Texas Bolt Co.

National Labor Relations Board - Board Decisions

Feb 21, 1962

135 N.L.R.B. 1188 (N.L.R.B. 1962)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying this rationale to the undisputed facts of this case, we are
still convinced that the General Counsel has proved that Respondents
violated Section 8(b) (7) (C) of the Act. For here it is clear that
Respondents repeatedly requested recognition of Crown . Having
made such demands, their belated attempt to appeal to "organized
labor" in their picket signs cannot be allowed to obscure the obvious
purpose of their picketing-recognition or organization . There is
here, therefore , independent evidence of an unlawful object within the
meaning of Section 8(b) (7) (C), and, for this reason , we see no reason
to strain to exonerate Respondents' acts.
Texas Bolt Company and Lodge 916, International Association
of Machinists , AFL-CIO and Independent Steel Workers
Union, Party in Interest
Texas Bolt Company and United Steelworkers of America, AFL-
CIO and Independent Steel Workers Union , Party in Interest
Texas Bolt Company and District 37, United Steelworkers of
America, AFL-CIO. Cases Nos. P3-CA-1227, 203-C-4-12,08, and
23-CA-1244-3. February 21, 19620
DECISION AND ORDER
On November 15, 1961, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings,' conclusions,
and recommendations?
'Member Rodgers would disavow the Trial Examiner ' s statement that because the
Respondent had but 100 to 150 production and maintenance employees in its plant,
Respondent must have known Pavlicek was a union member.
'In the recommended remedy the Trial Examiner provided backpay for Charlie E.
Pavlicek until September 1, 1961 As it appears that there is no basis in the record for
135 NLRB No. 116.
TEXAS BOLT COMPANY 1189
ORDER
The Board adopts as its Order the cease-and-desist and affirmative
action recommendations of the Trial Examiner.
terminating Pavlicek's backpay as of September 1, 1961, bey mid statements that he would
have worked until "fall" the recommended remedy Is hereby modified to provide for
backpay until such time In the fall when 1'aviicek s employment would have terminated
under the terms of his temporary hiring agreement with Respondent.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Alba B. Martin,
the duly designated Trial Examiner, in Houston, Texas, on August 29, 30, and 31,
1961, on complaint of the General Counsel and answer of Texas Bolt Company,
referred to herein as Respondent and the Company. The issues litigated were whether
in March and April 1961 Respondent dominated and interfered with the formation or
administration of the Independent Steel Workers Union, referred to herein as the
Independent and the Independent Union; and whether on June 2, 1961, Respondent
discharged one Pavlicek because of his membership in, sympathy for, and activities on
behalf of District 37, United Steelworkers of America, AFL-CIO, referred to herein
as the Steelworkers. The General Counsel presented oral argument at the hearing,
and Respondent filed a brief which has been carefully considered.
Prior to the hearing Respondent filed with the General Counsel a written demand
or request for the production of certain statements and memoranda, which the
General Counsel denied. Early in the hearing Respondent moved for the production
of the same documents and I denied the motion citing Section 102 118 of the Board's
Rules and Regulations. At the hearing Respondent did not move for the production
of any pretrial statements of any of the General Counsel's witnesses after the wit-
nesses had testified on direct examination
After the witnesses had upon motion been excluded from the hearing room,
through inadvertence the General Counsel's witness, Homer Padgett, sat in the
hearing and heard part of the testimony. Under all the circumstances I do not rely
upon any of Homer Padgett's testimony in any of the findings and conclusions herein.
Upon the entire record and my observation of the witnesses, I hereby make the
following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation having an office and plant in Houston, Texas,
where it is engaged in the business of manufacturing industrial fasteners, bolts, and
nuts. During the 12-month period prior to the issuance of the complaint herein, in
June and July 1961, which are representative periods, Respondent had a direct inflow
in interstate commerce of materials and supplies of a value in excess of $50,000
which were purchased by and shipped to it directly from points outside the State of
Texas. During the same periods Respondent had a direct outflow of its products in
interstate commerce of a value in excess of $50,000 which it sold and shipped directly
to customers located outside of the State of Texas. Respondent admitted and I find
that at all times material herein Respondent has been an Employer as defined in
Section 2(2) of the Act, engaged in commerce and in operations affecting commerce
as defined in Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
Lodge 916, International Association of Machinists, AFL-CIO, referred to herein
as the Machinists, and Steelworkers, and Independent Steel Workers Union, are each
labor organizations as defined in Section 2(5) of the Act. Concerning the Inde-
pendent this finding is based upon the testimony of its principal organizer, Bobby
Womack, whose sales talk to employees concerning the Independent showed that
it was organized to bargain with the Company to gain benefits for the employees;
and upon its authorization cards signed by employees, which designated the Inde-
pendent as the representative of those who signed the cards for the purposes of col-
lective bargaining with Respondent
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background
The Machinists, as the certified bargaining agent , and Respondent were parties to
a contract from September 1959 to March 31, 1960. By timely notice the Machinists
wrote Respondent terminating the contract, barring its automatic renewal, and
requesting further negotiations. Negotiations were held during March 1960 which
Aid not result in a further contract because neither side was satisfied with the way
negotiations were-going. The' matter lay dormant for about a year, when Respond-
ent's personnel manager, John R. Price, suddenly took the initiative and telephoned
the Machinists ' representative , L. G. King. Price invited King to resume negotiations
and his remarks indicated his knowledge that another outside union was attempting
to organize the employees . In fact at that time the Steelworkers had just begun an
organizational campaign.
