The E. W. Buschman Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 699 (N.L.R.B. 1965)

THE E. W. BUSCHMAN COMPANY, INCORPORATED 699
The E . W. Buschman Company, Incorporated and Charles Bole,
Bernard Feltner, and Herman Clouse . Cases Nos. 9-CA-
2924-1, 9-CA-2924-2, and 9-CA-&924-3. June 28, 1965
DECISION AND ORDER
On April 14, 1965, Trial Examiner William F. Scharnikow issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the Respondent , The E. W. Buschman Company, Incorporated, Cin-
cinnati, Ohio, its officers , agents, successors , and assigns , shall take the
action set forth in the Trial Examiner 's Recommended Order with the
following modifications : 1
1. Substitute the following paragraph for paragraph 1(a) of the
Order :
"(a) Maintaining any rule prohibiting employees from engaging
in union solicitation on plant premises during nonworking time,
including break periods."
2. Insert the following as paragraph 2 (c) of the Order and reletter
the subsequent paragraphs accordingly.
"(c) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
i The telephone number for Region 9, appearing at the bottom of the Appendix attached
to the Trial Examiner's Decision, is amended to read: Telephone No 6'84-3627
153 NLRB No. 65.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
3. Substitute the following paragraph for the first paragraph of the
notice :
WE WILL NOT prohibit employees from soliciting on plant prem-
ises during nonworking time, including break periods, and our
no-solicitation rule is rescinded to that extent.
4. Add the following immediately above the signature line at the
bottom of the notice :
NoTE.-We will notify the above-named employees if presently
serving in the Armed Services of the United States of their right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A consolidated complaint issued by the Regional Director on behalf of the General
Counsel in the above-entitled cases alleges, but the Respondent, The E. W. Buschman
Company, Incorporated, in its answer denies, that the Respondent committed unfair
labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3)
and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act.' With respect to the unfair labor practices, the com-
plaint alleges that: (1) On or about July 23 and 24, 1963, and at all material times,
Charles Bole, Bernard Feltner, and Herman Clouse were employees of the Respondent
and stewards of Local 522, International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, herein called the Union, which was then the exclu-
sive bargaining representative of the Respondent's employees for purposes of collective
bargaining; (2) on or about July 23, 1963, Charles Bole prepared an employee
petition for the removal of International Representative Patrick Williams from bar-
gaining negotiations between the Respondent and the Union; (3) on or about July 24,
1963, Bole, Feltner, and Clouse, having signed and procured the signatures of
other employees to the petition, placed the petition on a table in the Respondent's
plant so that additional employees might also sign it; (4) the Respondent, by main-
taining and enforcing a shop rule generally prohibiting solicitation without the
Respondent's prior permission and by removing the aforesaid petition from the table
in the plant, committed unfair labor practices within the meaning of Section 8(a)(1)
of the Act; and (5) the Respondent, by discharging Bole, Feltner, and Clouse, on
July 24, 1963, and refusing thereafter to reinstate them, all because they prepared,
signed, and circulated said petition, also committed unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
Pursuant to notice, a hearing in the consolidated cases was held before Trial
Examiner William F. Scharnikow at Cincinnati, Ohio, on March 5 and 6, 1964.
The General Counsel and the Respondent appeared by counsel and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. At the conclusion of the General Counsel's
case-in-chief, I granted a motion by the Respondent to dismiss the allegations of the
complaint that the discharges of the three men were violative of Section 8(a)(3)
of the Act because the evidence did not disclose that they encouraged or discouraged
membership in the Union. In all other respects, I denied the Respondent's motion
1 The charges of each of the individual Charging Parties were filed on July 25, 1963,
and served on the Respondent by registered mail on July 26, 1963 The Regional Direc-
tor issued an order consolidating the cases , a consolidated complaint , and a notice of
hearing , and caused them to be served upon the Respondent on January 17, 1964. The
Respondent filed its answer on or about January 22, 1964.
THE E. W. BUSCHMAN COMPANY, INCORPORATED 701
for a dismissal of the complaint , thereby retaining , inter alia, the question of whether
or not the discharges were violative of Section 8 (a) (1) of the Act. Since the con-
clusion of the hearing I have received and considered briefs from counsel for the
General Counsel and for the Respondent.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, The E. W. Buschman Company, Incorporated, an Ohio corpora-
tion with its principal office and plant in Cincinnati, Ohio, is there engaged in the
manufacturing and installation of mechanical and electrical conveyors. During the
representative year preceding the issuance of the complaint, the Respondent shipped
its products of a value exceeding $50,000 directly to points outside the State of Ohio.
I find that the Respondent is an employer engaged in commerce and in operations
affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
Local 522, International Association of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, herein called the Union, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Charles Bole, Herman Clouse, and Bernard Feltner were old employees of the
Respondent . Bole had been employed for 18 years and Clouse and Feltner for 12
years. From 1961 until the three men were discharged on July 24, 1963, Clouse
was the chief shop steward and Bole and Feltner were assistant shop stewards for the
Union with whom the Respondent had contracts covering its employees since at
least 1951. As stewards, the three men served as the Union's bargaining committee
with Paul Gordon, the business agent, in negotiations held with the Respondent's
representative on July 16, 18, and 23, 1963, toward a contract to succeed the current
contract which was to expire at midnight on July 23, 1963. At the bargaining meet-
ing on the afternoon of July 23, Patrick Williams, an International representative,
joined the Union's negotiators and the Respondent submitted to them an offer which,
if accepted, would have settled the contractual issues which still remained. The
meeting of July 23 ended with an understanding that another bargaining session
would be held on July 25.
On the evening of July 23, Williams, the International representative, presided at
a meeting of the Respondent's employees to whom the Respondent's offer was then
submitted. During the meeting, a motion to reject the Respondent's offer was passed
by the employees. A motion was then made by Feltner and seconded by another
employee for a "tentative" strike vote. But Williams refused to put the strike motion
to a vote and adjourned the meeting. When the men reached the street upon leaving
the meeting hall, 25 or 30 of them, including Bole, Feltner, and Crouse, engaged in a
discussion of Williams' conduct and whether they could have him excluded from
further contract negotiations. Bole said he would check the Union's constitution
to see if it could be done by a petition.
By the following morning, July 24, 1963, Bole had prepared the following peti-
tion on a lined, yellow paper, 81h inches by 13 inches, with space left at the bottom
for employees to sign:
We the undersigned, members of Local # 522 International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO, and shop employ-
ees of the E. W. Buschman Co., hereby petition the Local #522 Business Agent,
Mr. Paul H. Gordon, and the General President of the International Association
of Bridge, Structural and Ornamental Iron Workers, that one Mr. Patrick
Williams not be present at any future meetings on contract negotiations between
the E. W. Buschman Co. and Local #522.
Bole, a layout man in the structural steel department , brought the petition with him
to work about 7:30 a.m on Wednesday, July 24, 1963. Most of the employees,
including Bole and Feltner (a second-class welder in the gravity department), were
scheduled to begin work at 8 o'clock, the regular starting time. But, by special
arrangement with Foreman Tod Conner of the gravity department, Clouse, a layout
man in that department, had begun to work at 7 o'clock. After Bole went first to
his own bench in the structural steel department, he took the petition to Clouse's
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desk. Clouse interrupted his work for 3 or 4 minutes, read the petition, approved it,
and signed it as chief steward. Bole and Feltner then also signed the petition as
assistant stewards and Bole left it on a corner of Clouse's desk where 17 additional
employees signed it and where it remained until the 3-minute warning whistle
before the work of the plant was to begin. Bole then took the petition to his desk
in the structural steel department where he locked it in his drawer until, at noon,
upon going out to the bank at the beginning of his half-hour lunch period, he
brought it back into the gravity department, placed it on a desk, and asked Larry
Smith, another employee, to keep his eye on it until he returned.
Before Bole came back, Superintendent John Graziani passed through the gravity
department during the lunch period, saw the petition, read it and, going to his office,
returned with the Respondent's attorney, Nicholas Bauer, who was visiting Rudy
Vogt, the Respondent's president. Bauer read the petition and, upon being told by
employee Smith that Bole had left it there, Bauer asked Smith to tell Bole he was
taking the petition. Bauer and Graziani thereupon took the petition up to the
superintendent's office.
