Bell Aircraft Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1953

105 N.L.R.B. 755 (N.L.R.B. 1953)

BELL AIRCRAFT CORPORATION 755
We find that all parts room employees of the Employer at
its Seattle plant, including head parts clerk, parts clerks,
shipping and receiving clerks, pickup and delivery driver,
shop clerk, and toolroom clerk, but excluding all other em-
ployees, mechanics, salesmen, office clerical employees,
guards, professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication.]
BELL AIRCRAFT CORPORATION and HOWARD E. NIEBER-
GALL
LOCAL 501, INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO and HOWARD E. NIEBERGALL. Cases Nos.
3-CA-593 and 3-CB-158. June 26, 1953
DECISION AND ORDER
On March 26, 1953, Trial Examiner Albert P. Wheatley
issued his Intermediate Report in this consolidated proceeding,
finding the Respondent Bell Aircraft Corporation, herein
called the Employer, and Respondent Local 501, International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, herein called the Union, had engaged
in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General
Counsel, the Employer, and the Union filed exceptions to the
Intermediate Report. The General Counsel and the Employer
also filed supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, the briefs, and the entire
record in these cases, and hereby adopts the Trial Examiner's
findings , conclusions , and recommendations with the following
additions and modifications.
1. We agree with the Trial Examiner that the Employer
violated Section 8 (a) (1) and 8 (a) (3), and the Union Section 8
(b) (1) (A) and 8 (b) (2) by bringing about the discriminatory
demotion and transfer of Howard E. Niebergall in June 1952.
As indicated in the Intermediate Report, Niebergall with-
drew from the Union-sponsored strike of 1949 while it was
still in progress. Niebergall, who had been a member of the
Union during the strike, thereafter resigned from the Union
but was not readmitted when he applied for membership in
December 1950. In returning to work before the termination
105 NLRB No. 130.
7 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the strike Niebergall was exercising one of the rights
guaranteed in Section 7 of the Act -- that of refraining from
engaging in concerted activity. It is clear that by demoting
Niebergall the Union and the Employer were punishing and
coercing Niebergall in violation of Section 8 (b) (1) (A) and 8
( a) (1), respectively , for his reliance on this protected right.
It is also clear that the demotion constituted discrimination
in regard to Niebergall ' s terms and conditions of employment
and tended to encourage union membership and, in particular,
full and loyal participation in such concerted activities as
strikes. Accordingly , we find , as did the Trial Examiner,
that the Employer thereby violated Section 8 (a) (3) and 8
(a) (1) of the Act. As the Union caused the Employer to
discriminate against Niebergall in violation of Section 8 (a)
(3) of the Act, we also find in agreement with the Trial
Examiner that the Union violated Section 8 ( b) (2) and 8 (b)
(1) (A) of the Act.
2. The General Counsel excepts to the dismissal at the
hearing of those parts of the complaints which alleged that
the Employer and the Union respectively violated Section 8
(a) (1) and 8 ( a) (3) and Section 8 (b) (1) (A) and 8 (b) (2) by
maintaining and giving effect to the clause in their contract
providing that the Employer will not promote an employee to
a supervisory position while charges are pending against him
in the Union . The Trial Examiner found, and we agree, that
there was no evidence herein to support the General Counsel's
contention that the parties gave effect to the clause in question.
He also held that the Board ' s riilingin a 1952 decision ' involv-
ing the same parties and contract wig diapositive of the issue
herein as the Board then found that the clause was invalid and
ordered the parties to cease givingA effect thereto. The
General Counsel argiies, however, that the mere existence
and continuation of the clause in the contract acts as a
threat to the rights of employees guaranteed in Section 7 of
the Act, and is therefore violative of Section 8 (a) (1) and
Section 8 (b) (1) (A). He further contends that the parties
inteiidea to enforce the clause and consequently violated
Section 8 ( a) (3) and 8 (b) (2) as well . We find merit in the
General Counsel ' s exception to the extent of agreeing that the
physical presence of the clause in the contract , regardless of
the parties ' intent to enforce it, violated Section 8 (a) (1) and
Section 8 (b) (1) (A).2 Accordingly , as we have already in the
earlier Bell Aircraft decision ordered the contracting parties
to cease and desist from giving effect to the clause , we shall
confine our order in the instant cases to the requirement
that the clause be deleted from the contract . Absent proof
iBell Aircraft Corporation , 101 NLRB 132.
'Contrary to our dissenting colleague, we cannot view the unlawful discriminatory effects
of this clause, clearly demonstrated in the earlier Bell Aircraft cases, as either improbable
or speculative While the parties , of course , at all times had the right to execute a valid
union-security clause, the instant clause goes far beyond the permissible limitations con-
tained in the proviso to Section 8 ( a) (3).
