Fort Worth Steel and Machinery Co.

National Labor Relations Board - Board Decisions

Nov 25, 1959

125 N.L.R.B. 371 (N.L.R.B. 1959)

FORT WORTH STEEL AND MACHINERY COMPANY 371
preserve and make available to the Board or its agents , upon request, for examina-
tion and copying , all payroll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to analyze the amounts
of vacation pay due under the terms of these recommendations I shall` recommend
further, in order to make effective the interdependent guarantees of Section 7 of the
Act, that the Respondents cease and desist from , in any manner, infringing upon the
rights guaranteed in said Section N L R B v Express Publishing Co, 312 U S 426;
N LJLB v Entwistle Mfg Co, 120 F 2d 532 (C A 4)
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following
CONCLUSIONS OF Lbw
1 The Union is a labor organization within the meaning of Section 2(5) of the
Act
2 All production and maintenance employees at the Respondents ' operations in
Harvey, Louisiana, including leadermen, crane operators , hyster operators, main-
tenance men, welders, and laborers, but excluding all office clerical employees, pro-
fessional employees , guards, watchmen, foremen, and other supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
3 The Union, on October 2, 1957, was, and at all times thereafter has been, the
exclusive representative of all employees in such unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act
4 By refusing to bargain collectively with the Union as the exclusive representa-
tive of their employees in an appropriate unit, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act
5 By discriminating in regard to the hire and tenure of employment of employ-
ees, thereby discouraging membership in a labor organization, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act
6 By interfering with, restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act
7 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act
[Recommendations omitted from publication I
Fort Worth Steel and Machinery Company and International
Molders and Foundr y Workers of North America, AFL-CIO,
Local #2 Case No 16-CA-1203 November 25, 1959
DECISION AND ORDER
On June 18, 1959, Trial Examiner Eugene K Kennedy issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as iset forth in the copy of the
Intermediate Report attached hereto Thereafter the Respondent
filed exceptions to the Intermediate Report and a supporting 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, Jenkins, and Fanning]
125 NLRB No 26
r
;37'2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
,at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report,' the exceptions and brief, and the entire record in
this case ,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications :
1. We find, in agreement with the Trial Examiner, that the Re-
:spondent's conduct in discharging Dwalin Doyle Cruson on December
12, 1958, constituted unlawful interference with the organizational
.activities of its employees, in violation of Section 8(a) (1) of the Act.
In finding that the Respondent had knowledge of Cruson' s union
.activity at the time of the discharge, we rely on the following: (a) The
clear evidence of Respondent's general intent to learn the identity of
the leader of the union's organizational drive and to discharge him;
(b) the fact that Cruson was the leader in the union drive; (c) the
interrogation of Cruson by Plant Superintendent Scoggins regarding
Cruson's union activity and the general union activity in the plant;
(d) the fact that Cruson had personally solicited 35-36 union authori-
zation cards out of an approximate employee complement of 45 in the
plant; (e) the conversation between Cruson and Segura, the general
foreman, in which Cruson told Segura that "we are figuring on trying
to get ... [a union] in"; and (f) the multiplicity of reasons given
by Respondent for Cruson's abrupt discharge, all of which were
properly found pretextuous and rejected by the Trial Examiner. We
do not find it necessary, however, to decide whether or not the classifi-
cation of "maintenance department supervisor" entailed supervisory
powers under the Act's definition as of the time Cruson was dis-
charged, and whether Section 8(a) (3) was violated, inasmuch as the
remedy necessary to effectuate the policies of the Act is identical under
the Section 8 (a) (1) violation found.'
2. We agree with the Trial Examiner that the Respondent com-
mitted independent violations of Section 8(a) (1) of the Act by inter-
rogating 4 employees in regard to their union activities, in the context
.of the other violations in this case,' and by the plant superintendent's
threat that "he would like to find out who was behind the union so
that he could have the pure pleasure of firing him."
