Ladish Co.

National Labor Relations Board - Board Decisions

Jan 7, 1970

180 N.L.R.B. 582 (N.L.R.B. 1970)

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ladish Company, Texas Division and Millwright
Maintenance and Shop Local 963 , AFL-CIO and
Texas Division Employees-Labor Management
Committee, Party in Interest. Case 23-CA-3264
January 7, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On August 21, 1969, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices in violation of the
National Labor Relations Act, as amended, and
recommended that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further
found that the Respondent had not engaged in
certain other unfair labor practices as alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision together
with a supporting brief, and Respondent filed
limited cross-exceptions and an answering brief in
reply to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, 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
Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Ladish
Company, Texas Division, Houston, Texas, its
officers, agents, successors , and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order.
'The Trial Examiner in his Decision in the first paragraphs of section II,
A and B, gave the figures of 32 to II instead of 32 to 10 We hereby
correct his inadvertent error
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner. This proceeding
under Section 10(b) of the National Labor Relations Act
180 NLRB No. 92
as amended was heard at Houston, Texas, on June 10-13,
1969, pursuant to due notice. The complaint, which was
issued on May 5, 1969, on charges and amended charges
filed on February 17, March 24, and May 1, alleged in
substance that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(I), (2), and (3) of the
Act by certain specified acts of interference, restraint and
coercion in January and February 1969, by various acts of
assistance to and domination of the party in interest
(Committee herein) since August 19, 1968, and by
discharging Willie A. Jackson on March 20, 1969, because
of his union membership and activities. Respondent
answered , denying the unfair labor practices, though
admitting that since November 1966, it has recognized the
Committee as the bargaining representative for its
production and maintenance employees.
Upon the entire record in the case and from my
observation of the witnesses, I make the following.
1. JURISDICTIONAL FINDINGS ; THE LABOR
ORGANIZATIONS INVOLVED
I find on admitted facts that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act' and that the Charging Union (Millwrights herein)
and the Committee are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Pertinent background events herein began in 1966 with
a representation proceeding in Case 23-RC-2800, on a
petition filed by District 37 of International Association of
Machinists and Aerospace Workers, AFL-CIO (IAM
herein). Following a stipulation for consent election, an
election was held on October 14, 1966, with IAM losing
by a vote of 32 to 11 against representation.
Sometime in November 1966, Respondent recognized
the Committee as the bargaining representative of its
production and maintenance employees, and on December
1, Respondent and the Committee entered into an
agreement covering the period from January 1, 1967,
through December 31, 1969. In December 1968, a new
agreement was reached covering the period from January
1, 1969, through December 31, 1970.
The present proceeding arose out of an organizational
campaign which was begun by Millwrights in January
1969. A representation petition was filed on January 27,
in Case 23-RC-3243 but unfair labor practices charges
filed on February 17, March 24, and May I resulted in
the issuance of the complaint herein on May 5.
As pleaded and as litigated at the hearing the issues
herein concerned alleged assistance to and domination of
the Committee by Respondent since August 18, 1968 (the
10(b) date), alleged incidents of interrogation and threats
by Plant Superintendent Larry Gresk, Vice President J.
M. Browning and Group Leader Fred Johnson in January
and February 1969, and the alleged discriminatory
discharge of Willie A. Jackson on March 20. Those issues
'Respondent , a Wisconsin corporation engaged at Houston , Texas, in the
manufacture and sale of forgmgs, purchased, transferred and delivered
annually to its Houston plant directly from extrastate points goods and
materials valued in excess of $50,000.
LADISH COMPANY, TEXAS DIVISION 583
will be treated in the order stated.
B. The issues of Assistance and Domination
Following an organizational campaign conducted by
IAM in August and September 1966, and a request for
and refusal of recognition, an election was held under a
stipulation for consent election on October 14, with the
employees rejecting representation by a vote of 32 to 11.
Shortly thereafter, under undenied testimony by Plant
Superintendent Gresk and Vice President Browning, they
were approached by various employees who made
suggestions and requests concerning the forming of an
employee union.' Management agreed that they might
hold elections and elect their own representatives.
Thereafter three employees informed Gresk and
Browning that they represented the majority of the
employees, having been elected as committeemen, and
were prepared to negotiate concerning wages, working
conditions and other benefits. Though no proof was
produced or requested concerning majority status, Gresk
and Browning entertained no doubt on that subject for it
was commonly known throughout the then small plant
that the employee election had been held and that the
three committeemen (John Hall, Charles Cockrill and
Thomas McConathy) did represent a majority of the
employees. Furthermore at no time down to the hearing
did any employee make any objection to representation by
the Committee or question its majority status.
