The Linde Air Products Co.

National Labor Relations Board - Board Decisions

Nov 14, 1949

86 N.L.R.B. 1333 (N.L.R.B. 1949)

In the Matter of TIIE LINDE AIR PRODUCTS COMPANY and UNITED
GAS, COKE AND CHEMICAL WORKERS OF AMERICA, CIO
Case No. 35-CA-9.-Decided November 14, 1949
DECISION
AND
ORDER
On February 28, 1949, Trial Examiner Plost issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed in its entirety, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the I36ard has delegated its powers in connection with
this proceeding to a three-member panel [ Members Houston, Reynolds,
and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the exceptions, modifications,
and additions noted below.
1. We agree with the Trial Examiner that the Respondent did not
discharge Schlomer because of his union membership and activities
in violation of Section 8 (a) (3) of the Act.
Prior to his discharge on January 7, 1948, Schlomer violated several
of the company rules, including the rule against smoking in prohibited
areas,1 visiting other departments without permission, and the rule
requiring employees to ring their own time cards.2 For these viola
' We reject as unsupported by the record the General Counsel' s contention , that at the
time Schlomer was caught smoking he had already rung his time card and, therefore,
was smoking on his own time. We find that Schlomer did not ring his time card until
after he was caught smoking by Brady.
'The evidence also indicates that already in July 1946 Schlomer was considered an
unsatisfactory employee , that a question was raised as to the desirability of his reinstate-
86 N. L. R. B., No. 151. 1333
867351-50-vol. 86-85
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Schlomer received two disciplinary lay-offs. He was also warned
that another violation of any company rule would result in his im-
mediate dismissal. On January 7, Schlomer failed to carry out his
supervisor's instructions as to the order in which certain cylinders
were to be moved to the annealing furnace,3 and lie was also found
loafing on the job. Schlomer was then discharged because of the
repeated infractions and violations of the company rules. The Trial
Examiner also found, and we agree, that the rules violated by
Schloiner were reasonable and necessary for a normal operation of
the plant, that the employees were properly informed of the existence
of the rules, and that, in particular, Schlomer was aware of them.
There is also substantial evidence to support the Trial Examiner's
finding that the rules were uniformly applied and that the Respondent
did not discriminate against Schlomer in the application of such rules.
Regardless of whether the Respondent may have welcomed an oppor-
tunity to discharge Schlomer, the decisive consideration is whether a
delinquent employee would have been discharged for his misconduct
had he not engaged in union activities 4 We are convinced on the
present record that Schlomer would have been discharged.
We conclude, therefore, that the allegation of the complaint that
the Respondent discharged Schlomer because of his union activities
is not sustained by the evidence.
2. We do not agree with the Trial Examiner's findings that the
Respondent did not violate Section 8 (a) (1) of the Act by the fol-
lowing questions or statements of various supervisory employees :
(a) Foreman Brady's query of Neal as to whether he was "sure
[they] would still have a savings plan or still have [their] present
vacation plan after [they had an election and went into contract ne-
went after a 6-month period of an unauthorized leave, and that shortly before the begin-
ning of the organizational campaign Schlomer ' s supervisors were much concerned about
his frequent and unauthorized absence from his work station.
3 Foreman Postwood testified that he instructed Schlomer to start trucking cylinders at
the west end of the bank of cylinders and that it should be done . " immediately ." Schlomer,
on the other hand, testified that Postwood merely told him to move the cylinders to the
annealing furnace and did not specify what cylinders were to be moved first . Inasmuch
as Schlomer was found by the Trial Examiner to be "not an impressive witness" and "did
his best to slant his testimony ," and Schlomer admitted that he commenced to move the
cylinders at the west end of the bank and only later changed the order of moving pursuant
to a request of a fellow -employee , we credit Postwood's testimony and find that Schlomer
was given instructions as to the order in which the cylinders were to be moved, and
that in changing his mode of operation , Schlomer failed to carry out the specific Instruc-
tions of his supervisor.
" The Trial Examiner states that because Schlomer was engaged In the organizing
campaign for the Union, in opposition to the wishes of his employer, he "should have
remembered that the admonition to 'avoid even the appearance of evil' applied to him
as well as to the Respondent ." Schlomer was under no more obligation to avoid the
"appearance of evil " than any other employee . So long as , in engaging in union activities,'
lie was not violating the Company 's valid rules, he was entitled . to the same consideration_
as his fellow employees , who either opposed or remained neutral towards the union.
THE LINDE AIR PRODUCTS COMPANY 1335
.otiations?" The Trial Examiner found that Brady's remarks to
Neal were "just conversational" and, therefore, were within the pro-
tection of the free speech provision of the Act. We disagree. Even
though the remarks were made in a friendly conversation, they were
nevertheless calculated to convey an impression that unionization of
the plant might result in loss of benefits already enjoyed by the Re-
spondent's employees.-' The remarks, therefore, were not privileged
under Section 8 (c) of the Act; 6
(b) Foreman Brady's questioning of Neal as to whether he had at-
tended the union meeting the night before;
(c) Foreman Meng's questioning of Scholl "if [the union] had as
many signers as [it] claimed to have";
(d) Foreman Brady's remark to Neal "I -understand that you have
been elected president of the Union";
(e) Foreman Krassick's, Nicholson's, and Bill's questioning of
Scholl as to whether lie was running for election to a union office or
was elected to such office ; 7
(f) Foreman Heuttner's questioning of Thompson concerning his
"ideas on whether the Union would be beneficial to the department";
and whether he "favored the Union and why [he] favored the Union." ;
(g) Supervisor Lorentz' interrogation of Scholl as to whether he
thought the employees would benefit "if the Union was in there."
The foregoing instances of questioning of employees s by the Re=
spondent's supervisors were in the nature of interrogation of em-
ployees designed to elicit information about the Union. As such, they
were per se violative of the Act because of the tendency of such con-
duct to interfere with the free. exercise of the employee's rights guar-
6 Neal testified that he understood the statement to mean that if they were bargaining
with the Company, their vacation plan wouldn 't be as good as before.
