Precast Slab and Tile Co.

National Labor Relations Board - Board Decisions

Mar 20, 1950

88 N.L.R.B. 1237 (N.L.R.B. 1950)

In the Matter Of PRECAST SLAB AND TILE COMPANY and UNITED GAS,
COKE AND CHEMICAL WORKERS OF AMERICA, CIO
Case No. 14-CA-99.-Decided March 20,1950
DECISION
AND
ORDER
On December 16, 1949, Trial Examiner Allen MacCullen 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 any unfair labor practice with
respect to the discharge of D. Nathaniel Wilkins as alleged in the com-
plaint, and recommended dismissal of the complaint as to Wilkins.'
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.2
The Board 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 Intermedi-
ate Report, the Respondent's brief and exceptions, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as they are inconsistent with
the additions, exceptions, and modifications hereinafter set forth.
1. In his Intermediate Report the Trial Examiner stated that "the
Respondent admitted . . . that it is engaged in commerce within
the meaning of the Act" and, without setting forth commerce facts,
he concluded that the Respondent was so engaged. However, the
record does not disclose that the Respondent unequivocally conceded
Board jurisdiction in this proceeding. Nevertheless, the Respondent's.
I As no exception has been filed with respect to the Trial Examiner 's findings and recom-
mendation as to Wilkins, we shall dismiss the complaint insofar as it alleges that the
Respondent discriminated in regard to Wilkins' hire and tenure of employment within the
meaning of Section 8 (a) (3) of the Act.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor
Relations Board has delegated its powers in connection with this case to a three - member
panel [Chairman Herzog and Members Houston and Reynolds].
88 NLRB No. 231. . . .
1237
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer does not deny the commerce allegations contained in the com-
plaint and the Respondent's counsel stated at the hearing "we have
not denied those paragraphs in our answer and therefore what we
don't deny will be admitted." On the basis of the foregoing, we find,
.as alleged in the complaint, that the Respondent, in the course and
conduct of its business operations, during the calendar year 1948, pur-
chased raw materials, including perlite, haydite, cement, steel, and
other products, valued in excess of $500,000, of which more than 25
percent was purchased, delivered, and transported to the St. Louis,
Missouri, plant of the Respondent in interstate commerce from and
through States of the United States other than the State of Missouri;
and that, during the same period, the Respondent manufactured fin-
ished products, valued in excess of $1,000,000, of which more than 20
percent was sold, delivered, and transported in interstate commerce
from the St. Louis, Missouri, plant of the Respondent to and. through
States of the United States other than the State of Missouri. We
further find, as did the Trial Examiner, that the Respondent is en-
gaged in commerce within the meaning of the Act.
2. On the basis of the Respondent's statements and conduct, set
forth in Section III, A and B, of the Intermediate Report, including
President Schumacher's questioning of Townsel as to whether he had
an AFL card, we find, like the Trial Examiner, that the Respondent
interrogated its employees concerning their union affiliation and
warned them to assist the AFL and to refrain from assisting the
Union by threatening loss of employment advantages and offering
inducements. We further find that, by such conduct and statements,
the Respondent interfered with, restrained, and coerced the employees
in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (a) (1) thereof.'
3. The Trial Examiner found that the Respondent violated Section
8 (a) (3), as well as Section 8 (a) (1) of the Act, by requiring em-
ployees to become members of the AFL and authorize deductions from
wages for payment of AFL initiation fees, and by checking off initia-
tion fees due the AFL. The Respondent excepts to these findings. As
the complaint contains no allegation that such conduct violated Section
8 (a) (3) of the Act, we shall not make such a finding. However, we
find that such conduct violated Section 8 (a.) (1) of the Act, as alleged
in the complaint, for the reasons set forth in the Intermediate Report,
, In its brief the Respondent contends that the entire complaint should be dismissed
because it did nothing which exceeded the bounds of free speech . We find no merit in the
contention , as the record shows that the Respondent has resorted to coercive conduct as a
means of denying rights guaranteed by the Act. We also reject the Respondent 's defense
that the complaint should be dismissed on the ground that the Respondent settled the
-issues by recognizing the Union and entering into a contract with it after the occurrence
mf the events involved in this case . See Section 10 (a) of the Act as amended.
PRECAST SLAB AND TILE COMPANY. 1239
and that the same reimbursement remedy is necessary to effectuate the
policies of the Act.
4. We agree with the Trial Examiner that the Respondent dis-
charged John Pointer on July 27, 1948, because of his activities on
behalf of the Union. The union movement began in the Respondent's
plant approximately 2 weeks before his discharge and Pointer
promptly became active in soliciting other employees to join the Union.
He requested permission from his foreman to engage in such activity.
On the morning of Pointer's discharge, in the presence of the AFL's
shop steward, Bryant, General Superintendent Voepel questioned a
group of employees as to whether they had AFL cards. When Pointer
answered that he would "have" his card, Bryant stated : "You won't
need a card because we have taken care of you all right."' According
to testimony credited by the Trial Examiner, shortly after Pointer's
discharge, General Superintendent Voepel and Assistant Superin-
tendent Carr made statements, set forth in the Intermediate Report,
which clearly ascribe Pointer's discharge to his union activity. The
Respondent adduced testimony to show that Pointer had some diffi-
culty with Assistant Superintendent Carr, who was then his imme-
diate supervisor. However, this occurred sometime in August or
September 1947, and Carr admitted that he had no further difficulty
with Pointer thereafter. Consequently, we agree with the Trial Ex-
aminer that the 1947 incident is too remote and has little value in
determining the reason for Pointer's discharge in July 1948. In view
thereof, we find that the Respondent did not rely on the 1947 incident
in discharging Pointer. In addition, although he admitted that
Pointer's work was "as a whole satisfactory," General Superintendent
Voepel testified that Pointer frequently absented himself from his
job by loafing in various ways, such as excessive visits to the washroom
and talking to other employees on the loading platform outside the
plant building.
Pointer admitted in his testimony that on two unstated occasions
before his discharge, he was criticized by management representatives
for changing his clothes about 5 minutes before quitting time and
warned not to repeat such conduct. He otherwise denied loafing.
The Trial Examiner credited Pointer's testimony "that after the oc-
currence in 1947, Pointer gave his employer no further difficulty
In his Intermediate Report the Trial Examiner indicated that he was not deciding as
to whether Bryant's statement was binding on the Respondent ; nevertheless , he stated that,
in any event , Bryant's statement was significant in determining the motivating cause for
Pointer 's discharge . We agree with the Trial Examiner that Bryant's statement has proba-
tive value as indicated . Unlike the Trial Examiner , however, under the circumstances, we
regard Bryant's statement as binding on the Respondent as it was made in the presence
of a high management representative who did not disavow it. At any rate, we would reach
the same conclusion as to the reason for Pointer's discharge without relying on Bryant's
statement.
1240 DECISIONS" OF "NATIONAL LABOR RELATIONS BOARD
" We credit Pointers' testimony, and discredit Voepel's testi-
mony as to Pointer's conduct in the plant for the reasons indicated
in the Intermediate Report; however, in his testimony Pointer ad-
mitted, and we find, that on two occasions he changed clothes a few
minutes before quitting time. Nevertheless, we believe that the Re-
spondent did not discharge Pointer for this trivial shortcoming.
