Tulsa Sheet Metal Fabricating Co.

National Labor Relations Board - Board Decisions

Oct 7, 1966

160 N.L.R.B. 1635 (N.L.R.B. 1966)

LOONEY SHEET METAL CONSTRUCTION 1635
Thereafter, in its campaign to defeat the Union, the Employer per-
sisted in referring to the elimination of scheduled overtime in its
organized warehouse, inferring that such loss was caused by the selec-
tion of the Union. Thus, in the question and answer period following
the October 22 speech, the following exchange occurred :
(1,. . ... Are you telling us that if we go union we will go to
40 hours?
A. No, I am not telling you that. If I were to tell you that the
NLRB may constitute it as a threat, which would, of course, be
an unfair labor practice. I can tell you what is a matter of record,
and that is that at Hammond eleven years ago when the union
was voted in, they went from a 45-hour week to a 40-hour week,
and promptly. [Emphasis supplied.]
In the total context, Hale's statement, in the earlier October 21 letter,
that the Employer contemplated no change in the existing workweek
unless the employees indicated otherwise, clearly implied the threat
that selection of the Union would induce the Employer to make that
change. Moreover, while the Employer was in no way reluctant to
inform the employees that it would retain the regularly scheduled
45-hour workweek if there were no union selected, it withheld from
them any assurance that if they chose representation by the Union it
would provide the same work opportunity to the extent economically
justifiable and would maintain the same work schedule until such time
as the basic workweek should be redefined by collective bargaining.
On the basis of the foregoing, we would set the election aside and
direct a second election.
Looney Sheet Metal Construction Co., Inc., d/b/a Tulsa .Sheet
Metal Fabricating Co. and United Steelworkers of America,
AFL-CIO. Case 16-CA-$453. October 7, 1966
DECISION AND ORDER
On May 19, 1966, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief, Respondent filed
no exceptions.
160 NLRB No. 133.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
i The General Counsel's exceptions were directed solely to the Trial Examiner's finding
that the discharges by the Respondent of employees Basore and Cherny were not violative
of Section 8(a)(3) and (1) of the Act. We agree with the Trial Examiner, on the basis
of the record herein, that the General Counsel failed to establish that the discharges were
unlawfully motivated. Accordingly, we find such exceptions to be without merit.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M. Singer, at Tulsa, Okla-
homa, on February 2 to 7, 1966, pursuant to a charge filed August 31, and com-
plaint issued November 26, 1965. The complaint alleged that Respondent violated
Section 8(a)(1), (3), and (5) of the Act. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Briefs were filed by General Counsel and Respondent.
Upon the entire record 1 in the case, and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent, an Oklahoma corporation with its place of business at Sand Springs,
Oklahoma, is engaged in the fabrication of metal products. During the past year, a
representative period, it manufactured, sold, and shipped goods valued in excess of
$50,000 directly to points outside of Oklahoma. I find that at all times material
herein Respondent has been and is engaged in commerce within the meaning of the
Act.
United Steelworkers of America, AFL-CIO (herein called the Union) is a labor
organization within the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Background; the issues
On August 26, 1965 2 Respondent's employees Basore and Cherny commenced to
organize the plant. Returning from a visit to the Union's office at around 4:30 p.m.
(time of the main shift change), they stationed themselves outside the main gate,
solicited signatures on union cards, and distributed union buttons. Except for occa-
sionally leaving their positions for dinner and coffee, they campaigned all night
until reporting for work at 7 a.m. the next day .3 A third employee, Kosechata (also
known as "the Chief"), assisted them. Shortly after the start of this union activity,
Respondent's recently appointed shop superintendent, Lancaster, approached the
organizers and asked them what they were doing. When told that they were attempt-
1 As corrected by my order dated April 28, 1966.
2 Unless otherwise indicated, all dates herein refer to 1965.
3 Respondent 's night shift employees apparently worked irregular hours.
LOONEY SHEET METAL CONSTRUCTION 1637
ing to organize the plant, Lancaster remarked , "Well, why didn't you wait and give
me time to straighten this mess out?" Other company officials and supervisors , includ-
ing Company President Burt Looney and Bob Smith ( the galvanizing foreman)
observed the union activity.
The complaint , as amended at the hearing , alleges that on various occasions on
and after August 27, Respondent unlawfully interrogated employees concerning their
union activities , engaged in surveillance of those activities , and threatened employ-
ees with reprisals in order to defeat the Union. It also alleges that on and after
August 27, it laid off or discharged 10 employees , and caused another employer to
deny employment to two employees for the purpose of discouraging organizational
activity.
At 3:15 p.m., August 27, the Union sent Respondent a telegram requesting recog-
nition as majority representative of its production and maintenance employees. On
the same day, Respondent rejected the Union's request , suggesting that the Union
file a petition for an election . At the hearing, I granted General Counsel's motion to
withdraw the allegation in the complaint that Respondent 's refusal to recognize and
bargain constituted a violation of Section 8(a) (5) and (1) of the Act.
B. Interference, restraint , and coercion
The complaint alleges that Respondent through its supervisors , including Jack
Scranton and Darrell Reese, engaged in interference , restraint, and coercion. In issue
is the supervisory status of Scranton and Reese , responsibility for whose conduct
Respondent disavows.
1. Respondent 's responsibility for the conduct of Scranton and Reese
a. Jack Scranton
Scranton 's primary duties consisted of planning , scheduling , and coordinating
production , and ordering material. Although no employee worked directly under
him, he issued instructions to the tower shop foreman concerning work to be fabri-
cated and production errors to be rectified . He attended management meetings,
where, among other things, he reported to the Looneys (Company President Burt
Looney and his brother Vice President Ronald Looney ), on the performance of
other personnel , including the leadmen . He shared the office of Burt Looney . Unlike
rank-and-file employees , he was on salary . At the hearing , Scranton identified himself
as the Company's "production control man," admitting that he "possibly" had
described himself also as "production control supervisor." 4
I find that during the period material herein Scranton acted as a management rep-
resentative and that Respondent 's rank-and-file employees believed with just cause
that he was acting for management . Accordingly , Scranton 's conduct is attributable
to Respondent , even if Scranton did not fall within the definition of supervisor
under Section 2(11) of the Act. See N.L .R.B. v. Solo Cup Co., 237 F.2d 521, 523-
524 (C .A. 8); N.L .R.B. v. Des Moines Food, Inc., 296 F.2d 285, 287-288; Colson
Corp. v. N.L.R .B., 347 F.2d 128, 139-140 (C.A. 8). Cf. Square Binding and Rul-
ing Co., Inc., 146 NLRB 206, 210-211.
b. Darrell Reese
Reese was a "subforeman" in charge of the shearing department , under the gen-
-eral direction of the tower foreman. He distributed work and assigned overtime
among approximately six employees in that department . The record indicates that
he occasionally gave employees time off and reprimanded them for lateness and
absenteeism . Company President Burt Looney admitted that Reese had the power to
"discipline ," although not to hire or fire.
Sometime during the period here involved ( the record does not disclose the date),
Reese was removed from control of the tower foreman and made answerable directly
4 The foregoing findings are based on the composite testimony of employees Wheeler,
Clark, the Looneys , and (in part ) of Scranton Scranton ' s attempt to picture himself as
a rank -and-file employee , possessing only routine production functions, was transparently
artificial . He impressed me as a witness who strove to demonstrate his loyalty to Respond-
ent by studiously attempting to conform his testimony to what he considered in the best
interest of his employer
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Scranton. In addition to his duties as subforeman, Reese (together with Scran-
ton) was made responsible for the raw materials in the yard and bonded for that
purpose .5
I find and conclude that Reese was a supervisor within the meaning of Section
2(11) of the Act, and that Respondent is responsible for his conduct. See N.L.R B.
V. Mays, Inc., 356 F.2d 693, 698 (C.A. 2); N.L.R.B. v. Chautauqua Hardware
Corporation, 192 F.2d 492, 494 (C.A. 2); Porto Mills, Inc., 149 NLRB 1454,
1466-67.
