Franklin Brass Products

National Labor Relations Board - Board Decisions

Mar 19, 1965

151 N.L.R.B. 800 (N.L.R.B. 1965)

800 DECISIONS OF NATIONAL LABOR RELATION "'S BOARD
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 Rela-
tions Act, we hereby notify our employees that
WE WILL NOT discourage membership in International Woodworkers of
America, AFL-CIO, or any other labor organization, by discriminating as to
hire, tenure, or any other term or condition of employment of any of our
employees.
WE WILL NOT discriminatorily enforce or apply our no-solicitation rule.
WE WILL NOT in any other manner interfere with, restrain, or coeice our
employees in the exercise of their right to organize; to perform, join, or assist
a labor organization; to bargain collectively through a bargaining agent chosen
by themselves; to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection; or to refrain from any such
activities.
WE WILL offer to William M. Stone, Jr., immediate and full reinstatement
to his his former or substantially equivalent position (without prejudice to
seniority or other employment rights and privileges) and WE WILL pay him
for any loss suffered because of our discrimination against him.
All our employees are free to become or remain members of any labor organization.
UNITED STATES PLYWOOD CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 723-2911, if they have any questions-concerning this notice or compliance with
its piovisions.
Franklin Brass Products and United Automobile , Aerospace and
Agricultural Implement Workers of America , AFL-CIO. Cases
Nos.11-CA-x413 and 11-RC-1951. March 19, 1965
DECISION AND ORDER
On January 12, 1965, Trial Examiner David London issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter, the Respond-
ent filed exceptions to the Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
'We find without merit Respondent's contention that its pretrial and hearing motions
for a bill of particulars were improperly denied.
151 NLRB No. 98.
FRANKLIN BRASS PRODUCTS 801
delegated its powers in connection with these cases to a three -member
panel [Members Fanning, Brown , and Jenkins].
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 the brief , and the entire
record in the case, and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner with the additions and
modifications noted below .2
As set forth in the Trial Examiner's Decision , the Regional
Director for Region 11 had ordered that objections filed in Case No.
11-RC-1951 and the complaint issued in Case No. 11 -CA-2413 be
consolidated for the purposes of hearing . The objections relate to
an election held on May 14, 1964 , pursuant to a Decision and Direc-
tion of Election issued by the Regional Director on April 15, 1964.
Pursuant to the Regional Director 's Order, the Trial Examiner made
credibility resolutions and findings of fact. Under authority dele-
gated to the Regional Director by Section 102.69 ( c) of the Board's
Rules and Regulations , Series 8, as amended , the Regional Director
has reserved to himself the authority to decide the case and issue a
decision disposing of the issues . Accordingly, we shall sever the
representation case from the complaint case herein , and shall remand
the representation case to the Regional Director for such action as he
may deem appropriate . Accordingly , we limit our Decision and
Order herein to the complaint case only.
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 Order recommended by the Trial Examiner and orders
that Franklin Brass Products, Conway, South Carolina, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
2In finding that employees Houston and Graham had not engaged in solicitation for
the Union during working hours, the Trial Examiner rejected the testimony of Respond-
ent's witness Todd as incredible and credited Houston ' s and Graham 's testimony that
they had not engaged in such conduct . We find that the record amply supports the
Trial Examiner 's credibility resolutions , and we adopt his ultimate conclusion that
Houston and Graham were discharged for engaging in union activities However, in
adopting the Trial Examiner 's findings , we cannot agree with, and do not adopt, his
view that in the circumstances of this case the Respondent was under an obligation
to identify and call as a witness an employee alleged to have been working at a machine
next to Todd's machine, and that Respondent's failure to do so warrants the inference
that that employee's testimony would have been unfavorable to the Respondent The
record in our opinion amply sustains the Trial Examiner' s finding without reliance on
such inference.