6 See Matter of Union Screws Products , 78 N. L. R. B. 1107, where the Board held that
the statement intended to. convey impression that employees could expect to be treated
harshly if the union got into the plant was coercive , even though the words used were not
In themselves coercive . Matter of Beatrice Foods Co ., 84 N. L . R. B. 512 where the Board
held that implied or indirect promises of benefits or threats of reprisal are just as much
outside the protection of Section 8 (c) of the Act, as those express or direct.
T While the remarks were couched in a form of a statement such as : "So , you are running
for representative of the Union ," and not in form of a direct question, they nevertheless
were posed as a question designed to elicit information. Matter of Tri State Casualty:
Insurance Co., 83 N. L . R. B; 828.
• 8 Employee Scholl testified that Supervisor Clover asked him while both were at the
Coca-Cola machine : "How the Union was going and wondered if they could get in there
and wanted to know if I knew what the prospects were ." The record shows that there
was a question as to whether hourly paid supervisors were to be included in the bargaining
unit , or admitted to membership in the Union . While the record does not show whether
Clover was an hourly paid supervisor ( he was a supervisor on inspection ), the tenor of
his remarks to Scholl indicates. that he considered himself eligible to membership in the
Union . Under the circumstances , we find that Clover 's statement to Scholl was not :'.u
unlawful Interrogation , but merely an inquiry as to whether he could be admitted to
membership in the Union , and as such it was not violative of Section 8 (a) (1).
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anteed in Section 7 of the Act s and they cannot be dismissed as trivial-
Moreover , it is to be noted that they reflect a widespread and extensive
pattern of coercive conduct by the Respondent 's supervisors . We find,
that by the acts of the interrogation described above the Respondent
violated Section 8 ( a) (1) of the Act.
(h) General Foreman Jefferson 's questioning of Welch and Neal
and threats of reprisal . Jefferson asked Welch "why he favored the
Union." When Welch gave better wages and seniority as reasons Jef-
ferson told Welch that he hated to see him to "start out on the wrong
foot," that he had a good record but that others with equally good
records and long service "had been fired." Employee Neal also testi-
fied that about the same time Jefferson asked him what he thought of
the Union , and that on another occasion both he and Jefferson said
"bad things about the Union to each other mostly , that we didn 't think
that they could get us any more money, that they might lose us piece
rates; we might lose our vacations , and we might lose this and that." 10
Jefferson 's statements and remarks , if actually made, clearly consti-
tuted interference , restraint , and coercion . Insofar as these employees
were questioned about their attitude toward the Union, such interro-
gation was per se violative of the Act. Jefferson 's statement to Welch,
moreover, contained an undisguised threat of reprisal if he continued
to engage in union activities , and his statements to Neal indicated that
the Respondent would deprive employees of some of their benefits if
the Union came in. Jefferson , however, died before the hearing and
therefore could not contradict these witnesses. The Trial Examiner
refused to make findings on the basis of the testimony of Welch and
Neal on the ground that the testimony of these witnesses was "en-
tirely uncorroborated ." We disagree . We have held that the evi-
dence of statements attributed to deceased persons should be subjected
9 See Matter of Standard - Coosa-Thatcher Company , 85 N: L . it. B. 1358 in which we
fully explicate our reasons for viewing interrogation as violative of Section 8 (a) (1) ; see
also Matter of The Red Rock Company, 84 N. L. it. B . 521 ; Matter of Forrest Oil Corpo-
ration, 85 N. L. it. B . 85; Matter of Steinberg J Co., 78 N. L. it. B. 211 where the
Board stated that the test of interference , restraint and coercion does not turn upon the
Employer ' s interest , but rather hinges upon whether the Employer is engaged in conduct
which , it may reasonably be said , tends to interfere with the free exercise of employees'
rights under the Act. Matter of Morristown Knitting Mills, 80 N . L. it. B. 731 , involving
a question as to what employee "thought" or "felt" about the union ; Matter of Wytheville
Knitting Mills , Inc., 78 N. L. R. B. 040 , as to employees ' attitude toward the union; Matter
of Jacques Power Saw Co., 85 N. L . it. B. 440, as to how employees stood in the forth-
coming election ; Matter of J. S. Abercrombie Co., 83 N . L. it. B. 524.
11 Schlomer also testified as to a series of meetings between Jefferson and himself during
which Jefferson asked him what grievances he had and why be favored the Union ; whether
if the employees "got a 7 cents raise and a few of these grievances were fixed up in the
plant . . . the people would still yet go for the Union" ; that Jefferson told Schlomer
to find out what the grievances were, collect the union cards but not to turn them in to
the Union for a while. Inasmuch as the Trial Examiner found Schlomer "not an impres-
sive witness" "doing his best to slant his testimony ," and in view of the inherent weakness
in his testimony concerning Jefferson ' s invitation to douhlecross the Union , we will not
make any finding upon Schlomer ' s testimony.
THE LINDE AIR PRODUCTS COMPANY 1337
to the closest scrutiny, but that such evidence may be accepted as true
where it is positive, unequivocal, and substantially corroborated by
other witnesses.11 The testimony of Welch and Neal answers these
requirements. Welch and Neal have been employed by the Respond-
-ent for 10 and 12 years respectively. There was nothing in the record
to impeach their testimony. 12 Neither of them was discredited by the
Trial Examiner. Jefferson's remarks, furthermore, were consistent
with the pattern of statements and conduct of other supervisors show-
ing hostility toward the Union and the practice' of interrogating em-
ployees concerning the Union and thus find substantial corroboration
therein. Under these circumstances we find that the interrogation
and remarks attributed to Jefferson in fact took place and that the
Respondent thereby violated Section 8 (a) (1) of the Act.
