Tuck Spring & Steel, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 14, 1967163 N.L.R.B. 375 (N.L.R.B. 1967) Copy Citation 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. Copy with citationCopy as parenthetical citation