783-133-66-vol. 151-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On May 14, 1964,' pursuant to a petition filed in Case No. 11-RC-1951, an
election was held among the employees of Franklin Brass Products, hereinafter
referred to as the Employer or Respondent, to determine whether or not they desired
representation by United Automobile, Aerospace and Agriculture Implement Workers
of America, AFL-CIO, hereafter referred to as the Union. At that election, 39 votes
were cast in favor of the Union and 48 against that organization. On May 19 the
Union filed and served timely objections to conduct by the Employer affecting the
results of that election. The conduct complained of was, inter alia, the alleged
discriminatory discharge of Philip Graham, Junior H. Houston, and John H. Full-
wood; restricting union employees to their work area; interrogation of employees
concerning their union membership, sympathies, and activities; unlawfully threaten-
ing its employees for engaging in union activities; and imposing disciplinary, proba-
tionary periods on employees because of their union membership or activities.
Pursuant to the provisions of Section 102.69 of the Board's Rules and Regulations,
Series 8, as amended, the Board's Regional Director for Region 11 conducted an
investigation of the issues raised by the foregoing objections and afforded the parties
full opportunity to submit evidence bearing on these issues. On July 31, the said
Regional Director filed his Supplementary Decision and Direction in that proceeding
in which he concluded that the evidence submitted to him relating to the alleged
objectionable conduct described above was in conflict and involved questions of
credibility which required resolution after a full hearing.
On the same day, July 31, pursuant to a charge filed May 1 and amended May 5,
the said Regional Director, in behalf of the General Counsel, issued a complaint
against Respondent in Case No. 11-CA-2413 alleging violation by Respondent of
Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, hereafter
referred to as the Act. In substance, the complaint alleges, inter alia, substantially
the same conduct which the Regional Director in his Supplementary Decision and
Direction found to be the subject of conflicting evidence as aforementioned. Having
determined that the issues raised by the Union by its objections in Case No. 11-CA-
2413 are related, the said Regional Director, on August 5, consolidated the two cases
for hearing.
After due notice to all the parties, this consolidated proceeding was heard before
Trial Examiner David London at Conway, South Carolina, on October 13 to 14,
1964. At that hearing, all parties were represented by counsel or representative,
and were afforded full opportunity to adduce pertinent evidence, to examine and
cross-examine witnesses , to argue orally on the record, and to submit briefs. Oral
argument was waived. Briefs submitted by the General Counsel and Respondent
have been duly considered.
Upon the entire record in the case,2 including my observation of the demeanor of
the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein, a South Carolina corpora-
tion, engaged in the manufacture of brass tubing and plumbing products with its
plant and place of business located at Conway, South Carolina. During the 12
months preceding the complaint herein, Respondent received at its Conway plant,
raw materials valued in excess of $50,000 from points outside the State of South
Carolina. During the same period, Respondent sold and shipped from that plant
to points outside the State of South Carolina finished products valued in excess of
$50,000. Respondent admits, and I find, that it has been at all times material herein,
and now is, an employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
'All reference to dates herein are to the year 1964, unless otherwise indicated.
2 On unopposed motions of the General Counsel and Respondent , the official transcript
of testimony is hereby corrected as follows : page 22, line 6, substitute "their" for "your" ;
page 119, lines 1 and 2 , substitute "button" for "buffing" ; page 212, line 4, substitute
"initialed" for "made."
FRANKLIN BRASS PRODUCTS
III. THE ALLEGED ILLEGAL CONDUCT
803
A. Interference, restraint, and coercion
A campaign to organize Respondent's employees at its plant in Conway, South
Carolina, was commenced during the first week in March 1964. On March 12 the
Union sent Respondent a letter naming 13 of the latter's employees as members of a
"Voluntary Organizing Committee" which would be engaged in that campaign. On
March 19 Respondent posted this letter on its bulletin board together with another
notice, signed by David Mohr, its vice president and general manager, informing the
employees of the South Carolina so-called right-to-work law, and advising them that
by reason thereof they could "refuse to join or associate with a union."
About the time these notices were posted, Robert Lundy, supervisor of Respondent's
-day shift in the polishing and buffing department, told employee Dewey Vaught, Jr.,
a member of the designated organization committee, that he did not think the
Union would come in because Mohr "had told him that if the Union did come in he
would close the plant . . . move the work back to Grand Rapids ... that there would
be a strike because the Company didn't have to give [them] anything; that there
would be a strike if [they] were to unionize." He also asked Vaught "how strong
the Union was."
Shortly after the two notices aforementioned were posted on March 19, Lundy
advised employee S. J. Hardwick, also designated as a member of the Union's organi-
zational committee, that he "would have a better standing with the Company if the
Union didn't come in."
