Huttig Sash & Door Co., Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1965

154 N.L.R.B. 1567 (N.L.R.B. 1965)

HUTTIG SASH & DOOR COMPANY, INC. 1567
All our employees are free to become, remain , or refrain from becoming or remain-
ing members of United Steelworkers of America , AFL-CIO, or any other labor
organization.
MCCORMICK STEEL Co., DIVISION DUCOMMON METALS & SUPPLY CO.,
Employer.
Dated------ ------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol 8-0611,
Extension 4271.
Huttig Sash & Door Company, Inc. and Local 236, United Furni-
ture Workers of America, AFL-CIO. Case No. 9-CA-3344.
September 24,1965
DECISION AND ORDER
On June 18, 1965, Trial Examiner Herman Tocker issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Exam-
iner further found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint. Thereafter, the
General Counsel and the Respondent filed limited exceptions to the
Trial Examiner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
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, the briefs, and the entire record
in this case,'- and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
1 As we find that the record and the briefs adequately present the Issues and the posi-
tions of the parties, we deny the Respondent 's request for oral argument.
2 The Trial Examiner found that the evidence did not sustain those portions of the
complaint which alleged ( a) that the Respondent violated Section 8(a) (5) by making
unilateral changes with respect to rates of pay and work assignments and (b ) that the
Respondent violated Section 8 (a) (1) by making certain threats . As- no exceptions were
filed to these findings , we adopt them pro forma. In adopting the Trial Examiner's
finding that the Respondent did not violate Section 8(a)(1) by interrogating employees,
we rely only on the ground that the interrogation did not exceed the proper bounds of
preparation for trial.
154 NLRB No. 125.
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Recommended Order of the Trial Examiner, as modified
hereinafter, and orders that the Respondent, Huttig Sash & Door
Company, Inc., Louisville, Kentucky, its officers, agents, successors,
and assigns, shall take the actions set forth in the Trial Examiner's
Recommended Order, as so modified :
1. Strike from the third line of paragraph I, (b) of the Recom-
mended Order, the words "the above-named", and substitute therefor
the words "Local 236, United Furniture Workers of America,
AFL-CIO."
2. Immediately after paragraph II, (e) of the Recommended
Order, add the following :
"IT IS FURTHER ORDERED that the amended complaint be, and it here-
by is, dismissed insofar as it alleged violations of the Act not found
herein.
3. Strike from the third line of the third indented paragraph of the
notice, attached as an Appendix to the Trial Examiner's Decision, the
words "the above-named", and substitute therefor the words "Local
236, United Furniture Workers of America, AFL-CIO."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Herman Tocker, in Louisville, Kentucky, on February 10, 11, and 12, 1965, on the
complaint of the General Counsel and the answer of Huttig Sash and Door Company,
Inc., the Respondent. The issues litigated were whether the Respondent had violated
Section 8(a)(1), (3), and (5) of the Labor Management Relations Act of 1947, as
amended. Briefs have been submitted on behalf of the General Counsel and the
Respondent.
The Unfair Practices Alleged (The Pleadings)
It is alleged that the Respondent by its agents violated Section 8 (a) (1) of the Act
in that: (a) employees were warned against and discouraged from engaging in
union activities, (b) employees were threatened with discharge for activities in the
service of, or for the performance of duties on behalf of, the Union, (c) one actually
had been discharged for this reason and (d) the employer had removed "union litera-
ture" from the union bulletin board and had interrogated an employee as to who
had posted that literature. It is alleged also that the employee who had been dis-
charged was discharged wrongfully and not reinstated because of his association
with, and activities on behalf of, the Union, this in violation of Section 8(a)(3) of
the Act. Finally, it is alleged that, in violation of Section 8(a)(5) of the Act, the
Respondent unilaterally changed the rate of pay and the work assignment of employ-
ees in its door department without bargaining with the Union. Although this last
charge could be interpreted as involving both change of rate of pay in the door
department and change of work assignment in that department, two different set of
circumstances, this was clarified at pages 113, 114, and 115 of the transcript., The
General Counsel has stated that this involved only one set of circumstances and that
there was no grievance in evidence involving a change of work assignment. (These
1 To the extent that page citations are made to the transcript they are made primarily
for illustrative purposes and the fact that any citation is given should not be regarded
as suggesting that there is no evidence elsewhere in support of the portion of this
Decision where such citation appears.
HUTTIG SASH & DOOR COMPANY, INC. 1569
circumstances will be discussed at greater length below in the portion of this decision
which deals with a job vacated by one George Heil whose pay had been $2.18 an
hour and the subsequent posting of a job at $1.99 an hour.) (An allegation in the
complaint that the employee who had been discharged had been "discriminatorily
laid off" for a period of 9 days prior to his discharge was withdrawn during the
hearing.)
The Respondent's answer is, in effect, a general denial. During the course of the
hearing it conceded that a newspaper clipping (which is the literature to which refer-
ence is made in the complaint) was removed from the bulletin board and that an
employee had been questioned as to who had posted it.
After discussing and ruling on the alleged unfair labor practices I shall discuss, in
addition, a charge of unlawful pretrial interrogation brought into the case by an
amendment of the complaint allowed during the course of the hearing. This particu-
lar charge had been dismissed summarily after the General Counsel had presented
all his proof with respect thereto.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation engaged in the manufacture of door and
window units. We are concerned here only with its plant at Louisville, Kentucky.
It purchases large quantities of goods from States outside Kentucky and ships large
quantities of its products from Kentucky to places in other States of the United
States. It is an employer as defined in Section 2(2) of the Act and is engaged in
commerce and in operations affecting commerce as defined in Section 2(6) and (7)
of the Act. The National Labor Relations Board has jurisdiction of it in this
proceeding.
H. THE LABOR ORGANIZATION INVOLVED
Local 236, United Furniture Workers of America, AFL-CIO, is and at all times
hereinafter mentioned was a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's relations with the Union, the Charging Party
For the past 18 or 20 years the Union and the Respondent have maintained labor
relations. At the time of the hearing herein, there was in effect a contract between
the Union and the Company executed as of February 15, 1961, which had been
amended in various respects on February 18, 1963, for the period from February 15,
1963, to February 15, 1965. Negotiations were at that time being conducted for a
new or amended contract but no final agreement had been reached. As a matter
of fact the Union had not submitted all its proposals by that time. The midwestern
regional director of the Union testified that its relations with the Respondent at this
plant had been satisfactory in the years prior to the time that one F. J Schweitzer
became the Louisville plant's present manager early in 1962. Obviously this testi-
mony sought to imply that with Mr. Schweitzer's advent relations with the Union
deteriorated. The record, however, suggests only that from time to time there were
the usual run of grievances most of which either were settled or withdrawn. The
primary element of this case, the discharge of the Union's chief steward, Joseph E.
