National Metal Fabricators, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1965

153 N.L.R.B. 773 (N.L.R.B. 1965)

NATIONAL METAL FABRICATORS, INC. 773
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 , as amended , we hereby notify our employees that:
WE WILL bargain , upon request, with Hawaii Newspaper Build, Local 117,
AFL-CIO, as the exclusive representative of all our advertising department
employees within the bargaining unit found appropriate in the Trial Examiner's
Decision , with respect to the formulation and reinstitution of incentive bonus
plans for such employees , and, if requested , we will execute a written contract
incorporating any agreement reached.
WE WILL NOT, through any course of conduct subject to proscription as a
refusal to bargain , interfere with, restrain , or coerce our employees in the exer-
cise of their right to self-organization , to form labor organizations , to join or
assist Hawaii Newspaper Guild, Local 117, AFL-CIO, or any other labor orga-
nization , to bargain collectively through representatives of their own free choice,
and to engage in other concerted activity for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activity,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized
in Section 8(a) (3) of the Act, as amended.
HONOLULU STAR BULLETIN , INC. AND ADVERTISER PUBLISHING CO.,
LTD., D/B/A HAWAII NEWSPAPER OPERATORS,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate with the Board 's Subregional Office, 680 Ala Moana
Boulevard , Honolulu, Hawaii, Telephone 58831, Extension 408, if they have any
question concerning this notice or compliance with its provisions.
National Metal Fabricators, Inc. and Roy Eugene Barnett and
Roy W. Barnett . Cases Nos. 9-CA-3202-1 and 9-CA-3202-2.
June 29, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Laurence A. Knapp issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding 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
153 NLRB No. 64.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the cases and hereby adopts the findings,' conclusions and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that the Respondent, National Metal Fabricators, Inc., Lucasville,
Ohio, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order.2
1 The Respondent excepted to the credibility findings made by the Trial Examiner It Is
the Board's established practice, however, not to overrule a Trial Examiner's resolutions
with respect to credibility unless, as is not the case here, the clear preponderance of all
the relevant evidence convinces us that the resolutions were incorrect. Standard Dry
Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (CA. 3)
We adopt the Trial Examiner's finding that the underlying reason for Roy W. Barnett's
discharge was his leadership and activities in the union movement. We need not pass
upon whether the discharge was also violative of the Act to the extent that it may have
been based upon Barnett's role in the gathering of employees to Wharton's office on
April 30. Nor is it necessary to pass upon the Trial Examiner's view that Roy W
Barnett's asserted intention to complain to public authorities about an alleged hazardous
condition in the plant, if it were an issue in the case, would have to be found a protected
activity.
2 The telephone number for Region 9, appearing at the bottom of the Appendix attached
to the Trial Examiner's Decision, is amended to read : Telephone No 684-3627
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case came on to hearing before Trial Examiner Laurence A. Knapp at Ports-
mouth, Ohio, on September 21 through 24, 1964, following prehearing procedures in
compliance with the Act.'
The questions presented are (1) whether Respondent engaged in interrogation,
threats of plant closing and loss of employment, and promises of benefits, in violation
of Section 8(a)(1) of the Act; and (2) whether Respondent discharged two employ-
ees in violation of Section 8(a) (3) and (1) of the Act.
Upon consideration of the entire record, including my observation of the demeanor
of the witnesses and credibility determinations hereinafter stated, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT; THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the parties stipulated, and I find that
Respondent, a manufacturer of transformer tanks at Lucasville, Ohio, shipped finished
products having a value in excess of $50,000 directly to points outside the State of
Ohio in the 12-month period preceding issuance of the complaint. Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
Respondent likewise admits and I find that District 50, United Mine Workers of
America, herein called the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
1 Charges and amended charges filed by the two discharged employees of National Metal
Fabricators, Inc., herein called the Respondent, were served on Respondent on May 27
and June 23, 1964, respectively. The complaint, issued July 15, 1964, was served on
Respondent on July 16, 1964; Respondent filed its answer on July 23, 1964.
NATIONAL METAL FABRICATORS, INC.
II. THE UNFAIR LABOR PRACTICES
775
Background Concerning Respondent's Operations; the Key Role of
General Manager Wharton; Wharton's Antiunion Attitude
Respondent was organized in March 1962. It is a small company, employing 18
production workers at the time of the hearing. During 1962 and the first 6 to 7
months of 1963 Respondent operated at a loss, which reached a cumulative peak of
$30,000 at some point in 1963. However, beginning in the latter months of 1963
operations turned profitable, due to increased volume of business.
A prime mover in Respondent's formation, and since January 1963 its sole active
managerial official, is Howard D. Wharton, its general manager and one of its six
stockholder-directors. When the other five stockholder-directors were disposed at
the end of 1962 to terminate operations and proceed to liquidation, Wharton (thereto-
fore in charge of Respondent's sales ) successfully urged a continuation of operations
and, in consequence, was entrusted by the other stockholder-directors with complete
managerial authority and responsibility 2 Since January 1963, therefore, Wharton
has had full and sole charge of all commercial and managerial functions, including
purchases, sales, production, hiring and discharging employees, and the like.
Respondent's only other supervisor is Plant Foreman Parks, but since Wharton
personally does all hiring and firing and engages in considerable direct production
supervision, and as is otherwise evident from the record as a whole, Parks' supervisory
role appears to be distinctly limited and relatively nominal.
After Wharton took over broad managerial responsibility in 1963, he gradually
built up the production force, which reached a total of 15 in the early months of 1964.
In engaging these employees, he admits having rather routinely informed them of
his wish not to have a union. In this connection, according to Wharton, he stated
that, while he realized unions had their place, he had known them to cause difficulty
and he wished to have a peaceful plant situation. But, on uncontradicted employee
testimony, I find that he went further in one instance in April 1963 when, after telling
the employee he was then engaging that he did not want to have a union, he added
that he would discharge any employee who tiled to bring a union in. And on the
basis of additional testimony Wharton also did not deny, 1 further find that in a con-
versation Wharton had with one of his workers in December 1963, Wharton described
another employee he was then discharging (for wasting working time) as a "union
radical," adding that he did not like a union and did not want to get involved in one.
Initial Union Organizational Activities by the Employees
Talk respecting unionization arose among some employees in late 1963, and by
February 1964 certain employees were sounding out others concerning more definitive
organizational action. About February 25, one of the more pronounced proponents
of unionization, Roy W. Barnett, proposed to another, Garvis Turner, that the
employees "buy" a union. As a result of Barnett's proposal, Turner, and a third
union advocate, employee Roger Cooper, made a direct contact with the Union.
Union cards were received from the Union and, by the end of February, most of
Respondent's then 15 production workeis had signed, some at a gathering at Turner's
home and some elsewhere.3 The Union thereupon filed an election petition with the
Board's Regional Director at Cincinnati, Ohio, a copy of which Wharton received
from that Director on March 5. Although it is clear that all card signers were recep-
tive to the idea, those assuming the most active organizing roles during this formative
period weeks were Barnett, Turner, and Roger Cooper While Wharton testified
repeatedly that he obtained his first information concerning this union activity from
his receipt of the Union's election petition on March 5, there is employee testimony
he did not specifically deny, and I find, that at some point prior to February 29 he
called employee Allen into his office and threatened to discharge Allen's son-in-law,
Charles Tolbert, unless Tolbert stopped "talking union." 4
2 A strong inference arises from Wharton's testimony that the five stockholder-directors
not associated directly with normal managerial affairs aie essentially capital-investors.
8 Thirteen of Respondent's 15 employees signed, with the evidence indicating that 12 had
signed by the end of February and the 13th-Stambaugh-on March 10
The two nonsigners-Donald Cooper and Walter Moore-were opposed to unions in
principle.
* This is one of the many Incidents not charged as an unfair labor practice to which
I refer immediately below.
776 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
A. Alleged interference, restraint, and coercion in violation of
Section 8(a) (1) of the Act
Laying aside the derivative violations of Section 8(a) (1) charged in respect of the
two discharges involved herein, the acts of interference, restraint, and coercion
charged in the complaint refer to alleged statements by Wharton at employee meetings
be convened on March 5, 20, and 26, respectively, and to one statement allegedly
made by Foreman Parks following the March 26 meeting. In his proof, however,
counsel for the General Counsel adduced evidence of a considerable number of addi-
tional such statements by Wharton and Parks, without, however, placing these further
incidents in issue as alleged unfair labor practices.5 In the circumstances, it is to
be presumed that counsel for the General Counsel offered his evidence as to these
uncharged incidents as proof of Respondent's unlawful motivation bearing upon the
particular violations charged in the complaint, for which purpose, of course, he was
entitled to litigate and Respondent to defend theme Hence, I include these incidents
in the following further account of and findings upon the material events of this case,
and at the conclusion of this section I will recapitulate the unlawful interrogation,
threats, and promises of benefit charged and found.
1. Wharton's receipt of the Union's election petition and surrounding events
Wharton's reaction upon receipt of the Union's election petition on March 5 was
swift and vigorous. He approached employee Allen that morning and asked Allen
what he knew about the Union "coming in." Allen replied that he knew little
except he had signed a card. Wharton asked Allen to tell him what employees had
the cards. Allen refused to give names but said there were three such employees.
Wharton also asked Allen in this conversation why the employees wanted a union.
Allen replied that perhaps other employees could best answer this question
That same morning, Wharton called all the employees to a meeting in the plant,
at which, the complaint charges, he unlawfully interrogated the employees concerning
their union activities and threatened to close the plant rather than deal with a union
as the employees' representative.
As to the interrogation count, it is undisputed that at the outset of the meeting,
Wharton, referring to receipt of the petition, circulated among the assembled employ-
ees and asked them individually why they wanted a union. Having been advised
by the Union to remain silent in such circumstances, none of the employees made
any response to these queries.
According to pertinent portions of the testimony of some half-dozen employees
in attendance, the essence of Wharton's further remarks at this meeting is as follows.
Wharton stated that he had never operated, could not operate, and would not
operate under a union, and would close the plant rather than do so, that (making
some refeience to Respondent's loss and cost figures and its price competition) the
Company could not afford increased wages or other cost-increasing benefits, and that
the Union would break the Company; that there had been a stockholder vote at some
previous meeting in favor of liquidation and that he did not know what the stock-
holders were going to do until their next meeting (scheduled for March 27), that
the day the Union was "voted in" and union negotiations began he would resign;
and that there was a $25,000 position available to him elsewhere and that he could
(or would) take the Company's business with him and that without him there would
be no company.
Wharton conceded in his testimony that he referred to the election petition and
then queried various employees individually as to why they wanted a union. The
balance of his description of what took place at this meeting is, in substance, as
follows. He stated that he did not want a union; that he "felt" a union would add
to his operating costs; that he did not see how he could operate and take time for
grievances and union meetings; that he did not see how a union could be of any
benefit to Respondent's employee-employer relations because there were no such
problems; that he explained the Company's unfavorable loss, cost, and competitive
5 As to these further instances, counsel for the General Counsel did not move corre-
sponding amendments to the complaint or otherwise serve notice that he was litigating
these incidents as asserted violations of the Act.
6In most of these instances, Respondent offered no testimony by Wharton or Parks
specifically denying the statements attributed to them in the direct evidence offered by the
General Counsel through employee witnesses . Unless I refer to such specific contradictory
testimony in my consideration of these various incidents , it is to be understood that
none exists.
