Phillips & Buttorf Manufacturing Co.Download PDFNational Labor Relations Board - Board DecisionsOct 29, 195196 N.L.R.B. 1091 (N.L.R.B. 1951) Copy Citation PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1091 however, reflect whether such announcer is an employee or an inde- pendent contractor, or contain any other evidence sufficient to enable us to determine that Becker is presently an employee of the Employer. We shall, therefore, make no findings as to Becker's status at this time, but shall permit him to vote subject to challenge in the election herein directed. If his ballot is determinative of the results of the election, we shall direct that a further investigation be conducted to determine his status as an employee of the Employer. We find, accordingly, on the basis of the foregoing and the entire record, that all announcers employed by the Employer at Radio Sta- tion WEDC, Chicago, Illinois, but excluding supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] PHILLIPS & BUTrORFF MANUFACTURING COMPANY and UNITED STEEL WORKERS OF AMERICA, CIO. Case No. 10-CA-1023. October 09, 1951 Decision and Order On June 22, 1951, Trial Examiner Thomas S. Wilson 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. The Trial Examiner also found that the Respondent had not engaged in certain dther unfair labor prac- tices alleged in the complaint and recommended dismissal of those allegations. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner found, and we agree, that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating 'Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three -member panel [ Members Houston , Reynolds, and Styles]. 96 NLRB No. 173. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (1) by suggesting that employees resign from the Union and assisting them to do S0 .2 In addition the Trial Examiner found that Foreman Ed Hatcher interrogated employee Jacqueline Birdwell as to whether or not she had been given a union button, and as to what she would tell the union representative after she resigned from the Union. The Trial Examiner also found that Assistant Superintendent George Hunt questioned employee Doss J. Thompson concerning his feelings about having joined the Union, saying, "D. J.-don't you feel a little bit backward or ashamed-about joining up with the Union?" However, the Trial Examiner does not appear to have specifically based any conclusions on either of those two inci- dents. We find that the interrogation by Hatcher and Hunt consti- tuted further violations of Section 8 (a) (1). The record also contains testimony, which is uncontraverted and which we credit, establishing several additional instances of illegal conduct not specifically referred to in the Intermediate Report. In finding, as we do, that the Respondent violated Section 8 (a) (1) we rely, in addition to the above, upon the following: (1) Superintend- ent Fred Thoman's interrogation of employee James Ellison concern- ing his membership in the Union as well as that of another employee named Bass; (2) Thoman's interrogation of Ellison concerning the procedure for soliciting employees for union membership, the union cards used, the methods of solicitation, and the procedure for return- ing the signed application cards to the Union; and (3) Foreman Albert Heer's order to employee James Mayfield that the latter remove his union button.3 2. The Trial Examiner found that the Respondent discriminatorily discharged employees James Ellison and Doss J. Thompson in viola- tion of Section 8 (a) (3) and 8 (a) (1) of the Act. For the reasons fully stated in the Intermediate Report we agree with this con- clusion.4 We also agree with the Trial Examiner, for the reasons detailed in the Intermediate Report, that the Respondent did not violate Section 2 The Trial Examiner found that the Respondent had secured the resignations "through the use of fear and coercion " To clarify that finding we note that there is no evidence that any employees were directed to resign from the Union with an explicit threat that they would be discharged or otherwise penalized for failure to do so. But such evidence is unnecessary for our conclusion . It is well established that an employer violates Sec- tion 8 ( a) (1) where , as here , it obtains resignations from a union by suggesting and directly assisting , whether or not it enforces such conduct with explicit threats of reprisal . See Lindley Box & Paper Company, 73 NLRB 553 ; Southern Block and Pine Corporation, 90 NLRB 590. 3 Salant & Salant, Incorporated , supra. 'In part the Respondent ' s exceptions are based on the contention that the Trial Ex- aminer made erroneous credibility findings. We do not agree . Furthermore, the im- portance of observation of the demeanor of the witnesses to any finding of their credi- bility is such that we will not overrule a Trial Examiner 's resolutions as to credibility except where the clear preponderance of all the relevant evidence co4vinces us that the Trial Examiner 's resolution was incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544. No such conclusion is warranted in this case. PHILLIPS d; BUTTORFF MANUFACTURING COMPANY 1093 8 (a) (3) by discharging and refusing to reinstate employee R. A. Lightburne. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Phillips & But- torff Manufacturing Company, Nashville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Steel Workers of Amer- ica, CIO, or any other labor organization of its employees, by dis- charging any of its employees or by discriminating in any other manner with regard to their hire or tenure of employment or any term or condition of employment. (b) Ordering employees to remove their union buttons; suggesting to and assisting employees in resigning from a union; interrogating employees regarding their union membership, activities, and sympa- thies or those of their fellow employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist United Steel Workers of America, CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain therefrom, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment 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 immediate reinstatement to Doss J. Thompson and James Ellison and make each of them whole for any loss of pay which he may have suffered by reason of the Respondent's discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due under the terms of this Order. (c) Post at its office and throughout its plant in Nashville, Tennes- see, copies of the notice attached hereto marked "Appendix A." 5 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order ," the words "A Decree of the United States Court of Appeals Enforcing." 974176-52-vol . 