Rust Engineering Co.

National Labor Relations Board - Board Decisions

Jun 19, 1970

183 N.L.R.B. 649 (N.L.R.B. 1970)

RUST ENGINEERING COMPANY 649
Rust Engineering Company and Henry Franklin
Wyrick and Talmadge Miller
Sheet Metal Worker's International Association-
Local 51 and Henry Franklin Wyrick and Tal-
madge Miller . Cases 10-CA-7869, 10-CA-7870,
10-CB-1831, and 10-CB-1832
In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read " Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
TRIAL EXAMINER'S DECISION
June 19, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN, AND JENKINS
On February 27, 1970, Trial Examiner Bernard J.
Seff issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative ac-
tion , as set forth in the attached Trial Examiner's
Decision . Thereafter, the Respondents filed joint
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
brief, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondents, Rust Engineering
Company, its officers, agents, successors, and as-
signs , and Sheet Metal Worker's International As-
sociation-Local 51, its officers, agents, and
representatives, shall take the respective action set
forth in the Trial Examiner's Recommended Order,
as modified below.'
' In the attendant circumstances, however, we do not find as an admis-
sion against interest Business Agent Fuller's statement to employee
Wynck, "If I did have you laid off what are you going to do about it " And,
contrary to the Trial Examiner, the record does not reveal the exact date of
Wynck's reemployment with Respondent Rust, it does show that he was
"re-instated" by Bill Smith after the latter was elected as the Union's busi-
ness manager
Y Amend fn 4 of the Trial Examiner's Decision to read as follows
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner: This hearing,
with all parties represented, was held on November
12 and 13, 1969,1 in Knoxville, Tennessee, on the
complaint of the General Counsel issued on Sep-
tember 15. The charges in each of the cases herein
were filed on July 23. An order consolidating cases,
complaint, and notice of hearing in this matter was
issued on September 15. The complaint alleges that
the above-named Respondent Union violated Sec-
tion 8(b)(2) and (1)(A) by causing the above-
named Respondent Rust (sometimes referred to
herein as the Company) to terminate Henry Wyrick
and Talmadge Miller, and that Respondent Rust
violated Section 8(a)(3) and (1) by terminating
Wyrick and Miller on March 5. Both Respondents
in their answers deny the commission of any unfair
labor practices. All parties appeared at the hearing
and were given full opportunity to participate, to
adduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs.
Briefs were filed by the General Counsel and the
Respondents which were carefully considered.
Upon the entire record and from my observation of
the witnesses while they were testifying under oath,
I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FACTS
Respondent Rust, a Delaware corporation, is en-
gaged in the engineering and construction business
throughout the United States. At all times material
to this case it was engaged in the construction of
additions and modifications to the Atomic Energy
Commission's facilities at Oak Ridge, Tennessee.
Respondent Rust admits that at all times material
herein it has purchased and received goods valued
in excess of $50,000 directly from suppliers located
outside the State of Tennessee. Respondent Rust
admits in its answer and I find that it is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union, Sheet Metal Worker's Inter-
national Association-Local 51, is a labor organiza-
tion within the meaning of the Act.
' All dates are in 1969 unless otherwise specified
183 NLRB No. 76
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Basic Issues
On March 5 Respondent Rust laid off nine sheet-
metal workers, including Wyrick and Miller, mem-
bers of Respondent Union, who had been actively
engaged among the members'of their craft on the
job in opposing the reelection of Business Agent
John Fuller of Respondent Union. General Counsel
contends that Wyrick and Miller were selected for
layoff by Fuller because of their known opposition
to Fuller and that Respondent Rust laid off the two
men for this reason. Respondent Union denied that
it had anything to do with the layoff of the men, in-
cluding these two. Respondent Rust asserts that the
layoff on March 5 was dictated by economic con-
siderations. Wyrick was picked because he was the
least senior man on his crew and Miller was chosen
because he wandered off the job and talked too
much. Respondent Rust denies that Fuller or
Respondent Union had any part in the selection of
the men to be laid off.
B. Politicking on the Jobsite
In the normal course of events Local 51 held
elections for a slate of officers and other union
representatives each year on or about June 27.
