Oil City Brass Works

National Labor Relations Board - Board Decisions

Jun 24, 1964

147 N.L.R.B. 627 (N.L.R.B. 1964)

OIL CITY BRASS WORKS 627
the Twenty-sixth Region , shall, after being signed by a managing representative of
Respondent , be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 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 Twenty -sixth Region , in writing , within
10 days from the date of this Recommended Order , what steps the Respondent has
taken to comply herewith.°
6 In the event that this Recommended Order be adopted by the Board , this provision shall
be modified to read: "Notify said Regional Director , in writing , within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended; we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of United
Textile Workers of America , or any other labor organization of our employees,
by discriminating against any employee in regard to hire or tenure or any terms
or conditions of employment.
WE WILL NOT threaten employees with loss of employment or loss of work
or loss of privileges as consequences of union activity or affiliation.
WE WILL NOT convey the impression of surveillance of union activities by
statements to employees.
WE WILL NOT in any like or related manner interfere with , restrain, or coerce
any of our employees in the exercise of their right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, as guaranteed
by Section 7 of the Act , or to refrain from any or all such activities.
WE WILL make Aulene Howell whole for any loss of pay she may have suffered
by reason of the discrimination against her.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of United Textile Workers of America , or any other labor
organization.
U.S. RUBBER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for. 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 746
Federal Office Building , 167 North Main Street , Memphis , Tennessee , Telephone
No. 534-3161 , if_they have any question concerning this notice or compliance with
its provisions.
Oil City Brass Works and International Brotherhood of Boiler-
makers, Iron Ship Builders , Blacksmiths, Forgers and Help-
ers, Local 587, AFL-CIO. Case No. f3-CA-1470. June 24,196!1-
DECISION AND ORDER
On March 29, 1963, Trial Examiner James T. Barker issued his
Intermediate Report in the above-entitled proceeding , finding that
147 NLRB No. 76.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 attached Intermediate
Report.
The complaint alleged that Respondent violated Section 8 (a) (1) of
the Act in the failure to recall from layoff and subsequent discharge of
John Hammock, a supervisor, because he gave testimony in a prior
Board proceeding. A,t the hearing, Respondent offered to prove that
five rank-and-file employees who also had testified adversely to Re-
spondent at the prior hearing were subsequently recalled from lay-
,off, voluntarily, and that three of these employees were presently
working for Respondent. Respondent also offered to prove that,
after the prior hearing, the union set up a picket line, and Respondent
later offered one of the pickets his job back. In making its offers of
proof, Respondent contended they were material as to motive. The
Trial Examiner rejected the offers of proof. On April 17, 1963, the
Respondent filed exceptions to the Trial Examiner's Intermediate
Report, contending that its offers of proof were also material as they
related to the finding that Hammock's discharge had a coercive effect
on rank-and-file employees.
On June 27, 1963, the Board 1 issued an order directing that the
record be reopened for the purpose of receiving the proffered evidence
and any rebuttal thereto; and directing further that the Trial Ex-
aminer prepare a Supplemental Intermediate Report containing find-
ings of fact upon the evidence so received. Pursuant to the
Board's order, a hearing was held before Trial Examiner Barker on
August 22, 1963.
On November 14, 1963, the Trial Examiner issued his Supplemental
Decision in this case, finding that the Respondent had not engaged in
the unfair labor practices alleged and recommending that the com-
plaint be dismissed in its entirety, as set forth in the attached Sup-
plemental Decision. Thereafter, the General Counsel filed exceptions
to the Supplemental Decision and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearings, and, except for the ruling on the offers noted above,
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the Trial Examiner's Supplemental Decision, the exceptions and
briefs, and the entire record in the case, and hereby adopts the find-
ings and conclusions of the Trial Examiner to the extent consistent
with this Decision and Order.
=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 [Members Fanning, Brawn,
and Jenkins].
OIL CITY BRASS WORKS 629
The undisputed record evidence shows that on May 3, 1962, Re-
spondent placed Hammock on layoff, in which status he remained until
July 20, 1962, when Respondent offered him temporary work de-
pending on gathering a crew. On July 23, 1962, Hammock appeared
as a witness for the General Counsel in a Board hearing which in-
volved the discriminatory layoff of employees in March and April
1962 2 Hammock testified adversely to Respondent's interests at that
hearing and was thereafter discharged.
As noted, the complaint alleged as the only violation of the Act
the failure to recall from layoff and subsequent discharge of Super-
visor Hammock because he gave testimony in a Board proceeding.
In defense, Respondent asserted that it discharged Hammock because
his testimony revealed he was a union member, which fact was not
known to Respondent until that time, and not because he testified.
However, the Trial Examiner found from facts in the record that
Respondent had knowledge of Hammock's union affiliation prior to
his testifying in the hearing in Case No. 23-CA-1416 and discredited
Respondent's denial to the contrary. In so finding, the Trial Examiner
rejected Respondent's defense. We agree with the Trial Examiner's
findings in this regard, and find that Respondent's defense that it
discharged Hammock because of what his testimony revealed is with-
out merit. We also agree with the Trial Examiner's finding in his
Intermediate Report, and reaffirmed in his Supplemental Decision,
that in terminating Hammock, Respondent was motivated, at least
in part, by the fact that Hammock appeared and gave testimony ad-
verse to the Respondent at the prior hearing.
The remaining question is whether the evidence, and proper infer-
ences therefrom, show that Supervisor Hammock's discharge inter-
fered with the employees' Section 7 rights. From his consideration of
the Board decisions in Better Monkey Grip Company, 115 NLRB
1170, enfd. 243 F. 2d 836 (C.A. 5), cert. denied 353 U.S. 864, 355 U.S.
900; and Dal-Tex Optical Company, Inc., 131 NLRB 715, enfd. 310
F. 2d 58 (C.A. 5), the Trial Examiner concluded that a supervisor's
discharge for testifying violates Section 8 (a) (1). when. employees have
knowledge of the fact the supervisor gave testimony and was dis-
charged therefor, and when circumstances exist from which em-
ployees would reasonably believe a similar fate would befall them if
they gave testimony. The Trial Examiner concluded that it did not
matter that employees here may have believed that Hammock's dis-
charge resulted from his adverse testimony, because, as shown by the
evidence presented on remand, the Respondent retained and reinstated
rank-and-file employees "without retribution" after they had testified
2 See Oil City Brass Works, 141 NLRB 131, Case No. 23-CA-1416, hearing held July 23,
24, and 25, 1962.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adversely to Respondent. It is this retention and reinstatement, the
Trial Examiner found, that would eradicate any belief on the part of
employees that Respondent would take any discharge action against
them if they similarly testified. Accordingly, the Trial Examiner
recommended dismissal of the alleged 8(a) (1) interference.
-Contrary to the finding of the Trial Examiner in his Supplemental
Decision, we hold that Hammock's discharge did interfere with the
organizational rights of rank-and-file employees, and the evidence
presented on remand does not convince us otherwise. From the facts
in 'the instant case, it is clear that both the fact and the nature of Ham-
mock's prior testimony came to the attention of the employees. It is
also reasonable to find that his precipitious discharge immediately
after his appearance as awitness came to employee attention. From
the mentioned circumstances , we conclude that rank -and-file em-
ployees knew Hammock gave testimony and was subsequently dis-
charged, and that in such a situation employees ;would reasonably be-
lieve a similar fate would befall them if they gave testimony in a
Board proceeding. We further find that the evidence adduced in the
remanded hearing showing retention and reinstatement of employees
who testified was not of such a substantial nature to completely
eradicate the coercive effect of Hammock's discharge upon employees.
Also, the evidence presented on remand showing simple retention and
subsequent reinstatement of employees after a strike does not demon-
strate that Respondent's attitude was without retribution, especially in
view of the questionable occurrences accompanying them. Moreover,
in Better Monkey Grip Company, supra, the Board found a violation
of Section 8(a) (1) in the discharge of a supervisor because he gave
testimony adverse to the Respondent's interests in a Board proceed-
ing, holding "rank and file employees are entitled to vindicate .. .