Thereafter negotiations began between the Committee
and Browning and Gresk and, after a series of meetings in
which wages, hours and working conditions were discussed
and proposals and counterproposals were made an
agreement was reached in December 1966. At the
Committee's request the then single group leader Roy
Stepan, an hourly rated employee, was included in the
bargaining unit. After meeting with the employees the
Committee requested that management participate in a
further meeting with the employees to assist in explaining
the terms and conditions of the contract, and Gresk and
Browning went into such a meeting and explained what
had been agreed upon. They then withdrew while the
employees voted, and they were later informed that the
employees had agreed to accept the contract.
Various meetings were held between management and
the committee members during the first 2 years of the
contract term, covering working conditions, rate ranges
for new job classifications not covered by the contract, the
proper interpretation of contract provisions, and the
presentation and processing of grievances.
In November 1968, negotiations were begun under the
wage opener provision but were extended without
objection to other benefits and working conditions. In the
meantime the plant area had doubled and the work force
had tripled. One matter raised by the Committee was the
status of the group leaders, whom the Committee felt
should be eliminated from the contract as a part of
management , and Respondent agreed to the Committee's
position. Various oral proposals and counterproposals
were advanced and discussed during the four or five
meetings , and agreement was reached, after some give and
take and lowering of demands, on a new year contract
covering the calendar years 1969 and 1970.
Again the Committee requested that the Company
permit it to hold a meeting of the employees on the
premises so that they could vote on acceptance of the
contract and requested that Browning and Gresk help
explain some of the changes which had been made in the
old contract. Gresk explained various changes in the wage
rates and Beck also explained other changes, spoke
approvingly of the contract as the best that could be
obtained, and recommended that the employees accept it.
When some one raised the point that the employees in
Beck's department were to get the highest raise, Browning
interceded to explain that raise and to assure the
employees the Committee had done a good job for them
in hard negotiations. Thereafter, Gresk and Browning
withdrew during the actual voting which resulted in
ratification of the contract. Though the group leaders
remained, there is no evidence they voted '
The following facts are also undisputed:
There is no chairman or other head of the Committee
and there are no officers. There is no constitution or
bylaws or membership roster. There are no dues or
treasury or assets of any kind. Separate committeemen
are elected by the employees of the different departments
from among the employees of the particular department.
Presently there is one committeeman in the machine shop
on the day shift, another for the night shift, one in the
warehouse, and one from the employees in the rough yard.
The elections are held on Company property, as well as
all other meetings held by or with the Committee.
The committeemen were paid for all time spent on
Committee business and the employees were paid for their
time spent at the meeting of December 13. In practice
management representative presided at meetings with the
Committee, but there was no agenda and the
committeemen were allowed to discuss freely any subject
they desired to bring up.
Respondent does not provide a bulletin board to the
Committee for posting notices to employees, but itself
posts notices from time to time informing employees of
Committee business. Employees are generally notified by
their group leaders concerning desired attendance at
Committee meetings, such as on grievances and on
contract ratifications. In grievance meetings, however,
only the affected employee and the committeeman from
his department are called in, and except during
negotiations meetings on new contracts, there are no
meetings between management and the full committee.
There is no evidence that group leaders participated in
the actual election of committeemen except for the events
of January 13. Near the end of the lunch period on that
day Committeeman Vernon Beck announced it was time
to elect his replacement. Some of the group leaders were
having lunch in the lunch room at the time, as they
customarily did, and they were not requested to leave
during the meeting. When Beck asked for nominations,
Banks was first nominated, whereupon group leader
Vernon Gage proposed to nominate Kelley. Everyone
laughed, for the nomination was understood to be in jest
though the significance of the joke does not appear from
the evidence. In any event Banks was almost unanimously
'Though Herbert Kelley testified for the General Counsel concerning a
suggestion made by Gresk in 1964 that the employees elect committee 'Testimony by Williams Banks II that a second vote was held when the
representatives and though there was evidence that a committee of sorts first one was inconclusive is in conflict with the testimony of all other
existed at least for a time , there was no evidence that it ever rose to the witnesses and is not credited. Another similar meeting was held at which
stature of a labor organization , that it bargained with Respondent, or that the second shift employees voted also to accept the contract, but there was
it was in existence at the time of the IAM campaign in 1966 no further material testimony concerning it
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elected, receiving 32 votes out of 35. There is no evidence
that Gage or any other group leader participated in the
actual balloting.
There was disputed testimony by Banks that shortly
after his election as committeeman on January 13, Gresk
called the Committee into his office and explained to the
new members what their duties were as committeemen.
