ABC Machine and Welding Service

National Labor Relations Board - Board Decisions

Jan 14, 1959

122 N.L.R.B. 944 (N.L.R.B. 1959)

-944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'T. C. Wagster , d/b/a ABC Machine and Welding Service and
District No. 9, International Association of Machinists, AFL-
CIO and International Brotherhood of Boilermakers, Iron
Ship Builders , Blacksmiths , Forgers and Helpers, AFL-CIO,
and International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths, Forgers and Helpers, Local No. 27,
AFL-CIO, Parties to the Contract. Case No. 14-CA-1695.
January 14, 1959
DECISION AND ORDER
On June 25, 1958, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent with our
decision herein.
1. The Trial Examiner found that the General Counsel had not
sustained his burden of proving that the Respondent had violated
Section 8(a) (2) of the Act, and accordingly recommended that this
allegation of the complaint be dismissed. We disagree with the
,conclusion of the Trial Examiner in this respect.
The pertinent facts relating to the complaint's 8(a) (2 ) allegations
are set forth in the Intermediate Report. Briefly, they show that
,on September 9, 1957, the Respondent discharged employee Lowe,
an organizer for District No. 9, International Association of Ma-
chinists, AFL-CIO, herein called the IAM. Four days thereafter,
,on September 13, 1957, the International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, and its affiliated Local No. 27, herein called the Boiler-
makers, received an anonymous phone call requesting a representa-
tive to "talk to the boys" at the Respondent's shop. Employees Lucy
and Wyatt testified credibly that Milton Wagster, the Respondent's
,son, told them that it was the Respondent who had called the
Boilermakers into.the plant. On September 16, Conway, a Boiler-
makers representative, was granted permission. by Respondent to talk
to his employees. On the same day, Conway met with the Employer's
122 NLRB No. 114.
ABC MACHINE AND WELDING SERVICE 945
employees, one of whom was Milton Wagster, and sought to persuade
them to join the Boilermakers. He told the employees that he was
reasonably sure that he could get them a wage increase of 5 or
10 cents an hour and possibly the payment by the Respondent of
their initiation fees and first month's dues in the Boilermakers. The
employees voted to join the Boilermakers and also agreed that no
employee committee would sit in on Conway's negotiations with the
Respondent. On September 20, after meeting with Conway for
3 hours, the Respondent agreed to accept the Boilermakers' standard
form contract, which included a union-security clause and a checkoff
provision. He also agreed to an across-the-board raise of 5 cents an
hour and the payment of the employees' initiation fees and first
month's dues in the Boilermakers. Between September 20 and 23,
before any written checkoff authorizations were received from the
employees, the Respondent paid the employees' union initiation fees
and first month's dues.
Unlike the Trial Examiner, we find that the Respondent's payment
of the initiation fees and dues to the Boilermakers in the circum-
stances of this case constitutes financial assistance by the Respondent
to that union in violation of Section 8(a) (2) of the Act.'
2. The Trial Examiner also recommended dismissal of the com-
plaint insofar as it alleged that employee Lowe was discriminatorily
discharged. While the circumstances surrounding Lowe's discharge
raise a suspicion that it was discriminatorily motivated, we find, on
the basis of the testimony credited by the Trial Examiner, that the
General Counsel has failed to establish by a preponderance of the
evidence that Lowe was in fact discriminatorily discharged. Ac-
cordingly, we shall dismiss this allegation of the complaint.
3. In view of our unfair labor practice finding above, the Re-
spondent's interrogation of employee Guffey no longer stands as
"an isolated act on Respondent's part," as the Trial Examiner found.
Accordingly, we find that the Respondent, by such interrogation,
violated Section 8(a) (1) of the Act and, further, that it will effectu-
ate the policies of the Act to issue a remedial order based thereon.
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The conduct of the Respondent, set forth above, which has been
found to constitute unfair labor practices occurring in connection
with the operation of the Respondent, described in the Intermediate
Report, has a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tends to lead
I Cf. Dixie Bedding Manufacturing Company, 121 NLRB 189; Marathon Electric Mfg.
Corp., 106 NLRB 1171, 1195, 1201 ; Jack Smith Beverages, Inc., 94 NLRB 1401, 1402-1403,
1413, enfd.. 202 F. 2d 100 (C.A. 6). It would appear that such payment of moneys by
an employer to a union may be punishable as a misdemeanor under Section 302 of the
Act (Title II1).
