Herbert J. Nichol

National Labor Relations Board - Board Decisions

Feb 1, 1955

111 N.L.R.B. 447 (N.L.R.B. 1955)

HERBERT J. NICHOL - 447
America in a peaceful world. Despite my resignation from the Communist Party,
I will continue to fight for these goals with all the energy and sincerity at my
command.
I am also taking this step because I believe it is one effective means of bringing
home, not only to the membership of the International Union but to the people gen-
erally, the dastardly and unprecedented requirement that a man yield up his political
affiliations in order to make a government service available to the people he repre-
sents. This is a dangerously backward step in American political life which threat-
ens all of our democratic institutions. Americans have the right to belong to the
political party of their choice and trade union members have the right to choose
their own leaders. Denial of these principles undermines democracy and gives com-
fort to the arrogant reactionaries who seek to put our country on the road to fascism.
At the same time, I want to make it absolutely clear that my opinion continues
to be that only a fundamental change in the structure of our society, along the lines
implied in the very words of the charter of our International, "Labor produces all
wealth-wealth belongs to the producer thereof," can lead to the end of insecurity,
discrimination, depressions and the danger of war.
I am convinced that capitalistic greed is responsible for war and its attendant mass
destruction and horror. I am convinced it is responsible for depression, unemploy-
ment and the mass misery they generate. The present deepening depression, grow-
ing unemployment, and threat of war confirm my conviction that the only answer is
Socialism.
As a matter of fact, this Socialist concept has always been the guiding principle
for American workers. The struggle led by the great Eugene V. Debs, the early fight
for the 8-hour work day, the steel and packing struggles led by Bill Foster, the stormy
history of the I. W. W. were all influenced by Socialist ideals.
As a member of our International Union I have always been proud of and have
drawn strength from its basic Socialist tradition. No other union in this country
matches ours in its glorious working-class history. Our union, and its predecessor,
the Western Federation of Miners, has carried on some of the most bitter and
courageous struggles in the history of the labor movement. I have always been in-
spired by the fact that early leaders of this union were socialistic in one form or an-
other, that Bill Haywood also took the road to Communism and died not only as a
great leader of the working class but as an honored and respected Communist.
Therefore, I want to make it crystal clear that my belief in Communism is consist-
ent with what I believe to be the best interests of the members of this Union and the
American people generally and that I am especially happy to be able constantly
to remember that it is consistent with the finest traditions of the International Union.
I know that sooner or later we will turn this present shameful page in American
life, that the reactionary offensive will be beaten back and that the American work-
ers will again resume their march on the road to peace, progress and prosperity.
Particularly do I know that the day will come when loyalty oaths and affidavits will
be a thing of the past, when the true test will again be service to the people and, for
trade union leaders, service to their members.
In the meantime, I am sure that every member of the International Union joins
me in my pledge to fight to keep this International Union strong, to bend every effort
to make it even stronger , to continue to keep it on a progressive , militant course,
and to do everything in my power to make life in our country happy , secure, pros-
perous and peaceful.
HERBERT J. NiciiOL. February 1, 1955
Decision and Order
On October 22, 1954, the National Labor Relations Board, herein-
after referred to as the Board, issued a rule to show cause in the above-
entitled proceeding.
The rule to show cause stated in substance (1) that the Respondent,
Herbert J. Nichol, appeared in behalf of a labor organization involved
111 NLRB No. 69.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a decertification proceeding 1 before the Board under Section 9 (c)
(1) (A) (ii) of the National Labor Relations Act, as amended;
(2) that allegations were made to the Board that the Respondent,
during a brief recess occurring during the course of the hearing in
that proceeding, made intimidating and coercive threats to the peti-
tioner therein of such an aggravated nature as to constitute grounds
for suspension or disbarment from further practice before the Board;
and (3) that the Board's Regional Director, upon direction of the
Board, had made an investigation of the alleged misconduct and had
submitted a report of that investigation to the Board.2
The rule to show cause further stated that, upon consideration of
those portions of the Regional Director's report attached thereto, it
appeared that the Respondent may have engaged in misconduct of
such an aggravated nature as to constitute grounds for suspension or
disbarment from further practice before the Board, pursuant to Sec-
tion 102.58 (d) (2) of Subpart C of the Board's Rules and Regula-
tion, Series 6, as amended.