Sweet, seems to have precipitated this case before the National Labor Relations
Board.
13. The arbitration provision of the contract and the question whether the Board
should dispose of the issues, relegate the parties to the arbitration procedure, or
withhold action pending arbitration
The complaint nowhere suggests that the contract between the Respondent and
the Union has in it a grievance procedure providing for arbitration. Similarly, there
is nothing in the answer to suggest this. The Respondent failed to plead, either as a
complete or partial defense, that the contract provides for arbitration and that the
Board should withhold or suspend consideration of the matters in issue.
Nevertheless, the General Counsel sought to anticipate a possible defense, not
pleaded, grounded on the arbitration procedure set out in the contract Over
Respondent's objection, and although this anticipation had been called to his atten-
tion, the General Counsel offered and made part of the record. both as evidence
206-446-6G vol. 154-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received and in the nature of an offer of proof, evidence that the arbitration proce-
dure for which the contract provided had been frustrated and that it was the Respond-
ent's general policy, both at the Louisville plant, which is the only plant involved in
this proceeding, and at other plants, to engage in dilatory tactics for the purpose of
bypassing or avoiding the grievance procedures set up in the contract. Objections by
Respondent to the introduction of evidence of practices at other plants were sustained
and the evidence excluded. In this connection, it may be observed that the General
Counsel sought to introduce this evidence without laying a foundation that there is
central control of the Louisville plant's labor relations policies by Respondent's home
office. The evidence shows quite clearly that this plant's labor relations policy and
its relations with the Union are not governed or controlled by the Respondent's home
office. Moreover, only recently, in Huttig Sash and Door Company, 151 NLRB 470,
the Board adopted the findings and conclusion of the Trial Examiner in that case that
the plant manager of one of Respondent's plants, there the Charlotte plant, was the
general agent of Respondent with plenary authority in that plant and that the home
office of the Company was chargeable only with "limited participation" in negotia-
tions and, in substance, did not control them.
To the extent that evidence was offered and urged as justification for the Board
taking jurisdiction and deciding the issues, it is apparent that of late the arbitration
portion of the grievance procedure has broken down. There have been delays in
bringing particular grievances to binding arbitration. A grievance procedure which,
either by its terms or by its administration, does not lend itself to prompt settlement
of grievances is not conductive to the promotion and improvement of "industrial
and economic relationships between the Company and its employees," the objective
of the contract between the parties (General Counsel's Exhibit No. 3A). When a
grievance procedure breaks down and does not attain that objective the necessity for
exercise by the Board of its powers becomes apparent. Labor Management Rela-
tions Act, 1947, as amended, Section 10(a).
It may be debatable whether any consideration should be given to this problem
in view of the fact that the Respondent failed to raise the issue in its answer. Because
of my finding that the arbitration provision is riot working successfully it is not nec-
essary for me to decide whether the Respondent's failure so to plead constitutes a
waiver of whatever rights it may have thereunder.
As brought out by Respondent in its interrogation of Potter, the arbitration repre-
sentative generally chosen by the Union, delays in agreeing on the selection of impar-
tial arbitrators are not unusual. This however is not justification for saying that
the delays encountered by the parties here are no sufficient reason for the Board to
adjudicate. The arbitration provision in the contract, section 6 of article VIII, is
inherently ineffective. While it provides that the arbitration representatives of the
parties "shall meet within one (1) week of their appointment and shall select an
impartial, disinterested third person to act as Impartial Arbitrator," it fails to pro-
vide a time limit for his selection and it does not provide a device for breaking an
impasse in selection, such as, for example, designation by the Federal Mediation and
Conciliation Service, or by the American Arbitration Association, or by a judge of
a court or by some other recognized impartial group, agency, or organization. In
the absence of such a provision it is questionable whether there is, in fact, an ade-
quate arbitration provision binding on the parties hereto which would justify the
Board to withhold or suspend disposition of the issues in this proceeding. Even
this omission is, however, not fatal. Both under the laws of Kentucky and of the
United States, it could be corrected if the parties were so inclined. A procedure for
summary appointment of the third arbitrator, by motion, is available. Kentucky
Revised Statutes (1959) Vol. 3, Title XXXVII, chapter 417, section .015; Title 9,
Arbitration, U.S C. sections 5 and 6, Tenney Engineering, Inc. v. United Electrical
Workers, 207 F. 2d 450 (C.A. 3), (1953); Yale & Towne Mfg. Co. v. Local Lodge,
299 F. 2d 882 (C.A. 3), (1962); Local 205, etc. v. General Electric Company, 233
F. 2d 85, at 98, 99 (C A 1) ; and in the Sixth Circuit, HoOver Motor Express Co.,
Inc., v. Teamsters, Chauffeurs, etc , 217 F. 2d 49, at 52, 53. Local 19, Warehouse
etc. v. Buckeye Cotton Oil Co., 236 F. 2d 776, at 781. And see Textile Woikers
Union v. American Thread Co 113 F Supp. 137, at 142, (D.C. Mass, 1953) recently
quoted with approval in Deaton Truck Line, Inc v. Local Union 612, etc. (1962,
1963), 314 F. 2d 418, at 423, (C.A. 5).2 There is no reason to assume that section
301, Labor Management Relations Act, as seems to have been assumed by many
labor practitioners, has resulted in the unavailability of title 9, arbitration, U.S.C.
The recent decisions just cited are to the contrary. Failure to resort to the available
expeditious procedure justifies Board intervention.
8 A most recent case is Metal Products Workers v . Torrington Co. (U.S.D C. Conn ),
59 LRRM 2267, at 2270.
HUTTIG SASH & DOOR COMPANY, INC. 1571
C. The discharge of Joseph E. Sweet
Sweet was discharged on September 14, 1964. The General Counsel contends that
be was discharged because of his previous diligence in exercising his office of chief
union steward and his activity in that regard on September 14. Respondent con-
tends that the discharge was not because of Sweet's union activities but because of
his accumulated adverse work record and the profane manner in which he addressed
his supervisor on that day. The precise language used by Sweet is in dispute but
the substance of both Sweet's version and the Respondent's version is about the
same. Sweet admits that during the course of his conversation with Respondent's
supervisor, Fackler, about the alleged improper assignment of an employee to work
in the door department, he said to Fackler, "Well, a man is only as good as his word,
that just goes to show your-alls word ain't worth a s-." Fackler says that Sweet
said, "Well, that proves one thing, that neither one of you is no good. You're not
worth a s-." Norris corroborated Fackler. (The plural reference in both
quotations was as reference not only to Fackler but also to Schweitzer, the general
manager.)
