Whiting Corp.

National Labor Relations Board - Board Decisions

Feb 11, 1971

188 N.L.R.B. 500 (N.L.R.B. 1971)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whiting Corporation and United Steelworkers of
America, AFL-CIO. Cases 13-CA-9250 and 13-
CA-9366
February 11, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
On April 7, 1970, Trial Examiner Lowell Goerlich
issued his Decision in Case 13-CA-9250, 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 affirma-
tive action, as set forth in the attached Trial
Examiner's Decision . He further found that the Re-
spondent had not engaged in certain other unfair la-
bor practices alleged in the complaint and recom-
mended that such allegations be dismissed.
On April 28, 1970, the National Labor Relations
Board issued an Order in which it ordered, inter alia,
that the record in Case 13-CA-9250 be reopened, that
Case 13-CA-9366 in which a complaint had issued be
consolidated therewith, and that the consolidated
proceeding be remanded for hearing before Trial Ex-
aminer Goerlich.l
On August 11, 1970, Trial Examiner Lowell Goer-
lich issued his Supplemental Decision in Cases 13-
CA-9250 and 13-CA-9366, finding that the Respon-
dent had not engaged in the unfair labor practices
alleged in the complaint in Case 13-CA-9366 and
recommending that the complaint therein be dis-
missed in its entirety, as set forth in the attached Trial
Examiner's Supplemental Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief; the
Charging Party filed exceptions to the Trial
Examiner's Supplemental Decision and a supporting
brief; the General Counsel filed cross-exceptions to
the Supplemental Decision and a supporting brief;
and the Respondent filed a brief in answer to the
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member pan-
el.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision and Supplemental Decision, the
exceptions, cross-exceptions, and briefs, and the en-
tire record in these cases, and hereby adopts the find-
ings , conclusions , and recommendations of the Trial
Examiner?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, Whiting Corporation, Harvey, Illi-
nois, its officers , agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order , as herein modified,3 and that
the complaint in Case 13-CA-9366 be dismissed in its
entirety.
1. Delete from the present paragraph 1(e) the word
"related."
2. Delete the next to the last paragraph of the
Recommended Order.
3. In footnote 27 of the Trial Examiner' s Decision,
substitute "20" for "10" days.
i On June 9, 1970, the Board granted the Union's request to withdraw the
petition in Case 13-RC-1 1866 and certified the results of the July 11, 1969,
election therein , which the Union lost The Union' s objections to that elec-
tion are therefore moot
2 Chairman Miller would not find violative of the Act ( 1) Peter
Hammond's remark to a group of employees on the day after the election
that his father wanted to know why "near half the people in the plant voted
for the union," which he does not consider unlawful interrogation , (2) the
statements of supervisors that employees did not need a union , which, in his
view, did not impress employees with the futility of choosing a union, and
(3) Supervisor Carvey's repeated approaches to employee Sopko during the
election campaign for the purpose of union discussions , which he does not
find coercive
3 The Charging Party has withdrawn its request for a bargaining order, but
seeks time , on or off company premises , to be paid for by the Respondent,
in which union representatives and/or an agent of the Board may explain to
the employees their rights under the Act In addition, the Union requests that
the Respondent be required to mail the remedial notice to all employees and
provide the Union access to the company bulletin boards for a period of I
year As we do not believe that the unfair labor practices found herein
warrant unusual remedial action , the Charging Party's request is denied.
Tasty Box Lunch Co, Inc, 175 NLRB No 7
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH , Trial Examiner : The charge in Case
13-CA-9250 was filed by the United Steelworkers of
America , AFL-CIO, hereinafter referred to as the Union,
on July 22, 1969 , 1 and a copy thereof was served on Respon-
dent Whiting Corporation on or about July 23. A comp aint
and notice of hearing was issued on December 30 and
amendment to the complaint was allowed on January 28,
1970. The complaint and amendment to the complaint
charged that the Respondent had violated Section 8 (a)(1) of
the National Labor Relations Act, as amended , herein re-
ferred to as the Act , by certain specific acts of unlawful
interrogation , threats of discharge , promises of economic
benefits , and other unlawful acts which interfered with the
i Unless otherwise noted all dates herein refer to the year 1969.
188 NLRB No. 56
WHITING CORP.
employees' rights as guaranteed by Section 7 of the Act. The
Respondent filed timely answer denying that it had engaged
in or was engaging in any of the unfair labor practices
alleged.
On December 31, the Acting Regional Director issued a
report on objections, order consolidating cases and notice
ofconsolidated hearing. Among other things the Acting
Regional Director found that the objections to the election
conducted on July 1 I filed by the Petitioner included allega-
tions which were also the subject of the charges filed in Case
13-CA-9250 involving the same parties wherein a com-
plaint and notice of hearing had been issued and that the
substantial and material issues which were raised by the
objections could best be resolved on the basis of record
testimony and evidence developed at a hearing. The Acting
Regiona Director ordered that Case 13-RC- 11866 be con-
solidated with Case 13-CA-9250 for the purpose of hearing,
ruling, and preparation of a decision by a Trial Examiner.
The Acting Regional Director further ordered that the Trial
Examiner designated for the purpose of condiwting a hear-
ing "shall prepare and cause to be served on the parties a
report containing resolutions of credibility of witnesses,
findings of fact and recommendations of the National La-
bor Relations Board."
A petition for an election in Case 13-RC-11866 had been
filed on May 7, and the stipulation for consent election was
approved on May 26. An election by secret ballot was con-
ducted under the supervision of the Regional Director on
July 11. A majority of the valid votes counted plus the
remaining challenged ballots was not cast for the Petitioner.
