Tuck Spring & Steel, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1967

163 N.L.R.B. 375 (N.L.R.B. 1967)

TUCK SPRING & STEEL, INC.
All of our employees are free to become, remain, or
refrain from becoming or remaining , members of Retail
Clerks and Managers Union Local 1357, affiliated with
Retail Clerks International Association, AFL-CIO, or
any other labor union.
NORMANDY SQUARE FOOD
BASKET, INC.
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 1700 Bankers
Security Building , Walnut & Juniper Streets,
Philadelphia, Pennsylvania 19107, Telephone 597-7617.
Tuck Spring & Steel , Inc. and Lodge
No. 1434 , International Association of
Machinists and Aerospace Workers,
AFL-CIO. Case 19-CA-3277.
MARCH 14,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 4, 1966, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
committed certain other alleged unfair labor
practices, and recommended that these allegations
be dismissed. Thereafter, , Respondent filed
exceptions to the Trial Examiner's Decision and 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.
The Board has reviewed the rulings of the Trial
Examiner 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 the brief, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.'
I In the absence of exceptions, we adopt pro forma the Trial
Examiner's recommendations that the complaint be dismissed
insofar as it alleges that Respondent violated Section 8(a)(5), and
violated Section 8(a)(3) in terminating Daniel Goff; we also adopt
pro forma his Conclusions of Law 3,4, and 5.
163 NLRB No. 50
ORDER
375
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Tuck Spring & Steel,
Inc., Missoula, Montana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint,
insofar as it alleges unfair labor practices other than
as found herein, be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: On
December 13, 1965, Lodge No. 1434, International
Association of Machinists and Aerospace Workers,
AFL-CIO, herein called the Union, filed a charge against
Tuck Spring & Steel, Inc., herein called the Respondent,
alleging violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq., herein called the Act. The complaint, issued on
January 26, 1966, based on said charge, alleged that the
Respondent had discharged employees, one on
December 3 and one on December 6, 1965, and had since
refused to reinstate said employees to their former or
equivalent positions because of their membership in, or
activities on behalf of, the Union and because they
engaged in concerted activities for mutual aid and
protection. The Respondent's answer, filed on March 22,
1966, admitted the discharge of one employee on
December 3, 1965, alleged that the other employee was
laid off on December 6, 1965, and denied the remaining
allegations regarding the cause of discharge.
Pursuant to notice, a hearing was held at Missoula,
Montana, before me, on May 26, 1966. At the opening of
the hearing, the parties stipulated on the facts of
commerce. After all the evidence was in, the General
Counsel made a motion to add an allegation of violation of
Section 8(a)(5) of the Act. The motion was granted.'
No request was made for time in which to argue orally or
to file briefs. The hearing was closed with the
understanding that the Respondent might move to reopen
for the purpose of taking the disposition of a witness who
at the time was out of State.
On August 5, 1966, upon motion of the Respondent to
reopen and take the deposition of one Harold Lake, I
issued an order reopening the hearing and ordered the said
deposition to be taken. The deposition was taken on
August 16, 1966, and a copy thereof was filed with the
Trial Examiner on September 1, 1966. It is now ordered
that the hearing in the above entitled case be, and the
same is, hereby closed.
From my observations of the witnesses and upon the
entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find as
follows: Respondent is, and at all times material herein
i N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F . 2d 393 (C.A. 2).
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been, a corporation duly organized under, and existing
by virtue of, the laws of the State of Montana. Respondent
has a plant at Missoula, Montana, where it is engaged in
servicing, processing, and manufacturing springs, tanks,
and other structual steel-fabricated products.
During the year 1965, the Respondent, in the course and
conduct of its business operations, performed its services
and manufactured products for customers located outside
the State of Montana in the amount of approximately
$30,000 and performed services and manufactured
products for nonretail enterprises in the State of Montana
who meet the Board's jurisdicational standards by virtue
of annually shipping products directly outside the State
having a value in excess of $50,000, in an amount slightly
in excess of $20,000.
No issue was made with respect to jurisdiction, and I
find, on the basis of this combined direct and indirect
outflow, that the Board has jurisdiction and that it will
effectuate the policies of the Act to assert jurisdiction in
this case.2
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to
membership employees of the Respondent , among others
III. THE UNFAIR LABOR PRACTICES
A. Discrimination in Regard to Hire and Tenure of
Employment
1. Background
The Respondent commenced operations on October 1,
1964. In May 1965, Ralph Tuck, president of the
Respondent, according to his testimony, "invited Mr. Bill
Beeler to call the machinist union and bring them into my
shop because the electrical workers were trying to get in."
Beeler, at that time, was a full-time employee. Whether or
not Beeler acted upon the suggestion, Edgar Cozad, a
Grand Lodge representative of the Union, accompanied by
the Local union president, after more than one futile
attempt to find Tuck in, visited him in late May and told
him that they wished to organize the shop. Tuck explained
that he was not opposed to unions , that he had been active
in the organization for the UAW back East, but that the
shop was not in any shape for formal organization at that
time.