BELL AIRCRAFT CORPORATION 757
of any attempt by the parties in the instant cases to utilize
the unlawful provision, we do not find, however, that the
Respondents' conduct in this regard violated Section 8 (a) (3)
and 8 (b) (2).'
3. The General Counsel also excepts to the Trial Examiner's
failure to include in his recommended order and notice
language pertinent to his finding that the Union independently
violated Section 8 (b) (1) (A) when it warned employee Black
that continued association with Niebergall and other returnees
would bring about possible economic reprisals. We find
merit in this exception and shall therefore order the Union to
cease and desist from such threats.
ORDER
Upon the entire record in these cases and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that:
A. Respondent Bell Aircraft Corporation , its officers,
agents, successors, and assigns, shall:
(1) Cease and desist from:
(a) Encouraging membership in Local 501, International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO, or in any other labor organization,
by unlawfully discriminating in regard to terms and conditions
of employment.
(b) In any like manner interfering with, restraining, or
coercing its employees in the exercise of their right to engage
in or to refrain from engaging in any or all of the concerted
activities specified ,in Section 7 of the Act, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
(c) Continuing to include in its contract with the Respondent
Union the clause which prohibits it from promoting to a
supervisory position any employee against whom charges
are pending in the Union.
(2) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Howard E. Niebergall immediate and full rein-
statement to his former job of crew chief without prejudice to
his seniority or other rights and privileges.
(b) Jointly and severally with Respondent Union make whole
Howard E. Niebergall for any loss of pay he may have suffered
by reason of the discrimination against him, in the manner
described in the Intermediate Report.
(c) Upon request make available to the Board or its agents
for examination and copying all records necessary or useful to
the analysis of the amount of back pay due under the terms of
this Order.
3Jandel Furs. et al. , 100 NLRB 1390; Port Chester Electrical Construction Corporation,
97 NLRB 354.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Delete from its contract with the Respondent Union the
clause which prohibits it from promoting to a supervisory
position any employee against whom charges are pending in
the Union.
(e) Post in its plant in Wheatfield, New York, copies of the
notice attached hereto and marked "Appendix I."4 Copies of
such notice , to be supplied by the Regional Director for the
Third Region, shall, after being duly signed by a representative
of the Respondent Employer, be posted immediately upon
receipt thereof and maintained by it for sixty ( 60) consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not
altered , defaced, or covered by other material.
(f) Notify the Regional Director for the Third Region, in
writing, within ten (10 ) days from the date of this Order,
what steps it has taken to comply therewith.
B. The Respondent Union, Local 501, International Union,
United Automobile, Aircraft & Agricultural Implement Workers
of America, CIO, its officers, representatives, and agents,
shall:
(1) Cease and desist from:
(a) Causing or attempting to cause Respondent Bell Aircraft
Corporation, its officers , agents, successors, or assigns to
discriminate in any manner against its employees in violation
of Section 8 (a) (3) of the Act.
(b) Threatening employees with economic reprisals for
continuing to associate with employees who returned to work
during the strike of 1949, or in any other manner restraining
or coercing employees of Bell Aircraft Corporation, its
successors or assigns , in the exercise of their rights to engage
in or to refrain from engaging in any or all of the concerted
activities specified in Section 7 of the Act, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
(c) Continuing to include in its contract with the Respondent
Employer the clause which prohibits the Employer from pro-
moting to a supervisory position any employee against whom
charges are pending in the Union.
(2) Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Notify the Respondent Employer in writing, and furnish
a copy to Howard E. Niebergall, that it withdraws its objections
to the employment of said Niebergall as crew chief , and that
it has no objections to the employment of said Niebergall as
crew chief.
(b) Jointly and severally with the Respondent Employer
make whole Howard E. Niebergall for any loss of pay he may
4In 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 "
BELL AIRCRAFT CORPORATION 759
have suffered by reason of the discrimination against him,
in the manner described in the Intermediate Report.
(c) Delete from its contract with the Employer the clause
which prohibits the Employer from promoting to a supervisory
position any employees against whom charges are pending in
the Union.
(d) Post at its places of business in the vicinity of Buffalo,
New York, copies of the notice attached hereto and marked
"Appendix II."5 Copies of such notice, to be furnished by the
Regional Director for the Third Region, shall, after being duly
signed by a representative of Respondent Union, be posted by
it immediately upon receipt thereof and maintained for sixty
(60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by other material.
