The Babcock and Wilcox Co.

National Labor Relations Board - Board Decisions

Dec 23, 1955

114 N.L.R.B. 1465 (N.L.R.B. 1955)

THE BABCOCK AND WILCOX COMPANY 1465
The Employer's exceptions: In its exceptions the Employer denies
that any threats were made by its supervisors or that there was any
effort to coerce or intimidate the employees, and denies generally that
it interfered with the conduct of a free election. The Employer
emphasizes that Pierce has denied making the "wiener peeling ma-
chine" statement; that Mattox denied making the statement attributed
to him; and that the statement of Moran was "completely miscon-
strued" by the Regional Director. The Employer contends that any
statements made by its supervisors were in the form of privileged
free speech. The Employer requests a hearing on the substantial and
material factual issues it contends have been raised by its exceptions.
The Board has considered the Regional Director's report and the
Employer's exceptions thereto, and finds that the exceptions raise
substantial and material issues of fact with respect to the Petitioners'
objections (a), (b), and (c), noted above, which may be best resolved
at a hearing.
[The Board remanded the case to the Regional Director for the
purpose of holding a hearing on objections, and ordered that the
hearing officer serve upon the parties a report containing resolutions
of credibility of witnesses, findings of fact, and recommendations to
the Board as to the disposition of the objections. Within 10 days
from the date of the issuance of such report, any party may file with
the Board in Washington, D. C., an original and six copies of excep-
tions. The party filing the same shall serve a copy thereof upon each
of the other parties, and the Regional Director. If no exceptions are
filed thereto, the Board will adopt the recommendations of the hear-
ing officer.]
MEMBERS MuRDOCK and BEAN took no part in the consideration of
the above Third Supplemental Decision and Order.
The Babcock and Wilcox Company and United Steelworkers of
America, AFL-CIO.' Case No. 16-CA-720. December 23,1955
DECISION AND ORDER
On April 29, 1955, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
1 The AFL and CIO having merged we are amending the identification of the Union's
affiliation.
114 NLRB No. 231.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report attached hereto. The Trial Examiner also found that
the-Respondent had not engaged in certain other alleged unfair labor
practices and recommended that the complaint be dismissed with re-
spect to such allegations. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief. The Respondent's
request for oral argument is hereby denied as the record and exceptions
and brief adequately present the issues and position of the parties.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the following additions and modifications :
The Trial Examiner found (a) that the Respondent by its Attorney
Fisher and Personnel Manager Williams "induced, encouraged and
assisted" employee Wofford to disobey the subpena calling for his
appearance as a witness for the General Counsel in a Board hearing,
and (b) that the $45 which Fisher subsequently paid Wofford allegedly
for holding himself available as a witness for the Company, was noth-
ing more than a "reward for disobeying the subpena," and that the
Respondent thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (a) (1) of the Act. The Respondent
excepted to these findings, inter alia, on the ground that the Trial Ex-
aminer's findings are not supported by the record. For the reasons
set forth below we find merit in the Respondent's exceptions.
Briefly stated, the facts upon which the Trial Examiner predicates
his finding of unlawful conduct are as follows : Wofford, an employee
of the Respondent, was served with a subpena calling for his appear-
ance as a witness for the General Counsel at a Board hearing in a pre-
vious case involving this Respondent. The hearing was scheduled to
commence on Monday, November 16, 1953. On the evening of Friday,
November 13, Wofford, having learned that Respondent's attorney,
Fisher, was at the plant interviewing employees for the purpose of pre-
paring the Respondent's case for hearing, sought an interview with
Fisher. In the course of the interview which took place in the presence
of Respondent's Personnel Manager Williams, Wofford informed
Fisher that he had been served with the subpena, that he didn't know
anything about the case, and inquired if he "had to go," or "if he could
get out of it." Fisher replied that under the circumstances he could
not understand why Wofford was subpenaed and advised Wofford that
while he might be forced to honor the subpena, the old judge, who had
died, would not have ordered obedience thereto because he was not a
material witness and his successor, the new judge, likewise should not
THE BABCOCK AND WILCOX COMPANY 1467
order him to comply. Although Wofford insisted he knew nothing
about the case, Fisher questioned him in respect to the allegations of
the complaint and, having discovered that Wofford had some
knowledge with respect to matters alleged in the complaint, informed
Wofford he would be a valuable and material witness for the Company.
Wofford persisted that he did not wish to appear at the hearing and
further stated that he had planned to take a trip to Lubbock the week
of the hearing. He also related that he did not want to work that week
because the attorney for the General Counsel might come to the plant
and Wofford wished to avoid him. After further discussing the mat-
ter Wofford agreed to Fisher's request to remain in Paris or the
county during the week of November 15. On Saturday morning,
November 14, WTofford telephoned Williams and requested permission
to be off the week of November 15, which request was granted by
Williams. Wofford did not appear at the hearing as required by the
subpena. Nor did Fisher call upon Wofford to testify for the Com-
pany. About a month later, Fisher invited Wofford to his office
and handed to him his personal check for $45, to reimburse him for his
lost earnings and because he abandoned his proposed trip to Lubbock
and stayed in Paris.
Accepting the Trial Examiner's evidentiary findings as true, we are
reluctant to draw from them the same inferences and conclusions as
did the Trial Examiner. In the first place, we cannot infer from these
findings that Fisher and Williams attempted to dissuade Wofford from
honoring the subpena, or that they, in fact, "induced," or "encouraged"
Wofford to disobey the subpena. It was Wofford, himself, who
sought out Fisher, informed him that he allegedly knew nothing about
the case, didn't want to testify, and would like to know how he could
get out of it. Fisher's advice, therefore, that the court in such circum-
stances would not compel obedience to the subpena, advice which was
given on the strength of Wofford's assertion that he knew nothing
about the case, does not, in our opinion, amount either to "induce-
ment" or "encouragement." While we believe it would have been bet-
ter practice for Fisher as a member of the bar to have encouraged
Wofford to obey the subpena, we regard Fisher's response as no more
than a legal opinion given at the request of a client. It is true that
Fisher did not modify or change his advice to Wofford when he subse-
quently discovered that Wofford did, in fact, have some valuable in-
formation about the case and secured a promise from Wrofford to be
available if the Company needed him as a witness. We are unable to
construe Fisher's failure to modify his original statement as "induce-
ment" or "encouragement" of Wofford to disobey the subpena; for
Wofford still persisted in his determination not to appear at the hear-
ing and testify either for the General Counsel or for the Company.
Whether WTofford's reason for not testifying was valid or not is beside
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the point. What is significant is the fact that in the face of Wofford's
determination not to appear at the hearing, he could not have been
induced or encouraged to do something he had already decided to do
himself. Although Wofford was eventually persuaded by Fisher to
give up his trip to Lubbock and hold himself available as a witness for
the Company, this fact can hardly be construed as evidence of "in-
ducement" or "encouragement" of Wofford by Fisher to disobey the
subpena to testify for the General Counsel.
Nor are we prepared without further proof to infer from the record
that by their conduct Fisher and Williams "assisted" Wofford in
carrying out his determination not to honor the subpena. Such infer-
ence could be drawn only from the evidence that Williams granted
Wofford's request for a leave of absence after he and Fisher had been
informed by Wofford of his reluctance to come to the plant for work
for fear that he might be found there by the General Counsel and
compelled to testify. However, we do not attach the same significance
to this fact as the Trial Examiner. Implicit in the Trial Examiner's
conclusion that the granting of leave under the circumstances was
"assistance," is an assumption that it was the duty of the Respondent
as an employer to deny Wofford's request for leave because it knew
that his absence from the plant would facilitate his determination to
ignore the subpena. However, we cannot subscribe to the proposition
that it is the Employer's duty to either grant or withhold requests for
a leave on such extraneous considerations. The significance of the
Respondent's action in granting leave to Wofford may be ascertained
only in the light of its then existing practice in granting leave to its
employees. If it were the Respondent's policy to grant employees'
requests for leave as a matter of course, provided it did not interfere
with production, then no ulterior motive could be imputed to the
Respondent for granting Wofford's request for a leave. The record
does not contain any evidence that requests for leave were not freely
granted. Indeed, the evidence indicates the existence of a liberal
policy in this regard. Thus, when Wofford informed Fisher and
Williams that he did not want to appear at the hearing because he
planned to take a trip to Lubbock the week of the hearing, both of
them assumed that Wofford would be given permission to take leave
for that purpose, and they acted on the premise that it was necessary
for them to try to convince Wofford to give up the proposed trip volun-
tarily in order to make him available as a witness rather than to rely
upon the Employer's managerial prerogative to deny the leave., Nor
does it appear from the record that leave was granted Wofford for the
purpose of assisting him to evade the subpena. There is no showing
that the General Counsel was prevented or handicapped in securing
Wofford as a witness for himself because of the leave granted Wofford.
THE BABCOCK AND WILCOX COMPANY 1469
Apparently assuming that the service of the subpena on Wofford was
all that was necessary to assure Wofford's presence at the hearing, the
General Counsel made no further efforts to implement the process.
There is no showing that the General Counsel, during Wofford's ab-
sence from the plant, attempted to get in touch with Wofford either at
his home or at the plant, or that had he done so, he would have been
denied information that Wofford had been granted a leave for the pur-
pose of working on his farm.
