Ritchie Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1257 (N.L.R.B. 1964)

RITCHIE MANUFACTURING COMPANY 1257
Ritchie Manufacturing Company and International Molders
and Allied Workers Union , AFL-CIO. Case No. 18-CA-1680.
June 30, 1964
DECISION AND ORDER
On March 25 , 1964, Trial Examiner A. Norman Somers issued his
Decision 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 attached Decision . Thereafter,.
the Respondent filed exceptions to the Decision.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three -member-
panel [ Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed ., The. Board, has,eon5idered ,theiTrial
Examine 'r's Decision, the exceptions , and the entire record in this case,,
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom
mended by the Trial Examiner and orders that Respondent, Ritchie
Manufacturing Company, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order.
1 The Respondent's request for oral argument is hereby denied as in, our opinion the-
entire record in this case, including the exceptions, adequately sets forth the issues and=
positions of the parties.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner A. Norman Somers on November.6
and 7 , 1963 , in Marshalltown , Iowa, on complaint of the General Counsel (as
amended at the hearing ) and answer of Respondent (as correspondingly amended).
The issue was whether terminations of Robert E. Feltz, first on August 2 and (after
rehire ) again on October 25, 1963 , were in violation of Section 8(a)(3) and (1) of
the Act .' The parties waived oral argument and the General Counsel and Respondent
have filed briefs , which have been duly considered . On the entire record and my
observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT AND, THE LABOR ORGANIZATION INVOLVED
In accordance with the concessions made on-the record it is found that Respondent,
an Iowacorporation ,.exporting over;$ 800;0Wa year of'its-product ( barnyard watering
1 Charge filed August 9 and complaint issued October 1, 1963.
147 ,NLRB . No. 123.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
devices) from its plant in' Conrad to points outside Iowa, is engaged in commerce,
and that the Charging Union is a labor organization within the meaning of the Act.
II. THE TERMINATIONS OF ROBERT E. FELTZ AS UNFAIR LABOR PRACTICES
A. Sequence
(1)
Robert E. Feltz went to work for Respondent on October 15, 1962. Five days
before this, he was interviewed for the job by C. D. Wilson, Jr., vice president of
-Respondent and son of the president. Wilson said a union election was coming
up, and Feltz replied he was "for the principle of organized labor" but "there were
things [he] objected to in the labor union movement." He said he had voted in an
,employee election some years before, when he had been employed in a factory
in Michigan "in between churches," 2 and. that he voted "no."
(2)
Wilson, Junior's bringing up the union election has the following context, all based
-on undenied testimony given in this hearing: 3
(a) On the same day that he interviewed Feltz, Wilson summoned the entire force
to the warehouse. He told them he heard rumors of "the Union getting into the
factory," and asked those who were for it or had signed union cards to raise their
hands. No one did. He told them that: "if anyone of [them] heard of a man or a
:group of men that were interested' in the Union to come to the office and they would
dispose of him"; if the Union got in he would not deal with it and would close the
plant first; Respondent's profit-sharing plan "could be terminated any time they
wanted to with the board of directors," and Respondent could reduce its force to about
12 men.
(b) The two employees who had been in contact with the Union's representative in
organizing the plant were John D. Katzer and Edward McCreery. After Wilson's
speech and before the election, held on November 6, each of them, while at work, was
approached by Richard Sweet, foreman of the steel shop.4 The testimony concerning
2 Feltz is an ordained minister of the Baptist Church. He has no church or congrega-
tion of his own, but from time to time he substitutes for other pastors. This has also
been so in the area here involved. .
3 The events'here recited which precede July 9, 1963 (the significance of which appears
in a later contract), were the basis of a prior complaint issued ,by the General Counsel
-against Respondent on charges by the Union in Case No. 18-CA-1603. On July 24, 1963,
'before hearing, a "Settlement Agreement" was entered into, approved by the Regional
Director. This is described more fully in item (6). The testimony given in this case
'concerning events preceding July 9 (including those occurring in the fall of 1962, pre-
-ceding 6 months before the charge in the instant proceeding) was received for the limited
'purpose of its evidentiary bearing on the events occurring after July 24. No Independent
allegations of unfair labor practices are predicated upon it. Their role (in the manner,
'for example, of Feltz' work history, etc.), is confined to how they "shed light on the true
'characters of matters" herein issue (Local Lodge No. 1424, International Association of
Machinists (Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411, 416) and " tend reason-
ably to show the purpose of or character of the particular transactions under scrutiny."
F.T:C. V. Cement Institute, 333 U.S. 683, 705.
The events occurring after July 9 were, not alleged in' the complaint in Case No.
18-CA-1603.' The General Counsel predicates independent 8(a) (1) allegations upon con'
,duct occurring between that date'and July 24 (the date of the settlement ) and also on
an event after' that date and before the termination of Feltz on August 2. The conduct
up to July 24 is relevant for the same reasons as the other conduct preceding July 9,
regardless 'of whether it can also be the basis for independent findings of violation.
Whether independent violations can be predicated upon them- hinges on whether Respond-
ent is separately shown to have violated the Act after the settlement date apart' from
them, for if that be the case, the policy underlying the immunity given to presettlement
conduct would no longer apply.
4 There is no genuine question about Sweet's status as foreman or of his supervisory
-status.. ' The record is replete with undenied testimony by -the various employees that
Sweet directed their work, passed on their requests for time off, assigned them their dif-
ferent duties, otherwise acted as one in responsible authority over them, and was referred
to and regarded by the employees as foreman . Respondent too referred to him that way.
Feltz testified that when he reported for work on October 15, Vice President Wilson said
be would have Leland Wiseman, the superintendent, "take [him] out and introduce [him]
1' RITCHIE MANUFACTURING COMPANY 1259
what he said to each was not denied. Sweet said to McCreery, "We sure nipped that
in bud, didn't we?" To Katzer (who was also the observer for the Union in the
election), Sweet gave the warning "to leave the union alone," saying "they* were
planning on getting rid of anybody that they knew was for the union."
The above occurred contemporaneously with literature distributed by Respondent
to the employees, containing a strongly worded appeal to the employees to reject the
Union, and reaffirming the statement, made by Vice President Wilson to the 'assembled
employees on October 10, that the profit-sharing plan "can be terminated" by the
board of directors pursuant to a specified article in the plan. •
The Union lost the election.
(c) Respondent discharged Katzer the last week in February. The next day,
Foreman Sweet approached Edward McCreery'at his work place. As related by
McCreery without denial, Sweet told him "we sure hung one last night." McCreery
asked, "How many more have you got to go?" Sweet replied, "A couple." McCreery
and another employee were discharged a month later. After this, Foreman Sweet
asked McCreery, according to thelatter's further undenied testimony, "Do you think
the union will help you get back here?" McCreery replied, "They did not help
John Katzer, did they?" A week later, Sweet was discussing. with employee Donald
Sager the work done by various employees. Sager observed that "they had let go
better men than a lot of them that they had." Sweet replied, "That was right, but they
had to go." Sager asked why, and Sweet replied, "Well, you know they are trying to
get a union in here."