Price called again a few days later and they made an appointment for March 23.
On this date Price went to King's office and the two repaired to a nearby restaurant
and talked at some length over coffee. Price's remarks showed that he knew Steel-
workers was trying to organize and that he was motivated, at least in part, by a desire
to avoid dealing with it. According to the credited testimony of King, admitted in
part and not denied by Price, the latter said that as the Company had spent something
like $7,000 or $8 ,000 in legal fees in negotiating the earlier contract with the Machin-
ists, it would rather negotiate a new agreement with the Machinists than have to start
from scratch with some new union. He said something about how rough the Steel-
workers "play" and mentioned that Steelworkers had caused some violence at another
company called Ryerson Steel Company. He said that the Machinists still had a
bulletin board at the plant and that if it had any notices it would like posted he would
be glad to post them, or if the Machinists wished to put out some authorization cards
he would be glad to help with that. He mentioned the names of some of the Machin-
ists' committeemen who were still working in the plant. He said that he recognized
that the Machinists was unable to function without a checkoff , and also that he
thought the Company could grant a small wage increase . ^(In the earlier negotiations
of a year before Respondent had consistently refused to agree to a checkoff.) At
the conclusion Price said that he would make some notes for a draft contract in the
near future. Having waited a week or two without hearing further, King called
Price, reminded him that he was going to call back, and asked where they stood.
Price answered that he had checked with Mr. Dickson, president of the Company,
and that "Mr. Dickson wouldn't go along with us." In the meantime, as will be seen
below, the Independent Union had sprung into being and was openly soliciting em-
ployees' signatures in the plant on company time.
Steelworkers held its first general meeting for Respondent's employees during the
evening of Wednesday, March 22, which meeting was attended by some 15 or 20
employees. On March 22 and 23, at least three employees signed authorization cards
for Steelworkers. On March 27 Steelworkers held another general meeting for em-
ployees, attended by some 25 to 30 employees. A third meeting was held March 29.
B. Formation of the Independent Union
The Independent was formed by workers whose legal status as supervisors or
employees under the Act was hotly contested in the evidence. Their status is
discussed below. The three principally involved were Bobby Womack, Ted Bal-
cerek, and Johnny Zievert. The activities of these three in forming the Independent
Union were not disputed. On Friday, March 24 (2 days after Steelworkers' first
general meeting for employees and the day after Price's "coffee" conversation with
King), Bobby Womack initiated a so-called "yellow petition" at the top of which
Womack wrote, "Names of Men who are interesting [sic] in Joining Texas Bolt
Local Union." During working hours during the course of the day on March 24
Womack steered these two yellow pages from a legal-sized yellow pad through the
several departments and several buildings of the plant and, with the help of Balcerek
and Zievert, obtained the signatures of some 111 employees. Womack solicited the
signatures of the employees in the two departments in which he worked, the hot
nut department and the cold nut department, and assisted Balcerek in going through
the two departments in which he worked, the screw machine department and the
threading department. Womack also assisted Zievert in soliciting the employees in
the toolroom, where Zievert worked They took the necessary time at the various
machines to answer any questions the operators had-and they were many-con-
cerning this new union The record is silent as to who, if anyone, assisted Womack
in circulating the yellow petition through any other departments.
TEXAS BOLT COMPANY 1191
Womack testified that he first heard of the Steelworkers' organizing effort a week
or two before he circulated the yellow petition, and that he circulated it because, in
substance, he thought the Independent would be better than an outside union.
Womack had not earlier joined the Machinists and he had not been covered by
the expired contract.
