Combustion Engineering, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1969

176 N.L.R.B. 332 (N.L.R.B. 1969)

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Tank Company, Division of Combustion
Engineering , Inc. and United Steelworkers of
America , AFL-CIO. Case 16-CA-3351
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
June 3, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULI OCH AND MEMBERS
JENKINS AND ZAGORIA
On March 4. 1969, Trial Examiner Boyd Leedom
issued his Decision in the above-entitled proceeding.
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other alleged unfair labor
practices and recommended dismissal of those
allegations of the complaint. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General
Counsel filed a Reply Brief to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
Act. the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, National Tank
Company, Division of Combustion Engineering,
Inc., Tulsa, Oklahoma, its officers, agents.
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
be, and they hereby are, dismissed.
'The Respondent excepts to the Trial Examiner's credibility findings. It
is the Board 's established policy not to overrule a Trial Examiner's
resolutions with respect to credibility unless, as is not the case here, the
clear preponderance of all the relevant evidence in the case convinces us
that the resolutions are incorrect . Standard Dry Waft Products, Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Accordingly, we find no reason
to disturb the Trial Examiner 's credibility findings in this case.
BOYD LEEDOM, Trial Examiner: This case was tried in
Tulsa, Oklahoma, on September 24 and 25, 1968,
pursuant to a complaint dated July 31 based on a charge
filed June 14, 1968, in behalf of the Union named above.
The complaint alleges that Respondent through certain
interrogations, threats and promises and the
discriminatory assignments and finally three discharges of
its employees violated Section 8(a)(1) and (3) of the
National Labor Relations Act as amended. In its answer
to the complaint Respondent denied the allegations. The
issues raised by the pleadings are whether certain of the
acts alleged actually took place and as to those acts that
did take place, such as the discharges, whether they
constituted violations as charged.
On the basis of the complete record of evidence, the
demeanor of the witnesses as I observed them on the
witness stand and the briefs filed herein, I have
determined that Respondent violated Section 8(a)(1) and
(3) of the Act as hereinafter specified in the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
Jurisdiction
I find and conclude that the allegations of the
complaint as to the nature and extent of the business
carried on by Respondent are true and conclude therefrom
that Respondent is an employer engaged in commerce
within the meaning of the Act. I also find and conclude
that United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of the Act. As to
these matters there is no dispute.
II. THE UNFAIR LABOR PRACTICES
A. The 8(ayl) Violations
Respondent hires over 1,000 employees in the
fabrication of oil and gas field equipment. In March, 1968
the United Steelworkers of America began a campaign to
organize Respondent's employees. The complaint alleges
numerous instances of unlawful interrogation, threats, and
promises by various supervisory personnel. In connection
with all of the violations hereinafter found no question
was raised by Respondent as to the supervisory status of
the person making the alleged unlawful statements; and I
find and conclude from all of the evidence that in each
instance the person making the statement was a
supervisor.
Doyle Culp was foreman of welding bay 7. Charles E.
Busse was a welder, working under Culp's supervision,
who as I hereinafter determine, was unlawfully discharged
by Culp because of the employee's union activity.
The record reveals intermittent periods of friction
between the supervisor and this employee throughout most
of the employment that lasted for about 18 months. Some
of the disagreement was probably due to a tendency on
the part of Busse to take it easy on the job and to assume
that the supervisor was discriminating against him.
The representation election, which the Union won, was
held on May 29, 1968. The record reveals that Culp and
176 NLRB No. 39
NATIONAL TANK CO.
other foremen and supervisors opposed the Union and
advised certain of the employees of their opposition.
Busse testified and I find that Culp came to him 2 or 3
days before the election and told him that "There's going
to be heads roll after this election regardless of how it
goes. . . I don't give a damn whether the Union gets in or
not. There's going to be a lot of people out here looking
for jobs after this is all over with. You can mark my word
on that." Culp denied having made such statement. I
discredit his denial however for several reasons. First,
some of his testimony seems unreasonable: his statement
that Busse 's lack of a helper "absolutely" did not account
for the length of time it took him to build a fire tube. The
lack of a helper must have been a factor in the overall
time taken in the fabrication. And in the light of the
whole record, including Culp's own admission that he
talked to some employees about the union , his answer
"Absolutely not" to the question whether he ever had a
conversation about it with Busse , was wholly unrealistic.