A day or two after Junior Houston and Philip Graham were fired on April 22 as
is hereafter found, Lundy asked Vaught and employee Johnnie Harrolson whether
they felt "bad about Graham and Houston getting fired." When the two employees
replied in the negative, Lundy told them that they ought to feel bad because their
names, like those of Graham and Houston, were "on that list up there [and] if they,
[Graham and Houston], hadn't gotten messed up with the Union campaign, they
would still be working." On another occasion, about the same time, Lundy asked
Vaught and Harrolson whether there had been a union meeting the night before
The day after the Union's letter of March 12 was posted, Lundy came to the
work position of employee Johnnie Squires and, pointing to the union button which
-Squires was wearing, told him if he, Lundy, "was a communist, he wouldn't be
wearing something showing he was a communist." Lundy also told him that if the
Union came in, the top wages would be $1.40 an hour and they would have to
strike to get more. The day after Graham and Houston were fired, Lundy asked
Squires, as he had inquired of Vaught and Harrolson, how he felt about the discharge
of those two employees, and told him he, too, ought to feel bad about that "because
the button [Graham and Houston] were wearing caused them to be fired."
On or about March 10, employee Ronald Norris went to the office of Kenneth
Johnson, foreman of the finishing department, and asked him how the Company felt
about the Union. Johnson replied that the Company "would fight it and that with
his job and position ... he [Johnson] had to help fight the Union." He then asked
Norris whether he had signed a card and Norris replied that he had. After Johnson
-told him "to remember that if it hadn't been for him, [he] wouldn't be working
there," Johnson told him he "would appreciate it if [Norris] would let him know ...
who was pushing it." Norris told him who was doing so and promised to let him
know who else was so engaged. On or about March 13, he went to Johnson's office
and gave him the names of the employees he knew had attended a union meeting.
On or about March 17, Lundy told a group of employees, including Norris, that if
the Union came in they "would have to strike to get anything ... that [they] would
have to go on piece work and could not make as much money" as they were then
-earning, and that the plant would be moved back to "Grand Rapids." On or about
May 1, as Norris was on his way to the canteen during a break period, Lundy asked
him whether he would attend union meetings and let him know what went on at those
meetings. As the two men approached the canteen, they were joined by Johnson at
which time Lundy told Johnson that Norris had "said he would do it." Johnson then
told Norris he would appreciate his doing so, and that if Norris "would look out for
the Company, that he [Johnson] would look out for [him] with the Company."
Norris attended a union meeting that afternoon following which he called Lundy
at the latter's home. Lundy asked him who had attended and "what went on at
the meeting." Norris gave him the names of those who had attended and "told him
what they planned to do." Sometime after the election on May 14, Lundy asked
Norris why he had given a statement to a representative of the Board and what his
-testimony would be in this proceeding.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a week after the Union's letter was posted on the bulletin board on March 19,
Lundy told Graham that Mohr, the plant manager, had informed him that "if the
Union came in [they] would have to strike for everything that they got and .
would not get any higher wages." During the next day, Lundy asked Graham and
Houston whether they were going to a union meeting that night and Graham told him
it was none of his business. About a week later, Graham went to Johnson's office
for the purpose of getting a raise in pay and was told by Johnson that the employees
"would not get any kind of wages if the Union came in" and that the Company had
come to South Carolina "to get away from the Union" He also told Graham that
he knew "everyone who had signed cards and that [they] did not have a chance."
On March 2, Lundy asked employee John H. Fullwood whether he was going to
vote for the Union and Fullwood replied in the affirmative. On March 19, the day
the Union's letter was posted, Fullwood observed Lundy talking to Mohr near Full-
wood's work station. Lundy then approached Fullwood and told him that he had
been informed by Mohr that it the employees "got the Union in he could get rid of
everyone" of them, and that if they went on strike "he would move the plant back
to Grand Rapids."