3. The Trial Examiner found, and we agree, that Superintendent
Freeze's speech to the employees on the eve of the election was privi-
leged under Section 8 (c) of the Act. Among other things Freeze
told the employees : that a Union has no place in the plant and is not
needed; that its presence offers always the "threat of constant wran-
gling, disruption of harmonious relationship with the possibility of loss
in pay due to work stoppages, direct strikes and sympathy strikes"';
that "an undesirable wedge of distrust and misunderstanding would
be driven between the Company and the employees"; and that the
outcome of grievances would be rendered "uncertain" because of the
necessity to resort to a "cumbersome procedure burdened with tech-
nicalities." We do not construe these statements as implying either
.a threat of reprisal or a promise of benefit. Rather, we believe, they
were in the nature of the prediction of consequences, which would
flow from the employees' designation of the Union as their bargaining
agent, which the Employer was privileged to make.13
REMEDY
We have found that the Respondent has engaged in certain unfair
labor practices in violation of Section 8 (a) (1) of the Act. We shall
order the Respondent to cease and desist from engaging in such
conduct. The Respondent's unlawful conduct, in our opinion, dis-
11 Matter of Reynolds Wire Company, 26 N. L . R. B. 662, enfd . 121 P . ( 2d) 627 ( C. A. 7) ;
Matter of Quarles Mfg. Co ., 83 N. L . R. B. 697.
12 We do not regard certain minor discrepancies between their testimony and their
.affidavits obtained by the Respondent prior to the hearing as affecting the probative value
of their testimony at the hearing.
1' See : Matter of Agar Packing R Provision Corporat ion, 81 N . L. R. B. 1 . 262 ; Matter of
Burns Brick Co., 80 N. L. If. B. 389; ef. Matter of The Electric City Dyeing Co., 73
N. L. R. B . 872, where the speech contained the following statement : "remember that there
is much more to be gained from friendly management than there is from one whose hand
may be forced unfairly in this manner," which the Board construed to be an implied
promise of benefit.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closes a fixed purpose to defeat self-organization and its objectives.
Because of the Respondent's unlawful conduct and its underlying
purpose, we are convinced that the unfair labor practices found are
persuasively related to the other unfair labor practices proscribed by
the Act and that a danger of their commission in the future is to be
anticipated from the course of the Respondent's conduct in the past.
The preventive purpose of the Act will be thwarted unless our order
is coextensive with the threat. In order, therefore, to make effective
the interdependent guarantees of Section 7, to prevent a recurrence
of unfair labor practices, and to minimize strife which burdens and
obstructs commerce, and thus to effectuate the policies of the amended
Act, we will order that the Respondent cease and desist from infring-
ing in any manner upon the rights guaranteed by Section 7 of the
amended Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, The Linde Air Products
Company of Indianapolis, Indiana, and its officers, agents, successors,
and assigns, shall
1. Cease and desist from:
(a) Interrogating its employees in any manner concerning their
union affiliation, activities, or sympathies, or threatening them with
discharge or other economic reprisal because of their union affiliation,
activities, or sympathies;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Gas, Coke and Chemical
Workers of America, C. I. 0., or any other labor organization, to bar-
gain collectively through representatives of their own choosing and
to engage in concerted activities, for the purpose of collective bargain-
ing or other mutual aid or protection, and to refrain from all of such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Post at its plant in Indianapolis, Indiana, copies of the notice
attached hereto marked "Appendix A." 14 Copies of such notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
14 In the event that this Order is enforced by a decree of a United States Court of Appeals,,
there shall be inserted before the words , "A DECISION AND ORDER," the words,, "A,
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
THE LINDE AIR PRODUCTS COMPANY 1339
being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Ninth Region'in writing,
within ten (10) days from the receipt of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminatorily dis-
charged Robert S. Schlomer.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees in any manner concern-
ing their union affiliation, *activities, or sympathies, or threaten
them with discharge or other economic reprisal because of their
union affiliation, activities, or sympathies.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist UNITED GAS, COKE
AND CHEMICAL WORKERS or AMERICA, C. I. 0., or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
THE LINDE AIR PRODUCTS COMPANY,
Employer.
By------------------------------------
(Representative ) ( Title)
Dated ------------------
. This notice must remain posted for 60 consecutive days from the date
hereof, and must not be altered , defaced, or covered by any other
material.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Messrs. Karl Dieffenback and William A. McGowan, for the General Counsel.
Mr. Clarence L. Sager, of New York City, for the Respondent.
Mr. Sam Angelocci, of Chicago, Ill., and Mr. Welcome Joe Neal, of Mooresville,
Ind., for the Union.
STATEMENT OF THE CASE
Upon a charge filed January 8, 1948, by United Gas, Coke and Chemical
Workers, affiliated with the Congress of Industrial Organizations, herein called
the Union, the General Counsel for the National Labor Relations Board,' by the
Regional Director for the Ninth Region, (Cincinnati, Ohio), issued a complaint
dated October 26, 1948, against The Linde Air Products Company, of Indianapolis,
Indiana, herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices within the meaning of Section 8
(a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended (Pub. Law 101, 80th Congress, Chapter 120, 1st Session), herein
called the Act! Copies of the complaint and the charge together with a notice
of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance :
(a) that on January 7, 1948, the Respondent discharged Robert S. Schlomer and
has since failed and refused to reinstate him because of his membership in and
activities on behalf of the Union; (b) that on and after October 15, 1947, the
Respondent interrogated its employees concerning their union affiliations and
warned and threatened its employees to refrain from assisting or becoming or
remaining members of a labor organization; (c) that by these acts the Respond-
ent has interfered with, restrained, and coerced its employees and is interfering
with, restraining, and coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act and more particularly has violated and is violating Section
8 (a) (1) and (3) thereof.
Thereafter the Respondent duly filed an answer in which it averred that Robert
S. Schlomer was discharged for cause and denied that it had engaged in any of
the unfair labor practices alleged in the complaint.
Pursuant to notice a hearing was held at Indianapolis, Indiana, November 16
to 23 inclusive, and November 29 through December 3, 1948, before Louis Plost,
the undersigned Trial Examiner, duly designated by the Chief Trial Examiner.
The General Counsel, the Respondent, and the Union were all represented, par-
ticipated in the hearing and were given full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the opening of the hearing the undersigned granted without objection a
motion by the General Counsel to amend the complaint to allege that the
Respondent's general offices were located in New York City.
At the conclusion of the General Counsel's case in chief the Respondent moved
to dismiss the complaint on the ground that it was not supported by the evidence.
The undersigned denied the motion.
An opportunity was afforded all the parties to present oral argument on the
record. Such argument was waived by all the parties. A date was set for the
filing of briefs and conclusions of law, findings of fact or both with the under-
' The General Counsel and his representatives are herein referred to as the General
Counsel, and the National Labor Relations Board as the Board.
