Lumber Dealers, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1957

119 N.L.R.B. 93 (N.L.R.B. 1957)

PREFABRICATORS, INC. 93
a majority of the valid votes cast, we find, in agreement with the
Regional Director, that no useful purpose would be served in opening
and counting the challenged ballots. Accordingly we shall not direct
that ally of the challenged ballots be opened and counted. However,
as the results of the election are inconclusive, we shall order a runoff
election.
[The Board ordered that a runoff election be held under the direc-
tion and supervision of the Regional Director for the Region in which
this case was heard among the employees in the unit found appro-
priate in the Board's original Decision.']
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Supplemental Decision and Order.
8 The eligibility date to be used in the runoff election shall be the same as that used in
the original election in accordance with Section 102.62 ( b) of the Board's Rules and
Regulations. See Fraser and Johnston Manufacturing Company, 106 NLRB 900. The
Petitioner's motion to change the eligibility date is therefore denied.
Prefabricators, Inc., a Division of Lumber Dealers, Inc. and
Donald W. Upchurch, Elbert B . Clift, John V. Richardone.
Cases Nos. 30-CA-458, 30-CA-465, and 30-CA-466. October 24,
1957
DECISION AND ORDER
On October 1, 1956, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record in
this case, and hereby adopts the findings of the Trial Examiner only
insofar as consistent with this Decision and Order.'
The Trial Examiner found that the Charging Parties were unlaw-
fully discharged on October 13, 1955, for engaging in a concerted
1 The Respondent also requested oral argument . The request is hereby denied as the
record , including the exceptions and brief, adequately presents the issues and the positions
of the parties.
2In setting forth the business of the Respondent , the Trial Examiner inadvertently
stated that the Respondent and its parent corporation shipped goods to destinations located
outside the State of California rather than Colorado , as indicated in the record. We
correct that finding accordingly.
119 NLRB No. 7.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request for a wage increase . We do not agree . We find that the
General Counsel has failed to sustain the burden of proving that these
employees were in fact discharged.
The undisputed evidence in the record may be summarized briefly
as follows : During the period in question, the Employer's employees
were represented by Teamsters Local Union No. 13 and were covered
by a collective-bargaining agreement containing a no-strike clause.
During the afternoon of October 13, 1955, Upchurch, Clift, and
Richardone, the Charging Parties, as well as Bland and Feldhauser,
all employed by the Respondent as glaziers, decided to seek a raise
as a group and appointed Upchurch as their spokesman. Upchurch
sought out O'Donnell, the shop superintendent, at his office, and on
finding that he was out, informed Chandler, a saw operator, that he
was asking for a raise and would probably quit if it was not granted.
On his return, O'Donnell was advised that Upchurch was looking for
him and went to the glazing shop. After being informed that Up-
church represented the glaziers and that they wanted a raise, O'Don-
nell told the glaziers he could not go any further with them and
requested Upchurch to come with him to the office of Heineck, the
Respondent's president. At Heineck's office, considerable discussion
ensued between Upchurch, Heineck, O'Donnell, and Bergosh, the Re-
spondent's vice president, ending after about 45 minutes 3 As Up-
church and O'Donnell left Heineck's office, Upchurch asked O'Donnell
if he and the other glaziers had been discharged. O'Donnell said he
did not know but would attempt to find out and telephone Upchurch.
Upchurch returned to the glazing shop and a short while later re-
ceived a call from O'Donnell telling him to report with the other
glaziers to the office of Duval, the personnel manager. At Duval's
office, in the presence of O'Donnell, Bergosh, Heineck, and Duval,
the glaziers had a further discussion with Pritchard, president of the
Respondent 's parent corporation and general manager of the Re-
spondent. At the end of the meeting, the glaziers accepted their termi-
nation checks, departed, and did not return to work for the
Respondent thereafter.
The Trial Examiner found that the glaziers had not voluntarily
quit, but were discharged, relying on the following considerations :
(1) On leaving Heineck 's office , Upchurch would not have asked
O'Donnell what his status was if he had quit; (2) Upchurch could
not have quit on behalf of the other four glaziers who were not pres-
ent at Heineck's office; (3) when the glaziers met Pritchard at Duval's
S The Respondent 's witnesses testified that at this meeting and the subsequent meeting
with Pritchard the contract , and particularly its no-strike clause , were discussed. Up-
church testified that there was no discussion of the contract at either meeting . Richardone
and Ciift, who were present only at the second meeting, differed as to whether it was men-
tioned at that time.
PREFABRICATORS , INC. 95
office, one or more of them told Pritchard that they had been dis-
charged; (4) when they inquired of Duval after receiving their checks
why they had not been given termination pay, she was either unable
to give them a reason or suggested that they were discharged for
insubordination, rather than stating that it was because they had quit;
and (5) before Pritchard spoke to the men and at a time when he had
been advised that the glaziers were about to quit or strike and were
causing unrest in the plant, he directed that their checks be made out.