(e) Additional copies of Appendix II, to be furnished by the
said Regional Director, shall be signed by a representative of
Respondent Union and forthwith returned to the Regional
Director. These notices shall be posted, Respondent Employer
willing, on the bulletin boards in the Employer's plant where
notices to employees are customarily posted.
(f) Notify the Regional Director for the Third Region, in
writing, within ten (10) days from the date of this Order, what
steps it has taken to comply therewith.
Member Murdock, dissenting in part:
I would not order the Employer and the Union to delete
from their contract the clause which prohibits the Employer
from promoting to a supervisory position any employee
against whom charges are pending in the Union. I cannot
agree with the finding in the earlier Bell Aircraft decision
by a panel (of which I was not a member) that the language of
this clause is per se invalid. Under its terms the Union could
lawfully prevent an employee's promotion by bringing charges
against him because of his failure to pay dues. While it is
conceivable that the clause might also cover situations which
are proscribed by the Act, the only proper course for the
Board is to abstain from passing upon the clause in vacuo and
to confine its attention and findings to specific applications
of the clause. Properly interpreted and lawfully applied, the
clause certainly does not, as the majority contend, go beyond
the statutory rights accorded employers and unions in the
proviso to Section 8 (a) (3).
I cannot stress too emphatically my convictionthat Congress
intended employers and unions to be free to work out their
own contractual arrangements without Board intervention
unless they are clearly violative of the Act. To rule out the
clause as per se invalid merely on the speculative possibility
that it might be illegally invoked constitutes, in my opinion,
5See footnote 4, supra.
291555 0 - 54 - 49
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an unwarranted interference with the collective- bargaining
process.
Member Peterson took no part in the consideration of the
above Decision and Order.
APPENDIX I
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, as amended, we hereby notify
you that:
WE WILL NOT encourage membership in Local 501,
International Union, United Automobile, Aircraft & Agri-
cultural Implement Workers of America, CIO, or in any
other labor organization by discriminating in regard to
terms and conditions of employment or in any like
manner interfere with, restrain , or coerce employees in
the exercise of their rights specified in Section 7 of the
Act, except to the extent that such right may be affected
by an agreement requiring membership in a labor organi-
zation as a condition of employment , as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer Howard E. Niebergall immediate and
full reinstatement in his former job as crew chief without
prejudice to his seniority or other rights and privileges
previously enjoyed and we will make whole said employee
for any loss of pay suffered as a result of the discrimina-
tion against him.
WE WILL delete from our contract with the aforesaid
union the clause which prohibits the employer from
promoting to a supervisory position an employee while
charges are pending against him in the union.
BELL AIRCRAFT CORPORATION,
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.
BELL AIRCRAFT CORPORATION 761
APPENDIX II
NOTICE
TO ALL MEMBERS OF LOCAL 501, INTERNATIONAL UNION;
UNITED AUTOMOBILE AIRCRAFT & AGRICULTURAL .
IMPLEMENT WORKERS OF AMERICA, CIO, AND TO ALL
EMPLOYEES OF BELL AIRCRAFT CORPORATION
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, as amended, we hereby notify
you that:
WE WILL NOT threaten employees with economic
reprisals for continuing to associate with employees who
returned to work during the 1949 strike, or in any other
manner restrain or coerce employees of Bell Aircraft
Corporation , its successors or assigns , in the exercise
of their right to refrain from engaging in concerted activi-
ties as guaranteed them by Section 7 of the Act except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL NOT in any manner cause or attempt to
cause Bell Aircraft Corporation , its officers , agents,
successors , or assigns , to discriminate against any em-
ployee in violation of Section 8 (a) (3) of the Act.
WE WILL notify Bell Aircraft Corporation in writing,
and furnish a copy to Howard E. Niebergall, that we with-
draw our objections to the employment of said Niebergall
as crew chief and we will make whole said Howard E.
Niebergall for any loss of pay suffered as a result of the
discrimination against him.
WE WILL delete from our contract with the aforesaid
employer the clause which prohibits it from promoting to
a supervisory position any employee against whom charges
are pending in the union.
LOCAL 501, INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, CIO,
Labor Organization.
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.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
Howard E. Niebergall, an employee of Bell AircraftCorporation i (herein called Respondent
Bell), was demoted on June 24, 1952, from his position as crew chief (a nonsupervisory
position) and consequently suffered a loss of pay The principal questions for determination
herein are. Did Respondent Bell engage in unlawful discrimination by demoting Niebergall
(violate Section 8 (a) (1) and 8 (a) (3) of the National Labor Relations Act, as amended, herein
called the Act), and did Respondent Local 501, International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America, CIO, here sometimes called the
Union, unlawfully cause such discrimination (violate Section 8 (b) (1) (A) and 8 (b) (2) of the
Act). The facts regarding Niebergall ' s demotion follow.2
Contractual relations between the Respondents , the Union , and Respondent Bell have
existed since 1943 . The current contract (executed November 10, 1950, and effective until
January 15, 1954), and apparently the previous ones, provides for a union shop and checkoff.