I cannot be too emphatic in stating that, in my opinion, this is no way for any
employee to talk to any supervisor and that, if the remarks had been made in any
context other than the context in which they were made, I would have no hesitancy
in saying that Sweet should have been discharged summarily, and properly so. The
difficulty however is that this remark was made by Sweet during the course of his
complaint to Fackler about the alleged improper assignment of a man to the door
department. This makes necessary a more extended recital of the facts leading up
to the remark.
During his employment in Respondent's plant Sweet had been first a union steward
and later chief steward. In that capacity he had signed a number of grievances
alleged to have arisen under the contract between the parties. About one month
prior to his discharge he had participated actively in grievance talks concerning the
posting of a job vacancy. This job vacancy was posted at an hourly rate lower than
the rate which had been paid to an employee who had left the company. This griev-
ance is one of the matters involved in this proceeding and will be discussed at greater
length below. It is mentioned here primarily because it appears to have been quite
controversial and required Sweet's active participation in prosecuting it. During the
course of a meeting concerned primarily with it, a question was raised about the
assignment of one Louie Cox to work in the door department. According to Sweet's
testimony (which was not always very precise) this was on about September 1, 1964.
The next week started with Monday, Labor Day, and on Friday, September 11, of
that week, Sweet again took up with Fackler the matter of Cox's assignment to work
in the door department.
After some discussion, an understanding was reached about Cox. Sweet's testi-
mony is unclear in that the understanding might have been either that Cox would
be taken off that job the first thing Monday morning or some time during that day.
Respondent's testimony is that Cox was working a job belonging to one Alexander
who was on a 5-day vacation. This 5-day vacation, because the previous Monday
had been Labor Day, ran over and included all of Monday, September 14. This may
be the reason for what possibly was an unfortunate misunderstanding between Sweet
and Fackler.
On the morning of September 14, at about 8 o'clock, Sweet observed that Cox
was still working in the door department. At about 9 o'clock, Sweet met with Fack-
ler and the argument started. It was during this argument that the remark quoted
above was made. It is clear and not disputed that Sweet made the remark while he
was acting as chief steward on the grievance involving the alleged improper assign-
ment of Cox. Almost immediately after the remark Fackler walked off. In about
one-half or three-quarters of an hour later he returned together with a subordinate
supervisor and discharged Sweet with a statement generally to the effect that his work
had been unsatisfactory and that he had addressed his superior with improper
language.
In support of its contention that Sweet's work had been unsatisfactory Respondent
offered a number of personnel record sheets showing that Sweet had been repri-
manded on several occasions for poor quality of work, infractions of company rules
and refusal to work overtime. The question to be decided is whether the discharge
action was taken because of a combination of the obscene language used toward
Fackler and the prior unsatisfactory work record or because of the Respondent's dis-
pleasure with him arising out of union activity.
Before deciding this, mention should be made of the climate in which the offensive
language was used and it never should be overlooked that the language was not used
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the course of or incidental to any work which Sweet was doing in his capacity as-
an employee. The remark was made in and during a grievance discussion and arose
out of and in the course of that discussion.
We are told by Respondent's attorney himself,
In other words, Your Honor, our position is this, that these parties are not
negotiating a grievance or contract in an ivy-clad tower instead of down where-
people say harsh things to each other.
Moreover, in this same plant, the subordinate supervisor, Norris, admits that he
"used to curse a lot when" he worked in the shop. He also had been a shop steward.
Just what he had said is in dispute. It appears, however, that even though such curs-
ing as he might have done had been associated directly with work he was doing as
a company employee, he was not discharged but actually, at a later time, had been
promoted.
After careful consideration, I am persuaded that, however distasteful a view I may
have of the language used by Sweet, the language itself should not per se be regarded
as justification for the discharge. It was not used as an isolated insult to a super-
visor or in any argument involving work for which Sweet was being paid by the
Respondent. I would go even further and emphasize this by saying that if the lan-
guage had been used in any context unrelated to grievance and had been considered
together with Sweet's prior record, the discharge would have been justified.
The fact is, however, that Sweet was engaged in a heated argument with Fackler
(which had started some days earlier) about the alleged improper assignment of Cox
to the door department. He was processing a grievance at that time. The remark
was made during, and in the course of, the processing of the grievance. The dis-
charge came quickly after that. I can conclude only that the discharge was because
of the manner in which he had conducted the grievance controversy in his capacity
as chief stewaid and not because of his cumulative unsatisfactory work record.
The iemark was not made in an "ivy clad tower" but while "negotiating a grievance
where people say harsh things to each other." Sweet was just telling Fackler
that he could not rely on management's promise to remedy a situation in dispute.
J. B. Gued;i, Sr., et al., d/b/a Northside Electric Company, 151 NLRB 34, on which
Respondent relies is factually different from this case. In coming to this conclusion,
I do not overlook the fact that Sweet's testimony to the effect that he had never
been cited for unsatisfactory work was disci edited by the actual records of the Com-
pany. His lack of credibility in this respect does not detract from the almost undis-
puted details of the events leading up to and resulting in his discharge. The decisive
factors in his discharge were primarily his vigorous processing of the grievance and
what he said during the last argument about it.
Sweet's discharge under these circumstances was not only a discharge for engaging
in union activity but also an interference with Sweet in his conduct as a representa-
tive, bargaining collectively, on behalf of Respondent's employees.
D The alleged remarks warning employees not to engage in union activities, dis-
couraging them from engaging in union activities , and threatening them for activi-
ties in behalf of or in the performance of duties for the Union
Sweet testified that on a number of occasions when he submitted grievances to the
Company, he was told by Fackler that Schweitzer, would be displeased with him
for filing grievances . He testified also that Schweitzer, after reprimanding him for
smoking in the restroom, said he would be fired "just because he was chief steward."
On cross-examination Sweet was forced to admit that the voicing of displeasure about
the filing of grievances, even if it did occur, occurred only once. He was adamant
and insistent that Schweitzer told him he would be fired because he was chief steward
and not that he would be fired if he was caught doing something wrong "even though"
he was chief steward. [Emphasis supplied.]
Another employee, Melvin Wilson, testified that in the latter part of October 1964,
when the question of whether Wilson would write up a grievance against the Com-
1 _in,, was discussed with Fackler, Fackler said, "Go ahead and file a grievance, I got
r d c ' one man for that." On cross-examination, Melvin Wilson agreed that this
d session with Fackler had resulted in Wilson's becoming "upset." But he denies
"cussing Fackler." Melvin's brother, Kenneth Wilson, also testified. He corrobo-
rated his brother 's version about Fackler's alleged iemark about letting a man go
for filing a grievance. Although he denied that his brother used any "cuss words," it
appears from his testimony that he overheard only the tail end of the argument.