Even though nominations were some months away
and no one knew at the time who was going to run
for what offices, a vigorous campaign began among
the employees during January and February and
came to a head in March. Fuller had been the
Union's business agent for some years and while he
had friends among the men he also had enemies.
One employee, William Smith, had been the union
steward and, for reasons which are not clear from
the record, Fuller temporarily removed him from
this post. Smith became so upset when he was
removed that Fuller made the removal permanent.
This caused a rival faction or a rump group of
Smith adherents, including Wyrick and Miller, to
spearhead a dissenting and vocal opposition to
Fuller. There is no question that many sheetmetal
workers were discussing the anticipated union elec-
tion on the jobsite in favor of the candidates of
their choice.
It was thought that Smith would run against
Fuller for the job of business agent . The business
manager at that time, Grover Tittle, who lived in
Chattanooga, was Fuller's boss. As it later turned
out Smith did not run against Fuller but against the,
then business manager . Smith won and became the
' Article V of the provision reads as follows
SECTION 1 The Employer agrees to require membership in the
Union, as a condition of continued employment of all employees
performing any of the work specified in Article I of this Agree-
ment , within eight (8) days following the beginning of such em-
ployment or the effective date of this Agreement, whichever is the
later , provided the Employer has reasonable ground for believing
business manager. Fuller and his slate of candidates
lost out. After his election at the end of June, Smith
rewarded his supporters. Wyrick was rehired by
Rust about July 18 and was appointed a warden of
the Union. Employee C. Peace was rehired in July
and was appointed by Smith as job steward.
C. The Terminations of Wyrick and Miller
Respondent Rust has a standard form contract
with the Sheet Metal Worker's International As-
sociation-Local 51, which contains a union-shop
provision.2
As a result of a jurisdictional dispute award
received about the first part of March, Respondent
decided to curtail its sheetmetal crews. In con-
sequence of this, nine sheetmetal workers, mem-
bers of Respondent Union, including Wyrick and
Miller, were let go on March 5. We are here con-
cerned principally with the circumstances under
which Wyrick and Miller were terminated.
1. Conversations between Wyrick and Moyers
Ben Moyers, Wyrick's crew foreman at the time
of his termination , knew that Wyrick had been
campaigning against Fuller and in favor of Smith.
Moyers testified that despite Wyrick's talking on
the job this activity did not interfere with the per-
formance of his duties. When Moyers received
Wyrick's termination slip he apparently thought
Wyrick was being discharged for talking on the job
because it was well known to him that Wyrick was
outspoken in his dislike for Fuller. The slip was
brought to Moyers by Acting General Foreman
William Harvey. At first Harvey told Moyers to lay
off Wyrick and another employee, Calvin Turner,
because these men were the last employees as-
signed to the crew. Moyers thought the reason for
the layoff was because Wyrick had been so openly
talking on the job and he (Moyers) protested Tur-
ner's layoff on the gound that Turner had not en-
gaged in this activity. In the face of this objection
Harvey dropped Turner from the discussion and
settled on Wyrick. The basis for this selection was
ostensibly that Wyrick was the last man assigned to
this crew.
Harvey gave conflicting testimony on this point
and on cross-examination said that both men were
hired last. When confronted by Moyers' statement
that he could not understand how Turner was
chosen because he was not a talker, Harvey readily
agreed to the layoff of only Wyrick. It is clear that
seniority had nothing to do with the layoff. This is
that membership is available to such employees on the same terms
and conditions generally applicable to other members and that
membership is not denied or terminated for reasons other than
the failure of the employee to tender the periodic dues and initia-
tion fee uniformly required as a condition of acquiring or retaining
membership
RUST ENGINEERING COMPANY 651
borne out by other testimony of Moyers . It was not
his idea to lay off Wyrick and it was well known
that Wyrick opposed Fuller. Further that "I con-
sidered that maybe somebody had figured he was
doing too much talking and was causing confusion
on the job, or something." Wyrick testified that
when Moyers came to him with the termination
slip, Moyers said, "They're gonna lay you off ...
you know the reason why ." Harvey said that
Moyers picked W ck. Employee Elmer Cox,
whose testimony will be discussed more fully below,
said that he was present when Moyers handed the
termination slip to Wyrick and he overheard
Moyers telling Wyrick that he did not want to lay
him off-the selection for the layoff came from
higher up. While Moyers denied that Harvey told
him Fuller had picked Wyrick it is hard to un-
derstand what all the mystery was about. It should
be noted that Moyers stated unequivocally that he
had never received instructions to prohibit the men
from talking . The reasonable inference is that the
layoff was due to Wyrick's openly expressed op-
position to Fuller.