2 61 Stat. 136.
THE LINDE AIR PRODUCTS COMPANY 1341
signed, the time for the filing thereof being extended on motion made after the
close of the bearing by the General Counsel and the Respondent respectively.
Briefs have been received from the General Counsel and the Respondent and have
been considered by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, The Linde Air Products Company is an Ohio corporation
maintaining a factory for the manufacture of gas cylinders and welding equip-
ment at Indianapolis. Indiana, where it employs approximately 850 individuals.
The Respondent maintains its general offices in New York City. The Respondent
purchases in excess of $;500,000 worth of materials annually for use in its manu-
facturing processes in its Indianapolis factory. Ninety percent of such materials
are purchased by the Respondent from outside the State of Indiana. The
Respondent's gross sales are in excess of $900,000, annually. Eighty percent of
its sales are to points outside Indiana.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
United Gas, Coke and Chemical Workers of America, CIO, is a labor
organization admitting employees of the Respondent to membership.
111. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
The Union began an organizational campaign among the '_'• espondent's em-
ployees in the fall of 1947. Rudolph J. Freese, who was sul :^i rintendent of the
Respondent 's Indianapolis plant at the time , and who now is assistant manager
,of all the Respondent 's factories , testified that the Respondent had full knowl-
edge of its employees ' efforts to organize a union from the beginning of their
campaign until it was culminated by an election to determine a bargaining rep-
resentative conducted by the Board on July 15, 1948 s
There crept into the record a statement by the General Counsel , in the nature
of an admission , that following the election the Union filed with the Regional
Director certain objections to the conduct thereof, and that these objections
were withdrawn without prejudice , and further that the charge on which the
complaint is based was filed on the same day as was the petition for the election.
Welcome Joe Neal testified that he joined the Union at an open meeting and on
the next morning informed his foreman that he had done so. Neal testified that
the foreman , one Burke , thereupon told him "it was no affair of his ( Burke's)
and we would get along just like we always had." However John H. Brady,
.at that time assistant general foreman and now general foreman, with whom
Neal was apparently on very friendly terms, and with whom Neal had dis-
cussed the Union on numerous occasions before his joining, and continued to
have conversations with Neal regarding the Union and its affairs . Brady dis-
cussed the Respondent's vacation plan and savings plan and pointed out that
such matters were usually written into union contracts and asked if Neal "was
e The results of the balloting were 236 for the Union and 514 against.
1342 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
sure we would still have a savings plan or still have our present vacation plan
after we had an election and went into contract negotiations and stuff." Neal
further testified that in one of their conversations Brady said to him "Joe you
wouldn't want some Nigger with his arm around you walking out the front gate
calling you `Brother.' And he also pointed out Communism in Unions, bad parts
like that."
Neal further testified that he was elected president of the local Union and that
on the next day Brady remarked to him :
"I understand you've been elected president of the Union. Is that right?"
Or, he'd ask me, "Did you go down to the meeting last night?" or "Was you
down to the meeting Sunday?" and things along that line-just conversa-
tional. "What did you do or where have you been?" .. . things like that.
• Neal testified that he and Brady :
-talked so much about the Union that later what-we talked about was more
or less general Union affairs all over the country.
That is we would talk about the A. F. of L., the C. I. 0., this Union there,
about the strikes and this company, Carbonindimus plant, about the strikes
at Oak Ridge Plant-no strike at the Oak Ridge-but the labor difficulty
they were having at the time, and a great deal of talk about this communist
stuff.
These conversations took place at Neal's place of work in the plant, and while
Neal was at work.
Brady did not deny any of the foregoing testimony.
Considering all the circumstances surrounding these conversations between
Brady and Neal and upon all the evidence in the record the undersigned is
persuaded that the above-related remarks and statements of Brady to Neal
were as Neal characterized them "just conversational" and come within the
protection of Section 8 (c) of the Act which prohibits a finding of unfair labor
practices based upon expressions of opinion which in themselves contain no,
threat of reprisal or force or promise of benefit.
Neal farther testified that Brady told him after he had been elected president
of the Union that Brady "was going to fire" three named employees "if they
didn't cut out their union activity." At the same time Brady said that one of
the men in question "was off the job for as high as 30 minutes." Neal volun-
teered "I assumed that Mr. Brady assumed that these men were running around
.signing up Union cards or talking Union or something."
Brady testified that he told Neal at the time that "it was possible for me to
discipline people who conducted union activities on company time."
The three men were not discharged.
Under all the circumstances and on the entire record, the undersigned finds:
.that Brady's statement to Neal to the effect that certain employees would
either be disciplined or discharged by Brady if they continued to engage in
union activities on the Respondent's time, was not violative of the Act
4 Neal also testified that he found certain identical clippings from newspapers in which-
the Union was apparently referred to as Communist-controlled, one on a foreman 's cabinet
attached to a letter marked "confidential " and addressed to the foreman and the other onr
a bench or table in the plant cafeteria after working hours. The Respondent admitted
furnishing clippings as described by Neal, to its foremen as confidential inform ation. Then
undersigned finds that the distribution of the above clippings to its supervisory staff by
the Respondent Fan pot be Used as a basis for any finding of unfair labor practice by
the Pespondent,
THE LINDE AIR PRODUCTS COMPANY 1343
Hardy Thompson testified that on an unspecified date Foreman Heuttner
called Thompson to his office and there engaged him in conversation regarding
Thompson's union ideas for "about an hour and a half." Thompson testified
that Heuttner began the conversation with the statement :
Now this is just a private conversation between you me. He says,
"I am not trying to influence you against the Union or for the Union, but"
he says, "You have been in this department a long time and would like to
have your ideas on whether the Union would be beneficial to the department."
Thompson testified that he then gave Heuttner "my ideas on why I thought the
Union would benefit the Department." Thompson further testified that the
foreman closed the conversation with the statement:
Now, Son, I don't want you to think I am trying to influence you one way
or another, you have the decision to make.
John Scholl testified that about 5 weeks before the election, (July 15, 1948)
Supervisors Paul Nicholson and Walter Krassick said to him "So you are
running for representative of the Union." Scholl testified that lie replied,
"what do you mean running?" On another occasion Krassick said to Scholl
"Well the Union might be a good thing. My brother belongs to the Union."