' In connection with interrogation by General Foreman Segura and Plant Superintendent
Scoggins , the Intermediate Report inadvertently referred to Section 8(b) (1) (A), instead
of to Section 8(a) (1). The correction is hereby noted.
2 The Respondent requested oral argument. The request is hereby denied as the
record and the exceptions and briefs adequately present the issues and positions of the
parties.
3 Modern Linen f• Laundry Service, 116 NLRB 1974; Talladega Cotton Factory, Inc.,
106 NLRB 295, enfd. 213 F. 2d 208 (C.A. 5).
4 We do not adopt the Trial Examiner ' s finding of a violation as to the questioning
of employee Dancer by General Foreman Segura, in view of Dancer's testimony indicat-
ing that be regarded it as having been made in a jocular vein.
e See Blue Flash Express , Inc., 109 NLRB 591.
FORT WORTH STEEL AND MACHINERY COMPANY 373
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Fort Worth Steel and
Machinery Company, Fort Worth, Texas, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act, by dis-
charging or in any other manner discriminating against any individual
in regard to his hire or tenure of employment or any term or condition
of employment.
(b) Threatening to discharge employees because of union activities,
or interrogating employees with respect to their union activities in a
manner constituting interference, restraint, or coercion in violation
of Section 8 (a) (1) of the 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 assist International Molders and
Foundry Workers of North America, AFL-CIO, Local .#2, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Dwahn Doyle Cruson immediate and full reinstate-
ment to his former or substantially equivalent position without prej-
udice to his seniority or other rights and privileges.
(b) Make whole Dwahn Doyle Cruson, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy," for
any loss of wages he may have incurred as a result of the discrimina-
tion against him.
(c) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all records necessary to determine the amount of back pay due
and the right of employment under the terms of the Order.
535828-60-vol. 125-25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant in Dallas, Texas, copies of the notice attached
hereto marked "Appendix." 6 Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region of the National
Labor Relations Board, shall, after being signed by a duly authorized
representative of the Respondent, be posted by it immediately upon
receipt thereof, in conspicuous places, including all places where
notices to employees are customarily posted, and maintained by it for
60 consecutive days thereafter. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material. ,
(e) Notify the Regional Director for the Sixteenth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed in Section 7 of the Act, by
discharging or in any other manner discriminating against any
individual in regard to his hire or tenure of employment or any
term or condition of employment.
WE WILL NOT threaten to discharge our employees because of
union activities, or interrogate our employees with respect to their
union activities in a manner constituting interference, restraint,
or coercion in violation of Section 8 (a) (1) of the National Labor
Relations Act.
WE WILL NOT, in any other manner, interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist International
Molders and Foundry Workers of North America, AFL-CIO,
Local #2, 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 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 National Labor Relations Act.
FORT WORTH STEEL AND MACHINERY COMPANY 375
WE wrLL offer Dwahn Doyle Cruson immediate and full rein-
statement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and
we will make him whole for any loss of pay he may have suffered
as a result of discrimination which we practiced against him.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the National Labor Relations Act.
FORT WORTH STEEL AND MACHINERY CODIPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was heard in Fort Worth, Texas, following the filing of a charge and
the issuing of a complaint by the General Counsel of the National Labor Relations
Board on April 20 and 21, 1959. The complaint alleged in substance that the Fort
Worth Steel and Machinery Company, herein called the Employer, violated Section.
8(a) (1) and (3) of the National Labor Relations Act by the discharge of employee
Cruson and by other acts violating the rights of employees guaranteed by Section
7 of the Act. The General Counsel of the National Labor Relations Board, the
Employer, and the International Molders and Foundry Workers of North America,
AFL-CIO, Local #2, herein called the Union, were all represented at the hearing.
Briefs have been received and considered, which were submitted by the Employer
and the General Counsel.