2. Reese's and Scranton's acts and conduct
(a) Jimmy Basore, who operated a shear under Reese's direction, signed a union
authorization card and began to wear a union button on August 27. In the after-
noon of that day, Reese approached him and another employee, Williams, and told
them that if they did not remove their union buttons they would be "fired." Later,
Reese approached Basore and told him they were going to transfer everyone wear-
ing a union button to the galvanizing department. Working in that department was
considered undesirable-particularly in August-because of the heat, fumes, and
risk of injury from molten zinc. Basore and Williams refused to remove their
buttons.6
(b) Employee Soles credibly testified that after he began to display his union
button at work on August 31, he was approached by Reese. After telling Soles, "I
see they got to you," Reese said he wished Soles would take the button off. When
Soles declined to do so, Reese said he would like to see Soles take off his button and
tear his card up. Soles reported the incident to two other employees. Later that
same day, Reese again asked him to take the union button off and to tear his card
up because "they're going to transfer everybody that's wearing a button back gal-
vanizing." Soles' comment was, "Well, I ain't going to take mine off." Reese said,
"Well, if you don't take it off today, I know where you'll work tomorrow." When
Soles asked where that would be, Reese said "Down in galvanizing," adding that
"Bob [Smith] will put you up next to the kiln."
(c) Bill Basore and Bob Cherny were distributing handbills at the entrance to the
plant on September 13 (subsequent to their discharge, infra), when Scranton
approached them and began discussing unions and the union campaign. Scranton
said, "Bob, I'll tell you one thing. You'll never work in this plant again." Cherny
replied, "Well, someone else will have to decide that." Thereafter, company officials
Burt Looney and Bob Smith came out of the plant and Looney asked Cherny for a
handbill. Scranton approached the two a second time and said, "Well, I'll tell you
one thing. We might have to negotiate with you, but we'll never work with you." 4
(d) Scranton spoke to several other employees about the Union and about union
activity. He asked employees whether "they needed to join a union to get what they
wanted." To Harold Wheeler he said, "Harold, surely you're not wearing one of
those buttons? . . . he was supposed to be one of our supervisors." He asked
employee Bevenue "what caused him to join this Union or to wear this badge and
what his beef was." When asked at the hearing if he told employees that they
should turn to him for assistance instead of to the Union, Scranton testified, "I
talked to some of them that I knew, that I had been friends with, and told them
if there was any way I could help them if they'd come to me I would try."
(e) On September 14, the Union was holding a meeting with the employees at
the union hall in the 1700 block of Southwest Boulevard in West Tulsa. When
employee Cherny left the hall for coffee about 7 p.m., he saw Scranton coming
out of a cafe across the street and walking toward the company pickup truck driven
by Scranton. The two then conversed, Scranton inquiring if that was the union hall
across the street. Cherny told Scranton that a meeting was in progress and Scran-
ton said, "Well, it looks a little bad, me being on this side of town. I'm not over
here spying on you . I eat at this cafe quite often." After the two exchanged
views about unions, Cherny headed back toward the union hall and Scranton to the
truck. When Cherny arrived at the hail, he reported the matter to Bill Basore. Both
men then left the hall and saw Scranton pull out of a parking lot on the corner of
5 The findings in this section are based on the credited testimony of employees Wheeler,
Soles, and Jim Basore, whose testimony is partly corroborated by that of Burt Looney.
Reese did not testity.
6 The above findings are based on Jimmy Bacore's uncontradicted, credited testimony
As already noted, Reese (lid not testify
The findings above are based on the uncoutroverted, credible testimony of Cherny,
corroborated by Bill Basoi e
LOONEY SHEET METAL CONSTRUCTION 1639
17th Street and Southwest Boulevard and proceed east on 17th Street. Ten or fifteen
minutes later, Cherry left his seat to unlock a second door to the union hall to
allow others to enter and again saw Scranton sitting in his pickup truck beside the
same cafe. Thereafter, Basore and Cherny again went outside to observe Scranton,
who started the truck and again drove down 17th Street. Immediately thereafter, a
union representative (Cravens) joined the two and Scranton was again seen travel-
ing down 17th Street after turning off Southwest Boulevard heading toward the
downtown area.8
I find and conclude that Respondent, through its Supervisors or Agents Reese and
Scranton, engaged in interference, restraint, and coercion in violation of Section
8(a) (1) of the Act by questioning employees concerning their union sympathies and
activities, by threatening employees with reprisals (including discharge, refusal to
reemploy, and assignment to less desirable work), for engaging in union activities,
by requesting an employee to tear up his union card, and by engaging in surveillance
of a union meeting.
3. The acts and conduct of other company supervisors and officials
The complaint alleges that Respondent engaged in other independent 8(a)(1)
violations through certain acts of Company President Burt Looney and Supervisor
Bob Smith. I find that the record does not support those allegations.
C. The discharge of Bill Basore and Robert Cherny
1. Reduction in Respondent's operations after the Allied-Shaffer
contract cancellation
During the time here involved, Respondent fabricated products under contracts.
with two contractors: Allied-Shaffer and Ets-Hokin. Allied-Shaffer was a subcon-
tractor of Morrison-Knudson, prime contractor for the arming tower on the Apollo
space project at Cape Kennedy, Florida. Under its contract with Allied-Shaffer, exe-
cuted in December 1964, Respondent undertook to fabricate certain steel and
aluminum items for the walkways, stairways, handrails, and other parts of the tower,-
for approximately $550,000.
Joseph D. Ryan, Allied-Shaffer's project engineer, credibly testified that although
completion of the contract originally was scheduled for April 15, 1965, progress.
thereon was so slow that around July 1, 1965, he went to Respondent's plant in
Tulsa, to personally oversee operations. There he urged Respondent to employ addi-
tional men, to increase shifts and work hours, and agreed to advance Respondent-
money "to help defray [the] temporary financial strain" that might ensue from the
proposed accelerated program. The Looneys agreed to follow his suggestions, and
"some progress was made, but not sufficient to insure the timely delivery of the prod-
uct." Convinced that "the volume of work to be completed" within the required
time "was just too much" for Respondent and that the Company did not even have
"enough plant space to hire enough men" to complete the contract within a reason-
able time, Ryan suggested that Respondent sublet portions of the contract covering
the elevator framing, aluminum handrail, and annulus rings. The Looneys reluc-
tantly agreed to do so. Around August 4 or 5, however, Ryan discovered that-
although Respondent had let out most of the handrail work, it had not yet con-
tracted out the annulus rings and elevator framing. On August 23 his company
(Allied-Shaffer) notified Respondent (by telegram) that it was canceling the contract
on those two items for "non-performance"; and advised it that other contractors-
would take over the material on hand to complete those items. On the same day
(August 23), Allied-Shaffer mailed a letter elaborating on the telegram.
8 The foregoing findings are based on the composite and mutually corroborative testi-
mony of employees Cherny, Bill Basoie, and James Clark I do not credit Scranton's es--
planation that the sole reason for his presence in the vicinity of the union hall was to
talk to an employee of another employer about assisting that employee to find employ-
ment at Respondent. I have already commented on Scranton's unreliability as a witness-
in connection with another matter (sup?a, footnote 4). His testimony on the point in_
issue was vague, evasive, and inconsistent with allegations in his prehearing affidavit.
Moreover, he did not specifically deny the employees' testimony about his leaving the-
area, returning to it, leaving again, and again returning-actions indicating a covert
attempt at surveillance of union activity, rather than a simple dinner rendezvous with a_
jobseeker. I so find.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing Ryan estimated that after Allied-Shaffer's cancellation of the
two items (annulus rings and elevator framing) and Respondent's own prior sub-
letting of the handrail work, one-third to one-half of the contract remained to be
performed. Ronald Looney stated that since the two items constituted "a sizeable
portion of the contract," "we actually had very little else to do. . . due to the fact
that within 3 weeks we were in fear of being out of work." 9 Burt Looney testified
that Respondent "had built up a tremendous crew to fabricate [the] annulus and
elevator frames," particularly a staff of welders, who now became surplus. He
estimated that only 25 percent of the contract remained to be performed, explain-
ing that 95 percent of all steel fabrication and 50 percent of all aluminum fabrica-
tion required thereunder had been completed. The next day, August 28, Respondent
shipped out the first truckload of materials to the new subcontractors as directed
in Allied-Shaffer's letter of August 23.
