Wah Chang Corp.

National Labor Relations Board - Board Decisions

Oct 14, 1959

124 N.L.R.B. 1170 (N.L.R.B. 1959)

1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he has first determined that the Petitioner has made an adequate show-
ing of interest among the employees in the appropriate units :
Capitol (21-RC-5457), Imperial (21-RC-5464), Good Time Jazz
(21-RC-5465), Decca (21-RC-5461), Pacific (21-RC-5467), Am-
Par (21-RC-5474), Aristocrat (21-RC-5484), RCA Victor (21-
RC-5463), and Coral (21-RC-5483).
5. Eligibility to vote :
The Petitioner proposes, in effect, that all employees who worked
4 days 19 during the past year for any Employer should be eligible
to vote in such unit or units. The Intervenor urges that eligibility be
based on 1 day's work, whereas Columbia, Capitol, and RCA Victor
suggest 2 or more days.
We have considered all of the facts and circumstances of these cases,
including the irregular nature of the musicians' employment in the
phonograph recording industry and the peculiar characteristics of
this industry, and find that all musicians who have been employed in
any of the appropriate units for 2 or more days during the year pre-
ceding the date of our Decision and Direction of Elections have a
sufficient interest to entitle them to vote in such unit or emits.
[The Board dismissed the petition filed in Case No. 21-RC-5486.]
[Text of Direction of Elections omitted from publication.]
MEMBERS RoDGERS and FANNING took no part in the consideration
of the above Decision , Order, and Direction of Elections.
15A recording session is considered to be equivalent to a day's employment.
Wah Chang Corporation and Metal Trades Council of Portland
and Vicinity , AFL-CIO and Zirconium and Allied Metals
Union, Party to the Contract . Cases Nos. 36-CA--893, 36-CA-
894, 36--CA-895, and 36-CA-898. October 14, 1959
DECISION AND ORDER
On May 6, 1959, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report together with a supporting
brief and the General Counsel has done likewise.
124 NLRB No. 167.
WAH CHANG CORPORATION 1171
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-
member panel [Members Rodgers , Jenkins, and Fanning].
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 In-
termediate Report, the exceptions and briefs , and the entire record
in the case , and hereby adopts the findings, ' conclusions , and recom-
mendations of the Trial Examiner, with the following modifications
and additions :
1. We find, in agreement with the Trial Examiner , that the Re-
spondent, by certain acts and conduct of its supervisory officials, vio-
lated Section 8(a) (1) of the Act. In making this finding , however,
we do not rely on any conduct or acts not specifically set forth in the
Intermediate Report.
2. In.its.brief in support of its exceptions to the Intermediate Re-
port, Respondent points out that the contract containing the rule
regarding solicitation ( article XXII) terminated by its terms on
July 31, 1958 ,2 and that the contracting parties were engaged in, but
had not completed , negotiations relative to a new contract at the time
the events involved herein took place . However, the record clearly
reveals, and we find , that Respondent and Zirconium and Allied Metals
Union were, at all times material herein, still operating under the
provisions of the contract . Accordingly , we agree . with the Trial
Examiner that , by maintaining and giving effect to article XXII,
Respondent violated Section 8(a) (2) and 8 ( a) (1) of the Act, and
1%^e so find.
On the basis of our concurrence in the Trial Examiner's finding 'of
a Section 8(a) (2) violation by the Respondent Employer, as well as
Section 8(a) (3) and 8(a) (1) violations, we shall add to his recom-
mended order the usual provisions in this situation. We shall order
that the Respondent withdraw recognition from, and cease giving
effect to its contract with, Zirconium and Allied Metals Union, unless
and until that union demonstrates its majority status in a Board-
conducted election. It would not effectuate the policies of the Act
merely to order Respondent to cease performing and giving effect to
the illegal clause in its contract, and permit Zirconium and Allied
Metals Union to continue to enjoy a representative status which it
1 we find no merit in the Respondent' s contention that there is no substantial evidence
in the record to support the Trial Examiner's findings of fact and accordingly overrule
its exceptions.