Fackler expressly denied that he ever had told any employees, including Sweet,
that the Company was dissatisfied with the filing of grievances. He denied also that
he had told Melvin Wilson that the Company had gotten rid of one man (Sweet) for
HUTTIG SASH & DOOR COMPANY, INC. 1573
:filing grievances. His version of that conversation is to the effect that Wilson had
used abusive language and that he reminded Wilson that the Company had fired
"Sweet because Sweet had used such language, conduct similar to the alleged conduct
in which Wilson had engaged.
First, as to the alleged remarks about the Company's dissatisfaction with the filing
of grievances: After my observation of all the witnesses, and considering the general
nature of the words in the testimony, I am unable to make a finding of the utterance
of actual words which can be interpreted as supporting a conclusion that the Company
was warning shop stewards against the filing of grievances or threatening them with
some sort of disciplinary action if they did. Then, bearing in mind that the Respond-
ent was at that very time engaged in discussions about the grievance arising out of
Sweet's discharge, I am unable to credit testimony that its official said something to
Melvin Wilson which would provide him, another shop steward, with evidence cor-
roborating the contention that it had fired his predecessor for filing a grievance It
is more likely and more credible, as contended by Fackler, that he had told Wilson
that the Company had fired Sweet because of the language used by him. This is sup-
ported both by the believable testimony that Wilson had used abusive language and
by the fact that it provided Fackler with an opportunity to emphasize the Company's
defense of the firing of Sweet-the use of improper language.
Schweitzer likewise denies that he ever had told any employee (which would
include Fackler) that he did not like to have grievances filed. He denies also that he
ever told Sweet or any other employee that he would be discharged for filing griev-
ances. He denies also that Sweet's position as a union steward had any bearing at
all on the decision to discharge him.
I had the opportunity to observe Schweitzer quite closely, both while he was sit-
ting at the counsel table and during the time he testified. I credit his testimony that
he did not communicate to anybody dissatisfaction with the filing of grievances in a
manner which could be interpreted as interfering with the rights of employees to file
them. I am definitely unable to believe that Schweitzer could have been either so
naive or so stupid as to tell a chief steward, during the course of an argument about
that chief steward's infraction of a company rule, that he would fire him just because
he was chief steward. It is more likely, if any remark about firing was made, the
remark would have been "even though he was chief steward" [emphasis supplied]
but there is no necessity for my making a finding in this respect because I am not
convinced that Schweitzer made the remarks attributed to him.
For these reasons it is my conclusion that subparagraph (i) of paragraphs (a) and
(b), both in part 5 of the complaint, are not supported by a preponderance of the
credible evidence and ought to be dismissed.
E. The removal of a piece of literature fiom the union bulletin board
In the complaint it is alleged that "On or about October 5, 1964, in physically
removing union literature from the union bulletin board, and questioning an employee
in regards [sic] to who was responsible for the posting of the said literature," the
employer violated Section 7 of the Act. In his brief the General Counsel particu-
larizes this charge by asserting that this conduct "constitutes 8(a)(1) conduct."
The charge is discussed separately here because it does not involve remarks such as
those considered in part VI of this Decision.
Schweitzer, the plant manager, did in fact remove a newspaper clipping which had
been posted on the union bulletin board. He did in fact talk to one Brown, a union
steward, about it He did in fact ask Brown if he, Brown, had placed this clipping
,on the bulletin board. He did in fact say that he "did not feel that this type of litera-
ture should be on" the bulletin board. The literature removed from the Board was
a clipping from the Union's newspaper, which all members received It showed an
employee (of another company) receiving a backpay check for $900 following a
Board ruling that he had been discharged for union activity. The local involved
was not the local which represents the employees in Respondent's plant but it was a
part of the same Union. General Counsel's Exhibit 2. Brown was a union steward
at the time and he worked in the same room where the bulletin board had been
erected, perhaps 20, 30, or 40 feet from it. He did not know who had placed the
clipping on the board.
The contract does not make specific provision for a union bulletin board but, in
subdivision (g) of article XIII thereof, the following appears:
The Company shall keep a seniority roster which shall be conspicuously posted
at all times on the Union Bulletin Board, which the Company agrees to provide
and locate at a reasonable place.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the hearing a question arose as to whether this provision was so ambiguous as,
to justify oral testimony as to its interpretation. Over Respondent's objection, to
which exception was duly taken, I ruled as follows:
TRIAL EXAMINER: It's my interpretation that the words in sub-division (g),.
Article XIII, of the contract- "The Company shall keep a seniority roster which
shall be conspicuously posted at all times on the Union bulletin board which the
Company agrees to provide and locate at a reasonable place." is an agreement
on the part of the Company that the Union shall be entitled to maintain and
post a bulletin board at a place which shall be subject to mutual agreement
which under the facts of this case appears to have been done already, in other
words, that there was mutual agreement as to a place, and since the board is
denominated in the contract as the "Union bulletin board," I interpret this to
mean special property of the Union under agreement and license of the Com-
pany for it to use for the information of employees and the transmission of such
matters to the employees while members of the Union as the Union may deem
appropriate and necessary.
I would, however, say that this interpretation which I have placed on the
contract does not mean that the Union is given an absolute license to put any-
thing at all on the bulletin board but that within the realm and boundaries of
free speech and legitimate Union activities, whatever it may put on that bulletin
board must be regarded as being impliedly licensed under this provision of the
contract.
I would further hold, and this, of course, does not determine the issue in this
case at all, I'm only talking about the interpretation of the clause, I would fur-
ther hold that if during the course of time, the Employer at anytime became
dissatisfied or objected to any material that might have been placed on the bul-
letin board, that that objection would come within the grievance provisions of
the contract.
This is my ruling.
I have given this ruling additional consideration and adhere to it.
It was testified also, without objection and without contradiction, that on a prior
occasion Schweitzer had removed materials from the bulletin board and nothing ever
was said to him about it.
While my ruling above quoted, ends with the observation that any objection which
the employer might have to something posted on the bulletin board "would come
within the grievance provisions of the contract," I have examined the contract, Gen-
eral Counsel's Exhibit 3(a), very carefully. I find that, while article VIII, the griev-
ance and arbitration provision of the contract, is about three legal size pages in
double space typewriting, it carefully sets forth the procedure which is to be taken
by the employees and the Union in the event of a grievance but it sets forth no pro-
cedure to be followed in the event that the employer has a grievance.
The bulletin board was near a water fountain, accessible to`visitors, and the litera-
ture appeared to be intended to haze the employer who at that time was confronted
with the Sweet discharge. The employer's conduct, under these circumstances, in
removing the newspaper clipping and going directly to the nearest union steward and
talking to him about it, in the absence of a delineation in the contract of a particular
procedure to be followed by the employer, does not seem to be unreasonable.