NATIONAL METAL FABRICATORS, INC. 777
situation; that there had been a previous stockholder vote in favor of liquidation;
that the next stockholder meeting was scheduled for March 27, and he did not know
what the stockholders would decide about continuing or liquidating the business; 7
and that in making the foregoing remarks to the employees he told them that he
was doing so, not to influence, intimidate, or coerce them in their decision relative
to the Union, but merely for the purpose of acquainting them with the facts con-
cerning the Company's finances and other aspects of the business.
However, while denying in general terms that he had ever "threatened" the
employees, or to close the plant, because of their union activities, Wharton did not
specifically deny that he told the employees at this meeting that he never had operated
and neither could or would operate under a union, nor did he specifically deny having
said that, if the Union won the election, he would (or could) cause a cessation of the
Company's operations by leaving it and taking its business with him. Moreover,
Wharton engaged in other conduct on March 5 indicative both of the bitterly anti-
union reaction which receipt of the union petition engendered in him, and of a
willingness on his part to threaten closing the plant to frustrate the union repre-
sentation desires of his employees. Having learned from employee Allen that
morning that three employees had had the union cards, after the meeting that day
Wharton approached Allen's son-in-law, Charles Tolbert, whom he had a few days
earlier threatened (to Allen) to discharge for "union talk," and asked Tolbert if he
knew or would name the three men involved in starting the Union. Tolbert declined,
whereupon Wharton referred to Turner, Cooper, and Barnett and stated that "if
he could find out" (meaning, I infer, if he could verify that these three were the
leaders) he would discharge them. And in another conversation with Tolbert that
day (whether before or after the meeting is not clear), Tolbert made some inquiry
of Wharton concerning the painting operation he was engaged in. Wharton said
it was all right, but that this made no difference "now," since he was going to
terminate the Company. Tolbert inquired why and Wharton gave as his reason the
election petition he had received from the Board's Regional Director.
Further light on the matter is cast by some statements of Foreman Parks to
employee Roy E. Barnett, who because of a prolonged work absence occasioned by
illness did not attend the March 5 meeting.8 When Barnett returned to work on
March 9, Foreman Parks approached him and inquired whether he had heard about
the Union. When Barnett replied that he had,0 Paiks then asked Barnett if he
knew that Wharton was going to shut down the plant if the Union got in.10 Bearing
further on the question whether Wharton threatened to close the plant at the March 5
meeting are my later findings that at a third such meeting on March 26, the day
of the election, Wharton threatened a layoff of employees and a possible liquidation
of the plant if the Union won the election, and that he did, in fact, make such lay-
offs that day for that reason. Finally, as I later find, Wharton was a distinctly
unreliable witness, as will be delineated throughout this Decision
For all the above reasons, I find that at the March 5 meeting Wharton did make
the statements attributed to him in the employee testimony previously summarized,
including the statements that he would not operate under a union and would close
the plant if the Union were installed as the employees' bargaining representative.
That such threats are clear and flagrant employer interference, restraint, and coer-
cion is too well-settled to require extended discussion. See Surprenant Manufactur-
ing Co. v. N.L.R.B., 341 F. 2d 756 (C.A. 6); N.LR.B. v. Louisville Container
Corporation, 209 F. 2d 654, 655-656 (C.A. 6); N.L R.B v. Jack Smith Beverages,
Inc., 202 F 2d 100, 101-102 (C A 6), cert denied 345 U S. 995. United Fireworks
Mfg Co., Inc. v. N.L.R.B., 252 F. 2d 428, 430 (C.A. 6); The Atlas Underwear Co. v.
N.L.R B., 116 F. 2d 1020, 1023 (C.A. 6); N.L.R.B. v. E. S. Kingsford, d/b/a
Kingsford Motor Car Co., 313 F. 2d 826, 832 (C.A 6); N.L.R.B. v Wayne
W. Wilson Co., 311 F. 2d 1, 2 (C.A. 6); N.L.R.B. v. Fleiningsburg Manu-
facturing Co., 300 F. 2d 182 (C A. 6); N.L.R.B. v. Wilbur H. Ford, d/b/a Ford
Brothers, 170 F. 2d 735 (C.A. 6).
7 Some of Wharton's testimony concerning what he said about the stockholder's past
and prospective attitude toward liquidation was given in response to a question, while
under examination as an adverse witness, as to what he had said at a later employees'
meeting on March 26. But in the course of answering this question, he affirmed that he
had made these liquidation remarks at both the March 5 and 26 meetings.
Barnett's absence ran from February 28 to March 9
e On February 29, while in the hospital, he had signed a card brought to him by his
father, Roy W. Barnett.
10 Parks went on to say that the Union or a union had "ruined" some nearby atomic
energy plant operated by the "Goodyear" Company.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously noted, Wharton did not specifically deny making these particular
statements. But assuming that he intended, by his affirmative explanation of what
he did say, indirectly to deny them, his own testimony is implicit with a threat to
close the plant if the Union "got in." For, on his own description, his references to
liquidation followed upon his expressed opposition to any union representation of
the employees and his related assertion of inability to carry on if he had to take
the time necessary for dealings with a union. With the prospective election both
the occasion and the underlying subject of the meeting, the employees could not
fail to understand from these remarks of Wharton that their desires and his respect-
ing self-organization were in conflict and that continued plant operations could well
depend on the employees resolving this matter in the direction of his desires. In
these circumstances, what Wharton said about company finances and competition
could have not dissolved this clear import of his other remarks, particularly since
there was no union yet installed and, perforce, no union demands before him. And
that he was merely utilizing his claim of financial difficulty as an insincere auxiliary
to his main antiunion thrusts is evident from a course of action on his part now
to be dealt with.
2. The March 20 meeting and surrounding events
On March 12, Wharton called union-protagonist Troy Moore to his office and
asked Moore what he knew about the Union and what the men wanted." Moore
told Wharton that the "main object" was job security, paid vacations and holidays,
and such as that. Wharton then said he had had under consideration a plan to give
the employees paid vacations and holidays; that he had put the plan before the
stockholders at their preceding December 1963 meeting as one the Company should
put into effect as soon as its profit situation permitted; but that the Union had "come
on him" before he had had a chance to take this subject up again with the stock-
holders at their forthcoming meeting (scheduled for March 27) as he had intended
to do. With Moore identifying these benefits as the "thing" the men were must
concerned about, Wharton told Moore he thought they could be ironed out.12
Following this discussion with Moore on March 12, Wharton called the employees
to a second meeting on March 20, 6 days before the scheduled election date. Accord-
ing to various employees in attendance, Wharton told them he understood they
wanted paid vacations and holidays; and stated that he thought these matters, which
he stated he had earlier had under consideration, could be arranged but without
fixing any definite date. Wharton's testimony is to the same net effect.13
3. Further preelection antiunion conduct of Wharton and Parks
A few days before the March 26 election, Wharton called to his office employee
James Atkins, whom he had hired only some 6 weeks earlier. Wharton stated at
the outset that because Atkins' work was satisfactory he was giving Atkins a 15-cent-
per-hour wage increase. Then saying that he knew Atkins had been in business
for himself before, Wharton said he wanted to talk about the Union. He stated
that the Union, an affiliate of the United Mine Workers, would break the Company
as had happened in the West Virginia coalfields (so that, Wharton said, as a result
of high coal prices, he had had to change to electric home heating). However,
Wharton said, the main reason he had called Atkins in was to ascertain whether he
could take over the job of Roger Cooper. (Cooper, hired in April 1963, was an
apprentice welder like the recently hired Atkins). Atkins opined that he probably
could after some experience on Cooper's job. Wharton then said that he was going
to discharge Cooper because Cooper had given him union trouble before, and told
Atkins that if he got rid of Roger Cooper and Atkins did Cooper's job satisfactorily
he would raise Atkins' wage rate to $2.25 per hour.14
"Just previously , Wharton had asked Turner why the employees were so dissatisfied
and so intent on having a union. Turner recommended to Wharton that he should talk
to Moore because Moore had been employed longer than he. Thereupon Wharton sent for
Moore.
12 In the part of their conversation concerning "job security ," Wharton explained to
Moore the reasons for various previous employee terminations including one employee who,
according to Wharton , had quit because he had had the Union "fed" to him constantly
while riding to and from work. The record does not show when this former employee's
services terminated.
>a Wharton testified that what he had said to Moore on March 12 represented what he
had said at the March 20 meeting.
14 Prior to this meeting , Atkins was receiving $ 1.50 per hour, a rate increased to $1.65
by the 15 -cent-per-hour raise Wharton gave him on this occasion.
NATIONAL METAL FABRICATORS, INC. 779
After referring thus to union leader Cooper, Wharton told Atkins that there were
-two more, naming Turner and Barnett, that he was sure were "in it" and that he
was going to get rid of them also. Atkins asked which of the Barnetts Wharton
meant and Wharton identified the father, Roy W. Barnett (hereinafter sometimes
called Barnett, Senior). As to Turner, Wharton said he knew Turner had been
a union leader or organizer all his life.
In the same conversation, Wharton told Atkins that he had five employees who
would vote against the Union but he needed about nine. Wharton went on to say
that he was not so stupid as to tell Atkins how to vote but he knew how "he'd like
for" Atkins to vote.15
About a week before the election, that is, about March 19, employee Moore asked
Foreman Parks how Parks felt the election would come out. Parks replied that it
had better come out "one way" or the plant would shut down. On March 21,
Foreman Parks was talking to employee Ray Rothgeb about the Union "coming in."
In the talk, Parks told Rothgeb that if the Union came in "they'd close the plant;
they would not operate under a union." Parks added, as he had asserted to Roy E.
Barnett on March 9, that the reason so many men were being laid off at the nearby
atomic energy plant was on account of the "damn union." 16
4. The March 26 election and surrounding events
The election was held at the plant between 9 and 9:30 a.m. on March 26, with
the Union receiving a majority vote.
Earlier that morning, Wharton approached employee Allen in the "parts" room
of the plant and said, "Edd, what am I going to do?"-that the stockholders were
blaming him for "bringing the union in here." Wharton then told Allen he had
something to show Allen in his office. There, Wharton read out loud to Allen 1
of 10 layoff letters he had prepared and told Allen that "if this thing goes in
[meaning that if the Union won the election to be held that day], we'll have to
hand them out. There will have to be lay-offs." Wharton did not contradict this
testimony.
After this conversation with Allen and still prior to the voting, Wharton called
the employees to a third meeting. At the meeting, Wharton read to the employees
the text of the "lay-off" notice, a number of which he had in his hand. The text
of this document (Respondent's Exhibit No. 2) reads as follows:
I am indeed sorry that I must lay off employees at this time. Due to a
reduction in current orders and our hesitancy to accept any additional orders,
we have, after careful consideration, made this decision. It would seem, at
this time, the five or six oldest employees, in time of service worked, will be
employed finishing the current orders. During this time a decision will be
made relative to further plant operations.
Howard D. Wharton
General Manager
It is noteworthy, as will be seen, that Wharton did not at this time identify the
employees to be laid off or distribute the layoff notices.