Upon the entire record in the case, and upon my observation of the witnesses, I
make the following:
. FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The amended complaint alleges and the Employer admits the following: The
Employer is a Texas corporation with its principal office in Fort Worth, Texas. At
all times material it has been engaged in the manufacture and distribution of mechan-
ical power transmission equipment and material handling equipment at its plant in
Fort Worth. It is engaged in the manufacture of gray iron castings, from 90 to 100
percent of which are delivered annually from its Dallas operation to its Fort Worth
operation for further manufacturing and processing, which goods are valued at in
excess of $50,000. The total annual volume of business in Respondent's entire
operation in Dallas and Fort Worth is in excess of $100,000 worth of goods and
finished products which were shipped directly outside the State of Texas. During
the same period Respondent purchased materials which were shipped directly to its
Texas operation from outside the State, valued at in excess of $100,000.
,It is found that the operations of the Employer's Dallas plant affect commerce
within the meaning of the Act. Jurisdiction is to be determined on the totality of
the Employer's operations. Potato Growers Cooperative Company, 115 NLRB 1281.
Moreover, since the hearing was held in this unfair labor practice proceeding,
the Board has issued a Decision and Direction of Election in Case No. 16-RC-2454,
finding that the Dallas operation of the Employer affected commerce within the
meaning of the Act.
II. THE. LABOR ORGANIZATION INVOLVED
The parties stipulated that the International Molders and Foundry Workers of
North America,. AFL-CIO, Local #2, is a labor organization within the meaning of
Section 2(5) of the Act, and it is so found.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The events developed by this record present the issues as to whether: (1) Cruson
was a supervisor or an employee within the meaning of the Act; (2) Cruson was
discriminatorily discharged in violation of Section 8(a)(1) and (3) of the Act; and
(3) the Employer committed independent violations of Section 8(a)(1) by inter-
rogating employees with respect to union affiliation and allied activities.
The Employer's operations in Dallas and Fort Worth are both under the man-
agement of Works Manager and Vice President Rey Hawley. Personnel records
of the Dallas and Fort Worth operation are maintained in Fort Worth, which is
the main office. The Fort Worth plant has about 145 production and maintenance
employees and the Dallas plant, approximately 40.
The Employer's brief submitted in connection with this case had attached a copy
of the Board's Decision and Direction of Election of the production and maintenance
employees of the Dallas plant dated May 5, 1959. In that Direction of Election, the
maintenance department supervisor was found by the Board to be a supervisory
employee within the meaning of Section 2(11) of the Act. The General Counsel,
in his brief, contends that this record was made on the basis of the successor to
Cruson, whose discriminatory discharge is an issue in this matter, and that the
determinative factor is that there is no evidence in this record to show that Cruson
was ever informed as to his supervisorial duties. Close examination of the record
supports the position of the General Counsel in this regard, as there is no probative
evidence which the Respondent Employer offered in support of the proposition that
Cruson was informed as to his supervisorial status.
Irrespective of the conclusion just indicated, as will be detailed below, it is imma-
terial with respect to a potential remedy whether or not Cruson was a supervisor
within the meaning of the Act, inasmuch as the finding that Section 8(a)(1) was
violated in connection with Cruson's discharge would necessitate the recommending
his reinstatement because of the circumstances under which he was discharged and
the obvious effect that it would have upon the organizational activities of the other
employees. Modern Linen & Laundry Service, Inc., 116 NLRB 1974; Boyles Gal-
vanizing Company of Colorado, 121 NLRB 1373. In this latter case the Board
stated as follows:
However, we find it unnecessary to decide whether or not this conduct was
also violative of Section 8(a)(3) of the Act inasmuch as the remedy necessary
to effectuate the policies of the Act would be identical in either case.
Inasmuch as the supervisorial status of Cruson was litigated at length and the
determination of the Board on May 5, 1959, would not apply to Cruson, but to his
successor, the findings and conclusions of the Trial Examiner with respect to the
supervisory status of Cruson will be set forth.
A. The supervisory status of Cruson
The Employer relies on three principal factors to demonstrate that Cruson was
a supervisor within the meaning of the Act.
(1) On March 7, 1956, in connection with a 10-cent an hour raise, the personnel
record of Cruson reflects that his classification was changed to maintenance foreman
from maintenance mechanic.