2. Conversation between Bennett and Miller
Bennett , crew foreman of Miller, said Harvey
came to him and told him to pick one man from his
crew because there was going to be a layoff. He
picked Miller on the ground that Miller wandered
around and would not stay on the job to which he
was assigned . On a number of occasions Bennett
said he spoke to Miller concerning his not staying
on his job. Miller denied he had been spoken to by
Bennett . It is not denied that when Bennett gave
Miller his termination slip he said he was sorry and
that he (Bennett) had nothing to do with it. Em-
ployee Cox testified that sometime before March 5
Fuller's hand-picked job steward, Ruel Ball, came
on the job, spoke to both Cox and Miller, and
warned them that if they did not stop campaigning
against Fuller they would be fired. On the evening
of the same day this warning was received Cox at-
tended a meeting at the union hall. While there he
went to see Fuller in his office. The men were
alone . Fuller told Cox that he had received a
telephone call from Oak Ridge (he refused to
identify the caller) and that Miller and Cox were
speaking against him. He warned Cox to quit this
talk. Also Fuller told Cox to pass this message on to
Miller. Fuller said further that unless the talk
stopped both Cox and Miller would not continue
working at Oak Ridge.
Bennett was not an impressive witness . Miller
spoke with vigor and while some of his testimony
was exaggerrated I credit that part which was cor-
roborated by Cox. Cox impressed me with his can-
dor and directness. His corroboration covered that
part of Miller 's testimony concerning the warning-
to both men and elaborated on to Cox when he was
in Fuller's office. Fuller denied he had ever spoken
to Cox in his office as related by Cox. I credit Cox.
3. Trip to Chattanooga
It was not denied that some months before the
layoff Bill Smith , Wyrick , and some other em-
ployees took a trip to Chattanooga to see the
Union's then business manager , Grover Tittle. The
purpose of the trip was to complain to Tittle about
the way union affairs were being conducted by
Fuller and more particularly to protest the removal
of Smith by Fuller from his position as job steward.
4. Miller and Wyrick speak to Graham
After Wyrick and Miller received their termina-
tion notices on March 5 they went to the office of
Howell Graham, craft superintendent over the
sheetmetal workers. They got there about 2:30
p.m. Upon arrival they found Graham with General
Shop Foreman McMahan. Wyrick asked Graham
why he had been laid off. Graham allegedly said he
did not have anything to do with it, that Fuller had
gone over his head and picked the layoff.
The encounter in Graham's office took place
while both Wyrick and Miller were angry and tough
language was used by Wyrick . Miller had nothing to
say during the conversation. Wyrick asked where
Fuller was and when Graham told him that Fuller
was in Respondent Rust 's office in a meeting
Wyrick demanded that Graham get him on the
telephone. Graham got Fuller out of the meeting.
Wyrick heatedly asked Fuller why he had been laid
off. Fuller later confirmed that he replied he had
nothing to do with the layoff and told Wyrick to go
see his foreman about it. Further that if Wyrick
wanted to see him, to come over to the Rust office
and he (Fuller) would see him after his meeting was
over.
Graham testified as to the above incident as fol-
lows in answer to a question by Rust's attorney on
direct examination:
Q. Did you tell them that your layoff was
not your decision?
A. If I said anything, I told them I had
nothing to do with the layoff, which I didn't.
Q. Did you tell them that John Fuller had
anything to do with the layoff?
A. No, I didn't tell them that for sure.
Graham became rattled on cross-examination. He
said he did not remember what happened in his of-
fice, "ask Talmadge (Miller)." He said McMahan
was not in the office during this confrontation-
only 3 men were present: himself, Wyrick, and
Miller. He attempted to explain his confusion by
saying "you don't think clear when there's two fel-
lows the size of him and Wyrick standing over you,
redfaced."