505395-59-vol. 122-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that, the Respondent has violated Section 8(a) (2)
and (1) of the Act, we will order that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
As we have found that the Respondent assisted the Boilermakers
in violation of Section 8(a) (2), we will order that the respondent
withdraw and withhold all recognition from the Boilermakers as
the bargaining representative of its employees and that he cease
giving effect to the 1957 contract between himself and the Boiler-
makers, or to any modification or extension thereof, unless and until
said labor organizations shall have demonstrated their exclusive ma-
jority representative status pursuant to a Board-conducted election.
Nothing in the order should be taken, however, to require the Re-
spondent to vary the wages, hours, or other terms and conditions of
employment which the Respondent has established in performance
of such agreement.
The Respondent's contract with the Boilermakers contains a union-
security provision, implemented by provision for checkoff of initia-
tion fees, field dues, and monthly dues which is unlawful since, as
found above, the Boilermakers is an assisted union under the Act.
By virtue of this illegal. contract, employees have been unlawfully
coerced into becoming members of, and paying initiation fees, dues,
and other moneys to, the Boilermakers as the price of employment.
In these circumstances, we believe that the remedy of reimbursement
of the moneys so deducted from their earnings or paid by the Re-
spondent's employees is appropriate and necessary to expunge the
illegal effects of the Respondent's unfair labor practices found herein.
Accordingly, in order to effectuate fully the policies of the Act, we
shall. order the Respondent to refund to its employees all such
moneys that they were illegally required to pay as a price for their
employment.2 However, in conformity with Section 10(b) of the
Act, the Respondent's liability in this connection shall be limited
to moneys deducted from the employees' earnings or paid by them
during the period beginning 6 months before the filing and service
on him of the charge herein.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the
2 See Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533: Dixie Bedding
Manufacturing Company, supra; Local No. 450, International Union of Operating Engi-
neers, AFL-CIO (Tellepsen Construction Company), 122 NLRB 564.
ABC MACHINE AND WELDING SERVICE 947
National Labor Relations Board hereby orders that the Respondent,
T. C. Wagster, d/b/a ABC Machine and Welding Service, St. Louis,
Missouri, his agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Contributing financial assistance and support to International
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and I-Ielpers, AFL-CIO, and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,
Local No. 27, AFL-CIO, or any other labor organizations of his
employees.
(b) Recognizing International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, and
International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local No. 27, AFL-CIO, as the
representative of any of his employees for the purpose of dealing
with the Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, unless and until the said labor organizations shall have demon-
strated their exclusive majority representative status pursuant to a
Board-conducted election among the Respondent's employees.
(c) Entering into, renewing, or giving effect; to any contract or
understanding with the Boilermakers affecting his employees unless
and until they shall have demonstrated their majority status, in the
manner stated above.
(d) Interrogating his employees concerning their membership in
or adherence to District No. 9, International Association of Ma-
chinists, AFL-CIO, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation of Sec-
tion 8(a) (1).
(e) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the Boilermakers, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the Boilermakers
as the collective-bargaining representative of his employees for the
purpose of dealing with him concerning wages, hours, and other
terms and conditions of employment, unless and until such organiza-
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions shall have demonstrated their exclusive majority status pur-
suant to a Board-conducted election.
(b) Reimburse all employees for moneys illegally exacted from
them in the manner and to the extent set forth in the section herein
entitled "The Remedy."
(c) Post at the Respondent's place of business copies of the notice
attached hereto marked "Appendix. 113 Copies of such notice, to be
furnished by the Regional Director for the Fourteenth Region, shall,
after being duly signed, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for a period of sixty
(60) consecutive days thereafter in conspicuous places, including
all places where notices to his 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 Fourteenth Region in
writing, within ten (10) days from the date of this Order, what
steps Respondent has taken to comply herewith.
MEMBER BEAN took no part in the consideration of the above
Decision and Order.
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL NOT enter into, renew, or give effect to any contract or
understanding with International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-
CIO, and International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 27,
AFI,CIO, unless and until said labor organizations shall have
demonstrated their exclusive majority representative status pur-
suant to a Board-directed election.
I WILL NOT contribute financial assistance and support to the
Boilermakers or any other labor organization.
I WILL withdraw and withhold all recognition from the Boiler-
makers as the collective-bargaining representative of my em-
ployees for the purpose of dealing with them concerning wages,
hours, and other terms and conditions of employment, unless and
ABC MACHINE AND WELDING SERVICE 949
until said organization shall have demonstrated its majority
status, in the manner stated above.
I WILL reimburse my employees for the initiation fees, dues,
and other moneys deducted from their earnings on behalf of, or
paid by them to, the Boilermakers as a result of the unlawful
union-security provision in my contract with the aforementioned
labor organization.