96-70 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after having been duly signed by the authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days 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 Tenth Region -in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated the Act in the discharge of R. A. Lightburne. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in UNITED STEEL WORKERS OF AMERICA, CIO, or any other labor organization of our em- ployees, by discharging any of our employees, or by discriminat- ing in any other manner with regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT order employees to remove their union buttons, suggest to or assist employees in resigning from a union, inter- rogate employees concerning their union membership and activi- ties or those of other employees, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the UNITED STEEL WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activi- ties 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 employment as authorized by Section 8 (a) (3) of the Act. WE WILL offer immediate reinstatement to Doss J. Thompson and James Ellison and make them whole for any loss of pay suf- fered as a result of the discrimination against them. f PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1095 All our employees are free to become or remain members of the :above-named union or any other labor organization or to refrain from such affiliation except to the extent that such right may be affected by .an agreement requiring membership in a labor organization as a con- dition of employment as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because -of membership in or activity on behalf of any such labor organization. PHILLIPS & BUTTORFF MANUFACTURING COMPANY, Employer. By -------------------------------------------------- (Representa ti ve) ( Title) Dated -------------------- 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 STATEMENT OF THE CASE Upon a charge and amended charges duly filed on and after April 10, 1950, by United Steel Workers of America, CIO, herein called the Union , the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board , respectively,' through the Regional Director for the Tenth Region (Atlanta, Georgia), issued is complaint dated May 2 , 1951 , alleging that Phillips & Buttorff Manufacturing Company, herein called the Respondent, had violated Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the Labor Management Relations Act of 1947 (61 Stat. 136), herein called the Act. The various charges and amended charges, the complaint , and notice of hearing thereon were all duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the Respondent : ( 1) Had discharged Doss J. Thompson , R. A. Lightburne, and James Ellison because of their union membership or activities in violation of Section 8 (a) (1) and (3) of the Act; and ( 2) had by various enumerated acts 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 duly filed its answer wherein it admitted certain allegations of the complaint but denied the commission of any unfair labor practices and affirmatively pleaded that employee Thompson had been discharged on or about April 7, 1950, because of insubordination and abusive conduct ; that employee R. A. Lightburne had been discharged on or about May 5, 1950, because of his irregular attendance at work ; and that employee James Ellison had been dis- charged on or about May 17, 1950, because of incompetent and unsatisfactory performance of his work. Pursuant to notice, a hearing was held at Nashville , Tennessee , on May 21 and 22, 1951, before the undersigned , the duly designated Trial Examiner . The Gen- 1 The term General Counsel includes the attorney for the General Counsel appearing at the hearing. 2 During the oral argument in this matter the undersigned struck paragraphs 9 and 11 of the complaint , with the consent of the General Counsel, on the ground that there was no evidence ploducetl to sustain the allegations contained in said paragraphs. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral Counsel and the Respondent were represented by counsel. The Union en- tered no formal appearance. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing, the counsel for the Gen- eral Counsel and the counsel for the Respondent argued the case orally. A brief has been received from the General Counsel. Subsequent to the conclusion of the hearing, at the request of the undersigned, the counsel for the Respondent has submitted to the undersigned a letter dated May 29, 1951, with the work record of James Ellison for the period beginning- May 8, 1950, and ending May 17, 1950, attached, which the undersigned hereby orders marked as Trial Examiner's Exhibits la and 1b and received in evidence herein. Upon the entire record, and from his observation of the witnesses, the under- signed makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Phillips & Buttorff Manufacturing Company is a Tennessee corporation with its principal office and place of business in Nashville, Tennessee, where it is en- gaged in the manufacture, jobbing, and retailing of cast iron stoves and ranges and gas and electric ranges. In the course of its business operations at its plant in Nashville, Tennessee, during the 12-month period ending April 1, 1950, the Respondent purchased raw materials, equipment, and supplies of a value in ex- cess of $2,000,000, of which more than 90 percent was purchased and shipped from points outside the State of Tennessee. During this same period, the Respondent sold finished products valued in excess of $3,500,000, of which more than 75 percent was sold and shipped to points outside the State of Tennessee. The Respondent admits, and the undersigned finds, that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steel Workers of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Preliminary events The last effort to unionize the employees of the Respondent began in December 1949. About December 20, the Union, held a meeting of the employees at which. time approximately 20 of them signed application-for-membership cards in the Union. Then followed a period of slackened business activity at the plant with resultant layoffs. However, by February 1950 the employees were being retailed and the Union renewed its activities. By April 1950, the Union had a sufficient number of employees among the Respondent's three hundred odd employees to petition the Board for a representation election." 