Early the next week Womack and Balcerek consulted a lawyer whose name
Womack had obtained from a neighbor. They selected the name "Independent
Steel Workers Union," for the new union . According to the credited testimony of
Balcerek;. the three of, them then went to the -Houston Regional Office of the Board.
Either the attorney or an agent of the Board advised Womack and Balcerek that
the yellow petition would not be adequate and that designation cards should be
obtained.
On Monday morning, April 3, Womack obtained the Independent's designation
cards 1 from the lawyer, who had had them prepared. On working time during the
course of that day, Womack, Balcerek, and Zievert, assisted by two others, dis-
tributed the cards throughout the departments to the employees at their machines
and solicited their signatures. The signed cards were returned to Womack. During
the course of that day most of the cards were signed. In all, that day and the next
few, about 100 signatures were obtained on the cards. On April 4, the attorney, on
behalf of the Independent, filed a petition for an election at the Regional Office.
This petition was processed until April 25, when it was interrupted by the filing of
the first charges herein on April 25, in Cases Nos. 23-CA-1227 and 23-CA-1228.
One day after the cards had been signed Womack, Balcerek, and Zievert, and an
employee, Wilbert H. Noak, went to the attorney's office, where they constituted
themselves temporary officers of the Independent Union-Womack as president,
Balcerek as vice president , Noak as secretary -treasurer , and Zievert as committee-
man. Noak went with them upon the invitation of Balcerek, who asked if Noak
would be willing to serve as a temporary officer. Balcerek and Noak worked in
the same department.
One day during the last week in March-the week between the circulation of the
yellow petition and the circulation of the Independent's cards-Womack told Plant
Manager Yoder that some of the men were talking of forming an independent union
and asked Yoder what he thought of the idea. Yoder replied that "he couldn't pass
an opinion but personally he thought it was a good idea ." On April 3, Plant Superin-
tendent Anderson saw the Independent's cards being passed out, told Womack he
had seen them, and asked what they were. Womack replied that they were going
to organize an inside union. Anderson did not stop the activity. Respondent had
no rule prohibiting solicitation of employees.
On an unstated date in the plant Personnel Manager Price said to Womack that
two or three unions were trying to "come in." Womack replied that one of them
was an inside union they were trying to organize.
On a day sometime after the yellow petition was circulated employee Noak asked
Plant Superintendent Anderson his opinion of the Independent Union. Anderson
said "that he felt it would be better than having an outside union . come in,"
and that "he felt that Mr. Dickson (Respondent's president) would probably go
along with it more than he would with an outside union."
It thus appears upon uncontroverted evidence that the Independent was begun and
formed by Womack, Balcerek, and Zievert, who openly circulated the yellow petition
and the cards among the men working at their machines, on company time. During
the formation period-the week between the yellow petition and the cards-the
Independent was given encouragement by a management official, Yoder, and during
about the same time it was given further encouragement by Anderson's stated pref-
erence to an employee for it over an outside union and Anderson's stated opinion
that Respondent's president felt the same way.
Price, Respondent's only witness, admitted his feeling of hostility toward rep-
resentatives of the Steelworkers and the record clearly reflected this hostility. To
block the Steelworkers, as he in essence admitted to King, Price expressed willingness
to be of great assistance to the Machinists, including the granting of a checkoff
which Respondent had refused in the earlier bargaining with the Machinists. Then
the Independent suddenly sprang up, Respondent learned about it, and Price did not
call King again. When the latter called Price, Price said that he had spoken to
Respondent's president, who would not "go along with" the Machinists. This
sequence of events shows, as Anderson had told Noak, that Respondent preferred
the Independent to the outside union, the Machinists.
1 These cards stated, "I hereby designate the Independent Steel Worker's [sic] onion
as my representative for purposes of collective bargaining with the Texas Dolt Com-
pany"-following which were lines for date and signature
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since, to block the Steelworkers, Price took the initiative to try to renew Respond-
ent's contractual relationship with Machinists and then withdrew that initiative after
the beginnings of the Independent Union , does it follow that Price or some other
high management official took the initiative to get the Independent started? The
Board's vast experience over the last 26 years would suggest that this was the fact.
Although Womack, who started the Independent, did not admit to having begun
his activity at the suggestion of higher management , an added factor suggesting
that this is what happened was the fact that Womack had not earlier been a "union
man," had not joined the Machinists prior to its contract when there was no reason
he could not have, and, insofar as the record showed, had never before formed or
assisted .a union . Nothing in the record suggested that Womack had a built -in self-
starter. The entire record considered as a whole supports the inference, which I
reach, that Womack went into action to form the Independent at the suggestion of
a higher-up management official.