When Bole returned, he was told by Smith that Bauer had taken his petition to
the office. Moreover, Bole, Clouse, and Feltner were told by other employees that
their timecards had been removed from the rack. Finding this to be so, the three
men went to the superintendent's office where, on opening the door, they found
President Vogt, Superintendent Graziani, and Attorney Bauer, who told them to
wait outside. In a short time, Foremen Conner of the gravity department and
Richard Dasch of the structural steel department entered the office. Within another
few minutes, the foremen came out again, Dasch with Bole's terminal check and
Conner with the checks of Feltner and Clouse, and, giving the men the checks, told
them they were discharged. When the men asked why, they were told, in substance,
by the foremen or by Graziani or Bauer who came out of the office after the foremen
that, as Graziani testified, they were discharged "because they had created disunity
among their employees and were not doing their work," and that they would be
advised by letter of the full bases for their discharges.
There is no dispute as to the foregoing facts. But despite appearances, the Respond-
ent denies that it discharged the three men because of their role in preparing the
petition and securing the signatures of other employees thereon. Through its wit-
nesses, the Respondent asserts that, for quite unrelated reasons which developed
early in the morning of July 24, President Vogt and Superintendent Graziani had
actually decided in a meeting with Foremen Conner and Dasch in the superintendent's
office about 10 o'clock that morning to discharge the three stewards and give them
their notices and terminal paychecks during the noon lunch period, and that, although
President Vogt admitted there were rumors of the circulation of a petition, none of
the Respondent's representatives knew what had happened at the union meeting the
previous night except that the Respondent's contract offer had been rejected; nor,
according to their testimony, did they know what the petition contained until Super-
intendent Graziani actually saw and read it and Attorney Bauer picked it up and
took it into the office during the noon lunch period. According to the Respondent's
witnesses, Vogt and Graziani had decided about 2 hours earlier than this to discharge
the three men because, not only had their work and attitudes been unsatisfactory
for some time in spite of repeated reprimands and warnings, but on the morning of
July 24, with the union contract still hanging fire and with the Respondent faced with
the problem of completing work in the gravity department and meeting delivery
dates that week, the three men had failed to remain at their assigned stations and
do their work and had roamed the plant, speaking to other employees in an appar-
ently successful attempt to persuade employees in the gravity department not to
work overtime that night as they had promised they would. In formally summarizing
these reasons for discharging the men in the promised letter which it mailed to
them on July 26, the Respondent- (a) Charged all three of the men with "creating
disunity among fellow employees" and "failure to remain at your work station during
working hours"; (b) charged Bole and Clouse with an "insubordinate attitude toward
your immediate supervisors"; (c) charged Bole, in addition, with "utter disregard
of your superiors"; (d) charged Clouse with "failure to do your work properly for
which you were warned repeatedly," "visiting the nurse repeatedly during working
hours and not doing your work," "failure to report your job time correctly," and
"performing your work in a non-diligent manner"; and finally (e) charged Feltner
with "refusing to work overtime after agreeing to do the same" and "trying to per-
suade other employees to refuse to work overtime after they had agreed to do the
same " In addition, in the letter to each of the men, the Respondent asserted,
"You have not been discharged because of any of your Union activities, or a result
of your being a Steward for the Union."
THE E. W. BUSCHMAN COMPANY, INCORPORATED 703
Bole, Clouse, and Feltner duly protested their discharges by filing grievances under
the Union's and the Respondent's contract which provided for a three-step grievance
procedure followed, at the request of either of the parties to the contract, by sub-
mission of unresolved grievances to "final and binding" arbitration, the expenses of
which were to be borne equally by the Union and the Respondent. The grievances
not having been settled by resort to the three steps provided, the Union and the
Respondent agreed on or about August 6, 1963, to arbitration and the separate repre-
sentation of the three discharged men by their own attorney. Testimony, reduced
to a transcript of 1,250 pages, was taken before the arbitrator on five separate dates
up to and including October 31, 1963, when, agreeably to all concerned, a continua-
tion of the hearing was scheduled for November 16, 1963. On November 14, however,
the Union notified the Respondent and the arbitrator by letter that it was "with-
drawing from the arbitration case . . . and considers the case is closed."
The arbitrator thereupon canceled further hearing and, in a memorandum issued
by him on November 21, 1963, advised the Respondent and the Union of his ruling
that he was dismissing the case "with no decision on the merits of the grievances."
By letter to the arbitrator dated December 4, 1963, the Respondent's attorney pro-
tested this decision , arguing that the withdrawal of the Union from the arbitration
case required the arbitrator to "dismiss the grievances involved and to find in favor
of the Company." But on December 19, in a letter to the Respondent's attorney
and the Union, the arbitrator rejected this argument and confirmed his ruling. It
thus appears that the arbitration proceeding produced no decision on the merits of
the men's grievances and that, contrary to the argument of the Respondent' s counsel
before me, the arbitration proceeding does not in any way bar or affect the determina-
tion of the issues in this complaint proceeding. Accordingly, whether there have
been violations of the Act requiring a remedy must be determined purely upon the
evidence in the present case.
Before turning to a further general consideration of this evidence affecting the
propriety of the Respondent's discharges of the three men on July 24, 1963, one
other matter may first be settled. The complaint alleges, as I have noted, the
Respondent's maintenance and enforcement of a shop rule generally prohibiting
solicitation in the plant for any purpose without the Respondent's prior permission,
as an interference with the employees' rights under Section 7 of the Act and therefore
as an unfair labor practice within the meaning of Section 8(a)(1). Such a rule did
exist 2 and. in his brief, counsel for the Respondent admits that its wording may con-
stitute a "technical violation of 8(a)( I) of the Act." I find such a violation in the
breadth of the proscription of solicitation even though I note, as the Respondent
in effect points out, that there is no evidence that the rule was enforced in order to
interfere with Respondent's employees' activities under Section 7 of the Act and
that the Respondent has not relied upon it as a justification for the discharge of the
three shop stewards.
B. The Respondent's criticism of the three stewards' performances
and attitudes before July 24
In view of the nature of the evidence and the length of each of the steward's employ-
ment by the Respondent, it is surprising that the Respondent should rely to any extent
upon the three men's previous performances and attitudes as explanatory of their
summary discharges on July 24, 1963. For the evidence is not at all persuasive of
the position thus taken by the Respondent.
The Respondent charged all three men generally with repeated failure to remain
at their work stations for a long period before July 24, with consequent effect upon
the quantity and quality of their work. But the evidence shows that they were
required, both by the nature of their work and by their activity as union stewards, to
leave their benches and go to other parts of the shop. In this setting, Foreman Dasch
testified that for 11/z years he had reprimanded Bole "once a week, twice a week;
maybe three times a week" for "being away from his work station" or "for too much
shooting the breeze ... or too much talking." But Dasch also admitted that he did
this also in the cases of about half the,30 or 40 men under him. Foreman Conner,
too, testified that he had spoken to Feltner and Clouse in his department "at times ...
once a week" and that, although he referred in his testimony to his remarks as being
2 The rule read as follows :
12 SHOP CONDUCT:
Conduct of a nature listed below is not permitted , and if indulged in is considered
cause for suspension or discharge:. . . .
18 Soliciting or collecting contributions for any purpose whatsoever on our Com-
pany premises without the prior approval of management.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"reprimands ," what he actually did was to ask the men "if they could do a better type
of work, a better class of work , and more," without asking them directly to stay at
their desks "because [he knew] that their work would be through the different parts
of the department ." This was all the direct evidence as to the extent to which the
Respondent contends the three men were away from their work stations , although
Superintendent Graziam in his testimony made the bald assertion that this was one
of the reasons for Clouse 's discharge , and in a typed letter of reprimand addressed to
Clouse, issued by the Respondent more than a year before his discharge ( i.e., on
April 4, 1962 ) but actually arising out of other matters which will be discussed in
another connection , the Respondent cautioned Clouse to remain at his work station.
On the other hand, according to the substance of their testimony , none of the three
stewards was "reprimanded " or questioned by the Respondent 's representatives to
any substantial degree for being away from their work benches. Bole testified that
about a month before his discharge , he was reprimanded for being away from his
work bench while getting parts and supplies but was otherwise not reprimanded for
absence from his work bench except twice by Foreman Dasch for failure to check out
with the office on nonproductive time ("N.P -84") while handling union business.
Feltner testified that he had only two reprimands , one about 4 or 5 months and another
about 3 months before his discharge . Finally, according to Clouse, the only com-
plaints that were made about his being away from his worktable were in connection
with his visits to the nurse in the first -aid room. It appears from the evidence that
Superintendent Graziam did complain to Clouse about his numerous visits to the
first-aid room in 1962, but not in 1963. The Respondent , however, submitted in evi-
dence admission slips initialed by Foreman Conner with his notations of the times of
Clouse's leaving and returning to work, all of which showed that in the half year of
1963 up to the date of his discharge , Clouse visited the first-aid room 183 times for
periods ranging for the most part from 2 to 10 minutes ( for such matters as getting
aspirin or bandaids , treatment of skinned knuckles , removable of splinters, and
treatment of an upset stomach ), and a much lesser number of instances for periods
ranging from 15 to 30 minutes ( for example , for repeated attention to a broken finger,
removal of foreign substances from his eye , and, for several weeks and in each
instance at the direction of the company doctor, for the treatment of an ear fungus
and diathermy for a "trick knee").