On March 29,.the Union filed charges in Case No. 18-CA-1603.
(3)
Feltz did general steel shopwork-on the punch press, the shears (for cutting steel),
and "breakers" (for bending it).
He started at $1.41 an hour, and by March 1963 had received two raises. On
March 25, 1963, Foreman Sweet took Feltz off shopwork and assigned him to dip
painting and washing parts at the tank. The washing is done with a fluid, called
Apco, that evaporates more rapidly than coater, has a "low flashpoint" and gives off
fumes, . which are disagreeable to some employees and make others dizzy, with the
sensation of a "cheap drunk." Feltz was especially sensitive. After 5 days, he felt
nauseated, headache and lung pains, and was on the point of "collapse." He re-
ported this to Superintendent Wiseman, saying if forced to continue at it, he would
have to quit. Wiseman told him he was slow and not holding up his end of pro-
duction but would consult further with Wilson, Junior. At the end of that day,
Wiseman told him he would be given a 2-week trial at shopwork'again, and Sweet
to the foreman" ; that Wiseman then came in and also said he would "introduce [him] to
the foreman, who would assign [him] to [his] work," whereupon he introduced Feltz
to Sweet who, in fact, did assign him to his various tasks. Wiseman, examined by the
General Counsel under rule 43(b), denied he used the word "foreman." He evaded di-
rect answers as to whether Sweet and four others in like authority over their respective
shops were "foremen" and as to their authority. Ultimately, he admitted he looked to
that group of five, who are intermediate between him and the rank-and-file, "to see that
the men do their work right" ; and that he "[holds] them responsible for it," and that
he "probably" told Government counsel during the investigation that they are "in charge"
of their respective shops. He admitted that Sweet sets up the work for the department,
trains new employees, assigns them to their work, and passes upon leave requests for
short periods. Various events relating to the merits show higher management dealt with
Sweet and Sweet dealt with the employees on the premise of his being foreman of the
steel shop. Wiseman asked how Sweet's rate of pay compared to the rank-and-file. He
protested it was not a "fair question to answer in front of the rest of the men," where-
upon he was told he could put it in the record outside the hearing of the spectators. A
recess was specially declared to enable him to consult with counsel and Vice President
Wilson, so that the data could be quietly entered by stipulation. At the conclusion of
the recess, counsel announced that "that information is not available at this time." It
was never produced. It is a fair inference that Sweet has a higher rate of pay over the
rank-and-file which reflects his responsibilities over them. Wiseman's entire performance
makes it difficult to escape the conviction that his actual recollection was hardly different
from the one imputable to the nontestifying Wilson on whether before taking Feltz to
Sweet. he said he would introduce him to his "foreman ." The conclusion is that Sweet is
a supervisor within the meaning of Section 2(11) of the Act.
1260 DECISIONS OF NATIONAL LABOR • RELATIONS BOARD
put him at spotwelding. About a month later, Wiseman asked Feltz if -he liked the
work. Feltz said he did. Wiseman replied, "Well that solves our problem for us." S
(4)
The:spotwelding done ,by Feltz was on small casings, at which he performed singly
and without complaint. On July 3 he was put to spotwelding on larger casings.
This is a two-man operation. Respondent has one 2-man team that performs this
on a full-time basis. When more such larger casings are needed, a supplemental
team is set up that works at it about 3 days a week, until the additional demand for
the larger casings lets up. It'requires adaptation, and the improvised team is slower
at it than the regular one. This is reflected in the supplemental team's having a
lower output per day than the regular one. Assigned to work- with- Feltz was Charles
Baker, a youthful employee, who until then had had 4 days' experience at spot-
welding. Feltz performed 21/2 days with Baker' at that job until it was finished.
There was no complaint about his performance, and he returned to general spot-
welding on the smaller casings, on which he continued to perform, again without
complaint. On July 18 he was again assigned to a two-man casing operation. He
performed at it, likewise without complaint, until July. 30, first with Baker. who,
after 3 days, was taken off it at his request because he did not like that work, and
then beginning July 24 with Dale Weston, an 18-year-old employee, who had not
done spotwelding before and was shown how by Feltz. On July 31 Respondent took
Feltz and Weston off the large casings and put Feltz at the shears. On August 1 he
-was put back to the.wash tank,..the work which, in March 1963, hecomplained to
Superintendent Wiseman affected his health and led to his being put on spotwelding.
His unsuccessful efforts to be relieved of it for the same reason culminated in his
first termination on August 2 in a manner detailed in item (7) below.
This occurred in the context hereafter recited.
(5)
On May 21, 1963, the General Counsel had issued a complaint on the charges filed
by the Union in the previously mentioned Case No. 18-CA-1603 (supra, foot-
note 3), alleging the illegal discharge - of the three employees mentioned in (2),
above, and the other coercive conduct therein recited. The case had been set for a
hearing for July 16. In preparation for the hearing, the representative of the Gen-
eral Counsel assigned to the case (who is also the attorney appearing for the General
Counsel in the instant case) held a session the night of July 9 with several employees;
of Respondent in the Redwood Motel in Marshalltown. In that group was Feltz,,
whom the General Counsel's representative had subpenaed for that purpose. There-
after Respondent made the- following overtures to employees concerning it: 6
The next', morning, July 10, C. D. Wilson, Sr., president of Respondent, came to,
Feltz while he was at work. Feltz' undenied testimony of the encounter is as follows:
[Wilson, Senior] said, "I understand that you attended a union meeting last
night." And I told him that it was much more than a union meeting. He then
asked me how many fellows were there, - and I said, "Some." And he said,
"Well, we don't need a union at the plant." And then he said something about
"I believe in God" and turned away, and I didn't hear the rest that he said.
That same morning Foreman Sweet approached employee Lawrence Bottema while
at work and asked him "whose car this was out in the parking lot." Sweet described
a car that Bottema recognized as his. He had just bought it, but had not yet regis-
tered it in his name. Bottema's further undenied testimony is as follows:
And he couldn't figure out whose it was. - And I told him it was mine. And
he said he understood there was a meeting in Marshalltown last night. I never
admitted it or never denied it. And he asked me if I was there, and I told him
I was there. And then he proceeded to pull out a piece of paper with my car
description, license number; and other people that were there and their descrip-
tion. was on that paper too. And he said that he was watching us at this one
service station which is on the adjacent lot to the Redwood Motel.
6 Wiseman corroborated the above in part and denied Win some particulars. The basis
for- the resolution- Is -stated infra, at footnote 9. " • ' -
.
U As Indicated, supra, footnote 3, the matters preceding July 24 are relevant fore their
evidentiary bearing on the character of occurrences thereafter.' Whether they can be the
basis of independent findings of violations in themselves is contingent on whether Re-
spondent by Its postsettlement conduct violated the Act apart from them.