[their statutory right to seek vindication in Board proceedings] .. .
through the testimony of supervisors who have knowledge of the facts
without the supervisors risking discharge or other penalty for giving
testimony under the Act adverse to their employer." 3 Accordingly,
we find that Supervisor Hammock's discharge violated Section
8(a) (1) of the Act by interfering, restraining, or coercing employees
in the exercise of their Section 7 rights.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices , we shall order it to cease. and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
8 See Eugen Pedersen v. N.L R.B ., 234 F . 2d 417 (C A. 2).
OIL CITY BRASS WORKS 631
-We have found that Hammock's discharge- interfered with,. re-
strained, and coerced nonsupervisory employees in the exercise of
their statutory rights. In order to restore to these employees their
full freedom to exercise these rights and thus to effectuate the policies
of the Act, we shall order that Respondent offer Hammock immediate
and full reinstatement to his former .or substantially equivalent po-
sition, without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may have suffered by
reason of such discharge by payment to him of a sum of money equal
to the amount he would have earned from the date of his discharge to
the date of the offer of reinstatement, less earnings during said pe-
riod, to be computed in accordance with the formula set out in
F. W. Woolworth Company, 90 NLRB 289, together with interest at
the rate of 6 percent per annum to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By discharging John Hammock because he gave testimony at a
Board proceeding, the Respondent, Oil City Brass Works, has inter-
fered with, restrained, or coerced employees in the free exercise of their
statutory rights guaranteed by Section 7, of the Act, in violation of
Section 8 (a) (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Oil City Brass Works, Beaumont, Texas, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, or coercing nonsupervisory em-
ployees in the exercise of their statutory rights by discharging super-
visory personnel because they have given testimony under the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise. of the rights to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,
Local 587, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in any other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
such activities.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer John Hammock immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole in the
manner set forth above in the section entitled "The Remedy." Notify
the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended, after dis-
charge from the Armed Forces.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post, at its Beaumont, Texas, plant, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the
Regional Director for the Twenty-third Region, shall, after being duly
signed by a representative of the Respondent, be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to its 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 Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps the
Respondenthas 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 "a Decision and Order" the words "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 interfere with, restrain, or coerce our employees
in the exercise of their statutory rights by discharging supervisory
personnel because they have given testimony under the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their rights to self-organiza-
tion, to form labor organizations, to join or assist International
OIL CITY BRASS WORKS 633
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, Local 587, AFL-CIO,' or any other labor
organization, to bargain collectively through representatives of
their own choosing, or 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 such activities.
WE WILL offer John Hammock full and immediate reinstatement
to his former or substantially equivalent position, without preju-
dice to any seniority or other rights and privileges, and make him
whole for any loss of pay suffered as a result of his discharge.
OIL CITY BRAss WoRKs,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2,
Texas, Telephone No. Capitol 8-0611, Extension 296, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE.
Upon a charge filed on August 9, 1962 , by International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths , Forgers and Helpers, Local 587, AFL-CIO,
hereinafter called the Union , the Regional Director of the National Labor Rela-
tions Board for the Twenty-third Region on October 24, 1962, issued a complaint
against Oil City Brass Works, hereinafter called Respondent , alleging violation of
Section 8 (a)(1) of the National Labor Relations Act, hereinafter called the Act.
In its duly filed answer Respondent admitted certain allegations of the complaint
but denied the commission of any unfair labor practice.
Pursuant to notice , a hearing was held before Trial Examiner James T. Barker at
Beaumont , Texas, on December 20, 1962. All parties were represented at the
hearing and were afforded full opportunity to be heard, to introduce relevant evidence,
to present oral argument , and to file briefs with me. The parties waived oral argu-
ment and in lieu thereof filed briefs with me thereafter.
Upon consideration of the entire record and the briefs of the parties , and upon
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation , having its principal plant and place of
business at Beaumont , Texas, where it is engaged in business as a nonferrous brass
works, foundry shop, machine shop , and forge shop . During the 12 months im-
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediately preceding the issuance of the complaint herein, Respondent in the course
and conduct of its business operations at its Beaumont, Texas, plant purchased goods
and materials valued at more than $100,000, which were transported directly to its
Beaumont, Texas, plant from points outside the State of Texas. During the same pe-
riod, Respondent sold and shipped products valued at more than $100,000 from its
Beaumont, Texas, plant directly to points outside the State of Texas. Upon these
admitted facts I find that Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths,Forgers and Helpers, Local 587, AFL-CIO, is admitted by Respondent to be a labor
organization within the meaning of Section 2 (5) of the Act and I so find.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about July 26, 1962, Respondent discharged and
failed and refused to recall from temporary layoff status, John Hammock, a super-
visor, because he gave testimony in a National Labor Relations Board proceeding
in Oil City Brass Works, 141 NLRB 131. The complaint further alleges that by such
conduct the Respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act. The Respondent denies the allegations of the complaint and
contends that at all times since May'4, 1962, John Hammock has been in layoff
status as a result of an economic reduction in force and that he has not been recalled
because his testimony in Case No. 23-CA-1416, the aforementioned case, revealed
for the first time his membership in and activity on behalf of the Union deemed by
Respondent to be incompatible with his duties and obligations as a supervisor.
A. Background
1. The prior proceeding
Pursuant to charges filed by the Union in Case No. 23-CA-1416, the Regional
Director of the National Labor Relations Board for the Twenty-third Region on
June 13, 1962, issued a complaint against the Respondent herein alleging viola-
tions of Section 8(a) (1), (3), and (5) of the National Labor Relations Act. There-
after a hearing was held before Trial Examiner John H. Sadie on July 23, 24, and
25, 1962. On the initial day of the hearing, July 23, John Hammock appeared
pursuant to subpena and testified as a witness for the General Counsel.' I find that
his testimony was adverse to the Respondent.
On March 5, 1963, the Board issued a Decision and Order z in the aforementioned
proceeding, wherein it found Oil City Brass Works guilty of unfair labor practices
violative of Section 8(a)(1), (3), and (5) of the Act. I have taken official notice
of that Decision and Order and rely upon the findings therein to the extent herein-
after indicated.
2. The status of John Hammock
The parties stipulated that at times pertinent John Hammock was a supervisor
within the meaning of the-Act and I so find. At times prior to May 4, 1962, Ham-
mock served as the supervisor of the third crew comprised of six employees, who
performed work in the Respondent's forge shop. Between May 4 and July 26,
when Respondent advised Hammock that he would not be reemployed, Hammock
has been in layoff status.
1 I have taken official notice of the prior proceeding and have reviewed the testimony of
John Hammock appearing in the transcript thereof with the view of determining whether
his testimony appearing therein could be characterized as "adverse" to the Respondent.
Hammock's testimony relating to Respondent's use of seniority with respect to layoffs ;
past manpower retention and utilization practices during slack periods ; the upturn in the
volume of business just prior to the March 9 layoffs ; the references of George L. Bryant III
to "agitators"; Bryant's instructions to supervisors to find out "where" the union "got
started" ; issues relating to the discharge of employee Kimball ; the reduction of "break
time" after the advent of the Union; and the removal of the saw shop telephone are illus-
trative of testimony given by Hammock which ran counter to positions taken by the
Respondent at the prior hearing.
2 141 NLRB 131.
OIL CITY BRASS WORKS 635
B. Events. preceding the hearing
1. The July 20 conversation
On Friday, July 20, George E. Bryant III, hereinafter called Bryant III, assistant
to the president of Respondent, contacted Hammock and informed him that he had
approximately 2 weeks' work to be performed and was endeavoring to gather a third
forging crew to perform this work. Bryant asked Hammock if he desired to re-
turn to work and Hammock stated that he did. Hammock denied that Bryant III
informed him on this occasion that the work was to be temporary.