On June 13, 1949, the employees went on strike which was terminated October 17, 1949
Niebergall , a member of Respondent Union at the time of the strike , participated in the
strike but abandoned it and returned to work before it was terminated . Thereafter Niebergall
was given an opportunity to resign from the Union which he did He was not thereafter
readmitted to membership in the Union, although he sought such in December 1950. Never-
theless, pursuant to the union -security clause of the contract between Respondent Bell and
the Union , dues have been deducted from his pay.
Since the termination of the strike, the Union has sought to discipline those employees who
returned to work during the strikes and has indicated to employees that Respondent Union is
a strong organization whose favor and help is to be sought and whose opposition is to be
avoided As noted in the case cited in footnote 3, on February 1, 1951, Respondent Union
wrote Respondent Bell requesting that certain named employees not be promoted during the
pendency of charges in the Union against them This record reveals that all of the employees
named had returned to work during the strike and that Niebergall was one of those mentioned
This record further reveals that the union representatives cautioned employees not to have
anything to do with those employees who had returned to work during the strike and that if
they did associate with the "scabs" or "returnees"4 they would incur the disfavor of the
Union and possibly economic reprisals. For example, Union Representative Kings cautioned
employee Black in June 1952 to cease conversing with Niebergall because Niebergall was
a "scab," and indicated that if he did not cease conversing with hint, he (Black) would create
an "unfriendly atmosphere" for himself and "might not be able to be up-graded." a Union
Representative Warren also cautioned Black against conversing with Niebergall and indicated
that if he continued talking with Niebergall he might have a "hard time."
iRespondent Bell Aircraft Corporation is a New York corporation engaged in the manu-
facture, sale, and distribution of aircraft, guided missiles, and related products. During the
course of its business operations it makes substantial purchases and sales outside the State
of New York, a considerable portion of the sales being to the United States Government The
Board's jurisdiction is not contested. This proceeding concerns Respondent Bell's plant at
Wheatfield, New York
2 The testimony concerning the incidents involved in this proceeding is thoroughly con-
flicting and contradictory and the findings of fact made herein result from my attempt to
reconcile the evidence and determine what probably occurred. The findings of fact are based
upon my consideration of the entire record and my observation of witnesses All evidence on
disputed points is not described so as not to burden unnecessarily this report. However, all
has been considered and, where required, resolved In determining credibility the under-
signed has considered inter alia: The demeanor and conduct of witnesses; their candor or
lack thereof; their apparent fairness, bias, or prejudice; their interest or lack thereof; their
ability to know, comprehend, and understand matters about which they have testified; whether
they have been contradicted or otherwise impeached; and consistency and inherent proba-
bility of the testimony.
iSee Bell Aircraft Corporation, 101 NLRB 132
4 Those who returned to work were called "scabs" by the Union and "returnees" by the
Company The terms are used interchangeably herein The record shows they are synony-
mous.
5 The union representatives referred to in this report, by name or otherwise, were duly
authorized representatives of Respondent Union whose conduct is chargeable to the Union
There is no issue herein concerning this matter.
6King's denial that he told Black that he "might not be able to be up-graded if he associated
with Niebergall, or words conveying that meaning" is not credited by the undersigned
BELL AIRCRAFT CORPORATION 763
In June 1952 there was an opening for the nonsupervisory position of crew chief on the
third shift (shift operating from 1 a. m. to 8 a. m.). After the usual procedure for the selection
of employees to fill such a vacancy, Niebergall, an employee on the second shift classified
as milling machine operator-all around, was selected by Respondent Bell for this position.
It was a promotion for Niebergall and it became effective about 1 a. m. on June 24, 1952.