In our opinion these considerations do not support a finding that
the glaziers were discharged. Thus, the first two considerations rest
on the assumption that the glaziers could only have quit, if at all, at
the meeting in Heineck's office and ignore the possibility that they
could have quit at the meeting with Pritchard, when all the glaziers
were present. As for (3), while Duval's response to the glaziers'
question concerning termination pay would be entitled to considerable
weight had the glaziers testified that she had discharged them, no
one attributed their alleged discharge to her and she was absent from
her office during a part of the meeting between Pritchard and the
glaziers at which the crucial events occurred. The Trial Examiner's
fourth consideration, the fact that during their meeting with Pritch-
ard at Duval's office the glaziers told Pritchard that they had been
fired, indicates at best that the glaziers entered Duval's office under
the belief that they had already been fired but is not proof that they
had, in fact, been fired. Finally, (5) assumes that in the face of re-
ports that the glaziers had threatened to quit or walk out if not given
an increase , Pritchard would only cause their checks to be made out i n
advance if he intended to discharge them and ignores the. possibility
that, believing the reports, he was preparing to deny their request and
pay them off if they adhered to their threat to walk out 4
Moreover, while the Trial Examiner made the specific finding that
the glaziers were discharged by Pritchard at Duval's office, the record
fails to establish when, by whom, or under what circumstances the
alleged discharges were made. Thus, the only evidence to the effect
that Pritchard discharged the glaziers is the testimony of Richardone
that Upchurch sometime during the meeting with Pritchard told
Pritchard that he, Pritchard, had discharged them. Yet, as the Trial
Examiner indicates, this testimony conflicts with that of Upchurch
and Clift, who both testified that Upchurch told Pritchard that
Heineck had already fired them, and the Trial Examiner clearly
credited Upchurch and Clift in this regard.' Rather than containing
* If the glaziers quit, the Respondent would be obligated to pay them off. If they were
engaging in a strike in violation of a no-strike clause, the Respondent would have been
entitled to terminate them under the terms of its contract and pay them off for that reason.
is This testimony does not support a finding, contrary to that of the Trial Examiner, that
Heineck discharged the glaziers at the end of the earlier meeting, as it conflicts with
Upchurch's testimony to the effect that he left the meeting at Ileineek's office in doubt as
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other evidence to clarify what was said at Duval's office, the record
instead contains concessions by virtually all witnesses that the meet-
ing at Duval's office became so heated and confused that they could
not recount all that was said there.
Having rejected the circumstances relied upon by the Trial Exam=
iner,. and, in the absence of any direct evidence to support his finding
that Pritchard discharged the glaziers at Duval's office, we further
observe that other circumstances surrounding this case serve only to
militate against a finding that the glaziers were discharged. Thus, it
is clear that due to a glass strike cutting off its glass supplies, the
Respondent had suffered a long interruption to its production prior
to the incidents herein, and that the Respondent was desirous of avoid-
ing rather than inviting further work stoppages. Also, there is no
dispute that Upchurch had indicated that if his request was not
granted, he intended to quit or walk out and take the other glaziers
with him. From these circumstances, it would appear more likely
that the Respondent, as its witnesses testified, attempted to persuade
the glaziers to return to work at their existing rate and that the
glaziers left on their own volition,' rather than that the Respondent
discharged them, necessitating the hiring and training of an entirely
new glazing line with concomitant delays in production. Accordingly,
we conclude that the General Counsel failed to sustain the burden of
proving that the Respondent discharged the Charging Parties, and
will dismiss the complaint in its entirety.'
[The Board dismissed the complaint.]
MEMBER MURDOCK, dissenting :
In my opinion, the evidence relied upon by the Trial Examiner is
more than sufficient, it is compelling, to support his finding that the
glaziers (Complainants herein) were discharged for concertedly seek-
ing a wage raise, a protected activity under the Act. As decided by
the Trial Examiner, the Respondent was therefore guilty of the unfair
labor practices alleged by the General Counsel and should be ordered
to reinstate these complainants with back pay. My colleagues, how-
to what the end effect of that meeting had been. Moreover , as indicated above, we do not
agree that this statement of Upchurch constitutes evidence of a discharge in any event.
Furthermore , as noted above , the Trial Examiner did not find Heineck had discharged
them. Rather he specifically found that Pritchard discharged them , apparently at the
time the employees were given, or picked up, their checks at the end of the meeting.
While we note that both Heineck and Bergosh testified that at the end of the meeting
at Duval's office, Pritchard gave the glaziers a choice of continuing to work at their exist-
ing rate of pay or of taking their checks and leaving , two of the glaziers testified in
apparent conflict with Heineck and Bergosh in this regard, and the Trial Examiner failed
to resolve the conflict . In view of our finding for other reasons that the General Counsel
did not sustain his burden of proving the alleged discharges , we find it unnecessary to
resolve the credibility issue thus raised.
