Nibco, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1957

119 N.L.R.B. 277 (N.L.R.B. 1957)

NIBCO, INC. 277
AIL of the arguments and contentions urged upon me by the General Counsel
hale been carefully considered by the Board and the Courts and have been rejected
as pointed out in detail above.
In my opinion , what the General Counsel seeks to accomplish in this proceeding
can be brought about only by an amendment to the Act. If the Congress wishes
to sound the death knell to peaceful , recognition picketing by a 'minority because
of the economic pressures such picketing exerts on an employer , it of course may
do so, but it may not be done by administrative fiat. As the New York Court
of Appeals stated in Wood v. O'Grady, 307 N. Y. 532, cert. denied 349 U. S. 939,
"It is axiomatic that we may not, under the guise of interpretation , import into
a statute conditions or criteria which the legislature has been careful to omit."
See also Colgate-Palmolive-Peet Co. v. N. L. R. B., 338 U. S. 355.
Indeed, the Joint Committee on Labor Management Relations whose function,
among others , was the study and investigation of "the administration and
operation of existing Federal laws relating to labor relations " considered the
problems we have in the instant case and was also of the opinion that to achieve
the objective here sought by the General Counsel , the Act would require amendment 11
In view of the foregoing and upon the entire record , I will recommend that the
complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The operations of Curtis Brothers, Inc., constitute and affect trade, traffic,
and commerce among the several States within the meaning of Section 2 (6) and
(7) of the Act.
2. Drivers, Chauffeurs, and Helpers Local 639, International Brotherhood of
Teamsters, -Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent, Drivers, Chauffeurs, and Helpers Local 639, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America,
AFL-CIO, has not engaged in unfair labor practices within the meaning of Section S
(b) (1) (A) of the Act.
[Recommendations omitted from publication.]
"Report of the Joint Committee on Labor Management Relations , Committee Print
No. 986, pt. 3, 80th Cong., 2d sess., pp . 86-87. See also address by Professor Archibald
Cox, at the CIO Conference on Labor Law, December 9, 1954.
Nibco, Inc.' and Lewis R. Thomas. Case No. 16-CA-931. Oeto-
ber 31,1957
DECISION AND ORDER
On February 28,1957 , Trial Examiner Thomas N. Kessel 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 ex-
ceptions to the Intermediate Report and a supporting brief. The
General Counsel filed exceptions limited to the remedy and a sup-
porting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock and Jenkins].
i The name of the Respondent appears as corrected at the hearing.
119 NLRB No. 36.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the modifications and exceptions noted
below.
We agree with the Trial Examiner that the Respondent, in violation
of Section 8 (a) (3) and (1) of the Act, laid off employee Thomas on
September 8, 1956, because of his union activities and not, as the Re-
spondent contends, because of economic necessity.2 However, we do
not agree with the Trial Examiner that the evidence warrants the in-
ference that, subsequent to the layoff, Thomas might, nevertheless, have
been separated for valid reasons. In support of this inference, the
Trial Examiner relies on evidence to the effect that the Respondent,
on or about January 1, 1957, discontinued the helper classification in the
maintenance department which Thomas and another employee, Baker,
occupied. However, at that time Baker was transferred to a job in
another department. In these circumstances, and in view of all the
evidence in the record, we have reason to believe that, but for Thomas'
union leadership, he, too, Would have been transferred to a comparable
position in another department which he was qualified to perform.' Ac-
cordingly, to remedy the discriminatory action taken against Thomas,
we shall direct the Respondent to offer Thomas immediate and full re-
instatement to his former (if such position is reestablished) or a
substantially equivalent position without prejudice to his seniority
or other rights and privileges and to reimburse him for any loss of
pay he may have suffered by payment to him of a sum of money equal
to the amount he would have earned as wages from the date of the
discrimination to the date of the offer of reinstatement, less his net
earnings during said period. Determination of the amount of back
pay due shall be based on the quarterly method of computation
established by the Board in the F. IV. IVoolworth Company s case.
We find that the foregoing remedy is necessary and appropriate to
effectuate the policies of the Act.
