Waterman Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1950

91 N.L.R.B. 1041 (N.L.R.B. 1950)

In the Matter Of WATERMAN INDUSTRIES, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 87
Case No. 20-CA-241.Iecided October 18,1950
DECISION AND ORDER
On June 27,1950, Trial Examiner W. Gerard Ryan 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 in violation of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other alleged
unfair labor practices and recommended that the complaint be dis-
missed with respect to such allegations. Thereafter, the Respondent
and the Union filed exceptions to the Intermediate Report. The
Respondent also filed a brief in support of its exceptions.
The Board 1 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the following additions and modifications.2
1. We find, as did the Trial Examiner, that the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act and thus violated Sec
tion 8 (a) (1) of the Act as amended. In making this finding as to
independent violations of Section 8 (a) (1), we rely exclusively upon
the following statements and conduct of the Respondent :
(a) General Manager Herrick Waterman's interrogation of em-
ployee Hartley concerning the voting intentions of the Respondent's
Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Murdock and Styles].
2 The Intermediate Report contains a minor inaccuracy which does not affect our ultimate
findings . The Trial Examiner erroneously stated that Rawn joined the Union at its first
meeting in August 1949 . The record:shows , and we find , that Rawn joined the Union in
August 1948.
91 NLRB No. 170.
1041
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Waterman testified that about 2 weeks before the election
of January 13,1949, he had a conversation with Hartley in the foundry
concerning union activities of the employees; that he did not remember
how the conversation started, but that it was "mostly about the vote
in the foundry" and "who might be pro or non-union"; and that in
the course of the conversation Hartley "probably" told him "that there
had been union meetings" of employees.3 We find that this conversa-
tion was in the nature of interrogation of Hartley concerning the
union activities of the employees and their attitude toward the Union,
and that it was per se violative of the Act 4
(b) Respondent's individual letters to its striking employees, and
to Baker and Rawn, dated August 22 and August 23, 1949, advising
these employees that their jobs were open and warning them that
they might be replaced if they failed to report for work by August 25.
The letters of August 22, addressed to employees who had gone on
strike that day, began with the observation, "It is very obvious that
a number of you are not in sympathy with the strike that has been
called" and ended with an invitation to "join with 'the loyal em-
ployees." 5 The letters, which ignored the Union's role as the em-
ployees' representative and sponsor of the strike, clearly sought
individual, rather than collective, action and were designed to induce
the strikers to abandon the strike and thereby to subvert the Union's
position as their bargaining agent. Such an appeal constitutes un-
lawful interference with the right of the employees to organize and
bargain collectively through their duly designated representative s
2. We also agree with the Trial Examiner's finding that the Re-
spondent discriminated against Baker and Rawn by refusing on'
September 8, 1949, to reinstate them to jobs in the valve division,
thereby violating Section 8 (a) (1) and 8 (a) (3) of the Act. In
response to Respondent's letters of August 23, Baker and Rawn
stated that they would report for work as soon as the strike was
settled or called off. On September 6, the Respondent and the Union
3 Baker testified without contradiction that Hartley attended all but one union meeting
before the election.
4 Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; The Linde Air Products Company,
86 NLRB 1333 ; Hagy, Harrington d Marsh, 74 NLRB 1455.
, This language was not contained in the August 23 letters to Baker and Rawn, who were
in layoff status at the commencement of the strike . Nevertheless , in the circumstances,
the briefer communications addressed to them also constituted , in effect, individual solicita-
tion to desert the strike-and the Union-for the Respondent knew that both of these
men, one of whom served on the Union 's negotiating committee, were active adherents of
the Union.
s Cathey Lumber Company, 86 NLRB 157, 164 ; Sam'l Bingham 's Son Mfg. Co., 80
NLLtB 1612.
WATERMAN INDUSTRIES, INC. 1043
reached an agreement settling the strike which provided that the
strikers would return to work within 3 days.' On September 8, during
a conference concerning the reinstatement of various strikers, Union
Agent Gruhler asked the Respondent's Vice-President Donald Water-
man to reemploy Baker and Rawn in the valve division. Although
work was then available for Baker and Rawn, Waterman declined to
put them back to work. Waterman's statement to Gruhler on that
occasion implied that he would not reinstate these two men unless the
Board should ultimately sustain the charge, then pending, which
alleged that the layoffs of May 20, 1949, were discriminatory.8 In
its answer to the complaint, however, and at the hearing, the Re-
spondent assigned other and different reasons for its failure to re-
instate Baker and Rawn after the strike, namely : That these two
employees had not made application for reinstatement,' and/or that
they had refused to return to work during the strike.1e Neither of
these reasons justifies the Respondent's refusal to reinstate Baker and
Rawn, for the two men did in fact apply for work through the Union
and Respondent could not lawfully reject their application because they
had joined the strike."-
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Waterman In-
' As Baker and Rawn had unequivocally assumed the position of strikers , this agree-
ment applied to them.
8If the Respondent refused to reinstate Baker and Rawn for that reason, the refusal
would have been violative of the Act. We have consistently held that a refusal to
reinstate or reemploy a laid-off employee because he has filed charges with the Board
constitutes a violation of Section 8 (a) (4) and 8 (a) (1) of the. Act. We have also
held that such a refusal is violative of the Act even though the employer believes that
the charges are false or the ultimate proof does not sustain their validity. John H.