Rather, we are convinced, as the Trial Examiner found, that the Re-
spondent discharged Pointer because of his union activity. We
further find that, by discharging Pointer, the Respondent discrimi-
nated in regard to hire or tenure of employment to discourage mem-
bership in the Union, in violation of Section 8 (a) (3) of the Act,
thereby interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, in violation
of Section 8 (a) (1) thereof.
5. We also agree with the Trial Examiner that the Respondent dis-
charged Wilburn Townsel because of his union activity. He joined
the Union about 3 weeks before his discharge. Shortly before his
discharge, General Superintendent Voepel questioned Townsel about
his union activity and warned him against retaining membership in
the Union; and President Schumacher accused Townsel of being one
of the initiators of the union movement in the plant and threatened
to move the plant unless the Respondent could continue to deal with
the AFL as in the past. For some time before his discharge, which
occurred on August 16, 1948, Townsel had been assigned to outside
construction work at $1.50 an hour. On August 16, Townsel was as-
signed to work at the plant for which the rate of pay was $1 an hour,
Townsel mistakenly believed that in his place Voepel had assigned two
new men to outside,work 5 At the close of the day, Townsel inquired
as to the rate of pay that he would receive for the day's work; Voepel
informed Townsel that he would.receive $1 an hour; when Townsel
asked about "changes" that Voepel had made and suggested that be
had assigned two new men to outside work, Voepel accused Townsel
of being dissatisfied. Although Townsel then denied that he was dis-
satisfied and stated that he would accept any assignment that Voepel
made, Voepel insisted on getting the wages due Townsel, and dis-
charged him 6 Under the circumstances, we find that the Respondent
In fact , Voepel had not assigned anyone to outside work in Townsel 's place and there
was no such work available for Townsel at this time.
6 These findings as to what occurred at the time of Townsel 's discharge are based on
Townsel 's testimony which we, like the Trial Examiner, credit . As we do not credit
Voepel's version of this incident , we do not reach the question as to whether Voepel dis-
charged Townsel because he , according to Voepel 's version, threatened to appeal to Presi-
dent Schumacher about the work assignment . For this reason and because we are con-
cerned under the Act only .with whether the Respondent had an unlawful motive in dis-
charging Townsel, even if good cause therefor did exist , we do not adopt that portion
of the Intermediate Report in which the Trial Examiner states : ". . . assuming without
'PRECAST SLAB AND TILE - COMPANY 1241
discharged Townsel on August 16, 1948, not because of any misconduct
or dissatisfaction on his part, but because it. believed him partly
responsible for the union activity in the plant 7
The Remedy-
Under the Board's usual practice we do not undertake to determine
at this stage of an unfair labor practice proceeding whether an em-
ployer has offered reinstatement to a discriminatorily discharged
employee. However, as the matters were litigated at the hearing, we
make such a determination in the cases of Pointer and Townsel. In
the case of Pointer, we, like the Trial Examiner, credit Pointer's
testimony set forth in the Intermediate Report, and find in accordance
with it that the Respondent did not communicate any offer of rein-
statement to Pointer at any time after his discharge. We conclude,
therefore, that the Respondent did not make an offer of reinstatement
to Pointer before the hearing closed in this case. We also adopt the
Trial Examiner's conclusion that the Respondent did not restore
Townsel to his former position by rehiring him on November 10, 1948,
and employing him until December 27, 1948, as the Respondent did
not employ Townsel during this period on outside construction work
at substantially the same rate and with the same priority as before
his discharge on August 16, 1948; and we find, as did the Trial Exam-
iner, that the Respondent did not thereby make a valid offer of rein-
statement to Townsel.
- We agree with the Trial Examiner that the Respondent should be
directed to cease and desist from infringing, in any manner, upon em-
ployees' rights guaranteed in Section 7 of the Act. In making this
recommendation, the Trial Examiner relied solely upon the Respond-
ent's conduct which violated Section 8 (a) (1) of the Act as the basis
for such an order. The Respondent's unlawful discharges of Pointer
and Townsel also serve to remonstrate the Respondent's opposition to
the general purposes of the Act and the danger of its committing other
unfair labor practices in the future. For all these reasons, including
those stated in the Intermediate Report, we shall enter a broad cease
and desist order.
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
crediting , Voepel's testimony that Townsel threatened to appeal to Schumacher , this would
not furnish sufficient grounds to discharge an employee whose services had otherwise been
satisfactory over a period in excess of 6 years."
7 in making this determination , we do not rely on the Trial Examiner 's findings that the
Respondent changed Townsel's work assignment on August 16, the day of his discharge, to
penalize him for his union activity.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Precast Slab and
Tile Company, St. Louis, Missouri, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning their union membership
or activities;
(b) Compelling its employees to become or remain members of
International Hod Carriers, Building and Common Laborers, AFL, or
any other labor organization, except to the extent permitted 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,
as amended;
(c) Discouraging membership in any labor organization of its
employees, by discharging or threatening to discharge employees or
by discriminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of employment;
(d) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Gas, Coke and
Chemical Workers of America, CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any
or all such activities, except to the extent that such rights 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 amended Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
. (a) Offer to John Pointer and Wilburn Townsel immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges;
.
(b) Make whole John Pointer for any loss of pay suffered by reason
of the Respondent's discrimination against him, by payment to him
of a sum of money equal to that which he normally would have earned
as wages from July 27, 1948, to the date of offer of reinstatement, less
his net earnings, if any, during such period;
(c) Make whole Wilburn Townsel for any loss of pay suffered by
reason of the Respondent's discrimination against him, by payment
to him of a sum of money equal to that which he normally would have
earned as wages from August 16, 1948, to the date of offer of reinstate-
ment, less his net earnings, if any, during such period;
PRECAST SLAB AND TILE COMPANY 1243
. (d) Refund forthwith to all employees from whose wages the Re-
spondent has made, from July 27 to December 1, 1948, deductions and
withheld funds, all such deductions and withholdings representing
initiation fees charged by International Hod Carriers, Building and
Common Laborers, AFL, to the end that such employees and each of
them shall be promptly, fully, and completely reimbursed for all
monies so deducted and withheld ;
(e) Post immediately at its plant in St. Louis, Missouri, copies of
the notice attached hereto marked Appendix A.8 Copies of said
notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material;
(f) Notify the Regional Director for the Fourteenth Region, in
writing, within twenty (20) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegation of the complaint that the
Respondent discriminated against D. Nathaniel Wilkins, within the
meaning of Section 8 (a) (3) of the Act, be, and it hereby is, dismissed.
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 WII L NOT interrogate our employees in any manner as to
union membership or activities.
WE WILL NOT compel our employees to become or remain mem-
bers Of INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON
LABORERS , AFL, or any other labor organization, except to the
extent permitted by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act, as amended.
8 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER ," on this notice, the
words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1244 DECISIONS _OP NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in any labor organization
of our employees by discharging or threatening to discharge them
or by discriminating in any other manner with regard to their
hire or tenure of employment or any term or. condition of
employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to joint or assist UNITED GAS, COKE
AND CHEMICAL WORKERS OF AMERICA, CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the
extent that any such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act, as
amended.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
position without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
John Pointer
Wilburn Townsel
WE WILL forthwith reimburse each and every one of our em-
ployees from whose pay we have, from July 27 to December 1,
1948, withheld any.funds as initiation fees payable to INTERNA-
TIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS, AFL,
all'sums so deducted or withheld.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization,' except to
the extent that any such right may be affected by an agreement as au-
thorized in Section 8 (a) (3) of the Act, as amended.