It is clear that Wharton made further statements to the employees at this gather-
ing, in addition to reading the text of the notices he had prepared. According to
the combined testimony of various employees present, Wharton, in addition to
mentioning the lack of orders, said that he wanted to review the Union with the
employees; that layoffs would take place if the Union won the election; that he
would repeat what he had told the employees before, namely, that he could not
operate under a union, and that the Company would liquidate if the Union won
the election. There is further employee testimony that during the meeting employee
Roger Cooper asked Wharton what he was concerned about since there were as yet
no demands from the Union; that Wharton replied that the Company was in bad
financial shape and could not exist with a union; that employee Troy Moore then
said it appeared that the layoffs would take place even if the Union won the election;
and that Wharton, evidencing his disagreement with this observation by a negative
15 At the hearing, Wharton did not deny or even refer to any of the testimony of Atkins.
16 Parks, while admitting that he had had a few conversations with employees about the
'Union, denied in general terms ( but without specific reference to the above or other par-
ticular statements attributed to him ) that he had ever said anything to indicate that
the plant would be closed if the men joined the Union . In the circumstances , and com-
paring Parks ' unfavorable demeanor on the stand with the favorable credibility impression
made upon me by the corresponding employee witness, I have made the findings concern-
ing Parks ' statements set forth above in the text.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response or a negative shaking of his head, indicated there would be no layoffs
if there were no union (that is if the Union were rejected in the election then about
to begin.)
In the extensive and rambling testimony Wharton gave after being asked to
describe this meeting, Wharton denied that he conditioned the projected layoffs on
the outcome of the election But I credit the testimony of the employees and find
that he did Their testimony is unequivocal and is buttressed by the testimony of
employee Allen that Wharton made such a declaration to Allen in their private
conversation preceding the election, by his failure to distribute the notices until
after the election and its prounion outcome, and by his indication at the meeting,
as above found, that the notices would not take effect if the employees voted the
Union down. Obviously, Wharton at least was leaving the employees in suspense
in these respects until after the voting, and his action in doing so gravely under-
mines his assertion that he did not relate the projected layoffs to the outcome of
the election. This is further evident from his calling new employee Stambaugh to
his office after the election to inform Stambaugh that the Union had been "voted in,"
and that the layoff slips would be issued that afternoon.17 And that Wharton was
awaiting the outcome of the election before determining whether to make the
projected layoffs is further evident from contemporaneous conduct of Foreman
Parks. Thus, an hour or so after the election on March 26, but before any layoff
letters were issued that day, Foreman Parks approached employees Tolbert and
Barnett, Junior, chided them for voting for the Union, and in that connection said
he supposed they knew that they had thereby put a lot of good men out of work
and wondered how they would sleep that night. Parks then offered to bet, or stated
that he had already bet, one employee that the layoffs would be made.'8 At the
end of the day on March 26, the layoff notices were distributed to 10 employees,
selected on a seniority basis but naturally encompassing the bulk of the union
supporters.
Furthermore, the alleged lack of orders appears to have been a fiction contrived
by Wharton as a cover for retaliatory action springing actually from his deep
anathema to the union activity of his employees. According to Wharton, Respond-
ent's customers declined to place any further orders when Wharton notified them in
early March of the employees' organizing activities. But these attempts by Wharton
to lay the loss of orders to spontaneous action of customers fearful of interrupted
deliveries fail to jibe with the reference to "our hesitancy to accept any additional
orders" in the layoff notice he read to the employees. These attempts also fail to
jibe with the testimony of his secretary, also a witness for Respondent. She testified
that prior to the March 26 meeting Wharton had told the customers that he did
not know what decision the stockholders would teach about liquidation at their
meeting scheduled for March 27 (the day after the election), and that the cus-
tomers had decided not to place any further orders until they were advised whether
the Company would continue or not. Moreover, Wharton himself testified that when
he told the customers after the election and the March 27 stockholders' meeting
that "we had a union" and it looked like the Company would continue, the customers
thereupon resumed placing orders 19 Customers allegedly sensitive about deliveries
upon the mere appearance of union activity in the plant of a supplier, would, it
would seem, be all the more so once the Union's position were established by an
election victory.20 For all the foregoing reasons, therefore, the only rational inter-
pretation of Wharton's conduct is that he told the customers that the Company
might liquidate because of the union activity of the employees and thus brought
about, if he did not actually solicit, a temporary lack of orders which, in turn, he
utilized as a device to pressure the employees toward voting against the Union
All the circumstances mentioned above combine to lend weighty support to my
finding, and the underlying employees' testimony, that Wharton threatened to make
the layoffs, if, by the votes the employees were about to cast, they were to bring
the Union definitively into Respondent's plant.
17 Wharton went on to tell Stambaugh that at such time as he called the employees
back Stambaugh would have a job as long as there was one.
i Parks did not deny having made these statements
10 While Wharton said these orders were for smaller quantities than before , orders at
or above preelection levels must have soon been received since by September the produc-
tion staff reached new high levels.
21 In N L.R.B . v. The William J. Burns International Detective Agency , Inc, 148 NLRB
1267 (enforcement petition pending CA 8), the Board dealt with a similarly unpersuasive
attribution to customers of responsibility for loss of business.
NATIONAL METAL FABRICATORS, INC. 781
I further credit the employee testimony and find that at this meeting Wharton
threatened the employees with liquidation of the Company if the Union won the
election. A threat of liquidation is plainly expressed in the layoff notice which
Wharton read out at the meeting and is as clearly evident in testimony by Wharton,
referable to the March 26 meeting, that he told the employees it was a matter of
finishing and shipping the orders on hand while the stockholders decided whether
or not to liquidate the Company. In some of his surrounding testimony, Wharton
dwelt upon the alleged lack of orders and the poor financial position of the Com-
pany, described the matter of liquidation as unrelated to the matter of union orga-
nization, and otherwise attempted to portray the occasion of his statements at this
meeting as devoid of reference to the election which was to follow immediately upon
the meeting's end. But in earlier testimony given under cross-examination as an ad-
verse witness he testified that he made much the same presentation at the March 26
meeting as he had at the initial one on March 5, when admittedly he had ex-
pressed his unwillingness to operate with a union, and, as I have found, declared
his intention to bring about a termination of the business rather than to do so. And
later testimony Wharton gave as a witness for Respondent concerning the three
meetings indicates that at all three meetings he made similar statements respecting
his opposition to and felt inability to operate with a union representing the
employees. Without deciding precisely how identical his remarks were on these
occasions, it is clear beyond question that all the meetings (and all of Wharton's
and Park's threatening statements to individual employees) were of a piece, inspired
by the self-organization activity of the employees, and designed to deter them from
selecting the Union as their bargaining representative.
In addition to the overwhelming evidence already reviewed tracing Wharton's
many actions preceding March 26 as responsive entirely to the employee aspirations
for union organization, on the basis of testimony of employee Tolbert not specifi-
cally denied by Wharton, Wharton told Tolbert on the day after the election that
he could not understand why the employees wanted a union; that he had never
operated and would not operate under a union; and that he would "fire" the two
Barnetts the first chance he got. In these circumstances, it would be the height of
disingenuity not to accept, as I do, the employee testimony that at the March 26
meeting, Wharton coupled a threat of liquidation with a union victory. I further
find that he made the threat just prior to the voting to give it maximum effect."'
5. Summary of findings of independent violations of Section 8 (a) (1)
In accordance with the allegations of the complaint, I find that:
1. At the March 5 meeting, Wharton questioned various employees as to why
they wanted a union in a context of other coercive and intimidating antiunion
remarks.
2. At the March 5 meeting, Wharton told the employees that the plant would
be closed and that the business would or might be liquidated if the employees
selected the Union as their collective-bargaining representative.'"
3. That at the March 20 meeting, Wharton held out to the employees the prospect
of granting them paid vacations and holidays for the purpose of deterring the
employees from selecting the Union as their collective-bargaining representative, a
prospect equivalent to a form of "promise," albeit not a definitive one, to confer
such benefits if the employees were to abandon the Union.
4. At the March 26 meeting, Wharton told the employees that about two-thirds
of them would be laid off if the Union won the election.
5. On or about March 20, Supervisor Parks told employee Troy Moore that
Respondent would not operate the plant and that it would be closed if the Union
"came in," that is, if the employees designated the Union as their collective-
bargaining representative.
Each of the above items of conduct, by their nature and considered in the broader
context of Respondent's antiunion conduct as described above, were calculated to
and did represent acts of interference, restraint, and coercion violative of Section
8(a)(1) of the Act. My findings of independent violation of Section 8(a)(1) are
a Wharton's explanation at the hearing of his timing of this meeting was that he con-
vened it at what he thought was the most expedient time
22 The complaint charges that at this meeting Wharton threatened "to call" a stock-
holders' meeting "to get a vote to liquidate," a variance from my findings which is not,
however , different in character or, in my judgment , material.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limited to the above since the other items of similar conduct found were not, as
previously noted, charged as violations. of the Act by the General Counsel or
expressly litigated as such.23
B. The alleged discriminatory discharges
1. Roy W. Barnett
Barnett, employed on October 28, 1963, and admitted by stipulation to be a
superior worker, was an initiator and one of the three main leaders of the organizing
movement. As previously found, early in March Wharton had ascertained that
Barnett was one of the three union leaders and had threatened to discharge him for
that reason. Barnett acted as the union observer at the election on March 26, a fact
Wharton noted, and on March 27, in the course of other antiunion remarks, Wharton
again threatened to discharge Barnett (and his son).
On Apiil 16, Wharton discharged the son in an interview in Wharton's office.
As more fully described hereinafter, at least partly because of employee dissatis-
faction with Wharton's later explanations of this discharge, Barnett Senior, and
other of the union supporters reached an understanding that if any of them were
called to Wharton's office for disciplinary reasons, they would attend any such session
as a group in order to be able to witness what transpired.
At some point in late April, Barnett, Senior, asked a number of employees to
give him their addresses, in order, he testified, that subpenas might be sent them in
connection with the unemployment compensation claim his son had filed following
his discharge on April 16. Without explaining this purpose to employee Donald
Cooper (a nonsupporter of the Union) and Foreman Parks when he spoke to them
in this connection, Barnett made only the terse remark to each that he would receive
some present through the mail Cooper and Parks reported these remarks to
Wharton. Wharton did not investigate what Barnett was up to, either with Barnett
or any other employees, and at the hearing referred to the reports made to him as
"rumors" of threats of whose validity he had no knowledge. Nevertheless, he
testified, anyone in the position of Moore and Parks might "wonder" whether the
present he was to receive might be "ticking" and he suspected Barnett's intention as
that of mailing explosives to Cooper and Parks, a suspicion he further associated,
by another suspicion, with Barnett's union activities. Acting on this combination of
mere suspicions, on April 30 he prepared a letter to Barnett (General Counsel's
Exhibit No. 3), which accuses Barnett of having made " intimidating and threaten-
ing" remarks "relative to some employees," states that this conduct would constitute
Barnett's first violation, and that a second would result in his immediate discharge
He then sent word to Barnett to come to his office.
En route to the office, Barnett, in line with the union employees' previous under-
standing, asked one or another employee to accompany him but, after being advised
to ascertain first what it was Wharton wanted, Barnett proceeded to the office alone.
As he reached the open doorway to Wharton's office, Barnett asked Wharton what
he wanted. Wharton, with a sealed envelope in his hand, told Barnett that he had
been threatening some of the employees. Barnett then left the office , told some
employees what he understood was taking place,24 and was followed to the office
in due course by all of the other union adherents.
When Barnett and the other employees foregathered in Wharton' s office a tempes-
tuous session occurred. In its course, Barnett told the assembled employees that
Wharton had threatened to terminate him for alleged threats, and demanded that
Wharton name the men he supposedly had threatened. When Wharton refused to
name them, Barnett asked most if not all of the employees present, and Foreman
Parks, individually, if he had threatened them, and was given negative answers.