Maclin Peanut Co., Incorporated, 84 NLRB 384; Atlanta Broadcasting Company, 79
NLRB 626; The Kramer Company, 29 NLRB 921, 935.
'Donald Waterman so testified. The Trial Examiner interpreted his testimony to
mean that Baker and Rawn had failed to apply in person rather than through their
union representative.
10 In its brief before the Board, Respondent belatedly advances still another contention :
That Gruhler agreed on September 8 to let the question of Baker ' s and Rawn ' s reinstate-
ment remain in abeyance pending disposition of the charges which were then on file,
thereby in effect waiving the two employees ' claim to be reinstated as returning strikers
and temporarily laid-off workers for whom jobs were again available . We reject this
contention . Passing the question whether an employee' s right of reinstatement could be
extinguished by any such waiver in this circumstance , the undenied testimony of Gruhler
as to his conversation with Waterman does not warrant the interpretation which the
Respondent seeks to place upon it.
'1 Western Felt Works, 10 NLRB 407, 428 , 429, 449 ; Kuehne Manufacturing Company,
7. NLRB 304, 323 ; American Creosoting Company, Incorporated , 46 NLRB 240, enforced
139 F. 2d 193 (C. A._ 6) cert. den. 321 US 797.
917572-51-vol. 91-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dustries, Inc., of Exeter, California, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from:
(a) Discouraging membership in International Association of
Machinists, District Lodge No. 87, or in any other labor organization
of its employees, by discriminating in.any manner in regard to their
hire or' tenure of employment or any term or condition of employ-
ment ;
(b) Engaging in interrogating its employees concerning their
union affiliation, activities, and voting intentions;
(c) 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 International Association of
Machinists, District Lodge No. 87, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all of such activities, except to the extent that such right may be
affected by an agreement requiring 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) Make whole Earl Baker and Thorwald Rawn, in the manner
set forth in the section of the Intermediate Report entitled, "The
remedy," for any loss of pay they may have suffered as a result of.
the Respondent's discrimination against them;
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copy all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to analyze the amounts of
back pay due under the terms of this Order;
(c) Post at its plant in Exeter, California, copies of the notice
attached hereto and marked Appendix A 12 Copies of said notice,
to be furnished by the Regional Director for the Twentieth Region;
shall, after being duly signed by the Respondent, be posted by it im-
mediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
12 In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be inserted in the notice before the words "A Decision and Order" the words :
"Decree of the United States Court of Appeals Enforcing."
WATERMAN INDUSTRIES, INC. 1045
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section 8 (a)
(1) of the Act by relaying to strikers suggestions of physical violence
against them by third persons.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL AS-
SOCIATION OF MACHINISTS, DISTRICT LODGE No. 87 , or any other
labor organization of our employees, by refusing to reinstate any
of our employees, or by discriminating in any other manner with
regard to their hire and tenure of employment, or any term or
condition of employment.
WE WILL NOT interrogate our employees concerning their union
affiliation, activities, and voting intentions, or in any other man-
ner interfere with, restrain, or coerce our employees in the exer-
cise of their right to self-organization, to form labor organiza-
tions, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS,
DISTRICT LODGE No. 87, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL make whole Earl Baker and Thorwald Rawn for any
loss of pay suffered as a result of the discrimination against them.
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization. We will
not discriminate in regard to hire or tenure of employment or any
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
term or condition of employment against any employees because of
membership in or activity on behalf of any such labor organization.
WATERMAN INDUSTRIES, INC.,
Employer.
By -------------------------------
- Dated------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any
other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Benjamin B. Law, Esq., for the General Counsel.
William M. Thornton, Esq., Bank of America Bldg., Exeter, Calif., and L. W.
Baxter, Esq., California Association of Employers, 216 Brix Bldg., Fresno, Calif.,
for the Respondent.
A. C. McGraw, Esq., 306 Pacific Bldg., 610 16th St., Oakland 12, Calif., for the
Union.
STATEMENT OF THE CASE
Upon a first amended charge filed on March 9, 1950, by International Associ-
ation of Machinists, District Lodge No. 87, herein called the Union or I. A. M.,
the General Counsel of the National Labor Relations Board, called herein the
General Counsel and the Board, by the Regional Director. of the Twentieth
Region (San Francisco, California), on March 22, 1950, issued a complaint against
Waterman Industries, Inc., herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the Labor Management Relations Act, 1947, herein referred to as the
Act. Copies of the complaint, the charge; and the first amended charge upon
which it was based together with notice of hearing thereon, were duly served upon
the Respondent and the Union.