The consolidated cases came on for hearing on January
28, 29, and 30, 1970, at Chicago, Illinois . Each party was
afforded a full opportunity to be heard, to call, examine and
cross-examine witnesses , to argue orally on the record, to
submit proposed findings of fact and conclusions, and to
file briefs. All briefs have been carefully considered by the
Trial Examiner .2
Upon the whole record 3 and upon his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS,
AND REASONS THEREFOR
I THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material
herein a corporation duly organized under and authorized
to do business by the laws of the State of Illinois. At all times
material herein the Respondent has maintained its office
and factory at 157th and Lathrop Streets, Harvey, Illinois,
where it is now and has been at all times material herein
engaged in the manufacture, sale, and distribution of stand-
ard and custom-made overhead cranes and foundry equip-
ment . During the calendar year 1969, a representative year,
the Respondent had a gross volume of business in excess of
$50 million and sold and delivered products valued in ex-
cess of $5 million directly to locations in States outside the
State of Illinois. In addition to its Harvey location, the
Respondent maintains plants in Gadsden, Alabama, and
Welland, Ontario. Both of these other two plants are organ-
ized with the Gadsden, Alabama, plant having the Glass
2 The Official Report of the Proceedings contains 558 pages , 213 pages of
briefs were submitted
3 That part of the Motion to Correct Official Report of Proceedings which
was not objected to by any of the parties and General Counsel's proposals
I and 2 were granted and the Official Report of the Proceedings is corrected
accordingly
501
and Ceramic Workers and the Welland plant having the
United Steelworkers of America . The Trial Examiner hinds
that at all material times herein the Respondent was an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is and has
been at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
First: Activities of Peter Hammond- The Union's organiza-
tional campaign commenced at the Respondent's Harvey,
Illinois, plant in April 1969. As noted a petition for an
election was filed by the Union on May 7 and the election
was conducted on July 11. During the election campaign the
Respondent openly opposed the Union by letters, speeches,
and handbills. Personnel Director Harley A. Bauch ex-
plained to the Respondent's supervisors that "consistent
with [the Respondent's] regular practice, Whiting was non-
union and [it] chose to remain so if possible."
T. L. Hammond was the chairman of the Respondent's
board of directors. He owned 25,000 shares of its stock and
voted certain stock which was held in trust, some of which
(1180 shares) was in trust for his 19-year-old son Peter Ham-
mond, a fact which was known to Peter. In all 1,080,000
shares were issued and outstanding. During the election
campaign T. L. Hammond was informed of the
Respondent's campaign efforts and upon at least one occa-
sion he distributed a handbill to employees in front of the
plant.4 The handbill was blank except for the suggestion
that if the Union prevailed what the Union could do for the
employees was "blank."'
During the election campaign Peter worked in the plant.
He was one of a number of relatives of employees who
worked for the Respondent. Peter's father had arranged for
his job. According to Peter his father asked him "not to wax
eloquently the union-company situation." Said Peter, "He
was afraid that my personal opinions would be miscon-
strued as company policy." Peter knew that the Company
did not want the Union to prevail.
Around the middle of June Peter conversed with employ-
ee Wallace Johnson who believed Peter was the owner's son.
Peter told Johnson that he knew how he was going to vote
and that he might as well lay it out on the table so he could
see where he was going. Peter also told him that "if the
Union got in . . . the Hammonds might sell out, except
trackmobile, and move it to Alabama.' On cross- examina-
tion Johnson quoted Peter as stating , "Keep it under you
In weighing the testimonial defense of the Respondent it is significant
that Respondent President Jack A Handley testified for the Respondent that
T L Hammond had not taken an active role in the election campaign but
upon cross-examination testified that Hammond had handbilled and had
participated in board of directors ' meetings.
5 As noted by the court in Hendrix Mfg Co, Inc v N L R B, 321 F.2d 100,
104 (CA 5)
When, as done here , an employer sets out to campaign against a union,
one of the risks is that out of zeal , ignorance , or otherwise , foremen,
supervisors, and similar representatives in championing the anti-union
cause will overstep the mark.
Thus it is understandable that those supervisors who observed T. L Ham-
mond distributing handbills would have done their " thing" for the advance-
ment of the employer's antiunion campaign
6 Peter testified that Johnson had asked him to tell him what the
Company's policy was towards the Union . Peter refused and said , "I know
how you stand You know you are for the union You know I am for the
company So let's drop it "
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hat, but if the Union gets in, there is some chances that the
Hammond family may sell out , all except trackmobile, and
it will move to Alabama ." Peter denied the statement.
On the day of the election Peter engaged in a conversa-
tion with employee Lemmie Cogar , sometime after Cogar
had voted, in which the Union was a subject . Among other
things Peter said to him , "I'll tell you and all the other
people for the Union , there 's the door and you can get out."
Co
ggar's boss , J. B. Noah , was in the vicinity . Peter turned
to him and said , "If he is going to argue Union , send him
home."
Noah sent Cogar home . Cogar clocked out at 4 : 18 p.m.
Had he not been sent home he would have remained at work
until 4 : 30 p.m . Peter denied that he had told Noah to send
Cogar home but admitted that he had engaged in a conver-
sation with Cogar in which Cogar had defended the Union
and he had defended the Company . According to Peter he
waxed angry at Cogar 's accusations against the Company
and as Cogar picked up his equipment and started down the
aisle he followed him. He caught him at the intersection of
the trackmobile aisle and the general aisle where he told him
that "he was not paid to downgrade the company policies
and extol the values of the union . He was being paid as a
welder ." Peter was prepared to say more as Supervisor
Noah approached . According to Peter , he said nothing to
Noah and he heard Noah say nothing . Noah admitted that
he had heard the phrase "downgrading of the company" but
denied that he had sent Cogar home.
On the day after the election Cogar heard Peter remark
to a group of employees that his father wanted to know why
"near half the people in the plant voted for the union."
In judging the credibility of the foregoing witnesses the
Trial Examiner has carefully noted the demeanor of all the
witnesses . As to Peter Hammond , he appeared as a dissem-
bler endeavoring to pretend truth by half truths . Moreover,
the Trial Examiner is convinced that his fealty to his father
and to his father's cause conditioned his testimony. The
Trial Examiner finds that Peter made the remarks attributed
to him . Additionally , the fact that Cogar clocked out 12
minutes prior to the end of his workday adds credence to
the conclusion that he was sent home as he testified. This
action taken as a reprisal by Foreman Noah for union talk,
where there appears to have been no valid rule prohibiting
union discussion, at the behest of Peter Hammond, was a
clear violation of Section 8(a)(1) of the Act.
Whether Peter Hammond 's other activities described
above were violations of the Act depends on whether Peter
occupied a position in which employees were caused to
believe that he was speaking for the employer . T. L. Ham-
mond feared that the "personal opinions" of Peter "would
be misconstrued as company policy," but neither he nor any
other member of management neutralized this apprehen-
sion by a disavowal of Peter 's ostensible agency. Employees
were permitted to believe (as feared by T. L . Hammond)
that eter's opinions were company policy . Such belief was
further fortified in that Peter stood on the side of manage-
ment in the union management controversy . Thus the Res-
pondent knowingly placed Peter in a position , the natural
consequence of which was to cause employees to believe
that he was speaking and acting for management . Having
r The credibility resolutions of the Trial Examiner have been derived from
a review of the entire testimonial record and exhibits with due regard for the
natural logic of probability, the demeanor of the witnesses , and the teachings
of N. L R B v Walton Manufacturing Company, 369 U.S 404, 408 As to those
witnesses who testified in contradiction to the Trial Examiner 's findings, the
Trial Examiner has discredited their testimony either as having been in
conflict with the testimony of credible witnesses or because it is in and of
itself incredulous and unworthy of belief
done so the Respondent may not claim immunity for the
coercive effect of Peter' s unlawful acts . See Phillips Indus-
tries, Incorporate4 172 NLRB No. 232, affd. Clarke v. N.L.