C. Supervisory status of Womack, Balcerek, and Zievert
The General Counsel contended and Respondent denied that Womack, Balcerek,
and Zievert were supervisors within the meaning of the Act in March and April
1961, when, as has been seen above, they formed the Independent Union.
Respondent's top management representatives were President William M. Dick-'
son, Personnel Manager and Assistant to the President John R. Price , Plant Manager
Carl H. Yoder, and Plant Superintendent Andy H. Anderson. In addition, those
on monthly salary were a combustion engineer and men in charge of the shipping
department , the packing department , engineering and inspection , and Ernest V.
Chambliss, foreman over the toolroom.
Womack and Balcerek worked directly under Plant Superintendent Anderson and
took orders directly from him. Zievert worked directly under Toolroom Foreman
T. F. Chambliss. All three were the highest paid hourly wage employees in their
departments, receiving at least 27 cents per hour more than the next highest paid
employees in their departments. As is discussed below they were sometimes called
leadmen and sometimes called supervisors.
In the interest of the Company, Womack directly under Plant Superintendent
Anderson was responsible for directing ,the employment activities of the employees in
two departments- located in two different buildings-the hot nut department and the
cold nut department. He was responsible for the operation of 6 machines, 2 men
to each machine-12 employees. If he was not a supervisor over these 12 employees
then their immediate supervisor was the plant superintendent, who had between
100 and 15,0 employees under his supervision.
In the interest of the Company, Balcerek directly under Plant Superintendent
Anderson was also responsible for directing the employment activities of the em-
ployees in two departments, the screw machine department where five or six employees
worked , and the threading department where seven or eight employees worked. If
Balcerek was not a supervisor over these 12 to 14 employees then their immediate
supervisor was Plant Superintendent Anderson.
Womack and Balcerek obtained written work orders from the office and gave them
to the machine operators. They helped set up and change over the machines or
gave advice when their help was needed. They maintained an inventory on tools
and helped the operators get tools. They directed and assisted in the making of
major overhauls. They assigned operators from one machine to another when the
occasion demanded it. On occasion for short periods they ran a 'machine in relief
of an operator, but they did not operate machines as a part of their routine duties.
According to Noak, a very credible 2 witness who worked under Balcerek, the latter
"just (saw) that everything worked out alright in our departments." When in 1957
Noak was transferred to Balcerek's department, Plant Superintendent Anderson told
Noak he thought Balcerek was "a good man to work for." Every morning they
made out a written report of the production of their departments the day before.
On Payday they distributed the paychecks to the men in their departments.
Womack and Balcerek each testified in substance that they were responsible for
the quality of the merchandise put out by the operators under them. As Womack
testified, "I checked the work they put out all along." Clearly they had authority
to direct an operator to correct the situation if his machine was putting out a faulty
product. As Balcerek testified, his responsibility included seeing to it that the mate-
rial "they cut . was suitable for sale." Noak testified that Balcerek was re-
sponsible for checking Noak's work to see that it was kept within the proper toler-
ances. On one occasion Anderson laid off both Balcerek and Noak for 2 daysbecause
2 On the record Respondent's counsel conceded as much
TEXAS BOLT, COMPANY 1193
Noak cut a quantity of nuts too long, thereby using up too much steel. Anderson
told them to be more careful in the future'to see what length on different nuts was
called for and that they had the book out there to check the sizes in. He did not
ask who had made the mistake in reading the book or set up the machine wrong?
Clearly Anderson held Balcerek responsible for not seeing, in the exercise of his
independent judgment, that the order was run off correctly.
Zievert performed substantially the same duties as Womack and Balcerek, but his
responsibility was somewhat less in.that he reported to and was responsible to Tool-
room Foreman Chambliss rather than to the plant superintendent. Witness Symank,
who worked in the toolroom part of the time, testified that Zivert told employees in
the tool-and-die room what to do, what dies they needed, and in the afternoon he
would make out a' work order for the night crew and hand it to the night crew.
Zievert maintained the inventory of tools and was responsible to see that there was
always stock on hand. Employee Pavlicek, who worked in the tooling department,
testified that Chambliss spends "the majority" of his time in that department, that
Chambliss very seldom spoke to the employees about their work, and that "the
'majority" of the time Zievert gave them their instructions on what to do. The
record did not reveal bow many employees worked in the toolroom. When Cham-
b'liss introduced Pavlicek to Zievert about the middle of February 1961 be intro-
duced Zievert as his "assistant," and told him that whenever any problem arose he
should see Zievert who "would straighten them out." Noak stated that Zievert "saw
that the work was done in the toolroom." Womack testified that in day-to-day duties
and routine and responsibilities the jobs of Womack, Balcerek, and Zievert were sub-
stantially the same.