With respect to the .unfair labor practices, the complaint alleges in substance :
(1) That on August 22 and 23, 1949, the Respondent, by its officers and agents,
and in violation of Section 8 (a) (1) of the Act, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act by: (a) Urging certain of its individual employees who had joined the strike
to return to work and warning them that they might lose their jobs if they
persisted in striking, and (b) relaying to strikers suggestions of physical vio-
lence against them by third persons; and (2) that in violation of Section 8 (a)
(1) and (3) of the Act, the Respondent laid off Earl Baker and Thorwald Rawn
on or about May 20, 1949, and has since refused and failed to reinstate them,
except for the period of 3 days from August 23 to 25, 1949, inclusive, thereby
discriminating in regard to their hire and tenure of employment in order to dis-
courage membership in the Union.
In its.amended answer filed April 26, 1950, the Respondent admitted certain
allegations of the complaint but denied the commission of any unfair labor prac-
1 The original charge was filed on June 13, 1949.
WATERMAN INDUSTRIES, INC. -1047
tices . ' The amended answer contained a demand for a bill of particulars which
the General Counsel supplied by an oral statement on the record.
Pursuant to notice , a hearing was held in Exeter, California , on May 2, 3, and
4, 1950, inclusive , before W. Gerard Ryan , the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner . The General Counsel , the Respondent,
and the Union participated in the hearing and were afforded full opportunity
to be heard , to examine and cross-examine witnesses , and to introduce evidence
bearing upon the issues.
The parties were afforded opportunity for oral argument at the conclusion of
the evidence and also an opportunity to file briefs . Briefs were filed by all
parties .'
On the entire record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACTO
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation having its principal office and two
plants in Exeter, California , where at all times material herein it has contin-
uously engaged in the manufacture and sale of agricultural appliances and in
jobbing iron castings . In the regular course and conduct of its business, the
Respondent annually sells finished products valued at more than $500,000 of
which approximately 10 percent by value is shipped from the Respondent ' s plants
in Exeter to points outside the State of California . The Respondent concedes
and I find that at all times material herein it has been and still is engaged in
interstate commerce within the meaning of the Act.
IT. THE ORGANIZATION INVOLVED
International Association of Machinists , District Lodge No. 87 , is a labor
organization admitting to membership employees of the Respondent.
III: THE UNFAIR LABOR PRACTICES
A. Introduction
. The Respondent is engaged at Exeter , California , in extensive operations, manu-
facturing ferrous and aluminum castings for pumps and machines , chiefly for
agricultural use. Its 2 plants consist of a foundry , employing approximately 60,
where the castings are made for pumps and various types of machines, and a
machine shop ( usually referred to in the record as the valve division ) employing
approximately 15, located 4 blocks from the foundry where the manufacture of
valves and gates is done from the rough castings which come from the foundry.
In general , the work in the valve division and foundry is entirely unrelated, and
seldom, although there have been instances, is there any transfer of employees
between the valve division and the foundry . The requirements for unskilled
work in the foundry are not the same for unskilled work in the valve division,
for the jobs are not similar in makeup and content. More training is required
2 The amended answer was thereafter further amended at the hearing as follows : In
paragraph VIII, second line , "VIII" should be "VII"; in paragraph IX, second line , "`VIII"
should be "VII."
a The time for filing briefs was extended to May 29, 1950.
n In making the findings herein I have considered and weighed the entire evidence. Such
testimony or other evidence as is in conflict with the findings herein is not credited.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for semiskilled work in the valve division than in the foundry. In the skilled
classification , approximately the same amount of training is required for the
valve division and the foundry.
On.May 20, 1949 , the Respondent laid off Baker and Rawn from its valve divi-
sion. Following his layoff , Baker served on the union committee negotiating
the contract which was signed in September , effective retroactively September 1,
1949.
On August 3, a union -authorization election was held which the Union won
24-3 out of 32 eligible voters, and on August 11, the Regional Director certified the
results.`
On August 22, 1949, an economic strike was called by the Union which lasted
to September 6, when the terms of the contract were negotiated , effective Septem-
ber 1.
B. The alleged discriminatory layoff of Earl Baker and Thorwald Raven.
The complaint alleged that Baker and Rawn were discriminatorily selected for
layoff , laid off, and not thereafter rehired for the period hereinafter referred to
because of their union membership and activities . The Respondent denied that
they were discriminated against, claiming that the layoff was dictated solely by
economic reasons and that Baker and Rawn had refused to apply for work on
and after August 25, 1949.
1. Events leading up to the layoff
It became necessary in May 1949 for the Respondent to reduce its working
force because of a decline in its business . While it is not contended that a
reduction in force was unjustified , it is the contention of the General Counsel
and the Union that Baker and Rawn were discriminatorily selected for inclusion
in the layoff because of their known union membership and activities in order to
discourage membership in the Union.
The Union commenced its organizational activities at the request of the Re-
spondent 's employees in August 1948. Several meetings were held, memberships
were obtained , and on January 13, 1949, a consent election was held in which the
vote was 20-19 in favor of the Union.'
Herrick Waterman , then president and general manager of the Respondent,
testified that approximately 2 weeks prior to the election in January he had a
conversation with employee Hartley in the foundry building with respect to the
union activities of the employees as to who might be pro or nonunion . Water-
man also discussed the subject with Leo Schreiber , superintendent of the foun-
dry, who reported the employees who appeared to be sympathetic toward the
Union. While Waterman further testified that he did not recall Schreiber iden-
tifying the employees who attended union meetings , Waterman admitted that
he was interested to find out how many employees were attending , when he
testified :
I didn't care whether any individual did or did not, but I was concerned
over how many were , whether we were going to win an election or not. We
all guessed , perhaps, who might be on each side of the fence , but I have never
6I have not taken official notice of the Board' s records in Case No. 20-UA-1925 as they
were not available . All references therefore to the union authorization proceedings are
founded entirely on the contents of the record at the hearing.