RITCHIE MANUFACTURING COMPANY 1261
A few days before Sweet's termination on August 2, which would be after July 24,
'Sweet approached employee Irvin Steinberg on the job. Steinberg 's undenied testi-
mony was that Sweet asked him if "Bob [ Feltz] was trying to get the union started."
.Steinberg ( who had been at the session the night of July 9 with Government counsel)
replied he did not know.
(6)
. On July 24, the previously mentioned `.'Settlement Agreement" was entered into,
disposing of Case No. 18-CA-1603. It-provided for payment of stipulated sums of
.backpay to the three employees discharged in February and March (they having
previously indicated they would not accept reinstatement if offered) and posting of
notices. The agreement stated that the Regional Director's approval of the settle-
ment "shall constitute withdrawal of the Complaint" and that its execution "does
not constitute an admission that the Employer has violated any section of the [Act]."
It further provided that "contingent upon compliance with [its] terms," "no further
action shall be taken in the above cause."
(7)
On July 18, as earlier stated, Feltz was taken off general spotwelding, which he
had done singly, and put to the two-man operation of spotwelding the "No. 5,"
larger casings, as a team to supplement the work of the regular two-man casings
team. Feltz', teammate was Baker again. After 3 days, Baker was removed from
that operation. On July 24, the date of the settlement agreement, Respondent put
Dale Weston to work with Feltz on the No. 5 casings. As stated, he was a teenager
unfamiliar with spotwelding, and was taught the operation by Feltz. They worked
together until July 31. On that day at 10 a.m., Foreman Sweet took both of them
off the No. 5 casings and put two other employees on it, saying, "I guess they want
to change." Sweet then put Feltz on the big shears. Feltz worked at this until
11 o'clock of the following morning, August 1. Sweet then assigned him to the
washrack. By noon Feltz began to feel ill from the fumes. At 1, o'clock, he went to
Superintendent Wiseman and told him'he'could not take more than another hour of it,
and asked that Wiseman meanwhile "try and find somebody else to -put on there."
By midafternoon no replacement was sent. Feltz told Foreman Sweet he "wasn't
going to do that much longer because [he] had gotten quite sick from the fumes
again ." He still was not relieved and he finished out the day, feeling "weak" with
nausea , "headache and dizziness."
Feltz went back to the washrack the morning of August 2. After working at it
for about an hour, he felt sick again, with the same symptoms as before. He told this
to Foreman Sweet, and the latter asked if his gloves were "leaking." Feltz replied
they were not, "but the fumes had made [him] sick again , and [he] wasn't going to
work at the wash rack much longer because of that. This was at 8 o'clock. 'At 9: 15,
Superintendent Wiseman came by and Feltz called him over. He told Wiseman he
"wasn't going to work at the wash rack after 9:30. . because [he] was sick" and
wanted to know "why [he] had been taken off spotwelding" and "put back on [wash
rack] work when [he] had gotten sick from the fumes back in March." Wiseman
replied'he was "too slow a worker, that [he] had a very poor work record and [he]
wasn't holding up his,end of production." Feltz said he "felt [Wiseman] was expect-
ing too much of Chuck [Baker] and then' Dale' [Weston] and [him] on the spot-
welding of the casings by comparing [them] with the work of [the regular, full-time
casings team]." Wiseman said the washrack was the "only work that was left
for him' to do." Feltz repeated he was too sick to go on with it, that he was
going home and would like to get his paycheck'•(referring to the paycheck the em-
ployees regularly received on Friday). Wiseman then left. After a while, he
returned with two checks-the regular paycheck and the final one, which paid him for
this particular week as well, telling Feltz he was "through." Feltz protested, saying
he was merely leaving for the day, because he was ill and had asked only for the
regular paycheck due that day. Wiseman insisted Feltz had resigned and twice again
said Feltz was "through." Feltz left, saying to, Wiseman he "would hear more about
this." 7
7 Feltz' and W'iseman's versions of the conversation are in substantial accord. The
variance between them is that as Wiseman told it, Feltz, before he paid him off, said noth-
ing about his being ill but merely declared lie would not work any more on the washrack,
was going home and wanted his check, and that Feltz referred to his illness only after
Wiseman paid him off and he was walking out. He also denied that Feltz on August 1
told him the work made him ill. In his performance concerning Sweet's foremanship
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(8)
There was considerable discussion over whether the occurrence on August 2 added
up to a "resignation" by Feltz or a "discharge" by Respondent This hardly illumi-
nates the situation It was entirely clear to both Feltz and Wiseman that Feltz, be-
cause of his sensitivity to the fumes, could not continue with that work, and if, as
Wiseman told him, he would not put him at any other work, whatever Wiseman's
reasons, this was the end of the trail for Feltz, whether the terminology used be
"resignation" or 'dischaige " But whether it was one or the other, when Wiseman
handed Feltz the unrequested payoff check and told him he was "through," Re-
spondent could hardly have been more unequivocal about the fact of termination
at that time, whatever its claim about who initiated it Despite this, Respondent
introduced evidence that for the first 3 days of the ensuing week, it continued to carry
Feltz' card on the rack, and that it discontinued doing so when it learned that Feltz
had applied for unemployment compensation The incongruity of this action with
he finality of what occurred on Friday was expressed by the very witness Respondent
put on the stand to testify to the presence of the card on the rack On direct examina-
tion by Respondent's counsel, Maynard Doty, testified that he "felt kind of funny
at the idea that Mr Feltz' card was in the rack," explaining, on cross, that it was be-
cause "he was supposed to have quit, and I didn't see any reason for his card being
in there " 8 Doty, of course, meant a "reason" on a rational operational basis
Reasonably explaining this step would be the belief that it would somehow lend
credence to a claim that despite the action in unsolicited paying him off altogether
on Friday and telling him he was "through," Respondent deemed Feltz still to
be on the payroll, and that Feltz was nevertheless knowingly absenting himself
rrom the job Indeed, Respondent elicited from Doty that Feltz later that week
asked him if he "had noticed if his card was in the rack" and he answered, "Yes "
But that step would be as incongruous to Feltz as it was to the witness, and the
time of that conversation, as testified to by Doty, indicates the card was by then
taken off in consequence of Feltz' filing his claim for unemployment compensation
Even if one were to vest that act with the significance Respondent claims for it,
namely, that however it acted on Friday, it was still holding the job open for Feltz
on Monday, Tuesday, and Wednesday, it would not alter the substantive posture of
the case if the job was open to him but the terms laid down on Friday, namely, that
the only work it would let Feltz do was the one it knew his sensitivity to the fumes
made him unable to do Though barren of substantive significance this step legiti-
mately bears on the quality of Respondent's candor in the matter
( supra footnote 4), Wiseman demonstrated a hardly formidable reliability regarding-
matters bordering on the controversial Matching it was a want of feeling for the
probabilities Feltz was then pleading to be put to other work now as had been the case
in March Wiseman admitted that when Feltz made a similar plea to him in March he
told him the fumes made him 111 It was not denied that on the first afternoon Feltz
after waiting to be relieved following his appeal to Wiseman told Sweet the work made
him ill Respondent's own witness Maynard Doty a member of Feltz' carpool whom
Respondent put on the stand to support its claim that Feltz "resigned " on direct esami
nation by Respondent's counsel testified that Feltz before work that morning said he was
afraid [he] would have to come home" earlier that day because he would get sick if he
had to work on washtank again (infra, footnote 8) Respondent did not deny that after
still another hour of it the second morning Feltz again mentioned the ill effects of the
work on him to Foreman Sweet Yet Wiseman testified that in this his last desperate
effort to have Wiseman do the one act which made the difference between his capacity to
continue on the Job or not Feltz did not mention the reason for his inability to go on
with the tank work Feltz version of his converstation with Wiseman on August 1 and 2
as recited in the text is credited in its entirety
8 This was the same witness whom Respondent as earlier indicated ( supra footnote 7),
put on the stand to support a suggestion that on the last morning at work Feltz said
he would resign if not taken off the washtank Doty s testimony, on direct was that
Feltz said he would not go in with the carpool that morning but would drive in alone
'because he was afraid that if they put him back on the washtank again he would get
sick and would have to come home' Robert Ellison another employee put on by Re
spondent, testified that when he asked Feltz during a break that last morning 'how
are things going ' Feltz replied Well not too good If Idon t get off this wash
rack pretty soon I am going to quit " Disputing this Feltz testified to having spoken to
Ellison along substantially the same lines as attributed to him by Doty
RITCHIE MANUFACTURING COMPANY 1263
(9)
As to Superintendent Wiseman's stated reasons for his. insistence. that. Feltz.