R.B., 410 F.2d 756 (C.A. 4); General Metal Products Compa-
ny, 164 NLRB 64, affd. 410 F.2d 473 (C.A. 6), cert. denied
396 U.S. 830. The Trial Examiner finds that Peter Ham-
mond was an agent of the Respondent within the intend-
ment of Section 2(13) of the Act.
The Trial Examiner further finds that the Respondent, by
Peter Hammond's statement to employee Johnson that he
knew how he was going to vote, created the impression of
surveillance of union activities, and by his remark that if the
Union got in that there is some chance that the Hammond
family will sell out, except for the trackmobile which will be
moved to Alabama, threatened a reprisal 8 for union affec-
tion and thereby the Respondent violated Section 8(a)(1) of
the Act. Peter Hammond's interrogation of employees on
July 12 as to why "near half the people in the plant voted
for the union" was likewise in violation of 8(a)(l) of the Act.
Second: Activities of Supervisor Walter Banisak: During
the first week of June, while Edward Goodwin was passing
out union literature, Supervisor Walter Banisak asked him,
"What do you guys want anyway?" Goodwin answered,
"More money." Banisak continued, "If you want more
money I will get you another job at another factory where
you can make more money but you will all have to go to
work."
Around the middle of June while Goodwin was again
distributing union literature, Banisak asked Goodwin "if
Whiting was such a bad place to work why do so many of
the guys who left want to come back" Banisak also
commented that "some of the guys going to leave here if the
union don't come in will want to come back." Banisak
recalled the conversation but his version differed from that
of Goodwin. He testified that he had asked Goodwin,
"What's wrong with our insurance?"9
Third: Activities of Supervisor Peter Butkus: Approximate-
ly 2 weeks before the election Supervisor Peter Butkus came
to employee Coy Land's machine and asked him how the
organizing drive was going. Land answered, "As far as I
could see, it looked very good for the union at that time."
Negotiations were discussed and Butkus said that negotia-
tions were "like the union's taking a gun and putting it in
the company's back, making their demands." Butkus
compared negotiations "as similar to an organization at that
particular time that was demanding money from the nu-
merous church organizations." He added that "if people
didn't like things at Whiting Corporation that they probably
should go somewhere else. Butkus acknowledged the con-
versation. While his version was somewhat different he tes-
tified that he had asked Land, "Do you thing the union will
make it this time." Land's version is credited.
Fourth: Activities of Supervisor Eugene Bruggeman: Dur-
ing the middle of June Superviosr Eugene Bruggggeman asked
employee Wallace Johnson what was "bothering" him.
During the conversation that followed Bruggeman re-
marked, "Which would you prefer? A twenty cent raise or
better insurance?"10
Fifth: The activities of Supervisor Matt Carvey: Employee
Paul Sopko was a known union activist who participated in
a number of incidents which the General Counsel claims
9 See N L R B v Gisse! Packing Co, 395 U.S 575
9 The Trial Examiner denied an amendment incorporating the above inci-
dents in the complaint; however, it is the opinion of the Trial Examiner that
the interrogations constitute interference with the election.
10 The General Counsel contends that the latter remark constitutes a prom-
ise of a benefit . The Trial Examiner finds otherwise As to Eugene Brugge-
man, the allegation in paragraph VI(c) of the complaint is dismissed.
WHITING CORP.
involved unfair labor practices . Sopko recorded these inci-
dents in a notebook which was made available to the
Respondent 's counsel . Several of these incidents involved
Supervisor Matt Carvey . The first occurred on May 22;
Carvey came to Sopko 's work area and said that fellows like
W ko "didn 't need a union ." Carvey also commented,
"w would it look if I pay a colored fellow the same as
Webb and Green?"
On June 3 Carvey approached Sopko's work area again
and asked him "how the union was going and how the cards
were going." Sopko named some "hopeful figure [150
cards] .' Carvey replied , " . . you can't trust these guys.
They will sell you out for a cockle or a dime .... It's lots
easier to get them in than to get them out.""
Several days later Carvey again appeared at Sopko's work
station and again asked "how the union was doing." A
discussion on union demands vis-a-vis company benefits
ensued . The next day Carvey and Sopko engaged in a heat-
ed discussion over the insurance program . During the dis-
cussion Sopko remarked , "What are you coming around
for? All the fellows see you coming around . Are you trying
to paint a bad picture that we are real chummy , to scare the
men off?" Carvey replied that he "only had one thing in
mind ... the workers ' welfare ." According to Carvey, he
asked Sopko "from time to time how the union was doing."
Carvey said he was "interested in why the employees would
want a union" and discussed with him improvements which
the Union was seeking . Along this line he asserted that the
employees ' insurance plan and its wages were as good as
an .
n December Carvey was talking to several employees
when Sopko approached . Carvey ceased the conversation
and said, "Be careful what you say to this guy because every
time that you say anything he writes everything down.
Sopko asked , "What do you mean Matt ?" Carvey answered,
"Every time I say anything , you report me." Sopko said, "
. if you are telling the truth , you ain't got nothing to worm
about." Sopko bussed Carvey on the forehead and left.1
One or two weeks before the election Carvey remarked to
several employees that if the employees selected the Union
the Respondent would "probably move it to Alabama or
Canada ' and that if the Respondent knew the employees
who voted for the Union their `jobs would be through" if
the Union lost . Carvey testified that he "asked the fellows
if they had any stuff ready for shipment to go to Alabama,"
but denied stating that "most probably if you voted for the
union the company would move to Alabama ." He did not
specifically deny that if the Respondent knew the employ-
ees who voted for the Union "theirjob would be through"
if the Union lost. Carvey 's denegation is not credited.
Sixth: The activities ofSupervisor Gene Colbourn: On May
28 Supervisor Gene Colbourn among other things asked
employee Robert Barnes what he "thought about the union
situation ." Barnes answered , " . . . it would do Whiting a lot
of good." Colbourn responded that "he didn't thing that
Whiting really needed a union" and that the employees
"had pretty good benefits the way it was without having to
pay union dues and stuff ." Colbourn did not testify. Barnes
is credited.