4 In view of our finding that the General Counsel failed to prove that the glaziers were
discharged , we find it unnecessary to consider other reasons advanced by the Respondent
for dismissing the complaint.
PREFABRICATORS, INC. 97
ever, dismiss the complaint, on the strength of their own factual find-
ing, reversing the Trial Examiner, that the glaziers were not dis=
charged but that they had quit voluntarily. I do not undertake here
to review again all the relevant details." I rest on the evidence recited
in the Intermediate Report, adding only the following significant
factor in support of the conclusion therein : The Respondent's general
defense in the case that the glaziers, in seeking the wage raise, had
engaged in unprotected activity and were terminated therefor, as well
as its further argument under the Rubin Brothers rule I that it was
motivated in its actions by an "honest belief" that the glaziers had
threatened to strike in violation of the contract's no-strike clause,,
serve (a) to negate the position that the glaziers had quit, which the
Respondent at times asserted at the hearing,10 and (b) to reinforce
the Trial Examiner's finding, and constitute in effect admissions, that.
the glaziers were in fact discharged.
I would accordingly sustain the violations found and remedy recom-
mended by the Trial Examiner.
MEMBERS RoDGERs and BEAN took no part in the consideration of
the above Decision and Order.
8 On the facts , I only wish to note here , in particular , that Personnel Director Duval's
testimony as to what she told the glaziers when they asked why they were given no
termination pay impels the inference of a discharge rather than a quit . Thus, Duval
testified that in response to the glaziers ' question , she read from the contract the passage,
viz: "Termination pay is not allowable when termination is for one or more of the follow-
ing reasons : 'Where an employee is terminated because of misconduct , dishonesty, in-
subordination , extreme carelessness or similar reasons. ' " However, she did not tell the
glaziers that termination pay was not provided for voluntary terminations . This omission
appears especially significant in view of Duval's undoubted awareness that the termination
clause so provided , and the fact that a sentence excluding voluntary separation appears in
the contract at the point between the two sentences above quoted which Duval chose to
read to the glaziers.
8 Rubin Brothers Footwear , 99 NLRB 610.
18 In its exceptions and brief , Respondent makes no specific contention that the Trial
Examiner erroneously found that the glaziers were discharged rather than quit.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed separately by the individuals named in the caption above, the
General Counsel for the National Labor Relations Board issued his complaint dated
July 26, 1956, against Prefabricators , Inc., a Division of Lumber Dealers, Inc.,
herein called the Respondent, alleging that the Respondent had engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6)
and (7 ) of the National Labor Relations Act, 61 Stat . 136, herein called the Act.
In respect to unfair labor practices the complaint alleges in substance that the
Respondent violated the Act by discriminatorily discharging Upchurch , Clift, and
Richardone.
Respondent 's answer denies the commission of unfair labor practices.
Pursuant to due notice a hearing was held before the duly designated Trial Ex-
aminer in Denver, Colorado , on August 16 and 17, 1956. The General Counsel
and the Respondent were represented by counsel and participated in the hearing.
A brief has been received from counsel for the Respondent.
476321-58-vol. 119-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find that the Respondent is a
Colorado corporation with its principal office located in Denver , Colorado , engaged
in the manufacture , milling, and wholesale distribution of lumber products . During
1955 the Respondent produced and shipped goods valued in excess of $50,000 di-
rectly to destinations located outside the State of California . Lumber Dealers, Inc.,
the sole owner of the Respondent, is engaged in the wholesale distribution of lumber
and related products , and during 1955 handled and shipped goods valued in excess
of $100,000 directly to destinations located outside the State of California. I find,
as the Respondent concedes , that at all times material herein it has been engaged
in commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The evidence
In July 1953 the Respondent entered into a collective-bargaining contract with
Chauffeurs , Teamsters , Warehousemen and Helpers , Local Union # 13, herein
sometimes called the Union , representing the agreement of the contracting parties
as to wages , hours, and other conditions of employment of employees of the Re-
spondent . Article IX of the contract, still effective in October 1955, is of interest
here, and provides:
It is agreed by the Union that during the term of this agreement , it shall
not cause or permit any strikes or engage in any sympathetic strikes, and the
Employer agrees not to engage in any lockouts. It is further agreed between
the two parties that any strikes or deliberate stoppage of work not approved by
the Union or noticed to the Employer shall be cause for the discharge of any
or all employees participating in such work stoppage.