continue at the washtank:
Wiseman testified (as in fact Feltz was told when he,. was hired)- that an employee
undergoes a trial period of a year. But Wiseman indicated that "it is company policy
to do everything you can to make a man work out." This is exemplified by the
experience of Edward Hickman, an employee hired April 1963. In the latter part of
August (after Feltz' termination) he was called to the office and told they were
dissatisfied with his work. He was then asked whether he "would like to change -his.
work." This was followed by "a general discussion of [his] work and. how [he]
could improve and do better, more efficient work," after which he was put to work:
that he could do. He was still on the payroll at the time of his testimony.
The discussion with Hickman in August has a parallel in the one with Feltz in
March. Wiseman admitted that when Feltz then told him his inability to stand the
tank fumes would force him to quit, he had not let him do so, and pursuant to the
company policy previously stated told him "that we would try and find some place
that he would work out," and would put him at spotwelding for 2 weeks' trial. • After
2 weeks, and indeed after a month, there was no complaint over Feltz' performance,
Wiseman then specifically asked whether he "liked" the work, and when the answer
was yes, said, "Well, that solves our problem for us." 9 Feltz' testimony is undenied
that for the 4 months after this in which he did general spotwelding, until July 18,
when he was put on the No. 5 casings, no complaint was made about his work, either
at general spotwelding or even in the 21/2 days at the larger casings he did early in
July with Baker. Wiseman testified that: on July 24, several workdays after Feltz
was again put to work on casings with Baker, Respondent took Baker off casings be-
cause Baker had complained to Foreman Sweet that "he felt he was carrying more
than his end of the load"; when he then put Weston on to work with Feltz, on July 24,
he directed that a record be made of their production, although Respondent did not
theretofore make or keep production records; compared with the 55 casings a day
done by the regular two-man team, Feltz and Weston did 31 on July 24, 36 on the
25th, 36 on the 26th, 41 on the 29th (4 of them "bad"), and 36 on the 30th, and
that was why he disbanded the Baker-Weston team in favor of a new supplementary
team, which he testified did 51 the very first day with a totally inexperienced man.,
Each portion of that assertion is refuted by the credible evidence in the record.
Foreman Sweet never took the stand to support the assertion that Baker asked to be
removed from casings because he was "carrying more than his end of the load."
Baker testified he asked Sweet to be taken off casings because he "didn't particularly
care for spotwelding," that Sweet then told him they "were put on there to catch up,
with the work that was needed to be done"; that a day or two later, it was Sweet
who raised the subject by asking him "if I was doing a lot of work and I said Mr.
Feltz was a slow worker"; and "that was it," with Sweet making no comment.
If Baker's request for a change had been because Feltz was not carrying his load
rather than Baker's own dislike for the work, it would have been "natural" 10 for
Respondent to have taken Feltz off and put a faster worker on with Baker. Instead,
it removed Baker and retained Feltz, which indicates that in removing Baker it was
acting in accommodation to Baker's preference for other work. And if it was con-
cerned about slow production, it was rather incongruous to have put on an altogether,
inexperienced youngster in the person of Weston, whom Feltz had to break in from
scratch. Feltz' protest to Wiseman about the unfairness of evaluating his perform-
ance against that of the full-time, experienced, two-man team was confirmed by
Howard Clemens, a member of the full-time team. Clemens testified that a novice
would slow up even his production, for "you have to become accustomed to work-
ing with another person. And someone new on the job can't possibly produce as
much as another experienced person working with you." Deferring the fact that
Wiseman's figure of 36 for July 30 is disputed by the testimony of Feltz that it
was 43, even Wiseman's figures show a steady progression from the 31 done the
6 Wiseman partially corroborated Feltz in admitting he told Feltz he would "try" him
at spotwelding, but claimed he set no time limit. He further admitted he "might have
asked" Feltz whether he "liked" spotwelding, but averred he did not "believe [he] said
it 'solved our problem.' " The weight of persuasiveness as well as the relative qualities
of the testimonies of Feltz and Wiseman (supra, footnotes 4, 6) is on the side of Feltz'
version, which is credited.
10E. Anthony & Sona, Inc. v. N.L:R.B., 163 F. 2d 22, 26 (C.A.D.C.), cert. denied
332 U.S. 773.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first day moving toward a peak of 41 on the 29th . On the question of whether on
the 30th production went up another 2 to 43 , as Feltz testified , or dropped by 5 to 36,
as Wiseman testified , opposing Wiseman are, first , the probabilities and, secondly,
the quality of his reliability as a whole.
On the probabilities, the progress with the inexperienced Weston from July 24 to 29
is unbrokenly upward-five more the second and third days than the first, and still
another five the fourth day over the second and third, so it is hardly likely that there
would have been a dramatic drop of five the last day now that Weston was beginning
to hit a stride.: (Weston' testified, he was not yet. fully broken in the last, day before
he and Feltz were taken off the No. 5 casings, and Warmack, the spotwelding super-
visor, who was assigned to keep the count, neither testified nor produced the records.)