Respondent received the telegram of cancellation on Tuesday, August 24.
According to Ronald Looney, he continued to discuss the matter with Allied-
Shaffer until receiving that company's formal letter of cancellation on Friday,
August 27 (at 7:15 a.m.), hoping to get the contractor to rescind the cancellation.'°
Regarding the matter as most "serious," the Looneys decided to "lay off the people
that were affected by" the contract cancellation and held meetings among man-
agerial officials to determine "who might be laid off."
Ira Scott, Respondent's foreman on the Allied-Shaffer job, worked with approxi-
mately 45 men in August 1964; 4 or 5 were saw and shear men (cutting raw
material), 6 to 10 did layout work, about 20 welded or bolted together items in
the general fabrication or assembly area, and others sandblasted, painted, and
inspected. Bill Basore and Robert Cherny, two of Respondent's welders, were
among those terminated on August 27.
2. The layoffs or discharges
Basore, hired on July 8, 1965, worked for Respondent first as layout and fit-up
man and then as aluminum welder before his termination on August 27. He was
one of Respondent's eight "certified" full-time welders." In order to qualify as a
"certified" welder on governmental work, an employee had to pass a "test" dem-
onstrating ability to weld in accordance with contract specifications. Aluminum
welders are more skilled and normally better paid than steel welders, and are
qualified to weld steel as well as aluminum. While both aluminum and steel welders
were employed on the Allied-Shaffer project, only steel welders were used on the
Ets-Hokin job. Respondent concedes that Basore was a "qualified" and good
welder. Basore started to work at an hourly rate of $2.75, received a 25-cent per
hour increase, and was promised additional raises before he was terminated.
Cherny, hired on August 4, 1965, worked about 3 weeks for Respondent,
"mostly" as welder. Respondent concedes that Cherny also was a good welder,
being one of Respondent's eight certified aluminum welders. Like Basore, Cherny
started at $2.75 per hour and was promised a raise several days before his layoff.
Cherny and Basore were aluminum welders on the Allied-Shaffer job when a
significant portion of that job was canceled. Burt Looney testified that only 2 or 3
weeks of welding "for apparently three or four welders" remained.12 According
to Looney,13 he met with his foremen shortly after receiving Allied-Shaffer's
0 Ronald Looney denied that his company was in any way at fault for the delay in con-
tract performance ; he attributed delinquencies in delivery, among other things, to Allied-
Shaffer's alleged failure to supply it with required drawings. Burt Looney mentioned
material shortage as a significant factor
Ss Both Looneys testified that Respondent previously had been subjected to "numerous
threats" of cancellation which later were withdrawn , and that they felt the latest notifica-
tion "was probably another one of the situations of pressure."
11 An additional aluminum welder (Patrick)-a full-time day employee for another com-
pany-worked part time in the evening. I do not credit Basore's testimony to the effect
that Respondent had less than eight certified aluminum workers ; Basore had but limited
opportunity to observe the work of other employees during his brief (7-week) employment
at Respondent.
11 Basore estimated that 4 or 5 weeks of heliarc welding still remained in his "immedi-
ate area" ; he did not, however, specify the number of welders that could be occupied all
that time, nor the basis of his estimate
13 Unless otherwise indicated, all references to "Looney" herein refer to Burt (as opposed
to his brother Ronald) Looney.
LOONEY SHEET METAL CONSTRUCTION 1641
(August 23 ) telegraphic cancellation to review the situation "if this cancellation
was carried out." It was decided that in the event of cancellation , Respondent
would reduce its work force by dismissing the recently hired welders ; and that the
same procedure would be followed with respect to the layout and fit-up employees,
who, according to Looney , were the next category of employees to be released.14
Looney further testified that he investigated the possibility of transferring the
excess employees to the Ets -Hokin project , but that this turned out to be unfeasible
because the Allied -Shaffer men were higher skilled and better paid than the Ets-
Hokin employees doing "a production assembly line type of work ." When the
cancellation became definite, Looney directed the layoff of Basore and Cherny.
Cherny and Basore reported to work on Friday , August 27 , about 5 minutes
before starting time (7 a.m.). Around 8 or 8:30 a.m., Foreman Scott told Cherny,
"Bob, I have orders from upstairs to lay you off" for "lack of work." When Cherny
remonstrated that there was 3 or 4 weeks ' work in his immediate area, Scott said,
"Well, that's what they told me ." Cherny gathered his tools and a few minutes
later asked Cherny, "Well , what took them so long to lay me off , was it because
Burt was up half the night watching them sign up cards?" Scott replied, "Well,
about the same excuse they gave Don to lay him off." (According to Cherny,
Don, a former welder, was discharged for excessive absenteeism but told the reason
was lack of work.)
Shortly after Cherny was laid off, Scott told Basore, "Bill , I've been told to lay
you off, that we have no more use for a straight helioarc [aluminum ] welder."
When Basore demonstrated that 'he had also worked as a layout and fit-up man,
Scott replied , "Well, I'm just going on orders . I was told to lay you off and that's
what I was told to tell you."
As they were leaving the plant, Cherny and -Basore encountered Ryan, the
project engineer for Allied -Shaffer, and told Ryan what had happened . Ryan testi-
fied that he was "particularly concerned" about the termination - of two highly
valued welders and so informed the Looneys . Assuring Ryan that the Company
would have no difficulty replacing them with equally competent men, the Looneys
stated they "would continue to make a timely prosecution of the contract."
Basore and Cherny ranked lowest in seniority among Respondent 's eight certified
aluminum welders. Looney credibly testified that Respondent laid off additional
aluminum welders after their termination and before completion of the Allied-
Shaffer job in October 1965; Respondent employed no aluminum welders at the
time of the hearing in February 1966.15
D. The discharge of Lester Kosechata and his crew
As previously noted, during the time here involved , Respondent was fabricating
products for Ets-Hokin , as well as for Allied-Shaffer . Ets-Hokin , a contractor at
Flagstaff, Arizona, erected high line towers (of much smaller size than the "tre-
mendously large single structure " constructed under the Allied-Shaffer contract),
to support wires conducting electricity to dams and power generators . Respondent
manufactured the component parts going into 567 such towers. At the end of
August, Respondent employed approximately 40 or 45 employees on this project,
under the supervision of Owen Carr , tower shop foreman , assisted by Darell Reese
and Rex Sloan. These employees included machine operators , steel welders, hole-
punchers , and helpers . Although machine operators were expected to read blue-
prints, some were unable to do so and the leadmen 's duties included "showing
them [and others ] what do" from blueprints . By the time of the hearing ( Febru-
ary '1966 ), Respondent had practically completed the fabricating work, with
galvanizing and shipping the major remaining operations . Respondent still employed
35 employees at that time.
Among those assigned to the Ets -Hokin project were Lester Kosechata ("the
Chief"), a test erection leadman , and his crew of five (James Clark, Melvin Ross,
Alvis Rowan, Douglas Lena, and Doyle Cleveland). Kosechata had been hired by
Respondent at the end of April 1965 , and worked in various capacities (layout
14 According to Looney , the layoff of surplus helpers was to come after release of the
layout and fit-up men
151 do not credit the testimony of Ryan , Allied - Shaffer's project supervisor , that Re-
spondent "secured" additional heliare welders after August 27 Although Ryan was a
highly credible witness on other matters in issue, his testimony on this point was vague
and predicated on limited observational opportunity.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, fitter, welder) until he was made leadman in the beginning of August.1e
Ross was hired on August 2 or 3, Clark around August 17, and Rowan on
August 23.17 Kosechata, Clark, Rowan, and Ross signed union cards at the start
of the organizational drive; and Kosechata and all his crew wore union buttons at
the plant on the morning of August 27.18 It will be recalled that Kosechata had
assisted the Union's instigators (Cherny and Basore) in soliciting signatures on
union authorization cards.
Around 10 a m. on August 27, Jack Scranton (the production control man)
told Kosechata to take all the "mistakes" he found on the material and blueprints
to Lancaster (the plant superintendent). Kosechata did so, taking his crew with
him. After Kosechata pointed out errors in fabrication from failures to meet blue-
print specifications and from mistakes in the blueprints themselves,19 Lancaster
said, "Well, we will get these straightened and corrected. . . . We have no more
use for you and the men." When Kosechata asked why, Lancaster said, "We are
short of material." Kosechata was told to take his men to the front office to pick
up their paychecks.