3In October 1950, and subsequent to the events with which we are concerned here, the Union won the requested election conducted by the Board and has been recognized since by the Respondent as the exclusive bargaining agent for the employees . By answer and by motion made during the present hearing the Respondent moved to strike all the allegations relating to violations of Section 8 (a) (1) on the ground that the subsequent election and recognition of the Union had made those issues moot . It is clear that the subsequent recognition of the Union following a Board-conducted election would not eradicate the PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1097 By a letter dated April 3, 1950, the Union informed the Respondent of the formation and personnel of an organizing committee among the Respondent's -employees. Among the 11 employees so named were Doss J. Thompson and James Ellison, 2 of the employees allegedly discriminated against. On April 17, 1950, the Union issued its first copy of the "P & B Exposer," its -campaign paper distributed to all the employees and bosses. This first issue listed the union committeemen and named Robert A. Lightburne and James Ellison among others.4 Beginning in the early part of April these committeemen wore CIO committee- men badges conspicuously at the plant while numbers of the rank-and-file mem- bers wore CIO membership buttons. There is no question but that the Respond- ent knew that the three above-named employees were actively engaged on behalf .of the Union, both as committeemen and in soliciting other employees to become members of the Union. B. The discharge of Doss J. Thompson Thompson was originally employed by the Respondent in 1946. After working about 2 years, he was laid off. Sometime thereafter Assistant Superintendent 'George Walker Hunt reemployed Thompson as a maintenance man repairing machinery. No complaints were ever made regarding Thompson's work for the Respondent. Thompson joined the Union in the latter part of March 1950, was appointed a ,committeeman, and wore his CIO committeeman's badge thereafter while at ,work. As previously found he was one of the men named in the Union's letter ,of April 3, 1950, as a committeeman. Thompson was one of the leaders in the bunion movement. He actively solicited employees to become members of the Union on and off the Respondent's property. On Friday, March 24 or March 31, 1950, the Union distributed its committee- men buttons to the committeemen and membership buttons to its members. 'Thompson began wearing his committeeman badge prominently displayed that same day. Assistant Superintendent Hunt, who knew of Thompson's position in the Union and had seen his button, ordered Thompson to remove his tools from a tool box in which Thompson had kept both his own and the Respondent's tools which he used in his work of repairing the machinery. While Thompson was so engaged, Hunt designed and tacked up a sign reading : "This shop closes down today for forty hours a week beginning today." On the following days, Saturday and Sunday, at least some of the other men in Thompson's division worked as usual but Thompson did not work due to the posting of the sign described above. When Thompson returned to work on Mon- day, Hunt came to him and said : "D. J. . . . don't you feel a little bit backward or ashamed ... about joining up with the union?" Thompson denied this and reminded Hunt that the other men in the department had worked both Saturday and Sunday despite the sign announcing the 40-hour week. Hunt replied : "That is for you, . . . I am going to run the shop like I want to." 6 During this same effect of previous acts of interference , restraint , and coercion by the Employer and thus -the issues raised in the complaint regarding those acts of interference, restraint, and coercion were not made moot by the subsequent recognition. Proof of the Employer's atti- tude toward the unionization of its employees has universally been held to be admissible In cases involving allegedly discriminatory discharges . Thus the Respondent 's motion was denied. 4 By the time this issue went to press , Doss Thompson had been discharged and, there- fore, his name is not included among the committeemen although the fact of his discharge .is mentioned therein. 5 Although interrogated about this conversation, Hunt did not deny the Thompson testi- Tnoriy found above. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, conversation Hunt, who had been informed that the Union was claiming that the- Respondent had discriminated against Thompson for its failure to have him work- with the remainder of the department on that Saturday and Sunday, asked Thompson about this claim of discrimination and Thompson told Hunt that the- Union had misunderstood his contention, that he would correct the Union, and- that he did not feel that he had been discriminated against 6 By letter dated April 3, 1950, the Union protested the discriminatory actions of the Respondent in not working Thompson on Saturday and Sunday and, in addition, informed the Respondent of the names of the union committeemen in- the plant which included the name of Doss Thompson. In the ordinary course of the mail this letter would have reached the Respondent on April 4 Therefore- it is obvious that as Hunt knew of the Respondent's claim at the time of the above conversation, the above conversation must have occurred on or after April 4. On Wednesday, April 5, Foreman Harris Hatcher came to Thompson with the statement : "I want to talk to you as a friend . . . Now, I am always giving you, all the breaks, and I think lots of you, you have done your work well, know how to, always finding something to do . . . I am talking to you as a friend . . . You're tied up in this union." Thompson answered : "The union means we are going to organize . . . if you [we] fail to get it in here, I walk on the street." To which Hatcher replied : "That is right." Thompson then rejoined : "In case- we do get it, I might stay longer than you." Two days later , on Friday, while the men were, as was their wont, sitting in, Hunt 's office about 7: 45 a. m. before beginning their day's work, Thompson entered and told Hunt that he wanted to ask a question. ' He then stated : "I understand that you say that you haven't got a man that will pass the union's examination to work." Hunt answered : "That is right ; might have one ; Scybert Basford [one of the employees in the department] they call him. . . . I couldn't pass it myself." Thompson then informed Hunt and the assembled employees that the Union had no such examination as Hunt had referred to. Hunt's reply was : "Well, the company will." Thompson then explained to Hunt : " Mr. Hunt, this button here caused all this trouble . . . I am going to wear this button every day when I work. Somebody said I would lose my job if I didn't get out of the- union ." Upon being asked who that "somebody" was, Thompson named Foreman Harris Hatcher, who, although he was sitting among the assembled employees, made no attempt to refute this charge either at that time or at the hearing. Hunt -then recalled to Thompson that he had fired Thompson once before for "meddling." Thompson contradicted Hunt by then stating: "You are mistaken, Mr. Hunt . . . You fired me because a party told you to, between you and me." Whereupon Hunt said : "D. J. . . . You ain't nothing but a meddler ." After- Hunt had inquired whether the Union had authorized Thompson to "run the shop," Thompson stated that he recognized that if the Union failed to organize the plant, he would be "out on the street" but that if the Union did succeed in its organizing attempt, Hunt and Hatcher "might be out on the street " instead .7 The bell rang then, ending the conversation. 