A couple of weeks after the Union's letter designating its organizational committee
was posted, Lundy asked Houston, whose name was included in that list, where the
union meeting was to be held and on or about April 1 asked him how he felt about
the Union. About the same time, Houston told Sonny Guy, a fellow employee, that
he wished his naive was not on the posted committee list. On the following day,
Houston was informed by Guy he had reported that conversation to Foreman Johnson
who suggested that Houston come to his office. Houston did so and there told
Johnson that he "didn't want anything else to do with the Union," whereupon Johnson
stated that "before the first brick was ever laid in the plant they knew that there was
never going to be no [sic] union in it." When Johnson, however, asked Houston if
he would keep him informed on the Union, its meetings, and activities, Houston
refused to do so.
The findings in the preceding paragraphs pertaining to the conduct of Supervisors
Lundy and Johnson are based on the composite testimony of the employees involved
in those incidents, which testimony I credit. All of these employees testified in a
straightforward manner and there was nothing in their demeanor which aroused any
doubt in my mind concerning the truthfulness of their mutually corroboiating
testimony.
Though Lundy and Johnson expressly denied that they were guilty of the conduct
attributed to them, I do not credit their denials. While testifying, both left me with
the distinct impression that their principal concern was to make certain that Respond-
ent would be absolved of liability herein, rather than to testify truthfully. Lundy
particularly failed to impress me as a truthful witness. Though admitting that he was
hostile to the Union, indeed to such an extent that he was of a mind to physically
assault the Union's business agent who was distributing handbills at the gate of
Respondent's plant, he expressly denied expressing his sentiments concerning the
Union to anyone except that he "might have" done so to his superior foreman, and
"possibly to [his] family ... never to anyone else." In view of his further testimony
that Vaught, "usually every day," had something to say to him about the Union and
"was worrying [him] about the Union" to such an extent that if he "could have got
[him] fired on this ... [he] would have tried" to do so, it stretches credulity to the
proverbial breaking point to believe his denials aforementioned.
By reason of all the foregoing I find and conclude that Respondent interrogated
its employees concerning their union membership, activities, and sympathies, as
charged in the Union's objection No. 1(i) (1) and (2) ; threatened them with loss
of employment and removal of the Conway plant for engaging in such activities as
charged in the Union's objection Nos. 1(j) (k) (1) and 2; and induced them to observe
and report to it the union activities of its employees. By all of that conduct
Respondent also violated Section 8(a) (1) of the Act.
In arriving at the conclusion with respect to the threat of the removal of the
Conway plant, I have not been unmindful of the undisputed testimony of Frank W.
Steketee, plant manager, that at an otherwise undisclosed date, except that it was
before the election, he talked with the employees in all the departments and, in the
presence of Mohr, told them that no matter what "the outcome of the election was
going to be, [Respondent] would continue to operate, that it was not going to close
its doors." Relying on that testimony, Respondent contends that these assurances
had the effect of dispelling any coercive effect or influence which might have been
created by the threats of its supervisors as heretofore found.
Were the threats of removal of the plant the only unlawful conduct complained of,
the argument might be persuasive. In light, however, of the other unlawful conduct
FRANKLIN BRASS PRODUCTS 805
heretofore and hereafter found, including the discriminatory discharge of three
employees, it would be most unrealistic to conclude that the effect of the coercive
threats under consideration had been completely dispelled, thereby avoiding Respond-
ent's liability therefor. Genuine and sincere as Steketee's assurances may have been, I
am not persuaded that under the circumstances existing here they had the effect
contended for by Respondent.
B. The discharge of Houston and Graharn
Houston and Graham were hired by Respondent in May and June 1963, respec-
tively, shortly after Respondent opened its Conway plant in the spring of that year.
Both men were designated as members of the Union's organizational committee in the
Union's letter posted on March 19, 1964, talked to the employees about the Union,
and secured their signatures to union cards Both men were discharged on the
following April 22, at which time they were employed on the second shift, 4 30 p in.
to 1 a.m. under Foreman Inman
It is the contention of the General Counsel that the two men were discharged
because of their union activities, while Respondent contends that they were "dis-
charged for violating the rule against solicitation as it appears in Respondent's
Exhibit 2." That exhibit , a "Personnel Policy Manual," contains the following:
"There shall be no solicitation of any kind by employees of the Company which in
any way interferes with the production of the Company." The manual, however,
specifies a group of 22 rules of conduct the violation of which would constitute
"sufficient grounds for disciplinary action ranging from reprimand to immediate
discharge, depending on the seriousness of the offense in the judgment of manage-
ment." None of these 22 rules, however, makes any mention of solicitation of
employees. The same manual also lists 10 additional rules the violation of which
would be "grounds for immediate discharge" but here, again, the list does not include
solicitation of employees.