McMahan corroborated the fact that he was in
Graham's office. He said Graham stated he had
nothing to do with the layoff but when asked if
Graham said anything about Fuller having picked
the layoff McMahan said he did not recall such a
statement. McMahan was not a convincing witness
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and it is significant that he did not deny that
Graham said anything about Fuller having picked
the layoff but merely said he did not recall this re-
mark . Miller naturally affirmed Wyrick's version of
the conversation . Graham , as he recounted what
took place in his office , relived his fear of Wyrick
and even denied that McMahan was present during
this incident . His testimony was so inconsistent and
uncertain that he was an incredible witness . I credit
Wyrick's version of what transpired in Graham's of-
fice.
5. Wyrick and Miller confront Fuller
Wyrick and Miller left Graham's office and
reached the Rust personnel office shortly before 3
p.m. Upon their arrival they found a cluster of men
standing outside. Approximately 10 to 12 men were
there including most of the men laid off on that
day. About 3 p.m. Fuller, accompanied by his job
steward, Ruel Ball; Roscoe Jones, the Sheet Metal
Workers International representative; and others,
came out of the meeting that had taken place in
Tinkham's office. This meeting concerned a ju-
risdictional dispute between the Union and the
IBEW which had nothing to do with the case at bar.
When Fuller saw Wyrick and Miller he ap-
proached them and said, "How are you doing."
Miller replied, "How do you think we are doing
when you just had us run off." Fuller denied he had
anything to do with the layoff and told both men to
see their foremen about this. At this point Miller
dropped out of the conversation and a heated argu-
ment developed between Wyrick and Fuller which
was peppered with obscenities by both men.
Wyrick accused Fuller of having had him laid off.
Fuller denied he had anything to do with the layoff.
Finally Wyrick said,"I don't know whether Fuller
got mad or not." According to Wyrick, Fuller
countered with, "If I did have you laid off what are
you going to do about it?" Fuller's version of this
episode is that after Miller made his opening re-
mark, Wyrick took over the argument and called
Fuller a "damn liar-you did have us laid off."
Fuller rejoined, "I don't lay people off-I get them
jobs. If you want to make something personal out of
it, as far as I'm concerned, if you think I had you
laid off, you can start something about it right now.f
It is doubtful that in the course of a heated argu-
ment Fuller's version was as cool and reasonable as
he said it was. It is much more likely that he angrily
retorted, "If I had you laid off what are you going
to do about it." Miller testified Fuller said, "I had
you laid off what are you going to do about it."
Coppit, one of the men laid off who was a witness
for the Respondents, testified that Fuller said, "If I
did have anything to do with your layoff what the
hell are you gonna do about it." Three other wit-
nesses testified that Fuller prefaced his remark with
the word "if." The best evidence on the point was
provided by Wyrick himself who also agreed that
Fuller started off with "If I had you laid off . . . . "
While the testimony of all the witnesses to this in-
cident concerns an event which took place 8
months before the hearing and the exact words may
be blurred by the passage of time, there is no doubt
that Fuller made the remark attributed to him con-
cerning his part in the layoff. Even if it is assumed
that Fuller was goaded into his rejoinder by the ag-
gressive verbal attack made on him by Wyrick the
fact remains that he lost his cool and I view his re-
mark as an admission against interest which I
credit.
6. Peace speaks with Graham
C. O. Peace, employed as a welder by Respon-
dent Rust, was presented by the General Counsel as
a corroborating witness. He said Graham told him
that Fuller said Peace had to be laid off. No finding
has been made regarding this hearsay testimony.
Peace further testified that after his layoff he
gathered his tools together and about 4 p.m., after
he had checked out, he was in front of the metal
shop along the road waiting for his ride. The record
shows that the following colloquy took place with
Graham:
Q. What did Graham say to you?
A. He wanted to know why John Fuller was
mad at me, why he was wanting me off the job
and said that day that I had to be laid off.
Although Graham denied he had told Peace that
Fuller was responsible for the layoff, as I have al-
ready found supra, Graham was an incredible wit-
ness . I credit Peace. He was a forthright and candid
witness.
