Minnesota Mining & Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 10, 1949

81 N.L.R.B. 557 (N.L.R.B. 1949)

In the Matter of MINNESOTA MINING & MANUFACTURING COMPANY,
EMPLOYER and UNITED GAS, COKE AND CHEMICAL WORKERS OF AMER-
ICA, CIO, PETITIONER
Case Nos. 32-CA-21 and 15M-R-108.-Decided February 10, 1949
DECISION
AND
ORDER
On October 12, 1948, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, as
amended, 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
Respondent's request for oral argument is hereby denied, as the record
and brief, in our opinion, adequately present the issues and the posi-
tions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed 2 The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner only insofar as they are consistent with this Deci-
sion and Order.
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees, in violation of Sec-
tion 8 (a) (1) of the Act. However, in so finding we rely exclusively
upon the following facts :
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended , the National Labor Relations Board has delegated its powers in connection with
this proceeding to a three-man panel consisting of the undersigned Board Members [ Chair-
man Herzog and Members Houston and Murdock].
2 The objection to the consolidation of these cases was properly overruled . Matter of
Dixie Shirt Company, Inc., 79 N . L. R. B. 127, fn. 2; Matter of Hoosier Cardinal Corp.,
et al., 67 N . L. R. B. 49, fn. 1. National Labor Relations Board Rules and Regulations—
Series 5, Sections 203.33 and 203.64 . The motion to sever was properly rejected.
Matter of Phelps Dodge Copper Products Corporation, 63 N. L . R. B. 686 . The fact that
the Respondent did not receive a copy of the objections to the election was immaterial.
Matter of Northwest Engineering Corporation , 63 N. L . R. B. 1219 . The Respondent was
not prejudiced by the denial of permission to take the deposition of Charles J. Olson,
because the Trial Examiner assumed the very fact the deposition was intended to prove.
The rejected Exhibit was irrelevant.
81 N. L. R. B., No . 99. 557
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Superintendent Neikirk's and Foreman Elliott's inter-
rogation of employees 3 concerning their union activities and
sympathies ; 4
(b) Neikirk's attempted surveillance of union activities by ques-
tioning some employees as to the union activities and sympa-
thies of their co-workers;,' and
(c) the timing, and the manner of presenting and publiciz-
ing, the wage increase," hospitalization, pension, vacation, and
bonus or profit-sharing plans.7
The Respondent contends that the interrogations were not violative
of the Act because no witness testified that he was influenced in his
voting by these statements. The Board and the courts have repeat-
edly held that the Act is violated by the commission of coercive acts,
regardless of whether such acts are effective in accomplishing the
intended results.8 Furthermore, interrogation has repeatedly been
held to be a per se violation of Section 8 (1).9
6 Namely, Williams , Frank Cantrell, and Tom Baker ; Napoleon Carr , McDaniel, and
"Jimmie"; House ; Ward ; Parker ; Ball ; Boyd.
4 Although Neikirk denied asking employees if they were members of the Union, or how
they were going to vote, he admitted interrogating them about their attitude toward the
Union . Interrogation concerning attitudes toward unions is as much prohibited as interro-
gation concerning membership or voting intentions . Matter of Consolidated Machine Tool
Corporation, 67 N. L. R. B. 737 , 738; Matter of Wytheville Knitting Mills, Inc., 78
N. L. R. B. 640.
Namely, Marsden , Carr , Stubbs, Ball , and Boyd . Matter of Columbian Carbon Conw-
pany, 79 N. L . R. B 62; Matter of Wire Rope Corporation of America , Inc., 62 N. L. R. B.
380. The fact that the Respondent 's attempt did not succeed does not excuse this viola-
tion either . Matter of Dixie Shirt Company, Inc., 79 N . L. R. B. 127 , see infra, footnote 8.
6 The Respondent 's contention that Matter of Loudonville Milling Company, 79 N. L. R. B.
304, requires us to find that this wage increase , made during the union's organizational
campaign was not interference , is without merit. The record in this case discloses some-
thing more than the method by which the Respondent arrived at the decision to make the
increase ; the record in that case did not. Neikirk, in announcing the raise, emphasized in
many closet sessions with small groups of employees that the Respondent and not the
Union was responsible for the raise. In this context , the raise "interferes with the right
of self organization by emphasizing to the employees that there is no necessity for a col-
lective bargaining agent." May Department Stores Co. v. N. L. R. B., 326 U . S. 376, 385;
see also Matter of Lancaster Garment Company, 78 N. L . R. B. 935 ; Matter of Miller-
Quincy Mfg . Company, Inc., 53 N. L. R. B. 366.
However , we do not base this finding upon the fact that the general wage increase was
put into effect without first notifying or consulting the Union known to be claiming to
represent the majority of the employees.
* We credit the assertions of the Respondent that these plans were in existence from
April , 1947. The record , however , establishes that they were first publicized almost a year
later find in the 2 months preceding the election . The time chosen to advertise the bounty
of the respondent could only have been intended to prevent the "attempts of outside labor
organization effectively to appeal to its employees . . .." N. L. R. B . v. Christian Board
of Publication , 113 F. ( 2d) 678, 681 ( C. A. 8), enforcing 13 N. L . R. B. 534 ; Matter of Gate
City Cotton Mills , 70 N. L . R. B. 238, 250.
8 N. L. R. B. v. Illinois Tool Works, 153 F. (2d) 811 , 814 (C . A. 7), enforcing 61
N. L. R. B . 1129 ; N. L. R. B. v. Winona Textile Mills, Inc., 160 F. (2d) 201 (C. A. 8),
enforcing 68 N. L . R. B. 702; Matter of The Pure Oil Company , 73 N. L. R. B. 1, 3 and
cases cited therein ; Matter of Dixie Shirt Company, 79 N. L. R. B. 127.
PH. J. Heinz Co. v. N . L. R. B., 311 U. S. 514 , 518, 520 ; P. H. Glatfelter Co. v.
N. L. R. B., 141 F. ( 2d) 631 , 633 (C . A. 8) ; N. L. R. B. v. Cities Service Oil Co., 129
MINNESOTA MINING & MANUFACTURING COMPANY 559
The Respondent further argues that the activities of Neikirk and
Elliott are protected by Section 8 (c) of the Act. Although we cannot
accept the Trial Examiner's apparent adoption of a "totality of
conduct" theory,"' and do not rely on his rationale for not accepting
Section 8 (c) as a defense, we disagree with the Respondent. Section
8 (c) does not protect the acts we here find violative of Section
8 (a) (1). As we have heretofore held, interrogations as to union
activities and sympathies and solicitations of surveillance are not ex-
pression of "any views, argument, or opinion, or the dissemination
thereof", within the meaning of Section 8 (c).11 The disclosure by the
Respondent of employee benefit plans, during the period of.the Union's
organizational campaign and during the pendency of a Board-ordered
election, under the circumstances here present is likewise beyond the
protection of Section 8 (c). It is sufficient to point out that such
disclosure clearly constituted a "promise of benefit" within the mean-
ing of that provision.12
2. For the reasons appearing in the Intermediate Report, we agree
with the Trial Examiner that Robert Ball and Fred Boyd were dis-
criminatorily discharged in violation of Section 8 (a) (3) of the Act 13
However, we do not find, as did the Trial Examiner, that the lay-off of
Harold House was violative of the Act.