On the matter of Wiseman's reliability, we have already considered his performance
relating to Sweet 's foremanship (supra, footnote 4) and as to whether Feltz told him
in August the tank work made him ill, as he had done in March (supra, footnote 7).
To underscore t Feltz' inadequacy at the larger casings, Wiseman testified that the
team 'that -replaced Feltz- and Weston,.. with one. member a new employee, "did 51
casing's the first full day that they worked," which is just about the production of the
regular full-time team . Wiseman testified the record of the second team was kept
by Clemens, a member of the full-time team. Clemens was a witness in the case
and was not asked specifically about that record or about the relative performance
of the two teams. But his testimony that "someone new on the job can't possibly
produce as much as another experienced person working with you" negates the
figure imputed by Wiseman to the new team. Clemens' testimony rather connotes a
figure more in line with that of the Feltz-Weston team. Confirming it are (a)
Clemens' further testimony that he had not noticed nor had management told him
that "there weren't enough [casings] coming through while Feltz and Weston were
doing [it]"; (b) the testimony of Katzer, an earlier member of the regular two-man
team who had broken in Jerry Cepelak, a member of the present regular two-man
team with Clemens, that during his first week with Cepelak, they averaged 30. Not
only had there been no mention to Clemens of slow production on the part of Feltz'
team; none had been made at any time to Baker, or to Weston, or to Feltz. And
when Sweet put the other two employees on the No. 5 casings, he said it was because
they wanted to "change" from what they were doing. The weight of.the evidence
supports Feltz' testimony that the production of Feltz and Weston the last day be-
fore they were taken off the No. 5 casings was 43,•not 36, and disputes Wiseman's
credibility taking figure for the replacement team. It supports the conclusion that the
Feltz-Weston team was disbanded while its progress was on the rise, and that its
productivity was not a factor in the disbanding step.
The above, to be sure, may not make much sense in operational terms, but it
hardly appears that Respondent was then motivated by operational considerations.
Had it been, then assuming it genuinely believed Feltz was inadequate in the two-
man operation, it would have seemed natural to return him to general spotwelding
on the smaller casings, which for 4 months until the change he had done without
complaint. And there were the punch press, the big shears, and the breakers. Wise-
man testified he was "too slow" at the punch press, and although Feltz had com-
pleted the entire lot involved in the shearing operation at which he was assigned
after being removed from the larger casings, he was "too slow" at that too. As to
the "breakers," Wiseman testified Feltz was impeded by his physical structure"-a
protruding stomach that prevented his operating that machine. I had not yet then
observed the complainant. When Feltz took the stand, the result was rather anti-
climatic. He is square set, 5 feet 6 inches in height and 180 in weight, but looks
taller and lighter, since he is compact, and whether sitting or standing, there was no
noticeable protrusion. One could not help comparing him with Respondent's wit-
ness, Robert Ellison, who is 6 feet 1 inch in height, 275 to 280 in weight, and 44
inches in waist. He too works on the breakers. And there is Foreman Sweet, who
also dwarfs Feltz. Wiseman admitted that Feltz never indicated his stomach was in
his way nor did he do so to Feltz, and I would rather conclude that Feltz' abdominal
avoirdupois weighed less than heavily in Respondent's deliberations.
Every persuasive indication is that in changing Feltz to the two-man casing opera-
tion, Respondent was laying the groundwork for the ultimate termination. The sig-
nificance of the overtures in wake of Feltz' being observed with Government counsel
the night of July 9, beginning with the senior Wilson's asking him the next morning
about his attendance at a "union meeting" and culminating in Foreman Sweet's ques-
tion to employee Steinberg, some time after he had watched that meeting, whether
Feltz "was trying to get the union started," awaits our review of the events of the
whole. One of them is another overture by Respondent after the July 9 session,
which comes to light as part of the background of the matter treated below.
RITCHIE MANUFACTURING COMPANY 1265
(10)
The event "here to be related brings us to a delicate area which, as it began to un-
fold, I had intimated to Government counsel he might best stay out of, until he ex-
plained it involved certain economic consequences visited on Feltz, as well as injury
to his standing in his calling, following the charge filed herein by the Union on
August 9.
We have earlier stated that Feltz is an ordained minister of the Baptist Church, a
fact seemingly known to Wilson, Junior, who publicly introduced him as such when
he invited him to lead the group in prayer at the company banquet. As also stated
,(supra, footnote 2) Feltz occasionally officiated at churches as a substitute minister
for compensation. Among them was the Center Street Baptist Church in Marshall-
town, where he would act in place of Rev. Roger Linser, its regular pastor. Reverend
Linser was due to be away on September 1, and in August, Feltz was engaged to
,officiate in his stead.
The Center Street Baptist Church is a small church with a membership of about 75.
In contrast, the First Baptist Church in Marshalltown has 500 members. They in-
clude the two Wilsons and Wiseman, and the younger Wilson is on its board of
,trustees. In about mid-August, after the Union filed the charge in this case, Wilson,
Junior, called Reverend Wesley R. Hustad, its pastor. The latter testified Wilson
,asked him "if there was any way whereby I might in confidence inquire into the
,credentials of one Reverend Feltz." Wilson gave him no reason, but the pastor testi-
fied he associated the inquiry with a prior talk Wilson had with him concerning Feltz
.about July 10.11 Wilson then mentioned that "they had hired a minister in their
plant," and "the inference was his work had not been particularly satisfactory as a
workman."
The pastor testified that right after Wilson's inquiry in August he "looked in the
list of ministers of the group in which I am ordained," and not finding Feltz' name
in.it, he called Reverend Linser at his home, and Mrs. Linser answered. He told her
he "simply was calling to inquire if Roger knew a Reverend Feltz." and she replied,
"Yes, of course. In fact, he is scheduled to speak in our church in the near future,"
whereupon he "thanked her, and that ended the conversation." The minister related
.that sometime after this, Reverend Linser was "in my office on another matter, and in
passing the matter came up, and I then felt free to tell him why I had called and
.asked for this information." And then:
I told him that Reverend Feltz was employed by members of my congregation
.and that I had been informed that he had recently brought suit or complaint of
unfair laborpractice against them.
I gave him the facts, and he said, "I am glad you told me. I will not have a
man who is taking a fellow Christian to court speaking in the pulpit of my
church."
Reverend Hustad testified he never "pursued" the subject of Feltz' "credentials" any
-further. He gave no indication that he informed Wilson of the results of his inquiry
,or that Wilson (who never testified) asked him any further about it.
Reverend Linser confirmed that the talk about Feltz came up during a visit to
Reverend Hustad on another matter, and he further testified:
I was about ready to leave the office and I asked Reverend Hustad about
his phone call to my wife about Reverend Feltz. And I said, "Well, what's
,going on?"
Then he related to me the fact that the Wilsons had come to him and how they
felt in their minds about the situation because of the case that was being filed
against them by the National Labor Relations Board through the request of
.Pastor Feltz. And at that point my mind was opened up to the entire case.
