Oil City Brass Works

National Labor Relations Board - Board Decisions

Mar 5, 1963

141 N.L.R.B. 131 (N.L.R.B. 1963)

OIL CITY BRASS WORKS 131
the Company, or any other employer to assign the disputed work to
construction employees represented by these unions.
3. Within 10 days from this decision and determination of dispute
the Baltimore Building and Construction Trades Council, AFL-CIO,
and each of its above-named members shall notify the Regional Direc-
tor for the Fifth Region, in writing, whether or not they will refrain
from forcing or requiring Chevrolet by means proscribed by Section
8(b) (4) (D) to assign the work in dispute directly or indirectly to
construction trades workers rather than to Chevrolet's own employees
in its maintenance department.
[The Board quashed the notice of hearing in this case insofar as it
applies to Local 29 of the International Association of Marble, Slate,
and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters
Helpers and Marble Mosaic and Terrazzo Workers Helpers, AFL-
CIO.]
Oil City Brass Works and International Brotherhood of Boiler-
makers, Iron Ship Builders , Blacksmiths , Forgers and Help-
ers, Local 587, AFL-CIO. Case No. 23-CA-1416. March 5, 1963
DECISION AND ORDER
On November 29, 1962, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action as set. forth in the attached Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom 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 entire rec-
ord in this case, including the Intermediate Report and the Respond-
ent's exceptions and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
'We agree with the Trial Examiner ' s conclusion that the Respondent discriminatorily
laid off six employees on March 9, 1962 We do not, however, rely on the finding that
the Respondent had, during prior slack periods, followed a policy of reducing working
hours instead of laying off employees, and of considering seniority in selecting employees
141 NLRB No. 12.
708-006-64-v of 141-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, as modified below : 2
(a) In section 1(d), substitute a period for the comma before the
word "except," and delete the remainder of the sentence.3
for layoff. We rely instead , as to this issue, on the evidence of the Respondent 's union
animus ; its references to these laidoff employees as "agitators " ; its independent violations
of Section 8(a) (1) of the Act; the timing of the layoffs, without notice, 3 days after the
Respondent received the Union 's request for recognition ; and the fact that the record
does not support the Respondent's contentions that this layoff was economically necessary,
nor that the selection of these employees for layoff was based upon their work performance
or experience.
The chart set forth In the Intermediate Report showing weekly tonnage produced by the
forge shop is corrected as follows : Maddox 's crew produced 8.6 tons and Hammock's 30 9
tons during the week ending March 30; Maddox's crew produced 25 tons and Hammock's
8.1 tons during the week ending April 6. These corrections do not affect the Trial
Examiner 's conclusions nor our agreement therewith.
2 For the reasons given in the dissent in Isis Plumbing & Heating Co ., 138 NLRB 716,
Member Leedom would not award interest on backpay.
8 The following change will be made in the notice: In the last indented paragraph and
in the paragraph before the signature line, substitute a period for the comma before the
word "except," and delete the remainder of the sentence.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner John H. Eadie at a hearing in
Beaumont, Texas, on July 23, 24, and 25, 1962. At the opening of the hearing the
General Counsel moved to amend the complaint. The motion was granted. The
issue presented by the pleadings is whether Oil City Brass Works, herein referred to
as the Respondent, violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, herein called the Act.' After the conclusion of the
hearing the General Counsel and the Respondent filed briefs with the Trial
Examiner.'
Upon the entire record and from my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation , having its principal office, plant , and place
of business at Beaumont , Texas, where it is engaged in business as a nonferrous
brass works, foundry shop , machine shop , and forge shop. During the period of
12 months prior to the date of the complaint herein, the Respondent purchased
goods and materials valued in excess of $100 , 000 which were transported directly
to its Beaumont plant from points outside the State of Texas . During the same period
the Respondent sold and shipped products , valued in excess of $100,000 , from its
Beaumont plant directly to points outside the State of Texas.