Burt Looney testified that Kosechata and his crew were terminated because of
"quite a few errors" found in tower erecting. He admitted, however, that some
of these were due to misfabrication and what he at that time believed to be mis-
takes in the blueprints for which the crew was not responsible. Although he would
not say that the "whole crew" was "bad," he felt that he "didn't have too much
faith in the whole bunch." According to Looney, Kosechata also "was taking
entirely too much time and he had too many men out with him." At the end of
his testimony, he stated that he laid off Kosechata "because there was no more
work, but . . . didn't rehire him [3 or 4 weeks later when other towers were test
erected] because he was not competent."
O'Neal, Respondent's plant engineer, testified that Kosechata and his crew were
laid off because of lack of work due to steel shortage and "no towers to erect."
O'Neal also stated that Kosechata's work was "strictly temporary, since there was
a limited amount of towers to erect"; and that no tower erecting was in sight for
3 or 4 weeks. Finally, he asserted that a material factor in refusing to recall
Kosechata when tower erection was resumed was the fact that he "was hard to get
along with, and no one in the plant could get along with him that worked with
him, the men themselves."
16 Kosechata was hourly paid (like Respondent's lank-and-file euuiloyees) anti most of
the time (60 or 70 percent) performed the same work as his crew. His duties as leadman
were of a routine rather than managerial nature. These included relaying work instruc-
tions of managerial officials (such as O'Neal, the plant engineer), assisting his crew to
select necessary pieces or paits from blueprints, and showing them how to do the work
Contrary to Respondent's contention, the credible evidence fails to show he had power
to discipline. When Kosechata discovered errors in fabrication, he reported them to the
plant superintendent or production control man of supervisor (Scranton). Kosechata
credibly testified that it was the plant engineer (O'Neal) who once made the decision to
fire a member of his crew (Lena), that he merely relayed O'Neal's decision, and that it
was O'Neal who subsequently canceled that decision after he (Kosechata) reported that
the employee was doing a good job I find that Kosechata was not a supervisor within the
meaning of Section 2(11) of the Act. He was no more than "a supeilor workman or lead-
man who exercises the control of a skilled worker over less capable employees" (N L R B. v.
Southern Bleachery c( Print Workers, 257 F 2d 235, 239 (C.A. 4))) and, therefore, was
entitled to the protection of the Act. See N.L R B v Quincy Steel Casting Co., 200 F.2d
293, 296 (C A. 1) ; N.L.R B v. Lindsay Newspapers, Inc , 315 F.2d 709, 712 (C A. 5) ,
Becker County Sand d Gravel Co, 157 NLRB 557, 61 LRRM 1411.
17 The hiring dates for Lena and Cleveland are not shown , neither employee testified.
18 Although 'Clark did not work on August 27, he went to the plant to inform Kosechata
that he would have to take sick leave that day Respondent's records purport to show that
Clark was "terminated" at the end of his shift on August 26, but there is no evidence
(nor claim) that Clark was informed of such termination at that time. In view of the
fact, presently shown, that Kosechata and his entire crew at work in the morning of
August 27 were released simultaneously (all clocked out at 11 a in )-I infer that the
notation in Respondent's record to the effect that Clark had been "terminated" on
August 26 signifies only that he last worked on that day. The reasonable assumption is
that had Clark reported for work on August 27, he would have been "terminated" along
with the rest of his crew at 11 a.m. on that day.
19 Errors in blaepiints, as well as fabrication processes, were not uncommon
LOONEY SHEET METAL CONSTRUCTION 1643
Burt Looney testified that Respondent test erected one or two more towers
3 or 4 weeks after the August 27 layoff. A new man (not previously employed by
Respondent) was put in charge. None of Kosechata's crew, except Cleveland, was
ever rehired. (Cleveland worked for Respondent between September 14 and
December 12.)
As previously noted (supra, footnote 18), Clark, a member of Kosechata's crew,
did not work on August 27. When he reported to the plant on September 2 and
found the erection crew no longer working, he went to O'Neal's office and asked
him what had occurred. O'Neal advised him that they no longer had a test erection
crew. Clark asked if he still had a job and was told there was no work for him at
the plant. Then O'Neal volunteered, "Jim . . . if you're one of those Union boys
you might as well forget it because it would take you two years to bring
this to a head. . . . Looney was union before and they know enough about this
kind of stuff that they're not going to have it." 20
E. The discharge of William Martin
Martin was hired in January 1965 as a helper on the Ets-Hokin tower line job.
About a month later he was made a clipping machine operator and given a wage
raise (from $1.25 to $1.50 an hour), and another 15-cent increase in April or May.
He operated Respondent's only clipping machine with helpers. Martin signed a
union card and displayed his union button at work in the morning of August 27.
At 3 p.m. of the same day (August 27), his foreman (Carr) told Martin that
they were short handed in the galvanizing depaitment and that the galvanizing
foreman (Bob Smith) had asked for him. After finishing out the day in the galva-
nizing department, he was told to report on the swing shift on the following day,
to work for the night foreman. In the meantime, Respondent put a new operator
on the clipping machine. As previously noted, work in the galvanizing department
is considered undesirable because of fumes, heat, and risk of injury from molten
zinc.
When Martin reported for work on September 10, he found his timecard
missing. When he asked Bob Smith what had happened, he was told he didn't
know and that he would have to check with the office. At the office he was told
he would have to check with John Lancaster. Lancaster told him, "Here is your
check, paid in full." 21
Burt Looney testified that Martin was discharged because of poor performance
in the galvanizing department. According to him, Martin was transferred to that
department because Respondent "had been getting word back from the Ets-Hokin
people about numerous errors" in the clipping operation. He stated that six or eight
men had quit the galvanizing department at that time, "so we offered him a job
back there if he wanted it since he had worked for us so long." 22 Looney further
testified that Smith "wasn't happy" with Martin's work; that after "a couple of
days" he was given another job in the yard stacking angles; and that Martin was
fired on September 10 because "either through carelessness or some other means"
he mixed these angles in the stacks. According to Looney, "it was evident that he
wasn't happy with his job." In support of his testimony, Respondent introduced a
letter from Ets-Hokin dated August 25, confirming a telephone conversation in
which the former complained about the "worsened" situation regarding "tower
parts shortages and misfabrications."
F. The discharge of Answell Crisp
Crisp was hired as a steel welder on the Ets-Hokin job on August 10, 1965. He
signed a union card and wore his union button at work on August 27, the day he
was discharged. According to Crisp, his foreman assigned as the reason for his
discharge the claim that his work "wasn't suitable." Crisp testified, "I told him
okay, because I didn't appreciate working for $1.50 anyway, not welding."
Burt Looney testified that Crisp was terminated after the Government inspector
at the plant (Gordon) complained there were "a lot of kickbacks" on Crisp as a
m The above finding Is based on credible testimony of Clark
n The foregoing findings are based on Martin's credible testimony.
22 Because of the heavy turnover and good deal of transient help at the plant, Martin's
7-month tenure before his transfer to galvanizing apparently made him a long-time
employee
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welder. According to Looney, he followed the inspector's suggestion to give Crisp
a new welding test because he (Crisp) "was getting sloppy in his work." However,
Crisp "flunked the test" given him on August 27. According to Looney, although
Crisp was previously certified as a steel welder (supra, section C, 2), Respondent
under its contract with Ets-Hokin was obligated to retest (as a prelude to recertifi-
cation) any welder the Government inspector "felt . . . was not up to his
expectation."
Crisp denied that he was retested prior to his discharge. I do not credit his
denial in view of Burt Looney's more definitive and reliable testimony on this point.
G. The discharge of Harold Wheeler
Wheeler was hired on February 5, 1965 as a checker and layout man on the
Ets-Hokm job. He was made tower shop foreman (a supervisor with 25 to 40 men
under him), about 2 months later, but was demoted back to checker 5 to 9 days
before his discharge on August 27.23 Wheeler signed an authorization card and
displayed a union button at work on the morning of August 27.