Accordingly, the Board ordered that the Respondent show cause in
writing, under oath, on or before November 15, 1954, why he should
not be suspended or disbarred by the Board from further practice
before it.
The Board's rule further provided that "if no answer is filed .. .
the statements in the Regional Director's report . . . shall be deemed
to be admitted as true and may be so found by the Board...."
The Respondent filed no answer to the rule to show cause within
the time specified, or at any other time.
The hearing in the decertification proceeding, referred to above,
was held on July 20, 1954, shortly after a strike sponsored by the
United Electrical, Radio and Machine Workers of America, the in-
cumbent labor organization, here called the UE, had ended, appar-
ently unsuccessfully. Melvin Mitchell, an employee of the employer
involved in the decertification proceeding, had worked during the
strike and had filed the petition which sought to decertify the UE 3
During a recess in the decertification hearing, a conversation ensued
between the Respondent, Herbert J. Nichol, who appeared in the
proceeding as a representative of UE,4 and Mitchell, in the presence
of Maurice Sandler, the Employer's treasurer, Henry B. Kandel,
'Miller Metal Products, Inc., 5-RD-110 ( not reported in printed volume of Board De-
cisions and Orders).
2 Certain portions of the Regional Director 's report were attached to the rule to show
cause. The portions so attached omitted only that part of the report consisting of the
Regional Director 's conclusions , analysis , and recommendation . The portions of the re-
port attached to the rule to show cause are attached hereto and marked as an appendix.
3 The findings in this paragraph of the text are based in large part upon the record,
made in the decertification proceeding, of which the Board hereby takes official notice.
4 The Respondent is not a lawyer.
HERBERT J. NICHOL 449
its labor relations director, and Vincent Fertitta, another UE
representative.
According to sworn affidavits of Mitchell, Sandler, and Kandel,
in this conversation Nichol stated in substance that : Mitchell might
be acting in the proceeding as the paid agent of his employer; Mitchell
was a "scab"; the employer would soon discharge Mitchell; Mitchell
would be blacklisted from employment elsewhere; and, if he should
succeed in finding another job, he would be hit on the head with a
wrench and suffer "bleeding at the throat."
In a sworn affidavit submitted by Nichol, he gave a somewhat dif-
ferent version of the conversation in question. However, Nichol ad-
mitted in his affidavit in substance that he called Mitchell a "scab" and
that he, Nichol, warned Mitchell that "frequently things had been
known to fall on scabs." Nichol denied, however, having said any-
thing about "bleeding at the throat."
Fertitta, Nichol's associate, submitted a sworn affidavit in which he,
in substance, confirmed in large part the account of the conversation
given by the petitioner and the two employer representatives, but
Fertitta did "not recall Nichol making any remarks about `bleeding at
the throat' or any similar remark."
In view of the foregoing, we do not credit the denials of Nichol and
Fertitta and find that Nichol made the statements attributed to him by
Mitchell, Sandler, and Kandel, as set forth above.5
Concluding Findings
During a recess period in the course of a statutory hearing con-
ducted by the Board, the Respondent, a representative of a labor or-
ganization which was a party to the proceeding, made threatening
statements, including threats of violence, to the petitioner who was
also an employee of the employer involved in the proceeding. The
Respondent, in anger, made these statements because the petitioner,
Mitchell, worked during a strike sponsored by the labor organization
which the Respondent represented and because Mitchell filed a peti-
tion to unseat that union as the representative of the employees. Such
statements were intended to and inherently were calculated to cause
the petitioner to abandon the pending proceeding or were phrased
with the intent otherwise to adversely affect it. The statements clear-
ly tended to have a restraining effect upon the proceeding. It also ap-
pears clear that the statements, under the circumstances, amounted
to conduct which, in a proper proceeding, might properly be viewed
as violative of Section 8 (b) (1) (A) of the Act. The Respondent's
conduct patently breached the obligation of parties or their represent-
5 The substance of the sworn affidavits, referred tQ above, appear in the Regional Di-
rector's report. See Appendix hereto.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
atives participating in a statutory proceeding to behave in a dignified
and decorous manner and, under all the circumstances, was contemptu-
ous of the Board and its processes.