Moreover, this particular interrogation of the union steward, an official of the Union,
not an ordinary employee, would seem to me to be not that type of interference con-
templated by Section 8(a) of the Act which might result in a deprivation of the
right of employees "to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection," contemplated by Section 7. At
best it was an inquiry addressed to an official of the Union which may be interpreted
as having been intended to ascertain whether the Union itself, by some properly
authorized person, had posted this clipping on its bulletin board. In view of the
negative answers given by the union steward, at least until it became clear that the
Union itself had posted the clipping, Schweitzer should not be regarded as having
engaged in 8 (a)( I) conduct. At worst, all that this appears to have been was an
effort to ascertain the validity of the posting. Moreover, similar prior conduct on
the pait of Schweitzer seems to have been an accepted practice.
Finally there is a serious question whethei the General Counsel actually made a
prinia facie case for the consideration of this charge. It might be held, as a matter of
law, that an essential element of the case was the proof, at least initially, that the
Union or one of its duly authorized officials had placed the clipping on its bulletin
board. Only recently we have been made aware of the fact that notices may appear
HUTTIG SASH & DOOR COMPANY, INC. 1575
on a bulletin board without proper authorization and for improper motives. N.L.R B.
v. Southern Materials Co., Inc., 345 F. 2d 240 (C.A. 4). And see Union Carbide
Corp., 44 LA 554.
Under all the circumstances of this situation I am unable to find that what
Schweitzer did with respect to the clipping and his simultaneous interrogation of
Union Steward Brown about it was a violation of Section 7 or Section 8(a)(1) of
the Act. This charge should be dismissed.
F. The alleged unilateral change in rate of pay and work assignment
1. Rate of pay
This element of the complaint arises because one George Heil, whose job had been
classified as "leadman-glazing," left the Company. His pay had been $2.18 per hour.
At the time he left he was the only employee in the glazed door department His
work had been glazing doors and cutting lights. After he left, no employees remained
in that department. At some prior time, three men had been there. It would seem,
therefore, that Heil's classification as leadman-glazing and his rate of pay were
personal to him. At the time he left he, in fact, led no one. The necessity for
glazing and cutting virtually had been eliminated because the Company had found
it uneconomical to glaze and cut lights for doors It had changed its operation and
purchased pre-glazed doors instead. During the time prior to the change of opera-
tion, when doors were glazed and cut in the plant, Heil led other employees and the
man who had assisted him and held the job next to him had been paid $1.99 an hour.
In August 1964, after Heil had left, the union raised the question of the posting of
his job. Following the writing of a grievance (General Counsel's Exhibit No. 18),
a meeting was held. Top management officials and employee representatives, includ-
ing Sweet, participated. At this meeting the Company's decision, in reliance on
management prerogatives in the contract, to change the operation in the glazed door
department was squarely asserted. It was pointed out that a leadman-glazing was
required no longer and that the rate of $1.99 for an available job was being fixed
because that had been the rate paid Heil's assistant when three men had been in the
department. The meeting closed with the understanding that the men would talk it
over among themselves. No new meeting was requested after that. The job at $1.99
an hour, was posted on September 8, 1964 (Respondents Exhibit No. 1). No griev-
ance was filed by the Union or on its behalf with respect to this posting. There is
evidence that the Union's regional director tried to arrange a further meeting prior
to the posting General Counsel's Exhibit No 7. No such meeting was held. It is
not clear whether he and Schweitzer, the plant manager, talked about this before or
after the posting but Schweitzer says he took the position that the time for filing a
grievance had expired.
Article X11I, subdivision (f) of the contract, which is concerned with vacancies
and new jobs, is silent as to the time when "notification of the vacancy or new job,
and rate thereof, shall be posted on the bulletin board." That paragraph specifies
only the period of time during which the job is to be posted to provide employees an
opportunity to apply for it. Respondent relied on this portion of the contract and its
omission as justification for not having posted the job immediately after Heil left. In
any event, following the grievance meeting, the Company did post Respondent's
Exhibit No. 1, the notice of an open job at $1 99 an hour.
The job rate of $1.99 per hour was fixed not only because it was a new job in the
department and no new leadman was required for the work there but also because,
when Heil had been leadman and others had been employed with him in the depart-
ment about two years earlier, his assistant had been paid $1.99 per hour.
Did the Company violate Section 8(a) (5) of the Act by "unilaterally changing the
rate of pay for a particular job and failing to post a job as required in the contract?"
The General Counsel contends that it did.
As noted before, the contract does not specifically set a time limit for posting.
However, even if the ambiguity or omission should be resolved in favor of the Union,
it appears that the alleged grievance that there was a failure to post had been settled
and the Company did post. It remains therefore to be decided whether the Company's
action in posting the job at $1.99 an hour was an unilateral action on its part in
violation of Section 8(a)(5). There is no doubt, of course, that where employees
are represented by a recognized or certified bargaining agent, job changes and job
rates are matters for collective bargaining with the bargaining agent. Was the Com-
pany required, in this particular case, to bargain collectively with the Union about
the job in the glazed door department and the pay for it after Heil had quit in view
of the change of work in that department?
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union and the Company were operating under a collective-bargaining agree-
ment concluded as of February 15, 1961, and in effect, with changes not pertinent
here, at the time of the happening of the events which are our concern at this time.
Article V of that agreement was as follows:
MANAGEMENT RIGHTS AND CONTROL
It is agreed that the management of the Company's plant and business, and
the direction of the working forces, are vested exclusively in the Company; pro-
vided, however, that none of the powers so recognized and reserved to the Com-
pany shall be used for the purpose of discrimination because of an employee's
membership in the Union.
It is agreed that the inherent powers and responsibilities of management that
are hereby reserved exclusively to the Company include, without being limited to:
The management of the plant and business; the direction of the working forces;
the right to suspend, discipline, or discharge for cause, the right to hire, transfer,
promote or demote with due regard as to seniority and ability; and to relieve or
terminate employees from duty because of lack of work or for other legitimate
reasons; the right to maintain quality and efficient operation and to prescribe and
require employees to observe reasonable rules and regulations; the right to deter-
mine the products to be manufactured, purchased, handled, or sold and the
means, methods, processes and schedules thereof; the right to introduce new or
improved methods or facilities and to extend, limit or curtail its operations
when it deems it advisable to do so; and all other perogatives (sic) and respon-
sibilities normally inherent in management.
This is a broad management clause contained in an agreement which was nego-
tiated after many years of Company and Union relationship. The Union had agreed
that there was served to the Company, among other things, "The management of the
plant and business; ... the right to determine the products to be manufactured, pur-
chased, handled, or sold and the means, methods, processes and schedules, thereof; ...
the right to introduce new or improved . . . facilities ... and to curtail its opera-
tions . . . and all other prerogatives and responsibilities normally inherent in
management."