As to the rest of the Respondent 's alleged dissatisfaction with Bole before July 24,
the evidence in my opinion relates to matters which were either inconsequential or
immaterial , or which occurred so long before Bole's discharge that it is inconceivable
that they were a factor in the Respondent 's determination to discharge Bole. If the
Respondent 's evidence be credited , there was only one comparatively recent incident
upon which the Respondent relies as showing an insubordinate attitude on Bole's
part and which the Respondent apparently contends affected Bole 's work as well as
his general relationship to the Respondent and its supervisors . Apparently , in June
1963 ( and thus about a month before Bole's discharge ) President Vogt asked Bole
whether the Union admitted Negroes to membership and, Vogt having left him, Bole
walked over to Clouse's desk in the next department and told him of Vogt's question.
According to Foreman Dasch, not knowing of Vogt's involvement , Dasch asked Bole
whether he was "bull crapping"; Bole merely said "Yeah ," but later came back to ask
why Dasch waited until Vogt left before jumping on Bole and told Dasch, "I want
you to get off my back " In his testimony , Bole denied having made any such remark.
But, despite Foreman Dasch's denial that he reported the incident to Superintendent
Graziani or President Vogt , both the superintendent and Vogt testified that Bole was
in fact called into the office on the basis of a report by Dasch and admitted having
told Dasch "to get off his back." Although on this state of the record there appears to
me to be some doubt as to whether Bole actually made the statement and admitted
it to Graziani and Vogt, I so find in accordance with Graziani 's and Vogt's testimony.
However , under the circumstances , particularly in view of Vogt's having been in effect
responsible for Dasch 's mistakenly reprimanding Bole, I am not persuaded that either
Vogt or Graziani took the matter so seriously that it became a factor in their decision
to discharge Bole a month later.
In addition to the evidence of this one incident involving Bole and apparently for
the purpose of indicating a generally indifferent and independent attitude on Bole's
part toward his work and his employer , the Respondent introduced in evidence a
small wooden , varnished sign which Bole had hanging on the corner of his desk for 3
years before he was discharged . During this time, so far as the record shows, the
Respondent did not complain about the sign or make any effort to secure its removal.
The painted legend originally read: "Work fascinates me. I can sit and look at it for
hours " Then , during the Cuban crisis , Bole painted on the reverse side: "Better
brave than slave " Finally , sometime in 1963, some other wag among the employees
added on the face of the sign- "Toot-Toot. Charlie 's Station!"'
THE E. W. BUSCHMAN COMPANY, INCORPORATED 705
So far as any of the rest of the evidence relates to Bole, the one written reprimand
he ever received from the Respondent during his 18 years of employment was issued
on February 23, 1963, because, as he admitted in his testimony, he had another
employee cut angle irons for his personal use and had also conducted a raffle at the
shop among the employees. According to his testimony, the iron he had cut for him-
self was of small value and he had intended telling his foreman but was called into
the office and reprimanded before he made any attempt to tell the foreman or to take
the material home. Stung by the wording of the reprimand, Bole posted on the com-
pany bulletin board the next day his resignation as chairman of the shopmen's wel-
fare benefit fund, stating that he had been unjustly branded by the Respondent as a
thief. Apparently, however, the matter was smoothed over for, according to Bole's
uncontradicted testimony which I credit, President Vogt came to him within the week
and, after securing Bole's assurance that he bore no grudge although he had been
hurt by the letter, told Bole "we have to work together here" and that "he was glad that
[Bole's] attitude has changed."
Aside from its general criticism of the alleged failure of all three of the stewards
to remain at their work stations, the evidence as to which I have already considered,
the Respondent produced no evidence as to Feltner and only one reprimand of Clouse
on April 4, 1962 (thus, more than a year before his discharge), to support its position
that the attitude and failure of either of these two men to perform his work properly
before July 24 were factors in their discharging him that day. The April 1962 repri-
mand of Clouse was in the form of a letter from Superintendent Graziani referring to
their discussion the previous day of Clouse's mistake on a layout for which Clouse
charged 51/a hours' time although he had taken 7 hours while another operator had
turned out even a more difficult layout in an hour. By submission of this reprimand
in evidence the Respondent has made its only attempt to show, as the partial grounds
stated by it for Clouse's discharge in its explanatory letter of July 26, any "failure to
do your work properly for which you were warned repeatedly"; any "failure to report
your job time correctly"; or any performance by Clouse of his work "in a non diligent
manner." On the other hand, whatever early lapses Clouse's performance may have
been the basis for the single reprimand received by him a year and a quarter before
his discharge, it would appear from Clouse's uncontradicted testimony, which I
credit, that his work after April 1962 was more than satisfactory. For Superintendent
Graziani and Foreman Conner not only complimented him on his work but made
him a leadman in June 1963, just a month before his discharge.
From the evidence I have discussed, it appears to me that it is either too vague and
unconvincing with respect to the three men's general conduct, and presents incidents
which are so inconsequential or stale that, especially when considered in the light of
the long employment of each of the men, it is inconceivable (in spite of the testimony
of the Respondent's witnesses) that the previous attitude or work performance of any
one of three men was actually a factor in his summary discharge on July 24. On the
contrary, the Respondent's mere assertion of these matters as being partially respon-
sible for the discharges, itself casts doubt also upon whether or not the discharges
were motivated by even the principal ground which the Respondent and its witness'
assert developed on July 24. We may now turn finally to the evidence bearing directly
on this matter.
C. The immediate circumstances relevant to the discharges
From the evidence, it appears that shortly after the men came to work at the plant
on the morning of Wednesday, July 24, the Respondent's president, its superintendent,
and its foremen suspected there was something unusual occurring among the employ-
ees and involving the three stewards. As a result, the three stewards were summarily
discharged, being told by the Respondent upon their insistence that they be given the
reason for their discharges only that they were discharged "because they had created
disunity among their employees and were not doing their work," and that a full
recitation of the ground of discharge would be furnished by a letter which would be
mailed to each of them. One of the two reasons thus given by the Respondent at the
time of the discharges was, on its face, meaningless, for the men were not told how
they had "created disunity among [the] employees." However, the evidence suggests
either or both of two possible meanings. Urging acceptance of one of these possi-
bilities as s.ng forth the only actual reason for the discharges, the General Counsel
argues that what the Respondent had in mind in using the quoted phrase was that the
three men had "created disunity" among the employees by their preparation and
presentation to the employees of the petition to the Union and its International that
International Representative Williams be excluded from their bargaining committee
in further contract negotiations with the Respondent. The Respondent, on the other
796-027-66-vol. 153-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand, contends that the phrase used by it referred to the stewards' instigation of a
concerted refusal on the part of the employees to work promised overtime that night,
and that this was the sole reason and its motivation which precipitated its discharge
of the three men on July 24.
To negate the possibility that the discharges were based upon the stewards' con-
nection with the petition, the Respondent takes the position in its brief that it knew
nothing about what had happened at the employees' union meeting the previous night
nor about the petition before it decided to discharge the men about 10 a.m. on
July 24. The pertinent evidence given by the Respondent's witnesses, however, not
only fails to support this position but, on the contrary, shows that President Vogt and
Superintendent Graziani were in fact informed of the petition and its essential sub-
stance before 10 o'clock and even indicates that the Respondent took an unfavorable
view of the possible success of the petition. It is true that President Vogt, Superin-
tendent Graziani, and Foremen Conner and Dasch all testified that they knew nothing
of what had happened at the union meeting the previous night. But Graziani also
testified that they may have known that the Company's offer had been rejected. With
respect to what was apparently Bole's petition, Foreman Conner testified that he
"saw a paper going around ... before work that morning between 7 and 8 o'clock in
the morning," although he could not say that it was the same paper which he later
saw on Superintendent Graziani's desk at noontime. At first, Superintendent Grazi-
ani and President Vogt each denied knowing anything about Bole's petition until
Graziani picked it up and read it at noontime. But, on cross-examination, Graziani
testified that Foreman Conner had told him early that morning that the employees
"were signing something on Clouse's bench, work table, but he didn't get close enough
to see what it was." Then, despite the apparent reluctance of the Respondent's wit-
nesses to testify as to what, if anything, they knew about Bole's petition during the
morning of July 24 (which in my opinion amounted to an attempt to conceal what
information they actually had), a more exact and perhaps a complete view of their
knowledge and suspicions eventually emerged during President Vogt's cross-exami-
nation. For Vogt then testified, and I credit his testimony, that "through the morn-
ing," he "knew there was a paper being circulated at the plant" and that both Super-
intendent Graziano and Machine Shop Foreman Weaver told him before 10 o'clock
that there was a "rumor" that it was a petition to "oust" Business Agent Gordon or
International Representative Williams.