2 The contract, which was executed on Oct. 8, 1957, was, by its terms , to be effective
from Aug. 1, 1.957, to July 31, 1958.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has maintained, at least in part, as a result of the performance of
such clause.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders the Wah Chang Corporation, its offi-
cers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Recognizing Zirconium and Allied Metals Union as the repre-
sentative of its employees for the purpose of dealing with the Re-
spondent Employer concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
unless and until said labor organization shall have demonstrated its
status as majority representative of the aforesaid employees pursuant
to a Board-conducted election.
(b) Performing and giving effect to any provision in its 1957
collective-bargaining contract with Zirconium and Allied Metals
Union or any modification, extension, supplement, or renewal thereof,
unless and until said labor organization shall have demonstrated its
majority status in the manner stated above, and then, only if the agree-
ment otherwise conforms to the provisions of the Act; but nothing
herein shall be construed to vary or abandon the wages, hours, senior-
ity, or other substantive provisions of any such agreement.
(c) Entering into, maintaining, or renewing any agreement with
any labor organization which contains a provision which requires per-
mission from the contracting labor organization for an employee to
engage in solicitation upon its premises.
(d) Threatening its employees with reprisal, with loss of benefits,
or with discharge if they join, become members of, or otherwise engage
in protected activities on behalf of Metal Trades Council of Portland
and Vicinity, AFL-CIO, or any other labor organization.
(e) Interrogating its employees regarding their union affiliations
and sympathies in a manner constituting interference, restraint, and
coercion in violation of Section 8(a) (1) of the Act.
(f) Discouraging membership in Metal Trades Council of Portland
and Vicinity, AFL-CIO, or any other labor organization, by discrimi-
natorily laying off or discharging any employee or by discriminatorily
refusing to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of their employment.
.
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Metal Trades Council of
Portland and Vicinity, AFL-CIO, or any other labor organization,
WAH CHANG CORPORATION 1173
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of mutual aid or
protection as guaranteed in Section 7 of the Act, and to refrain from
any and all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Zirconium and
Allied Metals Union, as the representative of its employees for the
purpose of dealing with any or all of them concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until such labor organization
shall have demonstrated its status as majority representative of the
aforesaid employees pursuant to a Board-conducted election.
(b) Offer to Allen W. Wallace, Quinton D. Dombrowsky, William
L. Stutheit, and Ronald E. Graham immediate and full reinstatement
to their former or substantially equivalent jobs without prejudice to
any rights and privileges previously enjoyed.
(c) Make whole Allen W. Wallace, Quinton D. Dombrowsky, Wil-
liam L. Stutheit, and Ronald E. Graham 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 entitled "The Remedy" of the
attached Intermediate Report.
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary and useful to determine the amount
of back pay due and their right of reinstatement under this Order.
(e) Post at its plant in Albany, Oregon, copies of the notice at-
tached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after being duly signed by Respondent's representatives, be posted for
60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not altered, defaced,
or covered by other material.
(f) Notify the Regional Director for the Nineteenth Region in
writing, within 10 days from the date of this Order, as to what steps
Respondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National. Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT recognize Zirconium and Allied Metals Union as
the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment, unless and until said labor organization shall have
demonstrated its status as majority representative of the afore-
said employees pursuant to a Board-conducted election.
WE WILL NOT perform or give effect to any provision in our
1957 collective-bargaining contract with Zirconium and Allied
Metals Union or any modification, extension, supplement, or re-
newal thereof, unless and until said labor organization shall have
demonstrated its majority status in the manner stated above, and,
then, only if the agreement otherwise conforms to the provisions
of the Act; but nothing herein shall be construed to vary or
abandon the wages, hours, seniority, or other substantive provi-
sions of any such agreement.
WE WILL NOT enter into, maintain, or renew any agreement with
any labor organization which contains a provision which requires
permission from the contracting labor organization for an em-
ployee to engage in solicitation upon our premises.