It seems to me that what the Respondent did here was fully authorized under its
contract with the Union. If the Union had wanted to retain the right to have the
Company bargain collectively with it about changes in operations and the job rates
for employees in the changed operations, it should not have relinquished this right to
the Employer by agreeing to the broad management provisions just quoted.
Here we have a company that had maintained a door department in which doors
were processed in an operation requiring both carpentry to cut out or make lattices
and glazing to glaze the lattice work in the doors. The Company found it uneconomi-
cal to maintain such a department which had necessitated the employment of a lead-
man in glazing and two or three additional employees It decided to eliminate this
operation which required both carpentry and glazing skills by purchasing precut and
preglazed doors. After this decision the department went through a period of attri-
tion at the end of which only Heil, the leadman-glazing, remained. He was continued
at his personalized rate of $2.18 per hour.
When Heil quit on about August 8, 1964, his job was no longer in existence. The
Company needed a man in the department but only on a intermittent basis and with-
out all the skills and experience which Heil had possessed. While it had been
working men there intermittently, after the Union complained it settled the complaint
by agreeing to create and post a job there. Its fixing of the rate at $1.99 an hour does
not seem to have been an arbitrary act on its part. This was the same pay which
Heil's assistant, when he had an assistant, had received. It has no full-time employee
there now.
In support of his contention that what the Company did was a violation of Section
8(a)(5) of the Act the General Counsel cites Great Western Bioadcasling Corpora-
tion, d/b/a KXTY, 139 NLRB 93, and Downtown Bakery Corp, 139 NLRB 1352.
The facts in these cases clearly are different from the facts in our case.
It is my conclusion that when the Respondent, by reason of its right to change an
operation within its plant, eliminated the job of leadman-glazing which was followed
a long time later by the voluntary resignation of the man who had had that job, the
Company had the right, under its contract, to decide, without consulting with the
Union, to create the new job. Subdivision (f) of article 13 of the contract, even if it
does not explicitly, implicitly does vest in the Comriany the right not only to create
the new job but also to specify the rate therefor. The pertinent parts of subdivision
(f) are: "When a vacancy occurs or a new job subject to seniority is created ...
(a) notification of the vacancy or new job, and rate thereof, shall be posted on the
bulletin board ...." The portions italicized together with the broad manage-
HUTTIG SASH & DOOR COMPANY , INC. 1 577
ment clause , in my opinion , clearly vest in the Company the rights not only to create
new jobs but also to set their rates . Consequently I find no violation here of Section
8(a) (5) of the Act.
The other part of this portion of the General Counsel's case as argued in his brief
after trial is that "Respondent worked Cox in the prehung door department for well
over 2 weeks at a lower rate of pay than the rate of pay for the warehouse , and with-
out posting the job as required in the contract ." This appears to be something different
in the nature of job and rate of pay than the job and rate discussed at length in section
F, 1. However , during the trial we were assured that the allegations of the complaint
with respect to unilateral change of pay and work assignment involved only the Heil
job discussed in section F, 1 preceding . After the General Counsel had objected to
a question on cross as to "whether the Company changed the rate of pay of any
employee in the door department ," there was a colloquy seeking to clarify the com-
plaint. In response to my question , the General Counsel said , "Unilaterally changed
the rate of pay for that particular job."
Heil, it should be recalled , had been in the "door glazing department." Cox, on
the other hand, had been working in the "prehung door department ." The claim was
that he had been working there beyond the time permitted by the contract . This was
based on an assertion that there was a vacant job in that department which Sweet
contended should have been posted within three days. There is no evidence of a job
vacancy other than the vacancy in the glazed door department . It, however, there
was a vacancy other than that involved in the Heil situation , the contract fails to pro-
vide any specific number of days within which, after creation of the vacancy , the job
should be posted.
Disregarding , nevertheless , the question as to the time within which a vacancy had
to be posted , this portion of the charge is addressed to a claimed vacancy in the "pre-
hung" door department . There does not, however , seem to have been a vacancy
here. (There is an overall "door department " which has within it the "glazed" door
department and the prehung door department . Cox was working temporarily in the
"prehung" department while one Alexander was on vacation and Sweet admitted that
the occurrence of vacations does not compel new hirings . Although Cox worked
there from time to time after Sweet was discharged , this was only intermittently and
the nature of the assignments becomes confused because, in his questioning on this
element, the General Counsel reverted back to the Heil job which , as we have seen,
had been different from the job in the "prehung" door department.
It is my finding and conclusion that the credible testimony with respect to the Cox
situation does not support , but on the contrary , refutes the charge that the utilization
by the respondent of Cox's services in the prehung door department was a violation
as alleged in either paragraph 9 or 10 of the complaint.
G. The pretrial preparation alleged to be in violation of Sections 7 and 8(a)(1)
This section of the Decision is concerned with what is , in effect, an application by
the General Counsel for reconsideration by me of my summary dismissal of a charge
which came into the proceeding unexpectedly following a series of questions pro-
pounded during the hearing.
Following this series of questions , which brought out the fact that counsel for the
Respondent had interrogated certain employees during the course of his preparation
for trial , the General Counsel moved for amendment of the complaint to include a
charge that the Respondent "interfered with, restrained and coerced employees in the
exercise of their rights guaranteed by the Act by calling them into the plant manager's
office , questioning them as to whether they had been subpenaed , the purpose for which
they had been subpenaed and exactly what they had intended or were to testify to."
There was prompt opposition to this proposed amendment which I stated that I was
inclined to allow because of my feeling that there ought to be a full litigation of all
grievances . Respondent 's attorney then promptly applied for a continuance of 2
weeks, pointing out that the requirements of the State of West Virginia , of the bar of
which he was a member, prohibited him from prosecuting a case in which he himself
might be called to testify as a witness A requirement such as this is familiar, of
course, to all lawyers because it is simply a repetition of restatement of canon 19 of
the Canons of Professional Ethics of the American Bar Association . The problem is
not new to the National Labor Relations Board. It became the subject for strong
criticism of a respondent 's attorney in Vanderbilt Products, Inc. v. N L.R B 297
F. 2d 833 (C.A. 2).
During the discussion , both before and after this representation and request on the
part of the Respondent 's attorney , I pointed out to the General Counsel that the
amendment and the facts relating thereto presented a mixed question of both law and
fact and, having in mind the possibility that the case might have to be recessed for a
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of time and require additional travel and expense to litigate the issue, I
inquired of the General Counsel whether, under all the circumstances, he still pressed
the amendment. On his affirmative answer, and his further statement that he had
presented all his evidence in support of this charge, although I had allowed the
amendment, I summarily dismissed the charge, both on the facts and the law, with
leave to the General Counsel to bring the matter up again in the form of an applica-
tion for reconsideration, which he does at this time.
