Brunswick-Balke-Collender Co.

National Labor Relations Board - Board Decisions

Apr 20, 1961

131 N.L.R.B. 156 (N.L.R.B. 1961)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of the allegation that Manager Beliville engaged in surveillance of a
union meeting, the General Counsel introduced evidence that Bellville on the morn-
ing of August 1, 1960, came into the plant office shop and remarked to employees
present that he was surprised and disappointed to see so many employees at the
union meeting on the night before. Bellville testified, however, and I find, that on
the night in question he had visited a friend and when returning home by the route
he normally took on such occasions, he saws cars parked near the motel at which
employees had informed him a union meeting was to be held and also saw lights on
in the meeting room in the motel. From this, he concluded that the meeting was
still in progress. His remarks to the employees on the following morning was based
solely on the coincidence just described. I find that Respondent did not engage in
surveillance in violation of the statute.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a) (3) and (1) of the Act, my recommended order, among other things,
will direct that Respondent cease and desist from engaging in the unfair labor prac-
tice found, or in any like or related unfair labor practices, and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent discriminated in regard to the hire and tenure of
employment of employees Knabe and Cain, in violation of Section 8(a)(3) and (1)
of the Act, my recommended order will require Respondent to offer each of them
immediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights or privileges. It will also require
Respondent to make Knabe and Cain whole for any loss of pay suffered by reason
of the discrimination against them by paying each a sum of money equal to that
which he normally would have earned in the employ of Respondent from the date
of his discharge or layoff to the date of Respondent's offer of reinstatement, less his
net earnings elsewhere, in accordance with the formula established by the Board in
F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Packinghouse Workers of America, AFL-CIO, and Dallas General
Drivers, Warehousemen and Helpers Local Union No. 745 are labor organizations
within the meaning of Section 2(5) of the Act.
2. Respondent is, and has been at all times material herein , engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Frederick
Knabe and Cecil W. Cain, thereby discouraging membership in the Union, Re-
spondent has engaged in, and is engaging in, unfair labor practices within the mean-
ing of Section 8 (a) (3) and (1) of the Act.
4. By interfering with, restraining and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in, and is en-
gaging in , unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The evidence does not establish that Respondent , at its Sulphur Springs plant,
engaged in any of the unfair labor practices alleged in the complaint.
[Recommendations omitted from publication.]
Brunswick-Balke -Collender Company and Frederick G. Barden
Local Union 65, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO and Frederick G. Barden . Cases Nos.
,02-CA-510 and 22-CB-119. April 20, 1961
DECISION AND ORDER
On June 17, 1960, Trial Examiner John C. Fischer issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
131 NLRB No. 30.
BRUNSWICK-BALKE-COLLENDER COMPANY 157
spondent Brunswick-Balke-Collender Company, hereinafter referred
to as the Respondent Company, had engaged in and was engaging in
certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,, as set forth in
the copy of the Intermediate Report attached hereto. He also found
that the Respondent Union did not commit the unfair labor practices
alleged and recommended that the complaint be dismissed in its en-
tirety as to Local 65. Thereafter, the Respondent Company and the
General Counsel filed exceptions to the Intermediate Report together
with supporting briefs, and the Respondent Union also filed a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was 'committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in these cases, including the
exceptions and the briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only insofar as con-
sistent With our decision herein.'
We find, in agreement with the Trial Examiner, that the Respond-
ent Company violated Section 8 (a) (1) and (3) of the Act by its
discharge of employee Barden from its Carteret, New Jersey, job 2
on August 12, 1959. The evidence is clear that the discharge occurred
as the direct result of pressures brought by Union Steward Neal An-
derson on August 8, 11, and 12,1959.
We disagree, however, with the Trial Examiner's conclusion that
Respondent Union was not responsible for Anderson's actions in con-
nection with the discharge of Barden. In our opinion, Anderson's
actions were within the scope of his duties as a union steward. The
record shows that Anderson- was the union steward on the Carteret
job. When Barden was referred to the Carteret job by Respondent
Union, he reported to Anderson, who entered his name in his union
record book, sold him a work permit for $6.25, and assigned him to
work unloading lumber. Further, the record shows that Anderson
was instructed by Respondent's business agent to lecture the em-
ployees on quitting and starting times, which he did, informing the
employees that when he blew the whistle, they were to start and stop
work. When Barden took exception to such remarks as being directed
'The Respondent Company's request for oral argument is denied as the record in this
case and the briefs of the parties adequately present the issues for decision.
2 We find no merit in Respondent Company's claim that Barden was not discharged,
but merely transferred It is clear that Barden was discharged from the Carteret job,
and was denied employment on other jobs within the jurisdiction of Local 65. More-
over, whether viewed as a discharge or a transfer for discriminatory reasons, it is plain
that Respondent Company violated 8(a) (3) and ( 1) An this connection.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him personally, Anderson, as fully related by the Trial Examiner,
"fired" him, taking Barden's work permit from him, and returning
his $6.25. Though perhaps overzealous in his response to Barden's
reaction to his lecture, Anderson was acting within the scope of his
delegated authority to police the Carteret job when he told Barden
he was fired.' Though Anderson rescinded his action later that day,
at the instigation of Business Agent Byrd, it nowhere appears that
Byrd repudiated or rescinded Anderson's authority to do what he
thought necessary to police the job. Consequently, as it is apparent
that Anderson's attempts on August 11 and 12 to "fire" Barden were
but a continuation and outgrowth of the August 8 incident between
him and Barden, we find that Respondent Local 65 is responsible for
such actions. As such attempts were the direct cause of Barden's dis-
charge from the Carteret job on August 12, we find that Respondent
Local 65 thereby violated 8(b) (2) and 8(b) (1) (A) of the Act.'
We further find, on the basis of Barden's credited testimony, that
the Respondent Company again violated Section 8(a) (1) and (3),
and also violated Section 8(a) (4), on or about September 28, 1959,
by its refusal to employ Barden at its jobsite in Englewood Cliffs,
New Jersey, because of his continued refusal to withdraw his charges
against the Respondent Union. On the basis of such testimony, it is
clear that General Service Superintendent Young conditioned em-
ployment of Barden at the Englewood Cliffs job on Barden's with-
drawal of his charges against Respondent Union, and that but for
Barden's failure to withdraw his charges, he would have been em-
ployed there on or about September 28, 1959. In view of this finding
of a violation, we deem it unnecessary to pass upon whether Barden's
discharge from the Bronx River job on Friday, September 25, was
also a violation of the Act, as found by the Trial Examiner.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to
take certain necessary affirmative action to effectuate the policies of
the Act.