Scholl further testified that Supervisor Cloyd Bills on an undisclosed date
spoke to him about the Union. Scholl testified:
-we (Bills and Scholl) had been friends for years and he asked me, "So you
are recording secretary of the Union"? And I said, "Yes," and lie just
walked away.
Scholl further testified that Supervisor Clover asked him while both were at
the Coca-Cola machine:
-how the union was going and wondered if they could get in there and
wanted to know if I knew what the prospects were.
Scholl also testified that Supervisor Meng from time to time talked to him
about various pamphlets the Union distributed; Scholl volunteered, "I can't
remember anything specific." He also testified that Supervisor Lorentz asked
him after the election whether Scholl thought the employees would benefit "if
the Union was in there."
The above-related testimony of Thompson and Scholl is credited by the under-
signed,' however, the acts and conduct of the Respondent disclosed by this.
testimony are patently too trivial to serve as the basis for an allegation that
the Respondent violated Section 8 (a) (1) of the Act thereby.
As has been recently said in a similar matter by Judge Minton in Sax v.
N. L.R.B'
Such perfunctory, innocuous remarks and queries standing alone as they
do in this case, are insufficient to support a finding of a violation of 8 (1),
they come instead within the protection of free speech protected by the
First Amendment to the Federal Constitution.
Gilbert Welch testified that approximately November 1, 1947, John Jefferson,
at the time general foreman of the Respondent's Indianapolis factory had
" The General Counsel also offered the testimony of one John Gershonaff to prove a
violation of Section 8 (a) (1) by the Respondent . The undersigned does not credit
Gershonaff.
6 Sax v. N. L. R . B., 171 F . ( 2d) 769 ( C. A. 7). See also Matter of Opelika Textile Mills,
81 N. L. R. B. 594.
_1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welch called to Jefferson's office and there asked him why he favored the
Union. Welch told Jefferson the Union might get him "a little more wages"
and protect his seniority. Jefferson then compared wages in various plants and
;told Welch he hated to see him "start out on the wrong foot," that he had a good
.record but that others with equally good records and long service "had been
.fired." Jefferson then remarked that Bob Schlomer was interested in the
Union and asked Welch to talk to Schlomer and "discourage" him. Welch
replied that he did not know what lie could say to Schloiner whereupon Jefferson
said he would speak to Schlomer himself.
Robert S. Schlomer testified to a series of meetings between Jefferson and
himself in Jefferson's office at which the two men discussed the Union. Accord-
ing to Schlomer the first of these meetings took place on about November 1, 1947;
the conversation lasted 11/ hours ; the men discussed a union leaflet, in which
-wage rates were discussed, Jefferson claiming that the Respondent's present
rates were higher than those promised by the Union in its literature. A second
-meeting, according to Schlomer, took place 2 or 3 days later, when Jefferson
-asked him what grievances he had and why he favored the Union. Schloiner
testified that at a later meeting, either the third or fourth between the two men,
Jefferson asked "do you think that if the people got a 7 cents raise and a few
of these grievances were fixed up in the plant, do you think that the people
would still yet go for the Union?" Schlomer testified that he told Jefferson
that some 12 or 15 men working in the machine shop, had signed union cards
.and that these men also had grievances and that Jefferson told Schlomer to
go to the machine shop, learn what the grievances were, collect the union cards
and "not turn the C. I. O. cards in to the Union until after a while." According
to Schlomer he was asked by Jefferson to do this on "spare time," meaning after
his piecework rate had already exceeded his guaranteed day rate. Schlomer
promised to do as Jefferson requested.
Welcome Joe Neal testified that sometime in September 1.948, Jefferson asked
-him "What do you think of this Union, Joe?" and that on another occasion in
.Jefferson's office and on still another occasion in the tool crib he and Jefferson
:talked of the Union and: "We said bad things against the Union to each other
mostly that we didn't think that they could get us any more money, that they
might lose us our piece rates ; we might lose our vacations, and we might lose this
.and that." Neal testified that at the time he and Jefferson discussed the Union:
"Jeff and I had been friends for quite a while" and that in these conversa-
tions "you understand that I was against the Union and so was Mr. Jefferson."
As has been found herein Neal later joined the Union and became its president.
He was one of the Union's representatives at the hearing.
Jefferson died before the hearing.
Inasmuch as the testimony of Welch, Schlomer, and Neal in respect to their
alleged conversations with Jefferson is entirely uncorroborated, and in view of
Jefferson's death prior to the hearing, the undersigned is reluctant to make any
finding thereon although the testimony was clearly admissible. Therefore con-
sidering all the circumstances the undersigned makes no finding on the testimony
of Welch, Schlomer, and Neal with respect to their conversations with Jefferson
as above set out.
The parties stipulated at the hearing "that Mr. Freese' did address the em-
ployees of the Prest-O-Lite factory on July 14, 1948; that a copy of the address
which lie delivered was mailed to the employees of the factory, that General
7 Rudolph Freese, at the time superintendent of the Respondent's Indianapolis factory.
THE LINDE AIR PRODUCTS COMPANY 1345-
Counsel's Exhibit 8, for identification, which purports to be a copy of that speech.
shall be received in evidence."
The speech was delivered on the day preceding the election held among the-
Respondent's employees by the Board.
In his brief the General Counsel argues that the speech as delivered contains:
threats of reprisals should the employees select the Union as their bargaining:
agent.
The undersigned cannot agree with the General Counsel. The undersigned
cannot find any threat apparent in the language of Freese's speech, nor does the-
language cited by the General Counsel, torn from the context of speech, in any
manner serve to persuade the undersigned that the language of itself is in any-
manner coercing.
The undersigned concludes that Section 8 (c) of the Act applies herein and'
therefore finds that the Respondent did not coerce, restrain, and intimidate its.
employees by the speech delivered to them by Superintendent Freese on July 14,.
1.948.
B. The alleged discriminatory discharge of Robert S. Schlomer
Robert S. Schlomer was employed by the Respondent some time in 1936 arid`
continued in this employment until January 7, 1948, at which time he was dis-
charged. During this period Schlomer was not laid off by the Respondent except
at such times when work was not available and was always recalled to work--
when so laid off.