The same union representatives called on Tuck again in
the early part of July and gave him a copy of a proposed
contract.3 Tuck told them that he was not ready to discuss
the matter yet, but that he would look over the contract
and meet with them later.
On an afternoon in mid-July, Tuck assembled the
employees in the shop and addressed them on the subject
2 Stemons Mailing Service , 122 NLRB 81.
3 Cozad testified that before this visit , the Union had had a
meeting of the employees in late June and that the Union had sent
Tuck a written request to bargain.
" Testimony as to the exact date was vague. An employee at
that time , Roger Skaja , testified that the meeting was in about the
second or third week of July. He testified that it was held after
Marvin Troutwine (foreman at one time ) had told Tuck in Skaja's
presence, that Tuck should speak to the employees because they
were organizing a union. The General Counsel asked another
witness , Verne Sullivan, if he had attended a meeting of the
employees in July The transcript shows the question as asking if
the meeting were "near July," but I believe the reporter
of the Union.4 He said that pressure had been brought to
bear on him, and that he wanted to explain his position. He
told the employees that he was not opposed to the Union,
but that he could not afford to pay the union scale at that
time, and he asked them to bear with him for a while until
he could get on his feet, and that he would eventually bring
them up to the scale of other places around town. Verne
Sullivan, an employee at that time, quoted Tuck as saying
that he could not operate with the Union, and that if the
employees voted for the Union, he would have to close the
shop. The complaint alleged no independent violation of
Section 8(a)(1) of the Act and the complaint was not
amended to allege it at the hearing. The statement does,
however, characterize the extent of Tuck's opposition to
organization . Like many employers, Tuck was not opposed
to the Union as long as the Union did not seek a contract
on behalf of the employees, and he appeared to assume
that negotiation of a contract meant having a form contract
forced upon him, compelling him to raise wages.
2. The discharge of Skala
Roger Skaja was hired by the Respondent on June 7,
1965, as a machinist-helper. During the course of his
employment, Skaja did a variety of work, including
welding and machine work on the lathe. Some of the
Respondent's jobs were recurrent, such as the making of
springs and the building up of rollers by adding metal to
them and then grinding them down to size, but the
Respondent also undertook to develop prototypes of
certain items such as an irrigator , a horse trailer, and a
luge sled with an object of manufacturing and selling more
of them. It was the practice of the Respondent to assign
such a development project to a single employee, who
would then be given the assistance of other employees as
they were needed. Skaja was assigned to assist on each of
these projects from time to time, but he did not work
steadily on them. He would work on a variety of jobs when
not assisting on one of those projects.
Early in November 1965, the Respondent undertook to
build, for a customer named Harold Lake, a horse trailer
large enough for four horses. Lake had earlier purchased
one for $1,300 from an Idaho man. That one had been built
in Texas. He wished to buy another one as equipment for a
ranch later to be sold, and he consulted Tuck about
building one. Tuck took measurements and had blueprints
made. The price was to be determined on a cost-plus-profit
basis.5 Tuck then reemployed a former employee by the
name of Bill Beeler for the limited purpose of constructing
the trailer from the blueprints. From the outset, difficulties
were encountered because of inaccuracies in the
blueprint, because the blueprint did not cover some
particular part at all, because of changes in design
requested by Lake, and, to some extent, because of a lack
misunderstood and that the question actually asked about a
meeting "in early July " No attempt was made to fix the date more
closely . Tuck was not asked about this meeting
5 Tuck testified that Lake made a payment of $500 in advance.
This was slightly misleading Respondent's bookkeeper and office
manager, William Collins, testified that Lake had given a check
for $500 when he picked up the completed trailer on December 3,
1965 That was intended to be part payment on a sum to be
determined after Respondent had computed its cost The
disparity in cost figures given by Tuck in his testimony and by
Lake in his deposition indicated , at the least , careless testimony
The balance of the cost of the first trailer was not billed until the
second trailer was finished in January The price for the two
brought the cost to about $950 each
TUCK SPRING & STEEL, INC. 377
of needed material. As a result, the Respondent took 3 or
4 weeks to build this trailer as compared with about 10
days more or less for a second one which was built at a
later date. The first trailer was finished on December 3,
1965. Lake apparently wished to have the trailer ready to
take to his ranch that weekend; and to hurry the project,
during the last week, Tuck assigned extra men to help on
the job.
On November 23, 1965, the Union met with some of the
Respondent's employees, and four of the nonsupervisory
employees signed cards for the Union.6 On December 1,
1965, the Union filed a petition for certification of
representatives with the Regional Office of the Board and,
on the same date, the Region sent a copy of this petition,
with the usual covering letter, to the Respondent. This
letter set a representation hearing for December 13. In the
normal course of the mail, this letter and the copy of the
petition would have been received on December 3, 1965.7
At this time, Tuck was in Oregon with one of the
employees, Marvin Troutwine 8 His trip had been started
earlier that week. The purpose of the trip out of town was
to demonstrate an irrigation machine which Respondent
had been developing.