PRECAST SLAB AND TILE COMPANY,
Employer.;t.
By ------------------------------------
Dated--------------------
(Representative ), (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
PRECAST SLAB AND TILE COMPANY 1245
. INTERMEDIATE REPORT
Mr. Ralph E. Kennedy, for the General Counsel.
Mr. Robert C. Brinkman, for the Respondent.
Mr. Morris J. Levin and Mr. Janes R. Bbumfeld, for the CIO.
Mr. Ralph M. Bickel, International Representative for the CIO.
STATEMENT OF THE CASE
Upon an amended charged filed on August 26, 1948, by United Gas, Coke &
Chemical Workers of America, CIO, herein called the CIO, the General Counsel
of the National Labor Relations Board, called respectively the General Counsel
and the Board, by the Regional Director of the Fourteenth Region (St. Louis,
Missouri), issued a complaint dated July 19, 1949, against Precast Slab and
Tile Company, herein called the Respondent, alleging that Respondent had en-
gaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and Section 8 (a) (3) and Section 2 (6) and
(7) of the National Labor Relations Act (49 Stat. 449-457, as amended by 61 Stat.
136-163), herein referred to as the Act. Copies of the amended charge and the
complaint, together with notice of hearing, were duly served upon the Respondent
and the CIO.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the Respondent (a) on or before July 27, 1948, discharged D. Nathaniel
Wilkins and John Pointer, and on or before August 16, 1948, discharged Wilburn
Townsel, because of their membership and activities on behalf of the CIO, and
thereafter refused to reinstate these employees or any of them; and (2) interro-
gated its employees concerning their union affiliation, and persuaded, threat-
ened, and warned its employees to refrain from assisting or becoming members
of the CIO, and urged, persuaded, and warned its employees to assist and
become members of and remain members of the International Hod Carriers,
Building & Common Laborers, AFL, herein called the AFL.
In its duly filed answer Respondent, without admitting or denying the juris-
diction of the Board, admits that it did discharge the said three employees for
good and sufficient cause and denies that it has refused to reinstate said em-
ployees by reason of their union activity; it denies that it interrogated its em-
ployees concerning their union affiliations or that it urged or warned its said
employees to refrain from assisting or becoming members of the CIO or urged
or warned its employees to become and remain members of the AFL.
Pursuant to notice, a hearing was held on September 12, 13, 14, and 15, 1949,
at St. Louis,. Missouri, before Allen MacCullen, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Re-
spondent, and the CIO were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence on the issues was afforded all parties.
At the conclusion of the General Counsel's case-in-chief, Respondent moved to
dismiss the complaint as to the discharge of Townsel and Wilkins. Decision
on this motion, was reserved by me. At the close of the hearing, Respondent
moved to dismiss the entire complaint, which motion was taken under advisement.
It is disposed of in accordance with the findings of fact and conclusions of law
made below. The General Counsel's motion to conform the pleadings to the
proof was granted. No oral argument on the merits was made by the parties at
the hearing, but the. parties filed briefs with the undersigned.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and my observation of the witness, I make
the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation organized and operating under the laws of the
State of Missouri, is engaged in the manufacture and installation of precast
concrete and insulating roofing and flooring slabs for commercial construction
projects. Respondent usually carries on its business as a subcontractor. Its
business may be considered as divided into two sections, (a) the manufacture of
precast slabs in its plant in St. Louis, Missouri, which for convenience is herein-
after referred to as "inside work," and (b) the installation of the slabs in the
construction of buildings in and near St. Louis, Missouri, and in other States
of the United States, hereinafter mentioned as "outside or construction work."
At the hearing, the Respondent admitted and I find thatit is engaged in com-
merce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
United Gas, Coke & Chemical Workers of America, CIO, is a labor organiza-
tion within the meaning of the Act and admits to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Coercing employees to become and remain members of the AFL
On November 29. 1946, Respondent entered into a written contract with the
AFL, which generally provided for the recognition of that Union as bargaining
agent for the employees, fixed the wages and hours of work, and provided for
payroll deductions "for all members of the Union in the amount due the Union."
The contract further provided that it "may be amended by mutual consent of
both parties" and that "either party desiring to abrogate the agreement shall be
required to give the other party three (3) months of notice by official communi-
cation." The contract was to be "a continuing agreement until cancelled" . . .
"or changed by mutual consent except that wage adjustments shall be considered
from year to year." On March 12, 1948, the parties agreed to a change in the
schedule of wages effective March 18, 1948, and to continue in effect until March
18, 1949, and further agreed that "all other conditions in connection with our
agreement of November 29, 1946, are to have effect."
The uncontradicted testimony of officers of the Respondent was that it was
a condition precedent to obtaining employment with Respondent that the appli-
cant join and maintain membership in the AFL and authorize Respondent "to
withhold 500 per day from my salary on account of initiation fee until the full
amount of $46.00 is paid" to the AFL.
Leon Schumacher, president of Respondent, testified that Respondent com-
plied with the contract with the AFL requiring payroll deductions from the em-
ployees' wages -to cover the initiation fee of $46.00, and all employees were advised
that they had to join the AFL before they could be employed, and that this
practice continued after the filing of the charges in July 1948.
Fred Voepel, general superintendent for Respondent in charge of all outside
and inside work, testified :
Q. Were you limited to the men in that crew as to who would get on the
outside and who would work inside? Were there any limitations placed
on men in the shop?
PRECAST SLAB AND TILE COMPANY 1247
A. The limitations were only to the extent that the men would have to
have an AFL card to be on the outside.
Voepel further testified that on July 27, 1948, he talked to all of the employees
at the plant and announced that all of them would have to have an AFL card
if they wanted to work on Monday morning and if an employee did not have his
card by Monday morning, he should not come to the plant to work. As justi-
fication for these remarks, Voepel testified :
I was informed by the steward of the American Federation of Labor Union,
who was in the plant at the time, and the business agent, Mr. Taylor, and he
had investigated and found that a number of the men in the plant did not
have a current working card which was required of them in order to work
in the plant, and that unless they would have that current working card by
the following Monday morning , that they would take all of the other men
out of the shop and strike the shop until such time as they would get their
cards. The shop being in the condition that it was, very crowded, we had a
lot of work, I couldn't see any way to let that shop get pulled on a strike,
and I conveyed the message to the men in the words that unless they had
their cards they should spare me the humiliation and trouble of having a
strike and not even come to work that Monday. And that was the sum and
substance of the entire conversation.
Bert Biener, secretary for Respondent, testified that from July 28, 1948, to
November 18, 1948, 22 new employees were required to sign an authorization to
withhold 500 per day from their wages on account of initiation fee in the AFL
until the amount of $46.00 is paid, and this amount, after collection by Respond-
ent, was paid over to the AFL, that if new employees did not sign this author-
ization, they would not be hired.
Respondent attempts to justify its conduct in coercing employees to become
members of the AFL and checking off initiation fees due that Union by claiming
that it was obligated to do so under its contract with the Union. I cannot agree
that there was any such obligation imposed on Respondent by the contract with
the AFL. In the first place, the contract contained no union-security clause of
any kind. In the second place, Section VI of the contract' did not require
Respondent to make deductions from nonmembers of the Union. Respondent
admits that it coerced all new employees to become members of the Union and
to authorize deductions from wages for the initiation fee to that Union. Absent
the coercion by Respondent, the new employees may not have become members
of the Union and Section VI would not have applied to them. Certainly Respond-
ent will not be heard to say that it relies on its own illegal conduct as a justifica-
tion for its acts.2
I conclude, therefore, that Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and discriminated in regard to the hire and tenure of employment of its employees
in violation of Section 8 (a) (1) and 8 (a) (3) of the Act.