Seventh: The activities of Supervisor Roy Estes: Two or
11 Carvey testified ," I asked him how the union was going . He said,
'very good .' He said he 's got about 60 percent of the cards signed . I passed
a comment about that time that signing cards don't mean nothing They
signed them just to have you get off their back.... I told him that I didn't
trust unions either, because they will sell you out. . I also said that you have
a bunch of crooked union officials "
12 The foregoing is the testimony of employee John J Wrobel which the
Trial Examiner accepts as the best recollection of what transpired
503
three weeks before the election employee David Cizunas
appeared at Supervisor Roy Estes' office to purchase a pair
of safety shoes. Estes advised Cizunas that since the keys
were not available he would have to wait until the following
night to purchase the shoes. Estes added that if there had
been a union at Whiting, Cizunas "would be sent home for
not wearing safety shoes."
On June 15 Estes remarked to employee William J. Sliep-
ka, after a discussion had ensued over the transfer of an
employee from a higher paying operation to a lower paying
operation, that "in a union shop if a man was taken off a
higher paying machine and put on a lower paying machine,
his wages would be decreased to that lower grade scale."
This was a deviation from the then practices in the plant.
On July 11, shortly after employee Robert Barnes had
voted, in passing Estes he asked Estes whether he had voted.
Estes said that he "wished he could."13 He added that
"Whiting didn't need a union" and that if Barnes "didn't
like the waz it was at Whiting" he "should seek employment
elsewhere. He said that ` the union was nothing but a
bunch of crooks or grafters." Estes asked Barnes whether he
knew Coy Land. Upon receiving an affirmative answer
Estes said, "I wouldn't want to be in Cory [sic] Land's
shoes." He added that "there was certain people around
Whiting going to make it tough for him."
Estes denied the foregoing specific conversation; howev-
er he admitted that he had discussed the Union with several
employees, that he told employees "Whiting didn't need a
union to get the employees benefits," that the benefits in
existence in Whiting now were sufficient," that he asked
employees their opinions as to whether the Union would
win or lose and how the election was coming along, and that
he was "interested in the possibility of the election." The
Trial Examiner discredits Estes' denials.
Eighth: The activities of Supervisor Marion Michalski:
During the month of January 1970 employee Edward Cow-
en complained to Supervisor Marion Michalski about the
cold in his section of the plant. At the time he was wearing
union buttons on his heavy red flannel shirt. Michalski
responded, "If you get rid of the buttons, maybe you will
get heat over here." Michalski confirmed the incident ex-
cept he quoted himself as saying, "By the way, if you weren't
weighed down with all those buttons you ... would proba-
bly tend to size better." (The references was to Cowen s job.)
The Trial Examiner credits the version of Cowen as the
more plausible description of the incident.
Ninth: The activities of Supervisor J. B. Noah: On May 22
employees Ed Harter and Paul Sopko were talking. Supervi-
sor J. B. Noah joined the conversation. Among other things
Noah said that the Company was "behind in some things,
but the company could take care of all that," that the em-
ployees "didn't need a union." He also said the Company
was behind in insurance and that "the company would-take
care of things." Noah did not remember the conversation.
The Trial Examiner considers Sopko to be a veracious wit-
ness.
Tenth: The activities of Supervisor Leonard Pikarski:
About 6 weeks before the election employees Leonard
Munson and Edward Cowen (who testified about the inci-
dent set out below) with about seven other employees were
"griping" as Supervisor Leonard Pikarski approached be-
cause their hours had been cut down from 9 to 8 hours a
day.14
According to Munson and Cowen, whom the Trial Exam-
iner credits, Pikarski said that the Union would not get in
because Supervisors Marion Michalski and Fred Willman
17 Estes admitted this remark
14 Testimony of Pikarski
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were in the routing office at that time "going through the
boxes trying to find some more work" to put the hours up
to 55. He said that the Company would "put [the employees]
up on hours and maybe give [them] a nickel later on' and
"everybody will be happy and not vote for the union." At
the time the employees were working 45 hours a week; prior
to the election the employees' hours were increased to 55
hours a week. 15
Eleventh: The activities of Assistant Personnel Director
John Roberts: Around May 15 Assistant Personnel Director
John Roberts asked employee Paul Sopko if he "had heard
the union was gettin in." Sopko answered, "Yes" and add-
ed that Sam Parish (a union representative) had made the
statement that he would not give up until he had Whiting
Corporation. Roberts admitted the conversation which he
reported to Harley A. Bauch, personnel director.
Twelfth: The activities of Supervisor Charles Walls: Em-
ployee Paul Sopko described several incidents involving Su-
pervisor Charles Walls, the first of which occurred about
May 23. Employee Edward Goodwin and Sopko who were
known to. Walls as union supporters 16 were departing for a
coffeebreak during which they were going to "check on
some of the newer men , on cards." Walls ordered Goodwin
to return to his crane and Sopko to his work area. Walls
remarked, "Two can play this game ... you are only allowed
one coffee break." Sopko protested to no avail. Prior to this
date the employees had enjoyed two coffeebreaks. Walls
recalled the incident but denied he had said, "Two can play
at this game."
Around June 18 while employee Wally Wrobel was at
Sopko's worktable Walls inquired of Sopko if he still
thought the Union had a chance. Soppko answered, "Yes,
bigger than ever." Walls turned to Wrobel and asked, "How
about that Wally?" Wrobel answered, " Sure it is going to get
in." Walls knew that Sopko was a union partisan. Walls
admitted that he had asked Wrobel whether he thought the
Union would win.
On June 23 Walls approached Sopko and asked, "Do you
really think that we need a union here?" Sopko answered,
"Yes" "Why," Walls inquired. Sopko answered that the
employees would achieve better insurance, better wages,
better hospitalization, and 'better retirement . Walls re-
sponded, "You are going to have to go on strike to get
them." Sopko said that is what the Union has strike funds
for. Walls remembered the conversation but specifically de-
nied that he said that "the employees would have to go out
on stake to get them , or those benefits."
Around the 17th of June Sopko was at his work station
with several employees. Walls told him that he really didn't
need a union , that he had always been able to take care of
himself . Walls asked him what he was after. Sopko an-
swered, "Union representation." Walls' version of the con-
versation differed.
Around June 27, Walls asked employee Donald Fredrick-
son, "What are you mad at the company for?" Fredrickson
responded that he wasn't mad but felt that "wages should
be such that everybody would know what the other person
is getting ." During the conversation Walls said he had been
liberal in his welding tests and "indicated that were the
union to get in that the men would be required to take a
15 In that the increase in hours to 55 was not alleged in the complaint as
an unfair labor practice the Trial Examiner will make no 8(a)( 1) finding in
regard thereto However , it is the Trial Examiner's opinion that the effectua-
tion of a 55-hour week , during the election campaign period, under the
circumstances detailed above, constituted interference with the election
16 Walls learned that Sopko and Goodwin were union supporters on the
last Monday in May when he returned to work after suffering a hip injury
they told us," he testified.
welding test every six months" and "if th ey failed it, they
would have to wait another six months before they would
have an opportunity." Walls said he was surprised at
Frednckson's attitude and that he had never given him any
problems. He said that he had "put in a raise" for him. Walls
also said that "coffee breaks would probably be shortened."