(2) In November 1958 Cruson was asked by the acting Dallas plant superin-
tendent, Scoggins, which of the three people in the maintenance department should
get a raise, and Cruson expressed his view that Rube Hitchcock should get the raise.
After this conversation Hitchcock got a 5-cent an hour increase.
(3) Cruson attended meetings with Hawley which included four or five other
individuals, some of whom at least were supervisors.
With respect to the characterization of Cruson as a foreman, his testimony is
credited that he was unaware that his record contained the term maintenance fore-
man. The Employer offered no probative evidence that Cruson was informed as to
this title at any time.
The single incident of Cruson suggesting that Hitchcock get a raise-forthcoming
in the maintenance department after Scoggins asked his opinion-is equivocal as
to the effectiveness of Cruson's recommendation, in view of the fact that Hitchcock
had obtained prior raises without any consultation with Cruson, and because Scog-
gins, who had only a few months prior been a clerk at the Dallas plant, and who had
known Cruson when their positions at the plant were on a comparable status, would
not unnaturally as a matter of courtesy ask the opinion of an older employee with
respect to something such as raises in the three-man maintenance department.
FORT WORTH STEEL AND MACHINERY COMPANY 377
The attendance of Cruson at meetings concerning the Dallas operations would
be a natural consequence of Cruson having demonstrated that he was an effective
and skillful maintenance mechanic and does not in the context of this record
indicate that he was a supervisorial employee. Dowdy, maintenance leadman at
Fort Worth, attended supervisors' meetings according to Hawley.
The determination as to whether Cruson was a supervisor, in the opinion of the
Trial Examiner, must turn on what the record reflects as to his functions in the
maintenance department and facts independent of Cruson's or the Employer's con-
clusions as to his supervisory status within the meaning of the Act.
Cruson credibly testified that he worked 100 percent of the time. This work
obviously included some paper work such as keeping time records and ordering parts,
which some of the other two or on occasion three personnel in the department also did.
Former Dallas Plant Superintendent Knuepfer testified that he strongly recom-
mended that he get some actual supervisory personnel on a salary basis, and that he
finally obtained permission from the Fort Worth office to put two of the people at
Dallas on salary which did not include Cruson. Knuepfer testified that Cruson was
the only qualified maintenance mechanic at the Dallas plant and that he regarded
him as a leadman. Knuepfer was terminated on September 1, 1958, and also testified
that he had never seen the record which characterized Cruson as a maintenance
foreman. His characterization of Cruson as a leadman is not regarded as deter-
minative in itself of the supervisory status of Cruson. However, in the judgment of
the Trial Examiner it is compatible with the actual status of Cruson. Hitchcock,
who succeeded Cruson as the top man in the Dallas maintenance department, testified
that he also worked with his hands 8 hours a day and also expressed his opinion that
Cruson worked 8 hours a day. His testimony also indicated that in the maintenance
department Cruson was the most skilled employee and that sometimes Hitchcock
would ask Cruson for assistance as well as Cruson asking Hitchcock for assistance
to perform certain tasks, and that after Hitchcock became familiar with them he
had no further nede to consult Cruson with respect to those tasks. Hitchcock also
on request did work for others in the Dallas plant.
Perhaps of most significance in connection with the supervisory status of Cruson
is the status of the Fort Worth maintenance department head. The record reflects
that Hawley, the works manager , classified Dowdy as a lead man in the bargaining
unit , despite that it was undisputed that he did not wear working clothes, as did
Cruson, and that he had an office in a plant with approximately 150 employees as
contrasted to the plant where Cruson worked with about 45 employees. If Dowdy,
the head of the maintenance department, was a leadman at Fort Worth for this reason
and the other considerations indicated herein , it is concluded that Cruson was an
employee at the time of his discharge on December 12, 1958, and not a supervisor
within the meaning of the Act.
B. The question of the discriminatory discharge of Cruson
Cruson was employed on February 22, 1954, and terminated on December 12, 1958.