Schlomer was absent from work for a 6 -month period in 1946 , and he was also,
absent on military service , returning to work from such service November 5, 1945..
The record does not disclose when Schlomer entered the Army.
The Respondent contends that during this entire 12-year period Schlomer was
an unsatisfactory employee and was finally discharged for repeated violation of
plant rules.
Early in his employment with the Respondent , on a date not fixed other than
being 7 or 8 years prior to the hearing , Schlomer wrecked a press he was feeding,
by placing two pieces of metal in the mechanism instead of a single piece as he
had been directed to do. Schlomer admitted the occurrence and testified that he
broke the machine because he followed the suggestion of a bystander, never
identified.
On March 11 , 1946, Schlomer asked for and received a short leave of absence-
He did not return to work until some time in September 1946.8 On his return
he was told that he had been dropped as "quit" under a rule which required em-
ployees to obtain excuses for unauthorized absences of more than 3 days.
Schlomer was however later reinstated.
Schlomer testified that he was too sick to work during this period but the record
is clear that he did not so report to the Respondent.
The record shows that during the period of this absence Schlomer purchased
and operated a garage and automobile repair shop which he sold at a profit just
before reporting for work in September.
Clarence L. Marlin, in charge of the Respondent 's industrial relations , testified
that Schlomer had returned from military service on November 5, 1945 , and that
the Respondent reinstated Schlomer after the 6 months' unauthorized absence
for the reason that the Veterans Administration had informed the Respondent
that Schlomer was entitled to full reemployment rights for 1 year following his
return from army service.
6 This is the 6 months' absence previously referred to.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime in July 1947, an employee was seriously injured while operating a
band rolling machine ; the next day Schlomer was apprehended by his foreman
operating this machine without authority to do so.
Albert Marsh testified that in September 1947, he observed Schlomer leave the
Respondent's plant and enter an adjoining plant.
Ernest Sandefur corroborated Marsh and further testified that he had been
asked by an employee of the adjoining plant to take word to Schlomer that he
was wanted there and that he did so. Sandefur testified that he saw Schlomer
go into this plant on two occasions on that day and also saw him do so on other
days. Sandefur did not report the incident to his supervisor.
The Respondent states in its brief :
There was no contention of Respondent at the Hearing, and there is none
now, that either the punch press or band roll episode constituted grounds
for Schlomer's discharge.
The Respondent further states in its brief that it had no knowledge of the
incidents related in the above-related testimony of Marsh and Sandefur until
after January 7, 1948, and that it does not contend that Schlomer's conduct as
so related entered into his discharge.
On October 27, 1947, Assistant General Foreman Brady caught Schlomer
smoking in the t6ilet, where smoking was specifically prohibited. Brady im-
mediately punished Schlomer by a 3-day disciplinary lay-off. The record is clear
that Schlomer was violating an established and enforced rule when Brady
discovered him smoking in a restricted area.
On November 12, 1917, Schlomer was caught outside his own department in
violation of company rules. -
Schlomer admitted that he had left his work and was visiting James A. Wade
.an employee in another department without permission.
Wade testified that Schlomer spent 10 minutes talking to him. Schlomer.
testified that he talked to Wade 15 or 20 minutes. The actual time Schlomer
spent away from his own department without authority as the time in question
is not shown by the record.
Foreman Samuel F. Radcliff testified that on November 12, he received a
telephone call from Foreman Henry Williams in which Williams informed him
that Schlomer was not at his station. Williams testified that he telephoned
Radcliff and Assistant Plant Superintendent Brady that Schlomer was away from
his work. Williams testified that Schlomer "was gone from 11 to 11: 15 to my
knowledge. I didn't know if he was gone before that, or,not, because I was-
gone before that."
Radcliff further testified that after receiving Williams' telephone call he
looked for Schlomer but did not find him. While seeking Schlomer he met
Foreman Marvin A. Brown and the two foremen then went through at least two.
departments in searching for Schlomer. Not finding him they separated and
each continued the search alone.
Brown testified that independently he had noticed that Schlomer was away.
from his work and after waiting 15 or 20 minutes he started to look for him and
met Radcliff who was also seeking Schlomer. After leaving Radcliff, Brown,
came upon Schlomer talking to employee Wade in a department where Schlomer
did not work and started back with Schlomer to the latter's department, meeting
Brady on the way.
Schlomer testified that when he and Brown were met by Brady the latter
asked where he had been and upon being told :
THE LINDE AIR PRODUCTS COMPANY 1347
Mr. Brady told me that I was-had been out of my department and that
he was going to give me a black mark for this violation ; that he was going
to send it over to the office, the black mark. He said that-that we were-
he said that we are going to stay within the law on this thing and we aim
for you to do likewise, and he said that doing-it is illegal, he said ; it is
against the law. He said, "We'll not tolerate it, and we d:;n't aim for you
to do it either."
Brady testified as follows :
A. Well, it is quite a lengthy story. Mr. Schloiner was gone from his
work station for a period of approximately an hour. There were quite a
few people trying to locate Bob on the company premises and that is how
it cane to my attention. A man, Henry Williams by name, foreman of the
T. Q. Department , waited at Schlomer' s welding station in the event that he
should return before the people that were looking for him found him. He
did not return and I received a phone call at my office from John Welling,
he was the foreman of the A. T. department at that time ; he has since
retired. He was looking for Sam Radcliff to ask him why Schlomer was
down in his department, whether he was down there on business , or if he
had permission to be away from his department, the T. A. department.
I knew Schlomer was absent , and I told Mr. Welling personally-
Q. You knew it as a result of this telephone conversation?
A. Mr. Williams had called me, and I did not go over at that time-I went
to my lunch, I usually eat around twenty minutes to twelve, and when
Schlomer was not back yet at that time, Mr. Williams got me from the
cafeteria, and I went to T. Q. with him. Then I went to my office and I
received a phone call while I was there.
Q. About what time was it when you got that telephone call?
A. Oh, I would say it was about 11: 45, or quarter to twelve, something
like that.
Q. What did you do then?
A. I started for A. T. department.
Q. And why were you going to A. T. department?
A. I was going to personally get Mr. Schlomer and escort him back to his
place of work.