On December 3, 1965, Tuck and Troutwine started back
to Missoula from Baker, Oregon.9 Before they left Baker,
Tuck made one call to his office, where he spoke with
William Collins, the office manager and bookkeeper. He
made another call from Spokane, Washington, and a third
from St. Regis, Montana. Neither Collins nor Tuck freely
testified to all that was said in these telephone
conversations. Neither was specifically asked if Collins
had told Tuck of receipt of the aforesaid petition. In the
call from Spokane, however, Tuck told Collins, among
other things, that he wanted the employees assembled for
a meeting at the shop at 4:30 p.m., half an hour before the
usual closing time. He also told Collins, in the same
telephone conversation, to make out final paychecks for
Skala and for Beeler, the latter having been employed
solely for the work on the horse trailer for Lake, and his
work was expected to be completed that night.
December 3 was a Friday, which was the normal payday,
but the checks usually covered work only to Thursday
8 Those who signed cards were Verne Sullivan, Roger Skaja,
Daniel Goff, and David Courser.
r Return receipts in evidence indicate that mail sent on
Wednesday would be received on Friday.
8 Troutwine 'tad been employed by the Respondent in the early
spring of 1965 and had, for a time, been the shop foreman He left
the employ of the Respondent in about September 1965, and
returned to the Respondent 's employ again in about
November 1965, assigned to work on an irrigator being developed
by Respondent He was the only nonsupervisory employee who
did not sign a union card except , perhaps, Beeler , who was a
temporary employee
8 The route from Baker, Oregon , to Missoula , Montana, via
Spokane, Washington, is in the neighborhood of 500 miles.
10 Sullivan testified that the fender had been clamped in place
ready for welding
The following is an example
Q. And did you have any telephone conversations with
him on the 3rd of December of the days immediately
preceding the 3rd of December about the affairs of the
business?
A. Yes.
Q Will you relate to us, please , what this conversation
was about . [ It will be noticed that Respondent's counsel
assumed only one conversation l
A Well, this was a common thing for Mr Tuck to call me
when he was away from the shop and ask me how things were
night. Skaja's and Beeler's checks were made out to
include work to 5 p.m. on Friday, December 3. Both
Collins and Tuck testified that, in one of the telephone
conversations, Collins told Tuck that work on the trailer
was slow. Neither testified that Collins had told Tuck the
work on the trailer was expected to be completed that
evening. I infer, however, that he did, for otherwise Tuck
would not have told Collins to make out Beeler's final
check. Collins, asked by Respondent's counsel on direct
examination what he told Tuck about the horse trailer,
answered, "They were still building it and it hadn't been
delivered yet." Counsel then asked, "Was there any
conversation between you and Mr. Tuck about the fact
that the men were apparently not putting forth their best
efforts in his absence." There was no objection to this
question, and Collins answered, "Yes, I think there was as
I recall." The Respondent was obviously attempting to set
up a reason for the meeting which Tuck had called for on
Friday evening other than the obvious one. I do not credit
either Collins or Tuck insofar as they suggested that delay
on the trailer was the occasion for the meeting. Although
Tuck claimed that, at the meeting, he spoke of the
slowness of the work on the horse trailer, I observe that he
was so indifferent to the work on the trailer that he had the
men taken away from that work to attend the meeting
before the last fender was welded on it,10 and Lake, the
buyer, took it out during the meeting apparently without
ascertaining that fact until later. The General Counsel's
witnesses heard no mention of the work on the trailer in
the meeting.
The Respondent's mail, during Tuck's absence, was
handled by Collins. From Collins' testimony, I find that he
opened all mail except that which was marked "personal."
There is no showing that the letter and the petition for
certification of representatives, which had been mailed by
the Regional Office to the Respondent on December 1,
was marked "personal," and there is no reason to infer
that it was. Collins, although no longer in the employ of the
Respondent at the time of the hearing, nevertheless
showed a bias in Respondent's favor. His manner of
testifying evinced a fear of disclosing too much, and he
tended to reveal as little as possible until he was prompted
by suggestions of Respondent's counsel." Collins
going, and he asked me during this conversation about the
Bud Lake horse trailer
Q And what did you relate to him with reference to the
Bud Lake horse trailer?
A They were still building on it and it hadn't been
delivered yet
Q Was there any conversation between you and Mr. Tuck
about the fact that the men were apparently not putting forth
their best efforts in his absence9
A Yes, I think there was as I recall.
Q Could you tell us generally what you related to him 9
A. Well, that more time had been spent on the trailer and
Mr. Lake was in there every day wanting delivery on it, he
needed it to transport some livestock somewhere and he was
quite uneasy that delivery hadn't been made and it was
taking longer than it should have
Q Was there any mention made in this telephone
conversation that you had with reference to scheduling a
meeting with the men9
A Yes
Q What was said about that9
A Mr Tuck told me to notify them that he would be in at
4 30 or 5 o'clock. I don't recall , in the evening . that he
would be in and would like to meet with them at this time.