And, relating the,two, I felt immediately, because of this conversation, that
.since our little church out there had so many problems and struggles, it would
be far better if we would seek to decline having Brother Feltz speak rather than
take sides in the issue that's being dealt with in this hearing right here. And
we sought to evade it or take a middle-of-the road stand and say, by not
having Pastor Feltz, that we were not going to take sides for him and against
people in the First Baptist Church in town.
n He fixed the time as just before he left on his 3-week vacation , from which he re-
cturned the end of July or beginning of August.
756-236-65-vol. 14 7--81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reverend Linser's other testimony indicates he knew of this litigation when he en-
gaged Feltz. He had sent Feltz a letter asking him to officiate for him, which Feltz re-
ceived on August 10. The pastor testified he had then read about the litigation but had
not been "aware" that Feltz was "involved" in it . Feltz made him aware of it in a call
Linser made to him after receiving no reply to his letter. Reverend Linser testified
Feltz then informed him he had just sent him a reply saying he did not feel up to
accepting the offer because of his health, but would do so if they could get no one
else. He explained Feltz' reference to his health as follows:
Then he brought in the relationship of his health and, his nerves with the
problem he was having with his employment at Ritchie Manufacturing, of which
I did not have any idea, I knew he was employed by Ritchie, but I was not aware
of the fact that he was involved in the problem [described in the article the wit-
ness testified and read].
Though now informed that Feltz was "involved," Reverend Linser concluded the
arrangement on Feltz' terms, namely, that he be "permitted to return to his home in
the afternoon [of September 1] for a rest so that he might be able to speak in the
evening." However, Reverend Linser testified:
I did not know previous to Mr. Hustad's discussion that the Wilsons were in
the First Baptist Church at Marshalltown.
The fears for his "little church" as he described it in his previously quoted ver-
sion of his talk with Reverend Hustad were simplified in his account of his report to
his deacons. He testified:
We discussed the problem at Ritchie and discussed the relationship of the
Wilsons with First Baptist. We discussed a possible relationship of people.in
our church with relation to people at the First Baptist Church. And we felt
that, because of Reverend Feltz' health condition and everything, that there were
two strikes for us to consider in not having him.
First of all, the fact he stated in his letter that because of his health he would
not desire to come and also because of the relationship of our church and the
people in the First Baptist. And because-of this, then, we decided that it would
not be in the best cause or in the best interest for the church and the future
ministry of the church to go ahead and have Reverend Feltz. [Emphasis
supplied.]
'The purport of Reverend Hustad's message, as Reverend Linser understood him,
Was that he was acting for and in the interest of the Wilsons in this litigation, which
is partially confirmed by Reverend Hustad's testimony concerning how he came to
link Feltz' name-with the Labor Board litigation, when Wilson called him about
Feltz' credentials in August. He testified:
I have considered myself the unpaid, unofficial chaplain of all of the plants of
the men to whom I minister . There are a number of businessmen in my congre-
gation, and we just speak'so friendly from one time to another of the particular
problems. It may have been away back in March when the thing first came up.
The month of March, mentioned by Reverend Hustad, was when the earlier case
had begun. The only item in the record which rationally explains the pastor 's asso-
ciating Feltz with it when Wilson called him in August is the first talk which he
testified Wilson, Junior, had with him about Feltz in July before he went on vaca-
tion. This was about when the senior Wilson spoke to Feltz about his having been
seen in the previous night's session with the Government attorney observed by Fore-
man Sweet. After this Feltz was assigned to the two-man operation on No. 5 casings,
which Respondent advances as the reason for not restoring him to the solo operation
at spotwelding, the one which Wiseman had told Feltz "solves our problem for us,"
and at which Feltz had performed for 4 months without complaint.
The incident here dealt with thus achieves a significance by reason of the back-
ground conversation in July, which transcends the matter of the sequel to Wilson's
call in August. But the General Counsel urges the action in August as a separate
unfair labor practice in that it was, as he claims, a reprisal against Feltz for filing a
charge under the Act. For the reasons stated below I shall not pass upon that issue.
Though Respondent does not raise that point, I believe that a sound administration
of the Act requires that we refrain from passing upon church policy regarding the
selection or rejection of a minister. We may assume with the General-Counsel that
Respondent would not be shielded from liability if, in reprisal for filing a charge, it
had used the kind of pressure he imputes to it to bar an employee from another job
in industry or perhaps from a professional engagement (as, for example, an enter-
RITCHIE MANUFACTURING. COMPANY 1267
tainer or lecturer) even if this were done through the agency of a clergyman. We
may even assume that an employer would still not be shielded if the employment
from which it causes an employee to be barred, even by a church, is entirely of a
lay character as, for example, a gardener, carpenter, printer, or janitor. It is an-
other matter where the engagement involves officiating as a minister. The selection
of a person for that kind of function entails internal considerations of church policy,
and administration, which a due regard for administering this Act in harmony with
other important policies would call upon us to refrain from entering, if,at all possible.
Because we can avoid it here, I need not venture any broad statement on how abso-
lute.this consideration should be in all instances. But the factual aspects of the
issue as presented are far from conclusive, and in any event, the issue is not in the
mainstream of this case, which basically involves Feltz' loss of employment with
Respondent, and the motive for that. Insofar as this incident has the background
element of an overture by Respondent, in which it expressed dissatisfaction with
Feltz as an employee contemporaneously with its, having taken up with him his
attendance at a session with the Government in preparation for a Board hearing, it
is an evidentiary item bearing on the motivation for termination with Respondent,
and as such it merits some consideration. 12 However, for the reasons stated, I shall
not pass upon the contention that Respondent procured the cancellation of Feltz'
engagement as substitute minister in the Center Street Baptist Church.
11)
In October, after the complaint issued in this case, and in the course of a hearing
on Feltz' application for unemployment compensation, Respondent stated Feltz was
free to go back to the job. He did on October 18. He worked on various assign-
ments-the punch press, the breaker, the punch press again-until about 1:30 on the
afternoon of October 22. Foreman Sweet then put him back again at the washrack.
Feltz worked at it until 5 p.m., and went home feeling ill from the fumes. The
following morning he continued at it for 11/z hours, and still feeling ill, he told
Foreman Sweet about it, and went to the company physician. He described his
symptoms of dizziness and headaches, and the doctor asked if there was any other
work he could do. Feltz said there was, and Dr. Patterson said that "when he tele-
phoned there and told them about it he would tell them to put [Feltz] on other
work than that." He also told Feltz that if the symptoms continued, "to go to the
hospital for a blood test to see if [his] liver has been damaged." Feltz submitted
to a blood test that day. The next day, October 24, he stayed home, feeling too
weak to work.