On the same morning (August 27), Respondent received the Ets-Hokin letter
of August 25 (Respondent's Exhibit 6, supra), complaining of numerous tower
parts shortages and misfabrications ("mis-punched" and improperly clipped pieces).
Plant Superintendent Lancaster called in Wheeler and Rex Sloan, a subforeman in
charge of the rack.punches,24 and reprimanded them for their "mistakes." Assuming
that Lancaster was referring to misfabrications by his men while tower shop fore-
man about 10 days earlier Wheeler accepted full responsibility, "even though
[he] didn't fabricate the parts directly." He explained, however, that the mistakes
were "unavoidable," that he had done his job "to the best of [his] ability," and
that he "would answer for Rex Sloan" also 25 Lancaster told him that he would
discuss the matter with Burt Looney.
Later in the day, at approximately 3:30 p.m., Lancaster passed by Wheeler's
work station and asked if his card was going to be pulled. Lancaster replied that he
didn't know, but reaching up and flipping Wheeler's union button, he remarked,
"This is what is hurting you more than anything else." At around 4 p.m., Lancaster
called Wheeler to his office and remarked, "You were right," gave Wheeler his
check, and said, "You're fired." 26
Burt Looney testified that the errors and misfabrications complained of in the
Ets-Hokin letter pertained to work subject to checking and inspection by Wheeler;
that if Wheeler had properly performed as checker, the mistakes and errors would
have been picked up prior to shipment in the field; and that he made the decision
to fire him after discussing the matter with his brother Ronald. The latter testified
that although "a good portion" of the materials referred to in the letter "undoubt-
edly" involved "materials that were shipped out previous . . . to the time Harold
Wheeler took over as checker . . . while he was foreman of the tower shop,"
he was "sure a portion of them were items that he had checked and gotten through
in the last several weeks that he was checker." 27 Ronald Looney further testified
that after talking the matter over with his brother and with Bob O'Neal (the
plant engineer), he "instructed Burt that we needed to rectify the problem immedi-
ately" stating "that in [his] estimation Harold Wheeler was our biggest single
problem at that point." He admitted that the shortages referred to in the Ets-
Hokin letter "would not be the responsibility" of Wheeler.
23 Burt Looney gave the date of demotion as "about" August 18 and Wheeler as "around"
August 22 or 23. Looney testified that a checker or (inspector) is "a quality control man,
in essence, he checks the items where they come down through the shop after certain items
of work . . . have been performed."
u Burt Looney attempted to equate Sloan's authority and control over employees under
him with that of Darrell Reese, herein found to be a supervisor (supra, section B, 1, b)
Wheeler was Sloan's superior when he was tower shop foreman.
zs It is presumably on the basis of complaints of this nature that Wheeler was demoted
from foreman to checker around August 18. Ronald Looney had given Wheeler the choice
of taking the demotion or leaving.
zu The findings in this section are based on Wheeler's substantially uncontradicted,
credible testimony Lancaster did not testify.
27 The "last several weeks" estimate is a gross exaggeration ; Burt Looney himself gave
August 18 as the approximate date of Wheeler's demotion to checker.
LOONEY SHEET METAL CONSTRUCTION 1645
H. The removal of Wheeler and Kosechata from the Allied-Shafer job
As stated in an early part of this Decision (supra, C, 1). Allied-Shaffer's project
engineer (Ryan) had pressured Respondent in various ways to expedite delivery of
the parts to be fabricated for the Apollo space project tower. Allied-Shaffer ulti-
mately canceled portions of its contract with Respondent and sublet the work to
other subcontractors. Subsequent to Respondent's August 27 layoffs, Ryan pro-
posed to Respondent that the contract might further be expedited if it would permit
him to assume responsibility for the final assembly of the component tower parts,
their loading on carriers, and delivery to Cape Kennedy, Florida. Allied-Shaffer
was then reimbursed for its expenses from the contract moneys. Respondent agreed
to this arrangement and Ryan hired one of Respondent's former high-level super-
visors, Charles Cherny, to assist him in this function. Ryan instructed Cherny to
hire additional qualified people to do the work; i.e., to read blueprints and to
inspect, assemble , and properly fit component parts.
On or about August 30, Cherny hired two of Respondent's laid-off employees,
Wheeler and Kosechata. Ryan approved the men after receiving Cherny's assurance
that "they were competent to do this type of work"; Ryan himself had observed
one of them work at Respondent and considered him "very capable and conscien-
tious." Both employees accepted Ryan's offer to work at $4 per hour and executed
the W-4 forms in Ryan's office (on Respondent's premises) before commencing
work on the morning of August 30.
Just before leaving for their work stations , the Looney 's entered Ryan 's office
and asked Ryan to step outside. According to Ryan's credible testimony, the
Looney's stated that they were "very agitated and disturbed" and informed him
that they "would not permit [him], to hire these men and would not permit them
in the plant." The Looneys gave as their reason the fact that "these two individuals
were persona non grata to them , inasmuch as they were the ringleaders of the
unionizing attempt." Protesting that the Looneys were putting him "in a very
awkward position" because he had already hired the men, Ryan asked the Looneys
to "reconsider and permit [him] to leave the men in [his] employment and see
if it would work out." The Looneys, however, remained "very adamant." Ryan
then informed Wheeler and Kosechata that he could not employ them and hired
other men to do the work. The job in question was completed in 2 months 28
1. Conclusions as to the discharges and alleged discriminatory treatment
of employees
The questions here presented-whether Respondent discriminatorily laid off or
discharged employees and whether it discriminatorily caused another to deny
employment to two terminated employees-are purely factual, the key issue being
Respondent 's motivation . In resolving this issue it is appropriate to bear in mind
the well-settled proposition that the existence of valid ground for a discharge does
not legalize it where "other circumstances reasonably indicate that union activity
weighed more heavily in the decision to fire him than did dissatisfaction with his
performance." N.L.R.B. v. Whitin Machine Works, 204 F.2d 883 (C.A. 1). Fur-
thermore , "Intent is subjective and in many cases the discrimination can be proven
only by the use of circumstantial evidence." N.L.R.B. v. Melrose Processing Co.,
351 F.2d 693, 698 (C.A. 8). Indeed, "direct evidence of a purpose to violate a
statute is rarely obtainable." N.L.R.B. v. Int. Union of Operating Engineers, Hoist-
ing and Portable Local No. 101, 216 F.2d 161, 164 (C.A 8).
28 The foregoing findings are based largely on the testimony of Ryan, a disinterested wit-
ness, without stake in. the outcome of the litigation. Wheeler's and Kosechata's testimony
is fully consistent with Ryan's I do not credit Ronald Looney's vague and sweeping state-
ment that he never discussed "the matter of Union activity with anyone." Nor do I credit
his denial that his insistence that Ryan cancel his decision to hire Wheeler and Kosechata
was "in anyway premised or motivated" by their union sympathies. For reasons already
indicated and to be detailed, I reject his explanation that the two employees' alleged in-
competence (Wheeler's responsibility for "misfabrications" and Kosechata's poor tower
erection performance) and the fact that Respondent would ultimately have had to re-
imburie Allied- Shaffer's high wages to the men ($4 per hour) were material factors in
Respondent's actions At one point Looney gave "this problem of misfabrications" as
"the main reason" for objecting to Wheeler's employment by Allied-Shatter and "the
wage portion [motel than anything else" as the chief objection to Koseehata's hire.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Basore and Cherny
There is ample evidence supporting a prima facie case of discrimination in the
discharges of Basore and Cherny. Respondent opposed the organizational cam-
paign; indeed, as hereafter found, it resorted to the extreme step of inducing
another employer to withdraw employment from two union employees. Basore and
Cherny were the instigators of the Union. Admittedly, both were competent,
highly skilled welders. And Respondent's knowledge of theii role in the organi-
zational campaign cannot be denied, since they conducted the campaign before
the very eyes of its officers and supervisors. The timing of the discharges-within
24 hours of the start of the campaign-is also most significant. Thus, the basic
elements necessary to establish a prima facie case of unlawful discrimination are
present.