Q Did he make any mention at the time of this telephone
conversation with reference to preparing anybody's
paycheck, finalpaycheck9
A. Yes, he did
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted having seen the petition. I infer that Collins
would not have failed to notify Tuck of so important a
matter. Although Tuck testified that he did not see the
petition until a week or so after his return, and did not
know anything about it until after December 6, he did not
testify that he had not been told of the Union's action,
regardless of what he knew about the written instrument
itself, and he was not asked about the letter from the
Regional Office. I deduce and find that Tuck was apprised
of the Union's request for an election and the Board's
letter in the telephone conversation while he was either at
Baker, Oregon, or at Spokane, Washington.
At 4:30 p.m. on December 3, one-half hour before
finishing time, Foreman Delmar Holden assembled the
employees in a room next to Tuck's office. According to
Goff, Tuck appeared angry. Tuck told the employees: "I
have called this meeting because I hear there is a lot of
dissention and hard feeling and complaints that you
fellows have and I want to get to the bottom of it. I will ask
each of you personally what your complaints are and we
will discuss it." 12 Although he had already directed that
Skaja's final check be made out and intended to terminate
him that night, Tuck pointed at Skala and said, "We will
start with you, Roger." Skala asked permission to stop the
timeclock so that the employees could get together to talk
it over and then return and speak as a group. Tuck said,
"No, I am paying your wages and I want to hear from you
individually." Skaja asked if he could have paper and a
pencil. These were procured for all and they made notes.
Then Tuck asked Skaja if he was ready. Skala said that
they were dissatisfied with the poor equipment-that
Tuck expected first class work from third class
equipment. Tuck said he knew the equipment was not the
best but he thought it was possible to get the work done.
Skala said that they could get the work done but that they
had to consume time doing things that would not normally
have to be done. Tuck asked what else Skaja had to
complain about. Skala said that the employees were
dissatisfied also because Tuck had hired Beeler as a
temporary employee and was paying him more than the
other employees.13 Tuck said that Beeler had been
employed before and that he was given the same rate
again. Daniel Goff, whose layoff is hereinafter related,
quoted Tuck as saying that it was his business what he
paid and that it was no concern of Skaja's. Tuck then
asked if Skaja wanted to say anything else. When he did
not, Tuck said he would air his own complaints, and he
asked Skala why, during coffee-break, Skala did not turn
off the engine lathe. The evidence does not disclose
whether or not Skala replied. He testified that when he
had a rush job he would let the machine continue to run
during the coffee-break and that he would get his coffee
and return to watch the machine instead of joining the
other men. The evidence does not disclose whether or not
Tuck thought the lathe was running with nothing on it or
whether he knew something was being worked on and
objected only to Skaja's leaving the machine, for however
short a time, while it was running. Goff quoted himself as
speaking up and saying that it was more economical to let
the machine run for 5 or 10 minutes during the break
because it cost as much to start the lathe up as it did to run
it a half hour. Tuck said that there were many bearings in
iL The findings of what Tuck said at this meeting are based on a
composite of the testimony of all the witnesses Tuck did not
differ with what the others had testified to
13 It is not certain that Beeler was present at this meeting
the machine which could wear while the machine was
running and he preferred that it be shut off.
Tuck next asked Goff for his complaints. Whether Goff
had interjected his remarks in support of Skaja's
comments about Beeler's pay at the time that Skala was
being questioned or whether he waited until he, himself,
was called on, is not clear, but Goff also spoke about
Beeler's wages. He said that Beeler did not have good
eyesight and did not turn out good work and that Beeler,
himself, had admitted this to Goff. Tuck remarked that
Beeler was a temporary worker and that a temporary
worker was paid more. Goff disagreed and said that there
was a set rate for a job and if you could not handle the job
you went down the road. Sullivan confirmed this. Tuck
asked Troutwine what the rates were around town.
Troutwine mentioned the low and high at various places.
One of Goff's complaints was that Tuck had yelled at him
across the room once when Goff had failed to wear a mask
while grinding, and he said he did not like to be yelled at
halfway across the shop on a personal matter. Goff
testified that Tuck complained that he was losing $500
worth of tools a month and that he was going to hire a man
for the toolroom at a $500 salary. Goff disputed Tuck's
figure for tools lost and argued with Tuck that he would
not be saving any money by paying a toolroom man $500 a
month. Goff further quoted Tuck as saying that he had his
neck stuck out a mile on the business and stood to lose
everything he had. Goff argues in effect that a business
man took the risk of loss but also stood to gain the profit.
Other employees were given a chance to speak at this
meeting also. The meeting lasted until about 6 p.m. or
later.