While Walls' version of this conversation differed the Trial
Examiner credits Fredrickson.17
Thirteenth: The Trial Examiner considers that the shoving
incident between employee Sopko and Supervisor Fred
Willman which occurred while Sopko was passing union
leaflets to be of such an innocuous nature that no findings
are made in respect thereto.
Fourteenth: (a) The Trial Examiner finds that by the inter-
rogation of Supervisors Peter Butkus, Gene Colbourn, Matt
Carvey, John Roberts, and Charles Walls above detailed,
the Respondent interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed by Section
7 of the Act and thereby the Respondent violated Section
8(a)(1) of the Act. These interrogations which occurred in
the context of other unfair labor practices were for the clear
purpose of eliciting information in aid of the Respondent's
antiunion campaign. Moreover, the Respondent has shown
no proof that such questioning was pursuant to the
Employer's legitimate business interests. Cf. N.L.R.B. v.
Winchester Spinning Corporation, 402 F.2d 299 (C.A. 4).
Apropos is the language of the court in N.L.R.B. v. Builders
Supply Co. of Houston, 410 F.2d 606, 609 (C.A. 5), enfg. 168
NLRB No. 29, as modified:
[The] interrogation was coercive since it took place in
an atomosphere of active opposition to the union,
Bourne v. N.L.RB., 332 F.2d 47, 48 (2d Cir., 1964),
without explanation to the employees of the purpose of
the questioning and under circumstances indicating
that it had no legitimate purpose, Edward Fields, Inc.
v. N.L.R.B., 325 F.2d 754,758-759 (2d Cir., 1963), and
was unaccompanied by any assurances against repris-
als, see N.L.R.B. v. Lorbes Corp., 345 F.2346, 348 (2d
Cir., 1965).
... for the test of interference , restraint, and coercion
does not turn on the success of the conduct directed against
an employee. It is a violation of the Act if the questioning
takes place under circumstances which impart to it a tend-
ency to interfere with the free exercise of rights under the
Act." Murray Ohio Manufacturing Co., 155 NLRB 239, 240.
Moreover, the questioning "must be viewed and interpreted
as the employee must have understood the question and its
ramifications ." Hughes & Hatcher, Inc., 393 F.2d 557 (C.A.
6). Thus the interrogations were clearly unlawful.
(b) In the light of the entire record and in the context used
the Trial Examiner finds that:18
17 In respect to the alleged conversation between Walls and employee
Arthur Kropp the Trial Examiner is of the opinion that the General Counsel
has not established that it occurred as alleged by a preponderance of the
evidence
18 The Trial Examiner is well aware that hundreds of cases touch on the
subjects of this Decision and among others has considered the cases cited by
the Respondent , General Counsel, and Charging Party. The test of unlawful
conduct under Section 8(a)(l) of the Act is whether "it may be reasonably
said" that the conduct engaged in by the employer "tends to interfere with
the free exercise of employees' rights under the Act " Time-O-Matic, Inc v.
N L R B, 264 F 2d 96, 99 (C A. 7). As was said in Joy Silk Mills, Inc v.
NLRB , 185 F 2d 732, 743-744,
.. it has been consistently held that the question is not whether an
employee actually felt intimidated but whether the employer engaged in
conduct which may reasonably be said to tend to interfere with the free
exercise of employee rights under the Act
Moreover, "It is well established that illegal interference need not be
successful to be accountable ." General Electric Co v. N L R B, 400 F.2d 713
(C A. 5)
WHITING CORP.
1. The Respondent, by Supervisor Matt Carvey' s remark
to employee Paul Sopko on May 22 that fellows like him
"didn t need a union , impressed employees with the futility
of choosing a union and thereby violated Section 8(a)(l) of
the Act.19
2. The Respondent, by Supervisor Matt Carvey's remark
to several employees I or 2 weeks before the election that,
if the Union was selected , it would "probably move [the
plant] to Alabama or Canada" and, if the Respondent knew
the employees who voted for the Union, their `jobs would
be through," threatened employees with reprisals if they
selected the Union as their bargaining agent and thereby
violated Section 8(a)(1) of the Act 20
3. The Respondent, by Supervisor Matt Carvey's repeat-
ed approaches to employee Sopko, the leading union pro-
tagonist, during the election campaign for the purpose of
union discussions in full view of other employees inhibited
employees in the exercise of rights guaranteed by Section 7
of the Act and thereby the Respondent violated Section
8(a)(1) of the Act 2l
4. The Respondent, by Supervisor Gene Colbourn's re-
mark to employee Robert Barnes on May 28 that "he didn't
think that Whiting really needed a union" and that the
employees "had pretty good benefits the way it was without
having to pay union dues and stuff," impressed employees
with the futility of choosing a union as their collective-
bargaining agent and thereby violated Section 8(a)(1) of the
Act.
5. The Respondent, by Supervisor Roy Estes' remark to
employee David Cizunas 2 or 3 weeks before the election
that if the Union had been in Whiting he would have becit
"sent home for not wearing safety shoes," implied a dep-
rivation of a benefit if the Union were selected as the collec-
tive-bargaining agent and thereby violated Section 8(a)(1)
of the Act.
6. The Respondent, by Supervisor Roy Estes' remarks to
employee William J. Sliepka on June 15 that "in a union
shop if a man was taken off a higher paying machine and
put in a lower paying machine, his wages would be de-
creased to that lower grade scale," contrary to the
Respondent's present practice, impressed employees with
the loss of a benefit if the Union were selected as the collec-
tive-bargaining agent and thereby violated Section 8(a)(1)
of the Act.
7. The Respondent, by Supervisor Roy Estes' remark to
employee Robert Barnes on July 11 that "Whiting didn't
need a union," impressed employees with the futility of
selecting the Union as their collective-bargaining agent and
thereby violated Section 8(aXl) of the Act.
8. The Respondent, by Supervisor Roy Estes' remark to
employee Barnes on July 11 that he would not want to be
in "Cory [sic] Land's shoes," a known union partisan, be-
cause certain people at Whiting would make it "tough for
The Trial Examiner is convinced that the 8(axl) findings herein meet the
test. In applying the test , of course , it must be reckoned that the employees,
as workers , are dependent to a great extent upon the employer's sufferance
and that the employees' response to the words spoken and action taken is that
of a worker bound by his station in life, and circumscribed by his fears,
hopes, and aspirations "[W]ords must be judged by their likely import to (an
employer`s) employees . " Wausau Steel Corporation v N.L.R.B., 377 F 2d 369,
372 (C.A. 7). See also N L R B v. Trojan Powder Company. 135 F.2d 337, 339
(C.A. 3), where effect was given to the employer's statement as it was "capa-
ble of being understood [by the employees].... even though the words are
chosen with a fine sense of Victorian delicacy."