Upon this testimony of Vogt, I conclude and find, contrary to the Respondent's
position, that while neither of them may actually have read or known first-hand of the
contents of Bole's petition until noontime, both Graziani and Vogt not only knew
early in the morning, and certainly before 10 o'clock, that a petition was being cir-
culated by the three stewards, but that they also suspected, as they later found out
to be the case when Graziani and Attorney Bauer seized the petition at noontime just
before the stewards were actually discharged, that it was a petition to oust Interna-
tional Representative Williams or Business Agent Gordon from the Union's bargain-
ing committee. Furthermore, I find upon Graziani's testimony that the Respondent's
information to this effect was coupled with Graziani's additional information that the
Respondent's last contract offer to the Union's committee, including both Gordon
and Williams, had been rejected by the employees at their meeting the preceding
night and, therefore, that if the ouster petition were successful, the Respondent would
be forced to continue negotiations without the presence of one of the union officials;
i.e., either Gordon or Williams. Finally, because of what I regard to be the attempts
of the Respondent's witnesses to conceal their early, actual information concerning
Bole's petition and thus to eliminate this as a possible basis for the Board's concluding
that the steward's connection with the petition was not only known to the Respondent
but was the motivating reason for its discharge of the three men, it appears to me to
be a reasonable inference, unless rebutted by the weight of other evidence, that the
prospect of continuing contract negotiations without one or the other of the union
officials as a result of Bole's petition, was in fact a prospect which was unwelcome to
the Respondent and one which the Respondent hoped would be avoided even if it
required the discharge of the three stewards who apparently were leading the move-
ment represented by the petition.
In contrast with their obvious reluctance to give testimony as to their knowledge
of Bole's p' ition, the Respondent's witnesses all testified volubly concerning the
absences of the three stewards from their work places on the morning of July 24 and
their suspicions that the three men, instead of working, were engaging in an appar-
ently successful attempt to persuade their fellow employees not to work overtime in
the gravity department that night as they had promised they would. In its brief, the
Respondent relies upon the substance of this particular testimony as showing the im-
mediate grounds and occasion for the discharges of all three of the men on July 24,
and as explaining the statements made to them by the Respondent both orally on
THE E. W. BUSCHMAN COMPANY, INCORPORATED 707
July 24 and again in its letters to the men on July 26 that each of them was discharged,
among other reasons, for "failure to remain at your work station during working time"
and "creating disunity among fellow employees." 3 But even its own evidence as
to the explanations given by it to the men for their discharges shows that the Respond-
ent never told either Bole or Clouse that he was being, or had been, discharged for
persuading or attempting to persuade the other employees not to work overtime,
although in the letter to Feltner (but not at the time of his discharge 2 days earlier)
the Respondent specifically included this as an additional, separately stated ground
for his discharge. From this and the fact that the Respondent's answer to the com-
plaint refers to its letters of July 26 as setting forth "the reasons" for the discharges,
it appears that the Respondent did not discharge either Bole or Clouse because of
any attempt on their part to interfere with other employees' working overtime.
Indeed, when this was pointed out by me to counsel during the General Counsel's
attempt to examine Bole on this matter, I sustained the objection of the Respondent's
counsel to the questions on the basis of counsel for the Respondent's specific dis-
avowal of any contention on its part that one of the reasons for Bole's discharge had
been that on the morning of July 24, Bole had encouraged employees not to work
overtime . Upon these considerations alone ( although as will appear there are also
others), I would reject the position apparently taken by the Respondent's counsel in
his brief that the discharge of either Bole or Clouse on July 24 was, to any extent,
based upon the Respondent's knowledge, belief, or suspicion that either of these two
men had engaged in attempting to discourage any of their fellow employees not to
work that night.
In his testimony, Feltner, the only one of the three men who was ever told by the
Respondent that one of the reasons for his discharge was his inducement of other
employees not to work overtime, denied the accusation. Moreover, he testified that
two of the employees asked him what they should do about "the overtime" and he
told them "to go ahead and suit themselves, what they wanted to do," adding that
he "didn't know what they were talking about." Finally, there is no direct evidence
in the record that either Feltner or, for that matter, Bole or Clouse had engaged in
any attempt to dissuade or discourage any of the other employees from working that
night . Instead, the Respondent in effect asks the Board to infer such an attempt from
(1) the undisputed fact that, when 12 employees, including Feltner and Clouse, were
asked on the morning of July 24 to confirm their previous promises to work overtime
that night all 12 refused, giving a variety of reasons; (2) the testimony of Foreman
Conner and Superintendent Graziani as to statements allegedly made to them by
Clouse and Feltner when they themselves were asked if they would work that night;
and (3) the testimony of President Vogt, Superintendent Graziani, and Foremen Con-
ner and Dasch that Bole, Feltner, and Clouse were absent from their work places for
considerable periods that morning and were seen talking with other employees.
a The Respondent 's brief makes it clear that this is its present position with respect
to all three of the men , in the following passages:
The testimony and evidence clearly shows that the three employees were discharged
for their prior conduct at the Respondent Company and their activities on July 24,
1963, in instigating a slow -down at the plant by refusing to work overtime themselves
and also by causing several of the Respondent Company's other employees to refuse
to work overtime that night when they had previously agreed to do so on Monday,
July 22, 1963 . It was for this interference and harassment with the production at
Respondent Company 's plant and also the harassment of Respondent Company's em-
ployees during the contract negotiations that the three employees were discharged
and not for any union activities . . . [page 3.]
On this particular morning , July 24th , the evidence clearly indicated that the
three employees were away from their work and not performing their work in ac-
cordance with their obligation under the Union's contract with the Respondent
Company.
The Respondent Company had no choice in the matter but to discharge the em-
ployees for just cause. This discharge was not only for the acts on the morning of
July 24th prior to 10.30 a in , but grew out of an accumulation of acts on their part for
which they had been repeatedly warned by their supervisors and the plant
superintendent.
These three employees were required to perform work on this particular morning
and on previous occasions and their refusal to do the work by being away from their
stations without permission, and without being on justifiable leave, such as for union
activities , and their influencing other people not to work in accordance with their
agreement made two days previously was the sole cause for their discharge . . . .
[pages 4-5; emphasis supplied ]
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have indicated, there is no dispute in the evidence that, in fact, the Respondent
had previously made arrangements with at least 12 of its employees to work overtime
on July 24. Thus, it appears from uncontradicted evidence that, on Monday, July 22,
at the request of President Vogt and in order to meet a pressing delivery program
planned for the week, Foreman Conner had asked these men, and they had agreed,
to work overtime in the gravity department until 9 p.m., on Monday, Wednesday, and
Friday, July 22, 24, and 26. Among these men was Feltner, a second-class welder
in the department. Because of illness in the family, Clouse (a layout man) had made
a special arrangement with Foreman Conner to begin work at 7 o'clock instead of
8 o'clock but only until 6 o'clock on the days in question. The overtime arrangement
did not include Bole, who worked in the structural steel department.
According to his usual practice of asking men to confirm previous expressions of
willingness and ability to work overtime on particular days, Foreman Conner spoke
to each of the 12 men on the morning of July 24 about working that night, starting
with Feltner at 7:30 in the morning and, after work began at 8 o'clock, continuing
with the other men and winding up with Clouse. All of the men either begged off
(most of them giving reasons), or merely expressed their willingness to work over-
time if the other men did. Foreman Conner reported this to Superintendent Graziani
who thereupon also spoke to each of the men. None of the 10 men other than Feltner
and Clouse testified, and Foreman Conner's and Superintendent Graziani's testimony
as to the answers given them by each of 9 of these 10 men is uncontradicted, identical
in substance, and credible. Four of the men said they would work overtime if the
other men did; 4 one (an employee by the name of Cecil Eversole, who Graziani him-
self testified showed indications of a heart attack and who, upon examination at the
plant, was sent home by the company doctor during the morning) said he had an
appointment with his doctor that night; three others said that they were too sick and
nervous to work; 5 and a ninth man said that he had to work at home.6 Igene Baker,
the 10th man in the overtime group other than Feltner and Clouse, told Foreman
Conner (according to Conner's testimony) that he would "do what the committee
does," and later told Superintendent Graziani (according to Graziani), "I can't buck
the shop committee."