23 In regard to the March 26 layoffs, the Union filed corresponding charges which it
withdrew a few days after Respondent called the 10 employees back to work. During
the layoff period the Union was certified and following some ensuing negotiations, the
Union called a strike which persisted from about May 5 to 12, when the parties reached
agreement upon a contract and the strike was terminated In connection with entering
into this agreement, which contained a union-shop provision, the Union agreed not to file
any further charges, such as in respect of the Barnett's discharges, but without prejudice
to any charges the Barnetts individually might file.
24 Barnett testified and Wharton denied that at this initial juncture Wharton told
Barnett he was being terminated because of the alleged threats, a conflict unnecessary to
resolve under the findings I make relative to Barnett' s later discharge.
NATIONAL METAL FABRICATORS, INC. 783
Wharton, in turn, endeavored to speak, told Barnett to keep his mouth shut, denied
that he had threatened to discharge Barnett, and described the letter as one repri-
manding rather than discharging Barnett for threatening employees. Barnett
demanded that Wharton give him the letter. Wharton refused, stating that while
he had originally intended to hand the letter to Barnett, he would not now do so
but would mail it to Barnett instead. Also in the course of the meeting Wharton
told Barnett that he had no right to call the other employees away from work and
protested to the other employees about their leaving their work to assemble in his
office without his permission. Following interchanges along these lines and with the
workday then about to end, the meeting disbanded. Later that day, Wharton's letter
was mailed to Barnett.
At the end of the next day, May 1, Whaiton discharged Barnett. The record does
not indicate whether Wharton then told Barnett specifically why he was being
discharged but at the hearing Wharton (while at various points in his testimony
alluding to other complaints he had against Barnett, as later mentioned) asserted
that he determined the previous evening to discharge Barnett because Barnett had
called the other employees to his office the preceding day without authority.
While I later find that the true and basic reason for Barnett's discharge was
Wharton's antipathy to the unionization of his employees and to Barnett's role as a
leading figure in that movement, I will assume for present purposes that Wharton
discharged Barnett solely for the reason Wharton emphasized. Although as a
matter of law the point is not important, I do not, of course, adopt Wharton's char-
acterization of what Barnett did, because the other employees did not foregather
at Wharton's office because of any authority Barnett had, or was exercising over
them, which required their presence. Rather the entire company of union adherents
came to Wharton's office of their own free will, pursuant to a common under-
standing previously arrived at. In this connection, the record shows that Barnett
and the other union employees had, as a result of some employee or employees having
been previously called to the office to be "accussed" of some dereliction or another,
determined that in the event any of their number were thus called to the office for
disciplinary purposes, they would form a common audience with the accused in
Wharton's office "to hear what he [Wharton] has to say." 25 Accurately described
therefore, what happened was that the employees who foregathered in Wharton's
office were, in the immediate sense only, prompted to do so by an initiative Barnett
took, and this would still represent the limits of Barnett's conduct had there been
no prior understanding of the sort present in this case 26
It requires no elaboration to perceive that such an objective and corresponding
plan of operation was one in the common defense-mutual aid or protection in the
words of the Act, for its hypothesis was a felt danger at the hands of Wharton which
might befall any of them. Hence the "all for one, one for all" character of their
pact in case any one of their number were called to Wharton's office for disciplinary
action, as, indeed, Barnett was. And when this happened they acted in accord with
their pact.
Sections 7 and 8(a)(1) of the Act guarantee to employees the right to engage in
concerted activities for mutual aid and protection, and a withdrawal from work,
whether in the form of a temporary work stoppage or a more extensive strike, is
concerted activity, and concerted activity of a protected character when, as in this
case, it results from or concerns any employee's employment status. Such initiative
as Barnett took was but an incident or aspect of these protected rights, and his lack
of any authorization from Wharton is utterly immaterial. The employer's authority
to require employees to work stops where the right of employees to engage in con-
a- The record is replete with evidence of employee dissatisfaction with the reasons
Wharton had given for Barnett, Junior ' s discharge and consequent and repeated efforts
by various employees to obtain his reinstatement . It would seem obvious , therefore,
though no employee was that explicit , that Barnett, Junior ' s discharge and Wharton's
conduct in that connection was at least one of the sources of employee concern which
gave rise to the plan of defensive concerted action Moreover , employee Troy Moore had
expressed to Wharton on March 12 the belief entertained by the employees that Wharton
had previously discharged other employees without adequate justification , a belief which
led them to be concerned over their job security.
26 I have described the origin , existence , and nature of the employees ' prearranged plan
only to set straight the facts as to Barnett ' s conduct In setting the plan in motion. As
a matter of law, it would have made no difference whether the employee work stoppage
had resulted from a previously agreed plan or had been a spontaneous response to some
appeal by Barnett. In either event , it would have been concerted activity. See N L R B.
v. H. A. Holcombe, and J. H. Holcombe, d/b/a Holcombe Armature, 325 F 2d 508 (C.A. 5).
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activity begins. Encompassed in the area of protected concerted activity is
the right to cease work for the purpose of meeting with the employer on a matter of
legitimate concern to employees.27 And it is immaterial whether the employees
definitively protest the employer action or, as in this case, merely seek an "explana-
tion" from the employer. See N.L.R.B. v. Solo Cup Company, 237 F. 2d 521,
525-526 (C.A. 8); Modern Motors, Incorporated v. N.L.R.B., 198 F. 2d 925
(C.A. 8). The only essential is that the subject be one for mutual aid or protection,
of which employer disciplinary action, taken or proposed, is one of the clearest and
most common examples.28
Barnett's action in calling or beckoning to the men to join him served merely to
set the employees' concerted activity in motion, was a mere incident of the right to
engage in concerted activity which he and all others enjoyed, and whether denomi-
nated "instigator," "leader," or otherwise, he was absolutely immune from dis-
charge on this account. See N.L R.B. v. Guernsey-Muskinguin Electric Cooperative,
Inc, 285 F. 2d 8, 13 (C.A. 6); N.L.R.B. v. Ablon Poultry & Egg Company, 134
NLRB 827; Metco Plating Company, 113 NLRB 204, 209-210. Hence, to the
extent that Wharton was actuated to discharge Barnett because of Barnett's conduct
on April 30, the discharge was in violation of Section 8(a)(1) of the Act and I so
find.29
I further find that underlying Wharton's decision of May I to discharge Barnett
was Wharton's deep opposition to the union movement and Barnett's leadership
and activities in that connection.
As previously found, long before the organizing campaign began, Wharton had
made known his dislike of unions and his purpose to discharge and prounion
activist. In line with this attitude and purpose, he early drew a bead on the union
campaign leaders, Barnett, Cooper, and Turner, and on March 5 threatened to dis-
charge all three. As time passed, Barnett continued on his vigorous and outspoken
27 For applicable decisions, some closely in point factually, see N L R.B. v. Washington
Aluminum Company, Inc , 370 U S. 9, 14 ; N.L R B. v. Ifennametal, Inc., 182 F 2d '817,
819 (C.A. 3), enfg.,80 NLRB 1481; N.L R.B. v. Latex Industrties, Inc, 307 F. 2d 737, 740
(C A 6) ; N L R B. v Guernsey-Muskingum Electric Cooperative, Inc, 285 F. 2d 8, 11-13
(C A 6) ; Time-C-Matic, Inc. v. N L R.B., 264 F 2d 96, 102 (C A. 7) ; N L.R.B v. South-
ein Silk Mills, Inc., 209 F. 2d 155 (CA 6), rehearing denied 210 F. 2d 824, cert denied
347 U.S 976. N L R.B. v. J. I. Case Company, Bettendorf Works, 198 F. 2d 919 (C.A. 8),
cert. denied 345 U.S. 917; N.L R.B. v. J E. McCatron, et at. , d/b/a Price Valley Lumber
Co., et at., 216 F. 2d 212 (CA. 9), cert. denied 348 U.S. 943; Carter Carburetor Corpora-
tion v. N.L R.B., 140 F. 2d 714 (C A. 8).
2B This right so to act collectively is thus similar In character to the organizational
rights similarly guaranteed to employees by Section 7 and which, In a perceptive opinion,
the Court of Appeals for the Fifth Circuit has held encompasses the right of an employee
individually to an opportunity "to discuss with management the nature of . . . statements
being made against" him which may prejudice his job. See N.L R.B. v. Jackson Tile
Manufacturing Co., 282 F 2d 90, 95.
2e At the end of the hearing, I granted a motion of counsel for the General Counsel to
amend the complaint so as to add a specific charge that Barnett was discharged because
of his "protected concerted activities." Respondent's counsel objected to the amendment
at the hearing, and complains of It In his brief, on the ground that it represented injec-
tion of a new issue not tried and for which Respondent's counsel had not prepared. But
on the contrary, the facts underlying this allegation constituted Respondent's basic ex-
planation for Barnett's discharge and were fully litigated. Respondent, having raised it,
"understood the issue and was afforded full opportunity to justify [its conduct] as in-
nocent rather than discriminatory " N.L.R.B. V. Mackay Radio & Telegraph Co , 304 U S.
333, 349-350; N L.R.B. v Albert Armato, et al . 199 F, 2d 800, '804 (CA 7) ; Eagle-Picher
Mining and Smelting Company v. N L R B., 119 F 2d 903, 910 (C A 8) Hence the amend-
ment was not necessary (the Mackay case, supra) but in any case was essentially one of
merely conforming the complaint to the proof, and one which the Board might have made
posthearing sua sponte . N.L R.B. v. Mackay Radio & Telegraph Co., supra, 349-350;
N L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F 2d 941, 947-948 (C A. 1) ; N.L R B. v.
Midwest Transfer Company of Illinois, et at., 287 F. 2d 443, 445-446 (CA. 3) ; NL.R.B.
v. Somerset Classics, Inc. and Modern Mfg. Co., Inc., 193 F. 2d 613, 615 (C.A. 2), cert.
denied 344 U.S. 816; cf. American Newspaper Publishers Association v N L.R.B., 193
F. 2d 782, 798 (C.A. 7), cert. denied 344 U.S. 812; NL.R.B. v. Roure-Dupont Manufac-
turing, Inc., 199 F. 2d 631, 633 (C A. 2).
Moreover, Respondent's counsel was asked by the Trial Examiner whether he desired
additional time to meet the amendment, and allowed the hearing to close without making
any such request.
NATIONAL METAL FABRICATORS, INC. 785
prounion path, in a manner calculated to make him a marked man in the eyes of
• one so firmly opposed to unions and so firmly set on antiunion retaliation as
Wharton. Thus, at the March 26 meeting, when Wharton remarked he might leave
the Company and take its business with him if the men voted the Union in, Barnett
• spoke up and said that the Union would follow Wharton wherever he went.30 The
.next day, March 27, Wharton told employee Tolbert that he would not operate
.under a union and that he would fire the two Barnetts the first chance he got.
On April 16, Wharton complained to two employees, Roger Cooper and Allen
concerning Barnett, Junior's work performance that day, and in this connection
stated that he would not be able to get rid of a poor employee under a union regime.
The two employees disagreed, telling Wharton he need only follow proper procedures
with the Union. In response, Wharton said he did not wish to have such negotia-
tions with the Union because he would have to deal with Barnett, Senior, who, he
said, did not talk to him and with whom, Wharton said, he did not get along 31
'These remarks demonstrate Wharton's conception of Barnett as one so outstanding
in the union group that, as collective-bargaining relations with the Union got under
*way, he expected to have to deal regularly with him.32 And such an occasion
promptly arose when Wharton discharged Barnett's son that same day, April 16.