Similarly, we cannot spell "assistance" from the evidence showing
that Fisher succeeded in securing Wofford's promise to be available
as a witness for the Company without attempting at the same time to
secure Wofford's promise to honor the subpena and testify for the
General Counsel. Once Wofford had agreed to appear and testify
for the Company, he thereby in effect made himself available as a
witness for the General Counsel. It is true that the Respondent did
not choose to call Wofford as its witness. Yet its failure to do so does
not necessarily indicate that the Respondent originally had no such
intention or that it failed to call Wofford because of a desire to deprive
General Counsel of using Wofford as his witness.
Finally, we are not convinced that the record warrants the conclu-
sion that Fisher paid Wofford the sum of $45 as a "reward for dis-
obeying the subpena." Wofford was the only witness who testified
concerning the event. Fisher did not testify. Questioned as to his
understanding as to why Fisher wanted to pay him $45, Wofford
testified that Fisher told him that it was because he, Fisher, "didn't
want anybody to lose any time out there . . . on account of him,"
because he "did what [Fisher] asked, that [he] stayed in Paris or in
the county." On cross- and redirect examination, Wofford reiterated
his explanation that it was because he "stayed around at [Fisher's]
request and didn't go to Lubbock and [Fisher] didn't want him losing
any time on account of him." There is nothing in the record to indi-
cate that either Fisher or Williams had suggested to Wofford that he
should take time off to avoid meeting the General Counsel at the plant.
Quite to the contrary, it was Wofford himself who volunteered the
statement that he didn't want to come to work at the plant for fear
of meeting the General Counsel. In view of the foregoing, we are
reluctant to infer that the payment to Wofford was intended as com-
pensation for the time off taken allegedly at Fisher's suggestion.
Rather, we believe that Fisher's explanation to Wofford reasonably
lends itself to the construction that the payment was intended as a
compensation or a reward for giving up his proposed trip to Lubbock,
"staying around," and making himself available as a witness for the
Respondent. While the compensation of Wofford for inconveniences
and loss of time is highly questionable, under the circumstances here
1470 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
present, we are not prepared to find, in the absence of showing that
such payment was intended as a device to keep the prospective witness
from being available to the other party, that the Respondent by resort-
ing to such practice in the instant case interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7
of the Act.
Upon the entire record, we conclude that, although the conduct of
Respondent's representatives, Fisher and Williams, in handling the
matter of the subpena,is not above suspicion, the General Counsel
failed to prove by preponderance of evidence that they or either of
them attempted to dissuade Wofford front obeying the subpena, or
that they have "induced, encouraged or assisted" Wofford to disobey
the subpena, or that Fisher paid Wofford $45 as a "reward'for dis-
obeying" the same in violation of Section 8 (a) (1) of the Act.
[The Board dismissed the complaint.]
MEMBERS MURDOCic and BEAN took no part in the consideration of
the above Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges , as amended , duly filed by the United Steelworkers of America,
CIO, herein called the Union, the General Counsel of the National Labor Relations
Board,' by the Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued his complaint dated March 29, 1954, against The Babcock and Wilcox Com-
pany, herein called the Respondent or the Company, alleging that it had engaged in
certain acts and conduct in violation of Section 8 (a) (1) and (3) of the Labor
Management Relations Act, herein called the Act. The Respondent filed its answer
denying the commission of any unfair labor practices.
Pursuant to notice a hearing was held at Paris, Texas, before Trial Examiner
Loren H. Laughlin, on April 26 through 30 and June 1, 7, 9, and 10, 1954, when
the matter was continued until July 26, 1954. On July 15, 1954, the Trial Examiner
entered an order postponing the hearing indefinitely , pending final disposition of
subpena enforcement proceedings initiated by the General Counsel against one of
the Respondent 's agents, which subpena had been enforced by the United States
District Court for the Eastern District of Texas. On or about August 2, 1954, and
prior to the resumption of the hearing, Trial Examiner Laughlin transferred to the
Federal Trade Commission and since that date has been unavailable to the Board.
On or about October 29, 1954, the General Counsel duly filed a motion for trial
de novo with the Chief Trial Examiner of the Board and about November 4, 1954,
an order was issued designating Ralph Winkler as Trial Examiner in place of Loren
H. Laughlin. Thereafter, Trial Examiner Winkler, at the expiration of a show
cause order , entered an order granting the motion for trial de novo and setting
the case for hearing on January 17, 1955, at Paris, Texas.
Prior to the latter date, Trial Examiner Hilton was designated as Trial Examiner
by the Chief Trial Examiner and, pursuant to the foregoing notice, a hearing was
held on January 18, 19, 21, 22, 24, 25, and 26, 1955, at Paris, Texas. At the outset
of the case the Trial Examiner announced that he was hearing the matter de novo,
except that he would not review or pass upon motions previously decided by other
Trial Examiners . All parties were represented at the hearing and were afforded op-
portunity to be heard, to examine and cross -examine witnesses , and to introduce
1 The General Counsel and his staff attorney appearing at the hearing are referred to as
the General Counsel and the National Labor Relations Board as the Board
THE BABCOCK AND WILCOX COMPANY 1471
relevant evidence upon the issues herein.2 Counsel waived oral argument and later
,filed briefs which have been considered by the Trial Exammer.3
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
The Respondent, a New Jersey corporation, is engaged in the manufacture and
sale of boilers and auxiliary products and the erection and servicing of its products.
In the conduct of its business the Respondent maintains plants at Barberton, Ohio;
Alliance, Ohio; Augusta, Georgia; Beaver Falls, Pennsylvania; West Point, Mississippi;
Wilmington, North Carolina; and Paris, Texas. During the year preceding the date
of this hearing the sales, erection, and servicing of products amounted to more than
$1,000,000. This proceeding involves only the Paris, Texas, plant, which com-
menced operations about March 1953.
The Respondent ships to its Paris, Texas, plant, headers and tubes. On some of
the headers two or more pieces are welded together at the plant and holes are cut
in all of them to receive steam tubes to be fitted into them at a different time and
place. The tubes received are bent and welded into sections at that plant. Follow-
ing these operations, the headers and sections are shipped, usually with the Respond-
ent as the consignee, to the point where they are to be used in the erection of or as
parts of boilers From January 1954 to January 1955, headers and tubes valued in
excess of $100,000 were shipped to the Paris plant from outside the State of Texas
and products valued in excess of $100,000 were shipped to places outside the State.
The Trial Examiner finds that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory personnel at the plant
John Grubb testified that he has been with the Company for some 20 years, en-
gaged primarily in research and development work, and about January 1953 was
transferred to the Paris plant as assistant superintendent, T. E. Beckman being
superintendent at the time. In January 1954, Grubb succeeded Beckman as superin-
tendent and held that position at the date of the hearing.
The Company maintains three production departments, namely: tube, under
Foreman John Cox; header, under Lloyd Poling; and machine, under Cloyd Eagon.
In addition the Company has an X-ray or testing department, a maintenance group,
a shipping department, and an office staff.
Louis B. Williams, personnel manager, was employed in January 1952, prior to
the completion of the plant, and commenced hiring employees in December of the
same year. In January 1953, there were only 10 employees, which number increased
to about 575 in July (apparently both production and nonproduction employees),
the peak period, and in January 1954 there were 413 production workers. The
parties stipulated that during the period January 1, 1954, to January 20, 1955, a
total of 171 production employees were separated or voluntarily left their employ-
ment, leaving approximately 242 workers in this category.
B. Alleged acts of interference, restraint, and coercion; prior proceeding
The complaint contains a general allegation to the effect that on and after August
24, 1953, Williams, Reginald L. Satcher, and Attorney O. B. Fisher, as agents of
2 At the commencement of the hearing counsel for the Respondent moved to dismiss the
proceeding on the ground that the Board alone had authority to pass upon the motion for
trial de novo, and further objected to the designation of Trial Examiner Winkler and
Trial Examiner Hilton to hear this matter. Counsel conceded he made no request for
permission to enter a special appeal to the Board from the order of Trial Examiner
Winkler Trial Examiner Hilton denied the motion
3 Tlie time within which to file briefs was extended until April 14, as company counsel
were engaged in another Board hearing at various intervals between January 30 and
April 8
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company, interrogated employees concerning their union affiliation, threatened
and warned employees from assisting the Union, or becoming or remaining members
thereof, and maintained surveillance over union meetings and activities. The com-
plaint, in detailing this conduct, further alleges that Satcher threatened and warned
the employees about August 24; that about November 11 and 13, Williams and
Fisher, as well as Fisher alone, engaged in illegal acts of interrogation; and that
about November 13 and December 12, Fisher, as set forth below, participated in
improper and unlawful conduct with respect to an employee who was then under
subpena as a witness for the General Counsel.
The answer admits that Williams and Fisher were agents of the Company, denies
that Satcher acted in that capacity, and denies generally the allegations of the
complaint.
The record is silent on the subject of organizational activities, consequently the
Trial Examiner is unable to give any broad outline of the history thereof but is
limited to acts of personal participation as related by several of the General
Counsel's witnesses.
Since the matter is germane to the resolution of the present issues the Trial Ex-
aminer calls attention to the fact that on July 28, 1954, the Board entered its
Decision and Order in another case involving the same parties, being Case No.