We shall order Respondent Company to afford Frederick G. Barden
full opportunity to employment at jobsites within the geographical
jurisdiction of Respondent Union with the same rights and privileges
Respondent Company grants to all its employees . We shall order
Respondent Local to notify Respondent Company and Frederick G.
Barden that it withdraws its objection , and has no objection , to Bar-
8 The Grauman Company, 100 NLRB 753, 754.
' See Miami Valley Carpenters ' District Council of Dayton , Ohio , etc (B . G Danis
Co ), 129 NLRB 517; Daugherty Company, Inc, 112 NLRB 986.
BRUNSWICK-BALKE-COLLENDER COMPANY 159
den's employment by Respondent Company with the same rights and
privileges enjoyed by other employees, whether or not such employ-
ment is within the geographical jurisdiction of Respondent Union.
We shall order Respondents, jointly and severally, to make Fred-
erick G. Barden whole for any loss of pay he may have suffered by
reason of the discrimination against him by payment of a sum of
money equal to that which he normally would have earned as wages
from the date of discrimination against him by Respondents on Au-
gust 12, 1959, to the date of an offer of reinstatement consistent with
our Decision and Order herein,5 less his net earnings for such period.
Backpay shall be computed in accordance with the formula adopted
in F. W. Woolworth Company, 90 NLRB 289. We shall toll Respond-
ent Union's liability for the period from June 17, 1960, the date of
issuance of the Intermediate Report, to the date of issuance of this
Decision and Order.6
We shall further order Respondent Union to furnish the Regional
Director'with copies of its notice, attached hereto marked "Appendix
B," for posting by the other Respondent, and we shall order each
Respondent to post such notice along with its own notice.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent Brunswick-Balke-Collender Company, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local Union 65, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, or in any
other labor organization of its employees, by discharging employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of employment.
(b) Discriminating against Frederick G. Barden or any other em-
ployee because he has filed charges or given testimony under this Act.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or refrain from joining Local Union 65,
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
8 Respondent Union may terminate its liability for further accrual of backpay by
written notice to the company and Barden that it withdraws its objections to Barden's
employment, in which event its liability will terminate 5 days after giving such notice.
6 Time-O-Matic , Inc, 121 NLRB 179
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivities for the purpose of collective bargaining or other mutual aid
or protection; or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Frederick G. Barden immediate and full reinstatement
to his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges, and, jointly and severally
with Respondent Local 65, make him whole for any losses incurred as
a result of the discrimination against him, as provided in the section
herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to analyze and compute backpay due and the
rights of employment required by the terms of the Recommended
Order.
(c) Post at its plant in Englewood, New Jersey, and at all jobsites
within the geographical jurisdiction of Respondent Union, copies of
the notice attached hereto marked "Appendix A."' Copies of said
notice, to be furnished by the Regional Director for the Twenty-
second Region (Newark, New Jersey) shall, after being duly signed
by the Respondent Company or its representative, be posted by the
Respondent Company immediately upon receipt thereof, and main-
tained by it for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be takenby the Respondent Company to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Post at the same' places and under the same conditions as set
forth in paragraph (c) above, and as soon as they are forwarded by
the Regional Director, copies of the Respondent Union's notice herein
marked "Appendix B."
(e) Furnish the Regional Director for the Twenty-second Region
signed copies of the notice attached hereto as "Appendix A" for post-
ing by the Respondent Union.
(f) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
7In 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."
BRUNSWICK-BALKE-COLLENDER COMPANY 161
B. Respondent- Local 65, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, its officers, representatives, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Brunswick-Balke-Collender
Company, its officers, agents, successors, or assigns, to discriminate
against Frederick- G. Barden or' any other employee or applicant for
employment, and causing or attempting to cause any other employer
within its geographical jurisdiction to discriminate against Frederick
G. Barden, in violation of Section 8 (a) (3) of the Act.
(b) In any other manner restraining or coercing Frederick G.
Barden and employees or applicants for employment at Brunswick-
Balke-Collender Company in the exercise of their rights guaranteed
in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify, in writing, Brunswick-Balke-Collender Company that
Respondent Local 65 has withdrawn its objection, and has no objec-
tion, to the hiring or, continued employment of Frederick G. Barden,
with the same rights and privileges Brunswick-Balke-Collender Com-
pany grants to all its employees, whether or not such employment is at
jobsites within the geographical' jurisdiction of Respondent Union,
and jointly and severally with Respondent Company make him whole
for any losses incurred as a result of the discrimination against him,
as provided in the section herein entitled "The Remedy."
(b) Notify, in writing, Frederick G. Barden that Respondent
Local 65 has withdrawn its objection, and has no objection, to his
employment with Brunswick-Balke-Collender Company or with any
other employer within Respondent's geographical jurisdiction with
the same rights and -privileges such employers grant to, other
employees. ,
(c) Post at its offices and all places where notices to members are
customarily posted, copies of the notice attached hereto as "Appendix
B." 8 Copies of said notice, to be furnished by the Regional Director
for the Twenty-second Region, shall, after being duly signed by an
official representative' of Respondent Local 65, be posted by it imme-
diately upon receipt thereof and maintained for a period of at least
sixty. (60) consecutive days thereafter in conspicuous places. Reason-
8 See footnote 7, 8upra.,
599198-62-vol. 131-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able steps shall be taken to insure that said notices are not altered,
defaced, or covered by other material ;
(d) Post at the same places and under the same conditions as set
forth in paragraph (c) above, and as soon as they are forwarded by
the Regional Director, copies of the Respondent Company's notice
herein marked "Appendix A";
(e) Furnish the Regional Director for the Twenty-second Region
signed copies of the notice attached hereto as "Appendix B" for
posting by Brunswicke-Balke-Collender Company;
(f) Notify the Regional Director for the Twenty-second Region,
in writing, within ten (10) days from the date of this Order, what
steps it has taken to comply.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT encourage membership in Local Union 65, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
or in any other labor organization, by discharging employees, or
in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT discriminate against employees because they have
filed charges or given testimony under the Act.
WE WILL NOT interfere with, restrain, or coerce employees in the
exercise of the right to self-organization, to form labor organiza-
tions, to join or refrain from joining Local Union 65, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection; or to refrain from any and all such activities,
except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act.
WE WILL offer Frederick G. Barden full and immediate rein-
statement to his former or substantially equivalent position with-
out prejudice to his seniority and other rights and privileges, and
will, jointly and severally with Respondent Local 65, make him
whole for any loss of pay incurred as a result of his discharge.