6 Thompson denies this part of the conversation . The fact apparently was that a cus- tomer had requested the Respondent to do a lead -burning job which, for the customer's convenience , had to be performed on Saturday and Sunday . Employees Bracey, Basford, and Kimbell, along with Foreman Hatcher did the work in question on Saturday and Sunday. The Respondent made no showing that the other men in the department did not work at the plant that Saturday and Sunday. 'The above findings are made from the credible testimony of Thompson . Respondent's supervisors and witnesses in their testimony regarding this conversation could recall nothing else about it than that Thompson had stated : "As for me, I know that if we don't organize a union, my job is mud . We are going to organize the union , and if we do, yours, and Mr. Hatcher ' s jobs will be mud " Counsel for both Respondent and Generai' PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1099 Soon after the men had gone to work following this conversation, Hunt reported it to the Respondent's president, D. W. Binns. After hearing Hunt's version of this conversation,, Binns stated : "Well, there is nothing we can do but let him go. We can't have him ... before we fire him we don't want no trouble with the union. We don't want him to think that we are firing him over the union, so I am going to let you know this evening."' For the rest of the day Thompson kept himself busy at his work although not receiving any orders from Hunt that day. Just at quitting time, Hunt handed Thompson the wages due him and dis- charged him. Since that time Thompson has not been reinstated although a few weeks before the instant hearing he indicated his desire for reinstatement to both Hunt and Hatcher. In the conversation with Hunt, Hunt stated that he would keep Thompson in mind if an opening appeared and ended the conversation by saying : "I had to do my duty when I fired you."' Upon these facts, the Respondent contends that it discharged Thompson for "insubordination." This theory does not account for President Binn's expressed desire to hide from the Union the real reason for the dismissal of Thompson. In view of the fact that Thompson and everybody else knew that he not only did not then have the authority to carry out his alleged "threat" against Hatcher and Hunt but also that he would never have that power even though the Union became the bargaining agent for the employees, this alleged insubordinate remark could, at worst, be considered to be ill-advised. It could not amount to a threat. The only theory, therefore, upon which this statement could become insubordina- tion would be that only employers are entitled to express an opinion which, of course, complies neither with Section 8 (c) of the Act, nor with American tradi- tion. In addition, in this case Respondent's theory completely overlooks the fact that Thompson's remark was not made in a vacuum-omits the fact unanimously forgotten by the Respondent's witnesses that Respondent's supervisory personnel in fact goaded Thompson into making this remark. Besides, Thompson's re- mark is subject to numerous interpretations under which it could under no conceivable circumstances amount to a threat. At most the remark was ill- advised, surely not insubordinate. Obviously the Respondent seized upon this ill-advised remark as an excuse to eliminate a union committeeman from its employ and thereby to warn the other employees in the clearest terms possible of the danger inherent to union membership in the plant. After Thompson had failed to heed the warning of Hatcher regarding the dangers of this membership, the Respondent used the innocuous remark, into which Thompson had been taunted by Respondent's own supervisory personnel, as a palpable excuse to discharge him. That this lesson was apparent to the employees was made crystal clear by the resignations of April 20, 1950. Three of the seven employees resigning knew why Thompson had been discharged when they decided to resign with the assistance of the Respondent. Counsel acknowledged that the meaning of the remark would be the same whether Thomp- son stated that the jobs would be "mud" or that the job holders would be "on the street" The undersigned concurs. The memory and forgetfulness of the Respondent' s witnesses as to this episode were almost startling in their unanimity. Strangely enough also none of the Respondent's witnesses attempted to deny any of Thompson's testimony regarding the other portions of this conversation which everyone acknowledged lasted for a period of 15 or 20 minutes. The undersigned, therefore, credits the testimony of Thompson who gave all the appearances of being a reliable witness. s The above finding is based upon the undenied testimony of Hunt. Hunt's testimony regarding this conversation shows that Thompson again admitted that he had been wrong in his conversation on April 7 but the undersigned makes no finding in that regard because , even if made, such an admission amounts to little, if any- thing, where an applicant for employment believes that such an admission might secure him the work he desires. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The real reason for the discharge was obviously that Thompson was the leader of the union faction and because he was active on behalf of the Union which the Respondent did not desire. The undersigned, therefore, finds that the discharge of Doss J. Thompson was in violation of Section 8 (a) (3) and (1) of the Act. C. The resignations from the Union Under date of April 24, 1950, the Respondent sent the Union the following letter : Gentlemen : The enclosed resignations from your, Union have been submitted to me for review and determination, as to legality, form and etc. I find upon investi- gation, that these resignations are in order and in my opinion conform with the National Labor Relations Act. The names of the parties resigning are as follows: James Bracey Clovis Baker William Sharpe Charles Chadwell Scybert Basford Sidney Franklin Bracey Albert Hyder No acknowledgement of these resignations are necessary as the return registered mail receipt demanded will suffice for our records. Yours