The complaint alleges, the Respondent 's answer admits , and the Trial Examiner
finds that the Respondent is engaged in commerce within the meaning of the
Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, Local 587, AFL-CIO, is a labor organization which admits to
membership employees of the Respondent.
1 Charges were filed on April 25, June 13, and July 20, 1962. The complaint was issued
on June 13, 1962.
2 In its brief the Respondent submitted 20 proposed findings of fact and 1 proposed con-
clusion of law The Respondent's proposed findings of fact have been accepted only when
consistent with the findings of fact hereinafter made. Otherwise, they are rejected. The
Respondent ' s proposed conclusion of law is rejected.
OIL CITY BRASS WORKS 133
III. THE UNFAIR LABOR PRACTICES
A. Background
At the request of employees George Manning and Otto Mitchell the Union
commenced to organize the forge shop of the Respondent's plant. An organizational
meeting of the Union was held on March 3, 1962, at which time about 16 of the
Respondent's employees signed authorization cards.
By letter dated March 5, 1962, the Union advised the Respondent that "more than
eighty two (82%) percent of your production and maintenance employees" had
designated the Union as their bargaining representative. This letter was received by
the Respondent on March 6, 1962. On March 9 the Respondent laid off seven em-
ployees. The Union filed a charge with the Board on March 15, 1962. On
March 22 the Union and the Respondent agreed to a card check against its payroll.
The card check disclosed that a majority of the employees in the forge shop had
designated the Union as their bargaining agent. As a result and as part of their
agreement , the Respondent recognized the Union and placed the laid-off employees
"on a preferential hiring list for a period of ninety days"; and the Union by letter
to the Board dated March 26, 1962, requested that the charge be withdrawn. The
Regional Director for the Board by letter dated March 28, 1962, notified the Re-
spondent that the charge had been withdrawn. Thereafter, the parties held bargain-
ing session on April 9, 18, and 25, May 2 and 18, June 14, 22, and 29, 1962. They
failed to reach agreement on a contract.
It is undisputed that George Bryant, Jr., herein called Bryant, Junior, is president
of the Respondent, that Kyle Wheelus is vice president and treasurer; and that
George Bryant III, son of Bryant, Junior, and herein called Bryant IH, is assistant
to the president and acting plant superintendent. It is also undisputed that as of
March 9, 1962, Otis Ferguson, G. L. Blankenship, W. E. Maddox, and John Ham-
mock were blacksmiths; and that they were supervisory employees within the meaning
of the Act.
B. Interference, restraint, and coercion
Starting on March 6, 1962, after the Respondent had received the Union's letter
requesting recognition, Bryant, Junior, spoke to employees about the Union. Em-
ployee Tom Gary was called to the office on March 6 about 4 p.m. Bryant, Junior,
asked him if he had joined the Union, stating that "someone was organizing a union
back in the forge shop." Gary said that he did not know anything about it. Concern-
ing the balance of the conversation, Gary testified credibly as follows:
So he said well, he had an idea who it was, and he also told me, said somebody
is going to get hurt. And he said it wasn't going to be him, . . . because he
owned the plant, he, his sister and his mother, and nobody was going to come
in and tell him how to run his business. He said he run his business like he
wanted to . .
So he told me well, go on back to work and keep my mouth shut. And if I
heard anything about the union for me to let him know.
And he told me, ... "If anyone says anything to you concerning whether
I talked to you about the union or not, . you tell them no . . If you do
tell them that I talked to you about the union, you are just a liar . .
Was you here when they had the strike before?" I told him no, I was not. He
said, "Well, they had a strike here once before . . . . The men went back
for the same money that they walked out on, . and the ones that was
head of the union at that time, they are not around any more."
On March 9 Gary was again called to the office of Bryant, Junior. He told Gary
that "someone" had told him that he had signed an authorization card of the Union
and accused him of lying during their earlier conversation. When Gary denied
having signed a card, Bryant, Junior, said, "I wish I could believe that . . . .
Well, O.K., go on and go back to work."