Q. And nobody had been able to find him?
A. To that time, no, sir.
Q. Did you get him and escort him back to his place of work?
A. Mr. Brown had come upon Mr. Schlomer at the A. T. department after
hunting him for quite a while and was on the way back to Building 4, the
building- in which Bob was working at that time. I met them in the aisle
and I spoke to Bob at that time in the presence of Brown, Marvin Brown.
Q. What did you say to him?
A. I ascertained whether or not Bob had permission to be away from his
work station. If I am correct, his answer was no. He told me that he was
down in the A. T. department talking to Red Wade. I did not inquire as to
what he was talking about, and I proceeded to tell Bob about the Taft-
Hartley Law,.and explained to him that the company had the right, if it so
desired, to prohibit union activities and organization going on on company
time.
0
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I informed him that as he knew from the bulletin notice that had been up,
there, that that was the company's attitude on it, and I said, "Regardless of
whether or not you were down there talking to Red Wade about unionism,
it is no business of mine, you have been off your job for close to an hour, and
I personally am going to give you a warning notice."
I believe I further stated it would lead to dismissal if he did not change his
ways and stay at his work station and conduct himself in that manner.
Brady further testified that he made out a warning notice which was put in.
Schlomer's personnel record. Brady testified "I had so much to say, it was too.
much to go on one of the small forms, so I made a typewritten letter out of it."'
The Trial Examiner then asked Brady:
Now, with all this record against him, meaning Schlomer, and in view of
the fact this was so serious you felt you must write a report you could not
get on a regular form, so you had to make a letter out of it, why didn't you,
just fire him?
Brady's answer to the question was:
That is not our policy out at Prest-O-Lite, sir. Every person is given more
than an ample chance to rectify their ways if they are faulty. It is very;
very seldom that anyone is just fired on the spot like that.
Foreman Williams offered no adequate explanation as to why he felt obligated
to telephone Radcliff and why (according to Brady's testimony) he "got me-
[Brady] from the cafeteria" in order to tell hire that Schlomer had been away
from his work from 11 to 11:15; nor did Foreman Brown explain why upon
noticing that Schlomer had been gone for 15 or 20 minutes he found it necessary
to go hunting for him.
Brady also testified that he received a telephone, call' from. Foreman John.
Welling reporting that Schlomer "was down is his; department" and that there-
after Brady left his office and joined in the search with the avowed intention.
"to personally get Mr. Schlomer and escort him. back to his place, of work" while
also according to Brady "a man, Henry Williams- by name, foreman of the,
T. Q. department waited at Schlomer's welding station. in. the event that he
[Schlomer] should return before the people that were looking for him found him."
Was the absence of 1 welder so vital to the operation of a plant employing
800 people, and so serious as to create such furore? Was- the offense such as to.
warrant action commensurate with the energy and effort expended in apprehend-
ing the culprit? Brady's testimony would indicate that such was not the case,:
however Brady's testimony casts clear light on the real reason Schlomer's absence
was noted and why he was hunted down by supervisory officials, for Brady testi-
fied that after "I met them in the aisle.... I did not inquire as. to, what he was
talking about, [to Wade] and I proceeded to tell Bob about the Taft-Hartley law,
and explained to him that the company had the right, if it so, desired,, to prohibit
union activities and organization going on on company time."
Brady closed his talk to Schlomer with the statement, "Regardless of whether
or not you were down there talking to Red Wade about unionism; it is no business
of mine, you have been off your job for close to an hour, and 11 personally am.
going to give you a warning notice."
Clearly the Respondent was of the opinion that Schlomer 'was away from
his work "about unionism," but also the Respondent clearly did not discharge
Schlomer at the time for leaving his work for the very reason that he was engag-
THE LINDE AIR PRODUCTS COMPANY 1349
ing in activities on behalf of the Union. The Respondent apparently was of
the opinion that in its relations with its union-minded employees it must be
more circumspect than Caesar's wife. At any rate, when presented with a clear
violation by a union-minded employee, instead of ridding himself of the em-
ployee out of hand the Respondent' s assistant general foreman merely volun-
teered "whether or not you were down there talking to Red Wade about union-
ism, it is no business of mine." In this manner Brady sought to avoid even
the appearance of evil.' The undersigned so finds.
On November 12, 191,7, the same clay on which Schlomer was away from his
work as herein above found, Schlomer at the close of the day had another em-
ployee "ring out" his time card.
This was a practice against the Respondent's rules, which required all em-
ployees to "ring" their own cards through the time clock. Employees were in-
formed of the rule and violators were disciplined.
The employee who "rang out" Schlomer's card was apprehended and he as
well as Schlomer and another employee whose card was also being rung out
together with Schlomer's, in violation of the rule, were given disciplinary
lay-offs.
On the morning of January 7, 1.948, Schlomer was assigned a task of moving
certain cylinders from their temporary storage place to the annealing furnace.
These cylinders were wet and it was necessary to dry them in the furnace. They
were stacked or rather were standing in rows in a spot adjacent to the bay in
which they were tested.
Schlomer admitted that he was instructed to start at the west end of the
group of cylinders and remove them from west to east in regular order. The
Respondent contends that the removal of the cylinders was an emergency job,
that the manner of removal was also important and that Schlomer was told so,
There is nothing to contradict the testimony that Schlomer was told in what
manner the cylinders were to be removed.
Schlomer did not follow the instructions given him, instead of removing the
cylinders from the lower end of the bank in the regular order ; he removed
them through the bank of cylinders so that he cut a path, two cylinders wide,
through the bank from the row on which he was supposed to start to the edge
of air test bay adjoining the stacked cylinders. When Schlomer reached the
edge of the air test hay he entered into a conversation with the air testing opera-
tor. He was observed talking to this employee by Radcliff who then took
Schlomer to the office, where, after a hearing he was discharged.
Schlomer admitted that he failed to follow the instructions given him and
offered the explanation that he moved the cylinders as lie did because the operator
of the air testing bay asked him to do so.
A great deal of testimony was adduced to the effect that the moving of the
cylinders was an emergency job, that if not dried immediately the cylinders would
become dangerously defective, that the operator of the air test did not ask
Schlomer to move the cylinders and that if he did so he had no authority to do so
and Schlomer had no right to follow his instructions in place of those of his fore-
man. The undersigned does not deem any of such testimony relevant and bases
no finding thereon.