2 There is some doubt whether there was economic need for any layoff. Not only did the
Respondent release merely 2 out of approximately 300 employees, but an exhibit in the
record indicates that there was actually an increase in the number of employees during
the month of September 1956, when the layoff occurred. In any event, whether or not
there was an economic necessity for a reduction in force, the evidence abundantly estab-
lishes that the Respondent was motivated by antiunion considerations in the selection of
Thomas for the layoff.
We note that the Trial Examiner in certain portions of his report characterized the
separation of Thomas as a discharge. However, he appears to conclude that the separation
was a layoff and not a discharge. We do not believe it necessary to determine the type of
separation as, no matter how it was designated, it was a discriminatory separation from
employment.
3 90 NLRB 289 , 291-294.
NIBCO, INC.
ORDER
279
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 Nibco, Inc., Nacogdoches, Texas,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in, or activities on behalf of, any
labor organization of its employees by laying off or discharging
'employees, or in any other manner discriminating against them in
regard to their hire or tenure of employment or any term or condi-
tion of employment, except to the extent permitted by Section 8
(a) (3) of the Act.
(b) Interrogating its employees as to their union views and ac-
tivities and as to the identity of employees engaged in union activi-
ties in a manner constituting interference with, restraint, or coercion
,of employees in violation of Section 8 (a) (1) of the Act.
(c) Directing employees not to discuss union matters with a warn-
ing that such discussions will lead to abandonment of any contem-
plated construction of new buildings.
(d) Warning employees that they will lose their jobs or be trans-
ferred to other jobs if-the plant becomes unionized.
(e) Warning employees that their union activities are suspected
by plant officials and that they should therefore reveal all knowledge
which they have pertaining to union activities.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Lewis R. Thomas immediate and full reinstatement to
his former (if such position is reestablished) or a substantially
equivalent position, without prejudice to his seniority-or other rights
and privileges, and make him whole for any loss of pay suffered as
a result of the discrimination, as provided in this Decision and. Order.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
-security payment records, timecards, personnel records and reports,
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all other records necessary to analyze the amount of back pay
due and the rights of employment under the terms of this Order.
(c) Post at its plant in Nacogdoches, Texas, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth 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 a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, as to
what steps the Respondent has taken to comply herewith.
• In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activities on be-
half of, any labor organization of our employees by laying off
or discharging employees or in any other manner discriminating
against them in regard to their hire or tenure of employment or
any term or condition of employment, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
WE WILL NOT interrogate our employees as to their union views
and activities and as to the identity of employees engaged in union
activities in a manner constituting interference with, restraint,
or coercion of employees in violation of Section 8 (a) (1) ; direct
our employees not to discuss union matters with a warning that
such discussions will lead to abandonment of any contemplated
construction of new buildings; warn our employees that they will
lose their jobs or be transferred to other jobs if the plant becomes
unionized; or warn our employees that their union activities are
suspected by plant officials and that they should therefore reveal
all knowledge which they have pertaining to union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form, join, or assist any labor organization, to bargain
NIBCO , INC. ` t 281
collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all 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
Section8 (a) (3) of the Act.
WE WILL offer Lewis R. Thomas immediate and full reinstate-
ment to his former (if such position is reestablished) or a sub-
stantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss
of pay he may have suffered because of the discrimination against
him.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except as
such right is affected by an agreement as authorized in Section 8 (a)
(3) of the Act.
NIBco, INC.,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge against Northern Indiana Brass Company of Texas, whose cor-
porate name was changed in January 1957 to Nibco, Inc., herein called the Respond-
ent, filed by Lewis R. Thomas, an individual, the General Counsel of the National
Labor Relations Board , by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued on November 28, 1956, his complaint in this proceeding
alleging that the Respondent had engaged in and was engaging in certain unfair
labor practices affecting commerce within the meaning of the National Labor Re-
lations Act, 61 Stat. 136, herein called the Act. Copies of the formal documents
and notice of hearing were duly served on the parties.
With respect to the unfair labor practices, the complaint alleges that the Re-
spondent had engaged in conduct violative of Section 8 (a) (1) and (3) of the Act.
The Respondent's answer denies these allegations . Pursuant to notice a hearing
was held at Nacogdoches, Texas, on January 22, 1957, before the Trial Examiner
duly designated to conduct the hearing. The General Counsel and the Respondent
were represented by counsel and were afforded full opportunity to be heard, to
,examine and cross-examine witnesses , and to introduce evidence . After the hearing,
the General Counsel and Respondent filed briefs which have been carefully
considered.