In the 2 to 3 days following, Barnett sought to obtain his son's reinstatement and
had conversations with Wharton in that regard. In the course of these, Barnett
told Wharton, in effect, that his intervention in this regard was not on a personal
basis but rather was the first step taken under the Union's grievance procedure so
that, as Barnett put it to Wharton, Wharton was then working under "a pending
contract." 33 While Wharton denied this, Barnett persisted in asserting the Union's
standing in-the matter and suggested that if the Union took the matter to arbitration
Wharton might have to reinstate his son with backpay34
Shortly after Barnett's intervention, employee Roger Cooper likewise asked
Wharton to reinstate Barnett, Junior. During the conversation, Wharton told
Cooper that Barnett, Senior, had been in to see him for this same purpose and that
Barnett, Senior, had admitted that he and his son had played a "big part" in the
Union's organizing campaign.35 Wharton further described the two Barnetts as the
only employees he held anything against, and, as to Barnett, Senior, Wharton went
on to say that since Barnett, Senior, had returned to work following the March 29
layoffs, his only remarks to Wharton were that he was going to make a report to
the fire marshal and the health board about the hazardous paint condition prevailing
in the plant (described infra).
A purpose to retaliate and discriminate against the Barnetts, father and son, is
also evident from Wharton's treatment of them in connection with the subsequent
reinstatement of the 10 employees laid off on March 26. While all others of this
,group were called and put back to work between April 7 and 9, Wharton delayed
the return of the Barnetts to April 10. Wharton made no attempt to explain this
discrimination on any basis having to do with plant operations, merely asserting
-that the order of calling employees back was a matter within his discretion. More-
over, although Barnett, Senior, had held the steelrolling job continuously since 2
• weeks after first being employed, he was assigned to the tank-painting job his son
had previously been performing, admittedly one of the dirtiest and otherwise least
-desirable assignments in the plant. When employee Estep resumed work on April 6
30 Employee Atkins so testified. Employee Cooper attributed a similar remark to Barnett
,at the March 20 meeting, but I consider March 26 the correct date.
Likewise at the March 20 meeting, Barnett told Wharton it would be his own fault if
the Union were voted in, because of the way be had been talking about the employee, mean-
ing, apparently, his son (see infra).
31 Wharton denied mentioning Barnett as the man he would have to deal with, but I
credit the employee testimony that he did.
33 There was at this time considerable employee sentiment in favor of designating
-Barnett as the Union's shop steward in the plant, of which sentiment, in such a small
plant and given Wharton's deep interest in these organizational matters, I find that Whar-
ton was aware when he made the remarks described in the text
33 While the record is quite imprecise, the Union was certified about April 5, 1964.
"Whether contract negotiations had begun prior to Barnett's overtures to Wharton rela-
tive to his son's reinstatement is not clear from the record
34 In the end, Wharton declined to reinstate the son.
35 While earlier discussing the merits of Barnett, Junior's discharge with Barnett,
Senior , on April 16, when employee Tolbert was also present, Wharton admitted that all
the employees were "pretty good" except for the "union trouble" they were causing.
7 9 6-0 2 7-6 6-v o f 153-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or 7, he was taken off his regular "testing " job, assigned to Barnett 's prior rolling
operation , and told by Foreman Parks that the new assignment would be permanent-
that some changes were being made . Asked at the hearing to explain this transfer,
Wharton testified that when Barnett reported for work on April 10 he had told
Foreman Parks he was going to report to the fire marshal and the health board the
condition of excess paint on the walls. Because , according to Wharton , this condi-
tion was the fault of Barnett 's son, and since Barnett had complained of the way
Wharton had treated his son, he put Barnett on the paint job so Barnett could
discover how undesirable a job it was.
Retaliation pure and simple thus actuated Wharton, when in recalling Barnett to
work, he had Barnett removed from his regular post and put on the inferior painting
job. To the extent that Barnett 's asserted intention to complain to public authorities
about the hazardous paint condition actuated Wharton, I would have to find, if the
matter had been put in issue , that the transfer violated the Act since the right to
file such complaints with public authorities is protected by Sections 7 and 8(a)(1)
of the Act.36 And to the extent that the transfer was motivated by the other reasons
Wharton advanced , they were factually unwarranted because ( 1) the paint condition
to which Wharton referred was the result of the work of various employees ( includ-
ing, especially , employee Tolbert ), and had existed over a period long antedating
young Barnett's employment ; and (2 ) there is no evidence in this record of any
complaint by Barnett , Senior, concerning any alleged mistreatment of his son by
Wharton , except in relation to the son's discharge , which had not yet occurred
Equally indicative are the circumstances that in talks with employees and in
negotiations with a union representative in the weeks following Barnett , Senior's
discharge , Wharton vented such spleen against Barnett (and his son ) and justified
Barnett's discharge and his adamant refusal of reinstatement on such a variety of
grounds, as to leave no doubt that Wharton discharged Barnett because the latter
played the role of union protagonist with more determination , persistence , and vigor
than a man like Wharton could tolerate . Thus, in dealings with the union repre-
sentative in May, Wharton became vehement and cited against Barnett, Senior, such
things as his alleged "defiant" attitude around the plant, his refusal to accept the gift
of a turkey from Wharton at Christmas in 1963, his alleged "pressuring " the non-
union employees before and after the election , his initiative respecting the work
stoppage on April 30, and other things. And at the hearing , when dealing with the
question why he had discharged Barnett , Wharton himself , while at various times
asserting that Barnett 's conduct on April 30 was the sole reason he discharged
Barnett, and although Respondent 's counsel had conceded that Barnett was a
"superior worker ," nevertheless voluntarily went on to catalog of variety of derelic-
tions on Barnett's which he had found objectionable , including Barnett's "very, very
bad" attitude-"his disagreement with everything the Company tried to do" and
contempt for the Company ; 37 Barnett 's persistent efforts to get Wharton to rein-
state his son; Barnett 's alleged failure to remain at his job; the fact that Wharton
overheard Barnett calling him by a vulgar name when he refused to reinstate his
son; Barnett's failure to speak to him or to respond when Wharton gave him an
order; and the "rumors " that Barnett had threatened other employees by ways
which , if true, would constitute a most serious crime and which, without pretense
of investigating, Wharton had rushed to credit and to associate with Barnett's
union activities . 38 With all these items plainly figuring in Wharton's calculations
along with the April 30 incident , and bearing in mind Wharton 's prior threats to
discharge Barnett because of his union leadership and the peculiar similarity between
the virulence of Wharton 's feelings toward the Union and toward Barnett as union
33,See International Ladies ' Garment Workers' Union, AFL-CIO (Walls Manufacturing
Company ) v. N L R B , 321 F. 2d 753 (C.A.D.C ) N.L.R B. v. Bel trey Coal Corporation,
331 F. 2d 738 (C.A 6).
37 As an illustration, Wharton cited Barnett's refusal to accept the Christmas turkey on
the ground , which Barnett widely voiced , that he did not want to take the gift so as not
to have "any strings attached" to him
38 I find , as the evidence requires , that Wharton did not discharge Barnett because of a
"good faith" belief that Barnett had threatened to send explosive material to Donald
Cooper and Foreman Parks It might be noted , however , that were I to find to the con-
trary the discharge apparently would violate the Act, since , as I find , Respondent failed
to prove that Barnett had engaged in the alleged misconduct which it had considered was
part of Barnett ' s union activities . N L R B v. Burnup and Sims, Inc ., 379 U S. 21,
decided November 9, 1964
NATIONAL METAL FABRICATORS, INC. 787
leader,33 the only fact inference this record warrants is that Wharton, reflecting
overnight on the April 30 incident, determined to seize upon it as an occasion for
discharging Barnett because of the latter's outstanding and peculiarly vigorous role
in the union organizational movement. I so find
2. Roy E. Barnett
Barnett, Junior, was employed in late November 1963. Although like other of
Respondent's employees he was from time to time given special tasks of temporary
duration, he had a number of more steady assignments prior to his discharge on
April 16, 1964. During most of the period until about Christmas 1963, he was as-
signed to cleaning tanks after some welding operations upon them, that is, he chipped
and brushed "flux" from the welded areas. Thereafter until about February 1,
he ground from the tanks the "ears" resulting from some hole-punching operation,
and stacked finished tanks preparatory to their shipment. From February 1 until
his hospitalization on February 28, and for most of the time between his return from
the hospital on March 9 until the March 26 layoff, he was assigned to a tank-painting
job. His assignments after his recall to work on April 10 are uncertain, save for
April 16, the day of his discharge.
On February 29, while in the hospital, Barnett, Junior, signed a union card brought
to him by his father. He actively participated with other employees on the "union"
talk which the record establishes was prevalent in the plant in the weeks before
and after the election, and upon his return to work on March 9, he attended a union
organization meeting held at Turner's home on March 10. On the day of the
election, Wharton, while quickly passing by Barnett at his work station, remarked
to Barnett that he guessed Barnett had only a couple more days to paint. That same
day, Foreman Parks criticized Barnett (along with Tolbert) for having voted for
the Union, and by the same token disclosed his prior knowledge of Barnett's pro-
union position. On the day following the election, as I have previously found,
Wharton, while expressing to employee Tolbert his inability to understand why the
employees wanted a union and reiterating his unwillingness to operate under a
union, told Tolbert that he would discharge the two Barnetts the first chance he got.
On April 16, and at Wharton's instructions as I read his testimony, Barnett, Junior,
was (for the first time in his experience) assigned to operating the steel-shearing
machine. He worked at this assignment from about 8 to 10 a.m. At the latter time,
Wharton had employee Allen replace Barnett on the shearing job and, without
further comment to Barnett , assigned Barnett to assist his father in stacking tanks.
Just prior to substituting Allen for Barnett, Wharton approached employees Allen
and Roger Cooper and remarked that it would take 3 weeks to get the steel cut the
way Barnett was doing the job, and that this illustrated what he had to put up with
when a union came in.40 At the end of the day, some hours later, Wharton called
Barnett to the office and discharged him.
According to Wharton the reasons he gave Barnett for his discharge in this inter-
view were (1) the vague statement that Barnett persisted in not doing what Wharton
asked him to do, and (2) that Barnett had deliberately wasted time on the shearing
job that day. According to Barnett, Wharton said he was terminating him because
he spent too much time talking to other employees and, in adding that Allen had
sheared more steel in 45 minutes than Barnett had in 2 hours, implied that Barnett
had been wasting time talking that day. Barnett further testified that he told
Wharton he had no doubt that Allen had sheared at a faster rate than he since Allen
had had some 2 years' experience in shearing. Then, according to Barnett, Wharton
told him that six employees had complained to Wharton that the way Barnett worked
he should be fired, but when Barnett asked Wharton to give him the names of these
employees, Wharton refused to disclose them. According to Barnett, he then asked
On several occasions subsequent to Barnett's discharge, Wharton met with employees
who were seeking his reinstatement. Wharton declined, stating that if he were forced to
reinstate Barnett ( and his son ) he would make the plant rules so tough that the employees
could not live under them, and that if he were forced to reinstate Barnett, Senior, he
would follow him around until he got something for which he could legally discharge him.