6I have taken official notice of the Board' s records in the representation case, Case No.
20-RC-414.
WATERMA'\ INDUSTRIES, IIQC. 1049
questioned any employee whether he belonged to a union or how he was going
to vote.
Waterman had a few conversations with Bert Rule, foreman of the pattern
shop in the foundry, and, during the first conversation held before the election,
according to Rule's uncontradicted testimony, first asked Rule to talk with the
men in the pattern shop to find out how they would vote ; but then immediately
followed that up with the observation that he guessed Rule could not do that
.as-that would be against the law. Rule, although agreeing that such conduct
would be against the law, informed Waterman that he thought he knew or
could find out! In the course of his testimony, Waterman further admitted
that he assumed Baker and Rawn had attended union meetings.
On the day before the election in January, George Paul, who at that time was
secretary-treasurer, personnel director, office manager, and bookkeeper, called
the employees together in the valve division and again in the foundry, and
read to them a prepared statement which is in evidence setting forth the
Respondent's position with respect to the election to be held on the following day.
The Respondent contends that this statement is protected by Section 10 (c) of
the Act as constituting an exercise of free speech. While the speech is adroitly
framed, I find that it is outside the protection of the Act because it contains
veiled threats and promises of benefits. For example, it states in part :
If the union has told you that no matter what may happen we cannot
close our plant and that it is against the law for us to close that is likewise
not true. We have the right to close our plant or any part of it for good
business reasons at any time. It is just the same as if we are running a farm
or a grocery store or a gasoline station. Ask any in those businesses whether
or not they can close .. .
s * * *
We don't want you to get hurt and do. something that you will feel
sorry for later on. Remember Waterman Industries owns this plant-not
the union. Waterman's will continue to run this plant-not the union.
Waterman's will continue to pay good wages and give raises when pos-
sible . . .
With that background of partisanship and opposition to the Union on the part
of the Respondent, the election was held on January 13, 1949.
0. R. Showalter, Jr., is the son of Mr. and Mrs. 0. R. Showalter and works
in the valve division as a machinist. His father, 0. R. Showalter, is superin-
tendent of the valve division and his mother is one of the principal stockholders
of the Respondent e Since 1948, Showalter, Jr., on occasions when his father
was absent at times has assigned work to the employees and since 1945 has
been trained by his father eventually to take over the job of superintendent of
the valve division and in the course of such training has often discussed
problems with him. Shortly before the layoff on May 20, Showalter, Jr., dis-
cussed Baker with pattern shop foreman Bert Rule stating that when the slow
season came he was going to let Baker go ; that while he liked Baker personally
7 Evidence regarding the conversations between Herrick Waterman and Rule and
Schreiber was not introduced by the General Counsel to prove that such internal discus-
sions among management as to who may or may not be a member or sympathetic toward the
Union are in themselves unfair labor practices but introduced solely on the issue of com-
pany knowledge or belief as to who among their employees was part of the Union and who
was not.
8 The other stockholders are Donald Waterman and Herrick Waterman.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he disapproved of Baker's efforts to organize the men for the Union. On the
morning of the layoff, Showalter , Jr., told Baker and Rawn to fill out certain
application forms for use in the personnel department or he would discharge
them. When Baker inquired if Showalter , Jr., was speaking with authority,
George Paul assured them that Showalter could fire theme When they were
not filled out as quickly as Paul thought they might have been , Paul told Baker
and Rawn to speed it up a little, remarking "You have just had, too much
instruction ffrom Mr. Gruhler . " 10 Baker and Rawn thereupon completed the
forms and returned to their work.
2. The layoff on May 20, 1949
A few days before May 20, the Respondent notified the Union of its pending .
layoff and arranged'for a conference which was held to discuss the proposed
layoff, in order , as the Respondent informed the Union , to avoid any unfair
labor practice.
Baker was hired in April 1947 and worked entirely in the valve division until
he was laid off on May 20, 1949 . - When he was hired, Superintendent Showalter
told him the work would consist mostly of assembly work and Baker accepted
the job on that basis . He started at 85 cents per hour which was increased to 90
cents per hour in 6 or 8 weeks ; 3 months later was increased to $1 per hour and
finally , as the result of a general pay increase , was raised to $1.20 per hour. The
work was in the sheet metal department of the valve division and consisted of
assembling various parts to' form completed valves. Baker did that work for ap-
proximately 1 month after he was hired , and thereafter until his layoff worked
throughout the valve division on all sorts of general work, such as loading the.
truck, sheet metal assembly which he started on the drill press and the grinder,
truck driving , truck painting , and some automobile mechanical work. Prior to
his employment with the Respondent he had had about 1 year's experience in a
garage and had done general mechanical work for a construction company in
addition to his army experience for 32 months as a truck and airplane mechanic.