Upon the entire record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
Nibco, Inc ., is an Indiana corporation with plants at Elkhart , Indiana, and at
Nacogdoches , Texas. At its Nacogdoches plant the Respondent produces metal
products used in the home construction industry. This plant annually produces
goods valued in excess of $50,000 which it ships to points outside the State of Texas.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
District 50, United Mine Workers of America, herein called the Union, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The relevant evidence
All the unlawful conduct is alleged to have occurred at the Respondent's Nacog-
doches plant. In early August 1956 a representative of the Union had sounded out.
the employees about forming a labor organization. After employee Lewis R. Thomas.
had been approached by fellow employees concerning this matter he communicated.
with the Union's representative who came to Nacogdoches for an August 8 meeting.
Directly afterward, Thomas with other employees solicited membership of the.
Respondent's employees in the Union and in the first week of these activities 38
signatures were procured. Thereafter, Thomas continued to solicit members in the
company of representatives of the Union and he continued with these activities until
his separation from employment on September 8, 1956. In all, according to his.
best estimate, Thomas personally solicited up to 50 employees.
Thomas had worked for the Respondent approximately 2 years before his separa-
tion on September 8. On this latter date he was sent by his foreman, Wilson, to
Jack Hargis, the personnel manager, who notified him that he was being laid off.
Thomas questioned why seniority was not being observed in his selection and"
Hargis replied, "We do not have to." When Thomas remarked that he would file:
an unfair labor practice charge with the Board against the Respondent, Hargis re-
torted that it was he who mentioned the Union. Thomas then asserted that he had'
not mentioned the Union to employees or signed them up on the job, and Hargis
conceded that so far as management knew this was right.
Thomas had worked in the Respondent's -maintenance crew from the time he was
first employed. His impression was that he had been classified by the Respondent
as a millwright and was unaware that he might actually have been classified as a
maintenance helper. He conceded that he was not a skilled plumber, electrician, or-
carpenter. He testified that work in the plant was "pretty steady" at the time of
his separation. Although some production employees had been laid off a few months
earlier no maintenance employees had been touched. He claimed that the plant was.
on three shifts, on September 8, that a number of laid-off employees had been
recalled, and that the Respondent was hiring new employees. Following his layoff
Thomas had applied to the Texas Employment Commission for unemployment
compensation and had signed a document in which a clerk had noted as the reason,
for his separation "laid off-not needed." Thomas explained that he had told the-
clerk that his separation resulted from union activities, but that the clerk had
omitted this information from the application.
Thomas related an incident which occurred about a month before the beginning:
of the organizing campaign on August 8, when Foreman Wilson asked a group
of maintenance employees whether they had heard anything about the Union and
said, "If you have you had better not mention it because they have been approved'
for the new building and if they get wind of it they won't build it."
Employee Bobby Henry Baker testified that about a week before Thomas' separa-
tion Foreman Wilson asked him what he thought about the Union and remarked'
that all that he could do against it would help him in his job. Wilson added that
he was not supposed to say this about the Union, and Baker responded that he-
needed his job.
Chester Sachtleben works for the Respondent and is also a pastor in a local
church. Sometime after Labor Day in 1956 his foreman, Martin Johnson, asked'
him how the Union was going and how he felt about it. Sachtleben told him he
intended to stay out of the Union because of his pastorship, and in effect indicated'
that he felt obligated to maintain neutrality on the issue. Johnson, however, indi-
cated that he should take a "stand" one way or the other. Sachtleben disagreed.
Johnson did not suggest what stand he should take. He also asked Sachtleben.
whether he had had an "opportunity" to sign a union card. Sachtleben expressed
the opinion that Johnson had not in this conversation come to him to find out about
the Union. According to Sachtleben, the day before Thomas' separation, Johnson,
said to him, "They wasn't interested in who signed the cards. They wanted to know
who started it." Johnson further said "that they had a description of the people
who started it, but they didn't know about it." He then described the person as a
man with "bad teeth in the front" and stated he was a molder. (Thomas has some-
teeth missing from the front of his mouth.) On the Friday before Thomas' separa-
NIBCO, INC. 283,
tion Sachtleben had been visited by Thomas and-.a union representative. Thomas`
was separated the. next day. On the following Monday Sachtleben divulged in a
conversation with Johnson that he had had visitors the preceding Friday. Johnson,
then asked for their identity, but Sachtleben refused to give their-names. A few
minutes after Johnson left, Personnel Manager Hargis came to Sachtleben and asked
who had visited him. Sachtleben still refused to answer, whereupon Hargis inquired
whether it was Thomas. Sachtleben replied, "I still won't answer it, but you are
just close enough."