I cannot, however, overlook the uncontroverted (and, in my view, decisive),
fact that when it terminated the two employees, Respondent was faced with a severe
reduction in the work previously performed by Cherny and Basore. Only 3 days
before the discharges (August 24), Respondent had received Allied-Shaffer's tele-
gram canceling a significant portion of its contract with that contractor. Respond-
ent's attempts to rescind the cancellation proved unavailing and hours before the
layoff (7 a.m., August 27) it received the contractor's letter confirming the can-
cellation. Although the evidence as to work still left on the Allied-Shaffer job is
conflicting (the Looneys estimated it at 25 percent and Allied-Shaffer's project
engineer at 331/3 to 50 percent), it is clear that Respondent had lost a sizable por-
tion of the contract. It is also clear that the amount of the aluminum welding
(the two employees' operations at that time), was considerably reduced. Since
Basore and Cherny were Respondent's junior aluminum welders (the latter had
worked for Respondent only 3 weeks and the former 7 weeks), their layoff on
August 27 was not unexpected. Moreover, the record shows that neither was
thereafter replaced, Respondent hiring no aluminum welders after August 27.
In view of all the foregoing, and despite the fact that certain circumstances
surrounding the discharges of Basore and Cherny are suspicious, I find that Gen-
eral Counsel has failed to establish that the discharges were unlawfully motivated.
I find that Respondent rebutted whatever inferences of discrimination could other-
wise reasonably arise from Respondent's hostility toward the Union and its other
contemporaneous illegal conduct. I conclude that the discharges of Basore and
Cherny were not violative of Section 8(a)(3) and (1) of the Act.
2. Kosechata and his crew
As noted (supra, D), Kosechata and his five-man crew were test-erecting high line
towers for Ets-Hokin Company when terminated on August 27. Prior to his dis-
charge (in the morning of that day), Kosechata assisted Basore and Cherny
distribute union cards and union buttons in front of the plant.29 He and the members
of his crew also displayed their union buttons in the plant that morning. As also noted
(supra, H), Kosechata was one of the two employees refused employment by
Ryan (Allied-Shaffer's project engineer) at the adamant insistence of Respondent
because, as the Looneys told Ryan, they suspected Kosechata as one of the Union's
"ringleaders." And Clark, one of the crew who returned to the plant on Sep-
tember 2, was frankly told-by Respondent's official, Neal, that he "might as well
forget" working for Respondent if he was "one of those Union boys."
The circumstances surrounding the discharges-including Respondent's demon-
strated hostility toward the Union, the drastic steps it took to retaliate against
Kosechata on account of his suspected union leadership, the union adherence by
the crew as evidenced by their display of union buttons (at least four also signed
union cards), Respondent's knowledge of such adherence,30 and the timing of the
' Kosechata 's status as an employee is discussed supra, footnote 16.
"I infer such knowledge not only from the displaying of the union buttons but also
from the observation of union cards and button distributions in front of the plant by
Respondent 's officials . In any event, it is unnecessary to show that each victim in a mass
discharge is a union adherent where the group discharge was intended to discourage
union representation . N.L.R.B. v. " Piece Manufacturing Corporation, 290 F 2d 455, 456-
(CA 2)
LOONEY SHEET METAL CONSTRUCTION 1647
discharges within hours of inauguration of the union campaign-are more than
sufficient to establish a prima facie case of unlawful discrimination.31
Far from rebutting this showing, Respondent's varied, shifting, and inadequate
explanations for the terminations, strengthen the inference that the motive for its
action was discriminatory. Thus, in his parting interview with the men, Lan-
caster (the plant superintendent) told them they were being terminated because
of a material shortage. At the hearing, O'Neal (Respondent's project engineer)
assigned a similar reason, explaining that Kosechata's work was "strictly tem-
porary." However, none of the men were told that they were being laid off only
temporarily, for the duration of the material shortage; nor did Respondent at the
hearing claim that such was its intent. And there is no evidence that Kosechata
or any of his crew-when hired or transferred to the test erection job-was told
of the alleged temporary character of the assignments. Burt Looney-as opposed
to O'Neal-stressed Kosechata's "incompetence" ("errors" in tower erecting) as the
prime cause of his termination, but admitted that some of those errors were due
to what he thought at the time were mistakes in the blueprints for which Kose-
chata was not responsible. He also complained that Kosechata was too slow and
had to use too much help-a matter he apparently discovered only weeks later
when he hired Kosechata's replacement. At the end of his testimony, he attributed
Kosechata's initial separation to lack of work rather than to incompetency, explain-
ing that his poor performance merely precluded his recall. Looney admitted that
although he would not say that the work of Kosechata's crew was "bad" none
was recalled by Respondent 32
Viewing the evidence in its entirety and in the context of Respondent's total
conduct, I conclude that the reasons Respondent advanced for its termination of
Kosechata and his crew were mere pretexts to disguise its discriminatory motiva-
tion. I find that Respondent discharged Kosechata because of its belief that he was
one of the union "ringleaders." Although the role of Kosechata's crew in the Union
appears to have been minimal, and it may well be (as General Counsel suggests)
that their layoff was motivated by Respondent's desire to rid itself of all union
adherents it could in anticipation of a recognitional demand,33 I am of the view
(and find) that here, as in Wonder State Manufacturing Company v. N.L.R.B,
331 F.2d 737, 738 (C.A. 6), they were "discharged in order to lend credence to
the contention that [Kosechata] was being discharged for cause." 34 "A power dis-
play in the form of a mass layoff, where it is demonstrated that a significant motive
and a desired effect were to `discourage membership in any labor organization' sat-
isfies the requirements of Section 8(a)(3) to the letter even if some white sheep
suffer along with the black." Majestic Molded Products, Inc. v. N.L.R.B., 330 F.2d
603, 606 (C.A. 2).
I conclude that the discharges of Kosechata and his crew were discriminatorily
motivated, in violation of Section 8(a)(3) and (1) of the Act.
3. William Martin
As found, Martin had been employed for almost 7 months at the time of his
discharge, a long-time employee by Respondent's standards (supra, footnote 22).
31 Although alleging the discharges of Kosechata's crew as a violation of Section 8(a) (3)
and (1), the complaint tailed to allege Kosechata's discharge as such violation. However,
in view of the fact that the latter's termination was an integral part of the mass dis-
charge and, more particularly, since Respondent fully litigated the issue, I do not con-
sider myself foreclosed from passing thereon. See Monroe Feed Store, 112 NLRB 1336;
Eagle-Pwcher Mining and Smeltvng Company v. N L.R.B., 119 F.2d 903, 910 (C A. 8) ;
Fort Wayne Corrugated Paper Company v. N.L.R.B., 111 F.2d 869, 873 (CA. 7). Cf. Frito
Company v. N.L.R.B., 330 F.2d 458 (C.A. 9). In any event, the matter is only of minimal
practical significance insofar as Kosechata's backpay is concerned since, as hereafter
found, Respondent is in any event required to reimburse him for loss of earnings for pre-
cluding his employment by another employer (Allied-Shaffer) several days after his
discharge.
32 One employee (Cleveland) was rehired in September 1965, apparently as a new em-
ployee, on the basis of a new application:
as The Union made such demand several hours after the discharges.
34 The record indicates that Respondent 's test-erecting crews (such as Kosechata's) con-
sisted largely of readily dispensible or replaceable nonskilled help (general labor), as to
whom there was substantial turnover.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He had received two wage increases during his tenure of employment . He cred-
ibly testified that he was transferred from the clipping machine (which he oper-
ated during almost his entire time with Respondent), to an undesirable laborer job
in the galvanizing department (supra, E ) on the day after he signed a union card
and displayed his union button (August 27 ).35 A new operator was assigned to his
position.
On the basis of the entire record-including Respondent 's antiunion bias (evi-
denced among other things by one of its supervisors' threats that union employees
would be transferred to the galvanizing department) and Martin's openly displayed
union sympathies (evidenced by his wearing a union button)-I find that there
was more than a coincidental connection between the revelation of Martin 's union
sympathies on one day and his reassignment to, a disagreeable job the very next
day, and discharge shortly afterward. This conclusion is fortified by the inadequacy
of Respondent's explanation for its actions. Thus, although Burt Looney testified
that Martin was a poor clipping machine operator, there is no evidence of com-
plaint about his work in the months prior to the advent of the Union. Nor is there
evidence that he was ever admonished about any alleged, shortcomings as such
operator.36 The same is true with respect to Martin's last (but brief) job prior to
his dismissal on September 10. According to Looney , Martin "either through care-
lessness - or some other means" mixed angles in the stacks. Contrary to Respond-
ent's contention, the Ets-Hokin letter of August 25, complaining about tower parts
deliveries , does not buttress its position. To begin with , the letter related to "short-
ages and misfabrications" of all types covering more than Martin's operations.