I This section provided, "It is agreed that payroll deductions will be made regularly
each month for all members of the union in the amount due the union and the amount paid
to the union ." [ Italics supplied.]
2 Assuming arguendo that the contract contained provisions requiring new employees
to pay the initiation fee and to become members of the AFL, General Counsel has argued
at some length that such a contract would be illegal . Without disagreeing, I find it
unnecessary to decide this question for the reason that such a contract is not before us
for consideration.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent's opposition to organization of CIO;
interrogation of employees as to union activity
About July 15, 1948, D. N. Wilkins, one of the persons alleged to have been
discriminatorily discharged, contacted the CIO and secured membership cards
and talked to some of the "employees about it and some of them seemed to be
interested and some of them did not." He then sought the assistance of John
Pointer, another of the persons alleged to have been discriminatorily discharged.
Pointer talked to all of the men in his section of the plant and, after securing
permission from the foreman in another section, talked to the men in that section
and secured the signatures to about 23 or 25 membership cards.
Thomas Stoddard, an employee of Respondent in 1948, testified that several
'days prior to an election held pursuant to Section 9 of the Act, on December 3,
1948, "Mr. Schumacher called me into the tool room where we dressed and asked
me, reminded me that we was going to have an election coming up in .the near
future, next couple of days, and he said that if we voted for the AFL he could
assure us a job the rest of the winter and we wouldn't be laid off, but he couldn't
promise us a raise, and if we went CIO we was on our own, and that I should go
tbrdugh the shop and tell the others in the event they was too busy for him to
call them out, he'd just call them one by one."' Stoddard further testified that
about this same time, General Superintendent Voepel called him into the office,
that Mr. Schumacher was present, that he does not remember exactly what
Mr. Voepel said but in substance "they told me I had worked for him previous
to that a long time and know I always gave him a fair deal. I told him, yes.
He said, Well, now, the thing about it, if you fellows stay in this CIO they are
going to close us down, I'm afraid the people on the outside, the AFL won't work
with us with the outside men and we have to have the outside men to put up the
slabs and you want your job and I want mine." Stoddard further testified that
Voepel also said to him on this occasion "if it went AFL we would continue with
the AFL and in the meantime he showed me quite a few, I guess contracts, I
don't know, that they had, that he could complete, and if we would stay with
the AFL, but if we went CIO, why, then we might be closed down by the fact
that the CIO wouldn't work with the AFL."' I credit the testimony by Stoddard
and find that Schumacher and Voepel made these statements or substantially the
same statements to Stoddard.
Aaron Brice, an employee of Respondent in 1948, and presently employed by
Respondent, testified that about 3 weeks before the election on December 3, 1948,
Albert Carr, assistant superintendent for Respondent, asked him "did I know
who all signed the CIO cards. I told him no, I did not know. He said, Did you
sign one? I said, No, I did not sign one because I got AFL card. He said, "Well,
I'm telling you, if you sign a CIO card that we cannot run this plant on CIO."'
I credit Brice's testimony and find that Albert Carr made this statement to Brice.
3 Mr. Schumacher (lid not deny making this particular statement to Stoddard. He
testified that he told Stoddard, "I'm afraid that it might have some bearing on the con-
tractors that we do business with if we operate AFL on the outside and not on the inside,"
that "I think that was about the extent of our conversation." (The CIO at this time
was attempting to organize the so-called inside workers and made no attempt to organize
employees engaged in outside construction work.)
' Voepel testified generally that he never conversed with Stoddard about any union
activities or union affiliations. However, he was not questioned as to this specific con-
versation with Stoddard and therefore did not deny it.
Carr was not questioned as to the first part of the statement as to who had signed
CIO cards and this testimony stands uncontradicted. Carr's only testimony on this sub-
ject was a denial that he told Brice that the plant could not run on the CIO.
PRECAST SLAB AND TILE COMPANY 1249.
After the discharge of John Pointer, hereinafter mentioned, Pertha Welch,
a fellow employee, talked to General Superintendent Voepel about the discharge
of Pointer and Voepel replied, "Yes, he is fired and gone and lots more of you all
is going to get your checks too. We ain't going to have no CIO in here."
Welch then spoke to Assistant Superintendent Carr about Pointer and said, "We
all want him back,"'and Carr replied, "There is nothing I can do about it, he
has been warned. We ain't going to have no CIO in here." Voepel denied
making the above statement to Welch, but Carr was not. questioned about Welch's
testimony. I credit Welch's testimony.
President Schumacher testified that sometime in November 1948 he asked
Townsel, one of the employees,' whether he had his AFL card. He explained
that the reason he asked him was due to the fact that he would have to have an
AFL card to work on the outside.
Respondent does not deny that it supported the American Federation of
Labor but attempts to justify this position by the threat of a strike if all of
its employees did not have AFL cards, and its fear of loss of business if all of its
employees did not remain members of the AFL. Counsel for Respondent in
his brief admits that Respondent was concerned as to whether "the American
Federation of Labor craftsmen on outside erection and construction would work
along side members of the CIO without labor difficulties. It is natural that
having this concern, to avoid any possible labor difficulty on the outside, feel
obligated to inquire of their workmen before sending them on such outside work
if they were American Federation of Labor members."
The Board and the courts have held repeatedly that an employer is not free
to violate the Act to avoid economic pressure. Section 7 of the Act gives the
employee the free choice of a union and the employer is not protected in the
violation of this right by reason of its own economic pressure.'
Respondent's counsel has also urged that coercive statements made by officers
of the Company were not violations of the Act if the officer was sincere and
honest. Honesty or sincerity by officers of Respondent does not justify coercive
statements. As the Court of Appeals for the Sixth Circuit in Atlas Underwear
Company v. N. L. R. B., 116 F. 2d 1020, 1023, said, "A statement to the em-
ployees that it might be necessary to close the plant made during the period
when unionization of'its employees was sought to be effective, must be regarded
as coercive, notwithstanding sincere belief on the part of the petitioner's execu-.
tives that such results would of necessity follow." In N. L. R. B. v. Asheville'
Hosiery Company, 108 F. 2d 28A4 (C. A. 4), the Court said: "While a bona fide
shutdown of a plant does not of itself constitute a violation of the Act, un-
doubtedly a threat or predication that it might have to close if unionized must
necessarily affect the judgment of its employees and interference with their
freedom of choice."
The Board has consistently held that questioning employees- concerning union
membership or activities by supervisors is coercive per se.7
I find that the statements made to Stoddard, Brice, and Welch were coercive
and in making such statements Respondent violated Section S (a) (1) of
the Act.
O'Keefe and Merritt Manufacturing Company, 70 NLRB 771 ; A. J. Showalter Company,
64 NLRB 573 ; N. L. R. B. v. Star Publishing Company, 97 F. 2d 465 ; South Atlantic
Steamship Company v . N. L. R. B., 116 F . 2d 480 ( certiorari denied, 313 U. S. 582).