Employee Jefferson Wheeler testified that in October 1956 he had two conversa-
tions with Lee Martin, the Respondent's vice president. One lasted about an hour,
and the other about 30 minutes. Wheeler related that they had "quite a talk about
the union." He could not remember all that was said, but did recall the following.
Martin asked him whether he knew Mr. Ford. Wheeler did not then know that
Ford headed the Union's office in Houston. Martin also asked Wheeler whether
he knew Mr. Ledbetter, one of the Union's representatives who had come to Nacog-
doches to assist in organizing the Respondent's plant. Wheeler admitted that he
knew him. Martin then asked Wheeler how much Ledbetter was paying him to get
union cards signed. Wheeler denied receiving any payment and Martin commented
that he was getting a raw deal, that up North they paid 25 dollars for each card
signed. He pointed out that he had been dealing with the Union at Elkhart for 15
years during which there had been 3 strikes. Wheeler expressed the opinion that this
was a good record. In the second conversation Martin had walked up to Wheeler,
according to the latter, and said, "Wheeler, there isn't any beating around the bush
with me; I know what you are doing. You are going around with Mr. Ledbetter
signing people up in the Union." Wheeler told him this was no secret and that he
was not ashamed of these activities, and Martin expounded on the lack of need for
a union.
Hoover Green has since January 1, 1957, been the supervisor of the office at the
Respondent's Nacogdoches plant. Before then he had been assistant to Glen Epps,
the foreman of the shipping department. He testified that Thomas had called him
twice in 1956 during the period when the Union was conducting its organizing activi-
ties. Green had spoken to Epps in this period and had told him he had been "ap-
proached" about the Union. He told him that Sanders, the union representative, and
Wheeler had come to his home to have him sign a union card. He also told Epps about
the first call he had received from Thomas. He claimed, however, that he did not tell.
Epps that it was Thomas who had called as he had not caught the name of his caller
but had learned only that he worked in the maintenance department. Green knew
Thomas personally and was aware that he then worked in the maintenance
department.
W. C. Sparks is employed in the Respondent's maintenance department. He testi-
fied that on the Monday after Thomas was separated he had asked Foreman Wilson
what had happened to Thomas, and Wilson had replied that Thomas has been fired
because "he tried to give somebody a card and they came in and told Jack." The
"Jack" referred to is Personnel Manager Hargis. According to Sparks, Wilson
also told him that for his own benefit he should tell Hargis if he knew anything
"for if it went Union [he] wouldn't have a job." Wilson mentioned the names of
certain employees in the maintenance department who he indicated would be dis-
persed to other departments of the plant. He further said that from the way he
had been questioned by Hargis the latter suspected Sparks' support for the Union.
All of the foregoing testimony was adduced by the General Counsel. The only
witness presented by the Respondent was Robert R. Kline, the general manager of
the Nacogdoches plant. Kline testified that he had been aware of the Union's cam-
paign and had consequently instructed his supervisors that in accordance with the
Respondent's policy they were to remain neutral and were not to indicate to em-
ployees whether they should or should not join the Union or what their sympathies
should be. Because he did not know of any claim of representation by the Union
he had instructed his supervisors to listen to any employee who wished to speak to
them but not to open conversations with them about the Union or to inquire as to their
membership in the Union. Various employees had voluntarily apprised him of their
membership in the Union but none had told him that Thomas was a member and
he did not know on September 8, 1956, when Thomas was separated, that he be-
longed to the Union.