As already noted, Foreman Conner spoke to Feltner before work time and thus
before speaking to any of the other men in the overtime group that morning. Feltner
said he could not work that night, apparently making some allusion or reference to
the necessity for his being available for union committee work. For his explana-
tion to Conner (according to Feltner's testimony) was that "there's too much ahinging
[sic] right now" and (according to Conner's testimony) that he would be unable to
work that night "on account of union business." When Graziani again asked him later
in the morning, he said he was not going to work overtime that night and gave
Graziani no reason. According to Graziani, this was their entire conversation.
Feltner testified, however, that Graziani pressed him, accusing him of not having a
reason and being required by the contract to work "a reasonable amount of overtime";
that he replied his working 4 hours overtime the preceding Monday fulfilled this re-
quirement; and that Graziani said, "Well, if you change your mind, will you let me
know? Because that will keep me from having to get other guys from other depart-
ments to bring in to work in your place." On this difference in their testimony con-
cerning the conversation, I credit the testimony of Feltner.
In Clouse's case, it was Superintendent Graziani and then Foreman Conner, in that
order, who spoke to him about whether he was going to work the extra time he had
agreed to work that afternoon. Clouse, did not testify concerning these conversa-
tions. According to the superintendent, Clouse denied that his refusal was due to his
wife's illness, and said only, "That is not the reason I just don't like the way things
are going here. I am not going to work the overtime." Foreman Conner first testi-
fied that he could not "recollect" his conversation with Clouse and then that he
"believed" there was more to the conversation than a mere refusal by Clouse to work
overtime although Conner "couldn't recall what it was." Finally Conner testified
that he did recall Clouse's coming to him and saying "that some of the men had come
to him and said that they didn't want to work" and "that it wasn't anything against
the Company or against [Conner] personally [but] that they just did not want to
work " Upon consideration of this testimony, I find that Clouse told Superintendent
Graziani and Foreman Conner that he would not work overtime that afternoon and
that he also made the additional statements to which Graziani and Conner testified.
' Tom Parrish , Virgil Eustis , Delmar Pendleton , and Edgar Harrington.
s Wilson Baker ( who also told Graziani he had to see a doctor ), Lee Bareswilt, and
Homer Anderson.
6 Ismail Caudill
THE E. W. BUSCHMAN COMPANY, INCORPORATED 709
According to the general testimony of the Respondent's witnesses, during the fore-
going conversations between Foreman Conner and Superintendent Graziam and the
12 men scheduled for overtime, and, for that matter, from the beginning of the work-
day, the men in the plant did little work. As President Vogt described the situation
in his testimony, he himself "was concerned with the [production] schedule [he had
set up for the week]" and "was disturbed by observation of an atmosphere throughout
the plant of edginess, if not good production," and "there was no work being produced
in the usual fashion. There was men away from their work stations, there was areas
of larger attendance, seemingly, in the nurse's aid, and later on the schedule of num-
ber dispensary calls showed me that there was an unusual number ...... According
to Vogt, it was this situation coupled with his later learning from Superintendent
,Graziani that the men had refused to work overtime, and, from the reports of Grazi-
ani and the foremen, that the three stewards were not at their work benches but were
talking with other men, which led him to conclude at the 10 o'clock meeting in the
superintendent's office that all of these matters were related, that the refusal of the
men to work overtime was instigated by the three stewards, and that they should be
discharged. Credence of this testimony, of course, depends in large measure upon
an examination and consideration of the testimony concerning the activity of the three
stewards during the morning, particularly before 10 o'clock, the reports made by
the foremen and Superintendent Graziani concerning this, and the fact that, despite
the Respondent's professed concern about a slowdown and a possible, concerted
refusal to work overtime instigated by the stewards, the Respondent did nothing
either to curb the stewards' activity by confining them, or requiring them to return, to
their work benches, or to meet the problem squarely (since it was of such importance
to the Respondent) by confronting the stewards and the other men with their sus-
picions and to insist upon the men performing their work during the day and work-
ing the overtime they had promised. What testimony there is on these various points
will be discussed separately with respect to each of the three stewards. Before turn-
ing to this , however, it should be noted that wherever the three stewards were and
whatever they were doing that morning, they all testified that they had not been
engaging in "union business" and all the witnesses, including the Respondent's, agreed
that none of the three had informed the office, as they were required under the union
contract, that they were checking out on "NP-84"; i.e., to handle union matters.
With respect to Clouse, there is no direct evidence given by his foreman, Conner,
nor by any of the other witnesses that he was away from his work bench for any par-
ticular part of the morning and not working. From Superintendent Graziani' s testi-
mony it appears that Clouse was at his work at least shortly after 9 o'clock when
Graziani asked Clouse whether he would work that night. But otherwise, the evi-
dence as to Clouse consists only of two versions of Foreman Conner's reports to his
superiors that morning Thus, Conner testified that he reported to President Vogt
and to Superintendent Graziani at the 10 o'clock meeting in the latter's office that
Clouse, as well as Feltner, had been going through the shop talking to men although,
as Conner admitted, he thought that the men might have been talking with Clouse as
the layout man on their jobs. In testifying as to an earlier report to him by Conner,
however, Superintendent Graziani testified that Conner told him that there was a
"mutiny" in the gravity department (a term which Conner, incidentally, denied that
he used) and that "Clouse and Feltner were not staying at their work stations, that
they were stirring up trouble in the department."
The testimony as to Bole's whereabouts that morning relates to whether he was
away from his work bench and not working for any substantial time between 9 and
10 o'clock. Bole himself testified that, so far as he could remember, he was at his
work station between 9 and 9.30 o'clock. Moreover, he denied the suggestion, in a
question put to him by Respondent's counsel on cross-examination, that his foreman,
Dasch, had caught him in the restroom or toilet for 30 minutes talking to other
employees. Superintendent Graziani testified, however, that Bole was not at his work
station at either 9 or 9:30 a.m , although he was there at 5 minutes to 10. President
Vogt also testified that, although he was in the plant, he did not see Bole at his station
between 9 and 9:30 o'clock and that at 9.30 he asked Foreman Dasch where Bole
was and to get him back to work. Dasch testified that upon receiving an order from
Vogt to find Bole, he looked for Bole. At first he testified generally that Bole was in
the toilet for a half an hour speaking with other employees. But then, when required
to be more specific as to his observation, he testified that he merely looked through
the small window of the toilet room about 9:30 and then again at 9:45 and each time
saw Bole speaking with other men whom he could not identify, that he (Dasch) did
not go in to speak to Bole, but, instead, went to the office at 10 a.m. to report Bole
to Superintendent Graziani. In his testimony, Dasch did not mention any instruc-
tion from President Vogt that he was to get Bole back to his work station.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to Feltner , President Vogt testified that when he arrived at 8:05 that morning,
he saw Feltner talking to four or five men in the area of the welding department Tak-
ing up the thread from this point , Conner, who was Feitner 's foreman , testified that
Feltner was not at his work station "all the time " that morning . According to Conner,
he "noticed [Feltner] around talking to various men throughout the shop area" but he
could not overhear his conversations , and, at first , he testified that he was not sure
whether it was before working time or not. Then he testified that he did see Feltner
talking with small groups of the men before starting time, no differently than he did
on other mornings , but that "when they would go out, went around talking during
working hours , that was different ." What the "difference " was Conner did not
explain . Superintendent Graziani testified that when he made his "survey" of the
overtime situation shortly after 9 o'clock, he saw Feltner talking with employee Bill
Maxie (not one of the overtime group ) over in the roller wheel department , but that
Feltner later came over to Graziani to tell him he was not going to work that night.
Graziani further testified that Foreman Conner had reported to him that Feltner
"was not present at his work station, he was away from it in the toilet room three or
four different occasions , and he was all over the shop, instead of where he was sup-
posed to be ," and that Conner "thought he was in the toilet room but he wasn 't sure."
Finally, Graziani testified that he, himself saw Feltner in the toilet room but that he
did not know who else might have been there, and that Feltner came out as soon
as Graziani saw him.