After the meeting, Tuck asked Skala to step into his
office. There Tuck handed Skaja his final check for pay to
5 p.m. that day and said, according to Skaja's undenied
testimony, "You and I are parting company." Skala asked
if he was discharged. Tuck replied that he was. Skala
asked why. Tuck said that he did not want to go into it, that
it was just a personality conflict. Skala asked if his
discharge had anything to do with his work. Tuck said it
did not. He added that Skala should have no trouble
getting another job, that he could go to a company called
Mill Supply and that if Skala needed a recommendation
Tuck would be glad to give it.
Following the meeting of December 3, 1965, and
following Skaja's discharge, Foreman Holden asked Goff if
the horse trailer had been finished. Goff said that there
was one fender to be welded onto it. According to Sullivan,
the fender had been clamped into place, ready to be
welded, when the meeting started, and he had been called
away from the trailer to attend the meeting. However,
while the meeting was in progress, the buyer, Lake, had
come in and taken the trailer with him. Holder said he did
not know what they were going to do about it. Goff told
Holden to telephone to see if Lake wanted them to come to
his place to weld the fender and, if so, Holden could pick
Goff up and drive him out there that night after supper.
This was done, and Holden picked Goff up at or about
7:30 p.m. and drove him to the Respondent's shop where
Goff picked up his welding rod and hood, and Holden then
drove him to Lake's shop. On the way out, Goff
commented that he felt sorry for Skaja. Holden said,
There was testimony that he was and testimony that he was not
Beeler did not testify Skaja testified that Robert King was there
instead of Beeler King was not identified I infer from Goffs
testimony that he was associated with Lake
TUCK SPRING & STEEL, INC.
according to Goff that, in a way, he felt sorry for Skaja, too,
but that he thought they would be better off without him,
that, in his opinion, Skala was a union agitator and that he
should be working in a union shop, where a union could
protect his job. Holden did not directly deny making such
statement but testified that he did not think he had used
the expression "union agitator" and that he did not know
that Skaja was a union member. It is possible that Holden
used the expression "agitator" without the adjective, but I
find that, in substance, Goff correctly quoted Holden.
Holden also remarked to Goff, according to the latter, that
Tuck had tried to get him to discharge Skaja three times
but that he had refused to do so without a reason. I find
this to be an overstatement. Holden related, in explanation
of his remark to Goff, a couple of instances when Skaja
had miffed him by an act or statement. Holden's irritation
led him to speak with Tuck about the matter. Tuck then
gave Holden to understand that he had authority to
discharge Skala. Tuck, however, did not ask Holden to
discharge Skaja at that time, according to Holden. Holden
testified that he had not discharged Skala because he felt
that his criticism arose from a case of a personality clash
and he did not feel that that was a reason to fire anyone.
The instances when Skaja had irritated Holden appear to
have occurred soon after Holden was made foreman in
June 1965. Holden testified that they occurred while Tuck
was out of town 14 and that, by the time Tuck had returned,
the situation had adjusted itself; so he did not discharge
Skaja while Tuck was there. I find that the tiff or tiffs
which Holden had with Skaja resulted from Holden's
sensitivity in his new authority and, in part, to Skaja's
early lack of understanding of Holden's wishes or ways of
doing things. Another reason for Holden's not discharging
Skaja at that time, I find, is explained by Holden's
testimony indicating a difficulty in finding competent
men-"If you know the labor situation in Missoula, you
know you can't find anyone for work."
It is quite obvious that the decision to discharge Skaja
was made quite suddenly on December 3, even before the
meeting. At the hearing, although Tuck did not deny
Skaja's testimony of his conversation with Tuck when the
latter handed him his final check, the Respondent sought
to build a case that put the blame on Skaja for the slow
work on the Lake horse trailer and even for a poorly
designed job on the gearbox of the irrigator. Although
Skaja worked on the horse trailer a good part of the time
(although not for 8 hours a day) in his last week, he did so
only to assist Beeler. Beeler had the primary job on the
trailer and the work was under the direction of Sullivan,
who had been made crew leader of that work. Beeler was
the only one to work exclusively on the horse trailer. Goff
and Skala were working on other things as well. Lake, in
his deposition, testified that there was an older man who
worked on the trailer steadily and a younger man would
stand around or leave the work.15 He gave neither name
nor description of either of the two men. The older man
could have been either Beeler or Sullivan and the younger
man could presumably have been either Skaja or Goff.16
Since Skaja and Goff were working on the trailer only as
assistants, they would not be able to work unless their
assistance was specifically requested by Sullivan or
" Holden testified that he could not discharge Skaja while
Tuck was out of town because only Tuck could sign checks and
the law required that a man who was discharged be paid at once
15I find that Lake did not understand the nature of the
379
Beeler and unless they were directed to do a specific job.