During this period he was paid on an hourly basis and received 12 increases in pay,
starting at $1.50 an hour and when he was terminated he was receiving $2.15 an
hour. His personnel file reflects that he received a merit increase on March 5, 1956.
On September 28, 1955, he received a merit increase, as well as on July 6, 1955. On
April 20, 1955, he received an increase with the notation "Very dependable-doing
a nice job." On February 15, 1955, his increase was accompanied by the notation
"Doing a very nice Job." On October 11, 1954, the increase was accompanied by a
notation "Doing a very nice job." On July 23, 1954, the increase coincided with
an entry on Cruson's personnel record, "Doing a good job." His last merit increase
was in April 1958.
At a meeting on or about September 1, 1958, Vice President and Works Manager
Hawley complimented Cruson with respect to an installation Cruson had contrived
from spare parts. Cruson testified without contradiction that this device saved the
Employer approximately $2,500.
Cruson, on December 9, 1958, obtained signed union authorization cards from
substantially all of the employees at the Dallas plant. He also informed the general
foreman, Segura, he was figuring on trying to get a union in the plant, at about the
same time.
On December 10, 2 days before his discharge, he was called into Plant Super-
intendent Scoggins' office, who locked the office door and wanted to know what
Cruson had heard about union activities. After Cruson had said that he had
heard a few rumors, Scoggins said, "Well, it's getting pretty strong around here and
I can't understand it. I have called Fort Worth office about it, what to do about it.
They told me to go to all means to stop it."
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scoggins went on to tell Cruson that he was told to find the leader and to fire him
on the spot, and that he could not have a union in the plant because he could not
control the plant. Scoggins also addressed some remarks to Cruson indicating that
a union would not do anything for him, and then Cruson left after stating that
Scoggins was not going to get him to say anything against the Union.
On December 12, 1958, an employee told Cruson he was fired, and Cruson then
sought out Scoggins who confirmed this and gave as a reason that Cruson's work
was no longer satisfactory. Scoggins also denied that anyone told him that Cruson
was behind the Union or that he had offered a reward to find out who was pushing
the Union.'
C. Alleged reasons for Cruson's termination
The claim that Cruson was discharged for unsatisfactory work lacks persuasion.
Hawley and Scoggins testified in effect that he did not get the work done rapidly
enough. Hawley made a point that since Hitchcock replaced Cruson the plant effi-
ciency at Dallas was much better. He had testified that the bucket conveyor was
causing interruptions in production, as an example of Cruson's poor maintenance.
Hitchcock, a witness of the Employer, testified that this piece of equipment was
replaced during the 2-week Christmas shutdown, after Cruson' s termination, and
that the old one required frequent repairs. He also testified that since taking
Cruson's place he works 8 hours a day with his hands and that he assumed Cruson
did the same although "he wasn't looking after him," and that Cruson was a very
good man.
The incident of Cruson not installing cooling fans according to Scoggins' request,
loses significance after the explanation Cruson made about clearing a different
method with the Fort Worth office. Cruson testified without contradiction that
the manner in which Scoggins requested cooling fans be installed would not aid in
cooling the Dallas foundry, and that the type he installed had the approval of
Hawley. This incident is consistent with his personnel record entries and exemplifies
fies that he was a valuable conscientious employee.
The testimony of Hawley that Cruson had been increasingly unsatisfactory com-
mencing in 1956 is contradicted by Hawley's September 1, 1958, compliment to
Cruson about his work in fashioning a conveyor from scrap parts at a substantial
savings to the Employer and his consistent record of merit increases, the last such
increase occurring in April 1958. Former Plant Superintendent Knuepfer also
contradicted Hawley's testimony that Cruson was an uncoooperative employee.
Knuepfer made it clear that Cruson was the most valuable employee in the mainte-
nance department.