I am convinced that Bryant III, in endeavoring to assemble a crew through tele-
phonic contacts, apprised the individuals to whom he spoke, and Hammock among
them, that the employment was for a temporary period. He testified credibly and
without contradiction concerning the use of a form request prepared in advance of
the telephone calls which specified the temporary nature of the employment. In
view of the pendency of the hearing on the unfair labor practice charge against
Respondent involving allegations of Section 8(a)(3), it is entirely reasonable that
Bryant III would have taken this precautionary measure in contacting employees,
some of whom were alleged discriminatees therein. In view of the formalities
followed, I perceive. no reason for assuming that in conversing with Hammock on
July 20, Bryant III would have failed to inform him of the expected duration of
the employment being proffered. Bryant III testified convincingly he told Hammock
the employment was to be temporary. In the circumstances, I credit the testimony
of Bryant III that he so informed Hammock on Friday, July 20, and reject Hammock's
contrary testimony.3 .
2. The July 21 conversation
The following day Bryant III again contacted Hammock by telephone and informed
him that he had been able to get only "three of the old men back" and asked if it
would be satisfactory with Hammock if he obtained additional help through the
unemployment office. Hammock acquiesced and Bryant said he would "bear with"
Hammock until the new men gained experience.
During the conversation Bryant III informed Hammock that he had in his
possession a check covering 3 or 4 days' work. Hammock answered that he had
left the check intending it to cover the periodic deduction for hospitalization.
Bryant III thereupon reminded Hammock that he was entitled to compensation for
his annual vacation which had accrued. Hammock arranged for his wife to secure
the checks which she did. Two checks were given to her, a smaller one to cover
the 3 or 4 days' work and a larger one to cover the vacation period. From the
latter was deducted hospitalization premiums to cover the period ending Au-
gust 15, 1962.4
s In the diminution of the Respondent's contention that the employment proffered on
July 20 was temporary only, the General Counsel endeavored to show that at all times
pertinent both before and after the hearing Respondent had a continuing need for a full-
time third crew and on July 20 acted in recognition of that need. Assuming that in the
absence of a discriminatory motive (which the Board has found in the prior case governed
the March 9 layoff and those on April 20 and May 3, 4, and 10) a third crew would at
all times preceding the instant hearing have been required or justified, the fact is that
Respondent operated, albeit pursuant to a discriminatory design, several weeks before the
hearing with two crews, and after failing in its attempt to formulate a third crew Re-
spondent operated on a two-crew basis until September 17, and, thereafter, only sporadically
with three crews. This evidence appears more consistent with Respondent's contention
that the work offered Hammock was intended by Respondent to be temporary than with
the General Counsel's position. Moreover, it is noted that the testimony of Bryant,
Junior, at the prior hearing on July 23 (which I have read pursuant to the request of the
parties) tends to support the conclusion that the employment proffered to Hammock was
temporary only. Justification for the action is not in issue ; it is only Respondent's inten-
tions that are.
4 The foregoing is predicated upon a synthesis of the credited testimony of Hammock and
Bryant III. I do not find persuasive one way or the other the fact that Hammock's hos-
pitalization was prepaid through August 15. While it suggests that as of July 21, both
Hammock and Respondent acknowledged and anticipated a continuing employment rela-
tionship, the prepayment occurred before Hammock's appearance as a witness which both
parties agree (but for different reasons) led to Respondent's refusal to recall him from
layoff status.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The July 23 conversation
Hammock again spoke to Bryant III on Monday , July 23 , at approximately 7:30
or 8 a .m. Hammock informed Bryant III that he had been subpenaed "to appear
at the hearing ." Bryant III answered , "Oh, I will see if I can make arrangements
with the doctor for you to get a physical this afternoon after hearing." 5
Later in the day at the initial morning session of the prior hearing , Hammock
appeared as a witness on behalf of the General Counsel and , as set forth above,
testified in several instances adverse to the position of the Respondent in that hear-
ing. Hammock credibly testified that after the hearing had ended for the day, he
contacted Bryant III by telephone and asked him if arrangements had been made for
him to take a physical examination . Bryant III answered that he did not know
and stated that he would let Hammock speak with his father , President George E.
Bryant, Jr., hereinafter called Bryant , Junior . Hammock asked Bryant , Junior,
"if he was ready for [him] to go back to work ." Bryant, Junior , answered that "he
didn't know, he hadn 't got a crew together ." Bryant , Junior , promised to call Ham-
mock when he had obtained a crew . Hammock asked Bryant, Junior, if he had
"any hard feelings" over his testimony at the hearing and Bryant, Junior , answered
that there were none .6
4. The July 26 conversation
The prior hearing ended on Wednesday, July 25. The following day Hammock
telephoned the shop and talked with Bryant -111. Hammock asked Bryant III if he
was ready for him "to go back to work ." Bryant answered:
John , you were a trusted member of management, and being a trusted member
of management you took it on your own volition to foresake this trust and be-
come a member of the Boilermaker 's Union.
It's a clear case in my mind of a conflict of interests and you can 't be both, you
can't sit on both sides of the table.
I think that it's the best interest for the Company and for yourself that we
decide right here and now that I have no choice but to tell you that there is
no job here at Oil City Brassworks , no place for you as a blacksmith . . . ?
Regarding the foregoing, Bryant III further testified that:
in substance what I meant was I can't have a supervisor here that binds me
or binds my Company and is responsible, his acts are the responsibility of the
Company, and having him with conflicting interests.
At the prior hearing on July 23 , Hammock had testified that he had attended a
union meeting of production employees during the union organizational campaign
and that the "first" such meeting he attended had been on March 5 . He also testified
that he became a member of the Union during early March and that he was still a
member of the Union . He further testified that after he became a member of the
Union he had three or four conversations with Bryant III relating to work problems
and to the reduction in force then pending or taking place . Further, during Ham-
mock's testimony at the prior hearing, counsel for the parties stipulated that on
March 3 , 1962 , Hammock signed a union authorization card.
Regarding the foregoing , Bryant III testified that he had not previously known
of Hammock 's union affiliation ; that he had heard Hammock testify concerning his
union activities ; and that as he listened he became suddenly cognizant of the poten-
tial legal ramifications vis-a-vis the Respondent of Supervisor Hammock 's activities.
Bryant III testified also that after hearing Hammock 's testimony he pondered the
matter further and when 3 days later on Thursday, and in the absence of Bryant,
Junior , Hammock called again to inquire concerning employment, he made the deci-
sion not to recall Hammock in a supervisory position.
5 The undisputed and credited testimony of Hammock . Hammock also testified that
during the conversation Bryant III for the first time informed him that the work for
which the crew was being formed was to be temporary only. While the temporary nature
of the work may have been discussed , for the reason above found, I do not credit Hammock's
testimony that this was the first time he had been so apprised.
0 The undisputed and credited testimony of Hammock.
7I credit the testimony of Bryant III as to the substance of his conversation with
Hammock. While its essence is corroborated by Hammock 's testimony, I find Bryant's ver-
sion of the conversation more credible , for I doubt Bryant III was as terse with Hammock
as Hammock's testimony would indicate or that the conversation was so abbreviated.
OIL CITY BRASS WORKS 637
CONCLUSIONS
The sole issue in this proceeding is whether, as alleged in the complaint, Re-
spondent failed and refused to recall from layoff status John Hammock, an admitted
supervisor, because he gave testimony adverse to Respondent in the prior unfair
labor practice hearing to which it was a party, or whether said failure was, as
Respondent asserts, solely because of what Hammock's testimony revealed concern-
ing his union activities as a supervisor.
It is undisputed that before Hammock testified at the prior hearing on July 23,
Respondent had sought his services conditioned only upon the successful formula-
tion of a crew to assist him. In this connection, the General Counsel contends that
commencing on Monday morning, July 23, when Bryant III initially learned that
Hammock was to appear as a witness at the hearing, Respondent revealed a changed
attitude toward him by specifying for the first time that the employment proposed
was temporary in nature, and thereafter introduced a requirement that Hammock
undergo a physical examination. As to the first contention I have found that on
July 20, 3 days before Respondent first learned of the pendency of Hammock's
testimony at the prior proceeding, Respondent had offered Hammock only tem-
porary employment. With respect to the General Counsel's further contention that
Respondent on the morning of July 23 interposed for the first time the physical
examination requirement, Bryant III, on cross-examination, testified that, this was an
insurance requirement uniformly applicable to Hammock and to each of the em-
ployees he had contacted concerning employment on Hammock's crew because of
their intervening periods of employment with other companies during the layoff
period. The General Counsel offered no evidence in way of rebuttal to this testi-
mony and thus it remains uncontradicted in the record. Bryant III testified credibly
on other issues in this proceeding and I perceive no reason for refusing to credit his
undisputed testimony in this respect and accordingly do so.