Kline offered the following explanation for Thomas' separation. He denied that
he had been discharged because of his union activities and claimed that Thomas
had been laid off for justifiable economic reasons. The Respondent's business, he
related, customarily underwent a decline in the closing period of each year. In
September 1956 there was not only the usual expected decline but there were prog-
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nostications of a general slump throughout the ensuing year. On top of all this
Kline received a telephone call in July or August from the home office in Elkhart,
Indiana, instructing him to curtail employment. He thereupon summoned his gen-
eral foremen and told them that there must be cost reductions. Production of exist-
ing orders, however, was not to be affected by such reductions. He instructed them
to screen all categories of personnel and to report where cuts could be made. At the
meeting of general foremen on Friday afternoon, September 7, the foremen pre-
sented their reports. All favored retention of their employees except the plant
engineer and the foundry superintendent. The former recommended dropping 1
maintenance employee and canceling a requisition for 2 new hires in the toolroom.
The foundry superintendent stated that he could eliminate a sweeper. Acting upon
these recommendations, Kline approved the layoff of the foundry sweeper and of
Thomas in the maintenance crew. Before doing so, he had investigated Thomas'
seniority standing and was satisfied that because Thomas was the junior employee
in his department in his classification his layoff was in accord with the Respondent's
seniority policy. Apart from the layoffs of Thomas and the foundry sweeper and
the cancellation of the requisition for the two toolroom jobs, no other employee
either in production or maintenance was affected by the Respondent's economy drive.
Orders were given to eliminate all overtime, but according to Kline there had not
been "too much" overtime work performed before September 7. At that time the
Respondent employed 196 production workers. No new employees have since been
hired. Presently, the Respondent employs 184 production employees and has a total
force of 286 employees.
Kline further explained that among the 12 employees comprising the maintenance
crew on September 7, all but Thomas and the aforementioned Bobby Baker were
skilled in certain craft duties. Thomas and Baker were the only helpers in the
crew, and Baker had several months' seniority over Thomas. From the spring of
1954 the Respondent had conducted a plant expansion program which had neces-
sitated an enlargement of its maintenance force. By September 1, 1956, this pro-
gram had terminated with no further expansion work remaining to be done. This
was a factor which motivated the decision by the plant engineer and the maintenance
foreman, Wilson, to dispense with Thomas. Since his layoff on September 8, 1956,
no employee has been brought into the maintenance department either by new hire
or transfer to perform his duties, and on about January 1, 1957, Baker was trans-
ferred to another department without a replacement. Thus, at present, there are no
helpers employed in the maintenance crew, only skilled maintenance men. When-
ever one of these employees requires assistance it is furnished by another skilled
employee.
B. Findings and conclusions
1. Coercion, restraint, and interference
The Respondent offered no evidence to refute the testimony of the General
Counsel's witnesses as to comments attributed by them to Foremen Wilson and
Johnson, Vice President Martin, and Personnel Manager Hargis. Because nothing
appears in this record and nothing occurred at the hearing to impeach the credibility
of these witnesses, I find, in accord with their uncontroverted testimony, that the
aforementioned supervisors and officials of the Respondent uttered the following
remarks which coerced, restrained, and interfered with the activities of employees
guaranteed by Section 7 of the Act in violation of Section 8 (a) (1) of the Act:
(a) Foreman Wilson's directive to employees not to mention anything about the
Union lest the Respondent hear of it and in consequence abandon a plan it had ap-
proved for construction of a new building.
(b) Foreman Wilson's interrogation of employee Baker as to his union views
coupled with the observation that all he could do against the Union would help him
in his job.
(c) Foreman Wilson's remark to employee Sparks that employee Thomas had
been discharged for giving out a union card; his remark to Sparks that if the plant
were unionized he would lose his job and that other employees would be transferred
from their jobs; and Wilson's directive to Sparks that he reveal to Personnel Manager
Hargis what he knew about the Union coupled with his warning that Hargis suspected
that he was supporting the Union.
(d) Foreman Johnson's comment to employee Sachtleben concerning the Re-
spondent's interest in ascertaining who had instigated the union drive, and his inter-
rogation of Sachtleben as to the identity of his union visitors. (I do not regard
as coercive Johnson's interrogation of Sachtleben as to his union views or whether
he had had an opportunity to sign a union card particularly as Sachtleben conceded
that Johnson had not come to him to find out about the Union; nor do I regard
NIBCO, INC. 285
Johnson's suggestion to Sachtleben that he take a stand about the Union one way or
the other as coercive, especially as Sachtleben conceded that Johnson did not indicate
how he should stand. I did not gather the impression from Sachtleben's account
of these remarks that there was anything more involved in them than casual
conversation.)