16-CA-671 (109 NLRB 485), in which the Board found that the Company, on
about June 30, 1953, by prohibiting the distribution of literature by union repre-
sentatives on designated company property thereby violated Section 8 (a) (1) of
the Act. The complaint was dismissed insofar as it alleged that Williams uttered any
coercive remarks to the employees or kept under surveillance a union meeting held
at the Gibraltar Hotel in Paris, Texas, on August 22, 1953. The case, as appears
in the Intermediate Report, was heard from November 16 to 21, 1953, at Paris.
C. The alleged coercive remark by Satcher
Elmer C. Owen stated that during August 1953 he was employed in the welding
department as a welder under Foreman Cox and that Satcher was his leaderman.
Owen said he signed a union card and attended a meeting at some undisclosed time
and place and was present at a union meeting at the Gibraltar Hotel during the latter
part of August, which was the last meeting he has attended. The Trial Examiner
finds that the Gibraltar Hotel meeting was held on Saturday, August 22, 1953.4
Owen related that the welders were required to inform Satcher daily of the num-
ber of welds completed and at the time in question it was the practice of the men to
go to Satcher's stand toward the end of the shift where he would call out their names
and they would give the number of welds made. On Monday, August 24, Owen
and a number of men were gathered at Satcher's stand for the above-stated purpose
when Satcher said, "Williams of the company knew every man that attended that
meeting and they were going to be weeded out." According to Owen there were
about 35 welders on the shift but he could not fix the number present nor could he
identify any individuals except Billy Jim Rainey, Maxie Wofford, and W. H. Gunter.
Billy Jim Rainey, a welder, described his union activities as having attended the
meeting of August 22 and signing a union card, although he could not recall whether
it was before or after the meeting. Rainey stated that on August 24 he was at
Satcher's stand with about 15 or 30 men when Satcher remarked, "They knew every-
one that went to that meeting and they would be weeded out." Rainey named Owen,
Wofford, Gunter, and Austin Bishop as being in the group of employees present.
Wofford's union activities consume 4 or 5 lines in the transcript. He was asked by
the General Counsel if he was a member of the Union in November 1953 and he
replied, "I think so." The General Counsel then inquired if he had ever mentioned
this to either Williams or Fisher and he answered, "I don't remember." While
Wofford testified on other phases of the case he was not questioned about the Satcher
incident of August 24.
Satcher testified he was first employed by the Company in December 1952, and
worked as a welder until the spring of 1953 when he was made leaderman of the
group with which he had been working, consisting of some 29 employees. As leader-
man he was under Foreman Cox and was an hourly rated employee receiving $1.78
per hour, in January 1954, while the highest rate for welders was $1.48 per hour.
4 Peter P. Haubner, union representative, stated the meeting was held on the above date
and place and lasted from about 10 to 11 a in Following the meeting the union repre-
sentatives and 4 or 5 of the employees, not the disciiininatees, went to the hotel coffee
shop where they remained until about noon Haubner made no reference to any other
union meeting being held.
THE BABCOCK AND WILCOX COMPANY 1473
Satcher received work instructions from Cox showing the type of weld to be made
which instructions he passed on to the welders. He also assisted the welders in their
work and if they did not understand a particular operation he would explain how the
job should be done. In addition he would inspect their work and inform them
whether, in his opinion , the inspector would pass the same. According to Satcher,
the employee might or might not correct the defect but in any event he was free to
discuss the matter with Cox or the assistant foremen . At or near the conclusion of
the shift the employees came to Satcher's stand to turn in the number of welds per-
formed that day which information was recorded by him. Satcher testified that he
has never discharged or laid off any employee or ever recommended such action, nor
has he ever recommended a wage increase or decrease for a worker or ever repri-
manded an employee.
Satcher denied that on August 24, 1953, the same date on which an $0.08 per hour
increase had been granted , he made any reference to the Union or a union meeting
when the men were reporting their welds to him and specifically denied remarking
that Williams knew who had attended the union meeting and that they would be
"weeded out." The Company produced six witnesses, each of whom testified that
he was on the same shift with Owen and Rainey , and that on August 24, while report-
ing to Satcher, he did not hear Satcher mention the Union or a union meeting nor
make any remark to the effect that the Company knew who had attended the union
-meeting and that they would be weeded out.5
Cox stated that in early January 1954, he had a total of 279 employees in the tube
department ( apparently the same was true in August 1953 ), 48 of whom were em-
ployed as welders . He also stated that he had two assistant foremen , Paul Schlute
and Spencer Abbott, and Russell Sowle, night shift foreman , all of whom were
salaried employees . Cox said that it was the duty of assistant foremen to pass out
instructions to the leadermen and to direct production activities on the floor. In
describing the duties of leadermen Cox stated that they received instructions from
either himself or the assistant foremen, kept production records, and worked with
the production employees . The leadermen have no authority to hire or fire, nor to
effectively recommend such action, nor can they effectively recommend the transfer
of an employee or recommend an increase or decrease in his hourly rate of pay.
Cox related that Satcher became leaderman of the pressure fusion welders 6 at the
outset of the development of that department . In this connection he rotated with
his shift , assigned work to the welders , was responsible for the flow of materials to
see that the correct alloys were being used by the welders and that proper electrodes
were maintained , and kept daily production records of the individuals which he
initialed and submitted to Cox . Cox stated that during August 1953 it was the prac-
tice of welders to go to Satcher's stand , at or about the end of the shift, in order to
report the number of welds performed that day.
Conclusions
The preponderance of the foregoing evidence, as well as the credibility of the wit-
nesses testifying in respect thereto, fully convinces the Trial Examiner that Satcher
did not utter the remarks attributed to him by Owen and Rainey and, therefore, finds
that he did not make these statements.
In view of the foregoing finding the question of whether Satcher was a supervisor
as defined in the Act becomes academic . However, since the General Counsel
stresses this point the subject will be briefly touched upon . The General Counsel
urges that as Satcher worked with a large number of men and was the leader between
them and the foreman and assistant foremen he was, therefore , a supervisor, citing
Spartan Aircraft Company (16-RC-1529, not reported in printed volumes of Board
Decisions and Orders ). In that case the employer had some 420 employees and 14
admitted supervisors including the plant manager and departmental supervisors.
The employer also had 41 leadmen in subdepartments having authority to direct work
and to effectively recommend changes in the status of employees . The Board con-
cluded that considering the distances involved and division into a number of separate
5W H Gunter, Weldon Foster, Marvin P. Nash, Harry D. Miller, Leander P. Pitcock,
and John M. Taylor Each of these witnesses fixed the date as of August 24, the date on
which the $0 08 per hour increase was given Taylor definitely placed the date as August
24, for the reason that he received the increase and bought a new car the same day. The
Trial Examiner finds that the increase was granted on Monday, August 24, 1953, the day
on which Owen and Rainey claim Satcher made the alleged statements.
6 A fusion weld is made by either the metallic are or gas process whereby one adds filler
metal to a weld groove where two tubular elements are butted together.
1474 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
buildings the leadmen actually were supervisors . The foregoing facts are readily
distinguishable from those in the instant case. The General Counsel also stresses as
a strong factor indicating supervisory authority the fact that Wofford referred to
Satcher as his "boss" and "my foreman ." The only significance the Trial Examiner
attaches to these statements is that Wofford was the sole witness who thus charac-
terized Satcher . Of course , the question of whether the leadermen are supervisors de-
pends upon the degree of authority delegated to them or exercised by them. Here all
the evidence , and as credibly stated by Cox and Satcher , discloses that the leadermen
at this plant , including Satcher, had no authority with respect to the hire or dis-
charge of employees , nor could they effectively recommend any action whatever
touching upon the terms or conditions of employment and in directing the work of
the welders they did no more than exercise routine judgment in carrying out their
work assignments . Accordingly , the Trial Examiner finds that Satcher was not a
supervisory employee as contended by the General Counsel.?
D. The interview of employees in connection with Case No . 16-CA-671 -
Billy Max Davis stated he was first employed in May 1953 and operated a lathe
in the machine department . Eagon was foreman of the department and Ray Pinegar
was Davis ' leaderman . Davis attended the union meeting of August 22 and signed
a card at that time. He was a member of the volunteer organizing committee; ob-
tained about 15 union cards , and attended 2 committee meetings , 1 in December
1953 and the other in January 1954. About 2 weeks after the meeting of August 22,
Davis stated that he, Pinegar , Louis Ingram , and Ennis Aydellott were discussing the
benefits of organization and he informed them that he had signed a union card. In the
course of the discussion Pinegar said he "hoped the plant did not go union "
Davis testified that on Friday , November 13, 1953, 8 just prior to the hearing in
Case No. 16-CA-671, Henry Braswell , of the personnel office, drove Davis and Billy
Hatch to Attorney Fisher's office . Hatch was interviewed alone and about 7 o'clock
that evening Fisher called Davis into his office . Fisher asked Davis if he had been
treated any differently since he had attended the union meeting and he replied he was
unaware of the fact that the Company knew he had attended this meeting . Fisher
made no response to his comment and inquired if Davis knew Temple Ray, who was
named in the complaint as having been unlawfully discharged , and he replied he did
not know him. Fisher then asked if he had "been called as a witness " and he an-
swered in the negative . Fisher concluded the interview by stating that Davis, who
was working the day shift , would be paid overtime for being detained at his office.