With respect to the Respondent's defense, I am unable to credit the testimony
of Bryant III that he first became aware of Hammock's union sympathies through
Hammock's testimony at the hearing. A card check was made subsequent to March
22, 1962, and was participated in by Respondent's payroll clerk. A letter from
Respondent's attorney to the Union 8 states, in part, that a card check undertaken
pursuant to a March 22 understanding had shown that one card examined had been
executed by a supervisor and was accordingly not counted, and that one had been
printed and not signed. Colloquy by counsel for Respondent indicated the printed
card was that of blacksmith W. E. Maddox. The credited testimony of blacksmith
Maddox, a supervisor, reveals that during the month of March or April, Bryant,
Junior, conversed with Maddox in the presence of John Hammock concerning some
faulty works During the conversation Bryant, Junior, stated that Hammock and
Maddox had signed the union authorization cards because he had "pulled [their]
names out of a hat." 10 I conclude that Bryant here had reference to the card
check hereinbefore mentioned and that Bryant, Junior, learned of Hammock's union
allegiance subsequent to the card check, but before this conversation. Bryant III
denies having been told by his father that Hammock had signed an authorization
card, but considering the opposition and hostility to the Union that existed in March
and April, as found by the Board in the prior case which finding I officially notice
and take cognizance of, and considering the high station of Bryant III in the
managerial hierarchy of Respondent, I am impelled to the conclusion that Bryant
III became aware in advance of the prior hearing that the card check had revealed
Hammock's execution of a union-authorization card. I cannot believe that Bryant,
Junior, remained entirely reticent about this development, or that in the antiunion
atmosphere that then existed, Bryant III held himself so aloof from the crucial
developments relating to the Union's organizational efforts that he remained un-
apprised, even by his own father, of Hammock's action."
8 General Counsel's Exhibit No. 4.
e In its Decision and Order in the prior case, of which I take official notice, the Board
found Maddox, like Hammock, to be a supervisor within the meaning of the Act.
10 Although, as found by the Board in the prior case, Bryant, Junior, expressed a belief
that Maddox's card may have been forged, lie made no similar imputation concerning
Hammock's, and there is no warrant in that decision or the instant record for assuming
he entertained similar doubt concerning Hammock's card.
11 That Bryant III was not unapprised of the union activities of employees is indicated
by the finding of the Board in the prior case that on March 12, some 2 weeks before the
card check, Bryant III expressed the opinion to Hammock that be believed the forge shop
would "run better" because "they got shed of the agitators."
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite this knowledge which I conclude and find both Bryants possessed, Ham-
mock thereafter continued in Respondent's employ for several days until May 4,
and subsequently, on July 20 was offered further employment, an offer which was
withdrawn 1 week later in terms leaving unobscured the intended permanent nature
thereof.
The sole intervening occurrence between the proffer of employment and Ham-
mock's severance was his testimony at the prior hearing. Beyond revealing that
he had signed an authorization card, a fact of which both Bryants were aware, Ham-
mock's testimony revealed only that conduct reasonably to be expected of one who
manifests his union allegiance by executing an authorization card during an orga-
nizational campaign, membership in the Union, and attendance at its organizational
meetings. It did not suggest that Hammock had played a prominent part in the
Union's organizational efforts or had participated prominently in the Union's
councils.
I am unimpressed by Respondent's apparent contention that Hammock's discharge
was affected solely in order to maintain its neutrality, for this explanation must be
weighed against the findings of the Board in the'prior case which demonstrates that
Respondent instructed its supervision, and Hammock among them, to inquire into the
union activities of its employees, and engaged in other intrusive acts which inter-
fered with their organizational rights. I am likewise unable to indulge the assump-
tion that after learning in March that Hammock had signed an authorization card,
Respondent was not moved until witnessing his testimony at the prior hearing to
reflect upon the legal ramifications of his participating in the union affairs of rank-
and-file employees. Despite knowledge revealed by the March card check, Respond-
ent issued no warning nor took no disciplinary or corrective action, although it
legally could have done so. This prior inaction does not, of course, operate so as to
foreclose Respondent from terminating Supervisor Hammock solely for his union
activities which Respondent may have believed inimical to its interest. However,
this past condonation does serve as a guide to Respondent's true motive in terminat-
ing Hammock. Weighing the disparity between the posttestimonial and pretesti-
monial reaction to Hammock's union activities, and considering this factor together
with the adverse character of Hammock's testimony at the prior hearing, I conclude
and find that in terminating Hammock Respondent was motivated, at least in part, by
the fact that he appeared as a witness at the Board hearing and gave testimony
adverse to Respondent.12 The effect of Hammock's termination was to cause non-
supervisory employees reasonably to fear that Respondent would take the same action
against them if they testified adversely to Respondent at a Board hearing.13 The
Board has found that one of the guarantees given employees under the Act is the
right to seek vindication of their Section 7 rights through testimony in Board pro-
ceedings. I find, therefore, that the discharge of John Hammock, in the circum-
stances, interfered with, restrained, and coerced employees in the exercise of the
rights guaranteed them in Section 7 of the Act and violated Section 8(a)(1) of
the Act.14
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 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 of commerce.
12 Respondent contends that it did not terminate Hammock but merely refused to recall
him from layoff status. In view of the explicit testimony of Bryant III, revealing an in-
tention permanently to end Hammock's employment relationship, the distinction is purely
semantical.
'3 At the hearing, Respondent made an offer of proof which was rejected tending to show
that other individuals who had testified adversely to it at the prior hearing had thereafter
been returned to their former positions of employment with Respondent. The General
Counsel contended that the rehires were accompanied by extenuating circumstances not
applicable to'Hammock. I reaffirm my ruling rejecting Respondent's offer of proof. In
any event, viewing the offer in the light most favorable to Respondent, the fact arguendo
that Respondent did not visit retribution against other individuals who testified adverse
to it at.the hearing would not completely eradicate the coercive effect upon nonsupervisory
employees of Hammock's discharge, nor would it in the circumstances of this case alter my
conclusions herein as to the motivating reason for Hammock's discharge.
14 Better Monkey Grip Company, 115 NLRB 1170 ; Dal-Tex Optical' Company, Inc., 131
NLRB 715, enfd. 310 F. 2d 58 (C.A. 5).
OIL CITY BRASS WORKS
V. THE REMEDY.
639
It has been found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act. I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
The Respondent on July 26, discharged John Hammock because he testified ad-
versely to it in a Board proceeding. Although a supervisor within the meaning of
the Act, in order to restore to rank-and-file employees their full freedom to exercise
their rights under the Act and thus to effectuate the policies of the Act, I shall recom-
mend that Respondent offer John Hammock immediate and full reinstatement to his
former or subsantially 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
by reason of such discharge by payment to him of a sum of money equal to that
which he would have earned as wages or salary from the date of his discharge on
July 26, 1962, to the date of the offer of reinstatement, less his net earnings during
such period in accordance with the formula set out in F. W. Woolworth Company,
90 NLRB 289, together with interest on such sums, said interest to be computed in
accordance with the formula prescribed by the Board in Isis Plumbing & Heating
Co., 138 NLRB 716. In order to effectuate the remedy herein recommended it is
anticipated that full cognizance will be given at the compliance stage of this proceed-
ing to the effect, if any, upon the employment opportunities of John Hammock after
July 26, 1962, of the acts of Respondent found by the Board in Case No. 23-CA-1416
(141 NLRB 131), to have constituted unfair labor practices.
It has also been found that the Respondent by the discharge of John Hammock has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act. It will therefore be recommended that the
Respondent cease and desist therefrom.