Knowledge by a Respondent of the dischargee's union membership
is a prerequisite to a finding that the discharge was made for that
reason. In our view, the record fails adequately to establish such
knowledge on the part of the Respondent concerning House. The Trial
F. (2d) 933, 934 ( C. A. 2) ; Matter of Sewell Manufacturing Company, 72 N. L. R. B.
85; Matter of Wytheville Knitting Mills, Inc., 78 N. L. R. B. 640.
10 Intermediate Report at p. 9. Matter of The Bailey Company, 75 N. L. R B. 941;
Matter of Volney S . Anderson and Mildred C. Anderson , d/b/a Pacific Moulded Products
Company, 76 N L. R. B. 1140; Matter of Burns Brick Company, 80 N L. R. B. 389.
" Matter of Ames Spot Welder Company, Inc., 75 N. L. R. B. 352, 355 , fn. 6. In addition,
we have held such interrogation to be by its nature coercive . Matter of Sewell Mfg. Co.,
72 N L . R. B. 85, 87.
12 Matter of Hudson Hosiery Company , 72 N. L . R. B. 1434, 1437 , and cases cited in
footnote 6; Matter of Wilson tE Co., Inc., 77 N . L. R. B. 959 ; Matter of Macon Textiles,
Inc., 80 N. L. R. B ., No. 238.
18 The Respondent 's contention that the Trial Examiner , in finding violations of Sec-
tion 8 (a) (3), credited only the witnesses for the General Counsel is without support
in the Intermediate Report and record. Furthermore , the importance of observation of
witnesses to any finding of their credibility is such that we will not overrule the credibility
findings of the Trial Examiner unless they are clearly erroneous.
The evidence in the record that Robert Ball was friendly , rather than hostile , toward
Superintendent Neikirk at the time he received notice of his discharge is immaterial.
See Matter of Wadesboro Full-Fashioned Hosiery Mills, Inc., 72 N. L. R B. 1064; Matter
of Wytheville Knitting Mills, Inc., 78 N. L. R. B . 640. We can , in evaluating the motive for
the discharge of known union leaders, take into consideration the Respondent ' s hostility
toward unions to the exttnt , as here, that it is not privileged under Section 8 (c). See
Matter of Spencer Auto Electric, Inc., 73 N. L. R. B. 1416; Matter of Consumers Coopera-
tive Refinery Assn ., 77 N. L. R. B. 528.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner inferred this knowledge from the fact that House, like many
of the other employees, was interrogated as to his knowledge of the
Union's organizational campaign and his attitude toward the Union
and that House had admitted knowing of the campaign. An admis-
sion of knowledge of the existence of an organizational campaign is
not necessarily a confession of membership. House testified, further-
more, that he had been inactive as a union member, engaging in none
of the activities which would have made manifest his membership.
Mere union membership on the part of a dischargee does not make
his discharge discriminatory.14
3. We find, as did the Trial Examiner,15 that these acts of the
Respondent violative of Section 8 (a) (1) interfered with the free
choice of representatives by its employees at the election of March 17,
1948, and we shall therefore set that election aside16
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Minnesota
Mining & Manufacturing Company, Little Rock, Arkansas, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Gas, Coke and Chemical
Workers Union of America, CIO, or in any other labor organization
of its employees, by laying off or refusing to reinstate any of its
employees or by discriminating in any other manner in regard to their
hire and tenure of employment, or any term or condition of their
employment ;
(b) Interrogating its employees concerning their union affiliations,
activities, or sympathies, or those of their coworkers or in any other
manner interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist United Gas, Coke and Chemical Workers Union of
14 Matter of Lawrence R. Hagy, D. D. Harrington and Stanley Marsh , 74 N. L. R. B.
1455, 1474 ; N. L. R. B . v. Mylan-Sparta Company, Inc., 166 F. ( 2d) 485, ( C. A. 6) and
cases cited therein.
15 The Respondent 's contention that the Trial Examiner was without authority to recom-
mend the setting aside of the election is without merit. See supra note 2. The argument
based on the assertion that a hearing officer does not have authority , under Section 9
(c) of the amended Act, to make recommendations is not applicable to investigation of
objections to elections . See National Labor Relations Board Rules and Regulations—
Series 5, Section 203 61 (b) ; furthermore , Section 203 61 ( c), on which the Respondent
replied , provides that such hearings shall be conducted in accordance with the provisions
of Sections 203.56 , 203.57 , and 203 .58 only "insofar as applicable."
1e Matter of Artcraft Hosiery Company , 78 N. L. R. B. 333 ; Matter of Dixie Shirt Com-
pany, Inc., 79 N . L. R. B. 127.
MINNESOTA MINING & MANUFACTURING COMPANY 561
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization, as authorized in Section
8 (a) (3) of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Robert Ball and Fred Boyd immediate and full rein-
statement to their former or substantially equivalent positions 17 with-
out prejudice to their seniority or other rights and privileges;
(b) Make whole Robert Ball and Fred Boyd for any loss of pay
they may have suffered by reason of the Respondent's discrimination
against them by payment to each of them of a sum of money equal
to the amount which he normally would have earned as wages during
the period from the date of his lay-off to the date of the Respondent's
offer of reinstatement, less his net earnings 18 during that period;
(c) Post at its plant in Little Rock, Arkansas, copies of the notice
attached hereto marked "Appendix A." 19 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent discharged Harold
House in violation of Section 8 (a) (3) of the Act.
17 In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equiva-
lent position." See Matter of The Chase National Bank of the Csty of New York, San
Juan, Puerto Rico Branch, 65 N. L. R. B 827.
18 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination and the
consequent necessity of his seeking employment elsewhere . Matter of Crossett Lumber
Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State,
county, municipal , or other work-relief projects shall be considered as earnings . Republic
Steel Corporation v. N. L. R. B., 311 U. S. 7.
is In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words : "A DECISION AND ORDER," the
words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the election held on March 17, 1948,
among the employees of Minnesota Mining & Manufacturing Com-
pany, Little Rock, Arkansas, be, and it hereby is, set aside.20
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies or those of their coworkers
or in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist UNITED GAS, COKE AND
CHEMICAL WORKERS UNION OF AMERICA, CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the amended Act.