Niebergall reported to the department foreman, Frank Meiler, shortly before 1 a. m. on
June 24 and was assigned to do "set ups" for a group of employees classified as milling
machine operators-simple He undertook his assignment Shortly after the shift began
employees on the shift, including those working directly with Niebergall, complained to
Union Representatives Catanzaro and Marranca about Niebergall's assignment as crew chief
These employees claimed that Niebergall was a scab, a super scab, was boastful about being
a scab, was not fit for the job, was appointed to the job out of seniority, was careless and
lacked cooperation, and that a third-shift man should have the job These employees threat-
ened to walk out if Niebergall remained as crew chief. Catanzaro and Marranca told the
employees to continue on their jobs and that they (the union representatives) would see
Respondent Bell's officials and straighten the matter out. About 1:15 a. m. Catanzaro and
Marranca left the department (department 43) and began a round of management, trying to
get Niebergall removed, at least for that shift. Catanzaro and Marranca first called upon
Foreman Meiler They told Meiler the employees in the department concerned were very
upset about Niebergall becoming a crew chief because he was a "scab" 7 and that the em-
ployees were threatening to walk out They asked Meiler to remove Niebergall from the
position of crew chief Meiler refused to remove Niebergall, stating he lacked authority to
remove him and that "things looked pretty quiet "
After Meiler's refusal to remove Niebergall, Catanzaro, Marranca, and other repre-
sentatives- of the Union called upon John Dwyer, Respondent Bell's labor relations repre-
sentative on the third shift. They arrived in Dwyer's office about 2:15 a. m. and left about
3:30 a. in. The union representatives told Dwyer the men in the department concerned were
upset because a "scab" from the second shift (Niebergall) had been appointed crew chief
and that the men were threatening to walk out The union representatives suggested that
Niebergall be removed from the job of crew chief and be put on some other job for the rest
of the shift and that the matter be referred to a committee of union and company officials,
which meets during the day shift. Dwyer, in the presence of the union representatives,
talked, via telephone, with Joe Harnisch, superintendent on the third shift, and told Harnisch
the Union wanted Niebergall taken off the crew chief job for the night and that the men were
threatening to walk out if Niebergall remained as crew chief Harnisch indicated Niebergall
had been properly promoted and was qualified to hold the job and refused to remove Nieber-
gall Dwyer told the union representatives Harnisch's decision and suggested that the union
representatives persuade the men not to walk out and refer the matter to the day-shift
officials The union representatives indicated to Dwyer that they would try to stop the
walkout, but that the men were ready to walk out unless Niebergall was removed 8
7 Taken from the testimony of Meiler which the undersigned credits Catanzaro testified he
told Meiler the men were threatening to walk out because they couldn't get along with Nieber-
gall and that the men thought there "was other fellows that had more seniority and entitled
to the job." Meiler testified Catanzaro "asked me to take Niebergall off the job because
he was a scab and that the men didn't like him and that they might walk out " Meiler further
testified:
Q During the time that you talked with Catanzaro did he refer to any other matter
about Niebergall, other than the fact that Niebergall was a scab9
A No, I don't recall
Q Didn't he say that the men didn't like him?
A. He said the men didn't want to work with him
Mr. Lipsitz: No more questions
Trial Examiner Wheatley: Mr. Winch?
Q (By Mr. Winch) Mr. Meiler, specifically did Catanzaro at any time during the
intervals when he talked to you on the morning in question raise any question as to
Niebergall's seniority9
A. No.
Q The question of seniority was not discussed by any union representative9
A Not with me, no.
8 The above statement of facts is based primarily upon the testimony of Dwyer. Catanzaro's
and Marranca's testimony not consistent therewith is not credited by the undersigned.
7 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After leaving Dwyer ' s office, Union Representatives Catanzaro and Marranca called upon
Superintendent Harnisch , presented the problem to him, indicating , inter alia, that a question
of seniority was involved , and asked him to remove Niebergall at least for the rest of the
shift and have the matter referred to the day - shift committee of union and company officials
Harnisch refused to remove Niebergall from the crew chief ' s job Harnisch indicated he did
not believe the resentment against Niebergall was so great that the men would walk out, but
if they did there was nothing he could do about it
Leaving Harnisch , Catanzaro and Marranca returned to the department involved about
4 a. m. They again conferred with Foreman Meiler and asked him to remove Niebergall
Meiler again refused
At 4:12 a. m. the luncheon recess for the third shift began Immediately all the employees
in the department involved including Union Representatives Catanzaro and Marranca , except
supervisors , Niebergall , and one probationary employee , walked off the job and stayed away
for the remainder of the shift The record reflects the union representatives made little or
no effort ( at most only a passive effort ) to stop the employees from walking off and that all
the employees involved in the walkout were union members . Approximately 90 employees
walked out.
At approximately 8:30 a. m. Arthur Connelly, the then acting manager of labor relations
for Respondent Bell, found out about the early morning incidents on the third shift and ar-
ranged for a meeting with the shop committee of Respondent Union Such a meeting took
place between about 10 a. m. and noon and the parties discussed the problem at great length.