(e) Personnel Manager Hargis' interrogation of employee Sachtleben to determine
the identity of his union visitors.
(f) Vice President Martin's interrogation of employee Wheeler to determine
whether he knew certain representatives of the Union; Martin's interrogation of
Wheeler as to compensation by the Union for activities in its behalf; and Martin's
accusation to Wheeler that he knew he was actively supporting the Union.
The Respondent argues that the above-detailed conduct should not be found vio-
lative of the Act because the remarks were uttered in a spirit of friendliness, were not
coercive in content, or constituted privileged free speech, and because General
Manager Kline had imposed a strict rule of neutrality upon his supervisors in which
he forbade them to interrogate employees as to their union views or activities or to
influence their views. Even if spoken in a spirit of friendship the remarks under
consideration were reasonably calculated to have a coercive effect, and are therefore
proscribed. They therefore do not fall within the ambit of free speech. That Kline
may have forbidden these coercive interrogations and warnings of reprisal by his
supervisors is immaterial for his instructions to these supervisors were never com-
municated to the rank-and-file employees and their comments were not neutralized by
appropriate repudiation. Finally, the Respondent contends that because the Union
had claimed to represent a majority of its employees it had a right to interrogate these
employees to determine the correctness of the Union's claim. Assuming this posi-
tion to have been correctly stated, the facts show more than mere interest in the
validity of the Union's claim to have been involved in the several interrogations. Thus
Foreman Wilson's interrogation of employee Baker as to his union views was coupled
with a comment which could have been construed as a promise of benefit or a threat
of reprisal; Foreman Johnson interrogated Sachtleben as to the identity of persons
who came to him from the Union and this interrogation was clearly related to his
coercive remark concerning the Respondent's interest in the identity of the Union's
instigator; Hargis' interrogation of Sachtleben also sought identification of union
adherents; and Martin's questioning of Wheeler was designed to disclose his union ac-
tivities. These were not merely casual inquiries for the purpose of investigating the
Union's claim of representation, but were patent attempts to secure information as to
the union activities and sympathies of specific employees in a manner prohibited
by the Act.
2. Discrimination
All elements necessary to support the allegation of the complaint that Thomas
was unlawfully discharged because of his union activities are clearly established
by the record. These are that he had taken a leading part in the instigation and
promotion of the drive to unionize the Respondent's employees, that his activities
were suspected or known to the Respondent as revealed by Foreman Johnson's
remarks to employee Sachtleben, that there were overt expressions. of opposition
and hostility to the Union from the Respondent's supervisors and officials notably
at the high level of the Respondent's vice-presidency, that the Respondent's agents
had committed unlawful coercive conduct in opposing the Union's progress, and
that Thomas had been discharged in the midst of the Union's campaign at a time
when the Respondent's supervisors were attempting to identify the employee who
was sparking the union movement. In addition to these circumstances strongly
pointing to discrimination, there is the more direct evidence contained in the
admission of Thomas' foreman, Wilson, that he had been discharged for activity
in behalf of the Union. This is forceful proof which has not been overcome by
the Respondent's economic defense designed to show that Thomas was laid off
merely as the result of an economy program. I am satisfied that he was laid off,
and not discharged, but find nevertheless that this action was unlawfully motivated.
In the face of the General Counsel's compelling evidence, I am not convinced
that it was the mere necessity for economy, as related by Kline, which produced
the selection for layoff of only 2 employees out of hundreds, 1 of whom coinci-
dently happened to be so leading a figure in the union movement as Thomas.
In concluding that Thomas was discriminatorily selected for layoff it is not necessary
to find, as the Respondent suggests, that General Manager Kline was personally
aware of Thomas' activities or was himself unlawfully motivated, for it was not he
who selected Thomas but the maintenance superintendent in concert with Fore-
man Wilson as to whom there is abundant evidence to show his discriminatory motives
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well as his uncontroverted admission that Thomas was in fact discharged for union
activity. I am persuaded that Wilson, probably out of fear of the effects of unioniza-
tion on his own job, as evidenced by his above-related comments, had selected
Thomas for layoff under the guise of economy to impede the Union's progress by get-
ting Thomas out of the plant. Whether Kline would have authorized such action had
he been aware of Wilson's motive, or whether Wilson's conduct was in opposition to
Kline's instructions is immaterial to a finding of violation by the Respondent, for
Wilson was its agent and was acting within the scope of his agency in selecting
Thomas for layoff. By such conduct the Respondent violated Section 8 (a) (3) of
the Act.