Second, the brevity of Culp's denial of the "heads will
roll" statement - almost a "denial in passing" type
statement - seemed to be made without real conviction.
And third, and perhaps most importantly, Busse's
testimony as to the detail of the words used by Culp, and
the manner in which Busse testified "that heads would
roll" simply seemed much more reasonable and
persuasive.
Furthermore Culp denied having told another
employee, Paul Dean Gough, that he ever told Gough the
Company would like to fire certain employees, including
Busse . Gough had testified that Culp asked him what he
thought about the Union, and stated that the Company" .
. . didn't want to sign a contract"; also that there were
people that the Company didn't want to keep on and
would likely fire them, naming Busse and others. Gough's
testimony, involving as it did a reference to a statement
by Culp, that transfers rather than discharges might be
involved, seemed entirely credible and actually in
conformity with transfers made prior to two ultimate
discharges. These statements made by Culp to Busse and
to Gough clearly violate Section 8(a)(1) of the Act.
I also find and conclude that a few days before the
election Culp told another employee, Vernon Buttress that
when the election was over they were going to have to
shape up around the plant and that management would be
making some changes, that there would be rules and
regulations to go by. Culp did not deny making this
statement but rather testified that he did not recall it but
would not say that he did not make the statement to
Buttress. There is no reason to question the veracity of
Buttress' testimony and it is credited. Clearly this
statement to Buttress in a context of a discussion about
the Union, was threatening, and I find, and conclude in
violation of Section 8(a)(1) of the Act.
John Parks was a supervisor in the sand blasting
department. Employee Calvin Boswell testified that Parks,
his foreman, spoke to him often about the Union
beginning about 3 weeks before the representation
election. Some of these conversations respecting the Union
occurred in the foreman's office, with other employees
present. Boswell testified that in such a conversation with
Parks, about 2 weeks before the election, Parks asked
Boswell to give him some of the reasons why he thought
the Union would help the Company and the employees.
Parks then stated that if the Union was voted in things
around the plant would be different, - the loafing would
stop, and the work would pick up. Parks said he would
see to it that the employees stayed busy most of the time,
333
- all of the time, - if the Union was voted in, also that
if the Union were selected as the employees' representative
it would be impossible for a contract to be entered into
for at least a year and that during this time there would
be no wage increases and more than likely no Christmas
bonus at all. Boswell also testified that on another
occasion at a neighboring grocery store where it was
common for the employees to go after work and drink
beer, John Parks said he had picked Boswell for a
leadmans job and that if Parks would quit pushing the
Union so much he would make Boswell a leadman "when
this was all settled." Boswell testified he indicated he
really wasn't interested in the job, because it paid only 21
or 22 cents more an hour than he was making, and that
considerably more was required of a leadman.
Parks, called as a witness in behalf of Respondent,
testified at the outset that he had never asked any of the
employees what their feelings were about the Union. Even
according to his own later testimony respecting his
conversations with some of the employees, his denial that
he ever sought to ascertain their feelings, becomes
incredible. When asked specifically as to whether he had
ever told any employee that if the Union won the election
there would be no more loafing, he would not
categorically deny having made such statement but rather
gave a somewhat lengthy explanation culminating in his
statement, which his preliminary explanation seemed to
justify to him, that they would have to change their ways
and " . . go to work, because at this time it seemed that
these men were not putting out what they had previously
and that their work had slowed down." His explanation
which he rested on the Union's motto, " .. . an honest
day's work for an honest day's pay" seemed from his
testimony also to serve as self-justification for the
statement charged against him that there would be no
wage increases. Thus he testified that he felt for "a wage
increase they would have to do more work." In additional
testimony he seemed to admit by implication that he had
said there would be no wage increases, explaining that in a
previous election, before Respondent had instituted
automatic wage increases, the wages were frozen prior to
the earlier election. The only reasonable interpretation of
his explanation is that he had told the employees
respecting the current election that because of the
precedent of no increases at the earlier election, the same
rule would apply now and there would be no increases at
least not until the contract was made; then, he explained,
he had misinterpreted the situation and had been so
advised by his superior and that he sought to correct the
current misinformation he had previously given the
employees. The testimony of the employee Boswell was
forthright insofar as I could ascertain from his demeanor,
and in substance was reasonable. I therefore credit it over
the somewhat involved testimony of Supervisor Parks
which in the final analysis was not so much a denial as it
was an effort to justify the statements charged against
him, but which, on the surface, was given as a denial.