Any difference between Scoggins and Cruson on the basis of this record occurred
solely because Scoggins, a newly acting plant superintendent, was under Pressure
from the Fort Worth office to discourage union organization. Cruson's testimony
is credited that he was glad to see his friend Scoggins promoted and that this did
not result in poor work on Cruson's part. Scoggins' testimony appears overreaching
and unobjective in the light of Hitchcock's testimony about Cruson's Work. Scog-
gins said while he was in charge Cruson spent 25 percent of his time on his own
private work, 25 percent of his time at his desk doing nothing, and the balance
of his time working on maintenance problems. He then qualified this by saying
the remaining 50 percent of the time included supervising-"Well, when I said work
on machinery fifty percent of the time, I meant supervising and working on ma-
chinery, too; goes hand in hand."
The Employer also ascribes as a reason for terminating Cruson that he was doing
private or "government work" as it was called at the Dallas plant. In view of the
fact that Cruson did some of this work at the request of Scoggins, Scoggins' conten-
tion that he tried to stop Cruson from doing this work lacks credibility. The inci-
dent of the bicycle which Cruson said had been in the same place for 6 months in
the shop and had not been worked on in the light of the record facts does not
furnish a reasonable basis for Cruson's discharge, but rather its lack of plausibility
casts additional doubt on the actual motive of the Employer in terminating Cruson.
1 Cruson's testimony with respect to the December 10 conversation which was denied
by Scoggins and also in those particulars concerning his work and supervisory status
which are in conflict with the testimony of President Jackson, Works Manager Hawley,
and Plant Superintendent Scoggins, is credited. As will be further detailed in discussing
the Employer's claimed reasons for terminating Cruson, the diffusion of reasons for dis-
charge and the testimony of Hitchcock, the man who replaced Cruson and who was
called as a witness for the Employer, detract from the credibility of these witnesses.
Cruson on the other hand, in addition to having an appearance of candor , testified in a
more objective manner as demonstrated by the record facts.
FORT WORTH STEEL AND MACHINERY COMPANY 379
If Hawley's actual motive was to save Cruson as an employee, as he testified, it
would appear reasonable that he have a discussion with Cruson and Scoggins, or
Cruson alone.
The unauthorized use of the company pickup truck is also ascribed as a reason
for Cruson's discharge. Cruson's testimony that he used his own vehicle during a
coffee break on a personal errand is credited, rather than the implication from
Scoggins' testimony that Cruson took the Employer's vehicle without authorization
on his personal business.
Nunn, a clerk in the Dallas office and not a potential member of a production
and maintenance bargaining unit and who had worked at the Dallas plant since
August 1958, testified in behalf of the General Counsel. His testimony has added
weight because there is no apparent interest in this litigation that can be attributed
to him. His testimony serves to eliminate any doubt that Cruson's discharge was a
discriminatory one and calculated to discourage the union organizational activities.
Nunn testified that 3 or 4 days before Cruson was discharged, Scoggins told him
that he would like to find out who was behind the Union so that he could have the
pure pleasure of firing him. He also testified that he heard a conversation between
Scoggins and General Foreman Segura, in which Scoggins affirmed that he had
offered a $35 reward to find out who was behind the Union. Nunn believed this
conversation took place the day before Cruson was fired. Nunn also testified that
he heard Scoggins call Hawley on the phone the day Cruson was fired and that
he heard Scoggins say with relation to the firing of Cruson that he could put down
that "he was doing government work or his work was unsatisfactory or something."
This testimony of Nunn eliminates any substantial question but that the reasons
for Cruson's discharge were contrived and that he was fired because he was regarded
as the prime mover in the union organizational activities. Nunn's testimony is
credited.
The interrogation of employee Hutching by Scoggins with respect to the Union
,and employee Dancer by General Foreman Segura, in the context of this record
would serve to discourage union membership and are independent violations of
Section 8(a)(1) of the Act. This questioning occurred shortly before Cruson's
discharge, and during the union's organizational campaign. Both General Foreman
Segura and Scoggins reflected in their questioning an attitude unfavorable to union
organization. Since they were in a position of economic power with respect to the
employees questioned, this type of questioning is proscribed by Section 8 (b) (1) (A)
of the Act.