Judging from Foreman Holden's testimony, I deduce that,
although Sullivan might have had one or the other of the
two men assigned to him, he was not always ready to use
them for the special purpose for which he wanted to use
them. The result would be that Skaja or Goff would have to
stand and wait or else go back to other work they were
doing. If blame was to be placed on anyone for not getting
the job done faster, it should have been placed principally
on Beeler. I find that the attempt to blame Skala was
merely for purposes of makeweight. I do not credit such
evidence. Of even less value was Troutwine's testimony
that Tuck sought to blame Skaja for the welding of the
gearbox on the irrigator in an awkward position. If Tuck
made such a remark to Troutwine, it would show a lack of
logic that would suggest prejudice. I have doubts
concerning the accuracy of Troutwine's testimony.
Troutwine testified that Tuck disliked Skala because
Skala reminded him of a man back east who had let him
down on a job once. In view of the fact that Tuck had
retained Skaja for 6 months before suddenly discharging
Skaja, I discount this as a reason for the decision on
December 3, 1965, to discharge Skaja. True, there was
evidence that Skaja had ruffled Tuck once or twice by
things he had done or said. Tuck testified that he was
annoyed by Skaja's failure to shut the engine lathe off
when he would leave it for a few minutes while drinking
coffee or washing. Skaja, however, testified that Tuck
never said anything about this before the meeting of
December 3. Tuck claimed otherwise. I cannot imagine
that Tuck would retain a man another day if that man
deliberately disregarded emphatic instructions. I am
disposed to believe Skaja's testimony that Tuck had not
spoken to him about this until the day of his discharge. On
one occasion, Tuck came to the lathe where Skaja was
grinding a wheel to a tolerance of .0025 inch. Tuck put his
elbow on the compound of the lathe, causing the
compound to move and to throw it off the set tolerance.
Skala told Tuck not to lean on his lathe. According to
Skala, Tuck replied that it was his lathe and he could lean
on it if he wanted to. Perhaps Skaja might have been more
tactful, but I cannot imagine that Tuck, upon reflection,
would not have realized that it was he and not Skaja who
was more to blame for this incident. In any event, the
incident was not cause for discharge.
On an occasion during the last week of work on the
horse trailer, Sullivan asked Skaja to bend an angle iron
for use on the front trailer hitch. The blueprint did not
show this because Lake had orally changed the type of
hitch to be installed. Skaja cut out a notch on each plane of
the angle iron in order to bend it. On one side he made the
notch too big so that, when the iron was bent, it left a gap.
Lake noticed this and criticized it. Skala called Sullivan's
attention to the gap and suggested using the piece cut out
of the angle iron to weld into the gap. Sullivan agreed that
this would work. As this took place near the end of the
workday, the weld had not been made when Lake was in
to examine the trailer that night. Lake called Tuck's
attention to it and Tuck called Skala from the washroom to
show it to him. The date when this incident took place was
vague. Lake's deposition put the time when the work was
assignment of duties of Goff or Skaia
16 There is no evidence as to whether or not Coulter had done
any work on the horse trailer Coulter presumably spent most of
his time on springs
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
done as while Tuck was away, but it is not clear that it was
at the time that Tuck was in Oregon in early December."
Yet, it could have occurred on or just before the final day
of work on the trailer. Goff testified that he, himself, had
welded the piece back in the gap and that it took him only
2 minutes to do so because the welder was going at the
time. If this incident did occur on December 3, as the
Respondent intimated, Tuck obviously did not know about
it until he had returned from Oregon. Yet he had already
decided to discharge Skala before he returned. Hence, this
incident could have had no bearing on Tuck's decision to
discharge Skaja.
Having possible reasons for discharging Skaja on prior
occasions and not having done so, Tuck, I find, must have
considered those grounds to be insufficient for a
discharge. Troutwine, with whom Skaja had been talking
in July when Troutwine had told Tuck that the men were
talking of organizing a union, apparently knew of Skaja's
desire for union representation,]' and Tuck would not
have had to be clairvoyant to realize that Troutwine was
indicating that Skala was the one who was talking of
organizing a union . Tuck's sudden decision , while out of
town with Troutwine, to discharge Skala can be explained
in only one logical way: He received word from Collins of
the Board's letter covering the petition for certification
and he blamed Skala for having worked up interest in the
Union again . Without even waiting to return to Missoula,
Tuck ordered Collins to make up Skaja's final check. If
any further evidence that Skaja's interest in the Union was
the moving cause for his discharge, Holden's remarks to
Goff on the night of December 3 would remove any further
doubt in my mind."
I find, on the entire record, that the Respondent
discharged Roger Skaja because of his union membership,
union activity, or concerted activity, or all combined, thus
discouraging membership in a labor organization and
interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed in the Act.
3. Layoff of Goff
Daniel Goff was hired as a welder on October 28, 1965.
At his employment interview, the subject of the Union
came up. Goff testified on direct examination that Tuck
had asked him if he were a member of a union, that he had
said he was not, and that Tuck had told him he had a union
contract in his desk which he had no intention of signing.