Parks made a categorical denial that he ever offered a
leadmans job to Boswell. Because however of the lack of
directness of the whole body of his testimony, its resulting
evasiveness and the persuasiveness of Boswell's testimony,
I credit Boswell and discredit Parks. Consequently I find
and conclude that Parks did tell Boswell and other
employees that, if the Union came in, working conditions
would change, that is that there would be less loafing and
more hard work, that wage increases would be slow in
coming, that the Company would be reluctant to sign a
collective-bargaining agreement; and that there would
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
likely be no Christmas bonus at all (weakening his denial
by adding the company had never guaranteed such bonus
any way ); furthermore that he promised a leadman's job
to Boswell if Boswell would let up in his support of the
Union . The latter statement is a clear promise of reward
for not supporting the Union , and the statements first
mentioned are threats of reprisal for continued support,
all in violation of Section 8(axl) of the Act.
Tony Loretta was a foreman in welding bay 10, where
many if not all employees learning a welder 's skill were
started out. Carl Oldham , a welder 's helper working for
Loretta, testified that after the election the foreman told
the employees in his bay that the coffee break would be
cut from 15 to 10 minutes , and did thereafter reduce the
nonworking time accordingly . Loretta did not testify and
so there is no direct refutation of the statement attributed
to him by Oldham . Respondent did however call Robert
W. Greenwood , one of three assistants to the plant
superintendent , as a witness . Among other things
Greenwood testified in effect that there was never a hard
and fast rule about the time allowed for a coffee break,
but that in Loretta ' s bay there was a tendency for the
employees to abuse the privilege , taking sometimes more
than one break in the morning and often excessive time;
that he "went by there " and told the employees to try to
hold it down to 10 minutes , that management couldn't
tolerate so much abuse ; and that this effort to correct the
practice , coming soon after the election, was like other
previous attempts made to eliminate abuse of the custom
of coffee drinking that had grown up among the
employees.
In view however of the whole body of testimony,
revealing as it does (according to my findings and
conclusions ) not only coercive opposition to the Union
prior to the election , but certain other acts of retaliation
afterward , I find and conclude that this change in the
practice relative to the coffee break was made in
retaliation for the employees ' support of the Union, and
therefore in violation of Section 8(a)(l) of the Act. The
testimony of the employee Richard Fisher supports this
finding . He said on the witness stand that right after the
election Loretta, the witness ' foreman at the time , told the
employees that Greenwood had requested that he tell all
the employees in his bay that the coffeebreak would be cut
from 15 minutes to 10 minutes . The testimony of the
employees in this connection , all intrinsically related to
the results of the election , is more persuasive than the
conclusary testimony of the supervisory personnel that the
privilege was being abused . Even according to the latter's
testimony a 15-minute break was deemed acceptable
practice prior to the election ; but the corrective action
applied did not limit it to 15 minutes but imposed a
5-minute reduction to 10 minutes , - action hardly
accountable under any theory other than as retaliation.
Fisher also testified that Loretta, both before and after
the election , interrogated him concerning his interest in
the Union . Against the background of the conduct of
Loretta and other supervisors, much of which violated the
Act, I find that this interrogation of Fisher also violated
Section 8(a)(l) of the Act . Inasmuch as Loretta did not
testify, there is no refutation of Fisher's testimony and he
seemed to be a credible witness in all respects.