The following morning, the 25th, Feltz reported for work. Foreman Sweet put
him on the punch press. After 2 hours, Sweet said "he had a job for [Feltz] to do
at the wash rack." Feltz replied he "wouldn't go there because [he] got sick from
the fumes." Sweet walked away and Feltz continued on the punch press another
2 hours. Superintendent Wiseman then summoned him to the office. Waiting there
were Wilson, Junior, Wiseman, and Sweet. Also present were' Respondent's lawyer
and employee Bottema, who was there at Wiseman's special request. The lawyer
read' Feltz the following paper, which he handed him after finishing his reading:
WARNING NOTICE
To: Mr. ROBERT E. FELTZ:
Because of your complaint on Wednesday, October 23, 1963, of sickness when
performing your job on the wash rack you were temporarily placed this morning
on a punch press job at 7:00 A.M. At 8:30 A.M., the Company received re=
ports confirming that there was no medical reason why you should not be as-
signed work at the wash rack. You were directed at 9:00 A.M. to return to
the wash rack assignment. You refused to do so. Because of.your refusal to
perform the job assigned to you, you are subject-to discharge from the employ
of Ritchie Manufacturing Company.
This is to notify you that, unless you accept the wash rack work assigned to
you not later than 1:00 P.M. today, October 25, 1963, you will be subject to
immediate discharge.
RITCHIE MANUFACTURING COMPANY,
By (S) C; D. Wilson, Jr.
Dated October 25, 1963.
Delivered to Robert E. Feltz on
October 25 , 1963, at 11 :15 A.M.
C. D. WILSON, Jr.
12 No claim of privilege was raised for that communication with Reverend Hustad.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wiseman gave the sole testimony concerning the reference to "no medical reason."
He testified that earlier that same morning Wilson, Junior, called Dr. Patterson and
then informed Wiseman (who had not heard the conversation) that "the doctor told
him that these blood tests showed no damage to the liver." 13
Feltz returned to the plant at 1 o'clock and informed Wiseman he would not work
on. the, washrack because° he "got sick from the fumes." He was then summoned to
the office, where he found the same people waiting. The lawyer asked Feltz if he
"had made [his] decision" and Feltz replied he "would not go back to the wash rack
because the fumes had made him sick." The lawyer then referred him to the "no
medical reason" statement in the "warning notice." Feltz replied, "I'm sorry, sir,
but it's my body that gets sick." Wilson, Junior, asked the group if they all "under-
stood what this was all about," and they nodded. The lawyer then said the next
thing for Feltz to do was to punch out. He did, was paid off, and has not worked
for Respondent since.
B. Concluding findings
The key to the issue is the good faith of the washtank assignments and the insistence
on keeping Feltz at it despite the protests that the fumes made him sick. Feltz gave
not the slightest ground for doubting the sincerity and truth of his protests, and the
record leaves little question but that Respondent believed them to be true. It
demonstrated that belief in March when, to keep him from quitting, it put him.to•spot-
welding, pursuant to its policy of finding work for an employee that he could do. In
the face of such knowledge, after 4 months without complaint at work which it said
to him "solved our problem," it put him back to the tank and insisted on keeping him
there despite his clear and convincing indication to it of the agonizing effect of the
fumes upon him, and after taking him back, it again put him to that work and insisted
that he stay there in the face of the previously demonstrated effects and his protests.
This would be a senseless compounding of cruelty upon cruelty, having no rational
motivation except to effectuate a termination.
The reasons given for refusing to put Feltz back to solo spotwelding after taking
him off the two-man casings job, if they cannot be said to have had the inherently self-
discrediting, aspects of "carry[ ing] ".[their] own death wound," 14 can hardly measure
up in terms of sheer probability against the motive inhering in Foreman Sweet's
query to employee Steinberg, just before putting Feltz to the washtank operation about
"Feltz trying to get the Union started," Sweet's observing the preparatory session with
Board counsel at which he observed Feltz there, and the elder Wilson's hostile ques-
tioning of Feltz the next morning about his having attended a "union meeting," as
he characterized that session.
The asserted reasons have been treated in the factual discussion. The quality
of Respondent's showing and the character of the reliability of its only witness on that
point have already been discussed. Respondent's claim that it was genuinely dis-
satisfied with Feltz' work at the two-man casings job was discredited by the showing
in the record, including the fact that no complaint about the production of Feltz on it,
first with Baker and then Weston, was ever made to either Baker or Weston or Feltz,
or even Clemens, the member of the regular two-man team. Even if Feltz had been
deemed inadequate at that operation, it did not explain the failure to restore Feltz
to general spotwelding, at which he had performed without complaint for 4 months.
Impugning the faith of the very assignment of Feltz to the two- man operation was
the fact that it was made on the heels of the elder Wilson's questioning Feltz about
his attendance at what he termed the "union meeting" with Government counsel.
contemporaneously with the younger Wilson's first mention of Feltz to Reverend
Hustad as one whose work was not satisfactory. Yet Superintendent Wiseman
predicated his failure to put Feltz back to single spotwelding on the basis of claimed
dissatisfaction with his performance on the two-man operation after these overtures
of the two Wilson.
If more proof of the true motive were needed, there is the effort to conceal the
purpose of the assignment to the tank. Knowing it meant the 'end of his ability
to continue the job, there would hardly have been point to endow it with the char-
acter of a genuine assignment in the course of task rotation, except to mask a motive
to terminate him. The reassignment to the tank work after the offer to take Feltz
back in October was not even sought to be justified on the ground that he had not been
13 Wilson, Junior and the doctor did not testify.
11N.L . R.B. V. Robbins Tire c6 Rubber Company, Inc., 161 F . 2d 798, 800 ( C.A. 5).
RITCHIE MANUFACTURING COMPANY 1269
0
performing properly at the other work the few days before that assignment. It was
explained on the ground that Feltz was not "entitled to special consideration not
extended to other employees ," as Respondent 's brief now puts it . But Respondent
attempted to justify its insistence in keeping Feltz at the wash tank on the ground,
as Wilson , Junior, told Wiseman , that the doctor's report failed to show that Feltz'
kidneys had been "damage [ d]" by the fumes . So it would have given him that "special
consideration" if his kidneys had been injured : in that case it would have let him do
other work only after his physical system had been shattered to the point where
he could do no work at all. The record compels the conclusion that in each instance,
in August and October , the assignment to the washtank was for the purpose of
terminating Feltz ' employment in consequence , of the sympathy to the Union
which Respondent attributed to Feltz as a result of his being seen in session with
Government counsel in preparation for the hearing in the preceding case. The con-
clusion would follow even without regard to the "manifest interest and purpose" 15
in opposition to the Union , inhering in the younger Wilson 's and Foreman Sweet's
threats of discharge of union supporters in the fall of 1962 and the three discharges
in February and March , which Foreman Sweet indicated to employees McCreery
and Sager was because the discharged employees supported the Union.16
The forced termination of Feltz in August was for the purpose of discouraging
membership in or activity on behalf of the Union , in violation of Section 8(a)(3)
and (1 ) of the Act, and as a penalty for his prospective status as a witness in the
prior proceeding , in violation of Section 8(a) (4) of the Act.17 Respondent's actions
in October show the offer and the reinstatement , made during the pendency of com-
plaint on this proceeding and in the course of opposing his claim for unemployment
compensation , to have been for the purpose of such legal advantages as it thought
might inhere in a showing that Feltz "refused" to perform work assigned for him.