All our employees are free to become, or refrain from becoming,
members of the above-named union or any other labor organization,
BRUNSWICK-BALKE-COLLENDER COMPANY 163
except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the Act.
THE BRUNSWICK-BALKE-COLLENDER COMPANY,
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.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 65, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, were hereby notify you that :
WE WILL NOT cause or attempt to cause Brunswick-Balke-
Collender Company, its officers, agents, successors, or assigns, to
discriminate against Frederick G. Barden or any other employee
or applicant for employment, or cause or attempt to cause any
other employer within our geographical jurisdiction to discrimi-
nate against Frederick G. Barden in violation of Section 8(a) (3)
of the Act;
WE WILL NOT in any other manner restrain or coerce Frederick
G. Barden and other employees or applicants for employment at
Brunswick-Balke-Collender Company in the exercise of their
rights guaranteed 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 author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL notify, in writing, Brunswick-Balke-Collender Com-
pany that we have no objection to the hiring or continued em-
ployment of Frederick G. Barden, and will, jointly and, severally
with Respondent Company, make him whole for any losses in-
curred as a result of the discrimination against him.
LOCAL 65, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA,
AFL-CIO,
Union.
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.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Frederick G. Barden on August 17, 1959, the General
Counsel of the National Labor Relations Board issued his consolidated complaint
against Brunswick-Balke-Collender Company, hereinafter called Brunswick, and
Local Union 65, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, alleging that Brunswick and Local 65 had engaged in and were engaging in
unfair labor practices upon the part of Brunswick in respect to Section 8 (a) (1) (3 )
and (4) of the National Labor Relations Act, and violations on the part of Local
65 in respect to 8(b)(1) (A) and 8(b)(2) of the Act (61 Stat. 136, herein called
the Act). It is alleged that the unfair labor practices complained of occurred in an
industry in commerce or affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
Upon the complaint and the separate. answers of Brunswick and Local 65, this
matter came on for hearing before me in Newark, New Jersey, on February 8, 9,
and 10, 1960. The issues are whether Respondent Company did discharge Barden
on August 11, 1959, at its Carteret, New Jersey, site and thereafter fail and refuse
to reinstate Barden, as set forth in the complaint, at the request, demand, and insist-
ence of Respondent Union, which request, demand, and insistence was not protected
by any provision of Section 8(b) (2) or 8(a) (3) of the Act; and on September 25,
1959, discharged Barden again at' its Bronx site because he refused to request with-
drawal of the charge which he filed before the National Labor Relations Board in
Newark in Case No. 22-CB-219 against the Union at the union demand and insist-
ence in violation of Section 8(a)•(4), and 8(b)(2) of the Act. Respondent Brun-
swick denied any unfair labor practices, but admitted that it was engaged in com-
merce within the meaning of the Act. The Union denied any unfair labor practices
and challenged the Board's jurisdiction over Brunswick. Motion of counsel for
General Counsel to correct the record was granted. Motions by Respondent Com-
pany and Union to dismiss the complaint were reserved and are disposed of by my
findings and conclusions set forth below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS, OF FACT
I. THE BUSINESS OF RESPONDENT BRUNSWICK
Respondent Brunswick is a Delaware corporation. At all times material herein,
Respondent Company has maintained its principal office at .623 South Wabash
Avenue, in the city of Chicago, State of Illinois, and has maintained a place of
business' in the city of Muskegon; and State of Michigan, and other plants, places
of business, warehouses, and other facilities in various States of the United States
including an office and place of business at 190 Sylvan Avenue, Englewood Cliffs,
New Jersey, and is now and has been continuously engaged at said plants ands places
of business in the manufacture, sale, and distribution of bowling and billiard prod-
ucts and, specifically at. its Englewood Cliffs, New Jersey, office and place of busi-
ness, in the business of installing and servicing bowling lanes-and related equipment.
During the year ending December 31, 1958, which year is representative of all times
material herein, Respondent Company, in the course and conduct of its business oper-
ations, caused to be purchased, transferred, and delivered to its Muskegon, Michigan,
plant, goods, materials, and supplies valued at in excess of $1,000,000, of which goods
and materials valued at in excess of $500,000 were transported to said plant in inter-
state commerce directly from States of the United States other than the State of Mich-
igan. During the year ending December 31, 1958, which year is representative of
all times material herein, Respondent Company, in the course and conduct of its
business operations, caused to be manufactured, sold, and distributed at said Mus-
kegon, Michigan, plant, products valued in excess of $1,000,000, of which products
valued in excess of $500,000 were shipped from said plant in interstate commerce
directly to States of the United States other than the State of Michigan. During the
year ending December 31, 1958, which year is representative of all times material
herein, Respondent Company sold and distributed from its various facilities in the
United States products valued in excess of $150,000,000, of which products valued
in excess of $5,000,000 were shipped from said plants between and among the vari-
ous States of the United States. I find that the operations engaged in by Brunswick
are in and affect commerce within the meaning of Section 2(6) and (7) of the Act.
BRUNSWICK-BALKE-COLLENDER COMPANY
II. TILE LABOR ORGANIZATION INVOLVED
165
Local Union 65, United Brotherhood of Carpenters and Joiners of America, AFL-
CIO is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Synopsis
This is a case in which a union carpenter belonging to one local union became
involved in a personality conflict with the union job steward of another local union,
was "fired" by the job steward, was reinstated at the order of the local's business
agent, and, as a result of his grievances, filed a charge with the Board against the
local union alleging that the shop steward caused his employer to terminate his
employment. Eventually, he filed a charge against his employer as being in pari
delicto with the Union, for discharging him at the insistence of the Union, and be-
cause he would not withdraw his Board-filed charges against the Union.
Narration of Events
Frederick G. Barden, the Charging Party, and presently a member of Bronx
Local 48 of the United Brotherhood of Carpenters and Joiners of America, lived
in Camden, New Jersey, and was a member of Camden Local 393. Moving to
Metuchen, New Jersey, in the middle of July 1959, Barden applied for work as an
out-of-town member to Lesley Byrd, the business agent of Perth Amboy Local 65.
About 2 weeks later Byrd, Local 65's business agent, gave Barden a referral slip
to Respondent Brunswick's jobsite at Carteret, New Jersey-to the attention of
Carpenter-Steward Neal Anderson. Steward Anderson entered Barden's name in
his union record book, advised Barden that he must purchase a work permit for
$6.25 (which he did) and assigned him to work unloading lumber. Barden con-
tinued to work as a carpenter laying bowling alley lanes. On Thursday, August 7,
Brunswick Superintendent Bengston assigned Barden to move some material and
when he ran out of that work, Bengston allowed him to leave the job 10 minutes
before quitting time. The next day Steward Anderson took occasion to call all of
the carpenters together and inform them: "This business about you people quitting
early, you guys quitting early has got to stop. I am the shop steward in the shop.