I WILL NOT interrogate employees concerning their membership
in or activities on behalf of District No. 9, International Asso-
ciation of Machinists, AFL-CIO, or any other labor organiza-
tion, in a manner constituting interference, restraint, or coercion
in violation of Section 8(a) (1) of the Act.
I WILL NOT in any other manner interfere with, restrain, or
coerce my employees in the exercise of the rights guaranteed
to them in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act.
T. C. WAGSTER, D/ B/A ABC MACHINE
AND WELDING SERVICE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges filed by District No. 9, International
Association of Machinists, AFL-CIO, herein called TAM, the General Counsel of
the National Labor Relations Board, by the Regional Director for the Fourteenth
Region, St. Louis, Missouri, issued a complaint and notice of hearing dated
December 3, 1957, against T. C. Wagster, d/b/a ABC Machine and Welding
Service, herein called the Respondent, alleging that the Respondent had engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1),
(2), and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat.
136, herein called the Act. The burden of the complaint is that the Respondent
(1) discharged its employee Paul Lowe because of his union organizational activity
in behalf of the IAM, thus discriminating in regard to his hire or tenure of em-
ployment and encouraging membership in International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 27,
herein called Boilermakers, and discouraging membership in the IAM, thereby
engaging in unfair practices within the meaning of Section 8(a)(3) of the Act;
(2) interfered with the organization of its employees by the IAM and contributed
financial and other support to the Boilermakers thereby engaging in unfair labor
practices within the meaning of Section 8(a)(2) of the Act; and (3) interfered with,
restrained, and coerced its employees by interrogation and threats of withdrawal
of benefits, thereby engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
Respondent's answer denied the commission of unfair labor practices, but ad-
mitted that on or about September 17, 1957, representatives of the Boilermakers
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called at its place of business and requested and were granted permission to talk
to its employees during the lunch period of said employees ; that on or about
September 20, 1957, it executed a collective -bargaining agreement with the Boiler-
makers Local No. 27, which contains a "union shop " clause as provided for by
Section 8(a)(3) of the Act, and that pursuant to the collective - bargaining contract
and "checkoff" authorization cards received by it from its employees , it has de-
ducted and continues to deduct monthly dues from its employees ' pay and remits
the same to the Boilermakers . Pursuant to notice a hearing was held at St. Louis,
Missouri , on January 7, 8, and 9, 1958 , before the duly designated Trial Examiner.
The General Counsel, the Respondent , and the Boilermakers were represented by
counsel , the IAM by its representatives . All participated in the hearing and were
afforded opportunity to examine and cross -examine witnesses and to introduce
evidence bearing on the issues . Briefs were received from counsel for the General
Counsel and from Respondent's counsel on February 28, 1958, and have been duly
considered.
On March 27 , 1958, there was received from IAM pursuant to Section 102.25
of the Board's Rules and Regulations , a motion to withdraw the case for the
reasons that (1) the preponderance of supporting evidence introduced by Respondent
during the hearing now causes the IAM to doubt that violations of the Act actually
occurred as alleged in the complaint , this doubt being so great that said or-
ganization now requests to withdraw the instant case ; and (2) the action of the
IAM in processing the instant case to a prolonged conclusion is depriving em-
ployees of Respondent of benefits and proper representation by its chosen repre-
sentative Local 27, Boilermakers . Memoranda urging approval of the motion of
the IAM were received from the attorneys for the Boilermakers and the Respond-
ent. One in opposition was received from counsel for the General Counsel. On
April 16, 1958, the motion to withdraw the case was denied with notice to the
parties that appropriate findings and recommendations would be made in an
Intermediate Report to be issued.
Upon the entire record in the case and from my observation of the witness, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
ABC Machine and Welding Service is engaged at St. Louis , Missouri, in the
business of general welding services and manufacturing screens for use in military
aircraft . It was stipulated at the hearing that since January 1, 1957, Respondent
performed services and manufactured screens in excess of the value of $100,000
for McDonnell Aircraft Corporation , St. Louis, Missouri. The said McDonnell
Aircraft Corporation in turn annually ships directly out of the State of Missouri,
goods valued at in excess of $50,000. It was admitted at the hearing and I find
that during all times material herein the Respondent was and now is subject to
the jurisdiction of the Board and that it will effectuate the policies of the Act for
the Board to assert jurisdiction over the Respondent.
II. THE ORGANIZATIONS INVOLVED
District No. 9, International Association of Machinists , AFL-CIO, and Inter-
national Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths , Forgers
and Helpers , AFL-CIO, and its affiliated Local No. 27, are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Paul Lowe
Respondent operates a welding shop in a small one -story building , where it is
engaged in manufacturing workstands and frames and screens to cover the air
intake on jet planes, the latter service being performed for the McDonnell Aircraft
Company. In September 1957, it had in its employ seven welders ,' seven helpers
and a machinist.