Even more important since that letter pertained- to work completed before
August 25 , it could have had no application to Martin 's stacking job in the yard,
his last just before his dismissal on September 10. It is thus clear that Martin's
work did not become intolerable to Respondent until after he had identified him-
self as a union adherent.
I conclude that Martin's discharge was discriminatorily motivated in violation
of Section 8(a)(3) and (1) of the Act.
4. Answell Crisp
I find that the record as a whole does not support a finding that Crisp's dismissal
on August 27 was discriminatorily motivated because of his union sympathies.
Although some of the factors heretofore referred to as establishing a prima facie
case of discrimination are also present in Crisp's case ( i.e., company antiunion
bias, union adherence, by the discharges, and employer knowledge of such adher-
ence through display of union button), the credible countervailing evidence adduced
by Respondent satisfactorily rebuts the prima facie showing.
As indicated, Crisp, a steel welder, had been in Respondent's employ only 2i
weeks. On complaint from the Government inspector that he "was getting sloppy
in his work," Respondent required him to take a new welding test as a prelude to
recertification as qualified steel welder . Crisp failed that test and was discharged.
To find, as General Counsel would have me, that Crisp, too, "fell victim to the
Respondent 's wholesale attempt at intimidation ," would in effect clothe an employee
with immunity against discharge simply because he is a known union sympathizer.
The burden of proof is still upon General Counsel to show that protected activity
was the cause of (or substantially contributed to) the discharge.
I conclude that Crisp 's termination was not violative of Section 8(a) (3) and (1)
of the Act.
5. Harold Wheeler
Wheeler, the 'shop foreman demoted to checker 4 to 9 days (the estimates varied)
before his discharge on August 27, signed an authorization card and displayed his
union button on the day of his discharge. As stated previously, it was on that same
day (August 27) that Plant Superintendent Lancaster called Wheeler and Sloan
(a subforeman) to his office , attributed to them responsibility for "misfabrica-
35 I do not credit Burt Looney 's vague testimony implying that Martin was transferred
to the galvanizing department only "a couple of days" before his discharge on September 10.
38 Respondent did not call Martin ' s immediate supervisor (Owen Carr ) nor others ob-
viously more familiar with his work than Respondent ' s president.
LOONEY SHEET METAL CONSTRUCTION 1649
lions" complained of-in the August 25 Ets-Hokin letter, and reprimanded them
for their "mistakes." Later in the day, Lancaster told Wheeler that it was the union
button he was wearing that was "hurting you more than anything else" insofar as
his job was concerned. Around 3 days after his discharge (on August 30), the
Looneys prevailed on Allied-Shaffer to cancel its decision to hire Wheeler and
his coworker, Kosechata, because they suspected the two men to be "the ringleaders
,of the unionizing attempt."
Respondent's explanations for Wheeler's discharge do not overcome General
Counsel's prima facie case. Assuming, as Respondent contends, that Wheeler, as
foreman, was responsible for the "misfabrications," 37 the fact is that Respondent
had already elected a lesser punishment than discharge (demotion to checker) to
meet the situation. Respondent's further attempt to pin responsibility for the mis-
fabrications on Wheeler on the ground that Wheeler had failed to spot them
(prior to shipment), in his capacity of checker is of no avail since, even according
to Burt Looney's testimony, Wheeler was not sufficiently long on that job (at best,
since August 18) to have enabled him to check the shipments referred to in Ets-
Hokin's complaining letter of August 25. It was apparently this weakness in
Respondent's position that prompted Ronald Looney to testify that Wheeler had
"several weeks" employment as checker. It appears that the "biggest problem"
Ronald Looney expected to eradicate by Wheeler's discharge was not, as he
claimed, a production problem, but as the record establishes, a union problem.
6. Respondent's inducement of another employer to cancel
its decision to hire Wheeler and Kosechata
As already pointed out, it was in blocking Wheeler's and Kosechata' s employ-
ment by Allied-Shaffer that Respondent betrayed the full extent of its hostility
toward the Union. Indeed, the discriminatory character of Respondent's conduct
in this respect is established by "direct evidence . . . rarely obtainable" in ascer-
taining "a purpose to violate" the statute. N.L.R.B. v. Operating Engineers, Local
101, 216 F.2d 161, 164 (C.A. 8).
As found, on August 30, Ryan (Allied-Shaffer's project engineer) and Cherny,
his general supervisor, hired the two employees to assemble and load component
tower parts at the plant site for delivery to Cape Kennedy.Sa Ryan and Cherny (the
latter had worked with them as Respondent's plant superintendent), had regarded
both as competent employees. On learning of Ryan's action, the Looney' s warned
that they "would not permit" either employee on company property, explaining that
they were "persona non grata to them, inasmuch as they were the ringleaders of
the unionizing attempt." Remaining "very adamant," they refused to heed Ryan's
plea to "reconsider" their objection.
Ronald Looney's explanation at the hearing that Respondent's decision to veto
the two employees' employment was motivated solely by their incompetence and
the high wage, rates Ryan offered them, is pretextuous. In his testimony, Ryan
alluded to no such explanations, nor was he cross-examined on this (and for that
matter or any phase of his) testimony. The self-serving and subjective reasons now
advanced by Ronald Looney (whom I found to be an unreliable witness in other
respects also), for Respondent's conduct are insufficient to destroy the direct and
unequivocal testimony of Ryan, a totally disinterested and candid witness, bearing
upon Respondent's unlawful motivation.
37 Although Wheeler accepted responsibility therefor in his then capacity of supervisor,
he explained that he had no control over production on the night shift; Ronald Looney
conceded that Wheeler had made that point in prior management meetings . In addition,
Lancaster's reprimands were addressed to Subforeman Sloan as well as Wheeler , indicat-
ing that Sloan was also responsible for the defects; but there is no evidence that Sloan
was in any way disciplined therefor. Finally, there is evidence that some of the mis-
fabrications were due to mistakes in blueprints rather than production.
38 Although Respondent at the hearing disputed Kosechata 's employee status while its
leadman ( supra, footnote 16), there is no question that Allied-Shaffer sought to employ
Kosechata as an employee.
257-551-67-vol. 160-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that Respondent's conduct in blocking Wheeler's and Kosechata's
employment by Allied-Shaffer was no less ill intentioned and illegal than its dis-
charge of those two men 3 days earlier.39
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning their union sympathies and
activities, by threatening employees with discharge or other reprisals for engaging
in protected union activities, by requesting an employee to destroy his union
authorization card, and by engaging in surveillance of a union meeting, Respond-
ent has interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of
the Act
2. By discharging or laying off the employees named below because of their
union sympathies and activities, Respondent has discriminated in regard to the hire
and tenure of their employment, in violation of Section 8 (a) (3) and (1) of the Act:
Harold Wheeler Doyle Cleveland Melvin Ross
Lester Kosechata Douglas Lena Alvis Rowan
James E. Clark William Martin
3. By inducing and causing Allied-Shaffer to deny employment to Harold
Wheeler and Lester Kosechata, Respondent has discriminated in regard to their
hire and tenure of employment, in violation of Section 8(a) (3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
-5. Respondent has not violated Section 8(a)(3) and (1) of the Act by dis-
charging or laying off Bill Basore, Robert Cherny, and Answell Crisp.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirma-
tive actions designed to effectuate the purposes of the Act.
The affirmative relief will include the customary requirement that Respondent
offer the employees discriminated against, excepting the two employees named
below (footnote 40), reinstatement to their former or substantially equivalent posy
tions, without prejudice to their seniority or other rights and privileges; 40 dis-
missing, if necessary to provide employment for those offered and accepting employ-
ment, employees presently employed at Respondent's plant In the event that a
sufficient number of positions are for valid nondiscriminatory reasons unavailable
to the discriminatees after discharge of such other employees, Respondent shall
place them on a preferential hiring list and shall offer them their former or sub-
stantially equivalent positions when such positions become available.