We come now to a consideration of the testimony of the Respondent 's witnesses
about the meeting at 10 o'clock in the superintendent 's office during which the
Respondent claims it was decided to discharge the three stewards . According to
Superintendent Graziani, after he had spoken with the men in the overtime group, he
informed President Vogt of the situation over the plant telephone . Vogt came to the
superintendent 's office and the two men ( apparently about 9:30 ) looked for Bole and
could not find him. Why they would then look for Bole is not explained and seems
peculiar, since Bole was not the chief steward ( Clouse was ), he was not in the over-
time group , and Foreman Dasch's report of Bole's conversations with other men in
the toilet room had not yet been made to either Graziani or Vogt. Yet it appears
from Graziani 's testimony that he and Vogt made no attempt to locate either Clouse,
the chief steward, or Feltner, both of whom were in the overtime group which had
refused to work the extra time that day Instead , they looked for Bole, who had pre-
pared and was securing signatures to the ouster petition of which Vogt, admittedly
had already heard rumors Then , still according to Graziani 's testimony , when they
could not find Bole, he and Vogt thereupon discussed the discharge of all three of the
stewards.
In the course of this discussion , according to Graziani , Vogt and he decided to
confer with the foremen , Conner and Dasch, before discharging the men. Appar-
ently Conner was summoned to the office to confer with the superintendent and Pres-
ident Vogt concerning Clouse and Feltner. But Dasch, according to his testimony,
was already on his way to the office to report Bole's absence from his work bench
and his conversations with the men in the toilet room
According to the testimony of the four men who were present during the ensuing
conversation in the superintendent 's office, the two foremen first made their reports
to President Vogt and Superintendent Graziani concerning the three stewards that
morning. Foreman Conner's testimony was that, upon being asked by the superin-
tendent , he told his superiors that Clouse and Feltner "had been going around through
the shop talking to the men that morning" and ( although , as I have noted, he at first
testified that he thought Clouse's activity might have been in connection with his
duties as layout man), also that he suspected ( although he did not know ) that the
reason why the other men had refused to work overtime was that the "committee"
had told them to refuse. Foreman Dasch testified that, as he came into the office,
he said to the superintendent , "John, what are we going to do with Charlie Bole? I
know he was in that toilet for a good half an hour just a little while ago. And I
know he was in there prior to that before 9 o'clock in the morning. I don't think he
did a doggone bit of work all morning, as far as I could tell ," and that he also then
told Graziani and President Vogt that during the time he saw Bole in the toilet room,
Bole "was standing in there talking with his hands . [although Dasch] couldn't
make out what he was saying ...." Both President Vogt and Graziani referred to
these reports of the foremen at the 10 o'clock meeting but gave no testimony as to
their substance . The thread of their testimony , however, implied that the reports
then given to them were to the effect to which the foremen themselves testified.
According to the testimony , while the two foremen were still in the office , Vogt and
Graziani continued their discussion of whether the three stewards should be dis-
charged. All four men agreed that the superintendent and President Vogt referred,
THE E. W. BUSCHMAN COMPANY, INCORPORATED 711
not only to what had happened that morning , but also to the unsatisfactory perform-
ances, records , and attitudes of the three men during " last several years." According
to President Vogt, both he and Graziani were familiar with all this and had it in mind
although they did not talk specifically about any of the elements of this background
factor, such as the matters which I have discussed in section I, B, above. From the
testimony of Foremen Conner and Dasch, too , it would also appear that although the
three stewards ' general performance and attitudes were referred to, Vogt and Grazi-
ani did not dwell on details. Thus , all that Conner testified to was that from Vogt's
and Graziani 's conversation he understood that among the reasons for the discharges
were "deficiency [in their] work" and being "away from their work stations a good
bit." And Foreman Dasch testified that although he did not hear President Vogt's
and Graziam 's conversation with Foreman Conner concerning Feltner and Clouse,
in the course of his superiors ' conversation about Bole 's discharge , "a lot of things
were discussed ... I mean our rules and regulations , the shop rules ......
But according to the testimony of the witnesses the immediate reason which precipi-
tated the three steward 's discharges on July 24 was their absence from their work sta-
tions and their failure to work that morning, and the belief of President Vogt and
Superintendent Graziani that the three men had instigated a general refusal by the men
in the overtime group to work that night . The substance of the testimony of the
Respondent 's witnesses to this effect was most clearly expressed by Superintendent
Graziani at the hearing:
The reason we [Vogt and Graziani] considered [discharging the three men] at
this time , we felt that we were going to have a mutiny in the shop and disunity
we just couldn 't possibly get out production , and the only way to eliminate that
work stoppage and this mutiny was to eliminate these three people .... I say we
felt that they were responsible.... The substance [of the conversation of the
four men including the foreman] concerned this mutiny , and this refusal to work
overtime , the slowdown in production , and we felt from all the previous record
of these fellows [the three stewards], where they attempted to do the things we
pointed out, and this brought us to the end of our rope , we felt we just couldn't
tolerate it any longer . We had known that these were the people that caused
our trouble , and we felt we had to get rid of them, we just couldn't operate with
them there anymore. Then and there we reached the decision [to discharge
them and] announced it to the foremen...." [Emphasis supplied ]
From the testimony of Superintendent Graziani and Foreman Dasch, it would
appear that Graziani and President Vogt referred to what they believed had been the
three stewards ' instigation of the other men's refusal to work overtime , as "creating
disunity among fellow employees ." 7 And, according to the Respondent's witnesses
as well as the General Counsel 's, when the three men were notified of their discharges
and given their checks at noon, they were given as the reasons for their discharge
only the phrase which I have just quoted, without any indication of its meaning,
coupled with the charge that they had not been doing their work. Even when the
grounds asserted for the discharges were formulated in the letter sent to each of the
three men on July 26, 2 days later , the Respondent still merely repeated and gave
no explanation of the quoted phrase, although , in the case of Feltner alone, it then
specifically listed, and thus for the first time charged him with, his own refusal to
work overtime and "trying to persuade other employees to refuse to work overtime
after they had agreed to do the same."
D. Conclusions
By preparing , signing, and procuring the signatures of other employees to their
petition asking the Union to exclude International Representative Williams from their
bargaining committee, the three stewards were attempting during the morning of
July 24 to assure themselves and their like-minded fellow employees of a bargaining
committee responsive to their desires concerning the terms and conditions of employ-
ment which would eventually be fixed in continuing contract negotiations with the
Respondent . Their activity, although directed to the attention of the Union, was
clearly protected from interference by the employer as well as by the Union, as one
of the broad band of "concerted activities for the purpose of collective bargaining or
other mutual aid or protection" which are guaranteed to employees by Section 7 of the
7 Vogt made no reference in his testimony to the use of this particular phrase during
the conversation Foreman Conner was vague in his testimony as to the term used by
Graziani and Vogt to describe the objectionable conduct of the stewards that morning.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act.8 If, then, the stewards were discharged by the Respondent because of their
connection with the petition, their discharges constituted interference with their pro-
tected rights under Section 7 of the Act and a violation of Section 8(a)(1) of the
Act, as the General Counsel contends they were." On the other hand, if, as the
Respondent contends, the Respondent discharged the three men, not because of their
activity in connection with the petition, but because of their unsatisfactory previous
work performances and attitudes, their failure to do their work on July 24, and their
instigation or encouragement on that morning of a concerted refusal to work over-
time, the Respondent was justified in discharging them and committted no violation
of the Act. The issue thus becomes one of fact: Why did the Respondent discharge
the three stewards?
Consider first those facts which have already been found upon uncontradicted
evidence 10 and which, with their reasonable implications, support the General Coun-
sel's contention. Bole prepared the petition and, before work began early in the
morning of July 24, brought it to the plant where Clouse signed it as chief steward
and Bole and Feltner as assistant stewards. For approximately half an hour, the
petition lay in full view on Clouse's desk where 17 other employees added their sig-
natures. The petition was then deposited in Bole's desk and not again exposed to
general view until noon time when Bole again left it on another desk top in the gravity
department. But in the meantime, as I have found upon segments of President Vogt's
and Superintendent Graziani's reluctant testimony,11 it is clear that during the early
morning and before 10 o'clock when they say they reached a final decision to die-
charge the three men for other reasons, Vogt and Graziani learned that there was a
petition being presented to the employees to exclude from the Union's bargaining
committee either Business Agent Gordon or International Representative Williams Cu
whom, along with the three stewards, the Respondent had just presented its last con-
tract offer, and that, in view of the employees' rejection of this contract offer the pie-
ceding night, if the petition were successful, the Respondent would be forced to con-
tinue negotiations with the Union without the presence of either Gordon or Williams
whose attitude on the negotiations the employees had found objectionable. So far as
the nature of the petition was concerned, Vogt's and Graziani's information was con-
firmed when Bole left the petition on the desk top in the plant at noon. For Superin-
tendent Graziani and Attorney Bauer thereupon read it, and carried it off with them
into the office, having first learned from another employee that Bole had left it
where they had found it. It was only then, with the petition lying before them on
the office desk, that the superintendent and President Vogt actually and summarily
effected the discharges of the three stewards, by having the foremen give them their
terminal checks and oral notices of their immediate discharges. This was the first
inkling any of the men received that their conduct that morning had in any respect
been regarded as objectionable, or that their discharges were even being considered,
whatever the reason. Finally, when it thus discharged the men, the Respondent
gave the men as the basic reason for its action, and without further explanation, only
the accusation that "they had created disunity among their employees." The fore-
going facts, are based upon uncontradicted evidence. With or without the inference
which may also be logically drawn from the attempt by the Respondent's witnesses
to conceal their actual information concerning Bole's petition early in the morning of
July 24,12 these uncontradicted facts obviously furnish strong support for the Gen-
eral Counsel's contention that the men were summarily discharged because of their
connection with the preparation and circulation of the ouster petition and that this
was what the Respondent, in effect, guardedly and uneasily told them at the time of
the discharges, when it referred to their having "created disunity among the
employees "
Weighed against all this, of course, must be the denials by the Respondent's wit-
nesses that this was the reason for the men's discharges, and also the evidence which
the Respondent contends shows that the men were actually discharged, not only
8 N.L R B. v. Nu-Car Carriers, Inc, 189 F. 2d 756, 760 (C.A 3), cert denied 342 U S
919, enfg. 88 NLRB 75, 76, 88-89; Roadway Express , Inc., 108 NLRB 874, 875, enfd.