WE WILL OFFER to Robert Ball and Fred Boyd immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named union or any other labor or-
ganization except to the extent that this right may be affected by an
agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor
organization.
MINNESOTA MINING & MANUFACTURING COMPANY,
Employer.
By --------------------------------------------------
(Representative) (Title)
Dated ------------------------
20 When the Regional Director advises the Board that the circumstances permit a free
choice of representatives, we shall direct that a new election be held among the Re-
spondent's employees.
MINNESOTA MINING & MANUFACTURING COMPANY 563
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Charles A. Kyle, for the General Counsel.
Mr. Richard L. Post, of St. Paul, Minn., for the Respondent.
Mr. Ira S. Williams, of Little Rock, Ark., for the Union.
STATEMENT OF THE CASE
Upon a petition duly filed on June 23, 1947, by United Gas, Coke and Chemical
Workers of America, affiliated with the Congress of Industrial Organiz itions,
herein called the Union, the National Labor Relations Board, herein called the
Board, held a hearing on December 8, 1947, to determine whether the employees
of the Little Rock, Arkansas, plant of the Minnesota Mining & Manufacturing
Company, herein called the Respondent, desired to be represented by the Union
for the purposes of collective bargaining. Thereafter and on March 4, 1948, the
Board issued an order directing that an election be conducted among the Respond-
ent's employees in a certain appropriate unit under the auspices of the Regional
Director of the Fifteenth Region (New Orleans, Louisiana).
On March 17, 1948, the said election was held and a majority of the votes were
cast against the Union' The Union filed objections to the conduct of the elec-
tion on or about March 22, 1948, and on or about April 23, 1948, the said Regional
Director issued his report on the objections finding that substantial and material
issues were raised to the conduct of the election and recommended that the results
of the said election be set aside and that a new election be held. To this report
the Respondent, on or about May 3, 1948, duly filed exceptions. On June 15, 1948,
the Board ordered that a hearing be held for the purpose of resolving the issues
raised by the Union's objections.
Upon an amended charge duly filed by the Union on June 30, 1948, the General
Counsel of the Board, herein called the General Counsel, issued a complaint
alleging that the Respondent had engaged in, and is engaged in, unfair labor
practices affecting commerce, within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended
(Public Law 101, Chapter 120, 80th Congress, First Session), herein called the
Act. Copies of the complaint and amended charge, together with notice of
hearing thereon, were duly served upon the Respondent and' the Union.
On July 2, 1948, the then Acting R-gional Director for the Fifteenth Region
issued an order, dated that day, directing that the complaint and representation
cases, being cases Nos. 32-CA-21 and 15M-R-108 respectively, be consolidated.
With respect to the unfair labor practices, the complaint, in substance, alleged
that the Respondent (1) through certain named agents, its superintendent, and
its foremen, by means of certain stated acts, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act and (2) discriminatorily discharged Robert Ball and Fred Boyd, Jr. on
March 23, 1948, Harold House on March 26, 1948, and Elmer B. Harrison on
January 13. 1948,2 and thereafter refused to reinstate them because they had
joined and assisted the Union and had engaged in concerted activities with other
' Of the 114 valid votes cast, 49 were for the Union, 64 were against, and 1 protested
2 At the hearing, the General Counsel's motion to dismiss the complaint as to Harrison
was granted without objection.
829595-50-voI 81-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for the purposes of collective bargaining and other mutual aid and
protection.
On or about July 12, 1948, the Respondent duly filed an answer admitting cer-
tain allegations of the complaint but denying the commission of any of the alleged
unfair labor practices.
Pursuant to notice, a hearing was held on July 14, 15, and 16, 1948, at Little
Rock, Arkansas, before the undersigned, Howard Myers, the Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondent were represented by counsel and the Union by a representative.
Full opportunity to be heard, to examine and cross -examine witnesses, and to
introduce evidence pertinent to the issues was afforded all parties. At the close
of the General Counsel's case-in-chief, the Respondent moved to dismiss the com-
plaint in its entirety for lack of proof. The motion was denied. At the conclu-
sion of the taking of the evidence, the General Counsel's motion to conform the
pleadings to the proof was granted without objection. The parties waived oral
argument before the undersigned. They were then advised that they might file
briefs and proposed Findings of Fact and Conclusions of Law with the under-
signed on or before July 31, 1948. A brief has been received from the Respondent
which has been carefully considered by the undersigned.
Upon the entire record in the case and from his observations of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Minnesota Mining & Manufacturing Company has its principal offices in St.
Paul, Minnesota. It owns and operates plants in various parts of the country.
At its little Rock, Arkansas, plant, the employees of which are the only ones in-
volved in this proceeding , the Respondent is engaged in the manufacture, sale,
and distribution of roofing granules. During the 12-month period immediately
preceding the issuance of the complaint herein, the sales at the Respondent's
Little Rock plant amounted to over $3,000,000, approximately 95 percent of which
was shipped from that plant to points located outside the State of Arkansas.
During the same period , the Respondent purchased coloring pigment for its Little
Rock plant amounting to more than $25,000, over 95 percent of which was received
at that plant from points located outside the State of Arkansas.
The Respondent does not dispute the Board's jurisdiction. The undersigned
finds that the Respondent is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Gas, Coke and Chemical Workers of America, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting to member-
ship employees of the Respondent.
III. THE TTNFAIR LABOR PRACTICES
A. The background
Operations at the Respondent's Little Rock plant commenced in April 1947.
Shortly thereafter the Union commenced an organizational campaign which
culminated with a petition for certification being filed by the Union with the
Board on June 23, 1947. A hearing upon the said petition was duly held on
December 18, 1947. On March 4, 1948, the Board issued its Decision and Di-
rection of Election and pursuant thereto an election was duly held on March 17,
MINNESOTA MINING & MANUFACTURING COMPANY 565
1948, under the auspices of the Regional Director for the Fifteenth Region, among
the employees in the unit found by the Board to be appropriate. The Union lost
the election by the vote of 64 to 49.3
B. Interference, restraint, and coercion; the disputed election
In January 1948, Superintendent Theodore Neikirk called into his office in-
dividually, or in small groups, if not all, the non-supervisory employees and told
the employees that their hourly wages had been increased 10 cents per hour.
According to the testimony of Jimmie Williams, Neikirk also told him and the
three other employees, who accompanied him to Neikirk's office on that occasion,
that they should understand that the Respondent was the one who was giving
the employees the raise and that the Union had nothing to do with it.
Williams further testified that in March 1948, he and some employees were
called into Neikirk's office and that Neikirk said to them :
In a few days there would be an election coming up, and he said, "I want
you boys to remember me." In other words, you boys have never voted
for the Union ; I will send out some ballots showing you just how to vote-
you know, for the Union or against the Union-and then he asked us con-
cerning, had we ever been a member of a Union. I think one of the other
fellows told him that he had.