In the valve division he worked on all the miscellaneous machines, except lathes
which he admitted he was not qualified to operate . During the 6 months prior to
his layoff , he did the sheet metal work from patterns which did not require the
reading of blueprints and was considered to be a semiskilled workman. Baker
joined .the Union in August 1 948 and took an active part in union affairs. He
notified employees in the valve and foundry divisions when union meetings were
to be held and collected dues and initiation fees. At the election in January he
acted as observer for the Union ; and, after his layoff, was a member of the
committee for the Union in negotiations for a contract which was finally made
in September 1949. As already shown, supra, by Waterman ' s testimony that he
assumed Baker and Rawn had attended union meetings and Paul's remark that
they had too much instruction from. the union representative , the Respondent
was fully aware of Baker 's activities on behalf of the Union prior to May 20,
1949. On that date, after Baker had finished his work for the day, he went in
to get his check, for it was payday . Superintendent Showalter handed him two
checks and informed him that work had slowed down and the Company would
not need him for a while ; that he would let him know when he would be needed.
Showalter told him his work was satisfactory-"that there was not anything
to do." Baker thereupon left.
B Neither George Paul nor Showalter, Jr., testified at the hearing.
10 As appears infra, Gruhler was the business representative for the Union.
WATERMAN INDUSTRIES, INC. 1051
Rawn was employed in March 1948 and worked in the valve division until
he was laid off on May 20, 1949. He had several jobs, e. g., assembling valves,
working on different machines, painting, boring, and operating punch presses
and rolling valves. He started at 95 cents per hour and was thereafter increased
to $1.20 per hour as the result of a general wage increase. Prior to his em-
ployment with the Respondent he had worked 11 years doing machine work,
such as operating drill, presses, milling machines , boring mills, and some gear
cutter's: He- considers himself to be a competent machinist but admits that he
has not had sufficient experience to be a journeyman. At the time of his layoff,
he was a semiskilled workman. Rawn was hired by Superintendent Showalter
after discussing with him his previous experience and informing him of the gen-
eral work to be done in the valve division.
Rawn joined the Union at its first meeting in August 1949 which was held in
Visalia, California, located about 10 miles from Exeter. Baker had told
him about the meeting and Rawn took seven other employees from the foundry
and valve divisions with him in his station wagon to the meeting. He also
attended a union meeting a week or two later and transported employees again
to the meeting. There is no further evidence of his union activities prior to
May 20 but the record proves, as shown above, that the Respondent knew of
Rawn's membership because of Herrick Waterman's testimony that he assumed
Baker and Rawn attended union meetings and the occasion described above when
George Paul informed both Baker and Rawn that they had had too much instruc-
tion from Gruhler, the Union's representative.
When Rawn finished his work on May 20 (payday) he went to Superintendent
Showalter to get his pay. Showalter gave him two checks and informed him
that he was laying him off because of work shortage. Rawn inquired if there was
anything wrong with his work to which Showalter replied there was not and
that he was a good worker. Rawn asked when he could expect to be recalled.
Showalter obtained confirmation from Herrick Waterman, who was present, that
it would be in September or October to which Rawn replied "0. K." and left.
At the conference between the Respondent and the Union a few days prior
to the layoff, the Respondent proposed that Baker, Rawn, Durrant, Rathbun,
and Coble be laid off." The Union proposed that Long, Rathbun, Durrant,
Norman Showalter, and Coble be laid off on the basis of seniority.12 The ques-
tion whether the men proposed for layoff were union or nonunion was not dis-
cussed at the meeting. The discussion centered on the question whether the
layoff should be made on the basis of seniority as proposed by the Union or on
the basis of skill and aptitude for the job, without regard to seniority, as pro-
posed by the Respondent.19 Although Coble had the longest seniority, he had
been a truck driver and since the Company had discontinued use of its truck,
the Union did not oppose his proposed layoff. However, upon further considera-
tion, in view of his long service and the fact that he personally knew all the
Respondent's customers, the Respondent decided to retain Coble. Since the
Union and the Respondent agreed on the layoff of Rathbun and Durrant, the
issue was reduced to whether it should be Baker and Rawn or Long and Norman
Showalter. The Union maintained its position that seniority should prevail
but the Respondent finally decided that Baker and Rawn should be laid off and
" Baker, Rawn, and Coble were union employees, Durrant and Rathbun were nonunion.