On October 13, 1955, the Respondent employed five individuals in glazing depart-
ment classifications . In addition to the three named in the caption of this case,
the others were Donald Bland and John Feldhauser . These five worked in a section
of a building in the installation of glass in window and door sashes . As one of the
most important aspects of Respondent 's business was the preparation and sale of
glazed windows and doors , the glazing crew performed a function upon which the
employment of a number of other workers depended . All of them were on that
date receiving wage rates equal to or substantially in excess of the minimums speci-
fied in the contract. Upchurch had then been an employee of the Respondent since
January 1951 and although a member of the Union and paid on an hourly basis, was
a sort of leadman or strawboss in the glazing unit . Clift, after an earlier period of
employment , returned to the Respondent 's payroll in July 1952 and worked there-
after until October 13, 1955. Richardone began his employment in 1950 and
worked regularly thereafter until his termination . Feldhauser was hired in October
1954 and worked for approximately 1 year. Bland , the most recently hired, came
to Respondent 's employment in April 1955.
About 1: 30 p. m., on October 13, Nick Bagnoli , a representative of the Union,
told the 5 glaziers that effective November 1 Union dues would be increased by
50 cents a month. Upchurch and some or all of the others asked Bagnoli when
they were going to get another pay increase . Bagnoli answered that the time was
not appropriate , but that they might try to get one through their supervisor. The
men discussed the matter among themselves , decided that they would ask collectively
for a raise , and agreed that Upchurch should be their spokesman in the matter.
Upchurch then went to the office of Victor O'Donnell, shop superintendent, and
finding O'Donnell to be away, mentioned to a saw operator , Ivan Chandler, who
happened to be there, that he was going to ask for a raise and that if he didn't
get it he probably would quit . Upchurch returned to his working place and within
a few minutes Chandler came over there, asking if he really was going to quit if
he didn't get a raise. According to Upchurch he answered that he probably would
and, in response to Chandler's further question, said that he was going to take
the other glaziers with him.
O'Donnell had been away from the plant for a few hours, but on his return about
3:30 p. m. learned from Chandler that the glaziers were talking about a pay in-
crease. Going to the glazing shop and addressing Upchurch in the presence of
PREFABRICATORS, INC. 99
Richardone and Clift , he asked what was going on. Upchurch said that the glaziers
thought they needed more money and when O 'Donnell asked if that was a demand
Upchurch said no. O'Donnell said that he had gone as far as he could with them
and that any further increase would have to be the result of union negotiations
or through the decision of Respondent 's president , Chester Heineck . After assuring
himself that Upchurch represented the views of the other glaziers in the matter,
he told Upchurch to come over to Heineck's office with him. En route, Tony
Bergosh , Respondent 's vice president and superintendent of its operations , joined
them: Arriving at Heineck's office, Upchurch told Heineck that he was the spokes-
man for the glaziers and that they were asking for a pay increase . The men had
discussed among themselves the fact that glaziers, represented by another labor
organization and working in shops of a character different from that of the Re-
spondent , commanded a wage of approximately $2.13 an hour-well above what
they were getting. Heineck testified and Upchurch denied that throughout the
discussion of the wage increase and other matters which took place in the former's
office on this occasion, Upchurch insisted upon a raise for the men to the $2.13
figure. Upchurch testified that although this rate was mentioned in the colloquy,
he and the others at no time asked for or expected to receive that amount . Heineck
told Upchurch that the Respondent could not and would not give a blanket increase
to all of the men and that the matter would have to be taken up on an individual
basis with O'Donnell, the supervisor. Heineck testified that Upchurch insisted on
the $2.13 rate and threatened that he would quit and take the other glaziers with
him if the raise was not forthcoming. Upchurch denied that he uttered such a
threat. Bergosh interjected that Upchurch and the others were acting very unfairly
in that the amount of work to be done by the glaziers at this particular time was
heavy and that the glaziers were attempting to use this circumstance to lend force
to their demand. Bergosh pointed out that in times of slack business the glaziers
had been provided with other work throughout the plant and had not been subjected
to layoffs. O'Donnell argued that Upchurch and the others were being treated
very well; that with substantial overtime earnings Upchurch was grossing as much
as O'Donnell. Heineck testified that he asked Upchurch why he had not taken the
matter up with the Union. To which Upchurch replied that the Union would do
him no good. According to Heineck he called to Upchurch's attention the contract
clause limiting strike action and that Upchurch replied he was entirely familiar
with the contract. After about 45 minutes the meeting ended on an apparently
indecisive note. Upchurch testified that Heineck said: "Just chop it off at 4:30
or 5 o'clock, whatever time you please; just chop it off." Heineck testified that
being convinced that Upchurch was persisting in his demand and would terminate
his employment that night, taking the other glaziers with him, he used words to
the effect that the conversation 'might as well be "chopped off" and that Upchurch
then left. Upchurch returned to the glazing shop and told the glaziers that he
thought all of them were fired but was unsure.