On the basis of the foregoing findings of fact, and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, Local 587, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging John Hammock because he gave testimony adverse to Respond-
ent at a Board proceeding, thereby discouraging nonsupervisory employees in the
free exercise of their statutory rights guaranteed by Section 7 of the Act, and dis-
couraging membership in and activities on behalf of the above-named organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
1. PREFATORY FACTS
A. The instant proceeding
On December 20, 1962; a hearing was held in the instant proceeding, conducted
by Trial Examiner James T. Barker. Thereafter, on March 29, 1963, I issued my
Intermediate Report in this proceeding finding that the Respondent had violated
Section 8 (a)( 1 ) of the Act by discharging John Hammock, an admitted supervisor,
because he testified adversely to Respondent in an unfair labor practice proceeding
conducted on July 23, 24, and 2. 5, 1962, by Trial Examiner John H. Eadie in the
matter of Oil City Brass Works, 141 NLRB 131,1 and that the effect of the termina-
tion was to cause nonsupervisory employees reasonably to fear that Respondent would
take the same action against them if, in seeking vindication of their Section 7 rights
through resort to a Board proceeding, they too should testify adversely to Respondent.
3 The Board's Decision and Order therein Is reported at 141 NLRB 131.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of this finding, Better Monkey Grip Company, 115 NLRB 1170, enfd.
243 F . 2d 836 (C.A. 5), and Dal-Tex Optical Company, Inc., 131 NLRB 715, enfd.
310 F . 2d 58 ( C.A. 5), were cited.
At the December 20, 1962, hearing in the instant proceeding , as bearing on the
issue of motive, Respondent offered to prove that employees M. A. Atwood, Galen
Britt , Enoch James Britt , Tom Gary, and George L. Manning had testified at the
aforementioned July 1962 unfair labor practice hearing in Case No . 23-CA-1416
adversely to Respondent ; that at the time of the hearing and for a period preceding it,
each of these employees (save Enoch James Britt who was unable to work because
of injuries ) was on layoff status; that for a period of days before and after the
July 1962 hearing Respondent had offered these employees employment which offers
were not accepted ; that at times after July 30 but prior to the December 20 hearing
herein each was reemployed ; and that none was reemployed pursuant to an order of
the Board . For the like purpose of also bearing on motive, Respondent further
offered to prove that employee Robert L. Linscomb , who likewise testified adversely
to Respondent at the July 1962 proceeding , also engaged in picketing in support of
a strike which occurred in August 1962, and that after the cessation of the picketing
and strike Linscomb was offered but rejected an offer to return to his job.
These offers of proof were rejected at the hearing and in my subsequent Inter-
mediate Report I reaffirmed my ruling rejecting the first offer referred to above.
On June 27 , 1963, the Board ordered the record in the instant matter reopened and
directed a further hearing to be held before me for the purpose of receiving the
proffered evidence outlined above and any rebuttal thereto. The Board further
ordered that the Trial Examiner prepare and serve upon the parties a Supplemental
Intermediate Report containing findings of fact upon the evidence received , as well
as a further consideration of the rationales given in Dal-Tex Optical Company, Inc.,
131 NLRB 715, enfd. 310 F. 2d 58 (C.A. 5), particularly at pages 730-731, and
Better Monkey Grip Company, 115 NLRB 1170, enfd . 243 F . 2d 836 (C.A. 5),
particularly at pages 1179-1180 and 1182.
B. The July 1962 proceeding-Case No. 23-CA-1416
On March 5 , 1962, the Union , the Charging Party in Case No. 23-CA- 1416, as
it is in the instant matter, notified Oil City Brass Works by letter that a majority of
its production and maintenance employees had designated the Union as their bargain-
ing representative. The letter was received by the employer on March 6. On
March 9, the employer laid off seven employees , including George Manning. On
March 15, the Union filed charges , but on March 22 the Union and the employer
agreed to a card check which disclosed that the Union represented a majority of
the employees in the forge shop , and this led to an agreement that the employer would
recognize the Union and place the laid-off employees "on a preferential hiring list
for a period of 90 days." On March 26, the Union requested withdrawal of its
March 15 charge which withdrawal was approved by the Regional Director on
March 28.
Bargaining sessions were held between the Union and employer on April 9, 18,
and 25, May 2 and 18, and June 14, 22, and 29. No agreement was reached. In
the interim , on April 25 and June 13, the Union filed new charges upon the basis of
which a complaint was issued in Case No. 23-CA-1416 on the latter date. Addi-
tional charges were subsequently filed on July 20. The June 13 complaint alleged
as discriminatees , George Manning , Robert Linscomb , Enoch James Britt, and Tom
Gary.
An unfair labor practice hearing was held on July 23, 24, and 25. John Hammock
was called as a witness by the General Counsel on the first day of the proceeding,
and gave testimony which I have found , in my March 29, 1963 , Intermediate Report,
to have been adverse to Respondent . Tom Gary, George Manning, M. A. Atwood,
Galen Britt, and Robert Linscomb were called by the General Counsel on the second
day of the hearing, July 24, 1962. The following day Enoch James Britt was called
as a witness on behalf of the General Counsel. Each of the six latter -mentioned
individuals testified adversely to Respondent .2 There appears to have been no seques-
tration of witnesses at the hearing.
Thereafter, on November 29, 1962, John H . Eadie issued his Intermediate Report
in which he found inter alia that Respondent on March 6, 9, and 12 had engaged
in acts of interrogation , threats, and solicitation. In addition he found that the
layoff of March 9 involving Manning was discriminatory as was the subsequent
2 The parties to the instant hearing so stipulated, and my evaluation of their testimony
confirms the nature of their testimony.
OIL CITY BRASS WORKS 641
layoff of April 26 involving, among others, R. L. Linscomb, Enoch James Britt, and
Tom Gary. On March 5, 1963, the Board issued its Decision and Order affirming
the aforesaid findings of Trial Examiner Eadie.3
C. The August 6, 1962, strike
On August 6, 1962, Respondent 's employees struck and a picket line was set up.
Respondent continued to operate all of its departments , including the forge shop,
during the strike. Respondent made no effort to force employees to cross the picket
line; however, there was work available for employees who desired it .4 Forge Shop
employees M. A. Atwood, Galen Britt, Enoch James Britt, Tom Gary, and George
L. Manning joined the strike and did not cross the picket line.5 The strike ended on
August 27, 1962.6
H. THE ADDITIONAL FINDINGS OF FACT
Galen Britt
Galen Britt was initially employed by Respondent on March 16, 1957 . Through
the succeeding 5 years until August 1962 , Britt continued in Respondent's employ.
He had not been involved in any of the layoffs that occurred in the spring of 1962,
and consequently was in Respondent's employ when he testified at the Board hear-
ing in Case No. 23-CA-1416 . He remained so at the time of the strike's com-
mencement on August 6, 1962. Galen Britt joined the strike , participating actively
therein for the first 2 weeks. He did not cross the picket line and was observed on
the picket line by George E. Bryant III, hereinafter referred to as Bryant III. While
the strike was still in progress he accepted employment from a Houston , Texas,
employer.
Thereafter, when the strike had ended , he was contacted in Houston telephonically
by Supervisor Ross Ferguson , who inquired if he wanted to "come back ." Britt
answered , "not for a while," stating that he "liked" his Houston employment "pretty
good." Ferguson answered, "I wish I had you back."
Approximately a month later , Galen Britt 's wife contacted Ferguson to learn if
Respondent had an opening for Britt . Ferguson indicated that he had one and at his
request Mrs . Britt contacted her husband requesting him to accept the employment.
Galen Britt accepted, and he resumed work on October 1, 1962 , assigned as a ham-
mer driver on a crew headed by Jake Wright , receiving his former rate of pay and
replacing employee Breaux . Britt had had some 6 years' experience and Breaux
had been hired in February or March 1962 . After Britt returned , Breaux was as-
signed to the hoist on the night crew . When Britt returned to work , Wright stated
that he was glad to have Britt as Breaux "wasn 't too much of a hammer driver."
Upon returning on October 1, Britt went to Respondent 's office with respect to
personnel details and there saw President George Bryant, Jr., who said , "What in
hell are you doing here." When Britt explained that he was working, President
Bryant asked him what he wanted . When Britt indicated the reason for his pres-
ence in the office, he was directed to see the secretary.