12 All except Coble were nonunion.
is Prior to the execution of the union contract effective September 1, 1949, the Respond-
entshad,no, seniority policy with respect to hiring, layoff, or recall.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Long and Norman Showalter retained. Considerable testimony was had con-
cerning the respective qualifications of Long and Baker. Although Long had
been hired in April 1949, he had had about 18 months experience during a period
of prior employment with the Respondent's predecessor in the sheet metal depart-
ment and his ability to do his own lay-out .work and to work independently of
close supervision in sheet metal work was considered by the Respondent to be
superior to Baker's ability. The only evidence in the record. regarding the com-
parative qualifications of Norman Showalter and Rawn is the uncontradicted
testimony that the Respondent needed Norman Showalter to operate a turret
lathe since he was better able to operate it than Rawn-who could not operate
it properly. The Respondent also introduced the testimony of Herrick Water-
man who at the time of the layoff was president and general manager to show
that the four finally laid off were so selected because their work was not pri-
marily in any one department but for the most part was general work through-
out the valve division. Those retained by the Respondent, according to Water-
man, were keymen on the primary jobs on which men were customarily employed
when work was available, on the theory that it would be easier to secure general
help later than to take the chance of not being able to replace the key men if
they were laid off for the summer. Accordingly, the Respondent laid off Baker,
Rawn, Rathbun, and Durrant and retained Farmer, valve assembly ; Long, sheet
metal department ; Marks, pouring brass ; Penninger, lathe and mill operator ;
0. R. Showalter, Jr., machinist ; Norman Showalter, turret lathe operator ; and
Coble."
Following the layoff, only two employees were thereafter hired in the valve
division in the period between the layoff on May 20 and the strike on August 22.
Those employed were E. 0. Brown," a new employee hired on or about June 23,
1949, to do engine lathe work. The other employee was Herrick Waterman's
stepson, Donald Waterman, who was employed on or about July 3 during his
vacation from school. He was not a regular employee but in the past had
worked at the plant only during periods of vacation. Baker testified that he
was not qualified to run an engine lathe and Rawn testified that he had experi-
ence operating drill presses, boring mills, and gear cutters, but did not include
operation of engine lathes. Rawn claimed to be a competent machinist but
admitted that he did not qualify as a journeyman. Other new hirings in the
valve division occurred after the strike, on and after December 11, 1949.
In the foundry division, new hirings were N. H. Thomas, unskilled, -on May
25, 1949 (still employed) ; G. W. Thomas, unskilled, from July 17 to August 7;
H. 0. Williams, ability not shown, from July 31 to August 14; R. H. Under-
wood, unskilled, from August 17 (still employed) ; and G. G. Mehrten, unskilled,
from August 29 (still employed). After Mehrten was hired, 20 more were em-
ployed during the balance of the year 1949 among whom 3 or 4 were skilled,
1 semiskilled, and the balance unskilled.
Rathbun, who had also been laid off on May 20, was recalled by the Respondent
for work in the foundry division on June 10 as asssitant in the maintenance
department, although he had been in the valve assembly division at the time of
his layoff. Thus the question is posed whether the recall of Rathbun on June
10 and the hirings in the foundry division of three unskilled employees and one
other whose degree of skill is not shown by the record tends to prove discrimi-
nation against Baker and Rawn, semiskilled employees of the valve division,
14 The picture thus presented is that of the four laid off, two were union and two were
nonunion ; of the seven retained, four were identified as union members.
11 Brown was nonunion.
WATERMAN INDUSTRIES, INC. 1053
because of the fact that they were not employed instead of the ones shown above.
I find that the record does not show the situation surrounding Rathbun's em-
ployment except the fact that he was "recalled." Whether he applied-for the job
or was sought by the Respondent at the time does no appear.
On the basis of the foregoing and on the entire record, I find that the General
Counsel has failed to prove by the required preponderance of evidence that
Baker and Rawn were discriminatorily selected for layoff and between May
20 and August 22 discriminatorily denied reinstatement in order to discourage
membership in the Union. My reasons . for that conclusion are that notwith-
standing the Respondent's proved opposition to the Union when the time came
for a reduction in force necessitated by economic reasons, the Respondent sought
an opportunity to discuss the pending proposed layoff with the Union and there-
after-did discuss it with the Union. The Respondent, not having any policy
theretofore with respect to seniority as to hire, layoff, or recall, was not under
compulsion to accept the Union's recommendation that seniority be the yard-
stick in the reduction of force. I credit the Respondent's explanation that it
kept its keymen and laid off the four involved because it could best afford to let
them go since they did general work and could more easily be replaced later than
the ones who were retained. Further, the record shows that the only employee
hired in the valve division (besides Waterman's stepson, who usually worked
during school vacations) from the time of the layoff to the strike was one hired
to run an engine lathe, which was work that neither Baker nor Rawn was
qualified to do. The fact that. the Respondent hired three unskilled workers
in the foundry division and one of whose classification is not disclosed by the
record does not persuade me that such was discriminatory with respect to either
Baker or Rawn. It appears reasonable to me to conclude that two semiskilled
workers such as Baker and Rawn would have made known their willingness to
accept unskilled work in the foundry if they wanted it or semiskilled work if
it became available because both testified that they were aware of the fact that
employees could apply for transfer from the valve division to the foundry and
such applications, if made, would be considered. Baker and Rawn made no
inquiry nor application for work to the Respondent between the layoff and the
strike. The isolated instance of Rathbun, a nonunion employee, being recalled
and given work as assistant maintenance man in the foundry division, with no
evidence to show the circumstances surrounding his recall is not sufficient in
and of itself for me to hold that Baker and Rawn were thereby discriminated
against. The hirings in the foundry were for work of such a nature that it
would not be expected that Baker and Rawn would accept them, in the absence of
an application on their part for work of any kind in the foundry. I shall
accordingly recommend that the complaint, insofar as it alleges that Baker and
Rawn were discriminatorily laid off on May 20 and thereafter discriminatorily
denied reinstatement prior to August 22, 19,49, be dismissed.