D. Respondents' Rebuttal
Respondents took each of their 14 witnesses
through a series of questions, the highlights of some
of which will be summarized. Starting with Fred
Tinkham, the general construction superintendent
of the entire project and management's top super-
visor, it was testified that Rust's general practice in
the event of a layoff was as follows:
Graham would be notified when a layoff of sheet-
metal workers was to take place. He in turn notified
his general foremen who passed the word down to
the crew foremen. In such a case the number of
men to be laid off was specified but not the names
of particular employees. The employees were
chosen mainly by the crew foremen and occa-
sionally by the general foremen. Discretion is nor-
mally vested in the crew foremen as to which in-
dividuals were to be laid off. Some of Respondent
Rust's supervisors (a line organization chart listing
company supervisors is included in the record as a
Rust exhibit) denied they were told who to lay off,
denied Fuller had anything to do with selecting men
for layoff, and said they did not know that campaig-
ning was being conducted in favor of Smith and
against Fuller.
RUST ENGINEERING COMPANY 653
Much is sought to be made of the fact that Peace
and Wyrick were rehired by Respondent Rust and
Miller was referred by Fuller to a job with another
company , Temperature Control, some weeks after
he was laid off . It is the responsibility of the union
business agent to send men out on jobs pursuant to
the hiring hall provision of the agreement between
the parties . The union election in which Smith was
elected business manager took place on or about
June 27 . Wyrick and Peace were rehired about July
18 as the result of being selected by Smith. Fuller
was out of office by this time , had nothing to do
with the rehiring of these men, and there is no
evidence in the record that Respondent Rust, on its
own initiative , sought out these men to offer them
reemployment.
There is testimony in the record detailing the
time sequence of the delivery of termination slips to
the men who were laid off. Fuller was in Chat-
tanooga for 2 days prior to March 5. One of the
purposes of this evidence was to prove that Fuller
did not know some work had been taken away from
the sheetmetal workers and awarded to the carpen-
ters and this made a layoff of certain of his men in-
evitable . This testimony is negated by Fuller's own
statement on cross-examination that he knew some
work had been taken away from his men a few days
before the layoff took place . He had access to the
telephone and had spoken many times in the nor-
mal course of business to company representatives
and certainly had ample opportunity to do so dur-
ing a "few days" prior to March 5. Fuller also
testified that he would have preferred that Wyrick
and Miller had not been terminated because this
gave the opposition a good propaganda weapon to
use against Fuller and his slate "which they did use
thoroughly ." Obviously the best way to get rid of
opposition is to eliminate it.
Respondents at one point in the brief filed by
Rust 's attorney jointly on behalf of the Company
and the Union, argue inter alia, that the Company
had no knowledge that Wyrick and Miller were en-
gaged in "protected activity" and that some of
Rust 's supervisors did not know such activity was
going on . The same brief further on states that "all
the sheet metal workers were discussing the upcom-
ing union election and were talking for and against
speculative candidates ." The record contains a
statement by Tinkham that there was so much talk-
ing being done on the job that he might have found
it necessary to enlist Fuller's aid in quieting the
men down and this would have been proper. The
fact is that Fuller testified he held two meetings,
during lunch time on company property with com-
pany permission , one in January and one in Februa-
ry in the course of which he talked to the Com-
pany's supervisors . Harvey corroborated this
testimony by Fuller. In vigorous language he in-
structed them to quit fighting among themselves,
quit politicking on the job, and do their work in
order to protect the reputation of their Union. It
should be pointed out that all the Company's sheet-
metal employees , including all supervisors up to
and including Graham , were and are members of
the Union . The activity of the dissident factions was
indeed pervasive and was well known to both Rust
and the Union . I find further that both Respondent
Rust and Respondent Union knew that Wyrick and
Miller played a conspicuous role in this activity.
At another point in Respondents ' brief appears
the statement that "There is no testimony as to
threats by Fuller ... in the event that Miller didn't
keep his mouth shut ." Cox testified credibly that
Fuller told him directly that if Cox and Miller did
not keep their mouths shut they would not be work-
ing at Oak Ridge and to pass on this word to Miller.
Fuller 's denial that he had such a conversation with
Cox is not credited.