The record showed that from time to time individual employees in their respec-
tive departments asked Womack, Balcerek, and Zievert for ^a raise and that Womack,
Balcerek, and Zievert passed the requests on to their next higher supervisors.
When employee Noak was going to be absent from work for a short period of
time he so informed Balcerek. For longer periods he informed Anderson.
Prior to the 6-month contract of September 1959 to March 1960 with the Ma-
chinists, Womack, Balcerek, and Zievert and about seven or nine others were re-
ferred to by the Company as leadermen. During those negotiations, about June
,1959, the Company informed the union negotiators, including the employee mem-
bers of the union committee,4 that it was promoting these 10 5 leadermen to super-
visors. Shortly thereafter it gave each of them a raise of 27 cents an hour, from
$2.03 to $2.30 an hour. No other employees received raises. Personnel Manager
Price testified that these raises were given as an incentive, and that during the time
they were supervisors these 10 were considered by the Company to have the right to
hire, fire, reward, reprimand, promote, and demote, and to give instructions as they
saw fit, by exercising independent judgment. By agreement between the Company
and the Machinists during those negotiations, these 10 were considered foremen
under article XXI of the contract, which provided that foremen would not perform
the work of employees except in emergencies.
Despite Price's exaggerated statement of the authority of the new supervisors,
when Plant Manager Yoder informed Womack and Balcerek (according to Womack's
credited testimony) that they were being promoted to supervisors, Yoder told them
that "we would be out in our departments to get the work out, to see that the ma-
chines were running, check the quality of the material . . . that was produced, and
see that it was right." As Womack testified, this was what they had been doing
right along.
Respondent contended that sometime .in the fall of 1960 these 10 supervisors were
"demoted" to leadermen again . The record is unconvincing as to just when this
action was taken. When it was, Yoder informed each supervisor individually that he
was no longer a supervisor. According to Price the reason was that they had not been
good supervisors, that they had not exercised the powers they had been given as
supervisors. Price's testimony developed somewhat the alleged shortcomings of
Womack, Balcerek, and Zievert but not those of the others. It seems highly im-
probable to me that all 10 would have failed in the performance of their duties at
just the same period of time and in about the same way. Price's explanation, as did a
number of his explanations, failed to ring the bell of plausibility, probability, convic-
8 Actually, as I find on Noak's credited testimony, they had both looked up the size
and gotten it wrong, but Noak alone had set up the machine
4 As the union representatives and the employees on the committee were representing
the employees, it is a fair presumption that they informed the employees of the promo-
tion of the leadermen to supervisors
6 The testimony related to 10 or 12 1 use the round figure 10 to cover the group.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion , and truth . Because of this Price appeared to me as lacking the full stature and
status of the credible witness. Further , in some of his testimony he was evasive.
When Yoder informed Womack he told him only that they had not needed them
as supervisors "in the first place , that leadermen was basically the same thing as we
were doing, and that we would just be called leadermen instead of supervisors."
When they were "demoted' the 10 did not have their hourly wage reduced to the
level of the other employees in their departments . Their wages continued as they
were , at least 27 cents,an hour above (Womack's was 30 cents above ) the next highest
paid employees in their respective departments .6 Price testified they were not re-
duced because that would deprive them of incentive . This ignored the effect upon
the minds of the other employees of failing to lower their wages.
When they were "demoted" the Company did not inform the employees that these
men were no longer supervisors ; and there is some evidence that after the fall of
1960 Plant Superintendent Anderson still considered them as supervisors. In Janu-
ary 1961 Anderson introduced Balcerek to a new employee, Ted Bolt, as "your
supervisor. He will assign you your work." Further, Noak, a very credible witness,
testified that the first he ever heard about Balcerek's no longer being a supervisor
was when Womack and Balcerek returned to the plant from their initial visit to
their lawyer and the Board 's Regional Office . In the presence of Noak , Balcerek
asked Womack what they were going to do now that they could not organize an
independent union. Womack replied, "Oh, didn't you know we (aren't) super-
visors anymore?"
In any case the record established that, whatever they were called, there was no
change in the duties of Womack, Balcerek, and Zievert from early 1959 onward.
Price testified that they performed the same duties before they were called super-
visors, during the time that they were called supervisors, and ever since then.
Noak testified Balcerek performed the same duties from 1957 onward. Womack
testified to the same effect in his case. There was no testimony to the contrary.
And Noak testified that "even before they were made supervisors we called them
supervisors because that is what they were to us... .