19 N.L R B. v. Bailey Co., 180 F.2d 278, 279 (C.A. 6); The Trane Co, 137
NLRB 1506, 1510; Brandenburg Telephone Co., 164 NLRB 825, enfd 408
F 2d 377 (C.A 6).
20 North Vernon Division of Thompson Inustries, Inc, 169 NLRB No. 62
21 Cf Hawthorn Company A Division of Kellwood Co, 166 NLRB 251
505
him," threatened employees with reprisal if they favored the
Union and thereby violated Section 8(a)(1) of the Act.
9. The Respondent, by Supervisor Marion Michalski's
remark to employee Edward Cowen during January 1970,
to wit, "If you get rid of the [union] buttons, maybe you will
get heat over here," impliedly promised a benefit for union
disaffection and thereby violated Section 8(a)(1) of the
Act 22
10. The Respondent, by Supervisor J. B. Noah 's remarks
to employee Ed Harter and Paul Sopko on May 22 that the
employees "didn't need a union" and that although the
Corn pan^t was behind in some things it would "take care of
all that,' impressed employees with the futility of choosing
the Union as their coll ective -bargaining agent and promised
employees economic benefits , and thereby violated Section
8(aXl) of the Act.
11. The Respondent , by Supervisor Leonard Pikarski's
representation to employees about 6 weeks before the elec-
tion that arrangements were being made to increase work-
ing hours , impressed employees that an economic benefit
would be given to discourage union activities and thereby
violated Section 8(a)(1) of the Act.
12. The Respondent , by Supervisor Charles Walls' direc-
tion to employees Edward Goodwin and Paul Sopko,
known union partisans, about May 23 to refrain from a
coffeebreak , together with the remark "Two can play this
game," discouraged union activi by deprivin employees
of a benefit and thereby violated Section 8(axl) of the Act.
13. The Respondent , by Supervisor Charles Walls' re-
mark to Paul Sopko on June 23 that the employees would
have to "go out on strike" to get better insurance , wagges,
hospitalization , and retirement benefits, impressed employ-
ees with the futility of choosing a union as their collective-
bargaining agent and thereby violated Section 8(aX1) of the
Act.
14. The Respondent , by Supervisor Charles Walls' re-
mark to employee Donald Fredrickson that if the Union
prevailed welding tests would be required every 6 months
and those who failed would have to wait another 6 months
for another opportunity to take the test , contrary to the
employer's present "liberal" policy, threatened a reprisal if
the employees chose the union as collective-bargaining
agent and thereby violated Section 8(aXI) of the Act.
Fifteenth: Having found that the Respondent engaged in
violations of Section 8(aX1) of the Act between the date of
filing the petition for the election and the date of the elec-
tion, the Trial Examiner finds that the Respondent unlaw-
fully interfered with the employees' exercise of a free choice
for or against a bargaining representative. "Conduct viola-
tive of Section 8(a)(l) is a fortiori conduct which interferes
with the exercise of free and untrammeled choice in an
election ." Dal-Tex Optical Company, Inc., 137 NLRB 1782,
1786.
The Trial Examiner finds that by reason of unlawful in-
terference the election conducted on July 11 , 1969, should
be set aside and held for naught 23
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and(7) of the Act and it will effec-
22 Cf. Lexington Metal Products Company, Division of Fern Manufacturing
Corporation, 166 NLRB 878.
2 "If an election were won by the employer through illegal conduct and
in violation of law, the Union was wronged and it had a right to have such
an election set aside "N.L.R B v. Plaskolite Inc, 309 F.2d 788, 790 (CA. 6).
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tuate the purposes of the Act for jurisdiction to be exercised
herein.
3. By interfering with , restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(ax 1) of the
Act.
4. The Respondent unlawfully interfered with the repre-
sentation electionconducted on July It, 1969; said election
should be vacated and another election directed.
5. All production and maintenance employees of the
Whiting Corporation at its Harvey , Illinois , plant but ex-
cluding office clerical employees , expediters, laboratory em-
ployees, professional employees , guards and supervisors as
defined in the Act, as amended, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.24
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE RECOMMENDED REMEDY 25
It having been found that the Respondent has engaged in
certain unfair labor practices , it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
The Trial Examiner further recommends as requested by
the General Counsel that Lemmie Cogar be reimbursed for
wages lost , in accordance with the Board's usual practice,
when Cogar was unlawfully sent home 12 minutes early on
July 11, 1969.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in this case, it is
recommended that the Respondent, its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with , restraining, or coercing employees in
the exercise of their rights of self-organization by threats of
reprisals, promises of benefits , or withholding of benefits.
(b) Unlawfully impressing em loyees with the futility of
selecting the Union as their collective -bar aining agent.
(c) Unlawfully creating the impression of surveillance of
em loyees' union activities or desires.
(d) Unlawfully interrogating any of its employees as to
their union activities.
(e) In any other related manner interferin with, re-
straining, or coercing its employees in exercise of'gtheir rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Reimburse Lemmie Cogar in accordance with the
recommendation set forth in the "Recommended Remedy"
herein.
(b) Post at its Harvey, Illinois, lant copies of the attached
notice marked "Allpendix."26 Copies of said notice, on
forms provided by the Regional Director for Region 13,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(c) Notify the Regional Director for Region 13, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith??
IT IS FURTHER RECOMMENDED that the election conducted
herein on July 11, 1969, be vacated and set aside and that
a second election by secret ballot be conducted among the
employees in the unit found appropriate, at such time as the
Regional Director for Region 13 deems appr nets. It is
recommended that the Regional Director shall direct and
supervise the election subject to the National Labor Rela-
tions Board Rules and Regulations.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act, other than
those found in this decision.
24 This unit was incorporated in the stipulation for certification upon con-
sent election executed by the parties and approved by the Regional Director.
25 The Charging Party requests that the Trial Examiner recommend a
bargaining order rather than a second election . However, the Charging Party
suggests that "should there be a question concerning the majority status of
the Union , and the closeness of the election not form the basis for a bargain-
ing order , the Board may make an administrative determination of the status
of the authorization cards in the custody of the Regional Director, 13th
Region , National Labor Relations Board , which cards will evidence such
majority status " But, if majority status exists based upon a card count a
different criterion is applied, for the Supreme Court has said:
"The Board 's authority to issue such an order [bargaining order] on a lesser
showing of employer misconduct is appropriate , we should re-emphasize,
where there is also a showing that at one point the Union had a majority."