He told them in part that when faced with a grievance or
gripe they should try to explain to the employee the
Company's side of it and at the same time should explain
the employee side to the Company. Gresk also said that
though the committeeman was supposed to represent the
employees to the Company, they were not to be one sided
about it and were also supposed to represent the Company
to the employees. Indeed as Banks understood it, his
entire authority as a committeeman came from Gresk.
Both Gresk and Committeeman Kenneth McDonald
denied Banks' testimony. McDonald testified that his
authority was derived from the fact that he had been
elected by the employees to represent them and denied
that anyone from the Company ever informed him what
his duties were as a Committee member. Gresk testified
that he distributed to the committeemen the newly printed
contract which he had just received and went through it
with the Committee, with particular attention to the
grievance procedure (for the benefit of the new committee
members); he denied that he undertook to outline the
duties or the authority of the Committee except in relation
to their position under the grievance procedure.
I credit the mutually corroborative testimony of Gresk
and McDonald and I find that Banks was mistaken in
assuming that his authority as a committeeman was
derived from the Company.
Concluding Findings
Section 7 guarantees to employees the right to self
-organization and to bargain collectively through
representatives of their own choosing. As is apparent from
the foregoing summary there is little evidence which will
support a view that the employees themselves did not
freely form the Committee and did not freely choose it as
their bargaining representative. The absence of formality
and of customary indicia of a labor organization was itself
the choice of the employees and the manner in which the
Committee functioned was an inevitable result of the type
of organization it was. Furthermore, the evidence showed
affirmatively that Respondent in no way sought to
influence either the manner of election or the results
thereof despite its obvious willingness to cooperate.
It must also be remembered that all events which
occurred before August 18, 1968 (the 10(b) date), may be
utilized solely as background in evaluating the status of
the Committee and Respondent's conduct within the
6-month period. Mt. Clemens Metal Products Company,
126 NLRB 1297, and cases cited at footnote 3 thereof.
Though controlling weight may therefore not be given to
Respondent's role, in the formation and administration of
the Committee prior to August 16, 1968, the result would
be unchanged here for the prior evidence, even if
considered independently, failed to show domination of
the Committee. When consideration is limited to conduct
within the period there is even less evidence of
domination . At a time when there was no conflicting
claim by another labor organization and therefore no
question of forestalling possible outside representation (cf.
B. M. Reeves Company, Inc., 128 NLRB 320 and see fn.
5, infra), the contract was reopened pursuant to its
provisions, and after full and free negotiations a new
agreement was reached and was accepted by vote of the
employees.
I therefore conclude and find that the evidence failed to
support the allegation of domination.4
We turn then to the question whether Respondent
engaged in proscribed forms of assistance, noting that
some degree of "assistance" was plainly involved in
permitting the Committee to hold the employee meeting
of December 13 on Company time and property, in
paying the committeemen for the time spent on
Committee business and in printing the contract at its own
expense. The presence of the group leaders was not
significant since they were at the time within the
bargaining unit by mutual consent and the evidence
showed no participation on their part in the employee
discussions or in the voting on the contract. Nor was the
act of entering into the contract itself a form of illegal
assistance. There was no conflicting representation claim
at the time, the contract was ripe for reopening under its
terms and majority support for the Committee was plainly
evident in the attendance at the meetings and the
favorable vote on the contract which the Committee had
negotiated as the representative of the employees.'
Though decided Board and Court cases reflect some
conflict as to whether conduct such as is found here
constitutes unlawful assistance or only permissible
cooperation, it is unnecessary to review the authorities at
length for I find controlling the Board's recent decision in
Coastal States Petrochemical Company, 175 NLRB No.
92, decided April 24, 1969. Indeed as will be noted from
the findings of Trial Examiner Ladwig quoted below, that
case is distinguishable from the present one in no material
respect. Thus, the evidence there showed that management
officials met with the employee committee in monthly
meetings and that:
In practice, General Manager Paulson presided at the
meetings, which began about 3:15 p.m., and lasted up to
55 minutes. Paulson's secretary usually telephoned the
various areas, to give reminders of the meetings. Except
at the January and February meetings, when Paulson
announced that wages and benefits would not be
discussed, the committee members were permitted to
discuss any matters they wished. There was no agenda.
The participants continued to discuss wages, benefits,
working conditions, and complaints. The Company paid
the employees and employee representatives for the time
spent in the meetings - at the overtime rate of time
and one-half, unless the employee was on straight time,
within 8 hours a day and 40 hours a week. (Employees
were paid in the same way for attending safety
meetings , meetings to discuss benefits, and fire
training.)