Upon the above facts and considerations, and upon the entire record considered
as a whole, I find and hold that in March and April 1961, when they formed the
Independent Union, Womack, Balcerek, and Zievert were supervisors within the
meaning of the Act. They had authority, in the interest of Respondent, responsibly
to direct the employees in their departments and to see that production got out.
They were responsible for the quality of the merchandise produced by the employees
under them, and had authority to require operators to correct any faulty production
and make it saleable. In the exercise of this authority and this responsibility they
necessarily had to use their own independent judgment as well as their skill.
Womack and Balcerek performed the functions of and were in reality foremen of
their departments, whatever they were called. Balcerek was so regarded by the
employees under him, and Womack must have been so regarded also. That all
three were regarded as supervisors by the employees is indicated by the fact that
employees under them asked them for raises and looked to them for assignments.
During the period of the Machinists contract all three were considered as foremen
by the Company under the terms of the contract, and never thereafter did the Com-
pany ever inform the employees that they were no longer foremen or supervisors
and never thereafter did the Company take any action (such as telling the employees
and such as putting their hourly wage more nearly on a level with the wages of
the employees under them) designed to show the employees that they were no
longer supervisors. The evidence that they were "demoted" in the fall of 1960 was
unconvincing in view of the fact that at that time Respondent did not inform the
employees of this action and in view of the fact that thereafter Respondent permitted
the employees to continue looking upon them as supervisors. The Company en-
couraged these "supervisors" to attend supervisory safety meetings and paid them
time-and-a-half when they did. I conclude on the entire record that they were
supervisors who shared the power of management.
D. Conclusions
The Independent Union having been formed at the suggestion of and with the
support of higher management of the Company, as has been found above, and
having been formed principally by three supervisors who constituted themselves
three of its temporary officers, solicited employee signatures, and attempted to obtain
9 Except for 1 of the 10, whose hourly wage was reduced The name of this one was
not given in the record
TEXAS BOLT COMPANY 1195
a representation election , as found above , I find and hold on the entire record that
Respondent dominated and interfered with the formation of the Independent , there-
by violating Section 8 (a) (2) and (1) of the Act.
The Independent 's petition for an election , filed in the Regional Office April 4
went to partial hearing on April 25. The hearing was recessed and has never re-
sumed because of the filing of the charges herein . Presumably as a result of these
events the Independent has never developed beyond its formative stage. It has
never reached the stage of being administered . The record does not, therefore,
support a finding that Respondent has dominated and interfered with the adminis-
tration of the Independent.
E. The discharge of Pavlicek
Charlie E. Pavlicek worked for Respondent from February 15, 1961 , until his
discharge on June 2 , 1961 . Pavlicek told John R . Price, personnel manager and
assistant to the president , who first interviewed him for Respondent , that he was
going to teach school in the fall and wanted to work only until then . He was hired
on a temporary basis and it was understood that he would work until teaching time.
In his memorandum to Plant Manager Yoder of June 2 recommending the discharge
of Pavlicek , Price said in substance that Pavlicek was hired for the period ending
in August , presumably at the end of August.
Pavlicek ran an engine lathe in the tooling department . The Company con-
sidered him an excellent machinist and his work was very satisfactory?
Pavlicek signed an authorization card for the Steelworkers on March 22 , attended
5 or 6 Steelworkers meetings beginning March 22 , and solicited and passed out
Steelworkers cards and signed up about 15 employees on his own time, not on
company time . In this small plant of between 100 and 150 production and mainte-
nance employees , with Price in the plant some 15 to 20 times per day constantly
observing employees (as he testified ), it is inconceivable to believe that Pavlicek's
activities did,not come to Price 's knowledge.
In any case on and after April 19 , Price knew that Pavlicek was actively assisting
the Steelworkers' organizing campaign . On April 18 , a representative of the Steel
workers, C. T. Ray, telephoned Price and asked that Pavlicek be excused from work
for some time the following day and then wrote Price the following letter, which
was stamped received by Respondent at 8-presumably 8 a.m.-on April 19:
In regard to our telephone conversation of today , this letter will serve as a
formal request that the following two employees be excused from work at noon
on Wednesday , April 19 , 1961, for the purpose of attending a hearing con-
ducted by the National Labor Relations Board on that date.
The following two employees are Donald Henderson and Charles E. Pavlicek.
Also, I would like to state at this time that the two above -named employees
are Organizing Committeemen for the United Steelworkers of America, AFL-
CIO and are active in this committee work.
Any action taken by the Company against these employees for their union
activities shall be grounds for unfair labor practice charges.