The General Counsel elected not only to reserve this right but he filed as well an
application to the Board for special permission to appeal the Trial Examiner's ruling
(telegram of February 11, 1965). The Board denied the application for special
permission to appeal "without prejudice to General Counsel's renewal of his position
in any exceptions he may file." (Telegram of March 25, 1965.)
In his application for special permission to appeal and in his present brief before
me, the General Counsel asserts that I have no power to make a summary decision
such as was made, because I am not permitted to make a disposition "without issuance
of a Decision containing findings of fact, conclusions of law" and "the reasons therefor
as required by the mandate of Section 102.45(a) and (b) of the Board's Rules and
Regulations." I find nothing in Section 102.45 which prohibits a Trial Examiner
from making a disposition of a charge during the course of a hearing. Nor is there
anything in any other provision of the rules which may be so construed. If the rules
were so construed, the Board, in effect, would be abolishing the ancient right of coun-
sel during a hearing to make the traditional motions to dismiss. I find it difficult to
believe that the Board would want to do that, certainly not by indirection or by
implication.
In dismissing this particular amendment, I made clear that I was dismissing it both
upon the law and upon the facts, and because I was of the opinion under all the facts
and circumstances it was inadvisable to bring the parties, counsel, witnesses and me
back to the hearing room at a later time to litigate further this single matter
During the course of the hearing, it was brought out that the particular interroga-
tions which precipitated the issue involved pretrial preparation just before the hearing
day. The questions were addressed to, and the statements were made to three
employees, Kenneth Wilson, Melvin Wilson, and Brown. The latter two were union
stewards.
The hearing was set for and began on February 10, 1965. On February 9, the day
before its commencement, a supervisory employee, Norris, told Melvin Wilson that
Schweitzer, plant manager, wished to see him in his office. There, Mr. Holroyd, the
Respondent's attorney, asked him whether he had heard any aiguments between
Schweitzer and Sweet, or between Norris and Sweet, or between Fackler and Sweet.
Melvin answered "No" to the first two questions but to the third responded by relating
the profane remark discussed elsewhere in this Decision, and volunteered the addi-
tional statement that Fackler had said he was "going to get the man and bring him
back and talk to him again And Sweet told him to go right ahead and he'd tell him
the same thing." Except that Holroyd asked him whether he had been subpenaed for
that purpose, 1lolroyd asked him no further questions. Respondent's attorney duly
objected to this entire line of questions About a half to three-quarters of an hour
later he was called back into the office and was asked if he was a union steward, to
which he replied in the affirmative. He was also asked if he had had an argument
with Fackler and he disclosed the substance of the argument. He was asked also
what kind of a worker Sweet was. On cross-examination Wilson, who we must
remember was a union steward, testified that no threats had been made to him, that
he was not asked to testify to anything other than the truth, that no effort was made
to slant his testimony.
Melvin's brother, Kenneth Wilson, was called next. He testified also that he had
been called into Schweitzer's office. There Holroyd asked him whether he had heard
a conversation between Fackler and Sweet, to which he answered no. Holroyd then
asked him whether he worked with Sweet, to which he again answered no but that he
worked "around ... and about him, but not directly with him." He was then asked
what kind of a worker he thought Sweet was, to which he had replied indecisively. He
was asked whether he had heard Fackler or Schweitzer say anything had about
Sweet's work and he answered in the negative. He was then asked if he had been
subpenaed and the subject matter about which he was to testify, and he answered that
he had been subpenaed to testify about a grievance argument between Fackler and
his brother. On cross-examination he admitted that until asked he had not informed
the Company that he would have to be off from work in order to testify. He admitted
that no threats had been made to him, that no promises had been made to him, that
no effort had been made to change his testimony by anybody and that nobody "in
any way, shape or form indicate[d] to [him] in any way that [he] should testify other
than" as he had testified at the hearing.
HUTTIG SASH & DOOR COMPANY, INC. 1579
The next employee interrogated was Brown, also a union steward. He testified
that on the Monday before the hearing he was asked by Schweitzer if he had been
subpenaed for the hearing and although at first he said he did not know he finally told
Schweitzer he had been subpenaed. On the following day he was called to Schweit-
zer's office, after the two Wilson brothers had been called in, and that Holroyd asked
him some questions there. He was asked if he knew Sweet, to which he answered
in the affirmative; if he had worked with him, to which he answered in the negative,
and shortly thereafter he said he "didn't want to answer any more questions because
'[he] was in there by [himself] and the three of them were in there, so [he] didn't think
[he] should answer any more questions, and [he] didn't." This was followed by a
remark by Respondent's attorney that "there wasn't any use to hide anything because
he was going to cross-question [him] the next day." Brown's retort to this was that he
was sorry and that he did not care to answer any more questions. On cross-examination
Brown testified that neither the attorney nor Schweitzer nor Fackler tried in any way
to get him to change his testimony; that they did not say anything to him "about lying
about what" he had seen or heard, that they had not tried to put any words in his
mouth or tried to get him to testify in the Company's favor. He was not asked about
the bulletin board newspaper clipping incident and did not tell them anything about it.
I had the opportunity to observe these witnesses closely. Two of them were union
stewards. It was quite apparent not only by the manner in which they testified and
comported themselves during the interrogation and also from the general impression
which they made on me during the giving of their testimony that not only had they
been subjected to no interference, threats, or coercion, but also that it was wholly
unlikely that they could be. I am convinced also that there was no effort on the part
of the Respondent or its attorney to interfere in any way with the Board's processes
or to attempt in any way to prejudice the hearing of this case. There was nothing
more than an effort, first on the part of management to ascertain what attendance or
absenteeism could be expected on the hearing day, and second, a rather mild and
lawyer-like effort on the part of Respondent's attorney to prepare for the hearing of
this case and to determine whether he would call them as his witnesses. While not on
all fours with this case, the facts disclosed in the opinion of the Board in Montgomery
Ward & Co., Incorporated, 146 NLRB 76, at 79-80, are closer to the facts in this
case than to the facts found in cases cited by the General Counsel. Here, the Respond-
ent and its attorney, even if we give the most liberal interpretation to what the General
Counsel produced in support of the charge (as is the rule on demurrer or considera-
tion of a prima facie case), did not go beyond what in fairness ought to be regarded
as appropriate preparation for trial. This right of a respondent most recently was
summarized by the Court of Appeals for the Sixth Circuit in Swprenant Manufactur-
ing Co. v. N.L.R.B., 341 F. 2d 756:
There is merit in the contention that an employer should be privileged to
interview employees for the purpose of discovering facts within the limits of the
issues raised by a complaint, where the employer or its counsel does so for the
purpose of preparing its case for trial and the questioning is restricted to that
extent. We think that this privilege is well recognized. Joy Silk Mills v.