He quoted Tuck as saying that the Union had been
pressuring him to allow the employees to join and that he
did not care for any part of them. On cross-examination
Goff conceded that when Tuck had said that the
Respondent "was not union" he had said that he was glad.
During the course of his 5 weeks or so of employment,
Goff agreed with the other employees that he would not
stand in their way if they wanted the Union. He told
Foreman Holden that he had told this to the other
employees when he was eating lunch with him one day. On
November 23, 1965, Goff signed a union authorization card
when Sullivan, Courter, and Skaja signed.
Goff's conversation with Holden on the night of
December 3 after Skaja's discharge has heretofore been
11 Tuck testified that Lake told him not to use the same crew
when he built the second trailer He did not say when Lake had
made this statement If Lake made such statement , it could have
been made well after December 3 However, from Lake's
deposition , I conclude that his concern was with the cost of labor
related. The next workday was December 6. About 10:30
that morning, Goff ran out of work and asked Holden for
more. Holden told him he was laying him off that noon
anyway, so he might as well leave then. Goff asked Holden
if his layoff had anything to do with what he had said at the
meeting on December 3. Holden said that he did not think
so. Goff's check was already prepared and waiting in the
office. It included pay to noon. Goff picked it up and left.
The evidence shows that, although the Respondent had
cause to expect a large order of luge sleds (the prototypes
of which had been taken to New York for approval of the
Olympic committee), the order was not in fact placed for a
couple of weeks. There was, therefore, a lull in operations
on December 6. Although the Respondent faced a
possibility of difficulty in replacing Goff, this, alone, is not
reason for concluding that Respondent would have kept
Goff on but for his speaking up for Skaja and arguing with
Tuck at the meeting of December 3 or but for his joining
the Union, which, so far as the evidence shows, was not
known to the Respondent.
When the Respondent did hire a welder later,20 it did
not offer the job to Goff. Holden, asked why he had not
rehired Goff, testified that he did not "particularly care for
his attitude." This, Holden explained, was because Goff
had told Holden that he "was as good or a better welder
than anyone in the shop." Except for work on the
automatic welders, this may well have been true. Sullivan
testified that Goff did very good work. Holden's
explanation sounds weak and unconvincing. However, at
least for a time, the Respondent could have gotten along
without Goff's services. Holden, himself, was able to use
the automatic welders, Sullivan could weld, and so could
Troutwine. Of course, that was not their regular work, and
the fact that the Respondent hired another welder later is
indication enough that the Respondent did not expect to
get along permanently without one. The other employees
could not be expected to weld when they had other work to
do. Sullivan was a machinist, and he had been put on the
luge sled project, and Troutwine was assigned to
improving the irrigator. In view of the difficulty in finding
competent men in Missoula, Holden's weak explanation of
his reason for not first seeking to rehire Goff before
attempting to find another welder suggests the existence
of another reason. Although Holden, in testifying, made it
appear that Goff's layoff was his idea, I have doubts of
that. He admitted that he had discussed the workload with
Tuck and only Tuck could sign checks; so it is a fair
assumption that Tuck shared in the decision to lay Goff
off, if he did not, in fact, make the decision entirely
himself. From all the evidence and from my observation of
the witnesses, I am of the opinion that Tuck was the only
positive force in the Respondent, and I cannot view
Holden as one to decide, on his own, to lay Goff off or to
decide not to reemploy Goff, either one.
Sullivan testified that the first welder to be hired after
Goff's layoff did not last long. When this man was hired or
was terminated is not shown by the record. Another man
by the name of Barney was then hired. It was not shown
whether that was the man's first or last name, when he was
hired, or how he compared with Goff.
All the evidence leads me to surmise that it was Tuck
more than with who did the work
18 Skala held a withdrawal card from a union when he was hired
by Tuck
10 See NeuhoffBros , Packers, Inc , 159 NLRB 1710
20 No evidence of the exact date was given
TUCK SPRING & STEEL, INC.
who did not care for Goff's attitude as expressed in Goff's
outspoken criticism at the meeting of December 3, 1965,
and that Tuck was the one who actually decided to lay Goff
off, intending not to rehire him when another welder was
needed. However, Tuck was not questioned about the part
he played in Goff's layoff, and the evidence does not show
that the Respondent had any practice of giving first refusal
to laid-off employees when work became available.
Although I am morally certain that my surmise is correct,
the evidence is, I feel, not strong enough to warrant a legal
inference that Respondent's layoff of Goff and its
subsequent failure to recall him was a discrimination in
violation of the Act. One might also suspect that the
Respondent permanently laid off Goff in order to affect the
Union's majority, but without more evidence, there is no
more than suspicion of this.21
B. Refusal to Bargain
Although the General Counsel, by motion made at the
hearing, added a refusal-to-bargain allegation to his
complaint, he failed to disclose the theory upon which
such a finding should be based. Except for the filing of a
petition for certification, the Union had made no proposal
to the Respondent to prove its majority, and there is no
evidence that, later than July 1965, the Union had made
any request to bargain. The filing of the petition, alone,
does not constitute such a request,22 even when followed
by unfair labor practices,23 and the General Counsel did
not contend that the refusal to bargain antedated
November 23, 1965, when four employees signed
authorization cards; so the request which the Union made
in July cannot be considered here. But even if it could, I
find that too much time had elapsed between the date of
the request in July and the date of proof of majority to link
the two together. Failure to offer proof of the majority in
July detracts from the force of the request then made.