3. The strike between August 22 and September 6 and subsequent events
As already noted above, the Union called a strike, economic in nature, on
August 22, which continued to September 6 when it was settled by a contract
between the Respondent and the Union, executed on September 8 and retroactive
by its terms to September 1, 1949.
On August 22, the Respondent sent letters to individual striking employees,
which stated in part :
It is very obvious that a number of you are not in sympathy with the
strike that has been called... .
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have a big investment, in fact, the investment averages about $10,000
for each job ; and we are naturally anxious to provide work for local people.
Your job is open providing you come to work within three days from the
date of this letter. Failure to take advantage of this offer may result in your
being replaced. We certainly would not, like to do this, but it is, up to you.
We trust that we may count on you to join with the loyal employees who
have already recognized the opportunities existing here, and are,
Very truly yours,
.(S)
WATERMAN INDUSTRIES, INC.,
HERRICK WATERMAN, President.
On August 23, 1949, the Respondent sent letters to Baker and Rawn reading
as follows :
We wish to notify you that you may return to work within two days from
the date of this letter. Failure to take advantage of this offer may result
in your being replaced.
Both Baker and Rawn replied by letters refusing to return to work while the
strike was in progress but indicating their willingness to return when it was
over.
While neither Baker nor Rawn did any picketing during the strike, they visited
with the pickets daily and while doing so at times spoke to the Respondent's
superintendent. The Respondent thereby had further evidence that Baker and
Rawn were still loyal members of the Union.
On September 6, Newell Gruhler, the strike having been settled, specifically
requested Donald Waterman, then vice president of the Respondent," to re-
employ Baker as a maintenance man in the foundry. Whether this request
meant that Rathbun was to be replaced by Baker or whether it was for an
additional job as maintenance man in the foundry is not developed in the
record ; consequently, I do not consider Waterman's refusal to consider that
application to be evidence of discrimination against Baker. The record con-
tains nothing more than the request and refusal. On September 8,, however,.
the situation changed radically. Gruhler, as the Union's representative, re-
quested that Baker and Rawn be rehired in the valve division. Donald Water-
man refused to reinstate them at that time saying that Baker and Rawn were
subjects of an unfair labor practice charge and that he would let the National
Labor Relations Board settle the matter as to them. At the hearing, Donald
Waterman testified that after the strike there was work available for both
Baker and Rawn and that both would have been rehired had they applied. Super-
intendent Showalter (also secretary-treasurer) testified that he did not recall
Baker and Rawn for work as help was needed after the strike because they
had failed to accept the Respondent's offer of employment in its letters of
August 23. Showalter also testified that after the strike there was work for
Baker and Rawn. All this evidence points up clearly (1) that the Respondent
had work for both of them after the strike and would have employed them had
they come in personally to the Respondent and requested work and (2) that
the Respondent rejected the request of their union representative that they
be returned to work because they had refused to go through the union picket
line during the strike. Their refusal to break the picket line was undoubtedly
concerted activity protected by the Act. It was concerted activity particularly
16 Not to be confused with Donald Waterman, stepson of Herrick Waterman , referred
to supra.
WATERMAN INDUSTRIES , INC. 1055
entitled to protection by reason of the fact that the Respondent 's letters to
Baker and Rawn giving them 2 days in which to return to work during the
strike under penalty of possible replacement constituted an unfair labor,prac-
tice. The imposition of the condition that Baker and Rawn must personally
apply for work and the refusal by the Respondent to acknowledge the authority
of the Union to act in their behalf were acts calculated to weaken the Union and
to penalize Baker and Rawn for their concerted activity on behalf of the
Union, and accordingly were violations of Section 8 (a) (1) and ( 3) of the Act,
since the Respondent thereby discriminated with respect to their hire and
tenure of employment thereby discouraging membership in the Union and inter-
fering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act. I further find that such discrimina-
tion against Baker and Rawn continued from September 8, 1949, until the
Respondent offered reinstatement to them on March 17, 1950.14
C. Interference , restraint , and coercion
I have already set forth , supra, the facts involved in the Respondent 's acts in
sending to its striking employees , and to Baker and Rawn, individual letters
containing offers of employment and soliciting their return to work . Such ap-
peals over the head of their Union constituted ,a violation of Section 8 (a) (1) of
the Act . It is well settled that where, as here, the union was at the time the
duly designated representative of employer ' s employees , the employer was
obligated to deal with that representative and not with the employees indi=
vidually. By personal appeals to individual strikers to take action in derogation
of their designated representative , the Respondent thereby interfered with the
employees ' right to bargain collectively since • the conduct had the effect of
undermining the Union 's authority as exclusive representative.18
On August 22, a meeting was held in the Chamber of Commerce Building
in Exeter . L. W. Baxter, district representative for the California Association
of Employers ( of which the Respondent was a member ), called the meeting to
explain to the Association members and such other employers who might be
interested what caused the strike . Baxter also discussed the several points of
disagreement between the Union and the Respondent . After the meeting, four
or five men were gathered outside the building on the sidewalk and one of them
was heard by Baxter to say "Well , why don't they do like they do over in
Cochran, get pitchforks and run them [ the strikers ] out of town ?" Upon hearing
that, Baxter promptly told them that no such violence was ever tolerated..