Williams also testified that, in the course of this March meeting, Neikirk asked
him if he belonged to the Union ; that he replied in the affirmative ; that Neikirk
then asked him "whether the Union ever had done anything beneficial for him ;
and that when he informed Neikirk that he thought they had, the latter replied,
"Well, the Union will never be much good to nobody."
Regarding a meeting he and some of his coworkers had with Neikirk shortly
before the scheduled Board's election on March 17, Williams testified, in part,
as follows :
Well, he [Neikirk] said, he gave us a cigar, and he told us boys to sit
down, and he said, "Now you boys have heard about the Union, they have
a Union meeting over here." We told him we heard, got wind of it, and he
said, "Some of the boys have been attending this meeting. Now there is
going to be an election coming up next Wednesday," I believe it was, "and
I don't want you boys to let me down. Some of you boys know how to vote
and some of you don't know how to vote. Those of you who don't, I have
something to show you just how to vote for the Union or against the
Union." And he said, mentioned, "now you can vote any way that you
wish to vote, but for my part, I am not a Union man."
Williams also testified that during the morning of March 17, the day of the
Board's election, Neikirk and Lyle H. Fisher, the Respondent's industrial rela-
tions director, came to where he and the other two members of the loading gang
were working ; that during the conversation that then ensued, Neikirk asked the
three employees whether they were "with him" ; that the three employees replied
that they were; and that Neikirk then said "Remember, boys, you said you
were with us ; I don't want any double-crossing."
Napoleon Carr, who attended the Neikirk meetings with Williams and partici-
pated in the above conversations testified to by Williams, corroborated, in the
main, the testimony of Williams.
8 An additional ballot was cast but that ballot was protested . The record does not
show whether the protest was ever resolved.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fred Marsden, a kiln operator , testified that on or about February 4, he and
about 10 other employees were called into Neikirk 's office ; that Neikirk told
them about the Board 's election and that Neikirk said he was "out to win"
it ; that Neikirk added that the Respondent had a vacation plan which Neikirk
then proceeded to outline ; and that Neikirk then stated he did not like Unions,
and particularly the CIO because "it was run by a bunch of Communists."
Marsden further testified that Neikirk further said that the employees had the
right to vote either for or against the Union ; that the election would be by
secret ballot and no one would know how the individual employees voted ; and
that Neikirk concluded the interview by saying he hoped the employees "were on
the right side of the fence."
Regarding conversations he had with Neikirk on March 8 and 9, Marsden
testified as follows :
We sat and jabbered back and forth about lots of things that wasn't per-
taining to this case , and then he showed me an article in the Chicago Tribune
relating to a certain man being a Communist . He said he was run out of
the CIO and was sent across the border , and asked me if I would take that
across over to the plant and show it to the other fellows, and I told him I
would. That evening I showed Reddy Kindy, J. B. Evatt, Pfeiffer-I showed
them that paper , that article in the paper . And then I was asked if I could
find out-
Trial Examiner MYERS. Who asked you?
The WITNESS. Mr. Neikirk.
Trial Examiner MYERS. When?
The WITNESS. Before I left the office-if I would take and try to find
out how the boys felt about the Union and how they were going, in a round
about way, how they were going to vote. I stated to Mr. Neikirk that at
the present time the boys told me plain to my face it was none of my damned
business how they voted. So he asked me if I would come back the next
day and report , which I did, and he asked me if I had found out how the
boys were voting and I says to him, "I told you, Mr. Neikirk, what they
would tell me-that it was none of my business how they voted." That
is, I believe , all there was to that conversation at that time.
Harold House, whose lay-off will be discussed below, testified that on or
about March 15, he and two coworkers were called into Neikirk 's office ; that
the three of them were asked by Neikirk if they were for the Union or for
Neikirk; that none of the employees replied; and that Neikirk then said,
"You might be all hot-headed Union men, but I don't see that it will do [you]
any good and I want you to be with me. If you have confidence in me, well, let
the Union alone."
House further testified that about 3 days prior to the Board ' s election Neikirk
sent for him and that he had the following conversation with Neikirk :
Well, he [Neikirk] asked me if I was for the Union and I didn't answer
yes or no. And he asked me if I had confidence in him, the most confi-
dence in him or the Union. I still didn't say anything. And he went on
and said, "Well, now, whether you boys want to get a Union or not," he
said, "they can't do anything for you." He said, "Are you for me or are
you for the Union?" Then I said, "Well, regardless of what comes about,
what the situation leads to, it wouldn't make me an enemy to you or at
least I wouldn't feel hard towards you. We would still be just like we
are. There wouldn't be anything there regardless of what came about,
MINNESOTA MINING & M ;NUFACTURING COMPANY 567
and I would rather not come out and just tell just exactly what I was to
anybody because it might cause feelings either way, hard feelings either
way."
Robert Ball, whose lay-off will be discussed below, testified that on or about
March 8, 1948, the following conversation between him and Neikirk took place in
the latter's office :
He [Neikirk] says, "Now I know that you are President of the Union."
I said, "Well, you still know more about it than I do." He said, "Well, I
didn't know whether you knew it or not." I didn't give him a direct answer
on it, because I didn't want to put myself on the spot. We talked on a little
bit about vacations with pay, paid holidays, and he says, "I am out to
win this election." He said, "I have got to have a little help." I asked
him then if there were any complaints on my work, and he said, "No, not
none." I asked him if he was going to lay me off and he said it might
lead up to it. I said, "Mr. Neikirk, if you are, please give me a week's
notice," and he said, "I will," and I said, "Don't drop it out on me at 3 o'clock
in the afternoon." He said, "I won't." So that ended that conversation.
Well, it didn't either. He said, "Go back over there and go to work," be-
cause he said, "this layoff may never come." He says, "If business picks
up so I won't have to lay off, I won't."
Ball further testified that during the above quoted conversation Neikirk asked
him how employee Fred Boyd, whose discharge is discussed below, felt about the
Union and that he replied that he did not know.
On or about January 8, 1948, Ira Ivey, R. L. Dumond, and four other employees
were called into Neikirk's office. Regarding what transpired there, Ivey testified
as follows :
A. Well, he [Neikirk] pointed us all out and said, "You boys know what
you are all over here for, I reckon." He said, he pointed us out one by one
and said, "I brought you over here to talk to you about the Union," he said,
"I want also to talk to you about Mr. Dumond (the Unio'n's Vice-President)
here." He said, "I want to know what your opinion about him is." We all
told him, we didn't have any opinion.
Q. Now what did Mr. Neikirk say about Dumond?
A. Well, he said he had him on the spot, and he had all us in there in
regard to what we thought about Dumond.
Q. What did be say?
A. Well, he said, "I got him on the spot," and he said, "I want your opinion,
all you guys' opinion about Dumond."