Under the circumstances, I do not believe that an
unsupported request may properly be considered a
continuing request down to the date of acquisition of
majority, in November 1965, especially in view of the lapse
of nearly 5 months between the two. Accordingly, I find a
failure of proof on the allegation of refusal to bargain.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
381
It has been found that Respondent has discriminated in
regard to the hire and tenure of employment of Roger
Skaja. I shall, accordingly, recommend that the
Respondent offer him immediate and full reinstatement to
his former or substantially equivalent position and make
him whole for any loss he may have suffered as a result of
the discrimination against him by paying him a sum of
money equal to that which he would have earned in
Respondent's employ between December 3, 1965, and the
date of the receipt by Skaja of the Respondent's offer of
reinstatement, together with interest thereon at the rate of
6 percent per annum,24 less his net earnings elsewhere
during said period, such sum to be computed in
accordance with the Board's established practice.25
The Respondent's conduct displays an opposition to the
underlying principles of the Act, and I find that a danger of
the commission of unfair labor practices in the future is to
be anticipated from Respondent's conduct in the past. I
shall, therefore, recommend a broad cease-and-desist
order.26
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce with the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. A unit of all Respondent's employees engaged in
manufacturing and rebuilding of equipment, excluding
office clerical, professional employees, salesmen,
supervisors, and guards, as defined in the Act, is ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. On November 23, 1965, the Union was the majority
representative of all Respondent's employees in the
appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. Because the Union did not make a request to
bargain, the Respondent has not refused to bargain within
the meaning of Section 8(a)(5) of the Act.
6. By discharging Roger L. Skaja on December 3,1965,
because of his membership in, or advocacy of, the Union
or because of his concerted activities, or a combination
thereof, the Respondent has discouraged membership in a
labor organization in violation of Section 8(a)(3) and (1) of
the Act.
7. The evidence does not establish that the Respondent
by laying off Daniel C. Goff on December 6, 1965, and by
thereafter failing to reinstate him, discriminated in regard
to the hire or tenure of employment of said Goff within the
meaning of Section 8(a)(3) of the Act.
8. The unfair labor practices herein found are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act. .
V. THE REMEDY
As I have found that the Respondent has engaged in
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in the case, I recommend
21 The Union withdrew its petition , but the date of withdrawal
and the reason therefore are not shown.
22 Laabs, Inc., 128 NLRB 374, John Wafford, d/bla Wafford
Cabinet Company , 95 NLRB 1407 . The decision in Bernel Foam
Products Co., Inc ., 146 NLRB 1277, did not dispense with the
requirement of a request
23 Western Aluminum of Oregon, Incorporated, 144 NLRB 1191,
1202
24 Isis Plumbing & Heating Co., 138 NLRB 716
25 F. W1 Woolworth Company, 90 NLRB 289.
26 N.L R B. v The Austin Company, 165 F.2d 592 (C A 7).,
enfg. 70 NLRB 851
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an order that Respondent, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local No. 1434,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or in any other labor organizations,
by discharging, or in any other manner unlawftlly
discriminating against, any of its employees in regard to
hire or tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
Local 1434, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all 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 designed to
effectuate the policies of the Act:
(a) Offer to Roger L. Skaja immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole in the manner set forth
in the section above entitled, "The Remedy," and if said
Skaja is now serving in the Armed Forces of the United
States, notify him of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at Missoula, Montana, copies of the attached
notice marked "Appendix."27 Copies of said notice, to be
furnished by the Regional Director for Region 19, after
being duly signed by the representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Decision, of
what steps Respondent has taken to comply herewith.2s
Except to the extent that unfair labor practices have
been found, I recommend that the complaint be dismissed.
27 In the event that this Recommended 0 der is 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 is 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."
28 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in
Local 1434, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
union , by discriminatorily discharging or otherwise
unlawfully discriminating against any of our
employees in regard to hire and tenure of employment
or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise or
their right to self-organization, to form labor
organizations, to bargain collectively through
representatives of their own choosing, or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all 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.
WE WILL offer to Roger L. Skaja immediate and
full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and we will make him
whole for any loss he may have suffered as a result of
discrimination.
WE WILL notify said Skala if he is presently serving
in the Armed Forces of the United States, of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
All our employees are iree to become or remain, or
refrain from becoming or remaining, members of the
above-named Union, or any other labor organization,
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, as amended.
TUCK SPRING & STEEL, INC.
(Employer)
Dated By
(Repro entative ) (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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington 98101,
Telephone 538-4583.