During the time that Upchurch was in Heineck's office, other developments
affecting the glaziers were taking place. Katherin Duval, Respondent's personnel
manager, was told by another employee, Mary Martel, she testified, that Upchurch
was going to ask for a raise which if refused would result in a walkout of the
glaziers that night. She immediately reported this to J. C. Pritchard, president of
Respondent's parent and general manager of the Respondent. Pritchard told her to
make an investigation . In doing so she sat in Heineck 's office and heard much of
what .passed between the participants in that talk. According to Duval, she heard
Heineck say that if he gave a raise to one group in the plant every other classification
would then be after more money. Leaving that meeting she went over to the
glazing shop and inquired of all the glaziers except Bland whether Upchurch was
speaking for them. Satisfying herself that this was so, she so reported to Pritchard,
telling him in addition that there was a tense situation in the entire plant and that
she was certain that the glaziers would walk out. Pritchard instructed her to make
up final pay checks for the five glaziers, to bring the checks to him, and to have the
men report to the personnel office. A few minutes later , Heineck came to Pritchard
and told him that he had met with Upchurch without accomplishing anything.
This was the sum of the information given by Heineck to Pritchard.
As he left Heineck 's office, Upchurch asked O'Donnell if he and the others were
-discharged . O'Donnell answered that he did not . know but would attempt to find
out and telephone Upchurch in that connection . In a few minutes Duval told
O'Donnell that she was making up termination checks for the glaziers and asked
him to have them come to her office . O'Donnell then telephoned Upchurch and
told him and the others to come to the office to get their checks.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is considerable confusion in the testimony concerning what happened when
the men arrived at Duval's office. All witnesses agree that checks were not yet
ready for them and there was a period of waiting varying in the estimation of the
several witnesses from 5 to 30 minutes before the checks were given out. In this
period, whatever its duration, Pritchard for the first time spoke to the men. Ac-
cording to Upchurch, Pritchard asked if the men knew what they were doing.
Upchurch answered that they had no voice in the matter; that Heineck had already
fired them. Clift testified that he overheard Upchurch make this remark. Richardone
recalled that Upchurch attributed the discharge to Pritchard. O'Donnell testified
that either Richardone or Upchurch told Pritchard they had been fired. Pritchard
was not called as a witness and did not testify. Pritchard said that no one could
demand a wage increase and threaten to walk out if it was denied. That no group
of men could force him to close the plant. Upchurch denied that he had made any
such threat, but when Pritchard said that such a report had reached him conceded
that he may have said something to that effect to some employees in the plant. All
witnesses agree that just before the checks were given out some or all of the persons
present became somewhat angry, that voices were loud and interruptions frequent,
with the result that no one of them could give a clear and convincing recital of
just what was said at the end. The five glaziers were given the checks and left the
office. Before leaving the premises however they examined the amounts paid to them
and observed that they were given no termination pay in lieu of notice. All went
back and asked Duval why they were paid only for the hours worked through that
day. Duval consulted the Union contract and noted that a discharged employee
was disqualified for termination pay if his termination was attributable to miscon-
duct, dishonesty, insubordination, extreme carelessness, or similar reasons. Accord-
ing to Upchurch, Clift, and Richardone, Duval agreed that they did not seem to be
disqualified by that provision. Duval testified that she told them that asking for a
raise could be described as insubordination if the request was not made in a proper
manner.
A synthesis of the testimony offered through witnesses Upchurch, Clift, Richardone,
Bland, and Feldhauser, all testifying in support of the complaint, is that the men,
through Upchurch, did no more than request a raise. That no threat of strike
or quitting was made to any person acting in behalf of management , and that no
intention existed among them at any time either to quit or to strike in support of
the wage request. This testimony is supported in part by that of Shop Superin-
tendent O'Donnell, who agreed that when he first questioned Upchurch in the matter
the latter assured him that no "demand" was being made; that only a request for
a wage increase was involved. According to the undenied and credited testimony
of Richardone, a week or two after the discharges O'Donnell admitted that the
men had not demanded but merely asked for a raise.
The testimony of witnesses for the Respondent in this connection is somewhat
varied. Ivan Chandler, the saw operator, who was perhaps the first to learn of the
intention to take action to get a wage increase, testified that Upchurch said on one
occasion that he was thinking of quitting if he did not get more money, and on
the second occasion said that the others would quit with him. The employee who
gave the information to Duval was at the time of the hearing allegedly no longer
in the employment of the Company and unavailable as a witness . Duval, in testifying
as to what information she had received in this fashion, said, first, that Upchurch had
reportedly threatened that the men would "walk out" that night, and on cross-
examination that they would "quit." O'Donnell testified that when he first spoke to
Upchurch the latter said that he had to have a raise "or else." And that when he
asked Upchurch what "or else" meant, Upchurch explained that it was a request.
Later in his testimony, however, O'Donnell recalled that Upchurch had said that
if he didn't get more money he was through, and that the other men would "pull
out." Concerning the meeting in Heineck's office, O'Donnell testified that Upchurch
denied he was taking the glazing crew with him if he quit, but admitted that he had
said as much to "fellows down in the shop." Heineck then, according to O'Donnell,
was trying to talk Upchurch out of his wage demand or "any sort of trouble."