On March 9 Bryant, Junior, spoke with Earl Kimball, Jr. He started the
conversation by asking Kimball if he had been in "contact" with anyone, telling
him that if he stuck his "neck out" and got "out on a limb," he would "cut it off."
Bryant, Junior, said that he was not going to let anyone "from New York" tell him
how to run his business. He then asked Kimball, "You mad at me9" When
Kimball replied that he was not, Bryant, Junior, said, "Well, why did you sign
that card? . I heard you signed that card." Kimball answered that he
did not know "anything about no card."
Employee Enoch James Britt had a conversation with Bryant , Junior, on March 12.
He asked Britt if either he or his uncle, employee Galen Britt, had anything to do
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the union activity "going on in the shop." When Britt denied having engaged
in such activity, Bryant, Junior, said that he had "got rid of the agitators back there
and the rebels" and that he was "for a union" but "just couldn't live with it" in his
own plant.
I find that the above conduct of Bryant, Junior, by interrogating employees con-
cerning their union activity, by making threats of reprisal because of such activity,
and by soliciting an employee to engage in surveillance of other employees' union
activities, was violative of Section 8(a)(1) of the Act In so finding I have credited
the testimony of Gary, Kimball, and Britt, and have not credited the denials and
contrary testimony of Bryant, Junior.
C The layoff on March 9, 1962
The Respondent had a day shift and a night shift in the forge shop, each shift
having a "ring side" crew and a "pot side" crew. Ferguson and Blankenship were
the blacksmiths for the day crews; and Hammock and Maddox were the blacksmiths
for the night crews. When business became slack on or about January 11, 1962. the
hours of the day crews were cut from 8 to 6. The night crews, because of special
orders scheduled for delivery the following day, generally worked longer hours than
the day crews. The hours of the night crews were cut proportionately on or about
January 11. At the time it was the Respondent's policy to lower the hours of work
rather than to lay off employees or a whole crew in order to keep experienced crews
intact?
At sometime between March 1 and 5, Bryant III told Hammock that "business
was picking up a little bit." About I p m on March 6, Hammock and Maddox
were called to the office of Bryant, Junior. Wheelus was present at the time. Bryant,
Junior, asked Hammock and Maddox if they had joined the Union or knew anytning
about it. Both denied any knowledge of it. Concerning the balance of the conversa-
tion, Hammock testified credibly as follows:
He said well, that he had got a letter that morning notifying him that
eighty-two percent of the men wanted to join the union, . He said that he
felt like both feet was kicked out from under him, and I told him I wasn't
going to have nothing to do with the union this time for the simple reason
I had lost my job before, and I didn't feel like I would do it again, and I wasn't
going to pay nobody to work, and he said well, the ones that got the union
started (in 1954) in the foundry was gone, and said if I didn't believe him, look
back there and see, . . he said, "Mr Wheelus, we have had business with
the union before and we know how to handle it, don't weT' And (Wheelus)
said, "Yes, sir." 4
On either March 7 or 8 employee George Manning told Bryant III that he had
heard that there was going to be a layoff and asked him if the rumor was true
Bryant [II replied, "Not that I know of."
By letter dated March 9, 1962, the Respondent's attorney acknowledged the Union's
letter of March 5, 1962, and denied the Union's request for recognition. On the
same date the Respondent laid off employees Otto Mitchell, George Manning, Leroy
Miller, Charlie Allen, Jesse ikioblev, and Victor Norman Potts, Ji
Employee D L. Stanton worked with the night pot-side crew under Maddox.