The complaint of the General Counsel alleges the following as violations of Section
8 (a) (1) of the Act:
Expression of union animus in the following manner: (1) If the plant went union,
the employees would have to curtail performance of personal work for themselves
and their friends during working hours; (2) pleasure would be derived from firing
the union leader at its Dallas plant if his identity could be ascertained; (3) Re-
spondent would minimize any benefits which might have accrued if the plant went
union; (4) Respondent would reclassify downward certain employees if the em-
ployees voted union; (5) Respondent would interrogate employees as to their union
activities and threats of their discharge because of their union activity; and (6) Re-
spondent would spy upon employees in regard to their union activities.
There is no evidence in the record to.support the allegations of violation No. (1).
The credited testimony of Nunn supports the allegations of violation No. (2).
The implications in the statements attributable to Scoggins are too equivocal to
support the allegations in violation No. (3). Scoggins' expressions of opinion
during a general discussion even after an unlawful inquiry are not regarded as
establishing a threat of lessened benefits if the plant went union. The same con-
siderations apply to the allegations in violation No. (4). The question of violations
by the Employer as charged in violations Nos. (3) and (4) is regarded as very close
but the Trial Examiner is persuaded that the General Counsel has not established
violations pursuant to these charging allegations by the requisite measure of proof.
Violation of Section 8(a)(1) of the Act as charged by violation No. (5) is estab-
lished by the interrogation of Cruson, Dancer, and Hutching, as indicated above.
With respect to violation No. (6), it is concluded that the General Counsel has not
carried the burden of proof to establish a violation as charged. The evidence to
support this charge is duplicated in large measure by the allegations of interrogation
of employees.
The remaining evidence consists of a conversation between Acting Plant Super-
intendent Scoggins and General Forman Segura which Nunn overheard. In this
conversation Scoggins said to Segura that he had offered a $35 reward to find out
who was behind the Union. Nunn volunteered that Scoggins might have been
teasing. As has been indicated, the Employer was guilty of unlawful interrogation
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employees as to union activities. However, to characterize the acts of the
Employer as "spying" is not warranted by the conversation between two supervisory
employees overheard by Nunn. The ascertaining by the Employer that Cruson ws
the believed leader of the union organizational activites could have been obtained
from General Foreman Segura who was voluntarily informed by Cruson that union
organization was being considered. Consequently the discharge of Cruson is not
regarded as establishing that his activities were necessarily reported to the Employer
in order to secure a $35 reward.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Employer set forth in section III, above, occurring in con-
nection 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 Employer has engaged in unfair labor prac-
tices, it will be recommended that the Respondent Employer cease and desist there-
from and take certain affirmative and remedial action designed to effectuate the
policies of the Act. Since the discharge of Cruson was clearly a violation of
Section 8 (a) (1) of the Act and was aimed at discouraging the exercise of the em-
ployees' rights guaranteed by Section 7 of the Act, as well as in violation of Section
8(a) (3) of the Act, it will be recommended that the Employer make Cruson whole
in accordance with the Board's usual policies, for wage losses incurred as a con-
sequence of his discharge during the period from December 12, 1958, until the date
that Cruson is offered unconditional reinstatement to his former employment at the
Dallas plant of the Employer.
It will also be recommended that the Employer take steps consistent with the
recommendations indicated herein with respect to interrogating employees as to
their union activities and threatening to fire employees for organizational activities.
On the basis of the foreging findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Molders and Foundry Workers of North America, AFL-CIO,
Local #2, is a labor organization within the meaning of Section 2(5) of the Act.
2. Fort Worth Steel and Machinery Company is an employer within the meaning
of Section 2(2) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, including the discharge of Dwahn Doyle Cruson,
and interrogation of employees as to union activities and threatening to discharge
employees because of union activities, the Employer has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Dwahn
Doyle Cruson, thereby discouraging membership in a labor organization, the Em-
ployer has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (3) 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.
[Recommendations omitted from publication.]
Bendix Aviation Corporation and United Tool and Model Work-
ers (Ind.), Petitioner. Case No. 3-RC-2215. November 25, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William Naimark, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
125 NLRB No. 47.