Thanking you for your cooperation.
At an informal meeting with one of the Board 's agents in the Board 's Houston
Regional Office on April 19, at a moment just after Price had displayed anger at
the Steelworkers representative , Ray, and after Price had banged his fist on the
table and Ray had made a reply in anger , Price turned to Pavlicek , who was there
with Ray, and said that he was surprised to see Pavlicek there that day. Then
Price asked , "Are you still going to be a school teacher in the fall?" When Pavlicek
replied that he was, Price asked , "Are you going to be a union school teacher?"
Then Price asked , "How long do you intend to stay with the Company ?" To the
latter question Pavlicek replied , "Until this fall " Price asked these questions while
he was still in a state of anger . In his testimony , asked why he made the remarks
to Pavlicek , Price replied , "Just a method of letting off steam."
Shortly before the 4 p .m. end of the workshift on June 2, 1961 , Ernest Chambliss,
supervisor over the toolroom in which Pavlicek worked , told Pavlicek that he was
discharging him as of that day, that there was not enough work for him to do,
that business was bad . According to Pavlicek 's uncontradicted testimony, the
previous day John Zievert, from whom Pavlicek customarily received his work
7 Pavlicek received a written warning notice on April 26, 1961, for some defective work
Respondent did not claim there was any connection between this event and Pavlicek's
discharge Price testified that receiving a warning slip was not unusual
1196 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
orders, had given Pavlicek three work orders which would have taken him 2 or
3 weeks to complete. Chambliss and Zievert were not called to testify. Upon
uncontradicted evidence I find that when Chambliss told Pavlicek that there was
not enough work for him to do, there was work for him for at least 2 or 3 weeks.
Respondent's defense to the discharge of Pavlicek was that he was let go in order
to make room for one Alvin G. Meek, an employee of not quite comparable work
performance and ability but of greater seniority who had been earlier laid off and
who, to Respondent's knowledge, was in financial hardship. Neither at the hearing
nor in - its brief did Respondent assign an economic reason for the termination of
Pavlicek, which was the sole reason given Pavlicek by Chambliss in severing him.
Nor could an economic defense stand up in view of the fact that contemporaneous
with the discharge of Pavlicek Respondent offered Meek a job to take his place.
In substance Respondent contended that seniority had something to do with
the severance of Pavlicek and the attempted recall of Meek.
Five employees including Meek had been laid off March 20, 1961, in what
Respondent described as an economic layoff. The record does not contain the basis
of selection of these five. As Pavlicek was younger in employment ' than at least
three of the five selected and as he was retained when they were laid off, seniority
appears not to have been a weighty factor, if any factor at all, in the selection.
Price claimed to have discovered Meek's greater seniority than Pavlicek's just
before Pavlicek's discharge. This is highly doubtful in view of the fact that Meek
had been in Respondent's employ about 13/a years before Pavlicek had arrived
on the scene only 31/z months before; the fact that by his own testimony Price
was in the plant 15 or 20 times a day; the fact that Price would have remembered
that Pavlicek was a new employee inasmuch as Price was the first to interview
him and knew that he had been hired on a temporary basis until the beginning
,of school in the fall; and the fact that' Price knew Pavlicek was unusual among
Respondent's employees. in that he was a college graduate.
Price claimed to have'been motivated in personally causing the discharge of
Pavlicek to make room for Meek, by compassion for Meek. In testifying, he
expressed, however, no compassion for Pavlicek. On June 1, prior to his taking
action on June 2 to discharge Pavlicek, Price went to Meek's home, and not finding
anyone there left Meek a note offering him his old job at his old rate of pay and
requesting that he report for work the following Monday, June 5. Meek did not
appear for work on June 5 or on any day thereafter. Price never again went to
Meek's house and did not write him. But as it became more evident each day that
Meek was not going to appear, Price took no action to have Pavlicek recalled.
Price testified in substance that he felt no sorrow for Pavlicek and that he felt
no injustice had been done him and Respondent had no obligation toward him
inasmuch as Pavlicek was only a temporary employee. In his testimony Price
appeared to overlook or ignore the fact that Pavlicek had been removed from the
payroll with consequent loss of income some 3 months prior to the end of the
period for which he had been hired, in just about the middle of that period. As
Price had no compassion for Pavlicek I do not credit his testimony that in dis-
charging Pavlicek he was motivated by compassion for Meek. Rather, I find that
his alleged compassion for Meek was but a pretext for Respondent to get rid of
Pavlicek
As Price was admittedly hostile toward the Steelworkers, as Respondent formed
the Independent Union to block the Steelworkers' organizing drive, as Pavlicek
was to Price's knowledge an organizing committeeman for the Steelworkers, and
as Respondent 's alleged reason for Pavlicek 's discharge was but a pretext and
wholly unbelievable. I find, on the entire record, that Pavlicek was discharged
on June 2, 1961, because of his sympathy for and activity on behalf of the Steel-
workers and to discourage sympathy for, and membership and activity in, the
Steelworkers, Respondent thereby violating Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set
forth above, I recommend that it cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of the Act.