very truly, /s/ D. W. BINNs, President, Phillips & Buttorff Mfg. Co. Attached to this letter were six identical letters of resignation reading as follows : AaaxL 20, 1910. To the United Steelworkers of America: I wish to discontinue my membership in the C. I. O. union at Phillips & Buttorff Mfg. Co. as of this date. - [Typed name] 'Each of these letters is typed on identical stationery and each has the name of the employee typed at the end of the letter. Five of the employees signed their names below the typewritten name while two signed their names above. These letters of resignation were typed by one of the jlespondent's typists on stationery furnished by the Respondent. After the individual employee had -signed his name to his individual letter of resignation, he either handed the note to the secretary or to his foreman. None of the resigning employees who testi- ,fied at the hearing, (James Bracey, Basford, or Hyder) testified that he re- 'quested his resignation be submitted to Binns "for review and determination" or for any other reason. In fact, each of these witnesses testified that after he had executed the document, he forgot all about it and had no knowledge as to how it got into the hands of the Union. The testimony developed the fact that, on or before April 20,10 a group of employees had gathered in 4he department talking about the poor attendance at the union meetings and considering the possibilities of resigning from the Union when Foreman Harris Hatcher walked up to the group and, learning the subject of the conversation, volunteered the information that by reading the back of the "card," " the men could learn the procedure for resigning from the 10 This date is taken from the date of the resignations. "This "card" was not further identified in the record. PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1101 Union. When employee James Bracey inquired about a letter of resignation, Foreman Hatcher offered to have the office girl formulate and type out such a letter. Hatcher's suggestion was followed. On cross-examination by the Respondent's counsel, Basford was asked ".. . had Mr. Hatcher asked you to resign from the union?" to'which Basford an- swered, "No, he didn't come out and ask me to." Three of the employees, Basford, Bracey, and Hyder, whose letters of resigna- tion were included in Binns' letter to the Union, were employees in the same department from which Thompson had been discharged less than 2 weeks before.' On April 28, 1950, employee Jacqueline Birdwell signed a letter of resigna- tion from the Union. She had heard from a fellow employee that "everyone who had joined the Union was resigning" therefrom. Birdwell asked the time- keeper about it and was told by the timekeeper that, if Birdwell resigned, she had to go "through the foreman." She thereupon saw Foreman Ed Hatcher. Blank letters of resignation already typed out by Respondent's personnel on stationery furnished by the Respondent were lying around the room. Birdwell indicated to Hatcher which type of letter she preferred. Hatcher then took her to another office where he gave Birdwell an already-typed letter which she signed and left with the timekeeper. Apparently the Respondent furnished the envelope and stamped and mailed the same to the Union because Birdwell did not. It is significant in the Birdwell case that on the very day the Union passed out a membership button to Birdwell, Foreman Ed Hatcher inquired of Bird- well whether they had given her a button. Birdwell admitted that they had and showed the button to him. Birdwell did not wear her button. At the time Birdwell resigned from the Union, Ed Hatcher warned her that as soon as the Union received her letter of resignation, they would send a representative to her to talk to her about it and explained that another em- ployee in the plant had had that experience. He asked what Birdwell would tell the Union. Sometime later, after the Union had in fact visited Birdwell, Ed Hatcher queried Birdwell about the visit and the conversation which took place there. The Union received numerous similar letters of resignation from employees in many different departments of the Respondent's plant. In a plant, during the very process of organizing, where one union leader has just been discharged so obviously for his union activities as was the case of Doss Thompson, a mere suggestion of the advisability of resigning from the Union such as having blank letters of resignation lying around in places where the employees customarily congregate is a sufficient act of interference, restraint, and coercion to be a violation of Section 8 (a) (1) of the Act. The other testimony of the Respondent's witnesses proves, beyond a peradventure of a doubt, that these resignations were suggested, aided, and abetted, at the very least, by the Respondent through the use of fear and coercion. They, as well as the discharge of Doss Thompson, were an integral part of the Respon- dent's campaign of interference, restraint, and coercion to prevent its em- ployees from joining, or remaining members of, the Union. The undersigned finds that, by these acts, the Respondent violated Section 8 (a) (1) of the Act. There were other instances in the. record of acts amounting to violations of Section 8 (a) (1) but the undersigned does not consider them of sufficient im- port to further extend this Report. 12 The record does not disclose in which department the other resigning employees worked. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The discharge of Robert Lightburne18 ' Lightburne was first employed by the Respondent in September 1949 as a drill press operator, a new type of work for him. His operation consisted of drilling a large number of holes in oven burner castings, an operation requiring about 5 minutes per piece. Within a period of a few weeks Lightburne's production equaled that of James C. Jackson who had been operating a similar drill press for 2 or 3 years. Lightburne joined the Union soon after he began his employment and was also appointed committeeman and wore his button at work. He was active in soliciting employees to join the Union. Due to illness of himself and his entire family, Lightburne began losing a great deal of time from work as early as October 1949. The time records of the Re- spondent prove that during his 33 weeks of employment by the Respondent, Lightburne was able to work full time in only 13 weeks. Lightburne attributed this almost undue amount of personal and family sickness to the fact that at that time the only place which he could afford to rent for his young and in- creasing family was a damp basement apartment. The young children, espe- cially his few-weeks-old baby, became sickly as a result of the dampness and required medical attention