WE WILL NOT threaten our employees with reprisal, with loss of
benefits, or with discharge if they join or remain members of
Metal Trades Council of Portland and Vicinity, AFL-CIO, or
any other labor organization, or interrogate our employees re
garding their union affiliations or sympathies in a manner con-.
stituting interference, restraint, and coercion in violation of
Section 8(a) (1) of the Act.
WE WILL NOT interfere with the above-named Union's efforts.
to organize our employees, or in any other manner interfere with,'
restrain, or coerce our employees in the exercise of their right to,
self-organization, to form labor organizations, to join or assist
Metal Trades Council of Portland and Vicinity, AFL-CIO, or
any other labor organization to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and all of such
activities except to the extent that such right may be affected by,
an agreement requiring membership in a labor organization as a
WAH CHANG CORPORATION 1175
condition of employment, as authorized in Section 8(a) (3) of
the National Labor Relations Act.
WE WILL offer to Allen W. Wallace, Quinton D. Dombrowsky,
William L. Stutheit, and Ronald E. Graham immediate and full
reinstatement to their former or substantially equivalent jobs
without prejudice to any rights and privileges previously enjoyed.
WE WILL make Allen W. Wallace, Quinton D. Dombrowsky,
William L. Stutheit, and Ronald E. Graham whole for any loss
of wages suffered as a result of our discrimination against them.
All our employees are free to become or remain members of the
above-named Union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the amended Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition of
employment against any employees because of membership in or ac-
tivity on behalf of any such labor organization.
WAH CHANG COORPORATION,
Employer.
Dated---------------- By----------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and an amended charge duly filed by Metal Trades Council of
Portland and Vicinity, AFL-CIO, herein called the Union, the General Counsel.
of' the National Labor Relations Board, herein respectively called the General
Counsel i and the Board, by the Regional Director for the Nineteenth Region
(Seattle, Washington), issued a consolidated complaint, dated February 3, 1959,,
against Wah Chang Corporation, herein called Respondent, alleging that Respondent'
had engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1), (2), and (3) and Section 2(6) and (7) of the
National Labor Relations Act, 61 Stat. 136, as amended, herein called the Act.
Copies of the charges, the amended charge, and the consolidated complaint, to-
gether with notice of hearing thereon, were duly served upon the Respondent, upon.
the Union, and upon.Zirconium and Allied Metals Union, herein called the Inde-
pendent, a party to a certain collective-bargaining contract with Respondent.
Specifically, the consolidated complaint, as amended at the hearing, alleged that
Respondent (1) on certain stated dates discriminatorily discharged four named
employees,2 and thereafter refused to reinstate them, because they had engaged in
protected union activities; (2) in violation of Section 8(a) (2) of the Act, interfered,
with the administration of the Independent and gave it unlawful assistance and
support; and (3) by certain other stated acts and conduct interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
On February 12, 1959, Respondent duly filed an answer denying the commission
of the unfair labor practices.
'This term specifically includes counsel for the General Counsel appearing at the
hearing.
2 Namely, Allen W. Wallace. Quinton D. Doinbrowsky, William L. Stiitheit, and Ronald
R. Graham.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to due notice, a hearing was held on March 5, 1959, at Albany, Oregon,
before the duly designated Trial Examiner. The General Counsel and Respondent
were represented by counsel; the Union by an official thereof. All parties were
afforded full and complete opportunity to be heard, to examine and cross-examine
witnesses, to present evidence pertinent to the issues, to argue orally at the conclusion
of the taking of the evidence, and to submit briefs to the Trial Examiner on or before
April 6, 1959. A brief has been received from Respondent's counsel which has been
duly considered. The General Counsel filed proposed findings of fact and a proposed
remedy which are disposed of in accordance with the findings, the conclusions, and
the recommendations hereinafter set forth.3
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Wah Chang Corporation, a New York corporation, has its principal offices and
place of business at New York, New York. Respondent is engaged in processing
rare metals and operates a plant at Albany, Oregon.4 During 1958, Respondent sold
and shipped products processed at its Albany plant valued in excess of $900,000 to
purchasers located outside of the State of Oregon.