N L.R B., 185 F. 2d 732, 743, 27 LRRM 2012, C.A.D.C.; cert. denied, 341 U.S.
914, 27 LRRM 2633; N.L.R.B. v. Katz Drug Co., 207 F. 2d 168, 32 LRRM 2680,
C.A. 8th; Texas Industries, Inc. v. N.L.R.B., supra, 336 F. 2d 128, 133, 57
LRRM 2046, C.A. 5th.
I am not persuaded, even after reconsideration, that I ought to change my prior
-dismissal of this particular amendment and I adhere to my ruling.
I have made the affirmative finding and conclusion that Sweet was discharged
because of his union activity and his zealous processing of union grievances. No
circumstances are found which could cause this conduct to lose its protected character.
It therefore follows that Respondent has discriminated against him and by reason of
that discrimination, against its other employees who are members of the Union, in
violation of Section 8 (a) (1) and (3) of the Act, and that by the same conduct it also
has interfered with, restrained, and coerced its employees in violation of Section
8(a) (1) of the Act, and I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth above, occurring in connection with its
operations described 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.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and (3) of the Act, I recommend that it be directed to cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent has discriminatorily discharged Joseph E. Sweet, I
recommend that Respondent be directed to offer him immediate and full reinstatement
to his former or a substantially equivalent position, and make him whole for any
loss of earnings and benefits he may have suffered thereby by restoring him to all
benefits from which he has been deprived and payment to him of a sum on money
equal to the amount of wages he would have earned from the date of his discharge
to the date of the offer of reinstatement, together with interest thereon at the rate of
6 percent per annum, and that the loss of pay and interest be computed in accordance
with the formulas and methods prescribed by the Board in F. W. Woolworth Co., 9Q
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to which the parties
hereto are expressly referred.
The unfair labor practice committed by Respondent strikes at rights guaranteed
employees by Section 7 of the Act. The inference is warranted that Respondent
maintains an attitude of opposition to the purposes of the Act with respect to the
protection of employees in general. It is, accordingly, recommended that Respondent
be directed to cease and desist from infringing in any manner upon the rights guaran-
teed in Section 7 of the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in this,
proceeding, I make the following conclusions of law:
1. Huttig Sash & Door Company, Inc. is, and at all times material herein has been,
an employer within the meaning of Section 2(2) of the Act.
2. Local 236, United Furniture Workers of America, AFL-CIO, is, and at all
times material herein has been, a labor organization within the meaning of Section
2(5) of the Act.
3 By discharging Joseph E. Sweet, as found above, Respondent has engaged in an
unfair labor practice within the meaning of Section 8 (a) (1) and (3) of the Act.
4 By interfering with and restraining him and through such interference inter-
fering with and restraining its employees in the exercise of the rights guaranteed to,
them by Section 7 of the Act, as found above, Respondent has engaged in an unfair
labor practice within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act 3
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Respondent Huttig Sash &
Door Company, Inc., its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employees for engaging in protected concerted activity or
in any other like or related manner discriminating against any individual in regard
to his hire or tenure of employment or any term or condition of employment, except
as authorized in Section 8 (a) (3) of the Act.
(b) In any other manner interfering with or restraining employees in the exercise
of their right to self-organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collectively through activi-
ties for the purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Joseph E. Sweet immediate and full reinstatement to his former or
a substantially equivalent position without prejudice to his seniority or other rights
and privileges and make him whole for any loss or pay or benefits he may have suf-
fered by reason of the discrimination against him in the manner provided above in
the section entitled "The Remedy."
s Hay Department Stores v. N.L.R.B., 326 U.S. 376; Bethlehem Steel Company v.
N.L.R.B., 120 F. 2d 641.
HUTTIG SASH & DOOR COMPANY, INC. 1581
(b) Notify Joseph E. Sweet if presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application 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.
(c) Preserve and upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to an analysis
of the backpay due.
(d) Post, in conspicuous places, at its usual place of business, including all places
where notices to employees are customarily posted, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 9 of the National Labor Relations Board, after being signed by
Respondent, shall be posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in such conspicuous places. Reason-
able steps shall be taken by Respondent to assure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing, within 20 days from
the receipt by Respondent of a copy of this Decision, what steps Respondent has
taken to comply therewith.5
It is further recommended that unless on or before 20 days from the date of the
receipt of this Trial Examiner's Decision, Respondent notifies the Regional Director
that it will comply with the foregoing Recommendations, the National Labor Rela-
tions Board issue an Order requiring Respondent to take the action aforesaid.
* In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words, "a Decision
and Order".
In the event that this Recommended Order Is adopted by the Board, paragraph 2(e)
thereof shall be modified to read: "Notify said Regional Director, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply therewith "
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 National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge any employee for engaging in protected concerted
activity, or in any other like or related manner discriminate against any indi-
vidual in regard to his hire, tenure of employment or any term or condition of
employment except as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Joseph E. Sweet immediate and full reinstatement of his
former or a substantially equivalent position without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of earnings and
benefits he may have suffered as a result of the discrimination against him.
WE WILL NOT, in any other manner, interfere with or restrain our employees
in the exercise of their rights to self-organization to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, or 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 rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a)
(3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining members of the above-named or any other labor organization.
HUTTIG SASH & DOOR COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above -named employee if serving in the Armed Forces,
of the United States of his right to full reinstatement upon application 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.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 2023 Federal
Office Building , 550 Main Street , Cincinnati , Ohio, Telephone No. 381-2200.
Kern's Bakery, Inc. and Milk, Ice Cream Drivers and Dairy Em-
ployees Local Union #783, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America.
Case No. 9-CA-3299. September 24,1965
DECISION AND ORDER
On June 21, 1965, Trial Examiner Fannie M. Boyls issued her Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices, but, concluding that said
violations are adequately remedied under an outstanding Order
against the Respondent,' recommended that no remedial order be
issued in this case. The Trial Examiner further found that Respond-
ent had not engaged in certain other unfair labor practices alleged in
the complaint, and, accordingly, recommended that the complaint be
dismissed in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed exceptions and a sup-
porting brief, and Respondent filed a brief in support of the Trial
Examiner's Decision.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Members
Fanning, Brown, and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner 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 recom-
mendations of the Trial Examiner, as modified below.
In agreement with the Trial Examiner, and for the reasons stated
in her Decision, we find that Respondent violated Section 8(a) (1) of
the Act by promulgating and maintaining rules tending to inhibit
employees from soliciting union membership in working areas or else-
1 Kern's Bakery, Inc., 150 NLRB 998.
154 NLRB No. 131.