After returning to work and as the first holiday approached Britt inquired of
Supervisor Ferguson concerning his seniority status. From Ferguson he first learned
that he had lost his seniority?
Enoch James Britt
Enoch Britt was initially employed by Respondent in July 1957 . He left Re-
spondent 's employ in May 1960 but returned in October of the same year , and was
employed as a helper on the forge crew under John Hammock . As an effect of the
layoff which occurred in the spring of 1962, he started "missing time " and finally
was laid off , working only a day and a half (May 3 and 4) after the second general
layoff that occurred on April 26. Following his layoff he accepted interim employ-
ment from other employers but continued to call Respondent for work, as instructed,
and on June 22 returned to Respondent's employ at his former rate of pay of $2.37
per hour . He worked until July 11 when he injured his back and was confined to
3 The foregoing is predicated upon the March 5, 1963 , Decision and Order of the Board
reported, as aforesaid , at 141 NLRB 131, of which Decision and Order I take official notice.
# The foregoing is predicated upon the credited testimony of Kyle Wheelus, secretary and
treasurer and vice president of Respondent.
6 The credited testimony of George E. Bryant III.
6 The parties so stipulated.
7 The foregoing is predicated on the credited testimony of Galen Britt and Kyle Wheelus.
756-236-65-vol. 147-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hospital for approximately 13 days. He was so confined and under the care of
a physician when he testified at the July 1962 hearing. He was ultimately released
from the doctor 's care on September 10 and given permission by his physician to
return to work.
Upon his release he contacted President Bryant and informed him that his doctor
had released him and that he was ready to return to work. Britt testified credibly
concerning the balance of the conversation with Bryant as follows:
I told him that the doctor had released me, and that I was ready to go back
to work. And he told me that he had learned that I had an attorney, and that
he couldn't work me and me have an attorney, and that I would have to get
rid of my attorney before he would put me back to work, which he had a job
for me, and which would have been a hammer driving job, and that he wanted
me to work, but that I couldn't work and have a suit against him.
After conversing with President Bryant, Britt, the same day, contacted his attorney,
and a decision was made to withdraw the lawsuit and Britt executed an insurance
release. He notified President Bryant of his action and returned to work on Septem-
ber 11 as a hammer driver and had been continuously employed in that capacity
at the time of the August 1963 hearing on remand. His rate of pay upon his return
remained $2.37 per hour.
Upon his return to work on September 11, Britt made no inquiry concerning his
employment status as it related to seniority and other employment benefits. In
December 1962, however, he inquired of Respondent's secretary, Betty Jones, to learn
when his vacation was due, and was informed that it would accrue on June 22, 1963.8
Britt credibly testified without contradiction that in 1957 he lost 13 weeks of em-
ployment with Respondent because of a broken foot but received a vacation.9
M. A. Atwood
M. A. Atwood was first employed by Respondent on June 5, 1961. He was not
involved in any of the layoffs of the spring of 1962, and continued in Respondent's
employ through August 4, 1962, when he joined the strike that commenced August 6,
1962. During the strike he participated in the picketing that transpired and he did
not report to work during the strike. He was employed as a helper on the forging
crew at the time he testified in the July 1962 hearing.10
Atwood requested reinstatement on September 4, a week after the August 27 ter-
mination of the strike, and was reinstated to his former position and at his former
rate of pay.11 He voluntarily resigned on September 6, 1962.12
George L. Manning
George Manning was initially employed by Respondent on August 28, 1956. He
was laid off effective March 8, 1962, and did not again work for Respondent until
November 17, 1962. He testified at the July 1962 hearing but was not then in
Respondent's employ.
However, on July 20 or 21, a few days before the prior hearing, Bryant III con-
tacted Manning and, offered him temporary work as a new employee on a third crew
to be organized.13 Accompanied by former employee Otto Mitchell, Manning went
8It Is the General Counsel's contention,'as expressed in his brief, that Respondent's em-
ployees are entitled to vacation after 1 year's employment with Respondent, and that vaca-
tions become due on the employee's anniversary date, which for Enoch Britt would have
been October 24 . As Britt was informed that his vacation would not accrue until June 22,
1963, it is apparent , the General Counsel asserts , that when he was recalled from layoff
status on June 22, 1962, he was reinstated as a new employee without any prior employ-
ment rights or privileges , in contradistinction of the alleged assertion of Bryant III that
when Britt returned to work in September after his doctor 's release he was restored to full
seniority and other rights.
6 The foregoing is based upon the credited testimony of Enoch Britt, as supported by that
of Kyle Wheelus and George Bryant III.
10 The credited testimony of Wheelus.
u The parties stipulated to the foregoing.
12 The credited testimony of Wheelus.
is Manning placed this incident as occurring 2 weeks before the July hearing while
Mitchell testified it occurred on the Friday preceding the hearing . The testimony of
Bryant III concerning the telephonic contact with Manning is consistent with Mitchell's
placement of the event which I credit.
OIL CITY BRASS WORKS 643
to the office of Bryant III where Manning was offered a "block out" job, a job which
Manning refused to accept, stating that he preferred a hammer driving job and would
accept a hoister assignment. The block out job paid 15 cents per hour less than the
hammer job.
After giving testimony at the July 1962 hearing, Manning received one of Re-
spondent's July 30 letters soliciting his return to work as a new employee on a third
crew being organized to perform temporary work, but did not accept.14 Thereafter,
Manning received no further offers of employment from Respondent until late
November or early December.15 This occurred when Manning, who was visiting a
friend at the plant, was asked by a supervisor, Blankenship, if he desired a job operat-
ing a hammer. Blankenship indicated dissatisfaction with the incumbent hammer
operator and told Manning that he would talk with his superior about Manning's hire.
Approximately 2 weeks later, Manning was instructed by Blankenship to report to
work. He conversed with Shop Superintendent Willis and Blankenship, who told
him he could return as a new employee, with no seniority. Manning accepted the
employment and Willis told him that he was "glad to have [him] back." He re-
turned to work effective December 17'at the $2.52 per hour, his prelayoff rate, and
remained in Respondent's employ at the time of the August hearing herein.'s
Tom Gary
Tom Gary was originally employed on February 19, 1953, and worked until the
strike commenced on August 6, 1962. At the time he testified in the July hearing
and for a period of 3 years prior thereto, he had been employed as a saw operator
on the night crew in the forge shop. While he had experienced a reduction in his
hours of work during the period preceding the July 1962 hearing, he was receiving
employment from Respondent on that diminished basis when he testified therein.
He was never placed on layoff status.17 After the hearing, he continued to receive
employment on the same basis as during the period immediately preceding the hear-
ing. When the strike occurred he did not cross the picket line. He did not picket
nor go to the plant during the strike. He learned of the strike's cessation from the
wife of a fellow employee and was told to contact Respondent. He spoke to Presi-
dent Bryant several days later. Bryant said that he thought Gary had quit and that
as he had not heard from him,, he had replaced him.18 Gary was not rehired by
Respondent during 1962.19
Robert L. Linscomb
Robert Linscomb was employed initially by Respondent in 1954. He served as a
hammer operator, fired boilers, and served as a ring roller operator. When he was
laid off on April 26, 1962, in the second layoff, he was assigned to the crew supervised
by Blankenship.
On July 20, the Friday prior to the hearing in Case No . 23-CA-1416, Linscomb
received an offer from Bryant III of temporary employment as a new employee.
Linscomb told Bryant III that he could give him no answer to his proffer of employ-
ment because he had been supenaed to testify on the following Monday. Re-
is The contents of these letters was raised during the testimony of Bryant III at the
December 20 bearing . The Respondent did not have copies of the letter in its possession
and Bryant III testified he thought only temporary employment was offered. The fore-
going finding as to the terms of employment referred to and specified in the letter is predi-
cated upon Manning's testimony concerning the letters ' contents given at the instant
hearing on remand.
15 The credited testimony of Manning . I do not credit the testimony of Bryant III that
he conversed with Manning two or three times after the hearing concerning employment.
Bryant III admitted to a vague recollection in this respect and he cited as one instance a
conversation ( the Manning-Mitchell job offer referred to above ) which other participants
credibly testified occurred before the hearing.
io The credited testimony of Manning.