Accordingly, we conclude that the Respondent's statements, which
we have found he made, amounted to misconduct of such an aggra-
vated nature as to constitute ground for suspension from further prac-
tice before this Board pursuant to Section 102.58 (d) of Subpart C
of the Board's Rules and Regulations, Series 6, as amended.
THE REMEDY
Under all the circumstances, in order to preserve and protect the
orderly administration of the Act and effectuate its policies, we shall
suspend Nichol from the privileges of practicing before this Board
or its agents fora period of six (6) months, beginning fifteen (15)
days after the date of our order herein.
Order
The National Labor Relations Board hereby orders that the Re-
spondent, Herbert J. Nichol, be, and he hereby is, barred and pro-
hibited from, directly or indirectly, practicing or appearing before
this Board as counsel, attorney, representative, or agent (of record or
otherwise) or from aiding or assisting any person in the preparation,
prosecution, or defense of any matter or proceeding before this Board,
or before any Regional Office or agent of this Board, for a period of
six (6) months, beginning fifteen (15) days after the date hereof.
Appendix
REPORT OF REGIONAL DIRECTOR
Pursuant to the instruction as set forth in your memorandum of
August 9, 1954, I have conducted an investigation of the incident
which occurred during a recess in the hearing held on July 20 in the
above case [Miller Metal Products, Inc., Case No. 5-RD-110] and
make the following report.
During the recess which spanned the testimony of Mitchell, the
"RD" Petitioner the UE representative, Nichol, addressed certain
remarks to Mitchell.' These remarks as paraphrased by Company
Attorney Seff, who was not present in the hearing room when they
were made, appear on page 42 of the record, as follows :
You will always be a scab. Does the Company pay you for
your testimony? If they don't you ought to ask them for money.
1 Hearing Officer Knadler and Attorney Self had left the Hearing Room Present in the
room during the recess were only Petitioner Mitchell, Company Treasurer Sandler, Pur-
chasing Agent and Labor Relations Director Kande], and UE Field Representative Nichol
and Vincent Fertitta.
HERBERT J . NICHOL 451
They have offered money to other people. If you ever go to work
any place else you may find that a wrench will fall down and hit
you on the head.
On July 30, 1954, "RD" Petitioner, Mitchell, Company Treasurer
Sandler and Purchasing Agent and Labor Relations Director Kandel
swore in a joint affidavit submitted by Seff to Chairman Farmer that
UE Representative Nichol made the following statement to Mitchell :
You will remember your actions for the rest of your life. You
will be bleeding at the throat and you will be the first one to be
fired. You are a scab and you will always be known as a scab.
You will find it very difficult to get a job and when you finally
get one, you will have a wrench fall on your head. How much is
Mr. Miller paying you for doing this? If you haven't got your
cut, I'd advise you to look into it, as Mr. Miller has offered other
employees money to testify. You know the people in the plant
have no use for you as you were always known as a goldbricker.
Each person present during the recess was interviewed alone and
his affidavit was then taken by an Examiner. The pertinent parts of
each such affidavit are set forth below :
Petitioner Mitchell:
Nichol said the following to me, but I am not sure of the se-
quence. He told me that if I wasn't getting paid, that I should
look into it, as some of the other people were getting paid. He
told me that I would be bleeding at the throat. At that time I
told him that he looked as if he was already bleeding at the throat.
He told me that I was a scab and would always be branded as a
scab, and that I would be the first one to be fired, and would not
be able to find work elsewhere. Nichol said that if I "ever did
find a job, a wrench would fall and hit you (meaning me) on the
head." Nichol also said that I was a "goldbrick."