When he reported for woik on March 9, Bryant, Junior, told him that he was not laid
off and that he was assigned to work with the night ring-side crew under Hammock 6
a The evidence shows that a ci ew ii orks as a team, and one misfit could lower the pro-
duction of the crew or possibly endanger the safety of other employees
i Maddox testified substantially the same as Hammock in this connection Blankenship
and Ferguson also were called together to the office of Bryant, Junior Ferguson testified
that Bryant, Junior, asked him if he knew anything about the Union and if he had "any
idea" who belonged to it , and that he was "instructed to not take sides" for or against
the Union Blankenship testified that Bryant, Junior, gave his "no instiuctions" in this
connection Ferguson and Blankenship were called as witnesses by the Respondent
5 Employee Breaux, who had been hired on Maich 2 1962, also was laid off on Maich 9
He was rehired shortly after March 9
6 Robert Mendoza and Enoch James Britt, who also had been working under Maddox,
were transferred to Hammock's cress on March 9 and March 12, respectively The esi-
dence shows that before March 9, 1962, the Respondent did not transfer employees from
crew to crew, except in else of an emergency, and that it was more difficult to train a
man for ring-side woi k than for pot-side Stanton testified that he had no rind-side
OIL CITY BRASS WORKS 135
While Stanton was waiting to go to work and in his presence , Bryant III told an
employee who had inquired as to "what was going on " that he was "getting rid of
some of the union agitators."
When Maddox reported for work on March 9, Bryant , Junior, told him that he
was being transferred to Ferguson 's crew "as a helper" but without a cut in pay.
Galen Britt, who prior to March 9 had been in Maddox's crew and who had "very
little " ring-side experience , was transferred to the day ring-side crew under Blanken-
ship Robert Linscomb and Jake Wright who before March 9 had worked with
Blankenship's crew and who had worked a full day shift on March 9, were told by
Bryant, Junior, to "double over" and work with Hammock's crew that night 7 There-
after. they worked with Hammock. Linscomb replaced Manning as the hammer
operator on Hammock's crew, and Wright replaced Mitchell as the "hyster" operator.
On March 9 and after he had been notified of his transfer to Hammock's crew,
Linscomb complained to Blankenship about the change. Blankenship told him,
"Bob, I didn't have a thing to do with that The old man [Bryant, Junior]
done that in the office I didn't know nothing about it until you got your check "
He also told Linscomb that Bryant, Junior, had "wrecked" his crew. Otto Mitchell
also had a conversation with Blankenship on March 9 When Mitchell asked him
if he knew "how this lay-off was erected," Blankenship replied, "No, I have been in
the shop for twenty years and this is the first time I have ever heard of a
company laying off a bunch of men without consulting the blacksmiths " 9
On March 12 Hammock told Bryant III that he could not get out the tonnage
that he had before March 9 or match the tonnage of Blankenship's crew because his
men "didn ' t know what they were doing ." Bryant III replied that the Respondent
"would bear with [Hammock's crew] until the new men learned what they were
doing over on the [ring] side," and that he believed the forge shop would "run
better" because "they got shed of the agitators."
On or about March 19 Ferguson and Maddox were called to the office of Bryant,
Junior. Concerning the conversation, Maddox testified credibly and without con-
tradiction as follows.
(Bryant, Junior) says, "You men are doing a good job back there on that
tonnage, . . . keep it up . But, . I want to tell you one thing, .
if I find out, Ross [Ferguson], that you have got anything to do with that
union I will run you off , and I will put Maddox in your place .... If I find
out, Maddox, you have got anything to do with it, I will just run you off." . . .
(Ferguson) says, "We got so much work back there, when are you going to
put on that other crew you fired?" . . (Bryant, Junior) hit that deck like
that [illustrating] and said, "Don't let me never hear you say that again .
Those men was laid off and, . . . you remember that. I don't care who tells
you, who asks you or anything, you tell them . . . that they was not fired,
they was laid off."
On March 30 Maddox replaced Hammock as blacksmith on the night ring-side
crew. However, for 2 or 3 days he worked double shifts while still working with
Ferguson's crew. Within a day or two after Maddox assumed the blacksmith job,
his crew punched nine rings off center. He was called to the office because of this
and reprimanded by Bryant, Junior He then said to Maddox, "Another
thing. . how come you let those men out last night to talk to those union guys
out there?" Maddox replied, "I didn't open that gate. I didn't let nobody have
those keys to go out there and open it." 9 After argument about the gate, Bryant,
Junior, stated that he had "pulled" the names of Maddox and Hammock "out of that
experience and that to his knowledge Britt and Mendoza also did not have any. Maddox
testified that in his opinion, Stanton, Mendoza, and Britt were not qualified to perform
ring- side work
7 The Respondent paid the overtime rate of time and a half for hours worked over 8 per
day and 40 per week.