Davis could not recall Fisher showing him the complaint which had been issued
against the Company nor could he remember Fisher stating that he was investigat-
ing that matter, or asking him whether certain company officials had interrogated
employees in regard to their union affiliations , or any statements concerning the
Union on the part of Williams, or whether he had attended the meeting of August
22. Davis did not testify at the hearing in November 1953.
Billy Ray Hatch was employed in February 1953 and operated a radial drill in the
header department under Poling. Hatch was present at the meeting of August 22,
signed a union card, and was a member of the volunteer organizing committee. 'He
attended 3 or 4 meetings of the committee and his activities consisted of accepting
union cards from employees and in this manner he received cards from about 40
workers.
On the afternoon of November 13, Braswell took Hatch to Fisher's office but the
latter was out, so they returned about 5 o'clock that evening. Fisher informed Hatch
that a hearing was scheduled for the following Monday and he wanted to know if
Hatch had any information concerning the matter and Hatch stated he did not.
Fisher inquired if Hatch had received a subpena to testify at the hearing and he re-
plied he had not been subpenaed . Hatch could not recall Fisher reading from the
complaint or any papers and in response to questions propounded by Fisher, he
stated that he had signed a union card and had attended the meeting of August 22.
Fisher also asked him if he had seen Williams in the hotel lobby at or about the
time of the union meeting and Hatch said he did not see him on this occasion . Fisher
further inquired if Hatch had heard Williams or other designated individuals make
any statements concerning the Union , or if anyone connected with management had
7 Gerber Plastic Company, 108 NLRB 403 ; Eagle Ii on and Brass Company , 110 NLRR
747; Doak Aii craft Co, Inc , 110 NLRB 792 , Metco Plating Company , 110 NLRB 615;
cf. The Plastic Molding Company , Inc, 110 NLRB 2137.
8 On direct examination Davis placed the date as 1954 but on cioss-examination fixed
the date as 1953 The Trial Examiner finds the interview occurred in November 1953.
THE BABCOCK AND WILCOX COMPANY 1475
questioned him, or any other employees, concerning his membership or nonmem-
bership in the Union and Hatch answered both inquiries in the negative. Hatch
was asked whether he was present when union circulars were being distributed at
the plant (June 30, 1953) and whether he had heard Williams direct any remarks
to the employees on this occasion. Hatch advised Fisher he was not working that
particular day. Hatch's interview lasted about an hour and a half, for which he was
paid the same rate as if he had been working, and at the conclusion thereof Braswell
drove him home. Hatch did not testify at the hearing in Case No. 16-CA-671.
Owen was working the night shift on November 13, and, in accordance with in-
structions from the timekeeper, reported to the office about 9 o'clock where he met
Williams, who introduced him to Fisher. Owen stated Fisher explained that charges
had been filed with the Board by the Union; that a complaint had been issued
against the Company, which was set for hearing on the following Monday; and that he
was preparing his case for trial and seeking evidence and witnesses . Fisher then
read various paragraphs of the complaint and commented, "Someone in this company
is going to swear to these. . Are you the one?" Owen did not relate what, if
any, reply he made thereto. Owen said that Fisher asked him if he had attended the
meeting at the Gibraltar Hotel and when he admitted he had, Fisher and Williams
remarked he would not be fired for doing so. Owen recalled that Fisher inquired if
he had seen Williams "snooping around" the meeting and he replied he had not
observed Williams on this occasion. Owen did not testify at the above mentioned
hearing.
Rainey was called to the company office on the night of November 13,9 where
he met Williams and Fisher. Fisher told him he was investigating a complaint issued
against the Company, which was scheduled for hearing on Monday, read portions
thereof to him, and asked if he knew anything about such matters. Rainey could
not remember his answer or answers to Fisher. Rainey stated that Fisher also in-
quired if he was under subpena and if he was going to testify and he answered,
"No," to both questions. Fisher thereupon requested Rainey to see him in the
event he was served with a subpena. Fisher further inquired if Rainey had any in-
formation from any source concerning Williams' presence at any time or place when
the employees were discussing the-Union and he replied he "hadn't heard anyone
say they saw him around any group of employees" under such circumstances. Ad-
mittedly, Rainey was not questioned in regard to his union affiliation. He was not
called as a witness in Case No. 16-CA-671.
Williams testified that before the hearing of November 16, Fisher made arrange-
ments to interview all the employees working the shift at the time union literature
was distributed at the plant as well as a group of workers who participated in the
taking of pictures at the plant on August 22. In all, somewhere between 150 and
200 employees were interviewed by Fisher and McLaughlin. Williams was present
during most of the individual interviews and stated that Fisher, after being intro-
duced to the employees, would explain that he was looking for witnesses in con-
nection with the hearing. He would then read portions of the complaint and ask
the employee if he knew anything about these matters. The interviews lasted about
15 minutes. Following the above procedure, Williams said that Fisher asked
Rainey (1) if he heard Williams or Satcher interrogate any employee concerning
his union activities, (2) if he had ever seen Williams at the Gibraltar Hotel, (3) if
he was at the plant when pictures were taken, and (4) if he had seen Williams or
heard him say anything when union representatives distributed literature at the
plant. Rainey answered all these inquiries in the negative whereupon Fisher an-
nounced he did not believe Rainey would be used as a witness, but he would call
him, if needed. Owen was questioned in substantially the same manner, except that
Fisher asked if he had attended the Gibraltar Hotel meeting and he replied that he
had. As in Rainey's case, Fisher told Owen he did not think he would be called as
a witness.
Conclusions
The Board has recognized that an employer, or his attorney, is privileged to inter-
view employees for the purpose of discovering facts within the limits of the issues
raised by the complaint for the purpose of preparing his case for trial, provided the
interview does not extend beyond the necessities of such preparation and pry into
matters of union membership and activity. (May Department Stores Company,
70 NLRB 94, 95.)
U While Rainey could not remember the date, Owen said the two of then were working
the same shift and both were called to the office the same night
387644-b6-vol 114-94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence in respect to the interviews is unusually uniform when it is con-
sidered these events took place some 15 months prior to the hearing and touched
upon subjects and procedures on which there might be honest disagreement. Of all
the witnesses only Hatch asserted he was interrogated concerning his union member-
ship and that occurred in relation to his attending the meeting of August 22. Oddly
enough, he and Davis were the only witnesses who could not recall Fisher having
read portions of the complaint to them.
The General Counsel attaches importance to the fact that Williams testified on
direct and cross-examination to the effect that Fisher interviewed between 150 and
200 employees the night of November 13, practically an impossibility, and later
stated that interviews were also conducted on November 11 and 12, as well as 3 or 4
.evenings the following week. Since Williams was questioned only upon the events
occurring on November 13, it may well be that he said all interviews took place
at that time, but any obvious error or confusion in this phase of his testimony was
cleared up on redirect examination . The Trial Examiner fails to see the significance
of the so-called discrepancy. The General Counsel also argues that the interviews
were simply a form of illegal interrogation on the part of high company officials
concerning union membership and therefore a violation of Section 8 (a) (1) under
the decision in N. L. R. B. v. Syracuse Color Press, Inc., 209 F. 2d 596 (C. A. 2),
cert. denied 347 U. S. 966. While, undoubtedly, an improper interview may develop
into a form of interrogation , such is not the case here, and the matter must be con-
sidered in the light of the above-stated principle. On all the evidence the Trial
Examiner concludes and finds that the interviews were confined to matters well
within the scope of the complaint and were neither illegal nor coercive. (Joy Silk
Mills, Inc. v. N. L. R. B., 185 F. 2d 723, 743 (C. A., D. C.), cert. denied 341 U. S.
914; N. L. R. B. v. Katz Drug Co., 207 F. 2d 168 (C. A. 8); A. E. Nettleton Co.,
et 4., 108 NLRB 1670.)
E. The Wofford incident
Wofford was employed in March 1953 and worked as a welder under Eagon.
Wofford admitted that he received a subpena calling for his appearance as a witness
for the General Counsel in the hearing in Case No. 16-CA-671, and prior to the
date of the hearing talked to Fisher. Wofford claimed he could not remember
when these events took place but from his entire testimony, including dates fixed by
company counsel which he did not question, the Trial Examiner finds that he was
served with the subpena sometime prior to November 13, that the hearing was held
on November 16 through November 21, and that he conferred with Fisher on the
evening of November 13.
Wofford stated he was working the night shift at the time in question and when
he saw Fisher go through the plant he told his leaderman , Satcher , that he would like
to talk to him. Shortly thereafter Wofford went to the office where he met Fisher.
He was not certain whether Williams was with Fisher when he first entered the room
but he was present during part of the meeting. Wofford knew Fisher, having been
to his office several times in connection with other matters. Fisher remarked that
Wofford had been to his office that day or evening and asked him what he wanted.
Wofford said he wished to talk to him about "a little road matter" and, after some
talk about livestock, he announced that he had received a subpena, which he showed
to Fisher. Wofford told Fisher, "I didn't want to have anything to do with it; that I
didn't want to go, and I asked him if I had to go." Fisher informed Wofford, "If the
Judge wanted me, he would issue a court order, I believe, and that the old Judge
wouldn't, which was now dead, and that he didn't think the new Judge would." Wof-
ford was not sure whether Fisher advised him he might have to be a witness in the case.