Peace was laid off under questionable circum-
stances . It is not disputed that he was both a good
worker and had been employed on the project
longer than any other man. He was laid off by his
crew foreman, Fred Ballew . Ballew testified that Bo
Peace came up to him and said , "Ballew, I hear
there's going to be a layoff today, am I in it?" Bal-
lew said, " Yeah , you are, Bo." Ballew explained his
choice of Peace by saying that nobody likes to lay
off anybody but since Peace seemed to be expect-
ing a layoff Ballew's otherwise difficult task was
made easy by Peace 's question . It seems improba-
ble that Peace , a satisfactory employee and-one of
the oldest workers on the property , was chosen on
the basis given by Ballew . I do not credit Ballew's
explanation of the layoff especially since Ballew
also told Peace in the same conversation that he
hated to see him go but would lose his job if he did
not do so . Ballew, according to Peace whom I
credit , said he had orders to let Peace go. The fact
of the matter is that Peace disliked Fuller, had
made this well known on the job, and the natural
inference is that Fuller caused his layoff. Peace
secured a new job immediately after his layoff. He
was not named in the complaint . Peace was rehired
in July through Smith 's efforts and when Smith was
the business manager . Peace was appointed by
Smith as a union steward.
Concluding Findings and Analysis
There is no doubt that the employees , Respon-
dent Rusk, and more particularly the Union's busi-
ness agent , John Fuller , knew there was an articu-
late dissident faction of the said Union engaging in
rampant campaigning on the property directed
against Fuller . It is also clear that the usual
procedure operative on the project regarding
layoffs was not followed on March 5. Furthermore
the crew foremen , Ballew, Bennett , and Moyers,
did not themselves pick the Charging Parties and
Peace for layoff in the normal exercise of the dis-
cretion vested in them . Nor did General Foreman
Harvey or General Shop Forman McMahan make
the decision to lay off the above employees. Most
remarkably the craft superintendent over the sheet-
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
metal workers, Graham , admitted that he did not
pick Wyrick and Miller to be laid off . There is no
clear evidence to show that Timkham himself par-
ticipated in the selection of the individuals to be let
go on March 5. There is credible evidence that
Graham knew the selection was made by Fuller
because he said so on two specific occasions: once
to Wyrick and Miller in his office and secondly to
Peace . Iq this connection Graham 's knowledge is
imputed to the Company.
Standing alone the somewhat equivocal state-
ment by Fuller at the time of his confrontation with
Wyrick and Miller that "If I had you laid off what
are you going to do about it" would not be deter-
minative of this issue . But when taken together with
Graham 's- remarks to the Charging Parties and then
coupled with Graham 's further conversation with
Peace, the pattern of discrimination comes into
focus . The further corroboration by Cox that Fuller
threatened to fire Miller and Cox for campaigning
against him causes the threads of testimony to in-
tertwine into a convincing fabric.
The fact that Fuller and all Rust 's supervisors de-
nied that Fuller had anything to do with the layoff
was not convincing . The burden of proof on
General Counsel must consist of credible evidence
and is not countered by the kind of cumulative
evidence adduced by the Respondents ' witnesses
echoing its position by denying that Fuller had any
role in selecting employees to be laid off . It must be
borne in mind that the testimony of Wyrick , Miller,
and Peace came from unsophisticated men who
spoke their piece with candor and directness. It is
unreasonable to assume that they manufactured
their recitals out of whole cloth . This conclusion is
further borne out by the shifting reasons given by
Harvey for the selection of Wyrick and by the
direct testimony of Moyers . While Moyers did not
explicitly name Fuller as the instigator of the ter-
minations this judgment is the reasonable inference
to be drawn from what he did say . How can it be
otherwise explained that supervisors of the Com-
pany made the statements that were made by them
about Fuller . It was against their interest to so testi-
fy.
One of the points made by the Company in
rebuttal is that Smith , the man on whose behalf
Wyrick and Miller were compaigning , was not laid
off. If Smith had been let go Respondent's dis-
crimination would have been transparently obvious.
The facts show that at the time of the events
herein, Fuller thought he would be facing Smith in
an upcoming union election and Wyrick and Miller
were dissident members of the Union engaging in
politicking in favor of Smith and against Fuller. The
asserted reason for the terminations was that the
Respondent Union had lost some of its work as the
result of an award of this work to another union.