And when I blow the whistle in the morning, you start work; and when I blow the
whistle at night you quit. And you don't quit before that." Barden apparently took
the remarks personally because he expostulated with Anderson who then said to
Barden: "You are a wise guy. Get out of here. You are fired." When Barden
protested contending Anderson's function was to protect his interests, not to fire
him, Anderson returned Barden's $6.25 work permit fee and picked up his work
permit. However, Anderson reconsidered his precipitant action and telephoned
Business Agent Byrd, who ordered Anderson to return Barden's dues and work
permit forthwith, and for him in company with the foreman on the job, to order
Barden back to work and direct Barden not to leave the job under any circumstances.
Anderson returned and carried out Business Agent Byrd's instructions, and Barden
unpacked his tools and continued working. Following this coffee break incident and
firing and reinstatement on Friday, Byrd came up to the job, and in the presence of
Anderson advised Barden to forget the whole thing.
On the following Monday morning, August 11, however, according to Barden,
Anderson accosted him again saying: "Paul Bengston will be in after a while and
make your check out. You are fired. I'm getting rid of you. I told you I would."
Superintendent Bengston did not show up on the job on Monday, August 11, but on
Tuesday, August 12, Bengston told Barden that he, regrettably, had to get rid of
him because Brunswick was behind schedule: "I've got to get rid of you or they will
shut down the job."
Bengston, however, volunteered to call up the business agent of the Hackensack
Local to which Bengston himself belonged and see if Barden could be put on up
there. Then Barden was paid off and discharged from the Carteret job.' Barden
then requested Bengston to get him a job on Brunswick's Edison project, but Beng-
ston demurred saying that he could not do that because the job was in Byrd's district
and he would have nothing but trouble over there, and "Byrd would just be looking
down my neck the whole time." Bengston. in the alternative, gave Barden a note
to "Bill" (Kornek) the foreman on the Bowlerama project in Somerville. This shift
1 Steward Anderson's parting remarks to Barden were • "Now get your stuff and get
out of here. I don 't want to see you back on this job again 11
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment was cleared with Bowlerama owners DiBella and Christensen who
had walked in during the discussion. At this time Bengston admitted that the
transfer was being effected because of "intimidation." Bengston 's attitude then to-
ward Barden is illustrated:
Look, Fred, instead of you going over there by yourself, meet me up at the
diner in about a half hour. Don't wait around here because I don't want
Anderson to know that I am taking you over there. Meet me at the diner and
I'll take you over [to] the Somerville job myself.
This he did, and Barden satisfactorily worked until completion of the job early in
September.
The above narration constitutes the first phase of this case. The question to be
resolved at this point under the pleadings--complaint and replications-is what was
the effect of such a course of conduct on (a) Local Union 65, and (b) Respondent
Brunswick. General Counsel Crowley contended in his arguments and brief that
Neal Anderson was Local 65's agent on Brunswick's Carteret job and Anderson's
statements and actions were binding on Local 65 on the grounds of his "broad
general authority with relation to the carpenter-employees on this job"-especially
in view of Brunswick Foreman "Fred's" acquiescence that "if you are fired, you are
fired" when Barden informed him of Anderson's action. Counsel Crowley docu-
mented his contention with extensive argument, citing Board and court -decisions.
Respondent Union's Counsel Dunn, and Respondent Brunswick's Counsel Niemann
answered these and other contentions in elaborate briefs, and with profuse citations.
All cases cited have been carefully studied and considered by the Trial Examiner.
The controlling principle in this phase of the case is that management has the right
to hire and fire employees, not the Union. Anderson, the shop steward had no such
authority, and when he exceeded his authority in a pique of temper, his action was
promptly repudiated and disavowed by his superior, Business Agent Byrd, who or-
dered Barden to stay on the job, and even came out to the site and told both parties
to forget the whole matter.
Respondent Union's Proposed Findings and Conclusions
In concluding his opening statement at the trial, the Trial Examiner advised:
"Any party shall be entitled, upon request made before the close of the hearing, to
file a brief or proposed findings and conclusions, or both, to the Trial Examiner
before the close of the hearing and he will fix a time for such filing." Respondent
Union's Counsel Dunn argued in part:
For a complete understanding of the issues involved in this case, an analysis of
the consolidated amended complaint is in order. After the introductory and jurisdic-
tional matters were pleaded, it is charged in paragraph 9 of the complaint that the
Respondent Company discharged Barden on or about August 11, 1959, at his jobsite
at Carteret, New Jersey. Paragraph 10 states that since August 11, 1959, the Re-
spondent Company has failed and refused to reinstate Barden to his former or sub-
stantially equivalent position of employment. This allegation is specious and di-
rectly contrary to Barden's own testimony wherein he stated that Brunswick-Balke
hired him the very day of his discharge and he proceeded to work at various job-
sites for Brunswick-Balke until the end of 1959. In paragraph 11, it is charged that
the Respondent Company discharged and thereafter failed and refused to reinstate
Barden at the request, demand, and insistence of the Respondent Union, which re-
quests, demands, and insistence were not protected by any provision of Section
8(B) (2) or 8(A) (3) of the Act.
However, the counsel for the General Counsel has not even attempted to prove
this allegation. The record is barren of testimony on this point except for the
isolated, uncorroborated generalization of the employee Barden:
So then he gave me the note and the owners walked in, Dibella and Christensen;
and they asked me what was going on and I told them that I was leaving the
job, that I was fired, and that Paul was going to try to get me on at the Somer-
ville job. So then I asked Paul what his reason was for getting rid of me.
I said, "What was it, intimidation" He said "yes, intimidation is an awful
thing." And the owners started shaking their heads and walked out.
The counsel for the General Counsel did not even bother to put DiBella or
Christensen on the stand. Of course, the word used by Barden is well chosen to
buttress this case, but it is by their action and motives that the Respondents must be
judged and not by a characterization made by the opposing party. In paragraph 12,
the Board states that the Respondent Company did again hire and employ Barden
BRUNSWICK-BALKE-COLLENDER COMPANY 167
on or about August 11, 1959, and more particularly at the Somerville, New Jersey,
jobsite. This allegation is in complete countervention of their pleadings in para-
graphs 9, 10, and 11. Paragraphs 13, 14, and 15 of the consolidated and amended
complaint are also repugnant to Barden 's own testimony that he worked for
Brunswick-Balke after he was laid off in September 1959 and more particularly
from November 1959 until the end of the year.