Q. Well, was there any discussion as to what you guys thought?
A. No, we all told him that we hadn't thought much about it and passed
it on.
Q. There wasn't any further conversation about it?
A. Well, he said-Let's see. He said, "If you guys are for the Company,
okay; and if you are for the Union, why, he said, it is not okay." He said,
"I don't like the Union." He says, "I don't like it, and I ain't going to have
it. I don't like the CIO."
* * * * * * *
Q. Well, did he show you any newspapers?
A. Yes, sir, he showed us a newspaper clipping.
* * * * * * *
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did Mr. Neikirk make any remarks when he showed you the clipping?
A. He said he didn't like the CIO and he was not going to have it.
Q. Did he say what kind of a Union the CIO was?
A. Well, it originated in Moscow , was supposed to.
Ivey further testified that shortly after he had received the January 1948
general 10 cents increase in wages, he asked Neikirk for another wage increase.
Regarding this incident Ivey testified as follows:
Well , I went over to see him (Neikirk ) about an increase in pay, so while
I was over there he asked me how did I feel about the Union , and I told him
that I hadn't thought much about it. He said , "You said you are for a Union."
I said, "How do you know I am for a Union?" He says , "I know." So he
said, "You go on back home and bring me a different line." He said, "If
you are for the Company , okay , and if you are for the Union ," he said, "it
is not okay."
Ivey also testified that on March 17 , the day of the Board 's election , Neikirk
said to him , "Today is election day, you had better vote right."
John Hardman testified to a conversation he had with Neikirk in January
1948, wherein the latter asked him if he had heard that the Union was trying
to organize the employees and that when he replied in the negative , Neikirk then
said, in case he heard anyone discussing the Union , he should "tell the boys
to come over [ because ] he (Neikirk ) wanted to talk to them." .
The evening before the Board 's election the Union held a meeting in a public
hall near the plant . On the following day, according to Andrew Ward's unde-
nied and credible testimony , his foreman , Jack Jones , and he had the following
conversation :
Well, he ( Jones ) said, "I thought you were for Mr . Neikirk and now you
were at the meeting last night." I said, "Yes , sir, I was there." And he
said, "Now don 't let the old man down." "No , sir," I said, "I told Mr. Nei-
kirk that I was for him."
Ward further testified that later that day, March 17, Neikirk and Lyle Fisher
came to where he was working; that Neikirk said to him, to quote Ward's testi-
mony, "I thought you were for me and they elected you a shop steward" ; that
he replied , "Yes, sir, they did, but I couldn't keep them from electing me a shop
steward" ; that Neikirk then asked, "You are for me, ain't you " ; and that he
replied in the affirmative.
While not specifically denying making the statements attributed to him by
Williams , Carr, Marsden, House , Ball, Ivey , Hardman, and Ward, Neikirk testi-
fied that he called the employees into his office in January 1948, in order to
explain to them the Respondent 's wage policy and to inform them of the general
wage increase which just had been granted ; that the other meetings and talks
he had with the employees were for the purpose of explaining to them the Re-
spondent 's personnel and labor policies, its bonus or profit -sharing plan, its
pension plan, its hospitalization plan, and its vacation -with-pay plan ; that he
did not indicate in any of his talks with the employees that the Respondent would
discontinue any benefit it had granted prior thereto if the Union won the election,
nor did he at any time promise the employees any additional benefit if the Union
lost the election ; that he did not ask any employee how the employees intended
to vote in the Board 's election ; that his main reason for calling the employees to
his office was because "quite a few" employees had never participated in a Board-
conducted election and he "felt as though it was my duty to explain the working
MINNESOTA MINING & MANUFACTURING COMPANY 569
of the election" to the employees ; that he told some of the employees that they
had the absolute right to vote for or against the Union ; that to other employees
he said, "You know what we stand for ; you know what you have ; now, let your
conscience be your guide " ; and that he used the phrase , "Let your conscience be
your guide" "simply because I had already explained it to them that our person-
nel policies, our labor policies , that is something that they already have. Now,
what a union can give you more than that, I wouldn't know."
Neikirk impressed the undersigned as being a witness who was withholding
the true facts , which facts were within his personal knowledge , and, therefore,
the undersigned does not credit his testimony . Neikirk admitted being opposed
to the unionization of the employees and that he wanted to so impress the em-
ployees. He did not deny , moreover , the testimony of Williams , Carr, Marsden,
House, Ball, Ivey, Hardman, and Ward which testimony clearly indicates that
Neikirk queried them and other employees about their membership and activities
in behalf of the Union and as to how they intended to vote in the election. The
undersigned was impressed with the sincerity and candor with which Williams,
Carr, Marsden, House , Ball , Ivey, Hardman, and Ward testified and finds that
Neikirk made the statements which each of them attributed to him.
The undersigned further finds that Neikirk ' s queries about the employees'
membership in the Union and his questions with respect to how the employees
intended to vote in the election coerced and intimidated the employees and thus
interfered with the free exercise of their right to chose a bargaining representa-
tive. The undersigned is not unmindful of the fact that many employees test.fied,
in effect, that they were not coerced or intimidated by Neikirk 's statements and
that despite his statements they voted in the election as they wanted and that
they had always felt free to join or not to join any labor organization they desired.
The undersigned is of the opinion , and finds, that this testimony does not over-
come the more positive evidence in the record that Neikirk 's statements removed
from the employees the complete freedom of choice of the selection of a bargaining
representative which the Act contemplates . Moreover , such testimony by em-
ployees concerning the effect , or lack of effect, of the Respondent 's acts on them,
aside from being generally unreliable because of the very nature of the circum-
stances involved , is not probative of whether the Respondent had actually engaged
in the illegal conduct found above. Furthermore , the record reveals other inci-
dents which further establish the Respondent 's illegal position . Thus, on the day
prior to the Board's election , Foreman Elliott called the five or six men composing
the loading dock crew together and, according to Jimmie Williams ' testimony,
the following then took place :
Well, he ( Elliott ) said, "Boys ," he said, "you know what we are here for.
In other words, we called this meeting together to find out how you boys felt
towards the Union." He said, "A few of you boys know about the Union and
a few of you don't," and he said, "I can tell you about it, how the Union oper-
ates and how they don't ." Well, Taker didn't have anything to say. And then
he asked, "Did we have anything to say?" So we refused to say anything,
and he said , "Well, the Union , you would be just strangers ." I asked the
question , "How could we be strangers ", and he explained-He mentioned that
if we get the Union that we would be strangers-in other words , he couldn't
be friendly with us and we couldn 't be friendly with him. I asked him how
would we become strangers, and he said , "Well, just like that I take one of
you men and send you up to help Taker or have Taker help you. Well, I
couldn ' t do that if the Union was here." He explained the best he could. We
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted to know more about it, and he asked was there anything to be said
about it. . . .