'Biggs Antique Co., 80 NLRB 345; Goodyear Footwear Corp ., 80 NLRB 800 ; Taynline,
Inc., 87 NLRB 511; Minnesota Mining and Manufacturing Company, 81 NLRB 557.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Alleged discriminatory discharge of John Pointer
John Pointer was employed by Respondent from the spring of 1943 to July 27,
1948, at which time he was discharged . Shortly prior to his discharge Pointer
was very active in soliciting other employees to join the CIO. Pointer testified
that at the close of work on July 27 , 1948, General Superintendent Voepel gave
him his checks and said, "That 's all for you ." He asked Voepel , "Why are you
giving me them two checks ?" and Voepel replied , "I'll leave that for you to
find out." Pointer testified that on the day of his discharge there was no
criticism of his work by any of his superiors ; that sometime prior to his dis-
charge, although he could not fix the exact time, President Schumacher on one
occasion had criticized him for changing his clothes about 5 minutes before
closing time and that General Superintendent Voepel caught him changing
clothes about 5 minutes before quitting time and told him, "You have been out
here long enough to know better . Don't do that again." Pointer could not
fix the exact time of this occurrence.
General Superintendent Voepel testified that during the period of about 6
months before Pointer was discharged , he observed his work and it was "as a
whole satisfactory ." However , he did object "to his frequently absenting him-
self from his job." In explanation of this conclusion . Voepel testified that on
two or three occasions shortly before, he saw him changing clothes 5 or 10
minutes before quitting time and on each of these occasions he admonished
him. Asked as to the last time this occurred , he replied , "Oh, I would say it
was possibly about 2 or 3 days before his discharge ." The witness was then
asked as to further occasions when Pointer absented himself from his work
and answered that Pointer went to the washroom and would absent himself
from his work three or four times longer than the other men ; that in the last
month before Pointer was discharged , he watched him and counted that
Pointer went to the washroom six times in 1 day and on other days he went two
or three times a day ; that on the day Pointer went to the washroom six times
he spoke to him and asked him if he was sick and warned him that if he was
not sick, he should stay on the job as the other men do ; that on the occasions
he found Pointer in the washroom he was talking to other employees but he
did not hear anything they said . Asked if there were other occasions when
Pointer absented himself from his work, he testified "the other time, would
be when he would go out possibly to the platform on the outside of the building,
loading platform where they load boxcars and I 'd walk out there and find him
out there with possibly six or eight other men," that he was speaking to these
men who were fellow employees . Voepel first testified that he was out there
on the loading platform "numerous times" and later he corrected this to "two or
three times ," that the last time this occurred was the day of his discharge, and
he said, "Pointer , you know what I told you the last time I caught you . Tonight
will be the end."
Assistant Superintendent Carr , who had direct supervision over Pointer's
work, testified that after some difficulty he had with Pointer in August or
September 1947, Pointer was assigned to other work not under his supervision.
About 2 months later Pointer returned to work under him and continued in
his department until his discharge . Asked if he had any differences with
Pointer after his return , he testified that he did not. Asked if he remembered
when Pointer was discharged he said yes , but that he did not know anything
about what occurred on the day of his discharge.
PRECAST SLAB AND TILE COMPANY 1251
On the morning of the day Pointer was discharged, Voepel talked to the
employees about having their AFL cards, as hereinabove mentioned. Bryant,
the shop steward for the AFL, was present. Pointer testified that in the
presence of Bryant he said "that I'd have my card" and Bryant said, "You won't
need a card because we have taken care of you all right." This conversation
was confirmed by the testimony of two other employees who were present at
the time.8
Respondent offered testimony concerning some differences that arose be-
tween Pointer and Carr some time prior to his discharge. Schumacher fixed
the time of this difference as February 1948. Carr was rather definite that
it was in August or September 1947. Pointer could not fix the exact time but
said it was possible a year before his discharge on July 27, 1948. All of this
testimony regarding the differences between Pointer and Carr has little value
in determining the actual reasons for Pointer's discharge. In the first place it
is too remote in the absence of a showing that such conduct continued up to the
time of his final discharge, and this is completely negatived by Carr's testimony
that after Pointer returned to his department in the latter part of 1947 up
to the date of his discharge, he had no further difficulty with Pointer.
Analyzing the testimony of both Voepel and Carr, it is somewhat significant
that Voepel, who was general superintendent in charge of both inside and out-
side work, admitted that he did not spend more than 50 percent of his time in
the plant, and that he was the only one who noticed any misconduct by Pointer
on the day of his discharge and shortly before that time. Carr, who was di-
rectly over Pointer and was present in the plant all of his time, stated that he
had had no further difficulty with Pointer after the alleged differences in the
latter part of 1947 and did not know anything about what occurred on the
day of Pointer's discharge. It is also noticeable that the foreman, who was
directly responsible for Pointer's work, was not called by Respondent nor was
his absence at the hearing accounted for. Voepel's testimony on the whole was
somewhat evasive. He first testified that Pointer was "possibly" in the wash-
room or on the loading platform and it was only after objections as to his
use of such evasive words that he corrected his testimony and said that Pointer
was in the washroom, etc. Voepel testified that on each of the occasions that
he caught Pointer in the washroom and on the loading platform other em-
ployees were present and it is significant that none of these employees was
called as witness or their absence explained.
I credit the testimony of both Pointer and Carr that after the occurrence
in 1947, Pointer gave his employer no further difficulty, and that nothing
unusual happened on the day of his discharge other than the discharge itself.
Bearing upon the question of motivation, we have the credited testimony of
Pertha Welch concerning his conversations with Voepel and Carr shortly after
Pointer's discharge, heretofore considered in connection with interrogation of
employees as to union activity, and Pointer's testimony and the testimony of
two other employees, as to statements made by Bryant, all of which testimony
I credit.
I conclude, therefore, that Pointer was discharged by Respondent for the
reason that he joined and assisted the CIO and engaged in other concerted ac-
tivities for the purpose of collective bargaining and other mutual aid or pro-
tection.
8 Without holding that Bryant's statement is binding on the Respondent it has some
significance in determining the motivating cause for Pointer 's discharge.
882191-51-80
1252 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Respondent offered some testimony that it made an offer to reinstate Pointer.
Schumacher testified that about a month after Pointer was discharged, he directed
Albert Miller, one of the employees, to see Pointer and tell him to come back to
work. Miller testified that this was in June 1949, and not shortly after Pointer's
discharge, and he called at Pointer's residence and left word with his landlady
and later saw Pointer in the union hall and delivered Schumacher's message.
Pointer denies talking to Miller about this. Schumacher did not testify as to
what his offer was and Miller gave no testimony on the subject, and there is a
definite conflict in the testimony of these two witnesses as to when the alleged
offer was made. Such testimony is without probative weight and I find that no
offer was ever made by Respondent to reinstate Pointer.
E. Alleged discriminatory discharge of Wilburn Toumsel
Wilburn Townsel was employed continuously by Respondent from the early
part of 1942 to August 16, 1948, when he was discharged. Townsel joined the
CIO on July 26, 1948. He testified that shortly before his discharge he had a.
conversation with General Superintendent Voepel in which the latter said to him,
"What are you going to do when the CIO gets in here?" and Townsel replied,
"CIO, I don't know. CIO getting in," Voepel said, "Yes," and I said to him,
"Can't I keep my card." He replied, "No, you can't keep two cards." This
conversation was not denied by Voepel. On the same day Townsel testified that
he had a conversation with President Schumacher as follows: "He said, Townsel,
I understand that you are some of the starting of this CIO. He says, now listen,
it doesn't matter a damn with me, or I don't give a damn what union gets in here,
CIO or AFL, he says, but all of our contracts are made up on AFL, and I got to
carry it out like that. Otherwise I will have to move the plant to East St.