'Because its services were being performed in connection with military aircraft,
Respondent was required to have in its employ two highly experienced welders certified
by the military authority.
ABC MACHINE AND W ELDING SERVICE 951
Paul Lowe applied for employment with Respondent in the latter part of
August 1957. Lowe told T. C. Wagster, owner of Respondent, that he had con-
siderable experience as a welder in both electric and torch work and that at his
last place of employment he worked on workstands, similar to the job Respondent
was then doing.
Lowe was hired by Wagster on August 26, 1957. He was told that his starting
rate of pay would be $1.75 per hour, and if he proved himself the rate would
be increased to $2 per hour.2
During his second week of employment, Lowe and several other employees,
while eating lunch outside the shop, talked about a union. When it was revealed
during these conversations that Lowe had been a member of the IAM for 5 years
and in fact at his last place of employment worked under an JAM contract, he
was asked to contact the Union.
On September 5, an IAM business representative called at Lowe's home at which
time he signed an IAM authorization card, and he was given other cards to pass
out to Respondent's employees.
On September 6 and 7, Lowe gave IAM authorization cards to about seven
employees and also inquired of several others regarding their interests in joining
the IAM. Lowe distributed the cards inside and outside the shop.
About 10:30 a.m. on September 9, Lowe and helper Jack Barger completed the
welding on screen MDE 20532 #124. Lowe did not do any other work on
screens that day. He testified that he went to employee Phillip Lucy's station to
learn something about silver soldering. About 3 p.m. Wagster, after having ob-
served Lowe talking to Lucy and other employees at different times and not
engaging in his regular work, told him he would not be needed after 4:30. Lowe
replied "ok."
Employee Wilbert Guffey testified without denial that on the day of Lowe's
discharge, Wagster inquired if he had been asked to join the IAM. Upon re-
ceiving Guffey's affirmative answer, Wagster inquired who asked him to join.
Gaffey related that Lowe asked if he "wanted to join the Union," and that he
told Lowe he had been at the shop for 6 years, had gotten along pretty well with
everyone, made good money, and did not know whether he needed a union to
represent him.
Lowe testified that after Wagster discharged him, he (Wagster) started to walk
away, then turned around, came back and said, "If you are going to stir up
trouble, you are just not that good of a man." Wagster denied Lowe's testimony.
In an effort to corroborate Lowe's testimony, the General Counsel adduced
evidence from employee O. D. Wyatt who, upon having his recollection refreshed
by reading a statement previously given to a Board agent, testified that about a
week after Lowe was discharged, Wagster told him that he asked Lowe to become
a certified welder,3 but that Lowe did not want to do that kind of work, and that
if Lowe was going to be a troublemaker, he did not want him around the shop.
Wyatt testified further that in another conversation with Wagster regarding the
employees' bonus,4 Wagster said that if the men wanted "to be dirty like that,"
and join a union without saying anything about it to him, he could be "just as
dirty." Wyatt thought that it was during this conversation that Wagster said he
could stop the employees' bonus. On cross-examination Wyatt admitted that
Wagster's remarks regarding the employees' bonus were made at the time when
the painter was not carrying his load with the rest of the crew and Wagster said
"if one guy was going to mess up the job that he was going to take the bonus
away from all [of us]." Furthermore, Wyatt admitted that Wagster never made
a similar threat before that occasion.
Wyatt was unable to testify regarding any of the events herein, without having
his memory refreshed by a reading of his affidavit. In fact when he was cross-
examined about the contents of the affidavit, he testified, "Well, I couldn't say
whether that was exactly like I said it or if it wasn't. Three months ago-I don't
2 Lowe testified that Wagster did not mention a starting rate or an increased rate and
that he went to work without knowledge of his rate of pay. Having observed Lowe's
demeanor as a witness and having thoroughly read his testimony, I find it difficult to
accept his testimony that he started out on a job without ascertaining his rate of pay.
It appears that at that time one of the two certified welders was quitting his job.
The record reveals that if employees completed their quotas of work, which in the
case of welders was two screens per day, they received a $10 bonus for working a 5-day
week and a $ 20 bonus for working a 0-day week.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remember, I can't remember even if it is wrote down, how would I remember?"
Under these circumstances, coupled with my observation of Wyatt as he testified,
I can attach no weight to his testimony as set out hereinabove.
Phillip Lucy was in Respondent's employ for 9 months as a certified welder.
He signed an IAM authorization card in the presence of Lowe and employee
Meredith. At the time of the events herein Lucy was doing silver soldering.