TEXAS BOLT COMPANY 1197
Respondent having dominated and interfered with the formation of the Independ-
ent Union, which was formed to represent employees in collective bargaining with
Respondent, I recommend that Respondent completely disestablish said Independent
Union as representative of any of its employees for collective-bargaining purposes.
Respondent having employed Charlie E. Pavlicek with. the understanding that he
would work until about September 1, 1961, and having unlawfully discharged
him on June 2, 1961, I recommend that Respondent make Pavlicek whole for any
loss of pay he may have suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he normally would have
earned as wages from June 2, 1961, the date of the discrimination against him, until
September 1, 1961, less his net earnings during said period (Crossett Lumber Com=
pany, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
As provided in the Woolworth case, I recommend further that Respondent make
available to the Board on request payroll and other records in order to facilitate
the checking of the amount of backpay due.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from Respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs commerce and thus
effectuate the policies of the Act, I shall recommend that Respondent be ordered
to cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Texas Bolt Company is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Machinists, Steelworkers, and the Independent Union are each labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By dominating and interfering with the formation of the Independent Union,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (2) and (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Charlie
E. Pavlicek, thereby discouraging membership in the Steelworkers, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I hereby recommend that Texas Bolt Company,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Dominating and interfering with the formation of the Independent Union,
or any other labor organization of its employees.
(b) Discouraging membership in Steelworkers , or any other labor organization
of its employees, by discriminating in regard to the hire and tenure of their employ-
ment or any term or condition of employment.
(c) In any other manner interfering with , restraining , or coercing its employees
in the exercise of their rights to self-organization , to form labor organizations, to
join or assist Steelworkers , or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted activities
for the purposes 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 is necessary to effectuate the
policies of the Act:
(a) Completely disestablish the Independent Union as the representative of any
of its employees for collective -bargaining purposes.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Charlie E. Pavlicek for any loss of pay he may have suffered
by reason of Respondent's discrimination against him in accordance with the recom-
mendations set forth in "The Remedy" section of the Intermediate Report.
(c) Preserve and, upon request, make available to the Board or its agents, all
payroll and other records, as set forth in "The Remedy" section of the Intermediate
Report.
(d) Post in all the buildings of its plant in Houston, Texas, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be furnished by the
Regional Director for the Board's Twenty-third Region (Houston, Texas), shall,
after being signed by the representative of Respondent, be posted by Respondent
and maintained by it for 60 consecutive days thereafter in conspicuous places, in-
cluding places where notices to employees are customarily posted in each of the
buildings of the Houston plant. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps the
Respondent has taken to comply herewith .9
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE hereby disestablish Independent Steel Workers Union as the representa-
tive of any of our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
WE WILL NOT dominate or interfere with the formation of any labor
organization.
WE WILL NOT discourage membership in District 37, United Steelworkers
of America, AFL-CIO, or any other labor organization, by discriminating
against our employees in any manner in regard to their hire or tenure of em-
ployment or any term or condition of employment.
WE WILL make whole Charlie E. Pavlicek for any loss of pay suffered by
him by reason of the discrimination practiced against him in accordance with
the recommendations of the Intermediate Report.
WE WILL NOT in' any other manner interfere with, restrain, or coerce our
employees. in the exercise of their rights to self-organization, to form labor
organizations,* to join or assist District 37, United Steelworkers of America,
AFL-CIO, or any other labor organization; to bargain' collectively through
representatives of-their owri choosing, to engage in concerted activities for-the
purposes of collective batgaining -or other- mutual aid or protection, or to
refrain from any and all such activities.
All our employees are free to become or refrain from becoming members of the
above-named or any other labor organization.
TEXAS BOLT COMPANY,
Employer.
Dated ------------------- By----------.------------------------------
`(Representative) (Title)
This,notiice.must remain posted for 60 days from,the date hereof, and must not be
altered, defaced, or covered by any other material.
8In the event that these recommendations be adopted by the Board, the words "A Deci-
sion and Order" shall' be, substituted for the words "The Recommendations 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 "Pursuant to a Decree of the
United states Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
0In the event that these recommendations 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."