It will also be recommended that each discriminatee be made whole for any
loss of pay suffered by reason of Respondent's discrimination, by payment of a
sum of money equal to the amount he normally would have earned from the date
39 Respondent is liable for having discriminatorily caused their loss of employment
within the meaning of Section 8(a) (3) of the Act, even if a direct employer-employee rela-
tionship did not exist between Respondent and the two men on August 30 As the Board
has said, "the statute, read literally, precludes any employer from discriminating with
respect to any employee, for Section 8(a) (3) does not limit its prohibitions to acts of an
employer vis-a-vis his own employees." Austin Co., 101 NLRB 1257, 1258-59. See also
N.L R B. v Cluck Brewing Company, 144 F.2d 847, 855 (C A. 8) ; West Texas Utilities
Company, 108 NLRB 407, 412-413 In any event, having found )that the men were dis-
criminatorily discharged, they retained their status as employees of Respondent. See
N L R.B. v Hunter Engineering Company, 215 F 2d 916, 921 (C.A. 8) ; N.L R B. v. Cape
County Milling Company, 140 F.2d 543, 546 (C.A. 8).
401 shall not recommend reinstatement. of Doyle Cleveland 'since he was rehired by
Respondent in September 1965; General Counsel does not claim that Cleveland's sub-
sequent separation from Respondent (in December 1965) was based on discriminatory
considerations. Nor shall I recommend Alvis Rowan's reinstatement in view of his testi-
mony that in accepting employment at Respondent he intended,to work only temporarily-
for the duration of a strike at his regular place of employment ; Rowan returned to lies
old job at the end of the strike.
LOONEY SHEET METAL CONSTRUCTION 1651
of the discrimination to the date Respondent offered, or shall offer, as the case
may be, reinstatement, less net earnings during that period, backpay and interest
thereon to be computed in the * manner set forth in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.41
It will further be recommended that Respondent notify Allied-Shaffer Corpora-
tion in writing that'it will not again unlawfully object to the hire by said employer
of employees who are members of a union.
Because Respondent's unfair labor practices go to the heart of the Act, the com-
mission of similar and other unfair labor practices' may reasonably be anticipated.
It will therefore be 'recommended that Respondent cease and desist from in any
manner infringing on the rights guaranteed its employees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this proceeding, I recommend that Looney Sheet Metal
Construction Co., Inc., d/b/a Tulsa Sheet Metal Fabricating Co., its agents, offi-
cers, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees concerning their union sympathies and
activities, threatening employees with discharge or reprisals for engaging in union
activities, requesting employees to destroy union authorization cards, or engaging
in surveillance of union meetings.
(b) Discouraging membership in United Steelworkers of America, AFL-CIO,
or any other labor organization, by discharging or refusing to hire, or causing or
soliciting any other employer to discharge or refuse to hire, employees; or other-
wise discriminating, or causing or soliciting other employers to discriminate against
employees in regard to their hire or tenure of employment or condition of
employment. '
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist United
Steelworkers of America, AFL-CIO, or any other labor organization, to bargain
collectively with representatives of their choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid and protec-
tion, or to refrain from engaging in such activities, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer Harold Wheeler, Lester Kosechata, James E. Clark, Douglas Lena,
Melvin Ross, and William Martin, employment at the same or substantially equiva-
lent positions at which they would have been employed had there not been discrim-
ination against them, without prejudice to their seniority or other rights and privi-
leges, in the manner set forth in the section herein entitled "The Remedy."
(b) Notify the above-named employees if presently serving in the Armed Serv-
ices of the United States of their right,to full reinstatement upon application in
accordance with the Selective Service Act and the 'Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
(c) Make whole Harold Wheeler, Lester Kosechata, James E. Clark, Douglas
Lena, Melvin Ross, William Martin, Doyle Cleveland, and Alvis Rowan, for any
loss of pay they may have suffered by reason of Respondent's discrimination against
them in the manner set forth in the section herein entitled "The Remedy."
(d) Notify Allied-Shaffer Corporation in writing that it will not again object to,
or recommend against the hire by said employer of employees who are members
of a union.
(e) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the rights of employment under the terms of this
Recommended Order.
"Respondent's backpay liability to Cleveland shall cease as of the date Cleveland re-
turned to work in September. (See footnote 40 ) Its backpay liability to Rowan shall
terminate as of the date Rowan returned to work to his regular place of employment
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Post at its plant in Sand Springs, Oklahoma, copies of the attached notice
marked "Appendix." 42 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 16, after being duly signed by an authorized representative of
Respondent, shall be posted by it immediately upon receipt thereof, and be main-
tained 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 cov-
ered by any other material.
(g) Notify said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps have been taken to comply therewith 43
IT IS FURTHER RECOMMENDED that the complaint be dismissed as to all violations
alleged but not herein found.
"In the event that this Recommended Order 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."
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 said Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate employees concerning their union sym-
pathies and activities, threaten them with discharge or reprisals for engaging
in union activities, request employees to destroy union authorization cards, or
engage in surveillance of union meetings.
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization, by discharging or refusing to hire,
or causing any other employer to discharge or refuse to hire, employees; or
by otherwise discriminating, or causing other employers to discriminate,
against employees in regard to their hire or tenure of employment or condi-
tion of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce
employees in the exercise of their rights to self-organization, to form, join, or
assist United Steelworkers of America, AFL-CIO, or any other labor organi-
zation, to bargain collectively with representatives of their own choosing, and
to engage in concerted activities for,the purpose of collective bargaining or
other mutual aid and protection, or to refrain from engaging in such activities,
as guaranteed in Section 7 of the Act.
WE WILL offer Harold Wheeler, Lester Kosechata , James E. Clark, Douglas
Lena, Melvin Ross, and William Martin reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other
rights and privileges.
WE WILL make whole Harold Wheeler, Lester Kosechata, James E. Clark,
Douglas, Lena, Melvin Ross, William Martin, Doyle Cleveland, and Alvis
Rowan, for any loss of pay they may have suffered by reason of the discrimi-
nation against them.
WE WILL notify Allied-Shaffer Corporation in writing that we will not again
object to the hire by said employer of employees who are members of a union.
All our employees are free to become or remain, or to refrain from becoming or
remaining,- members of any labor organization.
LOONEY SHEET METAL CONSTRUCTION CO., INC.
D/B/A TULSA SHEET METAL FABRICATING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
AIR FLOW SHEET METAL, IN C. 1653
Nom.-Notify Harold Wheeler , Lester Kosechata , James E . Clark , Douglas
Lena, Melvin Ross, and William Martin if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Serv-
ice Act , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced , or covered by any other material.
If employees have any questions concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele-
phone 335-4211, Extension 2145.
Air Flow Sheet Metal , Inc. and Billy J. Milligan
Local Union No. 156, Sheet Metal Workers ' International Asso-
ciation , AFL-CIO (Air Flow Sheet Metal , Inc.) and Billy J.
Milligan . Cases 25-CA-2423 and 25-CB-634. October 7, 1966
DECISION AND ORDER
On July 5, 1966, Trial Examiner James F. Foley issued his Deci-
sion in the above-entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that,they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent Employer and Respondent Union
filed exceptions to the Trial Examiner's Decision and supporting
briefs.
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 [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was .committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire record
in this case,' and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, as modified below.
1. We agree with the Trial Examiner that Respondent Union vio-
lated Section 8 (b) (1) (A) and (2) of the Act by causing the Employer
to discharge and refuse to reinstate employee Milligan because he had
not taken the Union's entrance examination and was accordingly not
'The Respondents Employer and Union have requested oral argument . The requests are
hereby denied because the record, the exceptions , and the briefs adequately present the
issues and the positions of the parties.
2 The Trial Examiner , no doubt through inadvertence , found that a union meeting was
held on June 17, 1966, when in fact that meeting was held on January 17, 1966. We
hereby correct his Decision to reflect the proper date.
160 NLRB No. 136.