9 Both Linscomb and Mitchell testified without contradiction to the above conversations
with Blankenship Hammock also testified without contradiction that on March 9
Blankenship told him that he did not know "anything" about the layoff; and that on
March 12 Blankenship complained to him that he wished he had his "old men back" as
lie could not meet the required production with his new crew and told him that he could
not understand why the Respondent laid off the employees without consulting the black-
smiths about it
'The evidence shows that the blacksmiths were entrusted with the keys to the gates
The facts concerning the gates will be related hereinafter
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hat today" as having signed union authorization cards, stating, however, "It looks
like somebody forged your name and put it in there." Maddox replied, "You ain't
seen my name in no hat because you ain't pulled it out." 10
After March 12 and whsle Hammock was blacksmith for the night ring-side crew,
it had been working from 8 to over 10 hours per day. It continued to work over 8
hours per day when Maddox assumed the job." Maddox complained to Bryant III
that his crew was shorthanded and needed help. Maddox was working double
shifts at the time. That same day Hammock worked a double shift, working on
shifts with Ferguson and Maddox. At the start of the night shift Bryant, Junior, took
the gate keys away from Maddox.
The Respondent's records show the weekly hours for the crews of the blacksmiths
named and the weekly "tonnage" for the forge shop as a whole, as follows:
Week ending Ferguson Maddox Blanken-
ship
Hammock Tonnage
1/12________________________________________ 35 8 35 6 35 5 35 160,943
1/19________________________________________ 30 37 9 30 41 172,126
1/26________________________________________ 30 35 9 30 35 2 144,681
2/2_________________________________________ *26 3 *30 7 34 *36 9 168,011
2/9----------------------------------------- *26 5 *33 30 35 4 162,506
2/16________________________________________ 30 36 30 37 7 187,353
2/23---------------------------------------- 30 35 5 30 37 2 180,097
3/2_________________________________________ 32 43 6 30 40 2 193 948
3/9_________________________________________ 30 6 *28 30 36 7 152,128
3/16--------------------------------------- 47 1 ------------ 36 45
182,682
3/23---------------------------------------- 46 7 ------------ 40 42 8 178,126
3/30________________________________________ 45 9 ( 1 2) 47 6 *39 5 216,579
4/6----------------------------------------- 39 7 ------------ 43 7 *33 1
185,385
4/13---------------------------------------- 41 8 ------------ 42 2 *24 3 143,150
4/20 1s------------------------------------- 35 9 ------------ 33 4 *25 3 109,761
4/27--------------------------------------- 44 3 ------------ 40 1 *8 2
131,688
5/4------------------- -------------------- 47 1 ------------ 46 9 -----------
124,577
5/11------------------ -------------------- 44 8 ------------ 42 6 -------------
147,002
5/18-------------------------------------- 41 7 - -----------
145,110
5/25-------------------------------------- 41 4 ----------- 40 ----------- 148,397
*Denoting 4 days or less of work
Bryant, Junior, and Bryant III testified at length concerning the economic necessity
for the layoff. Bryant III testified, "The first time we actually discussed laying off
was when I reported to [Bryant, Junior] on the evening of [March 8] that we were
short of work and we were going to run out by Monday morning." Bryant, Junior,
testified, in substance, that the decision to make the layoff was made during the
morning of March 9; that the selection of the employees to be laid off was made by
blacksmiths Blankenship and Ferguson during a meeting at which he, Bryant III,
and Wheelus were present; that although he had asked Maddox to attend the meet-
ing, "he did not show up at all"; 14 and that he did not attempt to notify Hammock
because he was at home. Bryant III testified that the "blacksmiths, themselves, and
Mr. Willis" (the Respondent's "head estimator and coordinator between Sales and
Estimation") selected the employees for layoff; that he had "very little, very, very
little" to say about who was going to be laid off; and that Bryant, Junior, "took very
little part in it, actually. He more or less sat back and let them plan it out and then
11 Maddox testified that he had in fact signed a card before March 9 As related above,
the Respondent and the Union agreed to a card check on March 22 . The evidence shows
that the card check was made at some time before March 26 by the Respondent's payroll
clerk and that a "card was signed by a supervisor and such card was not counted "
11 The Respondent 's records show that Maddox was blacksmith from March 30 through
April 4, and that Hammock was transferred back as blacksmith on April 6
12 As noted above, Maddox was the blacksmith on the night shift from March 30 through
April 4.