Louis." He further testified, "Mr. Schumacher, I don't know, who told you
anything about the CIO. He said, that's all right, I know more than you think
I know about it. I know who goes to these meetings." Schumacher denied that
he said anything to Townsel about moving the plant to East St. Louis, but did
not deny the other testimony.
Townsel testified, and the records of the Respondent confirm his testimony, that
from at least the first part of June 1948 up to the date he was discharged he was
assigned to outside work at $1.50 an hour with two other employees, Williams and
Rucker. On August 16, 1948, he was assigned to do some construction work
inside the plant and two new men were sent out with Williams and Rucker.
When he completed his work that day lie asked Voepel as to the pay for this
work and was informed that he would receive shop wages for inside work. He
then testified as follows :
And then I said, O. K. Then I asked him, I says, say, you have made some
little changes, haven't you? He said, changes, how? and I said, well I notice
you sent Rucker and Cotton and two more new men, you put them out and
left me here. I didn't know you changed over. At this point he seemed to
have gotten a little angry. He told me, he said, Townsel, I'll get your money.
You are not satisfied. Go in the plant. I said to him, Fred, there is nothing
the matter with me not being satisfied. I don't mind doing work anywhere
you say but I just asked you the question. He said, well, you ain't satisfied.
You have been studying all day about what you were going to ask me this
evening about that. I'll go get you your money. I'll go get you your money
right now. He crossed from his office to the office where they make the pay
checks out. He went over and had Mr. Brouk make my time out, gave me my
check.
PRECAST SLAB AND TILE, COMPANY 1253
'Townsel further testified that this was the first time he "had been taken away
from association with Rucker and Williams on outside work and placed on work
inside the plant at $1 an hour."
Voepel's testimony, with a few minor exceptions, confirms Townsel's testimony.
He testified that Townsel asked him, "I want to know why you are making these
changes, why you are putting me on the inside," and he replied, "Townsel, I
haven't got any room for you on the outside." Townsel then said, "I am supposed
to go on all the outside work," and he told Townsel, "Well, I just haven't any
room for you on the outside. Now, if you are not satisfied there is nothing I can
-do about it." Townsel then said, "I am going to see Mr. Schumacher, I am going
to go on outside work. I don't care what you say or anything else." Schumacher
then said to Townsel, "Now, wait a minute. If you are not satisfied now in what
I am telling you, you can come right on over and get your money," and Townsel
replied, "0. K."
Townsel had been employed by the Respondent almost from the beginning of
its operations and there was no testimony offered to show that his work was
unsatisfactory or that he was not competent. The records of Respondent disclose
that for the week ending August 18, 1948, no employees other than Townsel,
Rucker, and Williams were assigned to outside work, and Voepel's testimony that
on the day Townsel was discharged he did not have room for him on the outside
is probably true. In all other respects, there was no substantial denial by any
of Respondent's witnesses as to Townsel's testimony, and except for his statement
that two other men were sent out with Rucker and Williams on the day of his
discharge. Townsel's testimony is all credited. Townsel may well have been
mistaken in assuming that other men went out with Rucker and Williams on
this day. The Respondent's records disclose, however, that during the week
ending August 18, 1948, Rucker worked 20 hours outside and 19 hours inside,
Williams worked 29 hours outside and 11 hours inside. Townsel, however, only
worked 12 hours outside and 12 hours inside, but he only worked 3 days that
week as he was discharged on the 16th. For several weeks prior to this, he had
been assigned to the same amount of outside work as Rucker and Williams. It
is obvious that some change had been made in the last week of his employment,
and he was certainly justified in questioning Voepel as to the reasons for the
change. Voepel's action in reducing his assignment to outside work is not ex-
plained by Respondent, and can only be viewed as an attempt by Respondent
to penalize Townsel for his union activities. Townsel certainly had just cause
to be dissatisfied, and assuming, without crediting, Voepel's testimony that
Townsel threatened to appeal to Schumacher, this would not furnish sufficient
grounds to discharge an employee whose services had otherwise been satisfactory
over a period in excess of 6 years.
I find that Respondent, by discharging Wilburn Townsel on August 16, 1948,
discriminated in regard to his hire and tenure of employment, discouraging mem-
bership in a union, and thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act.
On November 10, 1948, Townsel was rehired by the Respondent but he was not
restored to his former position nor was any offer made to reimburse Townsel for
loss of pay from the date of discriminatory discharge to the date of his reemploy-
ment. The following chart taken from Respondent's records definitely establishes
that during the period from about the first of June 1948 to the date of Townsel's
discharge on August 16, 1948, Townsel, Rucker, and Williams were given about
the same amount of outside construction work at $1.50 an hour and about the
same amounts of inside work at $1 an hour:
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hours worked at $1.50 rate Hours worked at $1.00 rate Number Numberof other
Week ending- of hoursworked men
Townsel Rucker Williams Townsel Rucker Williams by others workingoutside
June 9/48____________ 8 8 8 32 32 32 0 0
June 16/48___________ 40 40 40 0 0 0 5% 1
June 23/48___________ 27 27 27 8 8 8 74 6
June30/48----------- 20 28 28 20 12 12 47 4
July 7/48___________ 12 17 17 20 14 14 12 2
July 14/48____________ 32 32 32 8 8 8 104 10
July 21/48____________ 42 42 42 __________ 3 __________ 148 10
July 28/48____________ 30 30 30 16 16 16 56 7
Aug. 4/48------------ 27 27 27 13 13 13 0 0
Aug. 11/48 ----------- 32 32 32 8 8 8 29 3
Aug. 18/48----------- 12 20 29 12 19 11 0 0
Nov. 17/48 ----------- 8 29 29 31 9 8 94A 4
Nov. 24/48 ----------- 8 32 32 24 ------ 153 8
Dec. 1 /48____________ 22 31 39 19 10 2 107 7
Dec. 8/48____________ 24 23% 23H 16 16M 16% 77 4
Dec. 15/48___________ 8 19 11 31 21 30% 32 4
Dec. 22/48 ----------- 0 23% 23A 40 20 20 9134 10
Dec. 29148 ----------- 0 9 10 16 23 22 9 1
The above chart shows that when Townsel was rehired on November 10, 1948,
he was not given the same proportion of outside construction work as Rucker
and Williams. The chart also discloses that after Townsel was rehired up to
the date when he was laid off or discharged on December 27, 1948, outside con-
struction work was available. Voepel admitted that the reason Townsel was
not being assigned to outside construction work after November 10, 1948, was
because "in the interim of his unemployment other men were sent on that job
and were broken into that particular phase of the work." Voepel admitted that
Townsel was not given the same job with the same priority and the same rate as
he had before his discharge.
In determining whether a valid offer of reinstatement has been made, the
Board has followed consistently the rule announced in Chase National Bank of
the City of New York, 65 NLRB 827, viz, "a restoration of the situation, as nearly
as possible, to that which would have obtained but for the employer's illegal dis-
crimination." Where reinstatement to the former position may not be possible,
reinstatement may be made to a substantially equivalent position. In the present
case, Townsel's former job was available and it is not sufficient for the Respondent
to say that in the interim of his unemployment other men were assigned to his
job. I find, therefore, that there has been no valid offer of reinstatement made
to Townsel.'