'Under the circumstances here the fact that Respondent might control
the tenure of committeemen through its power to promote , transfer, layoff
or discharge would not constitute domination , see Modern Plastics
Corporation , 155 NLRB 1126, 1128 , fn. 4, particularly since the record is
devoid of suggestion that Respondent sought at any time so to influence
the composition of the Committee.
'In these respects the case is much weaker than B M Reeves Company,
Inc, 128 NLRB 320, where there was a premature reopening in the face of
a conflicting (outside ) representation claim made , as the Trial Examiner
found, with the purpose and intent of forestalling outside representation
and cementing the inside committee 's position . Indeed , the Board held that
the element of intent or motive is immaterial in such situations and that
the employer conduct is illegal only if the recognition and contract is
accorded a minority union or accorded at a time when a real question
concerning representation existed.
LADISH COMPANY, TEXAS DIVISION
The Employee Committee had no formal
organization , no meetings except with management, and
no dues or expenses . The employee members were
selected by the employees in the various areas. The
Company took no part in the selection , and provided
no bulletin board , stationery , secretarial help, or private
meeting place for the committee . No joint minutes of
the meetings with management were taken or posted.
Employees received no special rights or privileges for
membership on the committee.
The Trial Examiner ' s decision , which was adopted by
the Board , continued:
Going outside the 10 (b) period (beginning September
8), the General Counsel argues in his brief that the
Company "dominated and assisted the Committee,"
citing the fact that General Manager "Paulson set up
the expanded Committee [in May ] designated
departments to be represented , and set the time, place
and day for all meetings ." There is no evidence of such
dictation , or control over the committee ' s operations,
during the 6-month limitation period . By September
these matters had been settled by mutual agreement.
There is no evidence that after September 6, the
committee was "foisted " upon the employees , that the
Company coerced any employee to attend a committee
meeting , determined the term of office or participated
in any way in the selection of employee representatives,
or that the Company dictated how the representatives
would function inside or outside the meetings.
The only evidence of any financial support given to
the Employee Committee by the Company is the
compensation given employees for attending the
meetings usually at the overtime rate. However, in
the absence of any domination or other interference
with the administration of the Committee , I find that
the payment for meeting time, in the same manner as
for working time, cannot alone be the basis for a
finding of unlawful support of the committee. I
therefore grant the Company's motion to dismiss the
Section 8(a)(2) allegations of the complaint.
See also Hannaford Bros . Co., 119 NLRB 1100; H. H.
Erikson d/b/a Detroit Plastics Products Company, 114
NLRB 1014; Manuela Manufacturing Co., Inc., 143
NLRB 379; Hesston Corporation , Inc., 175 NLRB No.
15.
I conclude and find on the authority of the foregoing
cases that the evidence does not establish unlawful support
of the Committee and I therefore grant Respondent's
motion to dismiss the Section 8(a)(2) allegations of the
complaint.
C. The 8(a)(l) issues
During the week beginning January 13 it became
known in the plant that the Millwrights Union would hold
a meeting of Ladish employees on Friday, January 18.
There followed, under the testimony of William Banks II
and Herbert Kelley, a series of interrogations by their
group leader, Fred Johnson, concerning what they knew
about Millwrights and the meeting and their intention of
attending. In Banks' case Johnson also inquired whether
he was related to or a close friend of the organizer
Kenneth E. Banks, who was conducting the Millwright
activities.
Kelley testified to repeated interrogations by Johnson
continuing through the day before the meeting, including
inquiries whether Kelley knew of other who were going to
the meeting. On the final day Johnson produced a slip of
585
paper with the Union's name and address on it and
questioned Kelley concerning the correctness of the
notation. Though Kelley had learned about the Union and
the union meeting, he disclaimed to Johnson throughout
the interrogations any knowledge on the subject for he felt
it was not Johnson's place to know about the Union and
did not want to discuss it with him.
Banks testified further that on Monday following the
meeting, Johnson renewed the questioning about attending
the meeting and asked also what Banks thought about it,
whether there were many people there, who else was there,
and whether Banks thought the Union would come in at
the plant.'
Johnson's testimony was a flat denial of all the
foregoing. Indeed, he testified he had no knowledge of
Millwrights or of the meeting until sometime around
January 23 or 24, when an employee named Kenneth
Davis told him about that union.
Aside from the fact that the testimony of Banks and
Kelley revealed a similar course of interrogations by
Johnson and was thus in a sense mutually corroborative, I
find unpersuasive Johnson's attempts to support his
blanket denial by claiming lack of knowledge of the
Millwrights activities. As will be seen from the incident
next reviewed, such knowledge penetrated to Gresk, who
admitted discussing the subject with Banks on January 21.