13 April 20 was a holiday on which no work was performed
14 Maddox testified that Bryant , Junior, did not tell him about the meeting, but did tell
him, "I want to see you directly " He testified that he went home "mad" because he had
not received his pay on time that morning.
OIL CITY BRASS WORKS 137
he approved it." Blankenship testified that he, Ferguson , Wheelus, and Bryant III
jointly selected the employees to be laid off. Ferguson testified to the effect that
everyone present at the meeting participated in the selection of the employees to be
laid off without objection or dissension.15
Aside from the conflicts in the testimony of the Respondent 's witnesses concern-
ing the manner in which the employees were selected for layoff,16 the Respondent's
own records do not support its defense of economic necessity. The evidence shows
that the Respondent worked on customer orders and did not carry any inventory. Its
tonnage of 31,274 for Monday, March 12, was about average, as was its weekly
tonnage for the week ending March 16. In fact , the tonnage for the month of
March 1962 was by far the best of any of the months from January through June
1962. The fact that the Respondent required some employees to work double shifts
and Ferguson's and Hammock's crews to work in excess of 8 hours per day for al-
most every day after March 12, as much as 10 to 13 hours on some days, further
weakens the Respondent's claim of economic necessity.
The evidence shows that prior to March 9 the Respondent had a policy of cutting
the hours of work when business was slack in order to retain experienced crews; that
immediately upon receiving the Union's letter on March 6 it interrogated employees
concerning their union activity, threatened them with reprisal because of such ac-
tivity, and requested them to engage in surveillance of the union activity of other
employees; and that 3 days after learning of the union activity in the forge shop it
abandoned its policy of cutting hours and eliminated a crew.
The Respondent did not consider the length of service of employees in the layoff
on March 9.17 There is credible evidence in the case that in the layoff during Feb-
ruary 1962 of employee M. A. Atwood seniority was taken into consideration, with
Bryant, Junior, instructing Bryant III to select employees for layoff "strictly by
seniority, if it wasn't but one hour, and he didn't know it, to go to the book and find
out." To rebut this and other evidence on seniority the Respondent adduced in evi-
dence records showing that when five employees were laid off during October 1958,
two of the employees who were laid off had more seniority than four employees
who were retained. However, this exhiibt is not conclusive on the subject since it
indicates that three of the employees who were laid off were selected because they
were the last ones hired in the forge shop. _n sum, 4 believe that the evidence
shows that during past layoffs the Respondent did consider seniority in the selection of
employees.
Upon the entire record on this issue I find that by laying off Mitchell, Manning,
Miller, Allen, Mobley, and Potts on March 9, 1962, the Respondent violated Section
8(a) (3) and (1) of the Act.18 The fact that the record is silent on the question of
whether or not Miller, Mobley, and Potts were adherents of the Union does not fore-
close the above finding as to them,19 in my opinion, in view of the Respondent's con-
duct as a whole, and of the statements concerning "agitators" and "rebels" in par-
ticular. It is clear that the Respondent discriminated against these six employees
because it knew or suspected that they were adherents of the Union.2°
D. The discharge of Earl Kimball, Jr.
Kimball was hired by the Respondent on April 18, 1955. He worked as a "saw
helper" and at times as a saw operator , cutting steel . He worked on the night shift
with saw operator Tom Gary. Kimball had signed an authorization card and had
attended union meetings prior to March 9, 1962.