Regarding this incident, Elliott testified that he called the crew together because
he wanted "to find out how they felt, if they had any questions they wanted to
ask about the Union or about the Company, why, I would try to answer them for
them." Williams impressed the undersigned as an honest and forthright witness.
This fact, coupled with the absence of any denial on Elliott's part with respect to
the statements attributed to him by Williams, convinces the undersigned that
Elliott made the said statements and the undersigned so finds The undersigned
further finds that the said statements of Elliott, as testified to by Williams, are
violative of the Act.
The Respondent's counsel contended at the hearing that Neikirk's and Elliott's
statements to the employees are protected by Section 8 (c) of the Act. Insofar
as presently relevant, that section provides that "The expressing of any views,
arguments, or opinion . . . shall not . . . be evidence of an unfair labor
practice . . . if such expression contains no threat of reprisal or force or
promise of benefit." The legislative history of the Act in silhouette against the
contemporary background, clearly indicates that the objective of Section 8 (c) was
to preclude an inference of unfair conduct from an unconnected statement of atti-
tude alone. It was not designed to preclude, as here, consideration of connected,
immediately relevant utterances.
Viewed in this light, by Neikirk's interrogations of the employees concerning
their union activities and sympathies as to how they would vote in the election
and by Neikirk questioning some employees as to the union activities and sympa-
thies of their coworkers, the Respondent engaged in acts violative of Section 8 (a)
(1) of the Act. By Elliott's veiled threat that if the Union won the election the
employees would become more burdensome, the Respondent violated Section 8
(a) (1) of the Act.
Assuming, arguendo, that Neikirk's and Elliott's statements did not in them-
selves contain any such threat of reprisal or force or promise of benefit, that
fact, standing alone, would not bring the statements within the purview of Sec-
tion 8 (c) for, as the legislative history of the Act shows, the Congress did not
intend that the threats and promises of benefit which remove expressions of
views and opinions from the protection of that section must necessarily appear
in the context of such statement. It was not, moreover, the intention of the
Congress to preclude a consideration of threats or promises of benefit where, as
here, they are implicitly and inextricably a part of the conduct in question 4
The undersigned further finds, contrary to the Respondent's contention, that
the granting of the general wage increase and Neikirk 's explanation to the
employees of the Respondent 's hospitalization plan, pension plan , vacation plan,
and bonus or profit-sharing plan were for an unlawful purpose. Assuming,
as the Respondent contends , that the determination to grant a general wage
increase had been made some time prior to the advent of the Union and after a
"survey of the comparable rates in the area" had been made, the undersigned is
convinced , and finds, that the wage increase was put into effect and the various
beneficial plans were announced or explained for the purpose of inducing the
employees to abandon their efforts to bargain collectively . This finding is
buttressed by the fact that the general wage increase was put into effect without
4 See 93 Cong . Rec. 4261, 3950 , 6601, 6603 , 6604-6605 , 6673, 7002 ; Sen. Rep. No. 103,
80th Cong ., 1st Sess, p. 23; House Rep No. 510 , 80th Cong , 1st Sess. , pp. 43, 45 ; House
Rep. No. 245 , 80th Cong., 1st Sess., p. 33
MINNESOTA MINING & MANUFACTURING COMPANY 571
first notifying or consulting the Union, even though the Respondent well knew
that the Union was then claiming to represent the majority of the employees.
While the Respondent was not obligated by statute to consult or notify, before
granting a wage increase, a union who had not proven its majority status,
the Respondent, however, adroitly timed the granting of the wage increase
to impress upon the employees that continued union affiliation was a fruitless
gesture and that they could rely upon the employer's unilateral generosity
to attain their economic ends. This finding finds support in Neikirk's statement
of March 15, to House and two other employees, "I don't think [the Union] will
do [you] any good. . . . If you have any confidence in me, well, let the Union
alone." Moreover, the beneficial plans, referred to above, which were allegedly
in existence since the beginning of operations of the Little Rock plant were
never made known to the employees until shortly prior to the Board's conducted
election and then announced by Neikirk during his interrogation of the employees
concerning their union sympathies and as to how they intended to vote in
the election. By the said actions the Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by the Act
and thereby violated Section 8 (a) (1) of the Act.
Upon the basis of the above findings, the undersigned concludes, and finds,
that the Respondent interfered with the conduct of the election of March 17,
1948, thereby depriving the employees of the freedom of choice of representatives
contemplated by the Act. Accordingly, the undersigned recommends that the
said election be set aside and vacated.
With respect to the meeting of the employees called by the Respondent on
March 16, the General Counsel argued at the hearing that the remarks made
by the various speakers contained statements which are violative of the Act.
With this argument, the undersigned disagrees and finds that the remarks are
not such as are proscribed by the Act. Likewise, contrary to the contention of
the General Counsel, the letter which the Respondent sent to each employee on
March 12, contains no statement which might properly be construed as being
violative of the Act.
C. The discharges
The complaint, as amended at the hearing, alleged that the Respondent,
in violation of the Act, laid off Robert Ball and Fred Boyd on March 23, 1948,
and Harold House on March 26, 1948. In its answer, the Respondent averred,
and at the hearing contended, that the three named persons were not discharged
in violation of the Act, but were laid off due to lack of work. The answer further
averred that between February 22 and March 28, 1948, the Respondent laid off
19 employees, including the 3 persons involved herein for lack of work and that
"all lay-offs were made without consideration of the union activity of the
employee but said lay-offs were made on the basis of plant efficiency and
seniority" and that many of the said laid-off employees, including House, have
been re-employed or have been offered re-employment when vacancies occurred.
The facts pertaining to the three named dischargees will be discussed seriatim:
Robert Ball was first employed by the Respondent on May 17, 1947, as a welder
third-class and during his employment performed acetylene and electric welding
and millwright work. Ball worked on the 3rd shift until that shift was dis-
continued on February 20, 1948. Thereafter he worked on the first shift until be
was laid off on March 23, 1948. Ball's starting wage was $1 per hour. During
his employment he received three 10-cent per hour increases.
Ball joined the Union in August 1947, and shortly thereafter was elected its
vice president. In November 1947, after E. F. Cupples, the then president of
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union was discharged, Ball was elected president. He was active in behalf
of the Union and Neikirk was fully aware of this activity and of the fact that
Ball was the Union's vice president. Neikirk also knew that Ball was elected
president for on March 8, 1948, according to Ball's credible testimony, the follow-
ing conversation ensued between him and Neikirk:
He [Neikirk] says, "Now I know that you are President of the Union."
I said, "Well, you still know more about it than I do." He said, "Well, I
didn't know whether you knew it or not." I didn't give him a direct answer
on it, because I didn't want to put myself on the spot. We talked on a little
bit about vacations with pay, paid holidays, and he says, "I am out to win
this election." He said, "I have got to have a little help." I asked him
then if there were any complaints on my work, and he said, "No, not none." I
asked him if he was going to lay me off and he said it might lead up to it.