I therefore do not credit Johnson's testimony.
Banks testified, and Gresk admitted, that on January
21 there was a conversation between them which began
with Gresk's inquiry how Banks liked his position on the
Committee and which turned to the Millwrights meeting.
There was little conflict in the two versions save on the
point whether Gresk asked specifically how many
employees attended. Thus, Gresk admitted that after
referring to "some unhappiness on the part of some of our
employees" he referred to "a little meeting [that was]
held." Banks admitted that he had gone to the meeting,
explained the coincidence of the Banks name and stated
he went to find out whether the other Banks was related
to him. Gresk inquired what he thought of the meeting
and Banks stated he understood there was not too much
that could be done because of the 2-year contract.
Thereupon Gresk charged Banks with being a hypocrite,
reminding him that he had been elected by the
membership to represent them, and told Banks he could
not be on the fence representing two parties and if he
could not represent the employees, he should go back and
tell them so because he had a decision to make. Gresk
also admitted, as Banks testified, that he suggested
jokingly that Banks should set up some provision for dues
so that Banks might get some pay as a committeeman.
Though Banks testified that Gresk inquired how many
people were at the meeting , that inquiry if made, was only
natural because under Banks' testimony it followed his
explanation to Gresk that he attended the meeting because
he was the elected representative of the employees and
wanted to see whether a majority of the employees were
present. However, I credit Gresk's version of the
conversation.
I conclude and find that by Johnson's interrogations of
Banks and Kelley concerning their knowledge of
Millwrights, the union meeting, and their intention of
attending it and the later interrogation of Banks as to the
'Though Banks ' affidavit to the Board contained no references to the
conversations with Johnson , he produced on Respondent 's request some
notes which he had made and which contained references to interrogations
by Johnson on January 17 and 20.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identity of those who attended the meeting, Respondent
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed in Section 7 of the Act
Such interrogations "could well intend to influence the
employees and interfere with the free exercise of their
organizational activities under the Act " N L R B v
Mid-Western Instruments, Inc , 264 f 2d 829, 831 (C A
10), quoted and followed in N L R B v Harbison-Fischer
Mfg Co , 304 F 2d 738, 739 (C A 5) The repeated
interrogations by Johnson refute any view that the
inquiries were casually made Furthermore, Kelly's denial
of knowledge spoke "more persuasively" on the coercive
effect of the questioning upon him Cf NLRB v W
T Grant Co , 199 F 2d 711, 712, cert denied 344 U S
928
I find similarly coercive Gresk's admitted interrogation
of Banks concerning the meeting and what Banks thought
of it It was plain from the circumstances that Gresk
deliberately sought Banks out for questioning, presumably
having learned (as Johnson had) that Banks had become
interested in Millwrights Thus the interrogation itself was
not the result of the surprise nor was it an understandable
impulsive reaction such as the Board found to be
noncoercive in United States Gypsum Company, 93
NLRB 966 1 do not find, however, that Gresk's lecturing
of Banks about fence straddling was coercive The
suggestion that Banks could not represent two parties and
that he should inform the employees if he decided he
could not represent them plainly did not establish the
complaint allegation that Gresk was threatening Banks
with loss of benefits if he did not withdraw his allegiance
to Millwrights and reaffirm his Committee allegiance.
The General Counsel also included a number of 8(a)(1)
allegations in his complaint based on a speech which was
made to the employees by Vice President Browning on
February 21, and offered in support the testimony of
William Banks II and Willie Jackson, who were among
the 100-odd employees who heard the speech By brief the
General Counsel concedes that their testimony, at least in
some instances, reflected their subjective reaction rather
than the actual words spoken and agreed that the typed
copy received as a Respondent's exhibit was substantially
correct and more reliable than the recollections of Banks
and Jackson The Examiner therefore grants the General
Counsel's request to withdraw subparagraph 7(d), (e), (h)
and (i) of the complaint
There remained, however, the following portion of the
speech which the General Counsel contends constituted a
violation of Section 8(a)(1)
Apparently, this union is an off-shoot of the
construction Millwright Union which is part of the
Carpenters District Council. Construction unions, the
Millwright and the Carpenter unions among them, are
perhaps the most notorious unions in the United States
for discriminating against employees because of race
and color Have any of you ever seen a Negro carpenter
on a unionized construction project? Undoubtedly the
construction craft millwright union needed money so
they set forth to establish a millwright shop local to try
to organize plant employees to try to get more
dues-paying members
The quoted excerpt amounts to no more than a
statement that the Union was noted for discriminating
against Negroes. Exactly such a statement was held not to
be violative of the Act in Boyce Machinery Corporation,
141 NLRB 756, 762-763, quoting from Sewell
Manufacturing Company, 138 NLRB 66, to the effect
that "no one would suggest that Negro employees were
not entitled to know that the union which seeks to
represent them practices racial discrimination "
The General Counsel also cites ITT Cannon Electric,
172 NLRB No 71, but there the statement that the union
would discriminate against the Negro employees if it came
in was coupled with a threat that vacation benefits might
also be lost Furthermore, the Board held that whatever
coercive effect the statement may have had was overcome
by an express disavowal of the supervisor's statement
I conclude and find on the authority of Boyce and
Sewell supra, that the statement quoted above was not
violative of the Act
Finally there was testimony by Evans Stewart that
some 2 or 3 days after Browning's speech (on February
21) he had a lengthy conversation with Browning which
included interrogations by Browning concerning how the
Union started, who started it, whether he had signed any
cards for the Union, whether he attended the Union
meeting and whether he knew anyone else who attended
Browning also requested Stewart to talk with the
employees in the shop to find out what their gripes were
and why they wanted the Union.