Another allegation of violation of Section 8(a)(1) by
Tony Loretta is not supported by the evidence . It relates
to testimony of the employee Carl Oldham who clearly
was convinced that Loretta was engaging in harassment of
Oldham and other employees because of their union
activity. As to the one most significant incident in this
connection , Oldham testified he copied into his "little
notebook " Loretta's statement that he would fire the next
man who came down to the work area of Oldham and
Carl Fisher. Oldham's testimony however, relates the
foreman 's attitude to union activity so uncertainly, if at
all, that it is not deemed adequate support for a finding of
violation of the Act.
I do find and conclude however from the testimony of
Fisher that Foreman Loretta did violate Section 8(a)(1) of
the Act in another incident. Fisher testified, and I find,
that soon after Fisher and some 20 or 25 other employees
had signed a letter directed to Loretta complaining of his
conduct toward the employees because of their union
activity, Loretta came to Fisher and Carl Oldham, where
they were working, and told them that Union or no Union
they could be fired and that he was going to quit popping
off and "just start firing people ." This constitutes a clear
threat of reprisal for the employees' support of the Union.
It is noted again that inasmuch as Loretta was not called
to testify , there is no refutation of this testimony of the
employee.
The employee Charles E . Busse testified that in one of
several trips he made to the office of then Plant Manager
Jack Godwin to complain about the way he was treated
by his Foreman Doyle Culp, Godwin invited him into the
office to talk about the Union. There he was asked by
Godwin what it was that the Union was offering to make
things better , how many men were supporting the Union,
and stated that the Union would not do any good but only
take money out of the employees ' pockets once a month.
While Godwin took the stand to testify respecting Busse's
work record , more specifically his absenteeism and his
attitude toward his foreman , all of which was related to
his subsequent discharge, Godwin did not deny that he
made the inquiries respecting the Union , attributed to him
by Busse . Against the established background of
management interference with the employees Section 7
rights I find these interrogations and comments by
Godwin to be in violation of Section 8(a)(1) of the Act.
Other allegations of independent violation of Section
8(axl) relate to interrogations by supervisory personnel
somewhat like those heretofore found to constitute
violations . Some of these allegations appear to be
supported by the evidence but are of such nature as to add
nothing to the remedy in the case , and such as hardly
justify extending this decision . The issues raised by these
allegations are therefore not here resolved.
B. The 8(aX3) Violations
I find and conclude for all of the reasons hereinafter set
forth that Respondent discharged Charles E . Busse, Carl
Oldham, and Alfred Rice because of their support of the
Union , all in violation of Section 8(a)(3) of the Act. All
three employees were ardent supporters of the Union both
before and after the representation election ; and according
to the record of evidence were well known as such
throughout the plant . From such evidence (concerning
which there is no real dispute ) I find and conclude that the
Company had knowledge of these employees' union
activity at the time of their unlawful discharges.
1. Alfred Rice
The evidence fails to disclose any substantial lawful
reason , whatever , for the discharge of Alfred Rice. He
was fired suddenly the morning after the discharge of
NATIONAL TANK CO.
Charles Busse . Having learned of Busse's discharge the
evening of the day it occurred as they left work, Rice and
Oldham made plans to call on Busse's foreman, Culp, to
discuss Busse 's discharge before reporting for work the
next morning. Accordingly they went to the foreman's
office and Oldham asked if Culp would step outside to
talk to him. Then ensued a conversation between Oldham
and Culp about the discharge the night before.
The discrepancies in the versions of the two participants
as to the conversation, according to their testimony, are
slight and not of substantial legal significance . According
to both it was a heated discussion which Oldham opened
with either a question or a statement indicating that Busse
had been fired because of his union activity. The evidence
indicates that Culp then either gave a reason for firing
Busse or asked if Oldham was threatening him. As Culp
turned and moved back toward the office door he
responded to the charge that Busse had been fired for
union activity by saying he didn't give a damn what
Oldham thought; and Oldham made the statement,
according to his own testimony, that Culp should be glad
that it wasn't Oldham he fired. It was likely at this point
Culp asked whether this constituted a threat. Oldham
answered that it wasn't but that he just wouldn't have
taken the kind of treatment Busse got when he was fired,
interspersing his words with a vulgar expletive . Thus the
conversation ended; Culp returned to his office and the
two employees went to work . Both were fired in a matter
of minutes after the incident had been reported by Culp to
his superiors.