In paragraph 17 of the amended and consolidated complaint, the Union is charged
with a violation of the Act for reasons not protected by Section 8(b)(2) of the
Act. The Union is also charged with restraining and coercing the employees in
violation of the rights guaranteed him in Section 7 of the Act thereby engaging in an
unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act. The
Company is charged with a violation of the Act as to the August 11, 1959, discharge
by violating Section 7 of the Act and engaging in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act. The Company is also charged with
violating Section 8(a)(3) of the Act by encouraging membership in a labor organ-
ization by their discharge of Barden on August 11, 1959.
Section 7 of the Act deals with the rights of employees and reads as follows:
Employees shall have the right to self-organization, to form, join or assist
labor organizations , to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , and shall also have the
right to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in section 8(a)(3).
There is not one iota of evidence in this case that there was any pressure placed
upon Barden with relation to his union activities as such . By his own testimony, he
was a member of the United Brotherhood of Carpenters during the summer of 1959.
By his own testimony he is still a member of the United Brotherhood of Carpenters.
Paragraph 19 of the amended and consolidated complaint states that the Company
interfered with the employee's rights in violation of Section 7 of the Act, however, the
counsel for the General Counsel offered no proof whatsoever and the record is barren
of any evidence to substantiate this allegation . In paragraph 21 of the amended and
consolidated complaint , the Respondent Union is charged with coercing its employees
in the exercise of their rights guaranteed in Section 7 of the Act and thereby did
engage in and is engaging in an unfair labor practice within the meaning of Section
8(b)(1) (a) of the Act. However, the only evidence that the Trial Examiner and
the Board has before it is that Local 65 was the efficient cause for Mr. Barden's em-
ployment at the Brunswick-Balke building site in Carteret, New Jersey.
The Union has been charged with a violation of Section 8(b)(2) of the Act in
demanding the Company to discharge Barden on or about August 11, 1959. The
record is barren of any direct testimony relative to any action taken by the Union
towards the Company. All the record shows is that Barden had a fight with Ander-
son on Friday and that Anderson told him to get off the job. Barden knew that
Anderson did not have that authority. From these facts the General Counsel will
have to ask the Trial Examiner to make the inference that the Union then ap-
proached the Company and demanded that Barden be fired.
The Board must make a finding as to the employer's motive for the "discharge."
It could find that Barden was laid off in the normal course of events, inasmuch as
the job was nearing completion.
It could also find that the Company transferred Barden from Carteret because
he was a source of trouble there.
The one thing the Board cannot find is that the Company's action encouraged or
discouraged union membership.
If the conduct of the employer does not encourage or discourage union member-
ship, Section 8(a) (3) of the Act has not been violated.2 The Radio Officers' Union
of the Commercial Telegraphers Union, AFL, (A. H. Bull Steamship Company) v.
N.L.R.B., 374 U.S. 17.
If the Board has the employer before it and finds that Section 8(a)(3) has not
been violated, ipso facto it must find that 8(b)(2) has not been violated. As a
condition precedent to finding the Respondents guilty of the violations charged, the
Board must also find that Section 7 of the Act has been violated. Since Barden was
2 The pertinent part of Section 8(a)(3) reads as follows.
It shall be an unfair labor practice for 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 : provided . .
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union member throughout the time in question and since the Company continued
his employ after the alleged discharge and periodically as occasions arose throughout
the rest of 1959, how can it possibly be said that Section 7 of the Act has been
violated. Wherefore, Local Union 65 respectfully prays that the Trial Examiner
make findings and formulate a conclusion consistent with the law herein cited and
recommend that these charges against the Respondent Union be dismissed.
Finding as to the Friday "Discharge"
On the basis of elementary rules and principles of the law of agency since
there was no ratification or adoption of Anderson's action by the Union, it is clear
that Local 65 cannot be held responsible for the independent conduct of Shop Stew-
ard Anderson unless he was carrying out a general policy or rule of the Union of
summarily firing employees guilty of impertinence by challenging his authority.
Studebaker Corporation, 110 NLRB 1307. Subaltern Foreman "Fred's" subsequent
questionable acquiescence in Anderson's attempted usurpation of management's in-
herent right to hire and fire does not vest it with legality. Accordingly, I find that
there was no violation by Local 65 in this phase of the case of Section 8(b)(1) and
(2), nor any violation of Section 8(a) (1) and (3) by Respondent Brunswick.
The Discharge of Tuesday , August 12
Foreman Bengston , on Tuesday , August 12 , clearly terminated and discharged
Barden from the Carteret project in order to avoid trouble with the Union fomented
by Steward Anderson . At Bengston 's behest, Barden was reemployed by Brunswick
on its Somerville job under Foreman Kornek and worked there until the job was
completed . Barden 's termination under these facts constitutes a violation of Section
8(a)(3) and ( 1) by Respondent Brunswick , and it is so found by the Trial Exam-
iner. The Radio Officers' Union v . N.L.R.B ., supra.
Barden Files Charge Against Local No. 65
Barden reacted promptly against the Union for the treatment he received at the
hands of Steward Anderson by filing an unfair labor practice charge under Section
8 (b) (1) (A) and (2) against Local Union 65 on August 12 in which he complained
that the Union by its shop steward, Neil Anderson, caused or attempted to cause
Brunswick to terminate his employment on August 7 in violation of Section 8(a) (3)
of the Act. Barden's frame of mind is evidenced by accepted testimony in the record
that freely told fellow employees about his charges against Local Union 65 and
that he was going to sue Steward Anderson, and even had threatened to deal Ander-
son, an elderly man, bodily violence. That this attitude and conduct on Barden's
part disconcerted and antagonized certain of his fellow employees is evidenced by
the fact that several of them testified against him at the hearing as being a trouble-
maker and poor worker. All this Barden denied .3
The Bronx River Job
After completing Brunswick's Somerville job, Barden in the first week of Sep-
tember, accompanied Bengston to Brunswick's Bronx River project. Barden worked
under Superintendent Bengston until Bengston was relieved by Eyvind (Eddie)
Anderson on September 11. Barden worked under Anderson until terminated on
September 25. Barden was unable to follow Bengston to his new jobsite because
driving too far. Anderson testified that Barden brought up the subject and boasted
that he was "suing the Union for $100,000" to which Anderson replied. "Oh, yeah."