Browning admitted having a conversation with Stewart
but denied there was any mention of Millwrights or of the
word union and denied the interrogations which Stewart
attributed to him Browning testified, as Stewart admitted
on cross-examination, that the conversation began with a
discussion of the workload, which Stewart inquired about,
and following Browning's explanation, Stewart inquired
about grievances being processed by the Committee and
complained about the Committee's inactivity and its
failure to bring up matters which Stewart felt should have
been presented Browning explained that the Company
had no control over that because the Committee was
elected by the employees and there were certain
procedures to be followed under the contract Stewart also
admitted that he complained to Browning that he should
be paid more money and inquired why he could not bid on
other jobs Browning explained that the wages and
benefits had been recently established by the Committee
and the Company througl, negotiations, and that Stewart
could bid on any vacancy for which he was qualified under
the seniority and qualification rules
As is noted Stewart's testimony on cross-examination
was in full accord with Browning's testimony save on the
alleged interrogations concerning Millwrights and the
solicitation to inquire and to report back to Browning the
reasons why the employees wanted outside representation
It is also to be noted that the original charge had been
filed on February 17 and that Browning's speech of
February 21 was free of coercive statements Resolving
the direct conflicts in the foregoing testimony I consider it
unlikely under the latter circumstances that Browning
would have made the statements which Stewart attributed
to him and I therefore credit Browning's denial that he
made them
D The Issue of Discrimination
Willie Jackson was hired on February 6, 1968, as a
machine shop helper, the classification he remained in
until his discharge on March 20, 1969 Jackson was hired
at $1 95 per hour and received minimal raises from time
to time, usually 5 cents per hour, until he reached the top
of his grade on December 16 at $2 33 per hour Notations
on his personnel forms indicated need for improvement in
some categories but also reflected that improvement
LADISH COMPANY, TEXAS DIVISION
occurred down to the final merit raise on November 11,
when it was noted that Jackson "has improved in his job
knowledge and also has picked up his attendance."
Jackson testified that he attended the first union
meeting on January 18 (also attended by William Banks
II) and that he received cards which he distributed among
employees at the plant on January 20 and 21 and which
he returned to Banks. He admittedly tried to keep his
solicitation secret from the Company pursuant to
instructions given by the Union at the meeting and did his
soliciting during lunch and break periods and after
working hours. Jackson's affidavit to the Board contained
a statement that he did not know if the Company knew of
his union activities unless it was after a conversation
which he had with group leader Robert Williams around
the middle of January. Under Jackson's testimony
Williams first questioned him about how many signed
cards he had gotten and indicated interest in signing one
himself but later told Jackson he was afraid it might
jeopardize his job.
Williams, who was not Jackson's group leader,
admitted that around January 24 Jackson asked him to
sign a union card but testified that he refused and threw
the card into the garbage can. Williams denied the
remainder of Jackson's testimony and testified that he had
no prior knowledge that Jackson was signing employees
up or that the Union was trying to get in . Williams also
testified he told no other group leader, supervisor or
management official about the occurrence, and there is no
evidence that he did Moreover, Williams played no part
in the incidents surrounding Jackson's discharge or in the
decision to discharge him.
There is no other evidence that Respondent knew of
Jackson's union activities save for his testimony that on
February 14 he complained to his group leader Roy
Stepan about not getting a raise, stating in part , "You all
are not sure organized around here," Stepan replied, "No,
but your are trying to see that we are organized here."
Stepan admitted having the conversation about a raise but
denied that the word "organized" was used by either of
them on the occasion. Though I credit Stepan's version of
the conversation' it may be noted that even were the word
used, it would not necessarily refer to union activities.