17 Gary so testified . In case No . 26-CA-1416 the Board found Respondent had dis-
criminated against him in discriminatorily decreasing his number of working days after
March 29, and in laying him off on May 10, 1962.
ie Bryant III testified that he "thought " employee Ernest James, with whom Gary had
worked on the night shift, and an individual referred to as "Shug ," a helper sometimes
assigned as an extra to the forge shop, assumed Gary's saw operator tasks after the strike
ended.
10 The foregoing is predicated upon the credited testimony of Torn Gary and Kyle Wheelus.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's next communication with Linscomb was after he had testified at the July
hearing and was in the form of a July 30 registered letter identical in ultimate terms
to those contained in the letter sent to George Manning referred to above.
Linscomb participated in the August strike. After the picketing ceased, Lins-
comb, a member of the employee negotiating committee , was designated to inform
President Bryant of the decision to cease picketing. Linscomb testified credibly
concerning the conversation as follows:
I went and told Mr. Bryant, and I said, "Mr. Bryant, we have taken the picket
down, and I'd like to get my clothes and a check," and he said, "You've got
a check?" and I said, "Yes, sir. I've still got a day in here," and he said, "Do
you want to go back to work?" He said, "I've got a little work for a temporary
crew, and you can go back there as a new employee," and I said, "No, sir.
I'm going to Houston. I've already got a job."
Linscomb did not thereafter work in Respondent's employ during 1962.20
Conclusions
It is to be emphasized at the outset that the essential issue to be resolved in this
proceeding is whether Respondent was motivated, at least in part, in discharging its
supervisor, John Hammock, by the fact that he appeared as a witness at a Board
unfair labor practice proceeding and testified adversely to Respondent. If this issue
is resolved favorably to the General Counsel's position, the question remains whether
the discharge had the effect of interfering with Section 7 rights of employees.
. At the December 1962 hearing in the instant matter, the General Counsel adduced
evidence which I found preponderated on the issue of motive over that adduced by
way of defense by Respondent. Further evidence with respect to motive was devel-
oped at the hearing on remand and is hereinafter considered.
As found above, at the'hearing on remand, Respondent adduced evidence show-
ing that three employees, Galen Britt, M. A. Atwood, and Tom Gary, each of whom
testified adversely to it at the July 24, 1962 hearing, were then in its employ, and
that they remained so, and at the same rate of pay, until they joined the strike that
commenced some 2 weeks later on August 6; that of these three only Gary was not
reemployed after the strike (because he had been permanently replaced); that the
fourth individual, Enoch James Britt, who was on disability leave at the time he
testified , was rehired on September 11, immediately upon his medical release, and
at the same hourly rate of compensation; that the two remaining individuals, Man-
ning and Linscomb who were not in Respondent's employ when they testified, were
nonetheless sent letters on July 30 , 1962, 1 week after the hearing, requesting their
return to Respondent's employ, which requests were not honored; that thereafter,
Linscomb, who, in addition to testifying at the hearing had picketed during the
strike, was offered employment at the end of the strike, which offer he refused; and
that Manning was offered employment in late November which offer he subse-
quently accepted, returning to work on December 17.
The Respondent would have great, if not overriding, significance attached to this
evidence as proof of the absence of improper motive in the discharge of Hammock.
Conversely, the General Counsel would emphasize the circumstances of the Re-
spondent 's actions , stressing , on the one hand , Respondent 's acute need for their
services in order to maintain production, and, on the other, retention, proffer of
employment, or rehire of the six employees on conditional terms, manifesting a con-
tinuation of the antiunion design found by the Board in its Decision and Order in
Case No. 26-CA-1416.
I am not disposed to give to Respondent 's evidence the weight Respondent would
have it given. This evidence is but a facet of Respondent's defense, to be viewed
in context with other facets, and with the events and circumstances prevailing during
the posthearing period of July through December 1962, which reasonably may be
found to have effected Respondent's treatment of the six. Viewed in this perspec-
tive, the probative weight of Respondent's evidence with respect to retention and
rehire of the six becomes dilute, without significant probative force.
The consideration central to Respondent's defense is, did Bryant III first learn
through the testimony of Hammock on July 25 that he had affiliated with the Union,
and being thus apprised, discharge the supervisor, as he legally could have done,21
20 The foregoing is based upon the credited testimony of Robert Linscomb.
n' Salant & Salant, Inc., 88 NLRB 816; Lily-Tulip Cup Corporation, 88 NLRB 892;
Accurate Threaded Products Company, 90 NLRB 1364; Sears, Roebuck and Company,
127 NLRB 582.
OIL CITY BRASS WORKS 645
solely because of what Hammock's testimony revealed. If the testimony of Bryant
III with respect to when he first gained knowledge of Hammock's union affiliation
is believed, and his further statement of his motivating reason is accepted, the
General Counsel's complaint of course fails.
But if his testimony with respect to initial knowledge is disbelieved, the trier of
fact is left with Bryant's essentially self-serving testimony as to motive, to be viewed
in light of and buttressed by Respondent's showing of employee retention, offers
of employment and rehire above found; these to be weighed against the inferences
both reasonable and impelled, arising from Hammock's abrupt discharge after his
appearance as a witness adverse to Respondent, which testimony, with respect to
his union activities, reiterated information concerning which Respondent had been
to the point of certitude previously aware for a period of some 4 months.
In my March 29, 1963, Intermediate Report, I did not credit the testimony of
Bryant III with respect to the aforesaid issue of knowledge, and found that he, like
his father, President Bryant, had possessed knowledge of Hammock's union affilia-
tion for a substantial period preceding the July hearing. I adhere to that deter-
mination herein. In view thereof, Respondent's evidence of treatment accorded the
six subsequent to their testimony stands virtually alone in support of Respondent's
defense of "no bad motive."
It therefore becomes essential to carefully evaluate the weight which may be
accorded the evidence adduced by Respondent on remand; evidence which Respond-
ent so earnestly contends rebuts the inferences of improper motive arising from the
fact and circumstances of Hammock's discharge.
Viewed in isolation, there is much logical appeal in Respondent's syllogistic asser-
tion that as the six testified against its interests and suffered no adverse treatment,
ergo, Hammock, who similarly testified, was not adversely treated because of his
testimony. However, so blithe an analytical approach would be unrealistic and
without warrant. It must be remembered that in July 1962, as subsequently found
by the Board in its Decision and Order in Case No. 16-CA-1416, Respondent was
caught up in a fabric of discriminatory layoffs effected in furtherance of its effort
to defeat the Union. Four of the six employees here in question-Enoch James
Britt, Tom Gary, George Manning, and R. L. Linscomb-had been named dis-
criminatees therein and were later found by the Board to have been; Respondent
had terminated Hammock abruptly and within a day of his appearance as a witness
at the July 23 hearing session; and, subsequently, on August 9, charges were filed
against Respondent asserting Hammock's discharge had violated the Act. Reason
would impel the conclusion that these circumstances and occurrences could have
had no other effect than to temper contemplated contemporaneous personnel actions,
and could well have had an inhibitory effect upon Respondent's treatment of and
action with respect to the six, not only during the immediate posthearing period but
during the entire period from hearing's end through late November and on into
December, when, at a time coinciding with the issuance of the Intermediate Report
in Case No. 26-CA-1416, Respondent's final offer of employment to one of the
six occurred in the form of a job offer to Manning leading to his rehire. Addi-
tional consideration is also to be given to the fact that such employment as was
proffered and given to the six was in pursuance of a need for experienced personnel
to maintain production.
Bearing in mind the reasonable effect of the twin factors of inhibitory circum-
stances and economic necessity, and appraising Respondent's apparent attitude of
non-recrimination in light of these factors, I conclude and find that evidence adduced
by Respondent with respect to the six is of insufficient probative force to overcome the
General Counsel's showing of motivation with respect to the discharge of John
Hammock. I adhere to my finding in my March 29 Intermediate Report that
Respondent was motivated, at least in part, in discharging John Hammock by the
fact that he appeared as a witness at a Board hearing and gave testimony adverse to
Respondent.