The only direct evidence seeking to establish that Graham and Houston were
guilty of the solicitation with which they were charged was offered by Teamous Todd
who has been employed by Respondent only since March 11, 1964, and was, there-
fore, a coworker of Graham and Houston for little more than a month. Todd testi-
fied that on the "average, some three or four times during the night that the second
shift worked, sometimes more," he was the subject of "constant harassment" from
both Graham and Houston, generally acting individually and in rotation, trying to
get him to sign a union card. He further testified that each of these conversations
lasted 3 to 4 minutes , continued for close to 3 to 4 weeks, "constantly every day,"
and that he, as well as Graham and Houston, had to completely stop their work
while the solicitation was carried on
Notwithstanding this alleged protracted harassment and the effect it had on the
production quota he was required to meet, and which conduct he believed to be against
company rules, Todd made no complaints to anyone until 11 p.m. of the night
before Graham and Houston were discharged. At that time, he told his supervisor,
Larry Inman, that he wanted to talk to James Edge, foreman of the entire night shift
In the latter's office, Todd told both men of his alleged harassment and that it was
interfering with his production He was told that if the two men again came to his
work station and "started talking for the Union" he was to give them an agreed-upon
signal . Edge admitted that he made no investigation of Todd's accusations nor did
lie question Graham or Houston whether they were guilty thereof Instead, he called
Plant Manager Steketee at home and informed him of Todd's complaint. Steketee
told Edge "there wasn't much [he] could do at 11 o'clock at night ... but would do
something in the morning." i On the following afternoon Todd gave a written
statement concerning Graham and Houston to Steketee.
On the same day, April 22, Graham went to the restroom where he found Johnson,
foreman of the finishing department. Graham asked him for a raise and Johnson
told him he would do what he could to help him Later that day, he was told that
Johnson wanted to see him in his office where Graham also found Steketee. Steketee
there told him that he had "broken a National Labor Relations Board regulation,
that [he] had been soliciting union on company time, that he had two signed state-
ments to that effect" and wanted him to sign a tendered statement. When Graham
asked Johnson what all this meant, Johnson replied: "You are fired."
During the late afternoon of April 22, Houston was instructed to report to the
personnel office where he met Steketee and was told he was fired. Houston, appar-
s While there is no direct evidence that Steketee received this call at his home, from
its context, it may reasonably be so inferred.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ently stunned, "sat down [ stating] it was a bad time for him to lose his job" and asked
why he had been discharged. Steketee replied it was because he "had broken a
Federal law, soliciting on company working hours." Houston, who impressed me
as a most sincere and truthful, but a naive and timid, person, asked what the accusa-
tion meant and was only told that Steketee had witnesses that he had been soliciting
on company time. Both Houston and Graham denied that they engaged in solicita-
tion for the Union during their working hours, and I credit their testimony.
On the entire record, and my observation of the witnesses as they testified, I find
that neither Graham nor Houston was discharged for the reasons assigned by
Respondent. As previously indicated, Todd was the only witness who testified that
the two men were guilty of the alleged conduct.4 Todd's testimony is so incredible
as to be beyond belief. I find it utterly impossible to believe that he was subjected
to what he himself characterized as "constant harassment . .. constantly every day"
and that such conduct was in violation of company rules, that he would nevertheless
wait until April 21 to make any complaint or mention thereof to any company
supervisor.
Another phase of Todd's testimony has led me to my ultimate conclusion that
neither Graham nor Houston was guilty of the conduct ascribed to them by Todd.
The latter testified that during the period of the alleged conduct by Giaham and
Houston they were working on machines Nos. 16 and 17 while he, Todd, was work-
ing on machine No. 19, with machine No. 18 in between. Though Todd was certain
an employee was working on No. 18, he could not remember who it was. And,
though the operator of that machine could have been identified by Respondent, it
failed to identify him and also failed to call that operator as a witness. Its failure to
do so warrants the inference that, if adduced, that testimony would not be favorable
to Respondent. Interstate Circuit v. U.S., 306 US. 208, 225-226; N L.R.B. v.