16 In his pretrial statement Ferguson stated , "A little while after Billy Bryant got a
letter from the union he called me in and talked about the lay-off, we only talked about
who on my crew was to be laid off and we didn't talk about those on the other crews who
were to be laid off."
'"As noted above , the testimony of Linscomb , Mitchell , and Hammock concerning con-
versations with Blankenship on March 9 stands uncontradicted
14 A list of employees in the forge shop as of March 8, 1962 , with their dates of hire,
is attached hereto as Appendix A
18 The findings of fact are based in part , as related and found above , on the credited
testimony of Hammock, Maddox, Mitchell, Stanton, Linscomb, and Atwood Denials and
contrary testimony of Bryant , Junior, Bryant III, Blankenship , and Ferguson are not
credited
")As related above, Manning and Mitchell were the instigators of the Union in the
forge shop Allen signed an authorization card and attended union meetings before
March 9, 1962
20 It is worthy of note that Manning. Mitchell , and Allen were three of the most versa-
tile employees in the forge shop. Each had acted as a substitute blacksmith
138 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
On March 14, the Respondent had two orders involving the same weight and
number of pieces, one for alloy steel and the other for carbon steel. That night
Hammock went to Kimball with "the order in his hand" for the carbon steel Kim-
ball saw the weight and number of pieces and assumed that the order was for the
alloy steel. This misunderstanding on Kimball's part was brought about because of
a statement by Hammock concerning the alloy order during the preceding night.
Kimball brought the alloy steel to Hammock's crew; and it was put in the fire for
the day crew When Kimball reported for work on March 15, he was discharged by
Bryant, Junior
Concerning the reason why he discharged Kimball, Bryant, Junior, testified as
follows.
Well, Mr Hammock sent him out there with an order to bring in some steel,
and to put in the furnace for the morning crew to go to work on the first thing
in the morning
He goes out there and we have two separate, I mean two orders for the same
number of pieces One of them is out of an alloy steel and one is out of a
carbon steel, and he picks up the alloy steel, which we have to sign an affidavit
that these parts are one certain thing, see, and it's a pretty responsible lob that
he has, and he is supposed to know what he is doing, and he has been doing it
for some time, and he goes out there and gets the alloy steel, and, if I am correct
on that, I believe that is straight, he got the alloy steel and put it in the fire and
the next day the crew found out that the other stuff that was supposed to have
been made was still out there and yet the order had already been turned in,
and it was called to my attention on that
Now, if anyone is going to be that careless and Oil City Brass Works puts
their name on it around there, and makes an affidavit to the effect that this is
certain specs. in that classification, see, then we are liable for a hell of a big
damage suit.
He admitted that similar mistakes probably had been made before, but was unable
to name any other employee discharged for the same reason. He also admitted that
it was the blacksmith's duty to check on the saw helper and make sure that the order
was correct, and that Hammock at the time of discharge had pointed out to him that
he was equally responsible for the error.
In this connection Hammock was questioned and testified credibly as follows:
Q. What was the job of the saw boy?
A Well, he was supposed to mark the order, put it down on the street, pick
it up on the small Hyster and bring it into the shop for us to make the forging.
Q. Was the mistake partly by Kimball'?
A Partly, yes, sir
Q. What was the mistake9
A He brought in the wrong kind of steel They had two orders out there,
two kinds of carbon steel, and he brought in the wrong carbon steel
Q. Did you talk to Mr. Bryant about this mistake?
A Yes, sir.
Q What did you say to Mr. Bryant about this mistake?