Treasurer Sandler:
I believe that one of the first remarks that Nichol made to
Mitchell was that he would be "bleeding at the throat." Nichol
then said, "WTell you should be proud of what you are doing, scab-
bing on your fellow employees. You know what happens to scabs ;
they are the first ones to be fired, and Miller will get rid of you
real soon." Nichol then said, "You will have a difficult time get
ting a job anywhere, and when you finally do, a wrench will fall
on your head." Nichol then added "How much is Mr. Miller pay-
ing you for doing his dirty work. If Mr. Miller is not paying
you, you better look into it because he has offered to pay other
344056-55-N ol. 111 30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people. I listened in on a telephone conversation where Mr. Miller
offered money to someone to do what you are doing."
Labor Relations Director Mandel:
Nichol then started to address his remarks to Melvin Mitchell,
the petitioner. I believe that he started off by saying, "and you
Mitchell, how much is Miller paying you for testifying, and if
you haven't got your cut you had better get it, as I know he paid
others. You are a scab and will always be known as a scab, all
your life, wherever you work. When you do get a job you will
find that a wrench will fall on your head." Someplace in the re-
marks, Nichol stated to Mitchell, "and you will be bleeding at the
throat." Nichol also remarked that Miller would fire Mitchell be-
fore long.
UE Representative Nichol:
I do not recall how the conversation turned to Mitchell. I be-
lieve that it started by my asking him how he liked working with
scabs. To which I believe Mitchell replied "all right." Then I
recall I said to him something about the fact that he was a young
fellow and had probably never worked in any other shop except
Miller Metals, and that I thought that he probably didn't know
most older workers don't look favorably on working with scabs
or strikebreakers, and that was the kind of reputation that fol-
lowed a man from one shop to another. I believe that I said that
I had known fellows who had scabbed in strike many years ago
who were still referred to in uncomplimentary terms. As I recall
Mitchell said rather flippantly that it didn't bother him what
other workers thought of him. I replied that it wasn't always a
question of what workers thought of him; that frequently things
had been known.to fall on scabs heads because most workers con-
sider strike breaking a pretty serious thing.
At that point I said I don't know whether Mitchell got paid
for going back to work during the strike and if he didn't he wasn't
getting equal treatment because we had heard that the Company
had offered financial rewards for coming back to work during the
strike.
I didn't make any remark about "bleeding at the throat." I do
not know what he is referring to.
.UE Representative Fertitta:
Fertitta stated that the conversation started by Nichol's first
addressing his remarks to Kandel as to the amount of production
the Company was getting and the fact that the Company should
take back its old help. Thereafter, "Nichol then asked Mitchell,
the RD petitioner, `How do you like working with scabs?'
EQUITABLE GAS COMPANY 453
Mitchell said, `People don't worry me.' Nichol then said that
people like Mitchell help companies break strikes. Mitchell said
that at least he was working and the others were out pounding the
bricks. Nichol then said something about there having been a
strike at Locke Insulator where some people helped to break the
strike but after everything was over the Company got rid of all
the strikebreakers. Nichol told Mitchell that he was a young man
and he, Nichol, didn't know if Mitchell had any other jobs or had
only worked at Miller that when you are known as a scab you
carry the name for the rest of your days. Nichol said that he has
known cases where scabs have had things falling on their heads
because strikebreaking was a very serious matter."
"I do not recall Nichol making any remark about `bleeding at
the throat' or any similar remark."
EQUITABLE GAS COMPANY and INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL UNION No. 149, A. F. L., PETITIONER. Case
No. 6-RC-1506. February 1, 1955
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Elmer E. Hope, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner desires to represent all physical employees in
the planning and development department, gas measurement division,
of the Employer's gas utility system, comprising three classifications
of meter inspectors, either in a separate unit, or as part of the broad
unit it now represents. The instant petition is a sequel to one which
the Petitioner filed in 1953 requesting a segment of these meter inspec-
tors, which petition was dismissed as inappropriate because of the
narrow scope of the group sought.' The Petitioner contends that its
present request for all like meter inspectors throughout the system
•corrects the defect of its prior petition. The Employer, on the other
hand, urges that the group now requested is still too narrow in scope
'Case No 6-RC-1202 (not reported in printed volumes of Board Decisions and Orders).
111 NLRB No. 60.