Upon the above admitted facts, the Trial Examiner finds that Respondent is, and
during all times material was, engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the policies of the Act for the
Board to assert jurisdiction in this proceeding.
II. THE ORGANIZATIONS INVOLVED
Zirconium and Allied Metals Union , unaffiliated , and Metal Trades Council of
Portland and Vicinity , AFL-CIO, are labor organizations admitting to membership
employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
The Discriminatory Discharge of Wallace, Dombrowsky, Stutheit, and Graham;
Interference, Restraint, and Coercion
A. Prefatory statement
Under date of October 8, 1957, after the Board had certified the Independent as
the exclusive collective-bargaining representative of the Albany plant production
and maintenance employees, Respondent and the Independent entered into a 1-year
union-security clause contract covering those employees.
Article XXII of said contract, the article this proceeding is particularly, but not
exclusively, concerned with, states, "There shall be no soliciting or petitioning in the
plants without the consent of the Company and the Union."
B. The pertinent facts
Foreman Russell Underwood testified, and the Trial Examiner finds, that on Octo-
ber 26, 1958,5 William Fiegenbaum, the secretary of the Independent, "informed
me that he thought perhaps there was cards being distributed. He didn't say defi-
nitely." He thereupon asked Foreman Kenneth Radford if he "had heard anything
about cards being passed out or solicited by any group of men and also if they had
the Company's approval" and then asked Radford "to watch for the cards." The
following day, October 27, he asked David Hayes, an employee working under his
supervision, whether he had any knowledge of "any cards in the building" and Hayes
replied in the negative. Later that day, October 27, after Hayes had informed him
that Louis Winterstein had union cards in his possession, he asked Winterstein for
3 After the close of the hearing, the General Counsel moved to correct certain errors
appearing In the stenographic report of the hearing. The motion is hereby granted and
the motion papers, copies of which were served upon Respondent's counsel and upon the
Union, are received in evidence as Trial Examiner's Exhibit No. 1.
4 This plant, the employees of which are the only ones concerned with this proceeding,
is composed of four buildings . Each building was referred to at the hearing as a separate
plant.
5 Unless otherwise noted, all dates hereinafter mentioned refer to 1958.
WAH CHANG CORPORATION 1177
one; and, after a little hesitation , Winterstein gave him a union card . In response
to his inquiry as to where he got the cards , Winterstein stated that he got them from
Graham and Dombrowsky , and he then wrote Graham's name on the card Winter-
stein had given him and took it to, and left it in, the office of General Foreman John
Pryor, his immediate superior. Winterstein told him the same day, October 27,
"he didn't wish to be involved any further."
Underwood further testified, and the Trial Examiner finds, that during the week
of October 26 the men on his shift "gathered more or less in little groups discussing
something or other, and it slowed the work down"; and that on or about October
29, he informed Personnel Manager William Walker what had transpired in his
department on October 27.
Dombrowsky , who worked in the tantalum and columbium reduction plant, testi-
fied that in October he began distributing union membership application cards.
On October 24,6 while at work on the swing shift, Radford, who was then a super-
visor of a crew in another plant, telephoned and inquired whether there was any
asbestos on hand, and, when he replied in the affirmative, Radford said he would
be over shortly to get some. When Radford arrived he was working on a set of
coils, but left that job to accompany Radford to where the asbestos was stored.
After cutting the amount of asbestos Radford requested, he, in company with Rad-
ford, carried the asbestos to where Radford had parked his pickup truck. When
Radford asked if he knew of any union solicitation, he replied in the negative; when
Radford stated, "Well, I hear that you have been soliciting," he replied that he
"would like to find a card"; and when Radford asked "Do you know where I can
get ahold of some of these cards," he suggested that they inquire of Jim Stillwell
who was then working on the reduction deck. They went to Stillwell's work area and
were informed by Stillwell that he had no "bargaining" card, but thought Robert
Tidwell, who worked on another shift, "was passing them out."