The evidence is conflicting as to whether the union representatives protested Niebergall's
promotion solely because he was a "scab " or "returnee ," whether they protested only on
the grounds that he was incompetent to perform the job and that there were other employees
who had seniority that should have merited them the job that Niebergall was given ; whether
they protested on all of these grounds, or whether they protested because he was a "scab"
or "returnee" and suggested the other matter ( incompetence and seniority ) as an excuse
which Respondent Bell could use to relieve Niebergall of his duties as crew chief without
revealing the true reason (as an excuse to conceal the fact that he was being relieved because
he returned to work during the 1949 strike ). The undersigned believes and finds that the
primary reason voiced by union representatives was Niebergall ' s having returned to work
during the 1949 strike . Since this was at least one of the chief reasons why the Union sought
Niebergall ' s demotion and since the undersigned believes that this was not a legitimate
reason for seeking Niebergall ' s demotion , even if coupled with other reasons which were
not unlawful , 9 the undersigned is not resolving the other conflicts noted immediately above.
The evidence is also conflicting as to whether union representatives at this meeting indicated
there would be further walkouts if Niebergall remained as crew chief The undersigned
believes and finds that the preponderance of the credible evidence establishes that the union
representatives did so indicate . This meeting ended about noon with Connelly refusing to
demote Niebergall
In the early afternoon , Connelly discussed the problem with other officials of Respondent
Bell and it was decided that , in view of the probability of further walkouts if Niebergall
remained as crew chief , Niebergall would be demoted
Officials of Respondent Bell and the union shop committee met again at about 3 30 p.m
on June 24 , 1952, and Connelly then announced that "because of the fact Mr Niebergall was
unable to perform his duties, in that the men wouldn't work with him, and therefore, he was
unable to perform his duties, and because of the fact that we had a walkout during the night
in protest of his appointment , and because of the eminence of further walkouts throughout
the plant, that Mr Niebergall would be removed effective immediately "
The employees involved herein returned to work at 1 a. m. on June 25, 1952 Niebergall
also reported at that time and was informed by Foreman Meiler that he was to return to the
second shift as a milling machine operator - all around That same afternoon Niebergall
9It is well settled that where an unlawful reason is a motivating cause, the coexistence of
separate lawful reasons do not eliminate the unlawful aspect of the conduct. See N. L. R B.
v. Remington Rand Co., 94 F 2d 862, 872 (C. A. 2) cert den. 304 U S. 576 and 585; Kingston
Cake Co . 97 NLRB 1445, Al Massera Inc., 101 NLRB 837, is not inconsistent with the Kings-
ton Cake Co. case. In Al Massera Inc , the Board recognized the duty incumbent upon a
Respondent to "disentangle " the legitimate reason from the unlawful reason and affirma-
tively establish, if it could , that it was motivated in its action by the former. It held that the
Union and the Company had effectually performed the "disentanglement," proving that the
reason for loss of membership by the employee, and consequent discharge, was nonpayment
of dues and not "dual unionism."
BELL AIRCRAFT CORPORATION 765
reported to his old position. A few days later Edward Golen, a milling machine operator-all
around on the third shift who had less of the required seniority than Niebergall and who was
not a "scab" or "returnee," was appointed crew chief in Niebergall's place There is no
evidence of protests because of Golen's promotion.
At the meeting on the morning of June 24, 1952, Connelly pointed out to the union repre-
sentatives that the walkout earlier that date was in violation of the contract. 10 By letter dated
June 25, 1952, Connelly advised the Union:
The current contract between Bell Aircraft Corporation and Local 501 UAW-CIO
dated November 10, 1951, was breached on Tuesday morning June 24, 1952 . This breach
of contract occurred when 93 employees of Department 43 engaged in a walkout at
4:12 a. m.
This work stoppage and walkout was in direct violation of Article VIII Paragraph 55
You are requested to discipline the employees who participated in the "unauthorized
work stoppage" as contemplated in Para. 55.
You are further requested to notify this office of the action taken.
The Union did not reply to Connelly's letter and no employee was disciplined for participating
in the walkout.
Conclusions
It is apparent from the facts outlined above that Respondent Bell was reluctant to demote
and transfer Niebergall, but finally, in consequence of pressure from Respondent Union,
acceded to the demand of the Union, and there is no doubt that the demotion and transfer
were traceable to the Union's resentment of Niebergall because he had refused to participate
in strike action sponsored by the Union. Accordingly, the demotion and transfer constituted
discrimination within the interdiction of the Act 11 See Continental Oil Company v
N. L. R. B., 113 F. 2d 473, 484 (C. A. 10), and Southeastern Pipe Line Company, 103 NLRB
341 But, say Respondents, even if the demotion and transfer were brought about for reasons
other than those permitted by the Act, still there can be no finding of a violation of the Act
because, in the light of the union-security and checkoff clause of the contract,12 there is no
proof that the demotion and transfer, even if discriminatory, encouraged membership in the
Union 13 Reliance is placed upon the decision in N. L. R. B. v International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, 196 F. 2d 1 (C. A. 8).