It remains, however, to be determined whether this discharge had the effect of
interfering with the guarantees given employees under the Act to seek vindication
of their Section 7 rights through testimony at Board proceedings.
Citing decisions in Better Monkey Grip Company, 115 NLRB 1170, enfd. 243
F. 2d 836 (C.A. 5), and in Dal-Tex Optical Company, Inc., 131 NLRB 715, enfd.
310 F. 2d 58 (C.A. 5), I found in my March 29, 1963, Intermediate Report that
the discharge of John Hammock had interfered with the rights guaranteed employees
under Section 7, and thereby violated Section 8(a) (1) of the Act. In both cited
cases the Board found that the discharge of a supervisor for giving testimony at a
Board proceeding adverse to the interest of the respondent therein had the effect of
interfering with the Section 7 rights of employees. In Better Monkey Grip, the
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner concluded that the employees being well aware of the supervisors"
testimony at the Board hearing and "not being apprised of any good and valid
reason for the discharge . would necessarily conclude that his discharge was
because he did testify , and that his discharge constituted warning to them by the
Respondent to discontinue their interest in, or activities on behalf of, the Union."
[Emphasis supplied .] The Board , agreeing with the Trial Examiner , stated:
We find , as did the Trial Examiner, that this conduct interfered with, re-
strained , and coerced rank-and-file employees in the exercise of their self-
organizational rights within the meaning of Section 8(a)(1) of the Act. In
our opinion, the net effect of Waley's discharge was to cause nonsupervisory
-employees reasonably to fear that the Respondent would take the same action
against them if they testified against the Respondent in a Board proceeding to
enforce their guaranteed rights under the Act.
In the Dal-Tex case the Board found that the discharge of a supervisor for giving
adverse testimony known to rank-and-file employees and "coupled with other acts of
discrimination against other employees who likewise testified adverse to the interest
of Respondent in an earlier Board proceeding" had the consequence of causing rank-
and-file employees to believe the Respondent would inflict similar treatment upon
them in the future, under similar circumstances. [Emphasis supplied.]
A reading of the Better Monkey Grip and Dal-Tex decisions reveals that, because
the Section 7 right interfered with is the right guaranteed employees to vindicate
their rights under the Act by testifying at a Board proceeding, Section 8(a)( I) of
the Act is violated when a supervisor is discharged for testifying adversely to his
employer at a Board proceeding; rank-and-file employees have knowledge of the
fact that he gave testimony at a Board proceeding and was discharged; and there exist
circumstances from which the rank-and-file employees would reasonably be led to
believe that a similar fate would befall them if they gave testimony adverse to the
employer. The circumstance attendant to the discharge of the supervisor in Better
Monkey Grip was that rank-and-file employees were left unapprised of "any good
or valid reason for the discharge"; while in Dal-Tex the discharge was accompanied
by the discharge of rank-and-file employees who similarly had testified adversely to
their employer.
In the instant matter , Supervisor Hammock appeared as a witness and testified on
the first day of a 3-day Board proceeding. No rank-and-file employees appeared
as witnesses on that day ; however , several appeared the following day and some on
the final day . There is no indication in the record of that case that a sequestration
rule had been invoked and, of course, the hearing was a public one. It is doubtless
true that the hearing invoked widespread employee interest, involving, as it did,
questions pertaining to several general layoffs and the bargaining relationship between
the recognized bargaining representative of the employees and Respondent. From
these circumstances, and remembering that Hammock had affiliated with the Union
which had filed the charge in Case No. 26-CA-1460 and was actively interested and
participating in the proceeding , it is reasonable to infer that the fact as well as the
nature of Hammock 's testimony came immediately to the attention of rank -and-file
employees.
Further, it is reasonable to infer that the fact of Hammock 's discharge similarly
came to the attention of rank -and-file employees . It is true that at the time of his
discharge, Hammock was in a layoff status, and, therefore, his absence from the
plant after his termination on July 25 would not likely have been a matter of general
notoriety. However, it is to be expected that employee interest concerning the
occurrences at the plant directly affecting other personnel was doubtless high. This
is so because the employees through the Union and an employee committee were
then not only pursuing the unfair labor practice charges, but contesting with Respond-
ent concerning its employment practices involving the hire of personnel with past
tenure as new employees and without seniority or other benefit. It is therefore
reasonable to infer , as I do , that Hammock's discharge soon came to the attention of
rank-and-file employees.
Hammock was informed of his discharge during a telephone conversation with
Bryant III. The statement of Bryant III as to the reason for the termination is
found and set forth in my March 29, 1963, Intermediate Report. Rank-and-file em-
ployees (and indeed other supervisory personnel) could learn of the reasons ad-
vanced by Bryant III for the discharge only from a hearsay telling, for the Respondent
appears to have made no general announcement of the termination or the reasons
therefor. Possessed either of mere knowledge of the fact of Hammock's discharge,
or of a hearsay accounting of the terminal conversation from which they would be
apprised of the fact, employees could conclude either that he was discharged because
ANDERSON BOX COMPANY, INC . 647
of his activity on behalf of the Union, or for testifying adversely to Respondent at
the unfair labor practice hearing. Either would be a reasonable assumption, and
neither would be rendered more or less reasonable than the other by the mere abrupt-
ness of Hammock's discharge , for in the mind of employees , immediate discharge
for adverse testimony would have been as understandable as immediate termination
for activity in the Union, first learned. And, in connection with the latter, it is to be
observed that there is no warrant for a conclusion that rank-and-file employees were
apprised that Respondent had been aware since March or April 1962 of Hammock's
union membership.
But, in the ultimate, as I view this matter, it little matters that for a very brief,
transitory period rank-and-file employees may have experienced ambivalent reaction
to the discharge of Hammock, or may even have believed Hammock's discharge
resulted from his adverse testimony, for by the time his discharge had been effectu-
ated, employees Tom Gary, M. A. Atwood, and Galen Britt had also appeared as
witnesses and testified adversely to Respondent; other employees had, I find, for the
reasons above discussed with respect to Hammock's testimony, learned of the fact and
nature of their testimony; and, yet, they continued in the employ of Respondent
immediately thereafter and for the 2 weeks following the hearing until they joined
the strike on August 6. Neither Atwood nor Galen Britt was alleged as a dis-
criminatee in the July 1962 proceeding and, thus, employees had no reason to
believe Respondent's circumspection with respect to them was forced. This retention
of rank-and-file employees without retribution could, in my opinion, have no other
reasonable effect than to either completely negative the formation of any belief on
the part of employees that Respondent would take discharge action against them if
they similarly testified at a Board proceeding; or, so completely dilutes the effects of
any transitory doubt that employees may have harbored on this score immediately
after Hammock's discharge and until the retention of Gary, Atwood, and Britt be-
came apparent , as to negative the actuality of interference or restraint . Of similar
and continuing effect were subsequent and immediate restoration to employment of
Enoch James Britt upon his medical release; and the poststrike rehire of Galen Britt
and M . A. Atwood.
In all of the circumstances delineated , I conclude that under the rationale of
Better Monkey Grip and Dal-Tex a result different than that reached by the Board
and affirmed by the court there is required in this proceeding ; that Hammock's dis-
charge did not cause nonsupervisory employees reasonably to fear that the Respond-
ent would take discharge action against them if they testified against Respondent in a
Board proceeding to enforce their Section 7 rights under the Act . Accordingly,
upon a careful consideration of this additional evidence , I revised the conclusions
reached in my March 29 , 1963, Intermediate Report , and recommend that the com-
plaint be dismissed.
CONCLUSION OF LAW
Oil City Brass Works did not commit an unfair labor practice by discharging John
Hammock, a supervisor , because he gave testimony adverse to its interests at a Board
hearing.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusion of law, and upon
the entire record in this proceeding , I recommend that the complaint be dismissed in
its entirety.
Anderson Box Company , Inc. and Earnest G. Wade. Case No.
25-CA-1783. June 24, 1964
DECISION AND ORDER
On February 11, 1964, Trial Examiner Sidney D. Goldberg issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Decision. Thereafter, the Gen-
147 NLRB No. 77.