Company counsel, in order to "refresh" his memory, addressed a series of direct
questions to him covering the details of this meeting and Wofford invariably agreed
with the proposition as stated. Thus, Wofford was asked, if at the beginning of the
conversation Fisher did not inform him there was a procedure whereby either party
could require his attendance and that failure to do so would subject him to being
placed in jail for contempt of court and he answered, "Yes, sir, I believe so." In like
manner Wofford remembered that he inquired of Fisher whether the judge would
compel him to attend "when he didn't know anything" whereupon Fisher expressed the
opinion that he did not believe either judge would, or would have, required attendance
"if the man was in fact a person who was not a material witness." Following the
same vein, Wofford admitted that Fisher read certain paragraphs of the complaint
pertaining to the statements allegedly made by Satcher, and Williams' presence at the
Gibraltar Hotel when a union meeting was in progress. Wofford related he and
Satcher "had did lots of hurrahing about the union" and he had told Satcher he was
going to buy the plant if the Union took over, turn it into a sheep barn , and fire
THE BABCOCK AND WILCOX COMPANY 1477
everybody with the possible exception of Williams. In brief, Wofford told Fisher that
he attended the meeting at the Gibraltar Hotel but did not see Williams , in fact he
had seen Williams at the plant, having pictures taken, just before he left for the
hotel. After hearing the foregoing accounts, Fisher informed Wofford he might be
an important and valuable witness for the Company, whereupon Wofford stated he
was planning a trip to Lubbock. Fisher then requested him not to go and he
finally agreed to stay in Paris while the hearing was in progress and keep Fisher ad-
vised of his whereabouts. In amplification of the trip, Wofford stated that his wife
was off work from Friday through Monday and he was anxious to take his father
to Lubbock to visit his sister, whom he had not seen for 30 years. Wofford also
advised Fisher he did not want to be at the plant because he "figured Mr. Rhea
[counsel for the General Counsel] would be coming out there to see me and I didn't
want to see him." In answer to Fisher's efforts "to persuade" him to stay in the
area Wofford said he had some work to do on his farm and that he would not leave
the county. Apparently, the meeting concluded on that note.
A day or so later Wofford called Williams about "getting some time off" and
he was granted 3 days the week of November 15, returning to the plant Friday,
November 20. During this time he worked at his farm, about 17 miles from
town, and each evening returned to his home in Paris. Wofford admitted that he
was never excused by the General Counsel from honoring the subpena, that he
,did not present himself at the hearing, and that Fisher did not call upon him to be
a witness in the proceeding.
Wofford did not again see or hear from Fisher until about 2 weeks before
Christmas 1953 when he observed Fisher and group of men going through the
plant I evening while he was working. On this occasion Fisher came to Wofford
and asked him if he could come to his office. Wofford suggested the next day, which
was satisfactory to Fisher. Wofford went to Fisher's office on the agreed date and
gave the following account of this meeting: He and Fisher talked about "cattle
,guards" or a road matter and Fisher then inquired as to his hourly rate and was told
it was $1.28 or $1.38 per hour; in answer to Fisher's inquiry Wofford stated he had
lost 3 days from work whereupon Fisher or his secretary made out a check for $45
which he gave to Wofford because "he didn't want anyone to lose any time out
there . . . on account of him"; Wofford did not want the check and "didn't think
it was right because he was working for himself," nevertheless he accepted it. In
response to specific questions by company counsel, Wofford confirmed that Fisher
asked him how much he owed him and replied, "Nothing." He further conceded
that Fisher inquired if he "did not stay around on account of his having" been re-
quested to do so and that Fisher said he did not "want anybody waiting" for him
"without paying them for the time or something to that sense." Again, Fisher asked
-if $45 would reasonably compensate him for having remained in Paris "subject to
call" and not having gone to Lubbock and Wofford agreed that that was correct. In
response to the Trial Examiner's inquiry as to his understanding concerning the
reason for the check, Wofford stated, "Because I didn't leave, take the trip to
Lubbock that I had talked about taking."
Williams stated that while Fisher was interviewing a witness, Satcher told him
Wofford wanted to see Fisher so he informed him to have Wofford sent to the office.
Wofford came to the office and Williams, who was present throughout the meeting,
said they knew each other and, after talking about mutual friends and cattle, Wofford
stated that he wanted to talk to Fisher about a subpena calling for his appearance
at the hearing. Fisher remarked that it was a coincidence because he desired to
interview Wofford and other welders in connection with the charges that had been
fled by the Union. Wofford said he knew nothing about the matter and did not
want to have anything to do with it. Fisher replied he "couldn't imagine why he had
been subpenaed" if he knew nothing about the case, whereupon Wofford asked,
"if there was any way he could get out of it." Fisher stated he could be forced to
honor the subpena and when he inquired as to what would happen if he did not
appear, Fisher advised him the matter could be taken before the judge. In answer
to Wofford's further inquiry as to whether the judge would compel obedience to
'the subpena, Fisher stated, "If you don't know anything about it and you are not a
material witness the old judge would not have required your appearance and the
new judge should not do so." Although Wofford repeated he knew nothing about
the matter and did not want to attend the hearing, Fisher declared he wanted to find
out if he could be a witness for the Company. -In response to Fisher's interrogation
concerning Williams' presence at the Gibraltar Hotel, Wofford stated that Williams
was not there at the time in question. Fisher also asked if Wofford had heard
1 478 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
any representatives of management, including Satcher, say anything about the Union
and he replied he had not, although he and Satcher'had joked and kidded about the
Union. He then told Wofford he would be a valuable and material witness for the
Company but Wofford persisted he did not want to have anything to do with the
matter and that he had planned, to go to Lubbock the following week to see his
uncle. Fisher asked Wofford "to stay around so that if we need you we can call
you"•and Wofford answered he did not want to be at the plant because Rhea or some-
one else would come out and get him to testify. Fisher repeated his request and
Wofford said he would advise Fisher if he left town. The meeting thereupon con-
cluded and Wofford returned to work.
The next day Wofford telephoned Williams at Fisher's office and requested per-
mission to be off work the following week in order to do some work on his farm.
Williams said he was sure it would be perfectly all right with his foreman and granted
his request. Williams was not certain just how long Wofford was off or when he
returned to work.
Fisher did not testify at the hearing.
Conclusions
On the basis of the foregoing testimony the Trial Examiner finds that Wofford in-
formed Fisher and Williams that he had been subpenaed to appear as a witness
for the General Counsel in the hearing in Case No. 16-CA-671, that he exhibited the
subpena to Fisher and, after professing ignorance of the subject matter and a desire
to avoid compliance therewith, inquired if he "had to go" or "if he could get out of
it." Fisher thereupon remarked that under the circumstances he "couldn't imagine
why he had been subpenaed" and advised Wofford that while he might be forced to
honor the subpena the old judge, who had died, would not have ordered obedience
thereto because he was not a material witness and his successor, the new judge, like-
wise, should not order him to comply. Although Wofford insisted he knew nothing
about the case, Fishei questioned him in respect to Williams' presence at the Gibraltar
Hotel meeting and the occasion when Satcher allegedly made his coercive remarks and
upon receiving favorable answers to his inquiries informed Wofford he would be a
valuable and material witness for the Company. Wofford persisted that he did not
wish to appear at the hearing and further stated that he had planned to take a
trip to Lubbock the week of the hearing. He also related he did not want to work
that week because Attorney Rhea might come to the plant and he wished to avoid
him. After discussing the matter back and forth, Fisher "persuaded" Wofford to
remain in Paris the week of November 15. On Saturday morning, November 14,
Wofford telephoned Williams at Fisher's office and requested permission to be off
the week of November 15, which request was promptly granted by Williams. Wofford
then spent about 3 days working on his farm near Paris, returning home each night
and came back to the plant on Friday, November 20 Admittedly, Wofford did not
appear at the hearing in accordance with the terms of the subpena and was not
excused from attending by the General Counsel. It is also conceded that Fisher did
not call upon Woftord to testify on behalf of the Company. Thereafter, about the
middle of December, Fisher invited Wofford to his office at which time he gave
him his personal check for $45 to reimburse him for 3 days' lost earnings caused
by his remaining in Paris at Fisher's request. Wofford understood the check was
given to him because he abandoned his proposed trip to Lubbock and stayed in
Paris.
There is little, if any, dispute in regard to the facts found above and as it con-
ceded that Fisher and Williams were acting as agents of the Company the only
question to be resolved is whether the conduct thus found constitutes a violation of
Section 8 (a) (1) of the Act as alleged in the complaint.
In essence company counsel argue that there was nothing illegal in the advice
given by Fisher to Wofford, nor was it unlawful for him to compensate Wofford for
time lost by reason of his making himself available as a prospective witness in the
scheduled hearing.