The undersigned is of the belief that this contention must be resolved adversely to Re-
spondents Subsequent Board law and the weight of court law adopt a contrary view See
N. L. R. B. v. Radio Officers' Union, 196 F. 2d 960 (C. A. 2), N. L. R. B. v Jarka Cor-
poration, 198 F. 2d 618 (C. A. 3), General Motors Corp., 59 NLRB 1143, enforced 150 F. 2d
201 (C. A. 3), and Local 57, United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, 102 NLRB 111 Respondent Union's success in causing Respondent Bell to
10 Article VIII, paragraphs 55 and 56, of the contract provide:
55. Local 501, UAW-CIO hereby agrees to abide by the provisions of this contract
between the parties. The Union further agrees not to engage in any unauthorized work
stoppage and shall discipline any of its members who take part in an unauthorized work
stoppage. Any such discipline shall be in accordance with the International UAW-CIO
constitution.
56. The Union agrees not to strike until the provisions for the settlement of griev-
ances provided for in the contract have been complied with and then only after the steps
provided in the International UAW-CIO constitution have been followed.
iiSection 8 (a) (3) of the Act, in pertinent part, forbids an employer "by discrimination in
regard to hire or tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization." Section 8 (b) (2) prohibits a union
from causing an employer to violate Section 8 (a) (3).
12 The contract provides for a union shop and for checkoff of dues and there is no claim
herein that these provisions of the contract fall beyond the scope permitted by the Act.
13 The Act provides an exception to the ban against discrimination "to encourage or
discourage" union membership where a valid union-security agreement is in existence
and action against an employee is taken pursuant thereto. There is no claim herein that
the discrimination against Niebergall was because of nonmembership in the Union or non-
payment of union dues in the face of a valid union- security agreement.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impose penalties on employees whose attitude was objectionable to the Union could not fail
to impress all employees with the fact that the Union was a potent organization whose
assistance was to be sought and whose opposition was to be avoided. The normal effect
of the discrimination against Niebergall was to encourage all members of the Union to retain
their membership in good standing and all nonmembers to seek membership in the Union
through fear of consequences of incurring the displeasure of the Union. It is worthy of note
that employee Black, even prior to the discrimination and on the basis of a warning against
conversing with Niebergall, sought and obtained a transfer away from the vicinity of Nieber-
gall so that he would not risk incurring the displeasure of the Union and, accordingly,
consequences
Respondent Bell contends that it was necessary to make the demotion and transfer, and
thus engage in the unfair labor practices, because its business would otherwise be disrupted
and therefore, under all the facts, the demotion and transfer were excusable it is well
settled that discrimination against employees in response to a strike threat by a union which
has no legal right to demand the discrimination represents a violation of the Act (the Act
permits no immunity because the exigencies of the moment make expedient an infraction
of the statute). N. L. R. B. v Star Publishing Co , 97 F 2d 465 (C. A. 9), McQuay-Norris
Manufacturing Co , 116 F. 2d 748 (C. A. 7), certiorari denied 313 U. S. 565, Wilson and Co ,
Inc v N. L. R B., 123 F. 2d 411 (C. A. 8). N L. R. B. v John Englehorn & Sons, 134
F. 2d 553 (C. A. 3), N. L. R. B. v National Broadcasting Co , 150 F. 2d 895 (C. A. 2),
N. L. R. B. v Union Mfg Co , 200 F. 2d 656 (C. A. 5).
The conduct of the Union in demanding the demotion and transfer of Niebergall for dis-
criminatory reasons and the conduct of Respondent Bell in effecting the discrimination
constitute violations not only of Section 8 (b) (2) and 8 (a) (3) of the Act respectively, but
also constitute violations of Section 8 (b) (1) (A) and 8 (a) (1), respectively These sections
prohibit an employer (8 (a) (1)) and a union (8 (b) (1) (A)) from restraining or coercing
employees in the exercise of the right to refrain from engaging in concerted activity, a
right which Niebergall exercised when he left the strike. Certainly the demotion and con-
sequent loss of pay was "economic coercion in its most effective form " See N. L. R. B.
v Radio Officers' Union, 196 F. 2d 960 (C. A. 2).