Dombrowsky further testified that after he and Radford left Stillwell they con-
tinued to discuss the Union ; that during the course of that discussion , Radford said,
"What is the matter; aren't you satisfied with the independent union that you have
now?", to which he replied, "No, I am not. We have no protection or no procedure
that we follow, no departmental seniority or no plant seniority," adding that he was
in favor of an international union; and that Radford then remarked to quote Dom-
browsky, "if we would have this other union, you wouldn't receive free coffee and
free gloves and a lot of other benefits that you receive now," such as "two weeks
paid vacation."
Dombrowsky also testified that the following evening Radford again telephoned
him while he was at work and, after stating that because the asbestos was of
such poor quality it was necessary for him to use some other material, Radford said,
"I will be over in a little bit because I found out about the international union";
and when Radford came to where he was working the following , regarding the
Union , ensued:
He said , "I have some of those cards . I finally found some of those cards."
I said , "Oh, where did you get them. I would like to sign one. I have been try-
ing to find one. I don 't believe you have any." He said , "Yes, I do. I have
them." I said , "Let me see them . I don't believe you ." He reached in his
shirt pocket and pulled this one out, and he showed me that it was a [Union]
bargaining card.?
Dombrowsky testified that after further talk, he informed Radford that he intended
to return the telephone call he had received from Barnhart , an official of the Inde-
pendent who was working in another department , and, in Radford 's presence, he
dialed the department 's extension and when he asked for Barnhart , John Keller, the
crew formean and who had answered the telephone, said that Barnhart was busy,
whereupon Dombrowsky asked Keller to tell Barnhart, "that he would see him after
work." Keller then said , "I hear that you have been soliciting over at the separation
building, you and another fellow," and when he denied doing so, Keller said, "You
know if you continue to solicit for the international union, you will get into trouble.
You could be fired. I thought I would warn you." After thanking Keller for his
advice, he, in effect, again denied soliciting for the Union. Radford then asked to
speak to Keller and he thereupon gave Radford the telephone , and, after Radford
finished his conversation with Keller, he told Radford what Keller had said about
e Dombrowsky testified that this event took place on October 23. The record shows it
took place on October 24.
7 Graham's name appeared on said card.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in union solicitation, and Radford remarked, "Well, I was pretty sure there
was two of you fellows over there the other day."
Dombrowsky further testified that the next evening while he was at work, Radford
telephoned and said, "I hear the other night while I was over talking with you that
you had a man out soliciting for the international union," and when he denied
the accusation, Radford remarked, "Well, he was over at Zirconium reduction while
I was over talking to you." When Dombrowsky said, "Oh, that is the way the ball
bounces," Radford said, "Well, you are going to get into trouble if you keep this
up," and the conversation ended when he remarked, "I don't know what you
are talking about."
On cross-examination by Respondent's counsel Dombrowsky testified that when
he told Radford on October 23 that he had no knowledge of any union solicitation
he had not told the truth; that he solicited for the Union on company property but
not on company time; that on October 24, after completing his shift, he went to
where Winterstein was then working and asked Winterstein to join the Union and
that Winterstein then and there signed a union card; that after obtaining a signed
card from Winterstein he gave him some additional union cards for distribution; and
that the same night Winterstein signed the card he obtained a signed union card from
Earl Brooks, who was then at work.
Radford's versions of the several above referred-to conversations with Dombrow-
sky vary somewhat with those of Dombrowsky. In the light of the entire record
in the case, coupled with the fact that Dombrowsky particularly impressed the Trial
Examiner as being one who was meticulous in not enlarging his testimony beyond
his actual memory of what occurred whereas Radford, on the other hand, gave the
Trial Examiner the impression that he was attempting to conform his testimony to
what he considered to be to the best interest of Respondent, the Trial Examiner
finds Dombrowsky's versions of the above referred-to conversations with Radford
to be substantially in accord with the facts.