Throughout the conversation Rice said not a word.
Culp's reference to Rice in his testimony about this
incident was that Rice merely stood some short distance
away and sneered at him.
In the brief, Respondent simply argues (as to Rice) that
"Oldham and Rice were discharged after they literally
accosted Supervisor Culp in an insolent and insubordinate
manner ." By this statement Respondent seeks to involve
Rice in complicity with Oldham whose conduct, it is
argued , was such that his discharge was unlawful.
Respondent, however, cites no authority and none is
known , that holds one employee guilty of insubordination
by reason of his mere presence (as here) when another
employee engages in insubordinate language with a
superior. And if there were any such theory the
insubordination of the passive bystander would of course
depend on actual insubordination on the part of his fellow
employee. Inasmuch, as hereinafter appears, the
authorities do not support Respondent ' s contention that it
was justified in discharging Oldham for insubordination, it
follows the summary discharge of Rice was not justified
for two reasons, first that he could not be held responsible
for Oldham ' s language ; and second that Oldham's
language was not in itself insubordinate . Thus it follows
that the discharge of Rice was not for just cause and
therefore cannot be accounted for on any ground
excepting retaliation for his union activity. This I find and
conclude was the reason he was discharged , in violation of
Section 8(a)(3) of the Act. Not only was the Rice
discharge unlawful but it tends to bring into focus the
unlawful intention in the two other discharges involved,
those of Busse and Oldham , in neither of which is the
unlawful intention quite so clear as in the case of Rice.
2. Oldham
335
Carl Oldham was admittedly a strong supporter of the
Union in its effort to organize Respondent's employees.
He was in fact a zealot , so enthusiastic and aggressive in
his efforts to win the election for the Union, that the
evidence respecting his conduct clearly justifies the
inference that he was a thorn in the side of management,
- to management clearly offensive in much that he did.
It is of course the law that an excess of exuberance
combined with total commitment to the principal of
collective bargaining can carry an employee beyond the
law's protection of his right to engage in concerted action
with other employees for their own good. Respondent's
management decided that Oldham had reached such point
of excess when he called on Foreman Culp to reprimand
him for firing Busse; for Culp's discharge of both Oldham
and Rice had at least the silent blessing of the plant
superintendent . Respondent argues and seeks to cite
authority for the proposition that Oldham had gone
beyond the limit of protected activity. Counsel for the
General Counsel on the other hand, cites authority which
in his opinion holds that Oldham's conduct was protected.
By most any standard Oldham had made a nuisance of
himself throughout the organizational campaign. Not all
nuisances however are unlawful ; and as hereinafter
appears I find that the authorities cited by counsel for the
General Counsel are more apposite in the circumstances
of this case than the authorities cited by Respondent.
Under the decisions of the Board Oldham's conduct (and
Rice's too of course) seems to be protected activity. See
Hugh H. Wilson Corporation, 171 NLRB No. 145;
Falcon Plastics, etc., 164 NLRB No. 101; and Thor
Power Tool Co., 148 NLRB 1379.
In all probability Oldham's hostility the morning of his
encounter with Culp was due in part to the fact that he
had been transferred 2 days before to a task more arduous
and less desirable than the work involved in his regular
classification of welder's helper.