which forced his attendance at home to care for the other children while his wife took the ailing child to the hospital. For this reason his attendance record at the plant was definitely bad-although there is no evidence that his absence actually hampered production as he and Jackson working on the same operation managed to keep a reserve of burners ahead of production. Lightburne carefully informed the Respondent on each- occasion when he was forced to be absent. On the other hand the Respondent did attempt to increase production of these oven burners. While Lightburne and Jackson worked on a piecework basis, the rates had been so fixed that neither Lightburne nor Jackson was ever able to produce enough burners to secure the piecework rate and, therefore, was always paid the regular daily minimum rate. Although the Respondent granted what its assistant superintendent called a "decent up on the price" in the piece rate in its efforts to secure more production, the base at which the piece rates went into effect remained so high that, despite this so-called increase, neither Lightburne nor Jackson was able to profit therefrom. When Lightburne began his work for the Respondent, he and Jackson were required to cart both the raw material to, and the finished product away from, their machine, a requirement which obviously took time away from production. Finally, in his efforts to increase productivity on that job, Foreman Brielmaire provided that this material should be brought to and removed from the machines by others. However the base still remained too high for either Jackson or Lightburne to make piece rates. One day not too long before Lightburne's discharge on May 5, 1950, Brielmaire came to Lightburne's machine and after asking them what their production had been that day, remarked : "Hum. You can't do it even when we give you curb service." To this Lightburne replied : "No, I couldn't do it, Mr. Ed ; the burners is bad and the pay is not satisfactory." 14 On Monday and Tuesday, May 1 and 2, 1950, Lightburne was absent again on account of the sickness of his -baby which required treatment at the hospital. On Wednesday of that week Lightburne worked. During that day Brielmaire >s This name was incorrectly spelled "Lightburner" in the complaint and other papers. 14 Brielmaire testified that Ligbtburne's reply was : "No, sir, not so long as you don't make the price right." The Examiner believes that this difference in testimony is so slight as not to require the conflict to be determined. PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1103 asked him why he had been absent and was told the reason 1° During this same conversation Lightburne also informed Brielmaire that he might have to be absent the following day while his wife again took the baby to the hospital. Brielmaire stated that that would be satisfactory. On Thursday Lightburne was again forced to remain at home. He returned to the plant on Friday when he was given his check and with it his layoff notice. The evidence indicated that the Respondent tended to treat cases of similar -absenteeism rather lightly. An employee named Plunkett, whose job consisted of the final assembly and crating of finished products, was permitted to remain in the Respondent's employ even though he spent weeks at a time in various veterans' hospitals recovering from wounds. Indeed the employee who replaced Lightburne and compiled a similar case of absenteeism was permitted to do so by the Respondent without objection. Admittedly Lightburne's record of absenteeism was bad and, under ordinary circumstances, would be just cause for his discharge. However this Examiner -has never had the misfortune before to see a more economically justified case of absenteeism than that of Lightburne. Admittedly also Lightburne was one of those known union committeemen with whose services the Respondent appeared prone to dispense as was seen in the case of Thompson. But the burden of proof is upon the General Counsel to prove that the reason for the discharge was Lightburne's union activity. While admitting to severe doubts as to the correctness of this result the undersigned finds that the evidence -as to the reason for the discharge about evenly balanced between absenteeism and union activity. Thus it appears that the General Counsel has failed to sustain his burden of proof in this instance. With considerable doubt as to the justice of this result, therefore, the undersigned is constrained to dismiss the complaint as it relates to the discharge of Robert Lightburne. E. The discharge of James Ellison Ellison began his employment with the Respondent in 1947 or 1948 and, at the time of the events related here, had been regularly employed for 3 or 31/^ years in the foundry where he performed manual jobs of all sorts. His regular job in April or May 1950 was carrying iron from the mixing bull by means of a carrier on an overhead conveyor called a "bull ladle." He joined the Union and, like Thompson and Lightburne, was appointed a committeeman. He wore his committeeman button while at work and, in addi- tion, to the Respondent's knowledge, solicited employees to become members of the Union as well as handed out union leaflets and literature. Until May 4, 1950, Ellison's work seems to have been perfectly satisfactory to the Respondent. Before that time Foreman Heer had sent Ellison to the com- pany doctor because of an injury to Ellison's back. Heer had received word from the doctor that he should assign Ellison to light work. As Heer testified, in a foundry there is no light work. On May 4, 1950, Ellison was working on the "shakeout," a job requiring great physical effort, one part of which required bending. Ellison objected that, be- cause of his back, he could not do the shakeout and asked for a transfer to the bull ladle. When Ellison informed Heer that he was not going to shake out any more, Heer said: "Well, if you are not going to shake out, you just quit." 'Thereafter there was considerable discussion between the two men as to whether Beer was discharging Ellison or whether Ellison was quitting. The discussion is Brielmaire testified that he had complained three or four times to Lightburne about his record of absences while Lightburne denied that he had ever been criticized. Common sense would indicate that Brielmaire was probably correct about this. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD) wound up with Ellison returning to the shakeout. Some days later Heer didt transfer Ellison back to the bull ladle. Soon after Ellison had been returned to working the bull and about a week or so before his discharge on May 17, Heer "caught" Ellison handing out "some- papers" to some other employees in the gangway. Although in his testimony Heer professed ignorance as to the contents of these papers, he knew that they had something to do with the Union. Heer proceeded to tell Ellison that he was not to be engaging in union activities on company time and was not to talk to the men. Heer also "caught" Ellison in the coal room and in other depart- ments of the plant during this period of his employment'" On one occasion, a couple of weeks before Ellison's discharge, on the morn- ing on which union literature had been distributed in the plant, Superintendent Thoman "traced" the distribution of this literature and discovered that Ellison had been one of the employees responsible for its distribution. Thoman there- upon interrogated Ellison about the matter and, although Ellison denied having distributed these leaflets on' company time, Thoman ordered that he should not distribute leaflets on company time. Sometime later Thoman "ran into" Ellison in the coal room smoking a ciga- rette and talking to two other employees. On this occasion Ellison denied that he- had been transacting any union business and asserted that he was only there on personal business to smoke a cigarette. Thoman ordered him back to his job. About May 15, Thoman summoned Ellison to his office from his work where he began interrogating Ellison about the procedure of soliciting employees- for union membership, the union cards used, the methods of solicitation, and the procedure for returning the signed application cards to the Union. He was- particularly interested as to whether any solicitation was being done on com- pany property and on company time. Thoman then asked about Ellison's mem- bership in the Union as well as that of another employee named Bass." Accord- ing to Thoman, this interview was for the purpose of securing a "statement." Part of the interview took place before and part after the lunch period.'a On Monday, May 15, 1950, Ellison worked as usual pushing the bull ladle. At the end of a day's work the employee had to pour out the molten iron from the bull ladle into what is known as , the pig bin. This, of course, is to prepare the bull ladle for operations the following day and to prevent having. the molten iron chill in the bull overnight which would then have to be melted out of the bull before the bull could be used the following day. Cleaning the bull is the last duty performed by the employees before leaving in the eve- ning. On that Monday night Ellison decided to pour out the molten iron in the yard instead of in the pig bin because of the heat in the foundry. Foreman, Heer noted this intent of Ellison and instructed him to cover up some water which was on the ground before he poured the molten iron out of the ladle. 16 For many years the Respondent had had posted about the plant a set of working rules. Article Is, of these rules reads as follows.: All employees shall report in condition to work at their respective posts in accord- ance with the time designated by the company and must not leave their place of employment except for relief, luncheon and at quitting time without order or per- mission from their respective foremen. If this rule means that a man must have permission from his foreman in order to leave his department, then the rule was honored more in its breach than in its observance. Even Superintendent Thoman could not remember what was contained in these rules. 17 Bass was one of the men named in the union leaflet of April 17 as a member of the committee. 18 Thoman admitted having called Ellison to his office. Both Thoman and Ellison agree that this interview occurred a day or two before the discharge. PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1105 Me also instructed Ellison as to the method of pouring the ore and assisted in doing so.1B After dumping the ore, Ellison departed. On Tuesday Ellison did not appear for work. The other employees dis- covered about 3 or 4 inches of chilled molten iron in the bottom of the bull ladle used by Ellison.2° Superintendent Thoman and Foreman Heer investi- gated and determined that the bull ladle in which the chilled iron was found was that used by Ellison. It took three pourings of molten iron into this bull ladle to melt the chilled iron and to make the bull ladle useable that morning. This process consumed about 45 minutes of one man's time. On Wednesday morning when Ellison reported for work as usual, Foreman Meer informed him of the chilled iron in his bull ladle and discharged him. He has not been reinstated since. Heer called Mayfield 21 into his office the following morning and said: "See, I told you it don't do no good to wear those things." Mayfield answered: "What, those buttons." To which Heer answered : "You see where Ellison is, don't you" and "It doesn't do any good to wear those things." Mayfield's answer was "I don't want it to happen to me. I guess I better pull mine off." when Heer said : "That is the thing to do, pull it off." Mayfield removed his union button. He is still employed by the Respondent 22 Even excluding the admission made by Heer to Mayfield the day following the discharge, the fact that the Respondent discharged Ellison because of his union activity in soliciting employees and acting as a union committeeman is self- evident. Beginning early in May, if not before, the Respondent began exercising more and more pressure on Ellison to force him to abandon his activities on be- half of the Union. Although there is not a suggestion in the record that Ellison was neglecting his work for the Respondent, the Respondent took pains to "trace" the distribution of the union literature in the plant to him, to restrain his talk- ing to other employees, and to restrict him to his own department so as to pre- vent his communicating with any of his fellow employees. In addition Thomau subjected Ellison, 2 days before his discharge, to a considerable grueling on his union activities reportedly for the purpose of obtaining a "statement." Heer tried to eliminate him from the Respondent's employ by keeping him on a job which hurt Ellison's back contrary even to the Respondent's doctor's orders and thus force him into a position where he had to "quit"-rather than to have to discharge him. When that stratagem failed, the Respondent began searching for a pretext or excuse for which to discharge him. Although on Monday Heer had assisted Ellison in shaking out the bull ladle, some iron was left in the bull. Definitely this was a careless performance of duty but clearly not so serious as to warrant the discharge of an employee who had been eminently satisfactory for 3 or 31/2 years and until the time he began wearing a union com- mitteeman's button at work. Of course, Heer's admission on May 18, 1950, and 11 Heer denied having been present on this Monday night when Ellison dumped out the ore and emphasized this denial by saying that he was never present at that time during the day. This denial, however, was effectively disproved by other of the Respondent's witnesses. The undersigned, therefore, does not credit this denial. 