Anderson stated that Barden , who had been assigned "coffee man" duty, would col-
lect coffee and doughnut money from the men and be gone from the job 2 hours
instead of the usual 30 or 45 or 25 minutes as contended by Barden. The testimony
of Anderson and Barden was in conflict, but the Trial Examiner concluded that both
8 Barden was an angry and indignant witness, but the Trial Examiner accepted his
version in the main as heretofore indicated , but rejected portions However, it does not
follow that simply because a fact finder does not believe particular things to which a
witness testified that everything he says must then be rejected Judge Learned Hand
stated the rule in N.L R B v. Universal Camera Corporation , 179 F. 2d 749 (C.A. 2).
Thus,
It is no reason for refusing to accept everything that a witness says because you
do not believe all of it , nothing is more common in all kinds of judicial decisions
than to believe some and not all.
BRUNSWICK-BALKE-COLLENDER COMPANY 169
of them were exaggerating their positions, in. testifying and resolved in favor of
Anderson as being less exaggerated in-this conflict.
Barden's unfair labor charge against Local Union 65 by this time was in the nature
of a "cause celebre." (Barden admitted discussing it with the foreman and the
business agent on his Somerville job and reverberations were ^ coming from General
Superintendent Young at the main office.) Barden testified that Bengston, the week
of his termination on the Bronx job, September 25, asked him what he was going to
do about the charges he had filed against Local Union 65. Barden's accepted testi-
mony is: "Paul walked up to me and said, `Fred, what are you going to do about
those ridiculous charges you filed against the Local 65?' And I said, `There is nothing
I can do.' I said, 'It is out of my hands.' And he says, `Why don't you get rid of
them. It is causing nothing but a lot of trouble, that's all."' Barden stated that
Anderson told him approximately the same thing. On Friday, 3 or 4 days later,
Barden, was terminated by Anderson with five other carpenters, according to his
statement given to Mr. Crowley of -the National Labor Relations Board because "we
began catching up with the work on this job and I had to lay some off." Anderson
also accused Barden of "goofing off and poor work."
Barden Visits Service Manager Young
Upon being informed by Anderson that he was being discharged at 2.30 Friday
afternoon, Barden observed that his check did not cover some 5 hours of driving
time (portal to portal pay) so he telephoned General Service Superintendent Young
at the main office at Englewood Cliffs and at Young's suggestion Barden drove up
there to discuss the shortage personally with Young and arrived about 5 p.m. At
this point there is conflict between the versions of Barden and Young as to what
occurred and what was said. General Counsel described the sequence of events
and conversations as follows:
At Brunswick's Englewood Cliffs office, Barden met with Earl Young, Paul
Bengston and a Mr. McMahon, Young's assistant, in Young's office. Bengston said
to Barden: "What have you done about those ridiculous charges: They have been
calling us up here. Look, we're very busy."
Young pointed to a board on the wall having a list of working jobs. Young then
stated that Barden was causing them trouble, that it was going to cost them a great
deal of money and that Barden was making it bad for them, putting them in a bad
position and Barden in a bad position. Young said Barden would have to do some-
thing about these charges, that: "he is going to send us a form. That guy Crowley
is going to mail us a form , the fellow who is calling us . You [Barden ] will be
working next door. You [Barden] can help fill it in and send it back and that will
be the end of it."
Barden told Young he would not fill out the form and that that would not be the
end of it.
Bengston, on, questioning from Young, said Brunswick could use Barden on the
foundation for a job next door. Young told Barden to come in to work, the next
Monday, on the foundation. Bengston then asked Barden what he, Barden, was
going to do about the charges. Barden replied there was nothing he could do about
them.
Young then told Barden not to come to work Monday but to call him Monday
and he would let Barden know whether to come in or not.
Immediately following this meeting, and while outside the Englewood Cliffs
office building, Bengston stated to Barden: "If you get this think straightened out
over the weekend, see that guy Crowley, and you will be back here working Monday."
Barden called Young the following Monday and Young asked Barden what hap-
pened regarding the charges, ad if Barden had seen the guy from the National
Labor Relations Board. When Barden replied he had not seen the National Labor
Relations Board agent, Young stated the materials for the job had not arrived and
Barden should call again in 3 weeks.
Respondent Brunswick's Contention
Counsellor Niemann submitted to the Trial Examiner a comprehensive brief of 26
pages in which he set forth his concept of the whole case and documented it exhaus-
tively with Board and court citations. Because of the importance and interest of
this case, the Trial Examiner deems it proper to set forth, verbatim, portions of his
contentions:
"There is no particular pleading and no showing that any of the Section 7 rights
have been in any way affected by Respondent Company's conduct, except by the
alleged violations of Sections 8(a)(3) or (4) if such violations automatically con-
stitute Section 8 (a) (1) violations."
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The charge of a Section 8(a)( 1) violation by Respondent Company appears only
in paragraph 18 of the Consolidated and Amended Complaint, which relies entirely
on the acts alleged in paragraphs 9, 10, 11, 13, 14 and 15 and "by each of said acts."
It is obvious that the acts alleged in paragraphs 9, 10, 13, and 14 of the Consolidated
and Amended Complaint do not individually or in any combination constitute viola-
tions of Section 8(a)(1). Only by combining paragraphs 9, 10, 13, and 14 with
paragraphs 11 or 15 of said Complaint can any violation of Section 8(a)(1) be
sufficiently charged, if at all. Such combinations are made in order to charge a
Section 8(a)(3) violation in paragraph 19 and to charge a Section 8(a)(4) violation
in paragraph 20 of said Complaint. Therefore, it appears that the establishment
of a Section 8(a)(1) violation as pleaded depends entirely upon the establishment
of either a Section 8 (a) (3) violation or a Section 8 (a), (4) violation or both. It has
been held that where the General Counsel's theory is that if there were a violation of
Section 8 (a)(3) or (4) there would be a derivative violation of Section 8(a)(1),
a failure of the evidence to establish a violation of Section 8(a) (3) or (4) requires
the conclusion that there is no Section 8(a) (1) violation. Kaiser Gypsum Com-
pany, Inc., 118 NLRB 1576, 1591.
If no violations of either Section 8(a) (3) or Section 8(a) (4) are established,
General Counsel must, therefore, fail in proving that Respondent Company has
violated Section 8 (a) (1) of the Act as pleaded.
The Board has failed to show that Respondent Company in any way at any time
violated Section 8(a) (4) of the Act. Section 8(a) (4) of the Act provides:
SEC. 8(a). It shall be an unfair labor practice for an employer-
(4) To discharge or otherwise discriminate against an employee because he
has filed charges or given testimony under this Act.