On some of these occasions, Wharton also urged the employees to see the Barnetts and in-
duce them to withdraw the charges they had filed in this case, a form of conduct which,
were any elements of pressure present, would violate the Act. See Clyde Taylor, d/b/a
Clyde Taylor Company, 127 NLRB 103, The Cambr¢a Clay Products Company, 106 NLRB
267, enfd 215 F 2d 48 (C.A. 6)
40 While denying that their replies implied any admission that Barnett, Junior, was a
poor employee, these employees told Wharton that he did not have to "put up" with a
poor employee and assured Wharton he could discharge a poor worker if he followed
appropriate procedures with the Union.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Parks, who was present, whether he had ever done any unsatisfactory work
for him and Parks replied in the negative Thereupon Barnett testified, he took the
checks Wharton was handing to him and left.
Because Wharton in crucial and minor respects proved himself a most unreliable
witness, whereas I was most favorably with Barnett (by demeanor and otherwise)
as a truthful person, I credit Barnett's version as to the explanation Wharton made
to him at this interview. However, at the hearing Wharton advanced a variety of
reasons for his discharge of Barnett, far exceeding any he may have voiced to
Barnett in the discharge interview. In the circumstances, this larger body of explana-
tions, and other record evidence pertinent to them, must be assessed in an effort to
discover where lies the truth concerning what led Wharton to discharge Barnett.
Wharton's first testimony concerning Barnett's discharge was given at the outset
of the hearing under examination as an adverse witness by counsel for the General
Counsel. In the fore part of this testimony, Wharton stated that he decided on
April 16 to discharge Barnett for a "multitude" of things that had been building up,
and gave as specifications Barnett's talking to other employees on the job, his leaving
his job to do other work, continual complaints from Foreman Parks, and complaints
made by other employees concerning Barnett's carelessness; his blowing paint on
the wall, on finished tanks, and on a bank of heatlamps while performing the painting
job; and, as what Wharton described as a culminating dereliction, Barnett's wasting
time talking to coworker Bliss while on the shearing job on April 16. In connection
with the paint matter, Wharton testified that he had corrected Barnett some 30 times
and on the final occasion, which he dated some 2 months prior to Barnett's dis-
charge,41 he had warned Barnett that he would be discharged if he again sprayed
the paint elsewhere than as Wharton had specified. Accordingly, Wharton testified,
he discharged Barnett and, in doing so, gave to Barnett all the reasons above-stated
that he enumerated at the hearing (although I have found to the contrary). And
in ensuing testimony on this subject, Wharton added to his list of reasons for the
discharge, Barnett's alleged stopping to talk to other employees while en route to
the drinking fountain; and Foreman Parks' repeated reports that Barnett's work
was getting "worse and worse."
It is most difficult to understand how any plant manager could have retained so
long an employee of the sort Wharton described, particularly since, according to
Wharton, Barnett was an unsatisfactory employee from almost the very beginning
of his employment and since, as Wharton's description of other discharges he had
made and his entire testimony and demeanor make fully evident to me, he is far
from the kind of man who would indefinitely tolerate such an employee if he were,
in fact, so derelict as Wharton sought to paint Barnett.
Wharton's effort to explain that continued reports from Parks of Barnett's worsen-
ing performance was one of the two forces which on April 15 finally breached his
tolerance limit is quite unbelievable. For while Parks testified that he spoke to
Barnett twice and to Wharton "dozens of times" about something, when he was
asked what it was he was referring to the only specifications he could give were
instances when Barnett allegedly left his job of cleaning tanks to do other work,
incidents which, in the light of Barnett's history of job assignments and the testi-
mony of Wharton's secretary must have occurred some time prior to Christmas
1963.42 Passing over Parks' testimony concerning Barnett's talking on the job,
with which I deal later, the balance of Parks' testimony concerns Parks' knowledge
,of occasions when Wharton, not Parks, spoke to Barnett on one matter or another.
Nowhere in his testimony is there any suggestion that in the period proximate to
April 15 he submitted any of the "worse and worse" reports about Barnett which
Wharton laid at his feet. In the circumstances, I decline to credit Wharton's mere
assertions that there were such reports and find to the contrary. In consequence,
this principal asserted basis for Barnett's discharge appears an invention of
Wharton's.43
4' This incident took place on February 28, according to Barnett, whose testimony
I credit.
42 There is employee testimony that it was not uncommon for employees who were caught
up with their normal work to help out elsewhere on their own, and that this is why
Barnett on occasions left his normal post to work elsewhere. There is no suggestion in
Respondent's evidence that this was not what accounted for Barnett's action in the in-
stances Parks referred to, or those cited by Wharton (which were referable to the period
preceding February 1).
93 Wharton himself later diminished the importance he first attached to his alleged re-
ports from Parks when, being asked if they were why he discharged Barnett, he replied,
"No, sir ; not necessarily." But he went right on to couple them with what he had
"personally seen" as the elements which precipitated the discharge.
NATIONAL METAL FABRICATORS, INC. 789
As to talking to other employees, Wharton testified that "a great many of" the
men, including both Barnetts, congregated during working time to discuss "union
activities" in the period following March 5, then testified that he did not know what
the men were talking about, then testified that this phenomenon began "a month
and a half" before March, and then stated:
I would say that this practice of going to the restroom and coming back and
stopping and talking to another employee was going on for quite some time.
Maybe six months before. But that is something that I think you have to
control in a plant, the dissertations of employees to and from the restroom and
to and from the drinking water, and to and from one job to another. But it
did get heavier in 1964. I didn't know the reason why."
In the light of this testimony, other creditable evidence that talking was always a
prevalent practice with no rule against it, Wharton's further explicit admission that
Barnett was no more guilty of talking than "anyone else," and the absence of any
disciplinary action of any kind on this ground in the case of any other employee,
it is most difficult, and I decline, to credit Wharton's testimony that a proclivity on
Barnett's part to engage in excessive talking entered into his decision to discharge
Barnett.
I have found, in crediting the testimony of Barnett, that in the discharge inter-
view Wharton charged that some six employees had complained to him concerning
Barnett's unsatisfactory and careless work. At the hearing Wharton testified that
he may have made such a statement to Barnett, and in this connection named four
employees, Walter Moore, Donald Cooper, Edd Allen, and Roger Cooper. However,
he did not pretend that any but Moore had registered a complaint and Moore, an
avowed opponent of the Union testifying as Respondent's witness, denied that he
had made any complaint, either to Wharton or to Parks, regarding the incident
Wharton had identified.44 As to Donald Cooper, Allen, and Roger Cooper,
Wharton described them, not as sources of complaints, but merely as employees who
"knew" that Barnett's services were unsatisfactory. Wharton offered no basis for
Donald Cooper's alleged knowledge and this Cooper (called as Respondent's witness,
and with Moore, one of the two union opponents and noncard signers), gave testi-
mony which, in effect, contradicted the knowledge Wharton had earlier in the hearing
attributed to him.45 And as to Allen and Roger Cooper, Wharton's assertion that
they "knew" Barnett's work was unsatisfactory represented an unwarranted inter-
pretation of remarks they made to him in a conversation he had with them incident
to his removal of Barnett from the shearing job on April 6.46
With the alleged complaints that Barnett was an unsatisfactory worker thus
reduced to nothing resembling the picture Wharton attempted first to paint, my
review of this set of Wharton's charges will be completed by noting that Respondent
offered no evidence, through Wharton or otherwise, of any employee complaints
(or acts) of carelessness on Barnett's part.
I turn now to Wharton's claim concerning Barnett's unsatisfactory performance-
wasting time-on the shearing job on April 15. Barnett denied that he wasted a
lot of time while at work on this assignment, asserting that he never left the machine
and worked all the time. I will assume, however, that during the 2 hours Barnett
spent on this job he spent some noticeable time in discussions with his coworker
Bliss, as was common among the employees, that he produced cut steel at a rate
distinctly below the norm of other employees, and that Wharton could have regarded
'S Moore's testimony indicates he had worked with Barnett only on two occasions and
but briefly then. On one of these, according to Moore, Barnett had failed to assist Moore
in reloading some steel which was upset while being transported through the plant. This
was the only incident Moore cited to support of his vague characterization of Barnett as
one who did not seem to "get around" like he should and did not seem to "understand "
u Donald Cooper's testimony is that he had never worked with Barnett and had had
no opportunity to observe his work
'a On the basis of the testimony of Wharton, Allen, and Roger Cooper, I find the facts
as follows: Wharton approached Allen and Cooper and after in some fashion directing
their attention to Barnett's then talking to Bliss, remarked to Allen and Cooper that it
would take 3 weeks to finish the job at the rate Barnett was going. He went on to say
that he would not be able to get rid of a poor employee with a union in the plant, a state-
ment Allen and Cooper took issue with, informing Wharton, without reference to Barnett,
that he was free to discharge a poor employee if he took the matter up with the union
steward or through an appropriate union channel (see footnote 40, supra).
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these two elements as standing in the relation of cause and effect despite circum-
stances which, in other eyes, could account for Barnett's rate of production on his
first assignment to this lob 47
What dominates the record regarding this charge of Wharton's is not the question
whether, in an unbiased judgment, Barnett performed this work unsatisfactorily, but
the lengths to which Wharton went in his testimony to misstate and exaggerate sur-
rounding facts. Although it is firmly established by the evidence, as I find, that
Barnett worked on this assignment only from 8 until about 10 a.m. (when Wharton
replaced him with the experienced Allen), Wharton testified that Barnett talked
"constantly all day long" to coworker Bliss. After asserting that Allen had cut more
steel in 11/z hours than Barnett had in 31/z hours, Wharton was asked if it was not
true that Barnett had been on the job for a lesser period. In response, Wharton
claimed the time was more and again asserted that Barnett remained on this job
until he discharged him at the end of the day, adding that Allen did not take over
the shearing job until the next day48
I turn now to the item of alleged unsatisfactory service of Barnett upon which, at
least in his testimony as Respondent's witness at the close of the hearing, Wharton
appears to have placed the greatest reliance, although admittedly he made no
specific reference to it in the discharge interview. This is the matter of the alleged
improper spraying of paint.
As part of this job, it is necessary to remove from the tanks excess paint remaining
in their bottoms after they go through a process of dip-painting. For this removal
process, a device was used consisting of a hose equipped with a nozzle. By use of
this device, the excess paint could be simultaneously extracted and blown through
the nozzle to some point of deposit, but because the nozzle-blowing apparatus was
short (and perhaps for other reasons) the paint so blown took a spray form. In
the 2 years prior to Barnett's performance of this job-from about February 1 to
about March 26-this job had been a principal assignment of employee Tolbert,
who had consistently blown the paint on a nearby wall (where it had eventually
accumulated to a depth of about one-half inch), without any criticism or contrary
direction by Wharton. Wharton assigned Barnett to this job about February 1;,
their versions differ as to what happened thereafter. I deal first with that of
Wharton.
Wharton's main account, given as Respondent's witness, is rather rambling and
incoherent like much of his testimony, but as I understand him at some point he
noticed that Barnett was blowing the paint on the wall. He told Barnett instead to
blow the paint onto the lid of the next unpainted tank hung on the nearby production
line and en route, I presume, to entering the dip-tank. According to Wharton,
Barnett said and Wharton agreed that this method was difficult but Wharton insisted
that this was the way he wanted the excess paint blown. On some later occasion,
Wharton testified, he noticed that Barnett was blowing the paint, not on,the wall,
but in a direction other than he had previously indicated so that the spray was
splotching tanks already painted. He told Barnett not to do this and then gave
Barnett some instruction as to timing his spraying-as the painted tank approached
a bank of heat lamps-when, Wharton stated, Barnett should direct the spray toward
the nearest unpainted tank. Thereafter, according to Wharton, he found Barnett
spraying the paint directly onto the bank of lights, some 12, of-which had burst,
and thereafter, he testified, when Barnett did not know he was nearby, Barnett was
spraying the paint variously on the wall, the finished tanks, and the lights. He closed
out his testimony by stating that, after advising Barnett "32 times by actual count
17 Barnett had never operated the steel shear before and Wharton's effort to describe
the operation as one which a "green" hand could perform as well as one experienced in
it was plainly an overdrawn assertion. The record evidence descriptive of the various
steps required to cut sizeable steel sheets, first into halves, and then to cut the halves
to proper final dimensions, renders it clear, beyond peradventure, that while not highly
skilled, it is work which plainly entails novelty and requires care in such a degree as
would necessarily render an utter newcomer less swift and productive in his first 2 hours
than one accustomed to the work. There were five other employees with previous shear-
ing experience according to Wharton, but why Barnett was given the assignment this day
was not dealt with in the evidence.