20 In his testimony Ellison denied that he had left any molten iron in his bull ladle on the evening of Monday. However the same witnesses who disproved Beer's denial noted above testified truthfully that a considerable amount of chilled iron was in Ellison 's ladle on Tuesday morning. Ellison also attempted to claim that there were no differentiating marks on the four bull ladles which were then in use. The undersigned is convinced from the testimony of these same witnesses that each employee had his own bull ladle and that each was individually recognizable. 0 Mayfield worked in the same department as Ellison. 22 In his testimony Heer denied this conversation but confirmed the fact that Mayfield had -ceased wearing his button Mayfield's credibility was not attacked while Heer was impeached. Mayfield gave the appearance of being an honest witness and the undersigned credits his testimony. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the coercive use of the discharge to force employee Mayfield to abandon the Union conclusively proved what the facts' had already made patent. True, Ellison apparently was careless in failing to get his bull ladle fully emptied of all the molten iron. At most 45 minutes was the Respondent's sole loss from this carelessness. Other than this one incident-and, according to Heer, on this same fateful Monday, the fact that Ellison stayed in the bathroom, too long and got "kind of sore" when "jumped" about it-Ellison's work had seemingly been perfectly satisfactory to the Respondent. For one such error the penalty of discharge is patently too drastic-unless for some other reason the Respondent desired to be rid of him. In fact no other employee had been discharged for such an offense in 10 years. The undersigned is not unmindful of the fact that Heer cited the instance of one man whom he claimed to have dis- charged for the same cause some 10 years before, which claim he, himself, effec- tively disproved when he added : "He [the man discharged 10 years before] just quit ; went out and left the whole thing." Obviously this was not a firing offense, especially after 3 or 31/2 years of satisfactory employment. But it wa& a convenient excuse with which to attempt to cover up the fact that the Re- spondent had been trying for weeks to get rid of Ellison because he was active on behalf of the Union. During oral argument, counsel for the Respondent argued that Ellison had so completely destroyed his own credibility as a witness as not to have any- "standing in this or any other court:" True it is that Ellison denied on the stand- that he could tell his own bull ladle from the other three in the Respondent's, possession. As the undersigned stated,at the oral argument, he is satisfied that this testimony is just not true. In addition Ellison denied that he had allowed- any iron to chill in his ladle that Monday. This Ellison honestly could, and- -the undersigned is convinced still does, believe to be true. After all, Foreman. Heer had assisted him that evening in the shaking out of the ladle. The under- signed, however, is convinced that the iron did chill in Ellison's bull ladle. No- doubt both Ellison and Heer thought they had succeeded in cleaning the ladle that evening. In all other respects Ellison's testimony is corroborated, at least in large part, by that of the witnesses for the Respondent. In addition the under- signed believes that Ellison was essentially an honest witness despite the over- zealous working of his defense mechanism during his testimony about the in- dividuality of the four bull ladles. Surely that slip is not sufficient to deprive- him 'of any "standing in this or any other court." If there could be any doubts from the facts here, those doubts were dispelled by Heer's admission to employee Mayfield, the day after the discharge, as to the reason for Ellison's discharge. Accordingly the undersigned finds that the Respondent discharged James El- lison on May 17, 1950, because of his membership in, and activities on behalf of, the Union in violation of Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring im connection with the operations described in Section I, above, have a close, inti- mate, 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. V. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respondent cease and desist therefrom and take PHILLIPS & BUTTORFF MANUFACTURING COMPANY 1107 certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of Doss Thompson and James Ellison. The under- signed will, therefore, recommend that the Respondent be ordered to offer Doss J. Thompson and James Ellison immediate and full reinstatement to his former or substantially equivalent position with his seniority and other rights and privileges, and, further, that the Respondent shall make him whole for any loss of pay which he may have suffered as a result of the Respondent's discrimi- natory action as to him in accordance with the policy of the Board as enuncia- ted in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the back pay due. The Respondent's infractions of the Act, herein found, disclosed a fixed de. termination to defeat self-organization and its objectives. Because of the Re- spondent's unlawful conduct and its underlying purposes, the undersigned is persuaded that the unfair labor practices found above are related to other unfair labor practices proscribed by the Act, and that the danger of their com- mission in the future is to be anticipated from the course of the Respondent's con- duct in the past. The preventive purposes of the Act will be thwarted unless the remedial order is coextensive with that threat. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a re- currence of the unfair labor practices, and thus to effectuate the policies of the, Act, it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Steel Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By ordering employees to take off their union buttons, by suggesting, as- sisting, and abetting employees to resign from membership in the Union and by interrogating employees regarding their union membership activities, and sym- pathies and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Doss J. Thompson and James Ellison, thereby discouraging membership in, United Steel Workers of America, CIO, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. By discharging Robert A. Lightburne, the Respondent did not commit any- unfair labor practice. [Recommended Order omitted from publication in this volume.] Copy with citationCopy as parenthetical citation