Remington Rand, Inc., 94 F. 2d 862, 871 (C.A. 2); N L.R B. v. Sam Wallick, et al.,
d/b/a Wallick and Schwalm Company, et al., 198 F. 2d 477, 483 (C.A. 3).
Nor can I believe that Graham and Houston interfered with Todd's work perform-
ance "on the average some three or four times during the night" over a period of 3 to
4 weeks without Edge, who "was in the department," or Inman, their immediate
supervisor, becoming personally aware of the alleged rule violation which Steketee,
the plant manager, characterized and considered "as serious as ... willful destruction
or theft of property, or stealing." What has been said above with reference to
Respondent's failure to call the operator of machine No. 18, also has application
to Respondent's failure to call Inman.
Edge testified that though he had "seen other employees away from their work
at various times," the only disciplinary action imposed was to send them back to
their work station and admitted that he made no investigation of Todd's accusation
but bluntly assumed it to be true. Steketee admitted that Respondent never stopped
solicitation for the "United Fund" and that Graham and Houston were the first
employees discharged for violation of no-solicitation rule. He imposed this most
drastic action notwithstanding his own testimony that Respondent imposes "pro-
gressive disciplinary action . before [an employee] is discharged, . . . a verbal
warning, a written warning, and a 3-day layoff."
In light of all the foregoing I find and conclude that the reason assigned by
Respondent was not the true reason for their discharge. No other reason being
claimed or suggested for that drastic action, I can only find and conclude that they
were discharged for the reason stated by Lundy within a day or two thereafter-
they were "messed up with the union campaign" and were wearing union buttons.
By that conduct, I find the Employer guilty of the conduct complained of by the
Union in its objection 1(a) in Case No. 11-RC-1951, and also guilty of violation
of Section 8 (a) (1) and (3) of the Act.
4 Edge, when questioned by Respondent ' s counsel both on direct and redirect examina-
tion, made no claim that he had ever observed either Graham or Houston talking to Todd-
On being later questioned by the Trial Examiner , he volunteered the statement that
on April 21, after Todd had made his complaint , he observed Graham at Todd's work
station. Todd , however, made no mention of that alleged incident and I do not credit
Edge's testimony with respect thereto
5 Graham was one of the two "oldest men" in the plant on the second shift and, at
Inman's request , helped train new employees During the approximately 10 months of
his employment he received three raises in pay and Supervisor Johnson considered him
a "satisfactory employee ." Lundy admitted he "didn't think too much of Houston and
Graham being fired, the] had a certain amount of work to get out and [they] were
pretty good workers "
FRANKLIN BRASS PRODUCTS 807
C. The discharge of Fullwood
John Fullwood was employed by Respondent on or about December 12, 1963,
and discharged May 1, 1964. He signed a union card and, on or prior to April 29,
1964, was appointed to its organization committee. On the latter date, the Union, by
registered mail, notified Respondent of this appointment. This letter, like its fore-
runner of March 12, was also posted on Respondent's bulletin board.
On March 2, Lundy asked Fullwood whether he was going to vote for the Union
and he replied in the affirmative. On March 19, the day the Union's first letter was
posted, Fullwood observed Lundy talking to Mohr following which Lundy came to
Fullwood's work station . There, Lundy told him that he had been informed by
Mohr that if the employees "got the union, [they] would strike, and in 24 hours he
could get rid of everyone of [them] ... and move the plant back up to Gland Rapids."
On May 1, the first day he wore a union button, Fullwood was engaged in polishing
or buffing valve handles, a task requiring the use of a holder to prevent injury to his
hands. The holder he was using on this occasion being defective, "slipping off .. .
tearing up [his] hand," he went to the work station of three to four other employees,
including Johnny Harrolson and Johnny Squires, who were engaged in the same task,
looking for a holder he could use. Being unable to find such a replacement, he
returned to his station and resumed his work.
Lundy, his immediate supervisor, approached and asked him whether he found
what he was looking for and Fullwood replied in the negative, stating that the other
men were themselves using their holders. Lundy then asked him whether Harrolson
and Squires who, he said, were wearing union buttons and were members of the
organization committee, could not help him. After saying "something about the
union button" Fullwood was wearing, Lundy instructed him to go to the office
where he would "change [his] mind about the button." Fullwood refused to do as
requested and told Lundy he didn't think he had to go to the office "to talk about the
union" because he had already made up his mind on that subject.