The day before Oldham was transferred to the bolted
tank division, where he was put to work loading tanks
into box cars, he had written and delivered a letter to his
own foreman Tony Loretta, that was critical of Loretta's
"harassment" of the employees. I find and conclude that
the transfer from the welding bay to bolted tanks was
discriminatory and made in retaliation for, and to
discourage, his support of the Union. While it was not
uncommon for Respondent to transfer an employee from
one department to another, as revealed by Respondent's
Exhibit 1, it is clear that usually such transfer was made
to a department or part of the operation requiring extra
help, and at the request of the foreman of the department
where the help was needed. The timing of the transfer of
Oldham, following so closely the delivery of the letter to
Loretta , makes the reason for his transfer suspect,
especially against the background of the friction that had
grown up between Loretta and Oldham over the Union;
and the fact that the foreman of the bolted tank division
did not even know that Oldham was being sent to him,
preponderates in favor of the finding and conclusion that
the assignment was discriminatory and in violation of
Section 8(a)(3) of the Act. Oldham's testimony, which I
credit, to the effect that the foreman at bolted tanks did
not ask for him, did not even know that he was being
assigned there for work, but that he would nevertheless
find something for him to do, is not refuted. This foreman
was not called to testify.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 Charles E. Busse
I think it fair to say that the evidence as a whole
reveals that at certain times at, least during his
employment with Respondent , Busse ' s record was not the
best . Specifically the record reveals his absenteeism was
high and he was admonished about it in February of 1968,
prior to the instigation of the Union 's campaign in the
plant. Busse had, however, worked to the top classification
of welder and had been given a succession of pay
increases . This record of promotions, indicating a
reasonably satisfactory record at least prior to the
difficulties growing out of the Union campaign, plus the
circumstances of the discharge hereafter discussed, lead to
the conclusion that the discharge was actually
discriminatory.
I have already indicated that Culp's testimony - to the
effect that Busse 's lack of a helper would have nothing to
do with his rate of production, was not impressive. On the
other hand Busse ' s recital of the difficulties under which
he worked without a helper seems to make it quite clear
that his production rate would have been appreciably
better if he had a helper to perform the helper's tasks he
enumerated. Thus the evidence adduced in behalf of
Respondent to establish a record of poor production, or
that Busse was a poor worker , as a factor in his discharge,
loses much force. In addition to this, the reason stated as
the immediate cause for Busse's discharge , that is that he
quit early on the day of the discharge, is hardly a
reasonable ground . The testimony of Busse and of Culp,
the two principals involved in the discharge, leaves one in
doubt as to whether Busse actually quit productive work
any earlier than he should have , allowing for usual clean
up time at the end of the day.
Another telling circumstance in the evidence respecting
the discharge of Busse , is his testimony as to his
conversation with the plant superintendent. His testimony
stands unrefuted that when he went to the plant
superintendent to advise him that Foreman Culp had fired
him, the plant superintendent said that he knew nothing
about it but that "there are things going on right now that
don't look right to me in this plant, but there is nothing I
can do about it. I have got to stand behind what my
foremen say." Not only was the plant superintendent not
called to testify, leaving the Busse testimony in this
respect not in dispute as stated , but Busse ' s story from
which the foregoing is an excerpt, was impressive and I
credit it. Culp's statement to Gough, heretofore
mentioned, that Respondent did not want to keep on
certain employees , including Busse , also damages
Respondent 's defense. I cannot find substantial support in
the evidence for Respondent's contention that it fired
Busse for justifiable cause . On the contrary I find by a
preponderance of the evidence that the discharge was
discriminatory and in violation of Section 8(a)(3) as
herembefore stated
4. The Fisher allegations
I find that the proof adduced by counsel for the
General Counsel in support of the allegations of the
complaint that employee Richard Fisher was
discriminatorily assigned to more arduous and less
agreeable tasks , and was denied a half day's pay by being
forced to punch out his timecard prematurely, is not
sufficiently substantial to support these allegations; and
therefore recommend that the complaint as to these
allegations be dismissed.
III. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend that
it cease and desist therefrom and take certain affirmative
actions more fully set forth in the recommended order
that follows, including the posting of an appropriate
notice, to effectuate the policies of the Act.
In view of the nature of the Respondent's unlawful
conduct and its underlying purpose and tendency, I find
that the unfair labor practices found are persuasively
related to other unfair labor practices proscribed and the
danger of their commission in the future is to be
anticipated in the course of Respondent's conduct as
revealed in the instant case. N.L.R.B. v. Express
Publishing Company, 312 U.S. 426, 437; N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). In order
therefore to make effective the interdependent guarantees
of Section 7, I shall recommend that the Respondent
cease and desist from infringing in any manner upon the
rights guaranteed in said section.