NL.R.B. v. Gissel Packing Co, 395 U.S 575.
The Board's Rules and Regulations do not provide for a Trial Examiner's
making an administrative determination of the status of authorization cards.
Thus, although ment may be found in the Charging Party's request for a
bargaining order , the Trial Examiner for this reason refers the Charging
Party's request for a bargaining order remedy to the Board.
26 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations, and Recommended Order herein shall, as
provided in Section 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions and order, and all objections
thereto shall be deemed waived for all purposes . In the event that the Board's
Order is enforced by a Judgment of a United States Court of Appeals, the
words in the notice reading "Posted by order of the National Labor Relations
Board" shall be changed to read "Posted pursuant to a judgment of the
United States Court of Appeals enforcing an order of the National Labor
Relations Board."
27 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with the rights of our employ-
ees to engage in union activities or choose a union as
a bargaining agent by threats of reprisals, promises of
benefits, or withholding benefits.
WE WILL NOT unlawfully interrogate our employees
about their union activities.
WE WILL NOT unlawfully * ress our employees with
the futility of selecting the Union as their bargaining
agent.
WE WILL NOT indicate in any way that we are keeping
ourselves informed concerning our employees' union
activities or desires.
WE WILL NOT send our employees home for lawfully
WHITING CORP.
talking in favor of the Uilion and will reimburse Lem-
mie Cogar for wages lost because we sent him home for
talking in favor of the Union.
WE WILL NOT deprive our employees of benefits if they
lawfully wear union buttons.
The Act gives all employees these rights:
To organize themselves to form, join, or help
unions
To bargain as a group for the representatives
they choose
To act together for collective bargaining or oth-
er mutual aid or protection
To refuse to do any and all of these things
All of you are free to become or remain or refrain from
becoming or remaining members of any labor organization
including United Steelworkers of America, AFL-CIO.
WHITING CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 881
U.S. Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, Illinois 60604, Telephone 312-
353-7572.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: Pursuant to an order
of the National Labor Relations Board consolidating Case
13-CA-9366 with Cases 13-CA-9250 and 13-RC-11866'
(in which latter cases the Trial Examiner had issued a deci-
sion on April 7, 1970), and reopening the instant proceed-
ings, this matter came on for hearing on June 8, 9, 10, and
11, 1970, at Chicago, Illinois. Each party was afforded a full
opportunity to be heard, to call, examine and cross-examine
witnesses, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All briefs
have been carefully considered by the Trial Examiner.2
In its Order the Board provided that:
(Ulpon the conclusion of such hearing, the Trial Exam-
iner shall prepare and cause to be served on the parties
of supplemental decision containing any additional
findings of fact, conclusions of law, and recommenda-
tions based on the evidence received pursuant to the
provisions of this Order, and that following service of
such supplemental decision upon the parties, the pro-
visions of Section 102.46 of the Board's Rules and Reg-
'Upon motion of the Charging Party , joined in by the General Counsel,
the Trial Examiner ordered Case 13-RC-11866 severed from Case 13-CA-
9250 and Case 13-CA-9366 and remanded Case 13-RC-11866 to the Re-
gional Driector for Region 13.
2 A part of the Board 's Order provided that "the consolidate proceeding
be remanded for hearing before Trial Examiner Lowell Goerlich for the
purpose of receiving additional evidence on the allegations of the complaint,
as amended, issued in Case 13-CA-9366 "
507
ulations, Series 8 , as amended, shall be applicable to
the filing of exceptions and brief to the s upplemental
decision as well as to the Trial Examiners Decision
dated April 7, 1970, as corrected.
The sole issue raised by the complaint in Case 13-CA-
9366 3 is whether the alleged involuntary retirement of Cent-
rell Wilson, an overhead crane operator, on September 17,
1969, was effectuated by the Respondent for the purpose of
discouraging membership in a labor organization in viola-
tion of Section 8(aX3) of the National Labor Relations Act,
as amended , herein referred to as the Act.
Upon the whole record and upon his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS, AND
REASONS THEREFOR
The Respondent's Employees' Retirement Plan provides
that the "Normal Retirement Date of an Employee shall be
the last day of the calendar month coincident with or next
following the date on which he attains age sixty-five....
Upon attaining his Normal Retirement date every Emplo -
ee shall thereupon be retired from employment with the
Company, unless the Company permits him to continue in
its employment thereafter and he does so continue."
Centrel Wilson, who was born on May 9, 1903, reached
his 65th birthday in the year 1968. As was the Respondent's
policy he was interviewed by Personnel Director Harley
Bauch in reference to his benefits in the retirement plan
sometime during his 64th year. At such time the benefits
under the plan were explained to him. Apparently Wilson
was not ready for retirement for he requested that he be
permitted to work an additional year. Bauch granted the
request on condition that there would be availability of
work and that he would retain the ability to do the job a
In June 1969 Wilson joined the Union. He attended ap-
proximately three union meetings. At a June 1969 meeting
Wilson circulated a pay stub among the employees attend-
ing, reflecting a pension payment which his brother had
received from Allis-Chalmers, a plant organized by the Un-
ion. Wilson told the employees present that he thought that
"it was quite nice to receive that much." Wilson later took
the check stub to the Employer's plant where for 3 days it
was exhibited to employees by Wilson and employee Sopko.
Wilson also carried a pencil in his shirt pocket, attached to
which was a clip bearing the words "Go Go Steel Workers."
Many other employees carried like clips, some of whom
were not unit employees. Additionally Wilson engaged in
union discussions with other employees. Such was the scope
of Wilson's union activities .5
On June 11, 1969, "your In-Plant Committee" distributed
a leaflet in which, among other things, appeared:
Pension-A.C. and Bliss do have a $6.50 x years plan.
Get an A.C. contract and look at page 38, par.222 (a)
and see for yourself. They have a $400.00 age 60 plan,
look at page 39, par. 222 (G). Mr. Wilson, a Janitor, is
receiving a pension of $362.00 a month from the Pen-
3 The charge in Case l3-CA-9366 was filed by the United Steelworkers of
America, District 31, Sub-Dis 5 , herein referred to as the Union, on Septem-
ber 22, 1969, and served upon the Respondent, Whiting Corporation, on
September 23, 1969.
Wilson testified that Bauch said as long as he was doing a good job and
there wasn't and "kick" on his work he could stay until July 1970, a month
after his son was to be graduated from high school.