Lucy testified that Wagster came to him on the day Lowe was discharged and
they engaged in the following colloquy: Wagster said, "Phil, I hear you was one
of the guys helping Paul get this Machinist Union business started." Lucy replied,
"No, I didn't have anything to do with starting it up." Wagster said, "It came
from a reliable source." Lucy answered, "Who ever told you that I helped start
it, that it ain't so." Wagster said, "Well, I am going to let you know right now
that I am going to let anybody go that has anything to do with anybody getting
these guys wages cut." Lucy said, "I don't know anything about trying to get
anybody's wages cut. I am not opposed to the Machinists Union because I have
belonged to them." Wagster said, "If they are going to start all their kind of
business I am going to cut out the bonus and everything." On cross-examination
Lucy admitted that "one of the times" that Wagster said he would take away the
employees' bonus was with reference to a slowdown involving the painter. Al-
though Lucy testified that Wagster mentioned taking away the bonus on more than
one occasion, he did not testify as to these other times.
Wagster denied having made the statements attributed to him by Lucy. He
admitted that he spoke to several employees about cutting out the bonus. He
testified that such conversations took place around the last part of September on
the occasion when work was piling up and not getting out of the shop. He stated
he told the employees "if they were going to get paid their bonus-as soon as the
silver soldering is done and they didn't care whether they were ever shipped or not
and if they didn't keep up with the painting and assembly work that [I] would
have to cut out the bonus, Wagster denied having made the above or
similar statement at any other time.
The record reveals that Lucy changed his testimony several times . I have the
impression that Lucy would not be averse to altering his testimony depending
upon the prevailing circumstances. Based on the above and his demeanor on the
witness stand I do not consider him a reliable witness and do not credit his
testimony.
With respect to the determination of Lowe's credibility, I need only note here
the General Counsel's candid remarks regarding him as set forth in his brief, with
which I wholly agree. "Paul Lowe's demeanor was not good; nor were his answers
always frank." The General Counsel contends, nevertheless, that because his
testimony was extensively corroborated by other witnesses it should be credited.
Having found no corroboration, I do not credit Lowe's testimony as set forth above.
The Respondent defends its discharge of Lowe on the ground that he was
loafing on the job. The record is clear that Lowe and Barger finished their work
on screen MDE #124 at 10:30 a.m. on September 9. Lowe testified that there-
after he went over to Lucy's station and stayed there the remainder of the day.
Part of the time Lucy taught him to do silver soldering and part of the time he
helped Lucy. When questioned if he talked to Lucy for 2 hours on that day he
answered "probably." While there is evidence that Lucy taught other employees to
silver solder, this was done by Wagster's direction. Lowe's attitude toward his
job is reflected not only by his conversation with employee Barger several days
before his discharge, when Lowe said "if things didn't go exactly to suit him, he
didn't mind he would quit," but also from the following:
Q. Now you weren't told by anybody to go over to Lucy's station?
A. I was not told by anybody not to.
Wagster credibly testified that on September 9, he observed that Lowe was not
working at his station and upon looking around the shop he saw him standing at
Lucy's station, talking to Lucy. Between 1 and 3 p.m. Wagster noticed that Lowe
continued to stand around Lucy's station. It was then he decided to discharge him.
Lucy admitted that Lowe was at his station during the day, that he helped him
for about 3 hours, standing around and talking to him, that he left the station
and came back several times.
As pointed out by Respondent in its brief the aircraft frames or screens which
it was manufacturing were being produced in a continuous operation. Lowe and
Barger were on the screen process and their output of two screens a day kept the
silver solderers supplied with work. When Lowe finished screen # 124, admittedly
he did not go for the next numbered screen, even though he knew where they
ABC MACHINE AND WELDING SERVICE 953
were, claiming that Barger always went for the screens . Lowe also testified that
there were more screens available for him to work on at the time, but he did not
know whether they were the same kind. Wagster testified that at 9 or 9:30 a.m.
on September 9, Respondent received back from the inspection company four
frames on which Lowe could have worked. Wagster stated he did not point out
the frames to Lowe for the reason that the shop is not that big and because there
was "nothing in the world" to keep Lowe from seeing them.
True the following factors which the General Counsel notes in his well prepared
brief: Interrogation of Guffey; the timing of the discharge of Lowe; selection of
the organizer for discharge ; and the small size of Respondent 's shop, raise a sus-
picion that Lowe's discharge was discriminatorily motivated. But suspicion is not
proof and a finding of violation of the Act cannot be based on suspicion alone.
See Punch and Judy Togs, Inc., 85 NLRB 499. It is also noted that other than
the interrogation, the evidence in the record leads one to believe that Respondent
was not antiunion . Thus Lucy testified that when he was hired by Wagster, he
asked if Respondent ran a union shop. Wagster said no but told Lucy "the guys
had talked about a union and I am not against it."