Indeed, Jackson admitted that he was not referring to the
Union but to the fact that the Company was not following
the current agreement.
I conclude and find on the foregoing record that
Williams did not communicate his knowledge of Jackson's
limited union activities to any person who was in any way
connected with Jackson's discharge or with the decision to
terminate him. I find further that neither Gresk, who
made the decision, or Hall or Stepan, who concurred in it,
were aware of Jackson's union activities.
Though the General Counsel places some reliance on
the small plant doctrine, that factor cannot independently
establish knowledge. Furthermore, its applicability to
Respondent' s plant is questionable as of March 1969. The
work area had doubled and the work force had tripled
since recognition of the Committee in 1966. The
employees exceeded 100 in number' and as for plant size,
one of the incidents surrounding Jackson's discharge
occurred some 400 to 500 feet from his work station.
'Jackson 's testimony plainly showed his general disposition was not to
pay attention to what was going on around him unless it was something of
special interest and he admitted that though he was present during Banks'
testimony , he was not paying attention even when Banks was testifying as
the General Counsel's witness concerning his discharge.
587
Of course the circumstances surrounding the discharge
might assist in establishing knowledge or constitute some
basis for inferring it. Unfortunately for the General
Counsel's case, however, the record is barren of hint or
suggestion that the Union or Jackson's union activities
entered in any way into consideration of the discharge.
Pertinent evidence briefly summarized showed that after
earlier warnings, Jackson was removed from driving a
forklift in February and around the same time his bid on
another job was rejected. Subsequent further deterioration
in his performance led to oral discussions with him on
February 13 and 14, and on February 17, he was called in
and given the formal written warning, quoted below, in
the presence of his Committee representative, William
Banks:
On 2/13/69 at 3PM the Plant Superintendent
verbally discussed with you your poor application in
performing work assignment in marking flanges on a
marking machine.
You were able to demonstrate at that time total
capability of marking nine (9) flanges a minute; yet
your total performance was only 300 flanges marked in
three (3) hours, a overall rate of 28% efficiency Also
discussed with you was your poor overall application in
your general shop duties, your frequent absence from
your assigned work area and considerable visiting with
other employees.
On 2/14/69, your Superintendent noted that your
work performance again marking same as day before
flanges left much to be desired, with you taking two (2)
hours from 2PM to mark only 150 pieces. In addition
to poor performance was excessive time spent away
from work area.
You were verbally warned by Plant Superintendent
on several occasions for your overall attitude toward
your job.
This is written notice that continued poor job
application and unwarranted absence from your
assigned work area will result in your termination.
Respondent had long maintained, to Jackson's
knowledge, a rule which forbade the use of Company
telephones by employees without permission of a
supervisor and which provided that emergency messages
would be relayed to employees who should alert their
supervisors to expected emergency calls. On the morning
of March 20 Jackson sought to use a pay phone in the
lunchroom which was provided for the use of employees,
but when he found it tied up by another employee he went
on into the shipping department and used the business
phone to call his wife without obtaining permission from a
supervisor. Jackson testified, however, that he asked
Russell Moore (another employee and committeeman)
whether he could use the phone and Moore told him to go
ahead.' Though the buzzer had sounded the end of the
break period, Jackson went on with his call and was seen
by Gresk to be using the telephone on work time.
Gresk went to Jackson's department and learned from
group leader Stepan that Jackson had not obtained
permission to use the business phone. When Jackson
arrived some 15 to 20 minutes past the end of the break,'
Gresk questioned him about using the shipping
'Moore's corroboration of that testimony is somewhat suspect, for he
admitted he well knew it was necessary to get the permission of a
supervisor and admitted that he himself never used that telephone to make
personal calls
'Though Jackson and Moore testified that Jackson completed his call
within 3 minutes into work time , I credit the mutually corroborative
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department phone without permission. Johnson stated that
he was calling his wife and that it was an emergency call,
but when Gresk inquired the nature of the emergency
Jackson refused to tell him, saying it was none of his
business. Thereupon Gresk took the group into an office
and requested that Banks be called in as Jackson's
Committee representative. The details of the incident were
reviewed for Banks' information, with Jackson
maintaining his stand that the nature of the emergency
was none of Gresk's business The discussions then turned
to the amount of work Jackson had done that morning
and a check was made by the group at Jackson's work
station. Even with due allowances for other duties I find
that Jackson's output was substantially below a normal
quantity
Returning to the office, there was discussion whether
Jackson had improved, and Stepan agreed there had been
some improvement down to November.'°
Jackson was put in a separate office, and at Gresk's
suggestion committeeman Thomas Hatter was also
brought in. Gresk reminded Banks that Jackson had been
warned before and had been given a formal warning letter
in Banks' presence, and he told the committeemen he was
going to terminate Jackson. Banks and Hatter conferred
privately and, realizing that the prior warnings would
justify disciplinary action against Jackson, decided they
would try to get Jackson off by proposing a layoff of a
day or so without pay. When Gresk rejected the
suggestion, the committeemen informed Jackson of their
discussions with management and of their attempt to get
him off, but explained that the Company had apparently
decided to discharge him. They discussed whether they
would go through a further step of the grievance
procedure by taking the matter to Vice President
Browning but agreed the step would be useless because
Browning, as a part of management, would back up his
supervisors and the people under him.