9$ Wharton gave the foregoing testimony at the outset of the hearing under adverse
examination by counsel for the General Counsel Thereafter Barnett and Allen testified
as to the 2-hour duration of Barnett's assignment. Called as Respondent's witness at the
close of the hearing, Wharton gave a much briefer account of this incident and made no
reference to the length of Barnett's assignment or to the "constant all day talking" he
had emphasized so heavily in his initial appearance on the stand
NATIONAL METAL FABRICATORS, INC. 791
... not to put that paint any place but in the primer tank," on the "33rd time" he
yelled at Barnett that "If you do it one more time I'll fire you" and that thereafter
Barnett did as he had told him. He placed this final occasion as in the middle or
latter part of February, so that, on his own' testimony, Barnett ceased to present any
problem in this regard some 6 weeks to 2 months prior to his discharge.
I turn now to Barnett's account. Barnett testified that he was given no instruction
when put on the tank painting job and went about performing it in the way he had
observed others doing so, including spraying the excess paint on the wall. Rather
than do this, Wharton told him a week or so later to spray the paint back on or
into the nearest unpainted tank, approaching on the production line. Barnett told
Wharton that this method would entail mechanical difficulties which might prevent
him from keeping up with the production line, and suggested to Wharton that the
paint be sprayed on a piece of cardboard to be disposed of and replaced by another
as needed. Wharton rejected this suggestion and told Barnett to follow the course
he had laid down (which Wharton said would save paint) and for him to stop the
production line when necessary. Barnett used the method Wharton specified for
about a week, when Wharton complained that the paint spray was getting on nearby
finished tanks, one of several disadvantages which, according to Barnett, were inherent
in this means of paint disposal49 Wharton then told him to send the spray into a
corner near the bank of heatlamps, a method he followed for 3 or 4 days and which
entailed some of the spray reaching, and destroying, some of the lamps. At this
juncture, which was about February 24, Wharton approached and exclaimed that
the next time he caught Barnett doing this (blowing the paint in the corner near the
lamps) he would discharge Barnett. Barnett replied and Wharton denied that he
was putting the paint where Wharton had directed, and Wharton directed Barnett
to direct the paint "back" on the approaching tank as, according to Barnett, Wharton
then said had been his only previous instruction. Barnett then resumed following
this method and did so uniformly so long as he continued on this job (until about
March 26).
It may be added that when Barnett, Senior, performed this job from April 10 to
30, he first sprayed the paint on the wall for about a week. He then devised a
method by which, attaching a length of hose to the spray nozzle, he was able to
direct all the spray into a bucket or pan which, as I understand him, he would then
empty into the dip-paint pit. He further testified that the paint could not be
sprayed back in the manner Wharton described without settling on the floor, because
of the dimensions involved.
As between the versions given by Wharton and Barnett, Junior, concerning this
paint affair, I credit that of Barnett, and in doing so I find that Barnett at all times
endeavored to dispose of the paint in the way Wharton had directed him to do. It
does not follow, of course, that Wharton could not have chosen to discharge Barnett
over the painting affair, because a Trial Examiner cannot, on a written record,
assess with nice accuracy the quality of Barnett's work on this job. For even if, as I
have found, Barnett did follow the various methods Wharton directed, there may
have been something in the mode of his execution which scattered paint in a pro-
fusion others more deft might, in some measure at least, have avoided What
troubles me are larger surrounding circumstances.
First, Wharton did not discharge Barnett when. as he implied, his fury with
Barnett over this matter was at its height, but only warned him of discharge. There-
upon, on Wharton's own version, he had no further trouble with Barnett on this
score, and the discharge was some 6 weeks later.
Second, on my findings as to the explanations Wharton made to Barnett in dis-
charging him, Wharton made no mention of this matter Having made so much of
it at the hearing, it would seem that he would have highlighted it in the reasons he
gave Barnett during the discharge interview, particularly if, as Wharton testified, he
had reminded or cautioned Barnett on 32 occasions "by actual count" to cease dis-
obeying his painting instructions.
Third, Wharton's testimony that he had so cautioned Barnett 32 times is totally
lacking in any evidenciary support, but should have been possible to substantiate since
Wharton said he had recorded the numbers, since Barnett was working in close
proximity to at least one, if not more employees, while on the paint job, and since
Wharton's reprimand and threat to discharge Barnett about February 24 was widely
overheard. Moreover, Wharton's claim of correcting Barnett on these many occa-
u Barnett testified that , apparently due to the length of the hose and other distance
factors, Wharton 's method involving sending paint in spray form over a space of some
3 feet, with the result that some of the spray would settle on the floor and reach other
nearby finished tanks.
79`G DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lions stands in contrast to his overall declaration that it was not his practice to,
reprove an employee in the presence of others . I consider far more reliable and
accept Barnett 's testimony that Wharton had spoken to him only three to four-
times about the paintwork and only once in the warning or reprimanding sense,.
that is, about February 24 when Wharton threatened to discharge him.50
Fourth , after Barnett , Junior, was discharged neither Wharton or Parks, on this
record, reprimanded Barnett , Senior , for spraying paint on the wall, which he did for
about a week , a fact which one or the other of them could not have failed to notice'
in this small plant and given the importance Wharton assertedly was then attaching
to this matter.
Fifth , all disadvantages resulting from the various spray methods used, including'
that of Wharton , could , it would seem , have been avoided by the use of a little
ingenuity or common sense, such as that displayed by Barnett, Senior, shortly after
he assumed this work . It seems most difficult to understand , therefore , why Whartona
would insist on a method which , without contradiction by him, would necessarily
spread paint on the floor , and probably in other undesirable locations.
Finally, I observed Barnett , Junior, closely during all of his time on the stand,'-
and as his testimony , including a rigorous cross-examination, proceeded , there°
developed in my mind a clear picture of a young and unsophisticated man endeavor-
ing to tell the truth and evidencing no constraint, loss of equanimity , tendency to
exaggerate or embroider , or other indicia of unreliability . On the other hand, there
are many reasons, some heretofore and some hereinafter alluded to, for considering-
Wharton a most unreliable witness on significant fact issues, including his, subjective-
intentions and motivations.
In sum , it is apparent , at the least, that at the hearing Wharton exaggerated
Barnett , Junior's, allegedly deficient and unsubordinate work on the paint job in the
extreme, and so much so as to create , in the light of the other circumstances recited
above, a very imposing doubt whether his decision to discharge Barnett, Junior, was
predicated in any significant degree on this area of alleged dereliction.
On the record as a whole, including the evidence of Wharton's deep-seated opposi-
tion to the Union and his many coercive acts and threats, including the threat to
discharge the two Barnetts , the evidence as a whole convinces me, and I find, that'
Wharton was motivated to discharge Barnett, Junior, because of his prounion posi-
tion and union activities. It is further my judgment that the derelictions Wharton
ascribed to Barnett in the discharge interview and at the hearing were mere pretexts
which, by their very number and assertedly aggravated character, Wharton felt could
be used and did use to cover his true antiunion intention . But even if one or
another of these items actually figured in his decision , I find that his antiunion
motivation did also, so that, under settled law, his discharge of Barnett, Junior,
was unlawful 51
I should add that in making my findings that the discharges of the two Barnetts
were discriminatorily motivated, I have not relied upon the testimony of the witness
Sebring, the union representative, to the effect that remarks Wharton made about
the Barnetts in contractual negotiations following the Union's certification indicated
that Wharton had discharged them because of their union activities. Close examina-
tion of Sebring's entire testimony on this score, in which I felt it necessary to par-
ticipate in view of the uncertain meaning of much of Sebring's related testimony,
shows that Sebring could not cite any statements by Wharton which either explicitly
or implicitly represented his admission of an antiunion motivation.52
60 Wharton and Parks referred to occasions when Barnett, Junior, was "warned" but
their own testimony indicates that they were using the word "warn" In a looser and less
stringent sense than the word implies . At one point, Wharton volunteered that he had
never given Barnett a "reprimand" but had merely "corrected" Barnett in what he was
doing
si In this connection , I have borne in mind the testimony of union proponent Troy Moore
that, while Wharton was inquiring of Moore on March 12 as to why the men wanted the
Union, Wharton told Moore that he had warned Barnett, Junior, 33 times concerning his
paint-spraying and might have to let Barnett go But as indicated in the text (and'
bearing in mind my refusal to conclude that there were any such 33 warnings ), I find that
in any case Barnett's union activity was an integral element in Wharton's discharge
decision.
52 I have, however, taken into account Sebring's uncontradicted testimony concerning
the extreme bitterness Wharton manifested toward the Barnetts, and particularly the-
father, on these occasions , as earlier indicated in this Decision
NATIONAL METAL FABRICATORS, INC. 793
III. Credibility of General Manager Wharton
The credibility of General Manager Wharton is itself an important question of
`fact or issue in this case since, in all essential particulars, Respondent's case was
,primarily put in through his testimony.53
In making my previous findings, I have pointed to what in my judgment are
.patent, self-confessed, or otherwise demonstrable exaggerations, contradictions, and
other discrepancies in his testimony, or conflicts, between his testimony and con-
trary facts convincingly established by the record. At the same time, I alluded to
,other discrepancies of this character, to be later detailed, as a basis for my character-
ization of him as a most unreliable witness on crucial points of fact, main and sub-
sidiary. Among the further disturbing instances of this character are the following,
,which I recount more or less at random.
1. Asked if Walter Moore was one of the "union" men "earlier" (meaning in the
,organizational or preelection period), Wharton replied, "How can I judge a man's
mind," and then equivocated further on the quibble that there was no union "in the
plant" prior to the election. A bit later, however, Wharton admitted knowing, from
,conversations he had had with this Moore and Donald Cooper, between March 5
.and 26, that both Moore and Cooper were opposed to affiliating with the Union.
2. Wharton testified that during this preelection period a great many of the
employees were engaged in discussions on the job relative to "union activities." A
few moments later he testified that he did not know what these employees were
talking about.
3. As to the time of these discussions, Wharton, as noted above, first placed them
in the March 5 to 26 period. After denying knowledge of their subject matter, he
.then testified that these intensified discussions among the employees began
about January, and then dated their advent as some 6 months before the March-April
1964 period.
It would seem rather obvious that, for some reason, Wharton grew concerned
about having first ascribed the concentrated employee discussions to the March
period, and about his first admission of knowledge that these discussions pertained
to the Union, as through his awareness that the March discussions pertained to the
Union was somehow a form of guilty knowledge. In any case, whatever his reason,
his shifting versions are disturbing to one charged with assessing credibility.