The Trial Examiner is fully convinced that Wofford had no desire to appear as
a witness for the General Counsel and sought Fisher's advice as to how he might
avoid complying with the subpena. The Trial Examiner is equally well convinced
that Fisher was fully aware of Wofford's position from the very outset of their
meeting. The situation thus created was a delicate one with Wofford under lawful
process issued by the General Counsel requesting counsel on his rights and obliga-
tions thereunder from Fisher who was representing the interests of the opposing
party. The circumstances therefore prompted Fisher, as an attorney, to exercise
extreme caution and prudence in conferring with Wofford. Of course, this does
not mean that Fisher was precluded from interviewing Wofford within the permis-
I
THE BABCOCK AND WILCOX COMPANY 1479
sible limits of the issues presented by the complaint . But, manifestly , when Fisher
offered advice and counsel to Wofford on the subject of his rights and obligations
under the subpena , he plainly transcended the bounds of his privilege for it cannot
be said that this topic was even remotely presented as an issue in the case. More-
over, Fisher went even further and gave Wofford the precise counsel he was seek-
ing. The plain import of his advice was that while action could be initiated against
Wofford it would probably be unsuccessful for there was only slight chance that the
-court would order obedience to the subpena since he was not a material witness. At
no time did Fisher ever inform Wofford that it was his obligation as a citizen to
respect the mandate of the subpena duly issued and served by a Government agency,
nor did he suggest that he ask Government counsel to excuse him as witness, if
he had any reasonable grounds therefor . Again, Fisher made no mention of the
fact that Wofford might obtain his own counsel and move to quash the subpena, if
he believed it had been improvidently issued . Instead, Fisher chose to give his own
version of rights arising under subpena process which was to the effect , according
to the testimony of Wofford and Williams, that unless the individual was a material
witness he could ignore the subpena and the chances of enforcing it against him were
remote. It is significant that Fisher himself made the determination that Wofford
was not a material witness for the General Counsel.
Company counsel , in their brief , argue that the advice and counsel thus given
was sound for "It is elementary in our law that a subpena to appear is not enforce-
able where the individual does not know anything about the matters being litigated."
-Counsel cites Overholser v. DeMarcos (149 F. 2d 23 (C. A., D. C.) ), as supporting
this proposition . In that case the petitioner filed a habeas corpus proceeding, in
the United States District Court for the District of Columbia , against the superin-
tendent of a Federal mental institution and from an order granting the relief prayed,
appeal was taken to the circuit court. At the original hearing the petitioner
subpenaed the superintendent and assistant superintendent as witnesses , both' of
whom asked to be excused because they had no personal knowledge of the case and
their hospital duties were heavy. The court acted on the theory that it had no dis-
cretion in the matter and compelled them to attend . In reversing the lower court,
the circuit court unequivocably expressed its opinion on this phase of the case:
Any witness improvidently called may make a showing that he has no relevant
information on which he can testify and that his attendance at the trial would
be a waste of time. On such a showing the court should require a statement
from the party who subpenaed the witness setting out the evidence he expects
to obtain . If it appears that the witness can give no relevant testimony the
court should not require his attendance . In exercising this discretionary power
the court should resolve doubts in favor of the party calling the witness. But
failure to inquire into the matter , where a showing is made that the person
subpenaed has no relevant testimony to give, is an abuse of discretion.
The case, therefore , not only fails to support the proposition for which it is cited,
but in strong language formulates a procedure under which a witness may be excused
by the court , under conditions affording complete protection to the rights of both
the witness and party who subpenaed him. Certainly this is an orderly and laudable
method of procedure . However, had the tactics resorted to in the instant matter been
followed in that case, the district attorney 's office would simply have decided that the
superintendent and the assistant superintendent were not material witnesses therefore
it'would not be necessary for them to respond to the subpenas , but to wait until
attachment or contempt proceedings were initiated , at which time the question of
obedience thereto could be tested. Obviously, such tactics would impede and frustrate
the functions of the court and would not be tolerated . For the same reasons such acts
and conduct should not be approved or sanctioned in an administrative proceeding.
Having determined that Wofford was not a material witness for the General Coun-
sel, Fisher made a further determination that he was a valuable and material witness
for the Company and requested him to be available for the hearing in the event he
needed him . Wofford at first claimed he could not do so because he had planned a
trip to Lubbock at the same time but later stated he wanted time off that week so
that Attorney Rhea could not locate him. However, company counsel concede that
Wofford , after some discussion agreed to forego his trip and to remain in the area
while the hearing was in progress so they could contact him if needed . The Trial
Examiner is convinced that the Lubbock trip was nothing but a flimsy excuse and that
Wofford wanted time off in order to prevent Rhea finding him. The following
morning Wofford telephoned Williams, who was fully cognizant of the situation, and
he immediately granted him leave of absence for I week , without even consulting
his foreman . Wofford thereupon spent 3 days working at his farm , returning home
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the evening . As already stated the Company did not call him as a witness.
Company counsel admits that about 1 month later, Fisher paid Wofford $45 to,
compensate him for time lost in accordance with the above stated arrangements.
It is well settled that the right of employees to testify at Board hearings is a right
guaranteed in Section 7 of the Act. In Sanco Piece Dye Works, Inc., 38 NLRB
690, 725-726, the president of the company conversed with an employee, in the
course of the hearing, and, after discussing the testimony the employee was to give
at the hearing, informed him he did not have to appear as a witness if he did not
desire to do so. When the employee explained he had been served with a subpena,
the president told him, "Aw, you don't have to appear because you are subpenaed"
and offered to obtain an attorney to "get you out of that." The employee refused to
disobey the subpena and testified at the hearing. The Board found that the efforts
to dissuade the employee from testifying clearly interfered with, restrained, and
coerced the employees in the exercise of the rights guaranteed in Section 7 of the
Act and in violation of Section 8 (1) thereof. The foregoing principle was re-
affirmed in Textile Workers Union of America, CIO, et at. (Personal Products
Corporation), 108 NLRB 743. There an officer of the union threatened an em-
ployee, who intended to honor a subpena to testify at the hearing, "that people
would make it pretty tough for her if they won and that he hoped she would testify
the right way." The union contended that Section 7 did not guarantee employees
the right to testify at Board hearings and that threats to dissuade employees from
testifying were outside the purview of Section 8 (b) (1) (A). The Board rejected'
this contention, stating:
We think it clear that participation in proceedings before the Board, whether
in support of or in opposition to the position of a participating labor organiza-
tion, is a right of employees to be exercised for mutual aid, without coercion or
restraint.
Again, the Board fully recognized and protected the right of an employee to freely
participate in its proceedings without fear of threats or inducements Thus, the
Board, in Herbert J. Nichol, 111 NLRB 447, held that threatening statements, in-
cluding threats of violence, made by a representative of a union to an employee
during a recess in a decertification hearing not only might be considered a violation
of Section 8 (b) (1) (A), but "amounted to misconduct of such an aggravated nature
as to constitute ground for suspension from further practice before this Board pur-
suant to Section 102.58 (d) (2) of Subpart C of the Board's Rules and Regulations,
Series 6, as amended." The Board thereupon entered its order barring Nichol from
practicing or appearing before it, either directly or indirectly, for a period' of 6.
months.
The Trial Examiner, therefore, concludes and finds that Fisher and Williams not
only attempted to dissuade Wofford from honoring the subpena but also induced,
encouraged, and assisted him to do so. Their efforts were successful and since
Fisher subsequently paid Wofford $45, the plain inference is, irrespective of any
subjective motive, that this was nothing more than a reward for disobeying the
subpena.
By reason of the foregoing acts and conduct the Company interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in Section
7 and thereby violated Section 8 (a) (1) of the Act.
F. The alleged discriminatory discharges
The complaint alleges that Davis, Hatch, Rainey, and Wofford were discharged
on January 15, 1954, while Owen was terminated on January 18, in violation of
Section 8 (a) (3) of the Act.10 The answer, as amended, avers that the employees
were discharged or laid off because of economic conditions.
Each of the discriminatees testified that at the time of his initial employment he
was inexperienced in the type of work to be performed at the plant and that following
a training or schooling course he was assigned to a particular job. Thereafter each
received periodic increases and was employed continuously until the date of his dis-
charge. Owen and Rainey said that on one occasion Jerry Reis, of the inspection
department, told them their work was good, while Davis related that Eagon once
told him his work was satisfactory and if he kept his nose clean he would be all
"John Babb was also included in this allegation but since he did not appear at the
hearing and the General Counsel adduced no evidence concerning his discharge the Trial
Examiner, at the conclusion of the General Counsel's case, dismissed the complaint as
to him.
THE BABCOCK AND WILCOX COMPANY 1481
right.: Hatch related that although there were no serious complaints about his work,
he was told, seemingly by Poling, that he could show improvement. Wofford was
not questioned along this line.
As appears above, the record fails to disclose any activities whatever on the part
of the Union other than the one meeting held on August 22, hence it cannot be said
that any vigorous or prominent organizational campaign was conducted among the
employees. The testimony of Owen and Rainey shows only that they attended the
meeting and signed union cards. Wofford merely said he thought he was a member
of the Union in November 1953, although it is clear that he, too, was present at the
Gibraltar Hotel meeting Davis and Hatch, in addition to attending the meeting and
signing union cards, stated they were members of the volunteer organizing committee
and received or obtained approximately 15 and 40 cards, respectively. However,
neither of these individuals described the functions or operations of the committee
nor did they give any persuasive account of their activities as members thereof.
Thus, Davis at one point stated he signed up employees "all over town" and later
said that the only time he engaged in such activity was during his luncheon hour at
the plant. There is no assertion on his part that any representative of management
was present while he was so engaged Hatch merely stated that he accepted cards
from employees.