This was pretextual because the real reason Fuller
demanded the discharge of Wyrick and Miller was,
to retaliate against them for being involved in the
campaign against him . The evidence convinces me
that Wyrick and Miller were discharged because of
their union and concerted activity of protesting the
manner in which Fuller was conducting the Union's
affairs . Rust , at the instigation of Fuller, discharged
them for this reason . Such discriminatory action by
Respondent Rust encourages membership in the
Union by compelling obedience to its business
agent . By this conduct Respondent Union violated
Section 8(b)(1)(A) and ( 2) of the Act, and
Respondent Employer violated Section 8 ( a)(3) and
(1) of the Act when it terminated Wyrick and
Miller for reasons other than the nonpayment of in-
itiation fees and dues.3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in sec-
tion III , above, occurring in connection with the
operations of the Respondent Company described
in section I, above , have a close , intimate, and sub-
stantial relationship 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 Respondents engaged in con-
duct violative of the Act, I shall recommend that
Respondents be ordered to cease and desist from
engaging in such conduct, and take such affirmative
action as appears necessary to effectuate the pur-
poses of the Act.
The record indicates that Henry Wyrick was rein-
stated in July 1969 and presumably is presently em-
ployed in the position he held at the time the unfair
labor practices were committed against him. If this
is not the case I shall recommend that Respondents
be ordered to cease and desist from engaging in
such conduct , and take such affirmative action as
appears necessary to effectuate the purposes of the
Act. I shall recommend that Respondent Company
be required to offer Wyrick and Talmadge Miller,
without prejudice to their seniority and other rights
and privileges , immediate and full reinstatement to
their former or substantially equivalent positions. I
shall also recommend that Respondents , jointly and
severally , be required to make Wyrick and Miller
whole for any loss of earnings they suffered by
reason of the discrimination against them , as pro-
vided in F. W. Woolworth Company , 90 NLRB 289,
with interest at 6 percent per annum , as provided in
Isis Plumbing & Heating Company , 138 NLRB 716.
As to Respondent Sheet Metal Worker 's Interna-
tional Association-Local 51, it will be recom-
mended that it cease and desist from threatening
employees with economic harm because of their ac-
Air Flow Sheet Metal, Inc, 160 NLRB 1653
RUST ENGINEERING COMPANY
tivities on behalf of a dissident faction of the Union,
and cease and desist from attempting to cause
Respondent Rust to terminate employees or other-
wise discriminate against them because they engage
in activities on behalf of a dissident faction of the
Union.
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Company is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and Respondent Union is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
2. Respondent Employer and Respondent Union
have a valid union-security agreement within the
meaning of Section 8(a)(3) of the Act.
3. By discriminating in regard to the hire and
tenure of employment of Wyrick and Miller,
thereby encouraging membership in Respondent
Union, Respondent Company has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act.
4. By causing Respondent Company to dis-
criminate against Wyrick and Miller in violation of
Section 8(a)(3) of the Act, the Union has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(b)(2) and (1)(A) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Respondent Rust, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Encouraging membership in the Respondent
Union by terminating employees or in any other
manner discriminating in regard to the hire or
tenure of employment or any term or condition, ex-
cept to the extent permitted by the proviso to Sec-
tion 8(a)(3) of the Act.
(b) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) If Wyrick is not presently employed by the
Company, offer Wyrick and Miller immediate rein-
statement to their former or substantially
' 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 Ap-
peals, Enforcing and Order " shall be substituted for the words "a Decision
655
equivalent positions without prejudice, and jointly
and severally with Respondent Union make them
whole for any loss of earnings suffered as a result of
the discrimination against them in the manner and
to the extent set forth in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(d) Post at its Knoxville, Tennessee, operation,
copies of the attached notice marked "Appendix
A." 4 Copies of said notice, on forms provided
by the Regional Director for Region_ 10, after
being duly signed by the Respondent Com-
pan y's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent Company to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Post at the same places and under the same
conditions as set forth in (d) above, as soon as they
are forwarded by the Regional Director, copies of
the Respondent Union's attached notice marked
"Appendix B."