On the other hand I am convinced as found above that Lowe did loaf on the
job, that he did not evince great concern about working for Respondent, and
that under the circumstances Respondent had the right to discipline him by dis-
charge. Respondent 's judgment cannot and should not be set aside merely because
there exists suspicion that Lowe was discriminatorily discharged.
Based upon the above and the record as a whole I am convinced and find that
Lowe was not discharged for the reason alleged in the complaint. Accordingly
it will be recommended that this allegation of the complaint be dismissed.
B. Alleged assistance and financial support to the Boilermakers
Ruth Adams, office manager of Boilermakers, Local No. 27, testified that on
September 13 she answered the office telephone and an anonymous caller asked
if it was possible for the Union to send a representative to the Respondent's shop
"to talk to the boys."
This message was ultimately given to Thomas Conway, district representative of
the Boilermakers International , whose duties include the organization of employees.
Conway, acting upon the message, called at the Respondent's shop at 9:30 a.m. on
September 16. After identifying himself, Conway informed Wagster that his em-
ployees wanted to be represented by a union , and requested that he be permitted
to talk to the employees during their lunch period to explain the Boilermakers
organization to them. Wagster told Conway that if his employees wanted to join
the Union it was their business ; furthermore , the Union they became affiliated
with was also their business . Wagster granted Conway permission to talk to the
employees.
The complaint alleges that Respondent communicated with the Boilermakers and
requested that union to send its representatives to the shop . In his brief, the
General Counsel, relying primarily on an affidavit in evidence received from em-
ployee Guffey in which he stated, "Jack Wagster's was the one who called the
Boilermakers out. He talked to all of us and said that if we wanted a union he
could get the Boilermakers out because he had a contract with them several years
before"; and upon the testimony of employees Lucy and Wyatt that Milton Wagster
told them his father called the Boilermakers to come to talk to the employees,
contends this constitutes assistance to the Boilermakers.
Guffey was called as a witness by the General Counsel. His testimony regarding
the appearance of the Boilermakers representative at Respondent's shop which he
gave in alternative versions is to say the least confusing , and not at all in accord
with the statement in his affidavit.
At one point Guffey testified:
He [Respondent] said something about the Boilermakers were supposed to
come out or they were coming out or had been out there. I don't know
whether they had been out there before that date to talk to him, but I re-
member the day that they came out to talk to us. Whether that was the
same day or anything else. . . .
At another point, after reading his affidavit, Guffey testified:
Q. (By Mr . Brown.) Would you tell us what Mr. Wagster said , if anything,
and what you said if anything?
A. He just said that he talked to the Boilermakers , or they called him in
some form, and that he thought that the Boilermakers were coming to the
shop.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Can you be a little more specific as to whether or not he said he did
call the Boilermakers?
A. I don't know whether he said he called them or whether they called him.
I find Guffey's testimony on this point worthless and will not base any finding
thereon. Nor can I make any finding of assistance to the Boilermakers based on
Guffey's affidavit. As noted by the court of appeals in N.L.R.B. v. Quest-Shon
Mark Brassiere Co., Inc., 185 F. 2d 285 (C.A. 2). ". . . prior inconsistent state-
ments are admissible not as affirmative evidence to prove the truth of what they
affirm, but only as matter tending to show that the witness is not credible, because
he has changed his story."
Employee Wyatt testified that on the day the Boilermakers representative met
with Respondent's employees, Milton Wagster walked by the place where he was
working and said "that they [Boilermakers representatives] were in the office and
that they wanted to talk to us in the office. Wyatt testified further that
Milton Wagster said that the representatives would be back at noon to talk with
the men, and that his "Pop" called them out there. Lucy testified that at about
9 a.m. on that morning, Milton Wagster came up to the jig where he was working
and said, "Well, you boys wanted a union in here so Pop has called the Boiler-
makers out here and that is one of the guys up there in the office now."
Milton Wagster is the son of T. C. Wagster, the proprietor of Respondent. He
was a production employee at the shop full time during the summer, and after
September 25 continued to work on a part-time basis when he returned to college.
Milton lived at home with his parents 5 and usually rode to work with his father.
Called as a witness by the General Counsel, Milton testified that on certain oc-
casions he discussed the business of the shop with his father. He denied that they
talked about union matters. The General Counsel contends in effect that Milton
is a representative of management. Under Section 2(3) " . any individual
employed by his parent or spouse ." is not an employee within the definition
of the Act. Indeed, the Board has had a long-standing policy of excluding from
an appropriate unit employees who have a close familial relationship with officers
of a corporate employers However, it does not follow that such relationship
between employer and employee ipso facto makes the employee a management
representative, and unless the record contains proof adduced by the General Counsel
to sustain his contention, it must be held without merit.