The Company's evidence shows that the reduction-in-force program and ensuing
layoffs were initiated under the following circumstances. As a prelude thereto,
Grubb stated that production at the plant was, and is, under the control of Vice
President W. D. Sullivan and Gerald McDermott, whose headquarters are at the
Barberton plant, the former being in charge of production facilities for the Company's
boiler division and the latter being in charge of the general production control de-
partment. In brief, the general production control department at Barberton allo-
cates work to various plants and furnishes drawings, estimates, and other data con-
cerning a particular job as well as charts or graphs showing the man-hour load of
work, which reflects the number of man-hours required during given periods and,
in turn, the specified plant is presumed to have men available to perform the work
allocation. At the Paris plant the foregoing data is submitted to James H. Hackman,
plant production manager, who then prepares a schedule as to the starting and
shipping date of the allocation or contract and a breakdown showing the weekly
man-hours required to complete the work. Of course, the plant ordinarily has more
than one contract assigned, so Hackman normally scheduled a new contract every
week or two in order to keep the workload in balance and provide a constant flow
of work through the plant. The work schedules, as stated by Hackman, fairly ac-
curately project the approximate workload for the ensuing 6 months and copies of
these schedules were submitted to Barberton once a month. Hackman stated the
number of contracts being worked on simultaneously varies and at the time of the
hearing the tube department was working on 7 contracts, the header department 5,
and the machine department 6. Grubb was kept advised of production schedules
and Hackman followed the progress of each contract by holding weekly meetings
with the foremen in charge of the production departments.
Grubb testified that in November 1953, Sullivan and McDermott came to Paris
and conferred with Beckman, Hackman, and himself in regard to the workload and
McDermott expressed the opinion that the plant had about 5,000 excess man-hours
per week. Sullivan stated that he wanted to check further into the matter and since
it was near the end of the year he did not wish to make any immediate curtailment
in operations. Hackman placed the meeting as about November 11, and said that
McDermott informed the group that work was gradually diminishing throughout the
entire Company and there was no indication that any additional work would be
allotted to the plant. In view of this condition McDermott stated the plant was
"overmanpowered" and there was some talk about reducing the workweek, which
was then 50 hours, as well as the number of production employees. Around January
1, 1954, Grubb said the company records showed that they had approximately 5,000
excess man-hours per week and many employees spent their time cleaning and paint-
ing machinery and working in the yard in order to keep busy. About January 3,
Sullivan returned to Paris and instructed Beckman and Grubb to reduce the weekly
hours from 50 to 45 and to lay off 10 production employees. As appears above
the Company had some 413 production employees at that time. About January 8,
Beckman called in the department foremen and informed them of the proposed re-
duction in weekly hours and that 10 employees were to be laid off; 7 in the tube
department, 2 in header, and 1 in the machine department. Beckman instructed
the foremen that they were to select the employees to be terminated and in making
the selections they would be guided by stated factors which the parties stipulated
were as follows:
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Productive ability (quality and quantity of work)
Job knowledge (his own and other jobs)
Attitude (cooperativeness)
Human aspects (married, other income, other skills)
Length of service
Necessity to operation (cost, investment in training)
After determining the employees to be laid off the foreman would submit the names
to Beckman. Williams related that the layoffs amounted to approximately 2yi
percent of the total workers in each department and the terminations plus the re-
duced workweek, which was put in effect on January 11, resulted in a saving of
about 2,500 man-hours per week.
Hackman presented graphs showing the workload at the plant and the man-hours
required to perform the work on a weekly basis and as neither the graphs nor his
testimony were questioned or disturbed in any substantial respect the Trial Examiner
accepts and credits this evidence, which discloses:
Month Scheduled
man-hours
Number of
men
needed n
Actual man-hours
expended
1953
July-------------------------------------------------------- 15, 250 338 14,000
August ---------------------------------------------------- 15, 250 320 15,500.
September---------------------------------------------------- 16,250 340 14,250.
October------------------------------------------------------- 14,600 305 15,550
November--------------------------------------------------- 15, 500 330 15,000
December---------------------------------------------------- 15, 400 325 13,9()0
1954
January------------------------------------------------------
12, 750 310 13,600
February------------------------------------------------ 11,250 280 12,000.
March------------------------------------------------------- 10, 100 261 9,500
April -------------------------------------------------------- 9, 250 240 Not available
May--------------------------------------------------------- 9, 250 250 Do.
June-------------------------------------------------------- 8, 750 222 Do
Eagon stated that he had 2 shifts working in the machine department, 5 on A
shift and 6 on B shift, so he decided to lay off 1 man on the B shift in order to
balance his department. Eagan said all 6 men were,about the same insofar as pro-
duction was concerned and he selected Davis because he could operate only 1 ma-
chine, an engine lathe. While 2 men, Smith and Beeler, had less service than Davis
and operated only 1 type of machine, turret lathe, he kept them for the reason that
they were on production work making welding rings for the tube department.
Davis had had no experience on the turret lathe and Eagon stated it requires about
1 month to train a man on this operation. Smith and Beeler were laid off about
March 1954. Another employee, Ingram, was on the engine lathe but he also ran a
turret lathe and milling machine and had longer service than Davis. Sometime be-
tween January 8 and 13, Eagon notified Beckman that Davis had been selected for
termination. While Eagon had observed some men passing out handbills at the
plant the previous summer and had heard rumors in town about a union meeting,
he did not know that Davis was a union member or had engaged in any union ac-
tivity. At the time of the hearing there were eight men in the machine depart-
ment.
Poling had 84 men on both shifts in the header department and was told to lay off
2 of them in accordance with the above-mentioned formula. Poling had about 14
classifications of employees and decided to make the reduction among the drill
press operators because work in that classification was declining and he had 14 op-
erators, an excessive number. Accordingly, he selected Hatch and Babb for termina-
tion and so informed Beckman about January 13. Poling stated that although Hatch
was 1 of the oldest operators in point of service he was 1 of the lowest in production,
his breakage of tools and equipment was very high, he could perform only I opera-
tion, and was single and lived with his father. In addition Hatch complained that
his machine pulled too hard although the operator on the other shift made no such
"Determined by taking the number of production man-hours scheduled for the week
divided by the basic workweek
THE BABCOCK AND WILCOX COMPANY 1483
complaint and inspection of the machine failed to reveal any defects . Hatch ad-
mitted that in November he complained his drill was out of balance and as a con-
sequence he suffered a sore arm for which he received insurance benefits. Poling
conceded that other operators had some breakage but not as great as Hatch and
that at times he told him he was doing good work. Poling was unaware of Hatch's
membership in the Union or that he had engaged in any activities on its behalf. Two
subsequent layoffs were made by Poling about February and April and at the time
of the hearing he had 73 employees in his department including 8 drill press operators.
Cox had 279 employees in the tube department and received similar instructions.
to lay off 7 men. There were about nine classifications of employees in the depart-
ment and, after considering all these job categories , Cox decided to make his lay-
offs among the welders , helpers, and layout men. At that time Cox had 48 pressure
welders, which was an excessive number for the workload , so he selected 4 of this
group for termination , namely, Wofford, Rainey, Owen , and Bishop because they
were not making pressure welds . In addition he terminated Miller, layout man,
and Lane and Kelly, who were employed as helpers.
Wofford was originally trained and employed as a fitter but when he expressed
dissatisfaction with that job and asked for welding work his request was granted and
he later became a puddle welder, which paid $1.28 per hour. However, his work
proved unsatisfactory and he was put back to the fitting job. Cox said Wofford
complained that he needed more money so he decided to give him the opportunity
to learn pressure welding. After about 3 weeks ' training Wofford qualified as a
pressure welder but since there was no work of this type he was assigned to puddle
welding although he received the rate of a pressure welder, $1.48 an hour. Wofford
was thus employed for a few weeks prior to his discharge . Cox said he selected
Wofford primarily because of his attitude and the fact that he was performing work
in a lower job classification at a higher rate of pay . With respect to his attitude
Cox stated that while Wofford was a likeable fellow , and he tried to find a place
for him, he did not take his work seriously but engaged in horseplay and annoyed
fellow employees . Cox also gave consideration to the fact that Wofford had less
continuous seniority than any of the qualified pressure welders, his wife was
employed , and he had some cattle . Cox had no knowledge concerning his union
membership or that he had, or was, engaging in any union activity.
Rainey and Owen , according to Cox, were qualified pressure welders but doing
puddle welding , the production and quality of their work was about average, and
seniority was approximately the same among all pressure welders Rainey and
Owen , as well as Bishop , were selected principally because they were employed
on puddle , welding - and paid as pressure welders. At times Rainey and Owen, oc-
casionally accompanied by other men, complained to Cox and his assistants about
the pay scale and also talked along the same line to groups of workers . Since this
activity occurred during working hours it was necessary to exercise rather close
supervision over them in order to prevent their interfering with the work of other em-
ployees. Cox was unaware of any union activities on the part of Rainey or Owen
or that they were members of the Union.
After making his selections Cox submitted a list containing the names of seven em-
ployees to Beckman.
As appears above, Cox had 279 men in his department in January 1954. Follow-
ing the January layoff, Cox terminated about 20 men in February and 40 in April.
At the time of the hearing he had 153 employees , 39 of whom were welders.
Williams stated that shortly before January 15 , Beckman gave him a list of em-
ployees to be laid off and told him that he and Grubb should advise the individuals
of their terminations . All of the employees were discharged on Friday , January
15, except Owen who was terminated on Monday, January 18 . Williams explained
that the individuals were instructed to report to the personnel office on January
15 through notices attached to their timecards but through oversight or error no
such notice was placed on Owen 's card , consequently he was terminated the next
workday, which was Monday, January 18. Williams and Grubb interviewed the
dischargees separately and informed each of them that the Company had to reduce
its force by 10 men, that he had been selected for termination by his foreman, and if
the Company began hiring workers in the future he would be given consideration.