F. Alleged discriminatory discharge of D. Nathaniel Wilkins
D. Nathaniel Wilkins was employed by Respondent on January 13, 1948, and
remained in its employ until July 27, 1948, when he was discharged. Wilkins'
work was all inside the plant and consisted principally of "pulling the bucket" of
mixed concrete on an overhead track from the mixer to the concrete forms where
he poured the concrete.
About July 15, 1948, Wilkins obtained application cards from the CIO and
solicited employees to sign them. He contacted John Pointer and obtained his
assistance in securing employees' signatures to the CIO cards. Wilkins was the
one who initiated the organization of the CIO movement in Respondent's plant.
' By reason of this finding, it is unnecessary to determine whether Townsel was discharged
or laid off on December 27, 1948.
PRECAST SLAB AND TILE COMPANY 1255
Wilkins testified that on the morning of July 27, 1948, the day he was dis-
charged, after General Superintendent Voepel had talked to the employees about
having AFL cards, he told Voepel, "We had a holiday, we are not making that
much money and are not able to buy a card," and Voepel replied, " If you do not
want to work here you don't have to. You knew this when you first came here."
That afternoon at quitting time, Voepel and Carr came down to where he was
working and Voepel said to him,
Are you Wilkins? I replied, that's right. He handed me my check. He
said, I can't use you no more. I said, what's the trouble, I said, am I work-
ing to suit you? He said, well, he said, I have a right to hire and fire who I
please, and he said, it's none of your business about what I do around here.
He said , I'm the boss here. I said, I know that, but I want to know what the
trouble is, what's going on. He said, you know what the trouble is, I don't
have to tell you. I said, 0. K. So I walked on away.
Voepel gave no testimony as to the conversation with Wilkins when he dis-
charged him ; that the only thing he knew about what occurred prior to his dis-
charge was what he had been told; that he discharged Wilkins upon the recom-
mendation of Carr.
Carr testified as follows :
Well, the trouble that I had with Wilkins was keeping mud [mixed con-
crete] down for my other men to have work to do. I had occasion, would
come through and get after him about keeping mud for my other boys so
they'd have work to do. So I got after him a lot of times about it and he
claims that the mixer was holding him up so I'd get on the mixer man and
I'd have the mixer man call him everytime he was ready for the bucket to
go under.
Q. All right, that was your principal difficulty with Wilkins, was it?
A. Yes.
Q. What, if anything, occurred on the 27th day of July 1948, the day he
was discharged? What occurred between you and Wilkins?
A. Well, on that particular day I was on him about getting mud down,
concrete down for the forms. Then he give me some talk. I can't say it
in front of this . . .
Q. Those are the words he is objecting to? You said you got on him.
Just what did you mean when you said you got on him?
A. I got after him about not keeping mud or concrete down for the
forms.
Q. What did you say to him, do you recall?
A. I says, Wilkins, what's the trouble you can't keep concrete down in
the forms? Then he come out ... .
° Q. And what, comes out at what?
A. Well, what he said.
By EXAMINER :
Q. Used some obscene language to you, did he? Is that what you mean?
A. Yes, sir, that's right.
By EXAMINER:
Q. Can you repeat the language he used?
A. I can.
By EXAMINER:
Q. Would you care to do so with the young lady present?
A. I don't like to. I wouldn't want to.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By EXAMINER :
Q. Suppose you come up here and tell me what it was he said.
A. Go - yourself.
Q. Now, go ahead, what else did he say, what was the rest of it?
A. Well, the rest of this, this ain't slavery time, you can't drive. me. I'll`
go when I want to.
This happened about 3 o'clock in the afternoon, and Carr testified that he
then saw Voepel and recommended that Wilkins be discharged and Voepel took
care of it from then on.
On cross-examination Carr testified that he did not hear profane or obscene
language when he was dealing with the employees at the plant and that he
was shocked when he heard Wilkins' language.
Zeba McShan, a witness called by Respondent, testified that he had been
employed by Respondent since 1944, that he and Wilkins had "worked pretty
much right together" during the time Wilkins was employed by Respondent,.
that on the afternoon Wilkins was discharged Carr called Wilkins and told him,
"to come on with some mud," that he was standing close to Wilkins at the.
time and heard Wilkins say "go = yourself" loud enough for Carr to hear.
McShan further testified that during the time Wilkins was working at the plant.
he did not seem to like the work so well, that he said the work was too hard.
for the money he was getting, that on the day Wilkins was discharged he•
"seemed to be displeased pretty much all day that day, more so than others."
On cross-examination he testified that on the day Wilkins was discharged he-
did not "carry the mud" all right, he was a little slow, that "we need the mud.
here and ain't got none and the bucket is standing here, you see, that's the way
that went at that time," that Wilkins seemed to be displeased that day more
than before, "he wouldn't work, you know, he worked like he was displeased."
Wilkins was recalled in rebuttal and denied that he used the obscene language
in talking to Carr, and also denied that Carr had said anything to him on the.
day of his discharge about not bringing up the bucket promptly and testified,.
"We never had any words at all."
Wilkins' denial of any conversation with Carr on the date he was discharged
is not plausible, if we are to believe any part of the testimony of Carr and
McShan. In his direct testimony, he said that Voepel told him, "You know what
the trouble is, I don 't have to tell you," and he replied, "0. K." The incident
with Carr had happened only a short time before then and Wilkins no doubt
did know what the trouble was. I was impressed with the testimony of both
Carr and McShan and credit this testimony.1°
i° In his brief the General Counsel argues that Respondent changed its position with
respect to the reasons for the discharge of Wilkins. I cannot agree. In a letter dated
August 12, 1948, after receipt of notice that it had been charged with unfair labor practices,
Respondent stated that Wilkins was discharged for the reason that he had been guiltf of
insubordination and refused to obey orders of his superiors ; was inefficient , failed and
refused to keep up his end of the work, which resulted in the remainder of his crew being
made idle. The testimony clearly establishes this fact. The General Counsel has made a
point'that in its letter Respondent did not refer to the use of obscene language by Wilkins.
I do not feel that it was necessary for Respondent to divulge all of its evidence. Certainly,
the conduct of Wilkins was insubordination and it was not necessary for the Respondent to
allege the details of such insubordination . In its letter Respondent also charged Wilkins
with absenting himself from his work without permission and that he told his supervisors
that if they were not satisfied with his work they should discharge him. These two last
reasons apparently were abandoned by Respondent , but that does not indicate that
Respondent had altered ,its position as claimed by the General Counsel.
PRECAST SLAB AND TILE COMPANY 1257
The General Counsel has argued that -if the alleged insubordination occurred at
3 p. m. and he was not discharged until 4: 30 p. in., that it is preposterous for
Respondent to argue that Wilkins directed such obscene language to Carr and
that Carr permitted him to work the balance of the afternoon. Carr testified
that after the incident he reported the matter to General Superintendent Voepel
and recommended Wilkins' discharge. There is no evidence as to why Carr
delayed taking immediate action against Wilkins. It is a fact, however, that
Respondent was aware of Wilkins' union activity in opposition to its desire to
-maintain relations with the AFL and it is reasonable to assume under the
circumstances that Carr deemed it advisable to consult with Voepel before taking
any action. I do not regard the lapse of time before his discharge as significant.
As the Board said in Lloyd A. Fry Roofing Company, 85 NLRB 1222, "Respondent
may well have welcomed the opportunity of getting rid of him, but neither his
activities nor Respondent's attitude gave him privileges greater than those of
other employees."
I conclude, therefore, that the allegations of the complaint that the Respondent
discharged Wilkins because of his union activities is not supported by the
evidence, and the motion to dismiss the complaint as to the discharge of Wilkins
is granted.