Heineck, according to O'Donnell, told Upchurch to go back to work and forget it;
that he would be glad to talk to the men individually. When Upchurch persisted in
his demand for a raise as a price for remaining in Respondent's employment, Heineck
said that with such an attitude there was nothing more to do. At that point the
meeting ended.
Bergosh testified that Upchurch demanded a wage scale of $2.13 an hour, and
that Heineck explained why the financial condition of the Respondent would not
permit such a payment, and demonstrated that the Respondent was paying wages
comparing favorably with those offered by its competitors. Heineck warned Up-
church that the contract prohibited strike action . In the face of this Upchurch still
PREFABRICATORS, INC. 101
insisted upon the raise and said that if it was not forthcoming he would leave and
take the rest of the glazing crew with him that night. Heineck finally threw up his
hands in despair and then all left. Bergosh threw further light upon the colloquy
between Upchurch and Pritchard, testifying that when Pritchard came into the office
shortly before the checks were given out Upchurch said he, as spokesman for the
glaziers, was demanding an increase. Pritchard asked if Upchurch knew of the
provisions of the Union contract and when Upchurch replied that he did, Pritchard
said that Upchurch was insubordinate; "either take your checks or go back." Pritch-
ard said that Upchurch had threatened to walk out and had caused dissension among
the employees. Upchurch at first denied the accusation, but then said, "I guess I
told a few of them."
Heineck testified that Upchurch appeared in his office, representing himself as
spokesman for the glaziers and demanding a wage of $2.13 an hour, which if not
granted would result in his quitting; taking along the other glaziers. Heineck asked
him if he was familiar with the contract and when Upchurch said that he was asked
him why he had not gone to the Union. Upchurch replied that the Union would
do them no good. Heineck then reviewed the pay increases that Upchurch and
others had received in the recent past and explained that the Respondent was
paying a rate higher than that paid by its competitors. Heineck protested that
Upchurch was not living up to the contract. Upchurch answered that he understood
the Respondent's problem, but nonetheless must have the wage increase. Heineck
said that a demand for a blanket increase covering all those in the glazing line was
unfair although he would be willing to discuss individual raises at any time. Re-
spondent's counsel asked Heineck if anything was said about going back to work
at the rate of pay he was then receiving. Heineck's answer was not responsive.'
Heineck recalled that Pritchard later asked Upchurch if he had not threatened to
tie up the plant and that Upchurch denied that he had done so. When Pritchard
said that such a report had come to him, Upchurch admitted that he might have
talked to a few people to that effect. Pritchard said that no group was going to
close the plant and that if Upchurch,-and presumably the others, continued to act
as he had, he would be guilty of insubordination. Finally Pritchard said that he
had signed the checks and that "it is up to you."
Duval testified that when she visited the glazing shop that afternoon she inquired
of the men only if Upchurch was acting for them, but did not ask any of them if
they intended to quit or strike. She was convinced, however, that some such action
was going to be taken and advised Pritchard to that effect.
B. Conclusions
Section 7 of the Act provides in relevant part that "employees shall have the
right . . . to engage in . concerted activities for the purpose of . mutual
aid or protection." The Act further provides that "any individual employee or a
group of employees shall have the right at any time to present grievances to their
employer and to. have them adjusted without the intervention of the bargaining rep-
resentative . Article X of the collective-bargaining agreement between the
Respondent and the Union provides that "differences, dissatisfaction with working
conditions or the classifications of employees or any other trouble or disagreement
between the Employer or the Union shall cause no suspension of work on account
of such differences but an earnest effort shall be made to settle such differences
immediately in the following manner: a. Between the members of the department
involved and the Department Head or Management." Thus, it appears that in
requesting or demanding a wage increase from O'Donnell and later Heineck, Up-
church and the other glaziers were engaging in an activity falling within the pro-
tection of the Act and not inconsistent with the provisions of the contract quoted
above. It is undisputed that Upchurch told Chandler that he intended to quit if
he was unsuccessful in this venture, and I consider it probable and find that he
indicated that the other glaziers would follow his example. It is immaterial that
these remarks may have been made only because Upchurch regarded Chandler as a
busybody, inquiring about matters not his concern. There is no evidence untainted
by hearsay to the effect that he made a similar remark to Mary Martel. However,
Upchurch did not deny speaking to Martel to that effect and it is clear that Pritchard
1 Earlier in his testimony, however, Heineck said that he had called to Upchurch's
attention that the collective-bargaining contract had provision for the handling of
grievances. In that connection Heineek testified, "I strongly suggested that they return
and straighten this thing out." Here is to be found at least a suggestion that Upchurch
go back to his job as sometime later he did.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received a report from Duval in that connection . But none of the glaziers quit work
or ceased to perform any of the services for which they were paid. Upchurch
was absent from his job for about 45 minutes while in Heineck's office; not at his
request but at the suggestion of Shop Superintendent O'Donnell . There is testimony
by Duval that at sometime during the period when Upchurch was in Heineck's
office she observed that the glaziers were standing in a group in the glazing shop
and not working . It is not seriously suggested by the evidence , however , nor is the
contention made that at any time before the close of the working day the glaziers
actually engaged in any sort of work stoppage.