Keller testified, but he was not questioned, regarding the telephone conversation
Dombrowsky testified he had with Keller on October 25 or 26. Under the circum-
stances, plus the fact that Dombrowsky was a credible witness, the Trial Examiner
accepts, as substantially correct, Dombrowsky's version of said telephone conversa-
tion.
Stephen Yih, vice president and general manager of Respondent's Albany, Oregon,
division, testified that: Because of the very expensive raw materials used by
Respondent it was absolutely essential for the employees to be at their places of work
at all times and hence they had "no free time in which [they] can visit with other
people"; unless the employees had company business to transact they were for-
bidden to go from one building to another; he visits each plant building, sometimes
during the night shifts, in order to check on operations; and it is hazardous to leave
the operations unattended for an extended length of time. Yih further testified
that on or about October 24 he visited the tantalum reduction plant at about
3 o'c'.ock in the morning and, "I stood there for half an hour and there was not a
single soul in the plant. The plant was running by itself. I stand [sic] there for
half an hour and nobody come [sic] out. Usually, when I stand there for about
five minutes, the employees will come out one by one. But that time nobody come
[sic] out. . Usually in about five minutes everybody would come out one by
one"; and the following ensued:
. . . after I look [sic] into all the possible areas they can be there . . . and I
cannot find anyone so I walk out and go home. The next morning, I come back
again and I call the general foreman in. Daniel Long is the general foreman
(of the tantalum plant). I question him on why this has happened in the
tantalum reduction plant.
He mentioned to me, immediately, he said, "Well, I don't know exactly
what happened. I will check with the foreman, but I think there are a lot
of things going on that you don't know." I said, "For instance." He said,
"The solicitation of membership." I said, "Why can they do it on company
time." He said, "Well, we don't know, unless you want to look into this."
I said, "Definitely look into this and find out because that is not good."
And I come back to the office and talk to Bill Walker [Respondent's personnel
manager]. I asked Bill Walker to look into this, too.
Yih further testified that on one occasion after the four persons here involved
had been discharged a representative of the Independent requested permission to
solicit membership from among Respondent's mechanical workers on behalf of a
WAH CHANG CORPORATION. 1179
certain chemical workers union; that he replied that he could "solicit off the company
time"; that he would have granted the Union permission to solicit "on other than
company time" if the Union had requested permission to solicit; that before an
employee could leave his place of work or carry on a conversation with a coworker
about matters not pertaining to his work, he had to receive permission to do so
from the crew foreman; and that the "four men were discharged because it was
established they were soliciting on company time."
As a Respondent witness, Walker, the person who notified each of the four persons
named in the consolidated complaint as to his suspension and of his subsequent dis-
charge, testified as follows:
Q. What was the reason that these men were discharged; what conduct did
they engage in that brought about their discharge?
A. The discharges were solicitation in violation of Article XXII, and the
employees were so informed of that.
Q. What was the nature of the solicitation that each of these men engaged
in?
A. Without authorization; work interruption.
Q. Was it on company time or otherwise?
A. On company time.
C. Concluding findings with respect to the discharges; interference,
restraint, and coercion
Upon the entire record in the case, the Trial Examiner is convinced and finds,
that Respondent's apparent defense that had the solicitation not taken place during
working hours the four employees here involved would not have been discharged is
merely an obfuscation to conceal Responden't unlawful intent. This finding is
buttressed by the following, among other things:
(a) On November 1, Dombrowsky was called into Walker's office and informed
by him "that the Company had evidence of his Soliciting on Company property
without the authorization of the Company or" the Independent. Dombrowsky was
immediately suspended and informed to report to Walker's office on November 3.
(b) On November 3, Walker handed Dombrowsky a copy of "Personnel Action
Blank," dated November 3, which stated the reason for Dombrowsky's discharge;
viz, "Violation of Article XXII Existing Union Agreement."
(c) On November 1, Stutheit was called into Walker's office and was told by
him that he was being suspended because "the Company had evidence of his solicit-
ing on Company property without authorization from the Company or" the Inde-
pendent. Stutheit was then instructed to report to Walker on November 3.