When the entire group reconvened, Gresk informed
Jackson he was discharged and handed him a termination
notice which contained the statement "Despite letter of
warning of 2/17/69 no measurable improvement of work
performance has occurred Termination based on work
performance observed on 3/20/69 and refusal to explain
full reason for being absent from his assigned work area."
Gresk read the statement to Jackson, called his attention
to the fact that he might insert his own statement on the
form if he disagreed with the stated reason for discharge,
and also told Jackson he did not have to sign the form if
he did not want to. Jackson signed without comment and
without making any complaint that he was being unfairly
treated.
There was no suggestion from the record that Banks
and Hatter did not fully and fairly represent Jackson
during the investigation and the conferences which
preceded the discharge. The normal sympathies which
Banks would entertain toward an employee he was
representing were augmented here by the fact that he and
Jackson were aligned in their support of Millwrights, and
he plainly made a genuine effort to save Jackson's job.
Yet at no time did either Banks or Jackson raise any
question of Jackson' s union activities or suggest that a
discriminatory motive lay behind Respondent's action.
testimony of Gresk and Stepan that Jackson did not get back to his work
station until 9 45 or 9 50
"Jackson and Banks understood that Stepan was referring to
improvement after the warning letter of February 17.
It may be noted that the incidents of March 20 as-
reviewed above are established by testimony in which
there is little conflict Thus Banks' testimony as the
General Counsel's witness was in substantial accord with
that of Gresk and Stepan for Respondent Though
Jackson's testimony was in conflict on minor points (e g.,
the length of the telephone call), I credit the opposing
testimony of Respondent's witnesses."
Though the foregoing review was undertaken, as noted
initially, for the light it threw on lack of knowledge of
Jackson's activities on behalf of Millwrights, it also
establishes, and I find, that the General Counsel failed
otherwise to establish that Respondent was
discriminatorily motivated in discharging Jackson and
therefore failed to establish an unfair labor practice under
Section 8(a)(3).
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1).
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
3 Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(2) and (3) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as outlined below which I find to be necessary to remedy
and to remove the effects of the unfair labor practices and
to effectuate the policies of the Act. Because of the
limited scope of the unfair labor practices, I shall
recommend a narrow cease and desist order.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following-
RECOMMENDED ORDER
Ladish Company, Texas Division, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and sentiments, concerning their knowledge of,
and attendance at, union meetings and concerning the
identity of other employees who attended such meetings.
(b) In any like or similar manner interfering with,
restraining or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action:
(a) Post in its plant and offices at Houston, Texas,
"It may also be noted that though racial overtones were suggested by
some of the examination, the purpose was to establish that racial
considerations in fact played no part in the handling of the discharge Thus
the following facts were developed. Some 30 percent of the employees were
Negroes, as were two of the committeemen. Jackson was a Negro , as were
Williams, who testified against him, and Russell Moore, who testified in
his behalf Thomas Hatter , also a Negro and a committeeman , served with
Banks in representing Jackson in the discharge conferences.
LADISH COMPANY, TEXAS DIVISION
copies of the attached notice marked "Appendix."":
Copies of said notices on forms provided by the Regional
Director of Region 23 shall, after being duly signed by
Respondent's representative, be posted by it immediately
upon receipt thereof and maintained 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 to insure that said
notices are not altered, defaced or covered by any other
material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision
what steps Respondent has taken to comply herewith.""
I recommend dismissal of complaint allegations that
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(2) and (3).
"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 the
Respondent has taken to comply herewith "
589
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 interrogate our employees concerning
their union activities and sentiments, concerning their
knowledge of, and attendance at, union meetings or
concerning the identity of other employees who attend
such meetings.
WE WILL NOT in any like or similar manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act.
Dated By
LADISH COMPANY, TEXAS
DIVISION
(Employer)
(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, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas,
Telephone 713-226-4296