4. In his testimony as Respondent's witness, Wharton first stated that among the
"10 employees laid off on March 26 were 4 "who had already indicated that they were
for the Union." A little later, in denying that he knew Barnett, Junior, was engaged
in union activities when he discharged him on April 16, Wharton pretended not to
know, as of that late date, who was active in the Union except "I was pretty sure
-that Roger Cooper and Turner were active ... but I did not know anyone else."
5. Wharton first testified that until his receipt of the election petition on March 5,
all the employees had been "very satisfied, very happy" but when the union activity
started (after March 5, according to him) working conditions became "extensively"
-disturbed. Some days later, after describing Barnett, Senior's discharge and the
alleged deterioration in Barnett's work and attitude over several months, Wharton
testified that disruption of the peaceful atmosphere in the plant set in, not in March,
but several months previously. But he did "not know whether it was Barnett,
'Senior, who brought about this result.
6. Wharton early in the hearing refused to deny that Barnett, Senior, may have
-mentioned the Union to him in a discussion the two had relative to the Barnett,
Junior's reinstatement. Later in the hearing he categorically denied having talked
to Barnett, Senior, at any time about the Union.
7. As one of the bases of Barnett, Junior's alleged unsatisfactory services, Wharton
-said Barnett made a practice of stopping to talk to "everybody" on his way to and
from the drinking fountain. He later testified that there was no objection to
employees talking to others when visiting the water fountain. Considering, as I do,
Wharton's use of "everybody" as a rather typical example of his tendency to exagger-
ate when the occasion, in his judgment, warranted or required,54 I regard his above
lines of testimony as in essential conflict.
es In most particulars, the evidence sought to be adduced from Respondent's other wit-
nesses (Foreman Parks, Wharton's secretary, Miss Wilder, and employees Donald Cooper
and Walter Moore) was designed to corroborate Wharton's testimony concerning his con-
duct as Respondent's chief actor in relation to the principal events of the case.
es I credit Barnett, Junior's testimony that he visited the water fountain rather
, unfrequently.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. Early in the hearing Wharton denied that he read the layoff letter to the
employee at the March 26 meeting. Three days later, he testified that he did so.
9. Employee Atkins was hired on February 7, 1964, at the (apparently usual)
beginning rate of $1.50 per hour. On such evidence as the record contains, it
appears that it was Respondent's practice to grant to such new employees automatic
raises of $.05 per hour for each of the 3 months after hire. However, a few days
before the March 26 election, Wharton jumped Atkins to the $1.65 rate and proposed
raising him further to $2.25 per hour if Atkins could take over the work of Roger
Cooper, who, along with union leaders Turner and Barnett, Wharton said he intended
to discharge for union activities. In the same conversation, Wharton indirectly but
clearly importuned Atkins to vote against the Union in the approaching election.
Hence, it appears that with Wharton, wage increases not feasible with a union were
readily available to prevent one.55
10. Wharton testified that he had never talked individually to any employees
about their union activities and that his only remarks about the Union were those
he made at the three March meetings. Promptly after so testifying, however, he
volunteered that on a date which the record fixes as March 12, he inquired, in turn,
of employees Turner and Troy Moore why the men were "so set on a union" and
"so dissatisfied." Perhaps Wharton considered that such a conversation did not
relate to "union activities" but, if so, the incident only serves to demonstrate his
tendency to cavil.
11. In explaining Respondent's policy to depend on experienced employees to
instruct others given unfamiliar assignments, Wharton characterized the situation
in Respondent 's plant as "It 's everybody help everybody else in a small shop." Yet
Wharton criticized Barnett, Senior, for assisting a coworker when, as I find, Barnett's
work was caught up, and on the strangely contrasting ground that in rendering such
assistance Barnett was flouting "management's prerogative to decide" how an
employee should spend his time.
12. Much of Wharton's testimony falls in the category of self-assertion. This
fact, coupled with the numerous testimonial pits into which he fell, renders rather
suspicious the absence of independent corroboration where such outside corrobora-
tion should have been readily available if, in fact, his assertions were true. For
example, if, as he testified, the customers declined to continue placing orders when
he notified them of Respondent's labor difficulties, no reason is shown why, on a
matter so important to his claim of innocence, representatives of the customers were
not called to confirm the position Wharton attributed to them.
Testimony of customers might also have served to clarify a suspicion-creating
conflict between the testimony of Wharton and that of his secretary, Miss Wilder.
Consistent with his assertions that he had no knowledge whatsoever of any union
activities among the employees until he received the election petition on March 5,
Wharton testified that some time after March 5 he called on the customers and
notified them of his union problems. But Miss Wilder, in testimony dealing explicitly
with what Wharton said at the March 5 meeting, testified that Wharton told the
employees that he had already talked with some of the customers and had been told
they would not pay increased prices for Respondent's tanks. If Miss Wilder's testi-
mony is correct, Wharton did know of the employees' union activities prior to
March 5, and his emphatic and oft-repeated denials would create another tear in the
otherwise ragged fabric of his credibility.
As indicated previously in this Decision, I have borne in mind the foregoing
items (and the additional similar ones identified in previous sections of this Decision)
in adjudging Wharton to be a distinctly unreliable witness, a conclusion quite con-
sistent also with his unfavorable demeanor while on the stand. This judgment on
credibility, in turn, forms one of the bases upon which I have credited the principal
evidence of the General Counsel, have resolved conflicts where they exist, and other-
wise have made the findings of fact stated in previous sections of this Decision.
IV. THE REMEDY
In view of the gravity and sweep of Respondent's unfair labor practices, and of
its other antiunion conduct, as found above, the case calls for a broad cease-and-
desist order under Section 8(a)(1) of the Act.
Appropriate affirmative relief includes, in addition to posting the usual notices,
requiring Respondent to offer to Roy W. Barnett and to Roy Eugene Barnett immedi-
ate and full reinstatement to their respective former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privileges, and make
The same observation attaches, of course, to the essentially conflicting positions
Wharton took at the March 5 and 20 meetings relative to cost-increasing employee benefits.
NATIONAL METAL FABRICATORS, INC. 795
each of them whole for any loss of pay he may have suffered by reason of Respond-
ent's discrimination, by payment to each of a sum of money equal to that which
each would normally have earned as wages from the date of his discharge to the
date when Respondent shall offer him reinstatement, less net earnings during said
period. Said backpay shall be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall bear
interest at the rate and be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union is a labor organization
within the meaning, respectively, of Section 2(6) and (7) and Section 2(5) of
the Act.
2. Respondent has engaged in unfair labor practices within the meaning of
Section 8(a) (1) of the Act:
(a) By coercively questioning its employees concerning their union activities.
(b) By threatening to close its plant, to liquidate its business, and to lay off
employees if its employees should designate the Union as their collective-bargaining
representative.
(c) By holding out to its employees the prospect that Respondent would grant
them employment benefits to induce them to refrain from designating the Union
as their collective-bargaining representative.
(d) By discharging Roy W. Barnett because he engaged in concerted activities
for mutual aid or protection within the meaning of Section 7 of the Act.
3. Respondent has engaged in unfair labor practices within the meaning of Section
8(a)((3) and (1) of the Act by discharging, and by refusing to reinstate, Roy W.
Barnett and Roy Eugene Barnett because of their union activities.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and 2(7) of the Act.
The order I recommend to accomplish these results is as set forth below.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Board, as amended, I recommend that the Respondent, National
Metal Fabricators, Inc., Lucasville, Ohio, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in District 50, United Mine
Workers of America, or any other labor organization of its employees, by discharg-
ing or in any other manner discriminating against any individual in regard to his
hire, tenure of employment, or any term or condition of employment.
(b) Coercively questioning any of its employees with respect to their union activ-
ities, affiliations, or sympathies.
(c) Threatening to close its plant, to liquidate its business, or to lay off, discharge,
or otherwise discriminate against any of its employees by reason of their designation
of the above-named Union or any other labor organization as their collective-
bargaining representative, or by reason of their support of or assistance to any
such labor organization.
(d) Holding out to its employees the prospect of, or promising to its employees,
paid holidays, paid vacations, or other employment benefits for the purpose of
inducing its employees to refrain from supporting, assisting, or designating as their
collective-bargaining representative the above-named Union or any other labor
organization.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other
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 it is found will effectuate the
policies of the Act.
(a) Offer to Roy W. Barnett and to Roy Eugene Barnett immediate and full
reinstatement to their former or a substantially equivalent positions, without prejudice
to their seniority or other rights and privileges previously enjoyed, and make each of
them whole for any loss of pay he may have suffered by reason of Respondent's
discrimination in accordance with the section of this Decision entitled "The Remedy."
"796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify either of the above-named employees if at present serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion 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.
(c) 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 and all other rights under the terms of this Recommended
Order.
(d) Post at its plant at Lucasville, Ohio, copies of the attached notice marked
"Appendix." 56 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by the Respondent's authorized representa-
tive, be posted 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 by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20 days from receipt of
this Decision, what steps Respondent has taken to comply herewith.57
"In the event 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 Ex-
aminer" in the notice In the further event that the Board's Order be 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 "
67 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, we are posting this notice to inform our employees of the rights
guaranteed them by the National Labor Relations Act:
ALL OUR EMPLOYEES are free to become members of District 50, United Mine
Workers of America, or any other labor organization, and to designate any
labor organization as their collective-bargaining representative, or to refrain
from joining or so designating any labor organization.
WE WILL NOT interrogate our employees regarding their participation in
union activities or their reasons for doing so.
WE WILL NOT discharge, lay off, or otherwise discriminate against any of our
employees because they join, support, or assist the above-named or any other
labor organization.
WE WILL NOT threaten to close our plant, or to liquidate our business, or
to discharge or lay off or otherwise discriminate against any of our employees
because they support or assist, or designate as their bargaining representative,
the above-named union or any other labor organization.
WE WILL offer immediate and full reinstatement to Roy W. Barnett and
Roy Eugene Barnett, and pay to them any backpay due, by reason of our
discrimination against them.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights under the National Labor Relations Act,
as amended.
NATIONAL METAL FABRICATORS, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify either of the above-named employees if at present 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.
PAINTERS DISTRICT COUNCIL NO . 38, ETC. 797
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, Room 2023
Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200,
if they have any question concerning this notice or if they have information that its
provisions are being violated.
Painters District Council No . 38, Brotherhood of Painters, Deco-
rators and Paperhangers of America , AFL-CIO and Edgewood
Contracting Company. Case No. 10-CC-564. June 29, 1965
DECISION AND ORDER
On February 8, 1965, Trial Examiner Frc;derick U. Reel issued his
Decision in the above -entitled proceeding , finding that the Respond -
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner 's Deci-
sion. Thereafter, the Respondent 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
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Fanning and Brown].
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 and the entire record in this case , including the
exceptions and brief , and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , and orders
that the Respondent , Painters District Council No . 38, Brotherhood
of Painters , Decorators and Paperhangers of America , AFL-CIO, its
officers, agents , and representatives , shall take the action set forth in
the Trial Examiner 's Recommended Order.2
i Under the established policy not to overrule a Trial Examiner 's credibility findings
unless a clear preponderance of all the relevant evidence convinces us that they were
incorrect , we find no basis for disturbing the credibility findings made by the Trial Ex-
aminer in this case . Standard Dry Well Products, Inc., 91 NLRB 544, enfd . 188 F. 2d
362 (C.A. 3).
2 The telephone number for Region 10, appearing at the bottom of the Appendix at-
tached to the Trial Examiner 's Decision, is amended to read: Telephone No. 526--5741.
153 NLRB No. 70.