U The Respondent also presented testimony by Foremen Radcliff and Brown to the effect
that prior to Schlomer's above found conduct Schlomer had also been observed absent from
his work station without authority. From his observation of Radcliff and Brown, from
the nature of the testimony and on the entire record the undersigned does not credit
Radcliff and Brown in this respect.
867351-50-vol. 86-86
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schlomer was given a definite order to follow. He did not do so and was
discharged. The Respondent contends the last act was the culmination of a
series, all of which entered into Schiomer's discharge.
The complainant alleges that Schlomer was discharged because of his member-
ship in and activities on behalf of the Union.
The General Counsel contends that Schlomer was not reprimanded nor was any
fault ever found with his work until he joined the Union.
Schlomer testified without contradiction that he joined the Union at an open
meeting on October 11, 191(1. At this meeting Schlomer announced that he had
"Signed up almost all of Brownsburg" and exhibited signed application cards to
prove his statement.
The series of reprimands, lay-offs, and final discharge which thereafter occurred
all followed this October date.
Schlomer was discharged January 7, 1948. On January 6, Schlomer passed
out union literature at the plant gate.
Schlomer was not an impressive witness. He evidently did his best to slant
his testimony. At one point he testified that he did not recognize his own signa-
ture on various documents, some of them canceled pay checks.
On the other hand certain witnesses called by the Respondent, especially,
Foremen Brown and Radcliff, were in the opinion of the undersigned not credible
in much of their testimony.
Certain facts however are clear. Schlomer did violate established rules and
moreover Schlomer did fail to carry out an order regarding his work, willfully
disregarding instructions given him.
The most that can, in the opinion of the undersigned, be said of the Respondent
is that the Respondent entered into its employees campaign for a union as a
participant against the Union, and as such a participant may be presumed to have
watched closely for any infractions by known union adherents.
The Respondent may have welcomed an opportunity to discharge Schlomer
but Schlomer as an active union member, engaged in an organizing campaign
for the Union, in opposition to the wishes of his employer, should have remem-
bered that the admonition to avoid even the appearance of evil applied to him
as well as the Respondent. By violating established rules, two of them in 1 day,
Schlomer was inviting trouble. By willfully disobeying instructions regarding
the performance of a task assigned to him Schlomer laid himself open to discharge.
In a plant as large as that of the Respondent's the employer-employee relation-
ship is of necessity impersonal. Operations must be carried on according to rules
either express or so obvious as to be considered implied, otherwise the result is
chaos. Of these rules, and in this impersonal relationship, where a time clock and
time card system is in effect it must be presumed that every employee on a time
card must personally ring the card through the time clock at the beginning and
close of his work period ; rules relating to health and safety must be observed
exactly as required by the employer ; it should be presumed that the employee
relationship requires that an employee remain at his work and work station
except in case of required necessary absences, or when otherwise specifically
authorized, and an employee is undoubtedly required to follow the instructions of
his supervisor in carrying on his work.
The employer-employee relationship requires the employee to obey the em-
ployer's work rules, but the employer is on the other hand required to administer
his work rules impartially. In the opinion of the undersigned the record does
not show that the Respondent discriminated against Schlomer in the application
of the work rules, express or implied, which governed the Respondent's plant.
THE LINDE AIR PRODUCTS COMPANY 1351
Quite the contrary, the rules seem to have been uniformly applied.
The fact that Schlomer's real troubles began after the Union began organizing
and Schlomer became active in its behalf does not itself prove discrimination
against him by the Respondent.
The Respondent did not create the situations which occasioned either the
disciplinary action against Schlomer or his tinal discharge. Schlomer and the
Respondent were traveling a two-way street during the period of the organization
of the Union, and in fact during any period affected by the rights guaranteed
employees by the Act. The Respondent was required not to interfere with
Schlomer's right to help organize a union or to engage in concerted activity there-
fore with fellow employees. Schlomer was required to remember that he was
subject to the Respondent's plant rules and regulations if they were not dis-
criminatorily aimed and administered against him because of his union adherence
and activity.
Although the issue is not entirely free from doubt the undersigned finds that
the Respondent did not discharge Robert S. Schlomer, on January 7,1948, because
of his membership in and activities on behalf of the Union as alleged in the
complaint.
Concluding findings
The undersigned finds that the various remarks of Assistant General Foreman
Brady to Neal , including Brady 's statement to Neal that Brady would either
discipline or discharge three named employees ; Foreman Heuttner's statements
to Thompson ; the statements of Foremen Nicholson , Krassick , Bills, Clover, and
Meng to Scholl and the speech delivered by Superintendent Freese to the Respond-
ent's employees on July 14 , 1.947, did not constitute either collectively or severally
constitute a violation of Section 8 (a) (1) of the Act by the Respondent. The
undersigned further finds that the proof does not support the allegations of the
complaint engaged in any conduct violative of Section 8 (a) (1) of the Act.
The undersigned further finds that the Respondent did not engage in conduct
violative of Section 8 (a) (3) of the Act by discharging Robert E. Schlomer on
January 7, 1948, but finds that Schlomer was discharged for cause.
In view of the above findings and upon all the evidence considered as a whole,
the undersigned recommends that the complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
(1) The operations of the Respondent, The Linde Air Products Company, con-
stitute, and affect trade, traffic, and commerce among the several States, within
the meaning of Section 2 (6) and (7) of the Act.
(2) United Gas, Coke and Chemical Workers of America, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
(3) The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint against The Linde Air Products Company,
Indianapolis, Indiana, be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Board, Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report and Recommended Order or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in suport thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of the
Intermediate Report and Recommended Order. Immediately upon the filing of
such statement of exceptions and/or briefs, the party filing the same shall serve
a copy thereof upon each of the other parties. Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied upon
and shall be legibly printed or mimeographed, and if mimeographed shall be
double spaced. Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.85. As further provided
in said Section 203.46 should any party desire permission to argue orally before
the Board, request therefor must be made in writing to the Board within ten
(10) days from the date of service of the order transferring the case to the
Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of February 1949.
Lours Prosi',
Trial Examiner.