I said, "Mr. Neikirk, if you are, please give me a week's notice, and he said,
"I will," and I said, `Don't drop it out on me at 3 o'clock in the afternoon."
He said, "I won't." So that ended that conversation. Well, it didn't either.
He said, "Go on back over there and go to work", because he said, "this lay-
off may never come." He says, "If business picks up so I won't have to lay
off, I won't."
Furthermore, later that day, March 8, Ball's supervisor, Basil Whitmeyer, said
to Ball, according to the latter's undenied and credible testimony, that Neikirk
was surprised that Ball "got mixed up" with the Union.
Whitmeyer, testified, in response to a question propounded to him by the
Respondent's counsel that the reason for the lay-off of Ball "because we cut out
the third shift and didn't have any work for him." Not satisfied with the answer
because admittedly Ball had been on the first shift for over a month prior to the
lay-off, Respondent's counsel then asked Whitmeyer why Ball was selected in
preference to any other welder. To this question Whitmeyer replied, "on account
of his ability." Pressed still further, Whitmeyer then said that despite the fact
that Ball was a good worker, the other welders were more capable.
Neikirk testified that Ball was selected for lay-off in preference to any other
welder because "his job was eliminated."
Both Neikirk and Whitmeyer admitted that Ball was a capable worker and
that Ball would have been retained in the Respondent's employ had not the third
shift been eliminated.
The record clearly indicates and the undersigned finds that the Respondent
never found any fault with Ball's workmanship. In fact, the record affirmatively
shows that Neikirk on several occasions complimented Ball's ability to perform
his work. Moreover, both Neikirk and Whitmeyer admitted that they would
rehire Ball if the third shift was again put into operation.
The Respondent's answer averred that the lay-offs of Ball, Boyd, and House
"were made on the basis of plant efficiency and seniority." Surely, the Respon-
dent could not have given Ball's seniority any consideration when it laid him off
because the Respondent's records clearly show that of the four welders first-
class in the Respondent's employ when Ball was laid off, Ball had more seniority
than any of them. Furthermore, Ball performed millwright work for the
Respondent and, according to the Respondent's records, he had more seniority
than any millwright in the Respondent's employ on March 23, 1948, the day he
was laid off.
Fred Boyd was first employed by the Respondent on May 2G, 1947, as a mill-
wright second-class and worked on the third shift until that shift was elimi-
MINNESOTA MINING & MANUFACTURING COMPANY 573
nated on February 20, 1948. Thereafter, and until his lay-off on March 23, 1948,
he worked on the first shift. Boyd's starting wage was $1.00 per hour which
was increased in January 1948, to $1.10 per hour.
Ball joined the Union in May 1947, and attended its meeting fairly regularly.
His union affiliations were well known to the Respondent for on the day follow-
ing meeting of the Union on March 16, Neikirk asked Ball whether the meeting
was well attended and Ball replied in the affirmative. Besides, several days
prior to the above conversation, Neikirk questioned Ball regarding Boyd's sym-
pathies for the Union.
Neikirk testified that Boyd, like Ball, was selected for lay-off because the
third shift had been discontinued. Neikirk, like Whitmeyer, admitted that
Boyd would be rehired if the third shift was put in operation again.
Regarding the reason for laying off Boyd, Whitmeyer testified, under direct
examination by the Respondent's counsel as follows :
Q. Why was he [Boyd] terminated?
A. Because we cut out the third shift.
Q. Why was he chosen in determining he was to be terminated, laid
off? Did you look at the same things which you did when Ball was laid
off, compare his ability with that of other employees?
A. Yes, we compared ability.
Q. In your opinion, were the employees who remained on the payroll
better workmen in their line of work?
A. Yes.
Harrold House was first employed by the Respondent on June 11, 1947, as a
millwright first class, which classification he retained throughout his employ-
ment. His starting wage was $1.15 per hour and at the time of his lay-off, on
March 26, 1948, he was receiving $1.30 per hour.
In August 1947, Neikirk offered to promote House to a leadman 6 but House
declined for personal reasons.
In November 1947, House joined the Union. The Respondent was fully aware
of House's union membership for in December 1947, Neikirk called House and two
or three other employees into his office and asked them whether they had heard
that the Union was attempting to organize the plant. Each admitted that he
had. Neikirk then proceeded to advise the said three or four employees to
refrain from joining or aiding the Union. House then asked Neikerk what
assurances the Respondent would give the millwrights with respect to job security.
Neikirk assured House that he and the other millwrights were excellent workers
and that they were "on the docket to stay" despite any temporary lay-offs which
might arise.
On or about March 14, Neikirk and House, according to House's credible
testimony, had the following conversation :
Well, he [Neikirk] asked me if I was for the Union and I didn't answer
yes or no. And he asked me if I had confidence in him, the most confidence in
him or the Union. I still didn't say anything. And he went on and said,
"Well now, whether you boys want to get a Union or not", he said, "they can't
do anything for you." He said, "Are you for me or are you for the Union?"
Then I said, "Well, regardless of what comes about, what the situation leads
to, it wouldn't make me an enemy to you or at least I wouldn't feel hard
s According to House's credited testimony a leadman in the Respondent' s plant per-
formed the duties of an acting foreman and was responsible for the work done by the
men under his supervision.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
towards you . We would still be just like we are . There wouldn 't be any-
thing there regardless of what came about, and 1 would rather not come
out and just tell just exactly what I was to anybody because it might cause
feelings either way , hard feelings either way."
House testified and the undersigned finds, that on March 26 , Whitmeyer, his
supervisor , told him that he was being laid -off "due to shortages of orders" and he
was being selected because he had less seniority than the other millwrights e
Neikirk testified that lack of business necessitated the lay -off of House.
Whitmeyer testified that House was selected for lay-off because of curtailment
of production and "he was the youngest [ on] the seniority list of the maintenance
employees ." However, according to the Respondent ' s employment records,
House had more seniority at the time of his lay-off than any of the other four
millwrights , then in the Respondent 's employ , except one.'
With respect to the three discharges, the Respondent contended at the hearing,
and in its brief, that the General Counsel did not prove that the complainants
were selected for lay-offs on a discriminatory basis. To this contention the
undersigned can not agree.