Shortly thereafter, Lundy returned and informed Fullwood that Plant Manager
Steketee wanted to see him in the office. Fullwood did as requested and waited there
40 minutes while Steketee, Foreman Johnson, Inman, Lundy, and the personnel
manager were engaged in conference. As these men left their conference room,
Fullwood was handed a check and told by Steketee and Johnson that he was being
discharged because he had "disobeyed a supervisor's order."
The findings entered above with reference to Fullwood are based on his testimony
which I credit. Lundy denied that he asked Fullwood to go to the office "to have his
mind changed about a union button" and instead testified that the events of that day
were as follows. Both he and Johnson observed Fullwood that morning going to
the work table of Harrolson and Squire and iemained at each table 2 to 5 minutes
following which he asked Fullwood whether he was encountering any problems.
Fullwood, by profane language similar to that which Lundy admitted he used "on
occasions," answered affirmatively and added that Respondent and Lundy, individu-
ally, were treating the employees "like dogs." c Lundy turned to Johnson, who was
standing behind his desk 6 to 8 feet away, and asked whether he had overheard the
conversation, Johnson replied that he had. After the two men "checked" with the
office, Lundy asked Fullwood to accompany him there and Fullwood declined to do
so.s There, according to Lundy, General Manager Mohr asked him what had
happened and when Lundy repeated "the exact words" exchanged between him and
Fullwood, Mohr called in the bookkeeper who made out Fullwood's check.
I have in earlier portions of this Decision expressed my judgment of the trust-
worthiness to be attributed to Lundy's testimony and adhere to that view with respect
to the conflict between his testimony and that of Fullwood as to the events that
brought on the order to Fullwood to report to the office. Insofar as his testimony is
inconsistent with that of Fullwood, it is discredited.
On the entire record I am convinced and find that Fullwood's mission on his visits
to the work stations of other employees on May 1 was to secure a holder to safely
perform his work. Indeed, Lundy admitted not only that, in fact, "this particular
holder ... wasn't good, it never had been," but that before Fullwood "floated" around
to the other employees, he told him that his holder "wasn't working." When, there-
fore, Fullwood refused to report to the office, his refusal was occasioned only because
its announced purpose to him was to have higher management officials change his
mind about his union activities.
00n cross -examination , Lundy admitted that Fullwood told him his holder "wasn't
wnrkin;."
Steketee testified that Johnson informed him that it was Johnson's order that Full-
wood refused to obey.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fullwood's refusal, under the circumstances found by me, was not an act of
insubordination. The Act guarantees employees complete and unfettered freedom of
choice respecting a bargaining representative. Respondent "was not entitled to
[discourage] membership in the Union by engaging in conduct which inteifered with
their employees' free and unfettered choice." Revere Copper and Biass, Inc. v.
N L.R.B., 324 F. 2d 132 (C.A. 7). To characterize and find Fullwood's refusal to
report to the office as an act of insubordination would elevate management's right
to direct its employees over the statutory right of the employee without sufficient
management or industrial needs. I conclude that in discharging Fullwood Respondent
violated Section 8 (a) (1) and (3) of the Act.
IV REPORT ON OBJECTIONS
Upon the entire record herein , including the findings entered above , and in per-
formance of the duty imposed upon me in Case No. 11-RC-1951 as described in
Statement of the Case , supia, I find, conclude , and report that a preponderance of the
evidence heard by me establishes that the Employer was guilty of the conduct
described in the Union 's objection to conduct by the Employer in that proceeding
designated as follows: Objections Nos. 1 ( a), 1(i)(1 ) and (2 ), 1(j), 1(k), 1(1),
and objection 2.8 I further find and report that it has not been established by a
preponderance of the evidence that the Employer was guilty of the conduct alleged
in the remainder of the Union ' s objections which were referred to me for factfinding
purposes . Accordingly , I recommend that the Board sever Case No. 11-RC-1951
from the instant proceeding and refer the same to the Regional Director for Region
11 for such further action as he may deem appropriate
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent 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 thereof.