Wagster admitted that in December 1957 Milton signed employees' paychecks.
I agree with Respondent, however, as pointed out in his brief, that this evidence
is too far removed in time to be of probative value as to Milton's status in Sep-
tember 1957, or prior thereto. Wagster also testified that Milton was familiar
with the production requirements of the shop. Such knowledge was not peculiar
to Milton for, as Wagster testified, the "majority of the men in the shop" had
the same knowledge. The General Counsel did not adduce other evidence of im-
plementation of this knowledge by definite acts performed by Milton in a "repre-
sentative" capacity. I find General Counsel's contention regarding Milton's
"management representative" status to be without merit. Thus, the testimony of
Lucy and Wyatt regarding what Milton told them "Pop" did about calling the
Boilermakers to come to the shop to organize the employees is hearsay, and no
finding will be based thereon. Nor do I credit Lucy's testimony that Conway was
in Wagster's office for about an hour.
At 12 o'clock Conway and William Placht, business manager of Local 27, re-
turned to the Respondent's shop. Most of the employees were eating their lunch
in the back of the shop, several went out for lunch. Conway waited until the
latter employees returned. He told the employees he understood they wanted a
union in the shop. He then explained certain union benefits and talked at length
about the insurance policy issued to members. During the course of the meeting
several employees inquired how much of a raise in wages the Boilermaker repre-
sentatives could get for them. Conway replied they could not guarantee any
amount but asked what the employees felt would be a fair request. Some em-
ployees then stated they wanted more time to think about joining the Boilermakers
and asked the union representatives to come back after working hours. The
meeting broke up about 12:30 when the employees returned to work.
6 IIis mother was employed at the shop as office manager.
s See Page Boy Company, Inc., 107 NLRB 126 ; P. A. Mueller and Sons..Inc., 105
NLRB 552.
ABC MACHINE AND WELDING SERVICE 955
At 4:30 p .m. Conway and Placht again met the employees on the lot outside
the shop. 7 Conway read the standard form Boilermakers agreement 8 to the meet-
ing and answered questions . Conway testified credibly that he told the employees
he could not guarantee them any definite wage increase but that he "had met
Mr. Wagster and he seems to be a pretty decent sort of fellow and [I] felt rea-
sonably sure that [we] could get them a 5 or 10 cents an hour increase and
possible the payment of the initiation with Wagster concerning the standard form
denied that he had any discussion with Wagster concerning the standard form
agreement or the payment of initiation fees and dues prior to this meeting. The
employees participated in the meeting and their questions were answered. Upon
the completion of the discussion , Conway inquired if the employees were ready
to vote on the question of joining the Boilermakers and having that organization
represent them in negotiations with the Respondent . The employees agreed to
vote by a show of hands. Practically all of the employees voted in favor of
joining the Union . Conway testified that he observed that several employees did
not raise their hands and he called for contrary votes, without result. A second
vote on whether to accept the standard form agreement and have the negotiators
start off by asking for a 10-cent wage increase was then taken with the result that
the majority favored this procedure . The employees also agreed not to have an
employee committee go in with the union representative on the negotiations.
Conway testified that he told the employees "that under no conditions would a
contract be signed with their employer until the majority had approved it." Mem-
bership cards were distributed to the employees and the meeting concluded about
5:45 p.m.
On September 19, Conway and Placht advised Wagster , in his office , that the
majority of employees voted to have the Boilermakers represent them in future
negotiations with Respondent and they left with him a blank standard form
agreement.
Conway returned on September 20 and met with Wagster and his wife. While
Conway was in Wagster 's office he was handed the signed membership cards, which
had previously been distributed to the employees and which he showed to Wagster.
Conway testified that over a period of about 3 hours they negotiated the standard
form contract which included a 5-cent-an-hour wage increase across the board
with a minimum of $1.65 per hour. Conway testified that on the matter of wages,
he argued for a 10-cent -an-hour raise and in addition payment by the Respondent
of the employees ' initiation fees and first month's dues to the Boilermakers as a
part of their wages. Wagster testified that he told Conway he could not see why
he should pay the initiation fees and dues of anyone joining a union . They con-
tinued their argument about the wages and agreed on a 5-cent raise across the
board and the payment of the initiation fees and dues.