(f) Notify the Regional Director for Region 10,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.5
Respondent Union, Sheet Metal Worker' s Inter-
national Association-Local 51, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Threatening employees with loss of jobs or
attempting to cause the Company to discriminate
against employees because said employees protest
or oppose the conduct of the Union or its officers,
or are believed to be related to or associated, allied,
or sympathetic with those opposing or protesting
such conduct or otherwise engage in activities pro-
tected by Section 7 of the Act.
(b) In any like or related manner restraining or
and Order "
' In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing employees of the Company in the exercise
of rights guaranteed by Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as authorized in Section 8(a)(3) of the
Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Notify Rust Engineering Company, in writ-
ing, that it withdraws all objection to the employ-
ment of Henry Wyrick (unless he is presently em-
ployed by Respondent Rust) and Talmadge Miller
individually, and that it requests the Company to
offer them immediate and full reinstatement to
their former or substantially equivalent employ-
ment.
(b) Post at the Respondent Union's business of-
fices and meeting halls copies of the attached
notice marked "Appendix B. "s Copies of said
notice, on forms provided by the Regional Director
for Region 10, after being duly signed by Respon-
dent Union's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to its members are customari-
ly posted. Reasonable steps shall be taken by
Respondent Union to insure that said notices are
not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 10,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.7
3. In addition, Respondent Union shall take the
following affirmative action to effectuate the poli-
cies of the Act:
Jointly and severally with Respondent Company
make Henry Wyrick and Talmadge Miller whole for
any loss of pay they may have suffered by reason of
the discrimination against them in the manner set
forth in the section of this Decision entitled "The
Remedy."
e See fn 4, supra
' See fn 5, supra
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT interfere with, restrain, or
coerce employees in regard to their rights to
engage in union or other concerted activity for
the purpose of collective bargaining and other
mutual aid and protection.
WE WILL NOT encourage membership in
Sheet Metal Worker's International Associa-
tion-Local 51, or any other labor organiza-
tion , by discharging or laying off employees or
otherwise discriminating against them or in any
other manner discriminating in regard to hire
or tenure of employment or any other term or
condition of employment, except to the extent
permitted by the proviso to Section 8(a)(3) of
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
in Section 7 of the Act.
WE WILL jointly and severally with Sheet
Metal Worker's Association-Local 51, make
whole Henry Wyrick and Talmadge Miller for
any loss of pay they may have suffered as a
result of the discrimination against them.
WE WILL reinstate Talmadge Miller and
Henry Wyrick (if he is not presently employed
by us) to their former positions without preju-
dice to their seniority or other rights and
priveleges they previously enjoyed.
RUST ENGINEERING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify Henry Wyrick and Talmadge
Miller, if presently serving in the Armed Forces of
the United States, of their right to full reinstate-
ment upon application, in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify all member of Sheet Metal
RUST ENGINEERING COMPANY
Worker's International Association-Local 51,
that:
WE WILL NOT restrain or coerce employees
in regard to their rights to engage in union and
other concerted activities for the purpose of
collective bargaining and other mutual aid and
protection, by threats of discharge and other
reQriisals.
WE WILL NOT cause or attempt to cause Rust
Engineering Company, or any other employer,
to discriminate against Henry Wyrick and Tal-
madge Miller or any other employee because
they campaigned against a union business
agent or for any other reasons other than their
failure to tender the periodic dues and initia-
tion fees uniformly required as a condition of
acquiring and retaining membership in our
Union where they are required to tender them
under a collective -bargaining contract.
WE WILL NOT restrain or coerce employees
by any like or related acts in regard to their
rights under Section 7 of the Act to engage in
union or other concerted activities for pur-
poses of collective bargaining and other mutual
aid or protection , except to the extent such
right may be affected by an agreement requir-
ing membership in a labor organization as a
condition of employment as authorized by Sec-
tion 8(a)(3) of the Act.
WE WILL notify Rust Engineering Company
657
that we have no objection to the reinstatement
of Talmadge Miller and Henry Wyrick (if he is
not presently employed by Rust Engineering
Company ), and we will make them whole
jointly and severally with Rust Engineering
Company for any loss of earnings, including in-
terest, they may have suffered as the result of
the discrimination against them.
Dated By
SHEET METAL WORKER'S
INTERNATIONAL
ASSOCIATION-LOCAL 51
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, Peachtree Building , Room 701, 730
Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.