The reinstatement was made in bad faith . So was the assignment to the tankwork.
This last was done to force Feltz' termination as had been the case in August. It
had the same motivation and, like the termination in August , was a violation of
Section 8(a)(3) and ( 1) and 8 (a)(4) of the Act.
Respondent further interfered with; restrained , and coerced its employees in the
exercise of their rights , in violation of Section 8(a) (1) of the Act , by Foreman Sweet's
interrogation of employee Steinberg a few days before Feltz' discharge concerning
whether Feltz "was trying to get the Union started ," by his surveillance of the meet-
ing of various employees with the Board counsel on July 9 in preparation for a
Board hearing , by his interrogation of employee Bottema the next day concerning it,
and by President Wilson 's interrogation of Feltz on July 10 concerning it.18
III. THE REMEDY
Respondent will be required to cease and desist from the unfair labor practices
found. The negative injunction will be in broad form because of violations going to
"the heart of the Act," 19 and the pervasive antiunion purpose underlying them. As
affirmative remedial action, Respondent will be directed to offer Feltz immediate and
full reinstatement to his former or substantially equivalent position ,2° without loss of
seniority and other rights or privileges , and to make him whole for any pay he lost
by reason of the discrimination found (F. W. Woolworth Company, 90 NLRB 289)
with interest at 6 percent . Isis Plumbing & Heating Co., 138 NLRB 716.21
"Texas & N. 0. RR. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548, 584.
"Respondent's objection based on the prelimitation character of Its actions In the fall
of 1962 and the presettlement character of its later action are answered in footnotes 4
and 6 , supra.
17N.L. R.B. v. Dal -Tex Optical Co., Inc., 310 F. 2d 58 (C.A. 5).
"In view of the unfair labor practices occurring after the settlement ( Sweet's Interro-
gation of Steinberg and the discriminatory terminations of Feltz), the policy of im-
munity to presettlement conduct no longer applies , supra, footnote 6. The General
Counsel has limited himself only to the conduct beginning July 9, and the findings are
limited accordingly.
10N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
20 The Chase National Bank of the City o f New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, 829.
41 The notices will dispense with the reference to the rights of employees In the armed
services , in view of its probable inappropriateness to Feltz. See , e.g., Red Top Cab &
Baggage, et al., 145 NLRB 1433, footnote 39.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and upon.the entire record, the Trial Examiner hereby
states the following:
CONCLUSIONS OF LAW
1. By discriminating in respect to the hire and tenure of Robert E. Feltz, in order
to discourage membership in or activity in support of the Union, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
2. By discriminating in respect to the hire and tenure of Feltz for giving testimony
under the Act, Respondent has engaged in and is engaging in an unfair labor practice
within the meaning of Section 8(a)(4) of the Act.
3. By the above, and by the acts of surveillance and interrogation heretofore found,
Respondent has interfered with, restrained, and coerced employees in the exercise
of their rights under Section 7, thereby engaging in and being engaged in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
4. The said unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, and the entire record, and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby issues the following:
RECOMMENDED ORDER
Ritchie Manufacturing Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, forcing the termination of, making discriminatory assignments
to, or otherwise discriminating against employees in order to discourage membership
in or support of International Molders and Allied Workers Union, AFL-CIO, or any
Other labor organization.
(b) Discharging, forcing the termination of, making discriminatory assignments
to, or otherwise discriminating against employees for giving testimony under the Act
or meeting with Government officials in anticipation of so testifying or for the pur-
pose of giving information in connection with Board proceedings.
(c) Engaging in surveillance of employees' activity in respect to union organization
or of meetings or sessions with Government officials in connection with proceedings
under the National Labor Relations Act.
(d) Interrogating any employees concerning such activity by them or other
employees.
(e) In any other manner interfering with, restraining, or coercing employees in the
exercise of the right to self-organization, to join or assist or to support or oppose any
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activities for the purpose of collective
bargaining or-other mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action, which it is found will effectuate the policies
of the Act:
(a) Offer Robert E. Feltz immediate and full reinstatement to his former position,
or to a substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have suffered
as a result of the discrimination against him, in the manner set forth above in the sec-
tion entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records and other data helpful in analyzing
backpay due and the right of reinstatement under the preceding provision.
(c) Post at its plant in Conrad, Iowa, copies of the attached notice marked
"Appendix." 22 Copies of said notice, to be furnished by the Regional Director for
the Eighteenth Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon receipt thereof
and maintained by it for a period of 60 consecutive days thereafter in conspicuous
places, including .all places where notices to employees are customarily posted.
22 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci-
sion and Order."
FLEMING & SONS OF COLORADO, INC., ETC. 1271
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 Eighteenth Region, in writing, within
20 days from the receipt of this Decision and Recommended Order, what steps it
has taken to comply herewith 23
-"In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to carry out the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT discharge , force the termination of, make discriminatory assign-
ments to, or otherwise discriminate against employees for belonging to or assist-
ing or supporting International Molders and Allied Workers Union , AFL-CIO,
or any other labor organization.
WE WILL NOT discriminate against or puliish employees for giving testimony
under the National Labor Relations Act, or for cooperating or meeting with
Government officials in anticipation of giving information or testifying in pro-
ceedings under the National Labor Relations Act.
WE WILL NOT question any employees about their or other employees ' affilia-
tion with or support of any union or about meetings or sessions with Govern-
ment officials in connection with proceedings under the National Labor Relations
Act.
WE WILL respect your guaranteed rights under the National Labor Relations
Act to join or assist any union of your choice or bargain collectively through it
and will not interfere with , restrain, or coerce you in your freedom of choice to
engage or not engage in such activity.
WE WILL offer Robert E. Feltz immediate and full reinstatement to his former
or substantially equivalent position , without loss of seniority or other rights and
privileges , and WE WILL make him whole for any pay he lost because of the
discrimination against him , with interest.
All our employees are free to join or not to join , or to support or not support,
International Molders and Allied Workers Union , AFL-CIO, or any other labor
organization , without fear of discrimination , discriminatory assignments , or other
punishments , direct or indirect , for doing so.
RITCHIE MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced, or covered by any other material.
Any employees having a question concerning the above notice or what it requires
may inquire by mail, telephone , or in person at the Board 's Regional Office, 316
Federal Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No.
339-0112, Extension 2601.
Fleming & Sons of Colorado , Inc., a Division of Fleming & Sons,
Inc. and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Local No. 452. Case
No. 27-CA-1397. Jwne 30, 1964
DECISION AND ORDER
On March 4, 1964, Trial Examiner Henry S. Salim issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
147 NLRB No. 137.