IV. THE EFFECT OF'THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act, it will
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
By interrogating employees about the Union and their union membership,
activities, connections, and sympathies and by aiding, abetting, sponsoring, and
promoting membership in the AFL, Respondent has evidenced a purpose and
disposition to thwart self-organization of its employees and deprive them of their
rights under the Act. In view of this, there is, in my opinion, a likelihood not
only that such acts may be repeated but that other unfair labor practices may
be resorted to by Respondent in an effort to prevent self-organization of its
employees. To minimize the likelihood of recurrent unfair labor practices and
to assure to the employees the enjoyment of their statutory rights, it will be
recommended that the Respondent be ordered to cease and desist from in any
manner interfering with, restraining, or coercing its employees in the exercise
of their rights of self-organization.
Having found that Respondent has discriminatorily discharged John Pointer
and ' Wilburn Townsel, it will also be recommended that Respondent offer the
said John Pointer and Wilburn Townsel immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their
seniority, and other.rights .and privileges and to make them, and each of them,
whole for any loss of pay they may have suffered by reason of Respondent's
discrimination against them, by payment to John Pointer of a sum of money
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equal to the amount which he would normally have earned as wages from July 27,
1948, to the date of the offer of reinstatement, less his net earnings during such
period, and by the payment to Wilburn Townsel of a sum of money equal to the
amount which he would normally have earned as wages from August 16, 1948,
to the date of the offer of reinstatement, less his net earnings during such period.
Having found that the Respondent violated Section 8 (a) (1) and 8 (a) (3)
by coercing its employees to become and remain members of the AFL, and by
coercing employees to authorize deductions from their wages of 500 per day
until the full amount of $46 initiation fee in the AFL was paid, it will be recom-
mended that Respondent make whole to such employees the amounts deducted
from their wages during the period from July 27, 1948, to December 1, 1948, for
and on account of initiation fees to the AFL."
It will also be recommended that the allegations of the complaint that the em-
ployee D. Nathaniel Wilkins was discriminatorily discharged in violation of Sec-
tion 8 (a) (3) of the Act be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the ease, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent, Precast Slab and Tile Company, con-
stitute commerce within the meaning of Section 2 (6) and (7) of the Act.
2. United Gas, Coke & Chemical Workers of America, CIO, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees to become and
remain members of the International Hod Carriers, Building and Common Labor-
ers, AFL, the Respondent interfered with the rights of the employees guaranteed
in Section 7 of the Act and engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and 8 (a) (3) of the Act.
4. By discriminating in regard to the tenure of employment of John Pointer
and Wilburn Townsel, the Respondent discouraged membership in United Gas,
Coke & Chemical Workers of America, CIO, in violation of Section 8 (a) (3)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, the Examiner recommends that Precast Slab and
Tile Company, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees to become and
remain members of the International Hod Carriers, Building and Common
Laborers, AFL, or any other labor organization, except to the extent that such
right may be affected by an agreement requiring membership in a labor or-
ganization, as authorized in Section 8 (a) (3) of the amended Act;
(b) Interrogating its employees concerning their union affiliations, activities,
or sympathies, or those of their coworkers, or in any other manner interfering
"'Virginia Electric and Power Company, 44 NLRB 404, 319 U . S. 533; Supersweet Feed
Co., 62 NLRB 53; McGFough Bakeries Corp., 58 NLRB 849; S. H. Camp & Co., 52 NLRB
1078 ;Donnelly Garment Co ., 50 NLRB 241; Cannon Electric Development Co., 71 NLRB
1059.
PRECAST SLAB AND TILE COMPANY 1259
with, restraining , or coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist United Gas, Coke
& Chemical Workers of America, CIO , or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or 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 authorized in Section 8 (a) (3) of the amended Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act :
(a) Offer to John Pointer immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges ;
(b) Make whole John Pointer for any loss of pay suffered by reason of Re-
spondent 's discrimination against him , by payment to him of a sum of money
equal to that which he normally would have earned as wages from July 27, 1948,
to the date of the offer of reinstatement , less his net earnings , if any, during
such period ;
(c) Offer to Wilburn Townsel immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges ;
(d) Make whole Wilburn Townsel for any loss of pay suffered by reason of
Respondent 's discrimination against him , by payment to him of a sum of money
equal to that which he normally would have earned as wages from August 16,
1948, to the date of the offer of reinstatement , less his net earnings, if any,
during such period ;
(e) Make whole to all employees from whom deductions from wages were
made from July 27, 1948, to December 1, 1948, on account of initiation fees
collected and paid to the International Hod Carriers , Building and Common
Laborers, AFI, ;
(f) Post at its plant in St. Louis, Missouri , copies of the notice attached to
this Intermediate Report marked Appendix A. Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region, shall, after being
signed by the Respondent 's representatives , be posted by the Respondent im-
mediately upon receipt thereof and maintained by it for sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered , defaced, or covered by any
other material;
(g) Notify the Regional Director for the Fourteenth Region, in writing,
within twenty ( 20) days from the date of the receipt of this Intermediate
Report what steps the Respondent has taken to comply therewith.
It is further recommended that, unless on or before twenty ( 20) days from
the receipt of this Intermediate Report the Respondent notifies said Regional
Director , in writing , that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring Respondent to
take the action aforesaid.
It is further recommended that the allegation of the complaint that Re-
spondent discriminated against its employee D. Nathaniel Wilkins within the
meaning of Section 8 ( a) (3) of the Act be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may , within twenty ( 20) days from the date
1260 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
of service of the order transferring the case to the Board, pursuant to Section
203.45. of said Rules and Regulations, file with the Board, Washington 25,
D. C., an original and six copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record of
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the. original and six copies of a brief in support thereof ; and, any
party may, within the same period, file an original and six copies of a brief
in support of the Intermediate Report. Immediately upon the filing of such
statement of exceptions and/or briefs, the party filing the same shall serve a
copy thereof upon each of the other parties. Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied upon
and shall be legibly printed or mimeographed, and if mimeographed shall be,
double spaced. Proof of service on the other parties of all papers filed with
the Board shall be. promptly made as required by Section 203.85. As further
provided in said Section 203.46 should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
. In the event no Statement of Exceptions is filed as provided by the afore-
said Rules and Regulations, the findings, conclusions, recommendations, and
recommended order herein contained shall, as provided in Section 203.48 of said.
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 16th day of December 1949.
ALLEN MACCULLEN,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees to become and remain members of the INTERNATIONAL Hon CARRIERS,
BUILDING AND COMMON LABORERS, AFL.
WE WILL NOT interrogate our employees concerning their union affiliations,
activities, or sympathies, or those of their coworkers, or in any manner
interfere with, restrain, or coerce our employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist UNITED
GAS, COKE & CHEMICAL WORKERS OF AMERICA, CIO, or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
WE WILL OFPER to the employees named below immediate and full rein-
statement to their former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the discrimi-
nation.
John Pointer
Wilburn Townsel
PRECAST SLAB AND TILE COMPANY 1261
WE wILL OFFER to make whole all employees from whom deduction from
wages were made from July 27, 1948, to December 1, 1948, on account of
initiation fees collected and paid to the International Hod Carriers, Building
and Common Laborers, AFL.
PRECAST SLAB AND TILE COMPANY,
Employer.
By ---- ------- -------------------------
.(Representative ) (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.