Within 1 or 3 days thereafter Baxter was near the picket line and heard Earl
Baker remark something to the effect that the entire town was against the
strikers , that the strikers would have to do more than just picket Waterman,
and indicated that violence was threatened . Upon hearing that, Baxter asso-
ciated it with the remarks heard after the meeting 1 or 2 niglhts earlier and
told Baker and the others present that after the meeting referred to there
had been some threats of violence but that Baxter had undertaken "to straighten
those people out" by explaining that it was a peaceful picket line and that
threats of violence would not be tolerated by the Respondent . Baxter then
entered his automobile and drove away. In view of the fact that Baker initiated
17 Baker accepted the offer of reinstatement and has been working there since March 18,
1950. Rawn did not accept the offer. He has been working elsewhere since January 1,
1950.
11 Cathey Lumber Company, 86 NLRB 157.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subject and not Baxter, I find the occurrence was substantially as testified
to by Baxter and instead of trying to intimidate the employees by referring to
the threats made by third persons, Baxter in fact was endeavoring in good
faith to quiet the employees' real or fancied fears of violence and accordingly
find that the Respondent did not thereby violate the Act. I shall therefore
recommend that the complaint so far as it alleges such an instance as an unfair
labor practice be dismissed.
I further find that other acts of the Respondent already referred to, supra;
constitute violations of Section 8 (a) (1) of the Act as interference, restraint,
and'coercion of the Respondent's employees, namely : (1) The statement read to
the Respondent's employees on January 12, 1949, the day before the election,
by George Paul. That letter, timed so significantly, was calculated directly to
influence the decision of the employees on the issue of union representation and
therefore constituted interference within the meaning of Section 8 (a)• (1) of the
Act. By its implied threats and promise of benefit, it warned the employees to
consider well the right of the Employer 'to shut down its plants and implied
that such could be done if the Union won. Such a message therein contained
negatived the effect of the rest of the letter urging the employees to vote, regard-
less of which way they voted; and therefore is not protected free speech by
Section 10 (c) of the Act ; (2) the questioning of employee Hartley by the
Respondent's president and general manager in an attempt to ascertain how
many employees were attending union meetings, and how many were members
of the Union, as detailed, supra, was clearly a violation of Section 8 (a) (1) of
the Act.'g
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (a) (1) and (3) of
the Act, I shall recommend that it cease and desist therefrom, and that it take
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent on and after September 8, 1949, discrimi-
nated against Earl Baker and Thorwald Rawn in regard to their hire and tenure
of employment, thereby discouraging membership in the Union, I shall accordingly
recommend that the Respondent make them whole for any loss of earnings suf-
fered by each of them by reason of the Respondent's discrimination against them,
by payment to them of a sum of money covering their loss of pay ; such loss of
pay to be computed on the basis of each separate calendar quarter or portion
thereof during the period from the Respondent's discriminatory action to the
date of the offer of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
each of them would normally have earned for each quarter or portion thereof,
19 See Standard-Coosa-Thatcher Company, 85 NLRB 1358 and cases cited for collection
of authorities.
WATERMAN INDUSTRIES, INC. 1057
his net earnings,20 if any, in other employment during that period. Earnings
in one particular quarter shall have no effect upon the back-pay liability for any
other quarter. I shall further recommend that the Respondent, upon request,
make available to the National Labor Relations Board, or its agents, for examina-
tion and copying, all payroll records, social security payment records, time cards,
personnel records and reports, and all other records necessary to analyze the
amounts of back pay due and the right of reinstatement under the terms of this
order."
It will also be recommended that the complaint so far as it alleges that the
Respondent discriminatorily selected Earl Baker and Thorwald Rawn for layoff,
and laid them off, and failed and refused thereafter between May 20 and Sep-
tember 7, 1949, inclusive, to reinstate them, because of their membership in and
activity on behalf of the Union be dismissed.
It will also be recommended that the complaint so far as it alleges that the
Respondent violated Section 8 (a) (1) of the Act by relaying to strikers sug-
gestions of physical violence against them by third persons, be dismissed.
Upon the foreging findings of fact, and upon the entire record in the case, I
make the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, District Lodge No. 87, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Earl
Baker and Thorwald Rawn, and thereby discouraging membership in Interna-
tional Association of Machinists, District Lodge No. 87, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not violated Section 8 (a) (3) of the Act by laying off
Earl Baker and Thorwald Rawn on May 20, 1949, or by refusing to reemploy
them between May 20 and September 7, 1949.
6. The Respondent has not violated Section 8 (a) (1) of the Act by relaying
to strikers suggestions of physical violence against them by third persons.
[Recommended Order omitted from publication in this volume.]
20 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the Respondent, which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment else-
where. See Crossett Lumber Company, 8 NLRB 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
21 See F. W. Woolworth Company, 90 NLRB 289.