The Company has hired no employees since that date.
Grubb testified that about 40 men were laid off in February, at which time the
workweek was reduced from 45 to 40 hours and later, about April , 70 more workers
were separated.
The parties stipulated that during the period from January 1, 1954 , to January 20,
1955, the "working force" at each of the plants was materially reduced through volun-
tary and involuntary separations , as follows:
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant
Number of
employees
separated
Estimated
number of
employees as
of January 1,
195411
Barberton------------------------------------------------------------------ '3 1, 107 3,500.
Alliance- --------------------------------------------------------------------
124 Not stated.
Wilmington----------------------------------------------------------------
363 1,000.
West Point------------------------------------------------------------------
115 700
Brunswick ---------------------------------------------------------------- 423
800
Paris -----------------------------------------------------------------------
171 413
Conclusions
The first question to be determined is whether the Company 's decision to reduce
its working force was motivated by a desire to interfere with the right of its em-
ployees to organize or was prompted by lawful considerations.
While the record is extremely sketchy on the, subject , the Trial , Examiner, will
assume that the Company had knowledge of some organizational activities at the
time it considered and decided to curtail operations , since knowledge might techni-
cally be inferred from the finding of single unfair labor practice in Case No.
16-CA-671 and/or the November interviews of prospective witnesses in connection
with that matter.
However , the General Counsel adduced no evidence which even slightly indicates,
or warrants the inference , that the reduction-in-force program was adopted for the
purpose of hindering or preventing unionization of the plant . Moreover , the credible
and undisputed evidence introduced by the Company overwhelmingly proves the
contrary to be true. Therefore, the Trial Examiner , on the basis of the accredited
testimony of Grubb , Hackman, and Williams, finds that declining business condi-
tions at the plant, as well as throughout the company system , necessitated a curtail-
ment of operations in January 1954 . Hence, in adopting the plan the Company
did no more than exercise a prerogative of management and the Act does not attempt
to regulate the employer 's control of his business under such circumstances. Ap-
palachian Electric Power Company v. N. L. R. B., 93 F . 2d 985, 989 (C. A. 4);
N. L. R. B v. Southeastern Pipe Line Co, 210 F. 643, 645 (C. A. 5).)
The next issue to be resolved is whether the Company applied and carried out the
reduction -in-force plan in a discriminatory manner in order to eliminate members
or proponents of the Union . It is well settled that to sustain a violation of this
character the record must first show that the Company knew, or was chargeable with
knowledge , that the discriminatees were members of the Union or active on its behalf,
at or prior to the date of their discharge . As previously stated there is no evidence
that the Union conducted any open campaign for members , nor is there any indica-
tion that organization was even a topic of conversation among the workers at the
plant. In fact the alleged discriminatees did nothing more than sign cards and
attend one meeting , although there is some vague and general testimony from Hatch
and Davis that they attended 2 or 3 meetings and accepted signed cards from em-
ployees. As the General Counsel did not produce any testimony showing unlawful
conduct or hostility toward organization for some 2 months prior to the terminations
he must, perforce , rely upon the single statement allegedly made by Satcher the
preceding August and during the November interviews . The Trial Examiner has
already found that Satcher did not utter the statement ( supra ), but even if he did it
would surely require great imagination to believe that his broad prediction fostered
and thrived for the ensuing 5 months and , at that late date, finally played an im-
portant factor in the selection of employees to be separated in an economic layoff.
Equally unimpressive is the testimony of Rainey , Owen , Davis, and Hatch concerning
their respective interviews in November . Further the act of interviewing these
individuals loses any significance insofar as knowledge of union membership is con-
cerned when it is considered that they were only 4 out of 150 to 200 employees
similarly questioned in a short space of time and none of them were called as wit-
'2 As estimated by Grubb
"The transcript, page 1582, ei roneously states the figure to be 107 On April 1, the
Trial Examiner issued an order, which lie caused to be served upon counsel, to show cause,
if any there be, why the foregoing correction should not be made No opposition has been re-
ceived, so the record is now corrected. A copy of the order is attached to the exhibits,
marked Trial Examiner's Exhibit No. 1
THE BABCOCK AND WILCOX COMPANY - - - - - 1485
fiesses in the hearing in 16-CA-671. On the other hand each of the foremen spe-
cifically denied that he had any knowledge in respect to union membership or
activity on the part of the particular employee or employees in his department. In
passing upon the sufficiency of the evidence to impute knowledge of an employee's
union membership to the employer, the Court of Appeals for the Fifth Circuit stated,
in N. L. R. B. v. National Paper Company, 216 F. 2d 859, 862:
that at least some legally justifiable inference of employer knowledge of a
dischafgee's union membership is an essential prerequisite to a valid finding of
discriminatory discharge therefor.
In the opinion of the Trial Examiner the record herein is insufficient to warrant
a finding that the Company knew, or was chargeable with knowledge, that the alleged
discriminatees were members of the Union or engaged in any activities on its behalf.
In reaching this determination the Trial Examiner has considered the Wofford-Fisher-
Williams incident and concludes that the unfair labor practice there found is of a
separate and independent nature and is wholly unrelated to the issue of whether the
Company unlawfully discharged the employees named herein. For these reasons
the Trial Examiner finds that the employees were not unlawfully discharged.
But granting the Company knew of their union membership, still there is no sub-
stantial evidence to support the conclusion that they were discriminatorily selected
for discharge. Apart from the patent weakness of the General Counsel's case, the
affirmative evidence introduced by the Company conclusively shows that neither union
nor antiunion considerations had any bearing upon the termination of these employees.
The Trial Examiner accepts the testimony of Grubb and Williams and finds that
Beckman instructed the foremen of the layoff and to select employees for separa-
tion in accordance with the standards or guides detailed above. Eagon, Poling,
and Cox described the manner in which they selected the employees and, as their
testimony was not contested and was not shaken on substantial points on cross-
examination, the Trial Examiner credits and accepts their version of the methods
followed in effectuating the layoffs.
In brief the General Counsel argues that while economic conditions may have
warranted a reduction in personnel at all plants the Company did not follow a non-
discriminatory plan for making the layoffs at the Paris plant and then proceeds to
advance reasons why other employees should have been selected instead of the
alleged discriminatees . Motive is supplied by asserting company hostility to organi-
zation 'based upon' the so-called illegal interrogations of November, and knowledge
of, union activity is presupposed on the contention that the Company knew the dis-
cliargees had attended the August meeting, therefore it was in a position to eliminate
the ``union leaders'} in each instance . In view of the findings herein it is unnecessary
to further discuss the question of motive or knowledge. Unquestionably, the stand-
ards or guides permitted great flexibility in choosing the employees to be laid off but
clearly there was nothing illegal about the manner in which they were applied. It is
well settled that the Act does not touch the normal exercise of the right of an em-
ployer to select or discharge his employees but is directed solely against the abuse of
that right by interfering with the countervailing right of self-organization. (Phelps
Dodge Corporation v. N. L. R. B., 313 U. S. 177, 187.) Suffice it to say that the
subsequent layoffs in February and April totaling about 110 men, plus the fact that
no new workers were hired after the initial reduction in force, completely negates
the idea that the Company discriminatorily discharged the 5 employees in question
merely because of their union membership and nothing more. (N. L. R. B. v.
Russell Manufacturing Company, 191 F. 2d 358, 359 (C. A. 5); cf. N. L. R. B. v.
Cen-Tennial Cotton Gin Company, 193 F. 2d 502, 504 (C. A. 5).) The Trial
Examiner so concludes and finds.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The` activities of the Respondent described in section I, above, occurring in con-
nection with its operations described in section III, 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
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action which the Trial Examiner finds will effectuate the policies of
the Act
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the unfair labor practices found are based upon acts directed against a
single employee, nevertheless, the conduct is of such a character that it affects funda-
mental rights and privileges guaranteed to all employees of the Company and where,
as here, the natural and expected consequence of such acts is to delay, impede, and
obstruct the orderly administration of the Act, it is necessary that a cease and desist
order be entered so as to prevent any repetition of the specific misconduct found
herein and any like or related acts. However, the Trial Examiner believes that the
facts herein do not compel the issuance of a broad cease and desist order and that
the policies of the Act will be effectuated by prohibiting the Company from inter-
fering with the rights of its employees in any like or related manner. It is so
recommended.
It is further recommended that the complaint be dismissed, except as to the unfair
labor practices found herein.
Upon the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent at its Paris, Texas, plant occur in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning, of Section 2 (5) of
the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices other than those
specifically found herein.
[Recommendations omitted from publication.]
Channel Master Corporation and Amalgamated Workers Union,
Local,139, International Union of Doll and Toy Workers of U. S.
and Canada, AFL-CIO,' Petitioner . Case No. 2-RC-7711.
December 23,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Benjamin B. Naumoff, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations 2 involved claim to represent certain em-
ployees of the Employer.
I The AFL and CIO having merged we are amending the identification of the Union's
affiliation.
s The United Steelworkers of America, CIO, and the International Union of Electrical,
Radio and Machine Workers of America (IUE-CIO) were permitted to intervene. The
motion of the tUE-CIO of October 24, 1955, to withdraw its intervention is hereby granted.
114 NLRB No. 233.