One of the most tenuous aspects of the entire case as it has been pressed against
Respondent Company, is the charge that somehow or other Barden was discriminated
against within the meaning of Section 8(a) (4) of the Act. A mere summary of the
chronology of the case will refute any basis for this claim. Barden filed his charge
against Respondent Union on or about August 17, 1959. (Amended complaint
paragraph 1.) At the time Barden was employed by Respondent Company on the
jobsite in Somerville, New Jersey. No allegation or contention has been brought
forward that Respondent Company "discriminated" against Barden on the Somerville
site, nor that his layoff at the end of the job in the latter part of August was in any
way objectionable. Barden was given work by Respondent Company soon after
his layoff at Somerville. Indeed, he was hired by Brunswick at jobsite in the Bronx,
in the forepart of September by Paul Bengston. It should be noted and stressed that
Bengston was the same foreman for whom Barden worked at Carteret. Barden
worked at the Bronx site until he was laid off in a lawful manner on September 25,
1959.
Barden was again hired by Brunswick on or about November 12, 1959, at a jobsite
known as Stadium Lanes, and worked there without interruption until the end of
1959. No point has been made in the case by Barden, or the Board, concerning any-
thing subsequent to September 25, 1959. Respondent Company is at a loss to know
in what respect it could be said to have discriminated against Barden within the
meaning of Section 8(a)(4) (or any other section of the Act, for that matter). It
is to be recalled that Brunswick hires no "steady" carpenters for the installation of
bowling lanes, but hires part-time help recruited from the area. Barden was a
"part-time" carpenter, but as the record indicates, he worked quite steadily for
Respondent Company during most of 1959, from July on until the end of the year.
In view of such evidence, the allegations with respect to Section 8(a)(4) border on
the ridiculous and indeed tend to be almost slanderous allegations.
It is true that Barden testified that Paul Bengston made certain remarks to Barden
on some occasions as to why he did not drop the charges Bengston was not able
to testify because of a sudden illness which caused him to collapse in the very
courtroom itself. However, the Board is constantly stressing that labor cases should
be viewed in the light of realities-not technicalities. Now what are the realities
with respect to the statements attributed to Bengston? The realities are abundantly
manifest and are as follows: Bengston himself hired Barden on the Bronx job-the
first man hired on the job; Barden himself told Young that he had nothing against
the company. The statements attributed to Bengston on their face indicate that they
were nothing more than casual conversation between workers on the job who were
well acquainted with each other; and there is in the United States a right to free
speech-and certainly Paul Bengston was entitled to ask Barden questions merely out
of curiosity as to the status of the charges.
In short, from the evidentiary standpoint the entire basis for a Section 8(a)(4)
charge collapses in the cold light of the facts.
BRUNSWICK-BALKE-COLLENDER COMPANY 171
From the standpoint of the decided cases the position of Respondent Company
is equally secure . In the first place counsel for Respondent Company has been
unable to find any cases where it has been held that the discharge of an employee
for having filed charges was held to be a violation of Section 8(a)(4) where the
employee had been hired and continued working after having filed a charge. Under
the circumstances of this case, there is no evidence to support finding that Respond-
ent Company violated Section 8(a) (4) of the Act.
The motion of Respondent Company for the production of statements and other
matter obtained from interviews with its employees should have been granted, and
the failure to grant such motion deprived Respondent Company of due process
because it was thereby deprived of adequate notice of the charges, of its right to
counsel, and a fair opportunity to prepare for trial.
At the hearing, before any testimony was given, Respondent Company moved
"that the Examiner direct all officers, agents and attorneys of the General Counsel's
office of the Board , and the Board personnel themselves , to produce forthwith and at
this time any and all statements , memorandums of conversations in any manner
transcribed or recorded of any conversations which they may have had with em-
ployees of Respondent Brunswick-Balke-Collender Company, and any statements
that may have been secured from such parties ." This motion was opposed by
General Counsel solely on the authority of Rule 102 . 118 of the Board . Except for
the production of statements by witnesses called by the General Counsel after such
witnesses have testified , Rule 102.118 of the Board restrains the General Counsel and
others from producing any such statement "without the written consent of . . . the
General Counsel if the official or document is subject to the supervision or control
of the General Counsel " No standards or criteria whatsoever are provided as to
when the Board should give such consent. Its refusal to give consent can be com-
pletely arbitrary and unreasonable . In view of the rules adduced by General Coun-
sel, his refusal to produce the statements called for is based on nothing more than an
absence of a written consent for their production . This arbitrary exercise of power
is not in accordance with our traditional standards of reason and justice.
The necessity for the production of such statements arises in part from the con-
stitutional and statutory necessity of giving adequate notice of the charges filed. It
is now universally recognized that the broad and conclusionary nature of modern
pleadings requires that adequate pretrial procedures be available so that a defendant
can receive adequate notice of the precise violation with which he is so generally
charged. (The Board has, of course , no pretrial procedures .) Forcing Respond-
ents to await the testimony to be adduced against them results in a deprivation of
the fair notice to which they are constitutionally entitled . Of course , the cry of "fish-
ing expedition" arises with respect to a general demand for the production of state-
ments. Such cry is not unreasonable when the matters of a party are subjected to
examination by a party or attorney who may use them for harassment or as a basis
for other legal proceedings . But these considerations are not applicable as to the
General Counsel , who is not subject to further harassment and who, presumably, has
limited his investigation to the matter on which a charge has been filed . A right to
the production and inspection of statements made to Federal agents during a pre-
trial investigation can be based on broad judicial standards for the administration of
justice Jencks v. United States, 353 U.S. 657, 77 S . Ct. 1007, 1 L. Ed . 1103. A
party to proceedings before the National Labor Relations Board is entitled to the
application of such standards . N.L.R.B . v. Adhesive Products Corp ., 258 F. 2d 403
(C.A 2), followed in Ra-Rich Manufacturing Corporation , 121 NLRB 700.
Another reason why Respondent Company should have been entitled to inspect
witness statements taken by the counsel for the General Counsel at the opening of
the hearing is that the statements were taken in such a manner so as to have deprived
Respondent of its right to counsel . The employees whom the Board agent investi-
gated were employees of Brunswick . Eyvind Anderson from whom the Board
Agent took a written statement was an employee of Brunswick . Nothing was said to
Anderson at the time his statement was taken concerning his right to counsel nor
concerning the right to counsel of Respondent Company. Since in this instance An-
derson as Brunswick 's employee was Brunswick there occurred in effect, a depriva-
tion of Brunswick of its right to counsel . As the present proceedings are adversary
proceedings ( to say the least) and a finding against Respondent or any or all of the
allegations of the amended complaint would impose sanctions upon it, it had a
constitutional right to have its employees and agents have counsel present when the
statements were taken . Since the opportunity to counsel was not afforded Respond-
ent Company it has been denied its constitutional rights in this respect . Accord-
ingly, to remedy this failure to accord Respondent a fundamental right , it should
have at least been entitled to inspect the statement before testimony was taken at
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hearing .. Therefore , Respondent Company has been deprived of adequate
notice of the charges , its right to counsel , and a fair opportunity to prepare a de-
fense by the arbitrary refusal of General Counsel to produce the statements called
for, and such deprivations are incompatible with the due process clause of the
fifth amendment to the Federal Constitution and not in accordance with funda-
mental - judicial standards for the administration of justice.