In summary, the undersigned concludes and finds:
1 Local 501, International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, affiliated with the Congress of Industrial Organizations, is a labor
organization within the meaning of Section 2 (5) of the Act
2. Respondent Bell is an employer within the meaning of Section 2 (2) of the Act
3 By causing Respondent Bell to discriminate in regard to the terms of employment of
Howard E. Niebergall, Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act
4 By such conduct and by its warnings to employee Black, Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act.
5. By discriminating in regard to the terms of employment of Howard E. Niebergall, thus
encouraging membership in a labor organization, Respondent Bell has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act
6 By such conduct Respondent Bell has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7 of the Act and has thus engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act
7. The aforesaid unfair labor practices occurring in connection with the operations of
Respondent Bell's business have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce i4
THE REMEDY
Having found that Respondents have engaged in unfair labor practices in violation of the
Act, the undersigned recommends that Respondents, to effectuate the policies of the Act,
cease and desist therefrom and take the affirmative action hereinafter specified
l4After the close of the hearing, Respondent Union filed with the undersigned proposed
findings of fact and conclusions of law. Said proposed findings and conclusions are not
consistent with the findings and conclusions herein made and are therefore rejected by the
undersigned Also in view of the foregoing, Respondents' motions to dismiss are denied.
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC. 7 67
Whether Niebergall's demotion and transfer be considered violative of Section 8 (a) (3)
and 8 (b) (2) of the Act or of Section 8 (a) (1) and 8 (b) (1) (A), it is believed that effectuation
of the policy of the Act requires that he be restored to his position as crew chief and that he
be made whole for any loss of pay suffered.0 Furthermore, it is believed that under the
circumstances revealed by this record a recommendation that Respondents jointly and
severally make whole Niebergall is warranted and appropriate. N. L. R B. v. Pinkerton's
Natl. Detective Agency, 202 F. 2d 230 (C. A. 9).
As it would be inequitable to Respondent Union to permit the amount of its liability to
increase despite the possibility of its willingness to cease past discrimination, Respondent
Union may terminate its liability for further accrual of back pay by notifying Respondent
Bell in writing that it has no objection to the employment of Niebergall as crew chief, and
in that event Respondent Union shall not thereafter be liable for any back pay accruing after
5 days from the giving of such notice. Absent such notification Respondent Union shall remain
jointly and severally liable with Respondent Bell for all back pay that may accrue.
[ Recommendations omitted from publication.
is The loss of pay shall be computed in accordance with the customary formula of the
National Labor Relations Board. See N. L. R. B, v. Seven-Up Bottling Co., 73 S. Ct. 287;
F. W. Woolworth Company, 90 NLRB 289.
CENTRAL CALIFORNIA CHAPTER, THE ASSOCIATED GEN-
ERAL CONTRACTORS OF AMERICA, INC., ASSOCIATED
HOME BUILDERS OF SAN FRANCISCO, CALIFORNIA,
INC., PENINSULA GENERAL CONTRACTORS AND
BUILDERS ASSOCIATION, INC., AND THE NORTHERN
CALIFORNIA CONFERENCE OF THE PLUMBING AND
HEATING INDUSTRY, INC., AND THEIR EMPLOYER
MEMBERS and A. C. CAMPBELL, WILLIAM W. HAHNES,
FRANK C. COOK, GEOFFREY J. HOOKER, LOUIS
GENOVESE, WALTER KUNZ, JAMES P. MURPHY,
BURRELL E. JACKSON, ROBERT E. HARGENS, JOE
ARIBOS, ELIJAH SWAYZE, DOUGLAS JOBE, AND JOHN
G. STANGUS
CENTRAL CALIFORNIA CHAPTER, THE ASSOCIATED GEN-
ERAL CONTRACTORS OF AMERICA, INC., ASSOCIATED
HOME BUILDERS OF SAN FRANCISCO, CALIFORNIA,
INC., PENINSULA GENERAL CONTRACTORS AND
BUILDERS ASSOCIATION, INC., AND THE NORTHERN
CALIFORNIA CONFERENCE OF THE PLUMBING AND
HEATING INDUSTRY, INC., AND THEIR EMPLOYER
MEMBERS and BUILDING AND CONSTRUCTION TRADES
COUNCIL OF SAN MATEO COUNTY
NORTHERN CALIFORNIA CHAPTER, THE ASSOCIATED GEN-
ERAL CONTRACTORS OF AMERICA, INC., CENTRAL
CALIFORNIA CHAPTER, THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC., AND THEIR EM-
PLOYER MEMBERS: BOHANNON CONSTRUCTION CO.,
McKENZIE & CRAWFORD, E. B. STANDISH & CO., STERN
AND PRICE CONSTRUCTION CO. and BUILDING AND CON-
STRUCTION TRADES COUNCIL OF SANTA CLARA AND
SAN BENITO COUNTIES . Cases Nos . 20-CA-620, 20-CA-
621, and 20 -CA-622. June 26, 1953
105 NLRB No. 129.