sub nom _N L R B v International Brotherhood of Teamsters, Chauffeurs. Warehouse-
men and Helpers of America, Local 823, 227 F. 2d 439 (CA. 10) ; Roadway Express, Inc.,
119 NLRB 104, 107-108, enfd 257 F. 2d 948 (C A. 4) ; Cooper Alloy Corporation (Aircraft
Division), 120 NLRB 586; Honolulu Star-Bulletin, Ltd., 123 NLRB 395, 407-408, remanded
on other grounds 274 F 2d 567 (C.A.D.C.).
9Ibid
10 See generally section III, A, above.
11 See section III, C, above
12 Sea the discussion of the significance of the testimony as to what information these
witnesses actually had, in section III, C, above
THE E. W. BUSCHMAN COMPANY, INCORPORATED 713
because of a long period of unsatisfactory work performances and uncooperative
attitudes , but because of their failure to do their work on July 24 and their encourage-
ment that morning of a concerted refusal by the other employees to work previously
promised overtime , just when the Respondent was hard pressed to meet its production
schedules. The evidence relating to the Respondents ' alleged dissatisfaction with
the work of the three men and their attitudes before July 24 as a factor in the Respond-
ents ' decision to discharge them has already been considered at length in section
III, B , above. There remains for evaluation the Respondents ' version of the events
of the morning of July 24 which precipitated the discharges . As to this , all the per-
tinent evidence has already been summarized in section III, C, above.
The testimony of the Respondents ' witnesses ( President Vogt, Superintendent
Graziani , and the two foremen ) concerning their discussions of the three stewards
and the reason upon which they decided that all three of them should be discharged,
was by its nature, of course, not susceptible of direct contradiction by any of the
General Counsel 's witnesses . Its persuasiveness, however, depends upon its credibil-
ity when judged in the light of the evidence as to the objective bases upon which the
Respondents ' witnesses say they acted, as well as the manner in which they acted.
As I have noted , there is no direct evidence that any of the three stewards actually
instigated or encouraged a refusal by the other employees to work overtime, and
Feltner, the only one of the three accused of this by the Respondent before the hear-
ing, denied that he had done so. If any of the three did instigate a refusal to work
(and, for that matter , if the Respondent had any reasonable ground for believing that
they did ), it must be inferred from the statements made by Clouse and Feltner and
the other 10 men in the overtime group in iefusing to confirm their previous promises
to both Foreman Conner and Superintendent Graziani , and from the testimony of
the Respondents ' witnesses that all three stewards were away from their work sta-
tions talking to other employees that morning . On the surface , it would be possible
to draw such an inference upon these bases but , in view of a number of considera-
tions which I shall now set forth, it would not be nearly as strong as the Respondent
contends.
The statements made by Feltner and Clouse to Foreman Conner and Superintend-
ent Graziani and the coincident refusals of the other 10 employees in the overtime
group to confirm their previous promises to work overtime , do not necessarily indi-
cate, nor would they necessarily have led the Respondent to assume , that any of the
three stewards had induced a concerted refusal to work overtime . From Foreman
Conner's testimony it appears that, as a matter of usual practice , he did not rely upon
advance promises of overtime work but checked both the men 's willingness and their
ability to work when the day came. On this occasion , the men had already worked
overtime once that week (on Monday ) and were apparently expected to work over-
time on Friday, July 26, as well as on Wednesday , July 24 On the morning of
July 24, both Feltner and Clouse merely informed Foreman Conner and Supeiin-
tendent Graziani of their own inability or unwillingness to work that night and gave
no indications that they were doing any thing to influence any of the other men.
According to Foreman Conner's testimony , Feltner told him that he (Feltner) was
unable to work that night "on account of union business ." And, according to Felt-
ner's testimony , which I have credited , he gave no reason to Superintendent Graziani
and Graziani ( consistent with Conner 's testimony that the Respondent ordinarily
placed no firm reliance in advance promises to work overtime) replied that , if neces-
sary, he would get men from another department to work the overtime. Clouse
merely explained his own refusal to work by saying to Superintendent Graziani that
he "just [didn't] like the way things are going there " According to Foreman Con-
ner, however , he also told Conner that other men in the overtime gioup had
approached him and said that they did not want to work but that "it wasn ' t anything
against the Company or against [Conner ] personally [but] that they just did not want
to work."
Nor do the responses of the other 10 men in the overtime group to Foreman Con-
ner and Superintendent Graziani indicate that they , as a gioup or individually, were
influenced by any of the three stewards . Four of them actually said they would work
if the other men did. Four others (including one who was in fact sent home during
the morning by the company doctor ) said they were ill A ninth man begged off
because of work at home , which may or may not have been a good reason. Only
the 10th man, Igene Baker, suggested the possibility that his refusal to woik was
in some way influenced by the stewards , by telling Foreman Conner that he would
"do what the committee does, " and by telling Superintendent Graziani , "I can't buck
the shop committee ." But Baker 's statements were those of only one man in the
group and could well have represented his own willingness to abide by any decision
the committee might make and not necessarily that the committee had taken any
position and communicated it to him.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several pertinent observations should also be made in appraising the strength and
significance of the testimony of the Respondent's witnesses concerning the three stew-
ards' absence from their work stations and their talking with other employees. The
work of all three of the stewards required them to leave their work benches and talk
with other employees or to get material, and at times it took them out of their depart-
ments. In the case of Clouse, for example, Foreman Conner testified that when he
saw Clouse talking to employees away from his work bench on the morning of
July 24, he thought that the men might have been talking with Clouse as the layout
man on their jobs. As to the duration of the stewards' absences from their work
benches that morning, Foreman Dasch at first testified broadly that he knew Bole was
in the toilet room for half an hour, but, on being required to be more specific, said
that he saw Bole in the toilet room only twice with an intervening interval of 15 min-
utes and that on each of these occasions Dasch merely looked briefly into the toilet
room through a small window in the door and then passed on. Finally, although the
Respondent's witnesses professed a belief that during their absences from their work
benches, the stewards had been influencing the employees against working overtime,
not only does their testimony relate to periods after all of the men had already refused
to confirm their promises to work overtime, but their testimony is to the effect that on
the occasions they saw one of the stewards talking to another man or men, the other
employees were either definitely not within the overtime group, or could not be
identified as being in that group.
Not only are there the foregoing weaknesses in the evidence which the Respond-
ent contends supports an inference either that the three stewards instigated a con-
certed refusal to work overtime on July 24 or that the Respondent had reasonable
grounds for believing, and actually believed at the time, that they did. There are
other more general flaws which affect the Respondent's entire version of the discharges
purely as a result of such a belief on the part of the Respondent rather than their
known connection with the ouster petition. Briefly, I find it impossible to accept the
Respondent's version, not only in view of the inconclusiveness of the evidence relied
upon by the Respondent as the basis for an inference that the three stewards actu-
ally instigated a concerted refusal or that the Respondent believed that they had, but
also because of the following factors, already adverted to at various points in my
discussion of the Respondent's evidence, which indicate to me that the real reason
for the Respondent's discharging the three stewards was their known participation in
the preparation and presentation of the ouster petition to the other employees:
1. The Respondent's apparent feeling, manifested 2 days after the discharges, that
it was desirable, and perhaps necessary, to bolster its original and vaguely stated justi-
fication of its discharges of the three stewards with additional accusations of unsatis-
factory performances and attitudes based upon equally vague and unconvincing gen-
eralities or upon incidents which, as I have found, were so inconsequential or stale
that, especially when considered in the light of the Respondent's long employment of
each of the men, that they cannot be seriously be regarded as having been actual fac-
tors in the Respondent's decision to discharge them summarily on July 24.