The argument is advanced that the men quit because they were unsuccessful in
obtaining a wage increase . When Upchurch left Heineck 's office I find that he asked
O'Donnell what his employment status was . O'Donnell answered that he did not
know but would attempt to find out . If Upchurch had then quit , the necessity
for this question would not exist . In any event he could not have quit for the
glaziers who were not present . When the glaziers came to Duval's office and
for the first time in connection with the wage request met Pritchard , one or more
of them told Pritchard that Heineck had discharged them. When they inquired of
Duval why they had not been given additional pay because of termination , she either
was unable to supply a reason or suggested that the manner in which they presented
the wage demand may have amounted to insubordination . Duval was present when
the remarks were passed between the glaziers and Pritchard at the close of the day.
If they had then quit she as personnel manager surely would have been aware
of it. Finally, before Pritchard had spoken to any of the men and at a time when
he had been advised by Duval that the men were about to quit or strike and were
causing "unrest" in the plant, he directed that their checks be made out. I consider
this to be evidence of an intention to effectuate a discharge . Upon these consid-
erations , set forth above, I find that Upchurch , Clift , and Richardone were, on
October 13 , 1955, discharged by the Respondent.
If Upchurch and the others in fact had threatened to engage in a strike in the
face of the prohibitory agreement between their Union and their employer and if
the Respondent 's management had held an honest belief that this was so , the dis-
charges could have been made without impinging upon any statutory rights and
without violating the Act .2 Each of the glaziers denied that any such threat was
uttered except for whatever Upchurch may have said to Chandler and Martel.
Little distinction was made by some of the witnesses between striking and quitting.
Chandler said that Upchurch threatened to quit. Duval thought that Martel's
report was that the men would "walk out" but at another point in her testimony
said that the threat was to quit. Heineck said that Upchurch threatened to termi-
nate his employment . The Respondent 's view of the evidence as set forth in its
proposed findings of fact filed with me is that there was a threat to quit. If actually
there was such a threat on the part of Upchurch and the others in the event the
wage increase was not forthcoming , it did not violate the terms of the contract. By
that instrument the Respondent was not assured that the employees would continue
in its employment . They were free individually or collectively after the signing of
that agreement as before to terminate their employment for any reason which seemed
sufficient to them. They could not, however , while continuing in an employment
relation with the Respondent engage in a strike to promote their collective interests.
Had they attempted to do so, or under the ruling in the Kraft case, cited above,
threatened to do so , the Respondent would have had a free hand in discharging them.
O'Donnell testified at first that Upchurch said that he was requesting and not
demanding a wage increase . Without repudiating this testimony , on further ex-
amination by Respondent 's counsel , he testified that on the same occasion Upchurch
said that he was through if he didn't get the raise . In Heineck 's office, according
to O'Donnell , Upchurch said that if he quit he would not take the glazing crew
with him.
When Pritchard caused Duval to have termination checks made out for the glaziers,
he may have believed that the men were going to quit if they did not get more
money. Bergosh testified that when Pritchard confronted the men , Upchurch said
they were demanding a wage increase . Pritchard asked Upchurch if he knew the
contract provisions and when Upchurch said that he did, characterized his conduct
as insubordinate . Whether the insubordination had reference to the demand for
more money or a suggestion of quitting is unclear.3
This much is certain-the testimony of Upchurch , Richardone , and O'Donnell
is clear, convincing , and uncontradicted that the men told Pritchard before the
2 Kraft Foods Company, 108 NLRB 1164.
$ Perhaps Pritchard could have clarified the matter but he did not testify.
PREFABRICATORS, INC. 103
checks were handed to them that they were not quitting but had been discharged.
If Upchurch had threatened to quit as a device to bring pressure upon the Respondent
to grant a wage increase, he was engaged in a concerted activity within the pro-
tection of the Act and not forbidden by the collective -bargaining contract 4
Crediting the testimony of Upchurch , that he at no time threatened to strike, the
testimony of O'Donnell that Upchurch said he was requesting and not demanding
the wage increase , and the undenied testimony of Richardone that after the dis-
charges O'Donnell conceded that he had demanded nothing, I find that Upchurch,
Clift, and Richardone at no time implemented their demand or request for a wage
increase with a threat to engage in strike action.
The evidence does not persuade that Pritchard or any responsible member of
management at any time held an "honest belief" that the men were threatening to
strike.5 Pritchard had reason to believe that they might quit but this may. not be
equated with striking . Heineck was in the same situation . Both believed that the
movement for a wage increase had an unsettling effect upon other employees in
the plant and threatened to cause, if it had not already done so, some "disturbance"
among the employees.