(d) On November 3, Walker handed Stutheit a copy of "Personnel Action Blank"
which stated the reason for Stutheit's discharge; viz, "Violation of Article XXII Exist-
ing Union Agreement."
(e) On November 1, Wallace was called into Walker's office and informed by
him that he was being suspended because, "the Company had evidence of his solicita-
tion on Company property without authorization from the Company or" the Inde-
pendent. Walker the instructed Wallace to return on November 3.
(f) On November 3, Walker handed Wallace a copy of "Personnel Action Blank"
which stated the reason for Wallace's discharge; viz, "Violation of Article XXII of
the Existing Union Agreement."
(g) On November 4, Graham was called into Walker's office and informed by
him, after Graham had stated he knew the reason for the summons to the per-
sonnel office, that he was being suspended and discharged because "the Company
had evidence of his solicitation while on Company property without the consent
of the Company or" the Independent.
(h) Under date of November 12 Walker sent the following letter to the
Independent: 8
The following is a summary of the actions which have taken place in refer-
ence to this discharge:
1. At 0800 AM Saturday, November 1, 1958 Wm. L. Stutheit was called to
my office and verbally informed that the Company had evidence of his solicitat-
ing on Company property without authorization from the Company or Zirconium
8 Similar letters regarding the other three dischargees were sent to the Independent
under the same date.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Allied Metals Union there -in violating Article XXII of the existing Agree-
ment between the Company and the Zirconium and Allied Metals Union. Mr.
Stutheit was immediately suspended and asked to report to my office Monday,
November 3, 1958.
2. At 1100 AM Monday, November 3, 1958, Mr. Stutheit was presented with
a written copy of a Personnel Action dated the same date restating the Com-
panies reasons for his discharge . Mr. Stutheit was informed that he had until
Friday, November 7, 1958 in which he could file a Protest or Grievance against
his discharge . Mr. Stutheit was asked to return to my office at 4:45 PM the
same date to pick up his final payroll check.
3. Wm. L. Stutheit returned to my office at 4:45 PM, November 3, 1958 and
was given a Personnel Action indicating discharge effective as of 2 PM, Novem-
ber 3, 1958 and also given his final payroll check. Copies of this and the pre-
ceeding ( sic) Personnel Actions were immediately forwarded to the Zirconium
and Allied Metals Union.
4. At 11:45 AM, Monday, November 10, 1958 a Protest signed by Wm. L.
Stutheit was presented to me by H. J. Llwellyn, Business Agent of your Union.
With reference to Section 1, Article XI ( Discharge and Discipline ) and the time
limits as set forth and allowed we assume this case to be closed.
The Trial Examiner finds there is no merit to Respondent 's contentions , as testi-
fied to by Yih and certain foremen, that it is dangerous or hazardous for the non-
supervisory employees to leave their station unattended . This finding is supported
in part , but not exclusively , by (1) Yih on or about October 24, visited the tantalum
plant at about 3 a.m. and noticed that for at least 30 minutes no employee , including
"the lead operator," was anywhere about. Nonetheless Yih left the plant , went home,
and did nothing about the matter until hours later: ( 2) the employees were per-
mitted "coffee -breaks" whenever they elected to take them; and (3 ) Radford, on or
about October 24 or 25, took Dombrowsky away from his work station in order to
ascertain from Stillwell who had union cards.
Upon the entire record in the case, the Trial Examiner finds that Respondent dis-
charged Dombrowsky , Wallace, Stutheit , and Graham in violation of Section 8(a) (3)
of the Act , thereby discouraging membership in the Union.
The Trial Examiner further finds that the acts and conduct of Radford and Keller,
as set forth above, were violative of the Act in that said acts and conduct interfered
with, restrained , and coerced the employees in the exercise of the rights guaranteed
in Section 7 of the Act. There is other testimony in the record , some of which is
either admitted or undenied , concerning acts and conduct of Radford , Keller, and
other managerial officials. It would serve no useful purpose to set forth here at
length such testimony , for the Trial Examiner finds that said acts and conducts were
clearly violative of Section 8(a) (1) of the Act.