The Credibility of the Complainant Barden
The entire case of Barden and of the Board depends on the testimony of a single
witness, namely, Barden himself . A close scrutiny as to his . credibility is therefore
in order.
No contention is here made that Barden 's general reputation for truthtelling was
poor . However , there are a number of instances in the record where his veracity is
open to question . These occurred sporadically throughout the hearing and indi-
cate that Barden was not above either shading the facts or displaying a surprising
lack of candor . The following examples make this readily apparent : ( 1) He denied
having the plans of a certain submarine called Nautilus and then admitted, after
close questioning , that he did have plans for another submarine , named USS Skip-
lack when all during the course of the questioning on this point he knew very well
what answer was called for ; ( 2) he denied repeatedly that he had spoken on various
jobsites about suing the Union and otherwise bringing legal action-he was refuted
by all other witnesses ; ( 3) he gave the impression that Eyvind Anderson talked to
him on numerous occasions concerning the charges which he had filed. Anderson
could recall only one mere mention of this subject and Anderson 's statement , as taken
by the Board agent , himself , makes no mention of it ( Respondent Company's Ex-
hibit No . 1); (4) Barden was very evasive as to his work history in New Jersey and
as to his experience with Unemployment Compensation. These are some of the
instances where Barden 's credibility is open to serious question . It is respectfully
submitted that such lack of candor on his part should impel the Trial Examiner
to find that in instances where there is a conflict of testimony between Barden and
the other witnesses , the doubts should be resolved against Barden.
Brunswick 's Violation of Section 8(a) (1) and (4) of the Act by
Discharging Barden on September 25, 1959
Earl R . Young , service manager for the bowling alley division , had responsibility
for an area encompassing roughly New York State , the northern half of New Jersey,
Connecticut , Metropolitan New York , and Long Island . Young had approximately
18 foremen among whom were Bengston , Anderson , Kornek , and others.
Young testified that Barden came to his attention first the latter part of October
1959 through a letter from the National Labor Relations Board which was represented
at that time by Mr . Crowley. He stated that he investigated the situation by con-
tacting Mr. Crowley and from Bengston to find out what had transpired . He then
stated that the next time he heard about Barden was when Barden called him by
telephone on September 25 saying "that he had difficulty with the foreman and dis-
puted the amount of his pay and that he would like to have me try to straighten
it out:" Barden appeared at the office and Young testified : "I told him I would con-
tact his foreman , investigate it, and if he had the amount of hours coming to him
which he claimed , that I would ' be glad to pay it to him." His testimony as to the
conversation was:
He expressly asked me if I though that the matter was straightened out as to
the matter of his hours being owed to him , and I told him I had not contacted
the foreman yet and I wasn 't clear and I had not come to a decision and he
would have to wait for it. I believe I asked him if he had made any progress on
a supposed case that I heard about from hearsay. He discussed it. I would
not want to verbally go over it word for word because I couldn 't correctly
quote it. However , he emphasized at that time that he in no way held Bruns-
wick or me responsible for anything that had happened . When I say he empha-
sized that more than once , I'll be fairly truthful in saying it was at least twice,
maybe three.
Q. Did you go into the details of the case with him?
A. No, I didn't. If I did, it has passed my memory.
Q. Did Barden ask you for any work at that time?
A. Yes, he did. He asked if there were any future jobs and I referred to a
job as one up the street which was actually two doors up the road on Sylvan
Avenue as approaching the date of beginning However, these dates are
fluctuating due to the availability of material and various factors involved in
the preparation of the building.
BRUNSWICK-BALKE-COLLENDER COMPANY 173
Q. Can you recall whether or not that job started at the time you expected it
to start?
A. No, it didn't.
Q. How much of a delay was there?
A. Oh, I would say a week or ten days, maybe longer, two or three days
longer.
Queried as to whether he ever told Barden to drop his case against the Union,
Young replied: "No, I did not, definitely." The Trial Examiner found on the basis
of demeanor and from the whole record, Barden to be a more credible witness than
Young, and Bengston's conduct remains undenied. Young stated that he had no
objection to reemploying Barden and had done so on the Stadium Lanes job and
had this day in court told Barden that-he would employ him when work was available.
Barden's reaction to his discharge on September 25 and his subsequent conferences
with Bengston and Young at their main offices which ended with their failure to
reemploy him resulted in his filing a charge against -Brunswick on October 12. This
charge and Barden's previous charge against the Union resulted in this case.
The Trial Examiner concluded that the version given by Barden was an accurate
and correct recital of the events. The conclusion is inescapable that the Company
discharged Barden because he would not withdraw his charge against the Union.
Foremen Bengston and Anderson were under pressure from Young to clear this
matter up and when they found Barden to be adamant in his determination to get
even with Local 65, they effected his discharge and were supported in this discharge
by Superintendent Young, himself. Brunswick's subsequent reemployment of Bar-
den does not nullify nor vitiate the violations of Section 8(a)(1), (3), and (4).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Brunswick-Balke-Collender Company set forth
above, occurring in connection with its operations described in section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices it will be
recommended that it cease and desist therefrom, and take certain affirmative and
remedial action designed to effectuate the policies of the Act.
It will be recommended that, in accordance with the Board's usual policies, the
Respondent Company offer to Frederick'G. Barden immediate and full reinstate-'
ment to his former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and make him' whole for any wage losses
incurred as a result of the discrimination against him.
Upon the basis of the foregoing findings of fact, and the entire record in-the, case,
I make the following:
'CONCLUSIONS OF LAW
.1. Local Union 65, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of Frederick
G. Barden, thereby encouraging membership in a labor organization, the Respondent
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (3) of the Act.
4. By discriminating against Frederick G. Barden because he had filed charges
under the Act, the, Respondent Company has engaged in and is engaging in unfair
labor. practices within the meaning of Section 8(a)(4) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent Local Union 65, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, did not commit unfair labor practices alleged in the
complaint and it will be recommended that the complaint be dismissed as to Local
Union 65
[Recommendations omitted from publication.]