2. The initial denials of the Respondent's witnesses of any knowledge of Bole's
petition and then their reluctance to testify as to what they actually knew, although
it eventually appeared from segments of President Vogt's and Superintendent Grazi-
ant's testimony, that they in fact knew of the presentation of the petition to the
employees even before they say they decided to discharge the men at 10 o'clock that
morning, that they had good reason to believe it was a petition to oust Business Agent
Gordon or International Representative Williams from the Union's bargaining com-
mittee and that in view of the employees' rejection of the Respondent's last contract
offer, they must have realized that if the petition were successful, the Respondent
would be forced to continue negotiations with a union committee excluding Gordon
or Williams.
3. The additional fact (which, in the absence of persuasive rebuttal, I now infer
as being apparent from what I have earlier found to be the attempts of the Respond-
ent's witnesses to conceal their actual information concerning Bole's petition) that the
prospect of further negotiations without the presence of one or the other two union
officials was unwelcome to the Respondent and one which it wanted to avoid.13
4. The surprisingly unnatural and unexplained failure of the Respondent, if it
even suspected a particularly damaging slowdown and concerted refusal to work
overtime had been, and was being, instigated by the stewards, either:
(a) To curb the stewards' activity by confining them, or requiring them to return,
to their work benches;
v See my original discussion of this as a possible inference, absent rebuttal, in section
III, C, above
THE E. W. BUSCHMAN COMPANY, INCORPORATED 715
(b) To meet the problem squarely and thus attempt its immediate solution (since
it was of such importance to the Respondent) by confronting the stewards and the
other men with their suspicions and to insist upon the men performing their work
during the day and working the overtime they had promised; or
(c) To inform the stewards explicitly at least when it eventually summarily dis-
charged them shortly after noon, that they were being discharged for having orga-
nized or encouraged a concerted refusal by the other men to work overtime, rather
then to give them merely the conveniently cryptic catch-all explanation that their
discharges were based upon their "creating disunity among fellow employees."
5 The Respondent's attempt to strengthen its position with respect to Feltner
alone, by including for the first time in the letter mailed to him 2 days after his
discharge (but not in the letter mailed to the other two men the same day) its only
reference to any alleged encouragement of a concerted refusal to work overtime
being one of the then specifically assigned reasons for Feltner's discharge, in addi-
tion to his allegedly having "created disunity among fellow employees," the broad,
vague reason given to all three of the stewards when they were discharged.
6. The Respondent's failure to take any definite, forthright position until it filed its
brief with me, that either Bole's or Clouse's discharge was precipitated by, or based
upon, the Respondent's belief that either of these men had instigated or encouraged
a concerted refusal to work overtime, for, as I have already noted, it appears from
the record:
(a) That no such notice was ever given by the Respondent to Bole or to Clouse at
the time of his discharge, in the letter mailed to him 2 days later, or, for that matter,
at any other time;
(b) That no such reason was indicated by the Respondent in its reference to the
written reasons given these two men for their discharges, which the Respondent set
forth as its defense in its answer to the complaint; and
(c) That, during the hearing, its counsel specifically disavowed any such position
with respect to Bole.
For the foregoing reasons, I find and conclude upon the evidence, that the Respond-
ent discharged Charles Bole, Bernard Feltner, and Herman Clouse on July 24, 1963,
not for the reasons asserted by the Respondent in this proceeding, but because of the
three men's known preparation of, their signatures to, and their presentation to other
employees for their signatures that morning, of a petition to the Union and its Inter-
national as their bargaining representatives, asking for the exclusion from their cur-
rent bargaining committee of International Representative Patrick Williams; that
these activities for which the Respondent discharged the three men were "concerted
activities for the purpose of collective bargaining or other mutual aid and protection"
which are guaranteed to them as employees and protected by Section 7 of the Act;
and, therefore, that the Respondent by discharging the men for engaging in these
concerted activities interfered with their exercise of rights guaranteed by Section 7 and
thereby committed unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the business operations of the Respondent as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (1) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that the Respondent by discharging employees Charles Bole,
Bernard Feltner, and Herman Clouse on July 24, 1963, interfered with its employees'
lights to engage in concerted activities for the purpose of collective bargaining and
other mutual aid and protection, which are guaranteed by Section 7 of the Act, and
that it thereby committed unfair labor practices within the meaning of Section
8 (a)( I) of the Act. It will be recommended that the Respondent offer each of these
three employees immediate and full reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings suffered by reason of the discharge by
payment to each of them of a sum of money equal to that which he normally would
have earned from the aforesaid date of discharge to the date of the Respondent's
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer of reemployment, less his net earnings during said period. The backpay shall be
computed in accordance with the formula stated in F. W. Woolworth Company, 90,
NLRB 289. Furthermore, it will be recommended that the Respondent pay interest
on the backpay due to each of these employees, such interest to be computed at the
rate of 6 percent per annum and, using the Woolworth formula, to accrue commenc-
ing with the last day of each calendar quarter of the backpay period on the amount
due and owing for each quarterly period. Isis Plumbing & Healing Co., 138 NLRB'
716
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following-
CONCLUSIONS OF LAW
1. Respondent, The E. W. Buschman Company, Incorporated, is an employer
engaged in commerce within the meaning of the Act.
2. (a) By maintaining a shop rule which generally prohibited solicitation at its.
plant for any purpose without its prior permission and thus in effect prohibiting
solicitation in connection with its employees exercise of their rights under Section 7
of the Act even in nonworking areas of the plant and on nonworking time, and (b)
by discharging employees Charles Bole, Bernard Feltner, and Herman Clouse on
July 24, 1963, because they had prepared, signed, and presented to other employees
for their signatures, a petition to their bargaining representative to exclude from their
bargaining committee an official of the Union's International to whom they objected,
the Respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act and has thereby committed
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the Respondent, The E. W.
Buschman Company, Incorporated, Cincinnati, Ohio, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Maintaining any rule prohibiting solicitation in connection with its employ-
ees' exercise of their rights under Section 7 of the Act in nonworking areas of its
plant and on nonworking time.
(b) Discharging employees or otherwise discriminating against them, because of
their exercise of any of the rights guaranteed in Section 7 of the Act.
(c) In any like manner interfering with, restraining, or coercing employees in the
exercise of the right to self-organization, to form labor organizations, to join or assist
any labor organization, to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activities for the purpose of collective
bargaining or other mutual aid and protection, or to refrain from any or all such
activities
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act:
(a) Offer to Charles Bole, Bernard Feltner, and Herman Clouse immediate and
full reinstatement to their former or to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make each of them
whole for any loss of earnings suffered as a result of their discharges in the manner
set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, tor
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due under the Order herein.
(c) Post at its plant in Cincinnati, Ohio, copies of the attached notice marked
"Appendix." 14 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being signed by a representative of Respondent, be posted by
14 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 717
it immediately upon receipt thereof, and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps the Respondent
has taken to comply herewith.15
15 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT maintain any rule prohibiting solicitation in connection with
our employees' exercise of their rights under Section 7 of the Act in nonworking
areas of our plant and on nonworking time.
WE WILL NOT discourage or otherwise discriminate against any of our employ-
ees because of their exercise of any of the rights to engage in concerted activities
for the purpose of collective bargaining or other mutual aid and protection or
to refrain from any or all such activities, as guaranteed by Section 7 of the Act.
WE WILL NOT in any like manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join any labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual aid and protection, or
to refrain from any or all such activities.
WE WILL offer to Charles Bole, Bernard Feltner, and Herman Clouse rein-
statement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and WE WILL make them whole
for any loss of pay suffered as a result of their discharges.
THE E. W. BUSCHMAN COMPANY, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Federal
Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200, if they
have any questions concerning this notice or compliance with its provisions.
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO and Darby Electric Corporation and Industrial Workers of
Allied Trades, Local 199, affiliated with the National Federa-
tion of Independent Unions, and United Construction Contrac-
tors Association, Inc., Parties to the Contract . Cases Nos. 29-
CP-3 and 29-CP-4 (formerly 2-CP-243 and 2-CP-257) . June 28,
1965
DECISION AND ORDER
On October 28, 1964, Trial Examiner Samuel Ross issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
153 NLRB No. 66.