By maintaining and giving effect to article XXII of the collective -bargaining con-
tract with the Independent which requires mutual agreement to solicit or to petition
on Respondent 's property , Respondent, in effect, gives the Independent veto power
in a matter regarding an employee 's statutory "right to self-organization, to form,
join, or assist labor organizations ." Such action by Respondent cannot be sanctioned
for its objective is the deprivation of the employees ' right to make a free choice with
respect to representation . As a party to the contract , and because of the continuing
effect of the provision conferring on the Independent veto power with respect to
conduct which the statute guarantees to employees , Respondent has interfered with,
restrained , and coerced its employees within the meaning of Section 8(a)(1) of the
Act.9 The aforesaid contract provision gives the Independent the power to destroy
an organizational activity by a rival labor organization at its inception . By so con-
tracting , Respondent has unlawfully assisted the Independent in violation of Section
8(a)(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
°Cf. Pacific Intermountain Express Company, 107 NLRB 837; Gibbs Corporation, 120
NLRB 1079; International Association of Machinists , et at. (Menasco Manufacturing
Company), 123 NLRB 627.
WAH CHANG CORPORATION 1181
States, and, such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (2), and (3) of the Act, the Trial Examiner will recommend that
it cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of employment, and the terms and conditions of employment, of Quinton D. Dom-
browsky, Allen W. Wallace, William L. Stutheit, and Ronald E. Graham, the Trial
Examiner will recommend that the Respondent offer to each of them immediate and
full reinstatement to his former or substantially equivalent position, without preju-
dice to his seniority and other rights and privileges. The Trial Examiner further
recommends that Respondent make each of them whole for any loss of pay he
may have suffered by reason of Respondent's discrimination against him , by pay-
ment to him of a sum of money equal to the amount he normally would have earned
as wages from the date of his discharge to the date of the Respondent's offer of
reinstatement, less his net earnings during that period.
Loss of pay shall be computed and paid in accordance with the formula adopted
by the Board in F. W. Woolworth Company, 90 NLRB 289.
Having found that article XXII of the 1957 collective-bargaining contract be-
tween Respondent and the Independent interferes with, restrains, and coerces Re-
spondent's employees in the exercise of the rights guaranteed in Section .7 of the
Act, the Trial Examiner recommends that Respondent be ordered to cease and desist
from maintaining or giving effect to said article and from entering into, maintain-
ing, or renewing any collective-bargaining agreement with the Independent, or with
any other labor organization, which contains a provision requiring permission from
such labor organization for an employee of Respondent to solicit on Respondent's
premises.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure the employees their full rights
guaranteed them by the Act it will be recommended that Respondent cease and
desist from in any manner interfering with, restraining, and coercing its employees
in their rights to self-organization.
Upon the basis of the foregoing findings of fact, and upon the entire record.*
in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Wah Chang Corporation, a New York corporation, is, and during all times
material was, engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Metal Trades Council of Portland and Vicinity, AFL-CIO, and Zirconium.
and Allied Metals Union are, and during all times material were, labor organizations
within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Allen
W. Wallace, Quinton D. Dombrowsky, William L. Stutheit, and Ronald E. Graham,
thereby discouraging membership in the Union, Respondent has engaged in and is,
engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By interrogating its employees regarding their membership and activities in
behalf of the Union and by threatening its employees with discharge if they engaged
in protected activities on behalf of the Union, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. By maintaining and giving effect to a provision in the collective-bargaining
contract with the Independent which requires permission from the Independent for
Respondent's employees to engage in solicitation on Respondent's premises, Respond-
ent has engaged in and is -engaging unfair labor practices within the meaning of
Section 8(a) (2) of the Act.
6. The 'aforesaid unfair labor practices are unfair labor practices within the mean=
ing of Section 2(6) and (7) of the Act. •
[Recommendations omitted from publication.]