If I have incorrectly evaluated the evidence and if at some time prior to the
encounter between Pritchard and the glaziers in Duval's office at the close of the
day on October 13, Upchurch and the others had in fact threatened to engage in
a strike, it remains the fact that on that mentioned occasion they indicated that
they were leaving only because they were discharged . A collective-bargaining agree-
ment may forbid employees to engage in certain activities otherwise protected as a
condition of continued employment . The broad rights guaranteed in Section 7 to
engage in concerted activities or to refrain from doing so are frequently inhibited
by contract provisions requiring membership in a labor organization . Under de-
cisional law an employee may persist in refusing to join a union in such a situation,
despite the contract requirement until the very instant before his discharge is ac-
complished for that reason . Then he may tender the dues required of him and
continue in his employment . Similarly, I am persuaded , one who does not actually
engage in a prohibited strike but only threatens to do so may avoid the discharge
which might result under the rationale of the Kraft decision , by withdrawing from
the threatened course of action before a discharge for that reason is actually effected.
I find that if any of the glaziers at any time threatened to engage in a strike, the
threat was withdrawn in Duval 's office prior to their discharge.
A possible explanation for the discharges is to be found in the concern of Heineck
that if the glaziers succeeded in getting a wage increase others in the plant would be
tempted to follow that route and in Duval 's report to Pritchard that the glaziers'
conduct was causing disturbances and unrest in the plant . The Respondent had
a natural and understandable interest in avoiding collective requests or demands for
wage increases which might stimulate other groups of employees to emulation.
I find that the Respondent through its general manager, Pritchard , discharged
Upchurch , Clift, and Richardone on October 13, 1955, because Upchurch had de-
manded or requested a wage increase for himself and the other glaziers. I further
find that the demand or request was a concerted one finding protection in the Act
and that the discharges were made for the purpose of discouraging such collective
activity . I find that the Respondent thereby violated Section 8 ( a) (3) of the Act.
By discharging the three employees named above, the Respondent interfered with,
restrained , and coerced them in the exercise of rights guaranteed by Section 7 of the
Act and thereby violated Section 8 (a) (1) of the Act. Because the complaint does
not allege discrimination attending the discharge of the other glaziers, Bland and
Feldhauser , no finding to that effect is here made.
Respondent's proposed findings of fact numbered 1, 2, 3, 4, 5, 6, and 11 are
accepted and are incorporated herein, sometimes impliedly. Proposed findings 7,
8, 9, 10, 12, 13 , and 14 are rejected as being unsupported by a preponderance of
the probative evidence.
Respondent's proposed conclusions of law are rejected.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of the Respondent described in section I, above, occurring in con-
nection with its conduct described in section II, above, have a close, intimate, and
substantial relation to trade, traffic , and commerce among the several States and
* Southern.Pine Electric Cooperative , 104 NLRB 834.
5 Even if they had, such a belief would not constitute a defense if not based upon fact.
See the Kraft decision cited above ; also American Shuffleboard Co. v. N. L. R. B., 190 V. 2d
898, 902-3 ( C. A. 3).
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended. that it be ordered to cease and desist therefrom and to take
certain affirmative action which I find necessary to effectuate the policies and pur-
poses of the Act. Having found that Upchurch, Clift, and Richardone were dis-
charged on October 13, 1955, because they had concertedly presented a request
or a demand for a wage increase, it will be recommended that the Respondent offer
to each of them immediate and full reinstatement to their former or substantially
equivalent positions and make each whole for any loss of earnings suffered as a
result of the discrimination from October 13, 1955, to the date of the offer of
reinstatements As the complaint does not allege any violation of the Act in respect
to the discharge of Bland- and Feldhauser, no remedy is incorporated for either of
them. Back pay shall be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289.
CONCLUSIONS OF LAW
1. By presenting a concerted demand or request for a wage increase, Upchurch,
Clift, Richardone, Bland, and Feldhauser constituted themselves as a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By discharging Upchurch, Clift, and Richardone on October 13, 1955, because
of their concerted activity in seeking a wage increase, the Respondent has discrimi-
nated and is discriminating in regard to their hire and tenure of employment, in
violation of Section 8 (a) (3) of the Act.
3. By the discharges the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act and has
thereby engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
"Upchurch, at the hearing, said he did not want to return to work at $1.86 an hour.
I do not view this as an unqualified refusal of reinstatement.
Roadway Express, Inc. and Morrice Mulligan Dulin. Case No.
11-CA-999. October 24,1957
DECISION AND ORDER
On January 11, 1957, Trial Examiner John C. Fischer issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Respondent and the General Counsel filed exceptions to
the Intermediate Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, briefs, and the entire record in the case, and
'The Respondent also requested oral argument. The record, the exceptions, and briefs
fully present the issues and the positions of the parties. The request is therefore denied.
119 NLRB No. 13.