At noon Conway met the employees in the shop , advised them that he completed
negotiations with Wagster, and talked about the clauses on wages, hours of work,
and vacations . They voted to accept the agreement . Conway then called for
nominations for shop steward . Guffey was nominated by Milton Wagster and
Wyatt by Lucy . Guffey was elected. Lucy talked to Conway and indicated that
another employee should be elected to assist and serve along with Gulley. Wyatt
was elected to this position denominated "committee man."
Conway returned to Wagster 's office, where the contract was signed by Wagster
and Conway and then taken by the latter to Local 27's office to type in the name
of the company , the wage rates , the effective and expiration dates.9 Thus it
appears clear from the findings hereinabove made that the Respondent did not
recognize and negotiate a contract with the Boilermakers until proof of majority
was presented to it.
While I have found that Respondent granted permission to the Boilermakers to
talk to the employees in the shop on September 16, this does not constitute unlaw-
ful assistance . The General Counsel did not adduce any evidence that Respondent
denied a similar request by any other union or that rival unions were treated in a
disparate manner.
v Some of the employees were on the lot, others were in the side door of the building.
It appears that Conway and Placht remained on the lot.
8 This included , among other clauses, a union-security clause, overtime pay, paid holi-
days, showup time , a grievance and arbitration procedure , paid vacations , dues, checkoff,
wages, and duration of the agreement.
g Although the contract was executed on September 20, the effective date appears as
September 19. Conway explained that this date was agreed to in the course of negotia-
tions with Wagster and was the start of the workweek.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
True, the Boilermaker representative ventured an opinion to the employees at
the meetings that they thought they could obtain certain benefits from Wagster,
because as they stated he appeared to be a reasonable person to deal with. No
proof was adduced by the General Counsel that the Boilermaker representatives
were speaking in behalf of Respondent or that anything the representative said
could be attributed to Respondent . The record is barren of evidence that Re-
spondent had knowledge of what the Boilermaker representatives were going to
tell the employees or that it adopted and ratified such statements.
I have heretofore found that Milton Wagster was not a representative of man-
agement during the times material herein . While Board policy would exclude
Milton from an appropriate unit , it does not follow , as the General Counsel con-
tends, "if a child of a parent-owner cannot vote in Board elections , a fortiori, such
individual cannot lawfully participate in other union activity." I find no merit in
this contention.
The General Counsel in his brief contends that payment by the Respondent of
the initiation fees and first month's dues of all its employees to the Boilermakers
is a per se violation of Section 8(a)(2).
The payment of the initiation fees and first month's dues as previously found
was one of the bargaining demands of the Union and was agreed to by Respondent
only after full negotiations on the question of wages. In Marathon Electric Mfg.
Corp., 106 NLRB 1171, cited by the General Counsel in support of his contention,
as distinguished from the situation herein, the union officers requested the Company
"to advance the employees money" to cover the initiation fees and dues, at a time
when the union did not represent a majority of employees , when it was not obli-
gated to bargain with the union, and no formal meetings had been held between
the company and the union . The Marathon Electric case is inapposite . In Jack
Smith Beverages , Inc., 94 NLRB 1401, rival unions were attempting to organize
the employees when the company without bargaining granted one of the unions,
which it assisted also in other respects, its request for checkoff privileges and initi-
ation fees and dues , without deducting same from the employees ' wages. This case
is inapposite.
I agree with the position taken by Respondent in its brief that since the agree-
ment to pay this money resulted from the bargaining process, that since it was in
substance a substitute for a wage increase , that since it occurred after the Union
had obtained a majority and after the fact of recognition , it was not assistance to
the Boilermakers.
Although on its face the inception of activities by the Boilermakers takes on
a suspicious appearance , I find, based upon the foregoing and the entire record,
that the General Counsel has not sustained his burden of proving by a pre-
ponderance of the evidence that Respondent has committed a violation of Sec-
tion 8 (a)(2) and will accordingly recommend that this allegation of the complaint
be dismissed,
It is undisputed that Wagster interrogated Guffey about the IAM campaign and
the employee's name who was proselytizing in its behalf. Such conduct engaged
in by an employer himself is violative of Section 8(a)(1). Keco Industries, Inc.,
118 NLRB 317, 329. However, since this was an isolated act on Respondent's
part , in my opinion it will not effectuate the policies of the Act to issue a remedial
order based on such conduct alone . Accordingly it will be recommended that the
complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
1. T. C. Wagster, d/b/a ABC Machine and Welding Service, St. Louis, Missouri,
is engaged in and at all times material herein has been engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. District No. 9, International Association of Machinists , AFL-CIO, and Inter-
national Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers
and Helpers , AFL-CIO, and International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths , Forgers and Helpers, Local No. 27, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(2) and (3) of the Act.
[Recommendations omitted from publication.]