The foregoing finding does not preclude the fact that Thomas might eventually
have been separated from his job for justifiable reasons. The record shows that the
Respondent has reduced its maintenance force since Thomas' departure for valid
reasons through the transfer of Baker, the other helper, from the department and
no employees- have been brought into the department as replacements for Thomas or
Baker. This circumstance, however, does not affect the foregoing finding of violation
but pertains only to the remedy as indicated hereinafter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
It has been found that the Respondent had on September 8, 1956, discriminatorily
laid off employee Lewis R. Thomas and that it has since failed to reinstate him to
employment. It will, therefore, be recommended that the Respondent be ordered
to offer him immediate and full reinstatement to his former or substantially equivalent
position without prejudice to seniority or other rights and privileges, subject to the
following conditions. The record contains evidence which, as I have indicated, shows
that absent the discrimination against him Thomas might nevertheless have been sepa-
rated from his employment because of a reduction in the Respondent's maintenance
work. If there is now insufficient work to warrant Thomas' employment by the
Respondent either as an employee of its maintenance department or in any other
equivalent job in which he might have been employed absent the discrimination against
him, it is recommended that the Respondent not be required to offer him immediate
reinstatement, but that it be required to place his name on a preferential hiring list
and that he be offered employment therefrom as work requiring the services of a
maintenance helper in the maintenance department becomes available or as work in
any other department for which he may be qualified becomes available and before
any other person is hired for such work. If any other person has been hired since
the close of the hearing to perform such work, it is recommended that he be dis-
missed and that Thomas forthwith be offered reinstatement.
It shall also be recommended that the Respondent make whole Thomas for any loss
he may have suffered because of the discrimination against him by payment of a
sum of money equal to the amount he normally would have earned as wages from
the date of the discrimination to the date of the offer of reinstatement, or placement
on such preferential list, as the case may be, less his net earnings during said period,
with back pay computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289. As it appears that he might ultimately
have been separated from employment even if he had not on September 8, 1956,
been discriminatorily laid off, this possibility will be taken into consideration in de-
termining the back pay due him in compliance with this recommendation.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices may reasonably be anticipated. It will
therefore be recommended that the Respondent be ordered to cease and desist
from in any manner infringing upon the rights guaranteed to its employees by Sec-
tion 7 of the Act. Upon the basis of the foregoing findings of fact and upon the
entire record in the case, I make the following:
LOCAL NO. 48 287
CONCLUSIONS OF LAW
1. Nibco , Inc., is an employer within the meaning of Section 2 ( 2) of the Act, and
is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. District 50, United Mine Workers of America , is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of Lewis R.
Thomas, thereby discouraging the free exercise of rights guaranteed by Section 7
.of the Act and discouraging membership in and activities for the above -mentioned
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Local No. 48, Sheet Metal Workers International Association,
AFL-CIO , and its agents , W. J. McDowell and T. E. Reid [Gads-
den Heating and Sheet Metal Company] and Mark Louis Talia-
ferro
Sheet Metal Workers International Association , AFL-CIO, and
its agent , C. J. Heckel and Mark Louis Taliaferro . Cases Nos.
10-CD-76 and 10-CD-77. October 31, 1957
DECISION AND DETERMINATION OF DISPUTE
On December 31, 1956, Mark Louis Taliaferro filed charges with
the Regional Director for the Tenth Region, and amended charges
thereafter, alleging that Local No. 48 and its agents, McDowell and
Reid, and also the International and its agent, Heckel, had engaged
in and were engaging in certain unfair labor practices within the
meaning of Section 8 (b) (4) (D) of the Act.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the Regional
Director investigated the charges and provided for an appropriate
hearing upon due notice. The hearing was held at Gadsden, Alabama,
on' February 28 and March 1, 1957, before Louis Libbin, hearing
officer. All parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. The rulings of the hearing
officer made at the hearing were free from prejudicial error and are
hereby affirmed. All parties filed briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS Or FACT
1. Leach Manufacturing Company is engaged in commerce within
the meaning of the Act.
119 NLRB No. 30.