S Employee Henry Clyde Holly testified that he had discussed the check
stub with Supervisor John W. Campbell and Campbell had admitted that he
had seen the stub . Campbell denied Holly's testimony . Joe Kutt admitted
that he had seen the pencil clips but denied any knowledge of the check stub
incident as did Bauch
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion Plan for 27 years of service. Check! his check was
shown to the group.
According to Sopko,lie passed a copy of the leaflet to a
representative of management. The pension issue was
commented upon frequently by both the Union and the
Respondent during the election campaign.
Wilson continued to work for the Respondent until Sep-
tember 17, 1969. After January 1969 he commenced slip-
ping in his operation of the overhead crane, a job which he
had been filling for 13 years, in the structural sho. Accord-
ing to Bauch he had received reports from Suppervisors
Campbell and Kutt and Safety Director Mackie that
Wilson's ability as a crane operator was deteriorating ("the
fact that he was creating hazards"). Campbell reported to
Bauch, "We are going to have to do something with Wilson.
He is liable to Burt someone." " Among other incidents,
Mackie reported the Kimbro incident to Bauch.6 Kutt re-
ceived complaints about Wilson's work performance from
several employees. Employee Frank Kimbbro, the employee
who had received the injury noted above, remarked to Kutt,
"Joe, you better do something about that man up in the
crane.... He is going to hurt somebody."
Around 8:30 a.m., on September 17, 1969, Wilson was
engagged in lifting a trackmobile frame . A trackmobile frame
weighs' between 500 and 1,200 pounds . In order to elevate
it by crane two plate hooks are attached to each side of it.
These are attached to chains extending from the crane's
trolley. In that the frame is higher on one side and lies off
balance, one hook is placed lower than the other causing
slack in one of the chains. Thus, as the chains are pulled up
one chain becomes taut before the other. As the latter chain
becomes taut a "jerk" is caused. At this point, if the trolley
is not properly centered over the frame, the frame, as it
leaves the floor, will swing to and fro. Floormen place the
hooks and hold them to the frame until the chains become
taut, whereupon they step aside and the frame is lifted from
the floor. Crane operator Henry Clyde Holly described the
process and how a competent crane operator would perform
the lift of a trackmobile frame, " . . you would pick it up
slow by pullin the hoist up and not holding it. You hold
it until about all the slack is out of it, then you stop it. Then
you start up again. And after you get it up even ... though
by you taking it slow like that, with it one sided , its going
to jerk anyway.... One chain is taut, the other is loose when
it sets up straight itself, mostly comes up itself, and it
straightens itse up and jerks."
On September I F, 1969, H. Andy Hashin and Paul Kime-
ro were the floormen. After the hooks were placed on the
trackmobile, Hashin motioned to Wilson to make the lift.
The trolley was not centered over the load and the load
swung toward the side where Hashin was located. He
jumped in order to avoid a collision with the frame. Hashin
looked up at Wilson and shouted "G---d--- it, what's the
matter with you? Can't you see?" Wilson "just grinned."
Hashin reported the incident to Supervisor Kutt remark-
ing, "By G---, Joe, if you don't do something about this guy
Wilson, I am going to the front office. I'm not going to get
hurt." Kutt said he would look into it and again talk with
Hashin. Later Kutt contacted Hashin at which time Hashin
said, "My G--, Joe, I will have to quit. I don't want to get
killed. I don't want to get crippled up." About noon Kutt
6 During the winter prior to Wilson's retirement , Wilson "plopped" a load
over Frank Kimbro Kimbro was required to attend first aid; an ice pack was
placed on his foot.
called Bauch and told him that they would "have to have
a little talk with Wilson." Kutt and Wilson met with Bauch
around 2:30 p.m. When Kutt informed Wilson of the meet-
ing Wilson said, "I suppose it's about Hashin."
Wilson's version of the meeting is as follows: Bauch said
that "it seemed like [Wilson's] work wasn't satisfactory. Re-
flex was gone" and that he could not "operate like [he] had
been operating." Bauch advised Wilson that it would be
better for him to retire; that it would be for his best interests.
Wilson asked whether he could "go on a broom or some-
thing" until July 1970. Bauch replied, " .. , we ain't got
nothin like that much now. We want to save it for the other
men." Bauch said that he had nothing Wilson could do.
Wilson responded, "I might as well retire right now." Bauch
explained Wilson's pension benefits.
Wilson signed Pension Form 2 dated September 17, 1969,
which provided for pension payments of $108.76 a month
and a lump sum benefit in the Profit Sharing Trust of $6,
942.54 as of "9/30/69." Wilson signed under the language,
"It is my desire to retire effective September 17, 1969."
According to Bauch when Wilson and Kutt appeared in
his office he related the incident involving Hashin and stat-
ed that he had heard of other instances which indicated
Wilson's ability to operate a crane was deteriorating. Wilson
responded, "It looks like I better retire. I think I will retire
right now." Bauch asked Kutt what he thought. Kutt re-
plied, "Harley, you have the situation" and left. Bauch then
obtained Wilson's file and discussed his pension benefits
with him. Wilson signed the retirement form above noted.
At the time the amount of his profit-sharing benefit had not
been computed. Wilson started out of the room but imme-
diately returned and said "I would like to work longer."
Bauch said that he could not grant the request.
Bauch testified that he was a member of the Safety Com-
mittee and that at the time Wilson appeared at his ofice the
Company was "superconscious" over the subject of safety
because one of the Company's service department engineers
had lost his life in July 1969, through an accident in the
plant.
Bauch said that he had first planned to submit Wilson's
case for an evaluation' to the Safety Committee which was
composed of Bauch, the plant manager and the safety direc-
tor, but that Wilson' s decision to retire rendered that unnec-
essary.
ch denied that during the retirement interview with
Wilson union considerations had been weighed.
According to Kutt , Bauch talked to Wilson about his
performance and that he was "getting a lot of reports. 11
He talked about safety and the Hashm incident. Wilson
commented, "Looks like they don't want me around here.
I might as well retire ." Bauch asked Wilson when he intend-
ed to retire. He answered, "Right now." At this point Kutt
left the meeting.
The Trial Examiner is of the opinion and finds that even
though the evidence was construed most favorably to the
General Counsel, the General Counsel has not established
by a preponderance of the testimony that the Respondent
has committed the unfair labor practices charged in the
complaint. Accordingly, the Trial Examiner recommends
that the complaint in Case 13-CA-9366 be dismissed in its
entirety.
7 If the Safety Committee's evaluation required that an employee be re-
moved from his job for safety considerations, it was the policy of the Compa-
ny to try to effect a transfer for the employee if he had "value as far as the
Company was concerned , and he was under retirement age." Wilson did not
avail himself of a Safety Committee evaluation.