From the credible evidence, and the record as a whole , a finding is justified
that the Respondent did, in fact, select the complainants herein for lay-off on a
discriminatory basis. No plausible explanation whatever was offered by the
Respondent other than that business cr,mpelhrd it to reduce its force , and that
when it decided to lay off Ball on March 23 , and House on March 26 ability and
seniority were taken in consideration . And when it laid off Boyd ability was the
primary reason. But the Respondent introduced no evidence furnishing a basis
for comparing the ability of the laid-off employees here involved with the ability
of those retained .' At the hearing, and, in its brief , the Respondent offered vari-
ous reasons for selecting the complainants for lay-offs , but when these reasons
are weighed against the credible evidence in the case it is plain , and the under-
signed finds , that the reasons advanced were not the controlling reasons for the
selection . The undersigned further finds that Ball, Boyd, and House were laid
off, and that Ball and Boyd have been refused reinstatement , because they were
members of the Union.
Upon the entire record in the case, the undersigned concludes and finds, that, by
laying off Ball and Boyd on March 23, 194S, and thereafter refusing to reinstate
them, and by laying off House on March 26, 1948, and refusing to reinstate him
until May 25, 1948 , because of their respective union memberships and activities,
the Respondent has discriminated with regard to the hire and tenure of their
employment , thereby discouraging membership in a labor organization and inter-
fering with , restraining , and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) and (3)
thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring in
connection with the operations of the Respondent described in Section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
6 House was reinstated on May 25, 1948 , when another millwright quit the Respondent's
employ.
' On May 25 , 1948, House replaced millwright Gathin who had quit. The record does
not show Gatkin ' s seniority status on March 26, 1948 , the date of House's lay-off
8 The testimony of Neikirk and Whitmeyer that the retained millwrights and welders were
better workers and could perform more diversified jobs than Ball , Boyd, and House is
unconvincing and unreliable and therefore not credited by the undersigned.
MINNESOTA MINING & MANUFACTURING COMPANY 575
among the several States, and such of them as has been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violat-
ing Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that
it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to hire and
tenure of employment of Robert Ball, Fred Boyd, and Harold House, the under-
signed will recommend that the Respondent offer to the said Ball and Boyd im-
mediate and full reinstatement to their former or substantially equivalent
positions,' without prejudice to their seniority and other rights and privileges.
The undersigned will also recommend that the Respondent make the said Ball
and Boyd whole for any loss of pay they have suffered by reason of the Respond-
ent's discrimination against them, by payment to each of them of a sum of
money equal to the amount he would have normally earned as wages from the
date of his respective discharge to the date of the Respondent's offer of reinstate-
ment, less his net earnings during that period.10
The undersigned will also recommend that the Respondent make Harold House
whole for any loss of pay he may have suffered by reason of the Respondent's
discrimination against him by payment to him of a sum of money equal to the
amount he would have normally earned as wages from March 26, 1948, the date
of his discriminatory lay-off to May 2,, 1948, the date of his reinstatement, less
his net earnings.
The scope of the Respondent's illegal conduct discloses a purpose to defeat
self-organization among its employees. It sought to coerce them in the exercise
of the rights guaranteed them in the Act by discriminatorily laying off Ball, Boyd,
and House. Such conduct, which is specifically violative of Section 8 (a) (1)
and (3) of the Act, reflects a determination generally to interfere with, restrain,
and coerce its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives
of their own cl.oosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, and presents a ready
and effective means of destroying self-organization among its employees. Be-
cause of the Respondent's unlawful conduct and since there appears to be an
underlying attitude of opposition on the part of the Respondent to the purposes
of the Act to protect the rights of employees generally;' the undersigned is
convinced that if the Respondent is not restrained from committing such conduct,
the danger of their commission in the future is to be anticipated from the Re-
spondent's conduct in the past, and the policies of the Act will be defeated. In
order, therefore, to make effective the interdependent guarantees of Section 7
of the Act, to prevent a recurrence of unfair labor practices, and thereby mini-
mize industrial strife which burdens and obstructs commerce, and thus ef-
fectuate the policies of the Act, the undersigned will recommend that the
I In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible and if such position is no longer in existence then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan
Puerto Rico Branch, 65 N L. It. B 827
10 See Matter of Crossett Lumber Co.. 8 N. L. R B 440.
11 See May Department Stores Company, etc. v. N. L. R. B., 326 U. S. 376.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Gas, Coke and Chemical Workers Union of America, affiliated with
the Congress of Industrial Organizations, is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in,
and is engaging in, unfair labor practices, within the meaning of Section 8 (a)
(1) of the Act.
3. By laying off and discriminating in regard to the hire and tenure of em-
ployment of Robert Ball, Fred Boyd, and Harold House, thereby discouraging
membership in United Gas, Coke and Chemical Workers Union of America,
affiliated with the Congress of Industrial Organizations, the Respondent has
engaged in, and is engaging in, unfair labor practices, within the meaning of
Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the Respondent,
Minnesota Mining & Manufacturing Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Gas, Coke and Chemical Workers
Union of America, affiliated with the Congress of Industrial Organizations, or
any other labor organization of its employees, by laying off or refusing to re-
instate any of its employees or by discriminating in any other manner in regard
to their hire and tenure of employment, or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization to form labor organiza-
tions, to join or assist the Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Robert Ball and Fred Boyd immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges;
(b) Make whole Robert Ball and Fred Boyd for any loss of pay each may
have suffered by reason of the Respondent's discrimination against them by
payment to each of them of a sum of money equal to the amount which he
normally would have earned as wages from the date of his lay-off to the date
of the Respondent's offer of reinstatement, less his net earnings during that
period ;
MINNESOTA MINING & MANUFACTURING COMPANY 577
(c) Make whole Darold House for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him by payment to him of
a sum of money equal to the amount which he normally would have earned as
wages from the date of his discriminatory lay-off, March 26, 1948, to the date
of his reinstatement, May 25, 1948, less his net earnings during that period ;
(d) Post at its plant in Little Rock, Arkansas, copies of the notice attached
to this Intermediate Report marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall, after being
signed by the Respondent's representative, be posted by the Respondent, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material ;
(e) Notify the Regional Director for the Fifteenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to
take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report and Recommended Order or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report and Recommended Order. Immediately upon the filing
of such statement of exceptions and/or briefs, the party filing the same shall
serve a copy thereof upon each of the other parties. Statements of exceptions
and briefs shall designate by precise citation the portions of the record relies
upon and shall be legibly printed or mimeographed, and if mimeographed shall be
double spaced. Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.85. As further provided
in said Section 203 46 should any party desire permission to argue orally before
the Board, request therefor must be made in writing to the Board within ten
(10) days from the date of service of the order transferring the case to the Board
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings, conclusions , recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
HOWARD MYERS,
Trial Examiner.
Dated--------------------
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist UNITED GAS, COKE AND CHEMICAL WORKERS
UNION OF AMERICA, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to Robert Ball and Fred Boyd immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the dis-
crimination.
WE WILL also make whole Harold House for any loss of pay suffered by
him as a result of our discrimination against him.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
MINNESOTA MINING & MANUFACTURING COMPANY,
Employer.
Dated ---------------- By ---------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.