VI. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
I recommend that Respondent be ordered to cease and desist therefrom and
take certain affirmative action of the type below, which is necessary to remedy
and to remove the effects of the unfair labor practices, and to effectuate the policies
of the Act. For the reasons set forth in Consolidated Industries, Inc, 108 NLRB 60,
61, and cases there cited, a broad cease-and-desist order will be recommended.
Having found that Respondent discriminatorily discharged Philip Graham, Junior
H. Houston, and John H. Fullwood, I recommend that Respondent be ordered
to offer Philip Graham, Junior H. Houston, and John H. Fullwood immediate
and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered by reason of the discrimination
against them, by payment to them of a sum of money equal to that which they
normally would have earned from the date of their discharge to the date of the
Employer's offer of reinstatement. Backpay will be computed in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, and Ciossett
Lumber Co., 8 NLRB 440, with interest as directed by the Board in Isis Plumbing &
Heating Co, 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce, and the Union is a labor organization, all
within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of Philip
Graham, Junior H. Houston, and John H. Fullwood, thereby discouraging member-
8 There is no merit to Respondent's contention that because the conduct forming the
basis for the Union's objections occurred before the election, the Union must be deemed
to have "waived the right to base an objection to the election on those alleged charges,"
and the Board, as a matter of policy, should have declined to process said objections
See Bernel Foam Products Co , Inc , 146 NLRB 1277
FRANKLIN BRASS PRODUCTS 809
:hip in the Union, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. 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
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the National Labor Relations Act, as amended, it is hereby
ordered that the Respondent, Franklin Brass Products, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its employees, by
discriminating in regard to their hire, tenure, or any other terms or conditions of
employment.
(b) Interrogating employees concerning union affiliation or activities in a manner
constituting interterence, restraint, of coercion in violation of Section 8 (a)( I).
(c) Threatening employees with loss of employment, removal of the plant, or
other reprisal if they engage in union activities.
(d) Inducing its employees to observe and/or report to it concerning the union
activities of its employees.
(e) In any other manner, interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist United Auto-
mobile, Aerospace and Agriculture Implement Workers of America, AFL-CIO, or
any other labor organization, to bargain collectively through representatives of their
own choosing, 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.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Philip Graham, Junior H. Houston, and John H. Fullwood, immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them whole in
the manner set forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due.
(c) Notify Philip Graham, Junior H. Houston, and John H. Fullwood, 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 of 1948, as amended, after discharge from the
Armed Forces.
(d) Post at its plant in Conway, South Carolina, copies of the attached notice
marked "Appendix." 9 Copies of such notice, to be furnished by the Regional
Director for Region 11, shall, after being duly signed by an authorized representative
of the aforesaid Respondent, be posted immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith.10
91f 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order"
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read. "Notify the Regional Director for Region 11, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith "
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Automobile, Aerospace and
Agriculture Implement Workers of America, AFL-CIO, or in any other labor
organization of our employees, by discriminating in regard to hire, tenure of
employment, or any term or condition of employment of any of our employees.
WE WILL offer to Philip Graham, Junior H. Houston, and John H. Fullwood,
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights previously enjoyed,
and make them whole for any loss of pay suffered as a result of the discrimina-
tion against them.
WE WILL NOT interrogate our employees concerning their union activities in
a manner constituting interference, restraint, or coercion in violation of Section
8(a)(1) of the Act.
WE WILL NOT threaten our employees with loss of employment, removal of
the plant, or other reprisal if they engage in union activities.
WE WILL NOT induce or ask our employees to observe and/or report to us con-
cerning their union activities or meetings.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to join or assist the
aforesaid union 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 or all such activities.
FRANKLIN BRASS PRODUCTS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-In the event the above-named employees are presently serving in the
Armed Forces of the United States, we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 723-2911, if they have any question concerning this notice or compliance with
its provisions.
Local 1367 , International Longshoremen 's Association , AFL-CIO
and Vidal Garcia and Galveston Maritime Association, Inc.;
Houston Maritime Association , Inc.; Master Stevedores Asso-
ciation of Texas, Parties to the Contract . Case No. 33-CB-471.
March 19, 1965
DECISION AND ORDER
On May 15, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
151 NLRB No. 85.