.
That Sommerfeld was a strong opponent of the Local, or at least of the Local's
officers, is apparent. Unless Hartley is one possessed of charity and reasonableness
beyond the usual measure, it would seem likely that this unremitting campaign of
Sommerfeld against him and the Local would have moved him to express the wish
that Sommerfeld would find employment elsewhere. Surely in Hartley's mind
Sommerfeld must have appeared to have been a troublemaker. This.too must have
been true as to Sabatini. Life would have been much simpler for him if Sommer-
feld had dropped his campaign, paid his dues regularly, and thus not have enmeshed
the Employer in his fight with the Local. But Sabatini does indeed seem to have
been a man of generous impulses, recognizing the skill and the value of Sommerfeld
as an employee and a possible supervisor, and to have done his best to steer
Sommerfeld away from challenging the Union's right to secure his discharge. The
complaint does not allege that the demotion in early July was an unfair labor prac-
tice, but the incident was brought out in the testimony to show the Employer's
displeasure with Sommerfeld because of the latter's attitude toward the Local.
I find that it does tend to establish a discriminatory motivation on the part of the
Employer. Had economy been the only motivation Sommerfeld's rate would not
have been cut below that of the other welder. It is clear from this record that
Sommerfeld was the more skilled worker.
The General Counsel asserts-the Employer and the Local deny-that until
July 7, 1957, Sommerfeld was a supervisor within the meaning of the Act. I do
not believe that this question need be resolved in order to reach a conclusion as
to the legality of the September discharge. It is clear enough that both the Local
and the Employer considered Sommerfeld's job to be covered by the bargaining
agreement, and rates for leadmen were the subject of agreement. It is also obvious
that in November 1956 when Sommerfeld's discharge was requested at a time when
he had failed to apply for membership in the T.ocal, the Emnloyer was pr-hared to
effect his discharge had he not made his application. So in a very real sense
Sommerfeld applied for membership in the Local and authorized the checkoff of
dues for a period of several months in order to keep his employment. On July
7, 1957, upon his demotion Sommerfeld of course became a rank-and-file employee
and unquestionably was then required by the terms of the collective-bargaining agree-
ment within 31 days to become a member of the Local. He did not do so. Instead
HALL-SCOTT, INCORPORATED 1319
he pursued his lawsuit attempting to get back the money he had paid. The consti-
tution of the Sheet Metal Workers International Association, of which the Local is
an affiliate, provides that a member is automatically suspended when he becomes
3 months in arrears in his dues. Arguing that Sommerfeld could not have become
liable for dues until 1 month after his demotion to a rank-and-file job, the General
Counsel urges that he could not have been in the status of a suspended member
for an additional 3 months, which by my calculation would place that date in
November 1957. Hence, the contention that a demand for discharge based upon
nonpayment of dues could not lawfully have been made before the November date.
It is perhaps true that a member of the Local under the terms of the constitution
could not be deprived of the benefits attaching to membership until the expiration
of the 3-month period. It does not follow that the Local could not have required
compliance with the union-security provisions of the contract. Of course Sommer-
feld made no attempt to comply. I find that the demand for discharge on September
11, 1957, was not precluded in any way because of the constitutional provision
cited. The argument in support of the complaint runs further that Sommerfeld on
September 19 made a full and sufficient tender of dues to the Local and as the offer
was not accepted the Local was precluded from attempting to cause his discharge.
I find it unnecessary to decide whether Sommerfeld offered $20 or $40 or some
intermediate amount on that date. Hartley was under no compulsion in my opinion
to accept the offer at any place other than the Local's office or where a steward was
stationed for the purpose of receiving dues payments. Hartley's excuse that he had
no receipt book with him was not a trivial one. The constitution mentioned
describes a form of receipt which must be used for all such payments, to be executed
in triplicate, with provision for the distribution of copies. All representatives of
the Local are forbidden to accept money without giving an official receipt. I conclude
that Hartley acted properly in failing to accept the offer at the time and place it
was made. Finally, I do not believe that the offer made by Sommerfeld on that
occasion was made in good faith. I am convinced by my observation of Sommer-
feld throughout the course of this lengthy hearing and from a consideration of his
testimony that about the last thing he desired was to pay money to the Local.
Rather, he sought an occasion and setting where the likelihood existed that any
offer would be rejected, thus providing him with an excuse for withholding dues.
If Sommerfeld actually had a purpose of paying the amounts which he owed to the
Local he knew that an office existed where that might be done. If more convenient,
he knew that he could pay the money to the steward in the plant-the same
individual who issued a receipt for his initiation fee in 1956. When on September
23 Sommerfeld told Brennecke that he had offered to pay his dues to the Local, he
was not accurately reporting the situation and Brennecke, learning that no money
had in fact been paid, was under no compulsion to investigate further. The contract
requires the Employer to effect a discharge under the union-shop provision 10 days-
after appropriate notice from the Local. This provision is obviously incorporated
to give the Employer time to investigate the facts surrounding the notice and I do
not construe it to give additional time to the delinquent.
In conclusion, I find that the Local, as represented by Hartley, had no desire
to see Sommerfeld remain in his employment but that it took no unlawful action to
bring about his termination. Brennecke testified that he had no knowledge of the
history of Sommerfeld's difficulties with the Local. Although I find considerable
difficulty in accepting this testimony I consider it to be unimportant. Sommerfeld
had opportunity to pay his dues and failed to take it. The demand for discharge was
not untimely and the Employer did not violate the Act in honoring it. I will
recommend therefore that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Hall-Scott, Incorporated, is an employer within the meaning of Section 2(2)
of the Act.
2. Sheet Metal Workers International Association, Local Union No. 170, is a
labor organization within the meaning of Section 2(5) of the Act.
3. The operations of the Employer are in commerce and affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. The discharge of Sommerfeld on September 23, 1957, was not caused by any
unfair labor practice on the part of the Local and was not an unfair labor practice
on the part of the Employer.
5. The unfair labor practices alleged in the consolidated complaint are not sup-
ported by a preponderance of the evidence.
[Recommendations omitted from publication.]