Where unlawful discrimination has been found against
any employee he shall be made whole for any loss of pay
suffered by reason of the discrimination against him, by
payment of a sum of money equal to the amount he
would normally have earned as wages from the date on
which his employement was terminated by Respondent to
the date on which Respondent shall offer him proper
reinstatement as herein provided, less his interim net
earnings , to be computed on a quarterly basis in a manner
set forth in F. W. Woolworth Company, 90 NLRB 289.
Interest on backpay shall be computed in the manner set
forth in Isis Plumbing & Heating Co., Inc. 138 NLRB
716.
RECOMMENDED ORDER
Upon the entire record in this case and the foregoing
findings of fact and conclusions of law, I recommend that
National Tank Company, Division of Combustion
Engineering , Inc., its officers , agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Discharging , transferring to more arduous and less
desirable tasks, or otherwise discriminating against
employees in regard to hire or tenure of employment or
any term or condition of employment in order to
discourage membership in United Steelworkers of
America , AFL-CIO or any other labor organization.
(b) Interrogating any employee concerning activity in
respect to union organization by him or other employees
in a manner constituting a violation of Section 8(a)(1) of
the National Labor Relations Act, as amended.
(c) Threatening employees with discharge or other
reprisals if they become or remain members of the Union
or give any assistance or support to it.
(d) Promising any employees with a promotion or other
reward if they will cease or refuse to become members of
the Union or give any assistance or support to it.
(e) Altering working conditions or imposing rules for
the purpose of defeating or discouraging the
organizational efforts of its employees , or in retaliation
for their support of the Steelworkers of America,
AFL-CIO.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization , to form, join, or assist United
NATIONAL TANK CO. 337
Steelworkers of America , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective
bargaining or mutual aid or protection , and 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 authorized by
Section 8 ( a)(3) of said Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to the employees Charles E. Busse, Carl
Oldham , and Alfred Rice reinstatement to positions in
their former or substantially equivalent classifications,
without prejudice to their seniority and other rights and
privileges previously enjoyed ; and to make each such
employee whole for any loss he may have suffered by
reason of the Respondent 's discrimination against him in
the manner described in "The Remedy " section of this
Decision.
(b) Notify employees Busse , Oldham , and Rice, if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act as amended,
after discharge from the Armed Services.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this
Order.
(d) Post at its plant in Tulsa , Oklahoma , copies of the
attached notice marked "Appendix ."' Copies of said
notice, on forms provided by the Regional Director of
Region 16 , after being signed by a duly authorized
representative , shall be posted by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that such
notices are not altered , defaced or covered by any
material.
(e) Notify the Regional Director for Region 16, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended we hereby notify our
employees that:
WE WILL NOT coercively interrogate our employees
regarding their, or other employees' activities or
sympathies for or against any union.
WE WILL NOT fire any employee or transfer him to
more arduous or less desirable tasks, or treat him
differently in any way because he joins or favors the
United Steel Workers of America, AFL-CIO, or any
other labor organization.
WE WILL NOT threaten to change working conditions
or impose rules and regulations, or actually change, or
impose them, unlawfully because you joined or
supported or shall continue to support, a union.
WE WILL NOT promise any employee a promotion or
any other reward for not supporting or joining the
Union, nor will we threaten to discharge any employee,
or make any other threats, because he supports or joins
the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to self organization, to form, join, or assist
United Steelworkers of America, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or mutual aid or protection, and to refrain
from any or all such activities (except to the extent that
such right may be affected by an agreement requiring
membership in the labor organization as authorized by
Section 8(a)(3) of said act.)
WE WILL offer Charles E. Busse, Carl Oldham and
Alfred Rice their old jobs back because we violated the
law when we fired them and we will give them backpay,
with seniority and all their other rights, as required by
the law.
All our employees are free to become or remain
members of the Steelworkers of America, AFL-CIO or
any other labor organization.
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court,of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
Dated By
NATIONAL TANK
COMPANY, DIVISION OF
COMBUSTION
ENGINEERING, INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas,
Telephone 817-334-3921.