A. Well, he called me up there and asked me, wanted to know who put the
wrong iron in the fire, and I told him that we put it in the fire, and he asked-
I told him that I gave Earl the order and he brought it in the shop and I was
working, and the boys picked it up and put it in the fire, and they put the wrong
iron in the fire, they didn't notice the iron, and Earl brought it in the shop.
And he said well, get Earl in there. And I told him it was as much my fault as
it was Earl's I should have checked the iron before he put it in the fire.
Q What did Mr Bryant say to that?
A He said that was too big a mistake to overlook.
Q. Did he say he was going to fire him?
A. Yes, sir.
Q. Did you speak to him about firing him?
A. I told him that it made me feel bad about it, and I wished he wouldn't
because it was as much my fault as it was his.
Q. What did he say about that?
A. He said it was too big a mistake.
Q Were these mistakes made before?
A. Yes, sir.
Q. How often would they occur?
OIL CITY BRASS WORKS 139
A. Not too frequently. I would say about once every two or three months.
Q. Had any other man ever been fired for making this same mistake?
A. No, sir.
Maddox testified without contradiction that about 2 weeks after March 9, 1962, the
saw helper on the day shift brought a wrong order to Ferguson's crew; that this iron
also was put in the fire by mistake; and that no one was reprimanded because of the
mistake.
The conversion between Bryant, Junior, and Kimball on March 9, 1962, has been
related and found above. The statements of Bryant, Junior, at the time show that
he knew or suspected that Kimball had signed a union authorization card and threat-
ened him with discharge if he got "out on a limb." In view of this evidence and the
fact that employees had not been discharged before for making the same mistake, I
conclude and find that the stated reason for Kimball's discharge was a pretext and
that the discharge was in violation of Section 8 (a) (3) and (1) of the Act.
E. The layoffs on and after April 26, 1962
Tom Gary was the saw operator on the night shift. After March 9, 1962, em-
ployees Enoch James Britt, David L. Stanton, and Robert L. Linscomb worked on
the night shift under Hammock and Maddox.
Stanton, Gary, and Linscomb signed union authorization cards and attended union
meetings. Linscomb was a member of the Union's bargaining committee, and at-
tended a bargaining meeting between the Union and the Respondent before his layoff.
Starting on March 29 the Respondent decreased the number of working days of
the night shift. It did not work on March 29 and 30, or on April 5. It worked only
3 days each during the weeks ending April 13 and 20. It worked only 1 day
during the week ending April 27, with its last day of work on April 26. The
complaint alleges and the answer admits that Linscomb, Stanton, Britt, and Gary were
laid off on April 26, May 3, May 4, and May 10, 1962, respectively.21 After April 26
Britt worked for only 11/2 days, with his last day of work on May 4. He was recalled
to work on June 22. Stanton was recalled on May 3 to work on a night pot-side
shift under Ferguson. This was his last day of work for the Respondent.
The conversations between Gary and Bryant, Junior, on March 6 and 9 and
between Enoch James Britt and Bryant, Junior, on March 12 have been related and
found above.
Prior to the layoff on March 9, 1962, Linscomb worked on the day shift under
Blankenship and employee Galen Britt worked on the night pot-side shift under
Maddox. On that date they were transferred, Britt to the day ring-side shift under
Blankenship and Linscomb to the night shift under Hammock. About March 14
Lipscomb had a conversation with Blankenship, telling him that he and Galen Britt
wanted to swap back to their original shifts. Blankenship stated that he had not had
"anything to do with" the change in shifts on March 9, that Bryant, Junior, had made
the decision, and that it was agreeable with him for them to swap shifts if Bryant,
Junior, approved. Linscomb then asked Bryant, Junior. Bryant, Junior, told him
that he could not make the change since "the blacksmiths had chosen the crews."
When Linscomb said, "Mr Bryant, Shorty Blankenship said you chose the crews."
Bryant, Junior, replied, "Well, I can't tell you, there is a personal reason, but I can't
swap you back."
Sometime after March 9, Galen Britt had a conversation with Ferguson. In this
connection Britt testified credibly that Ferguson said, "It's a shame that these little
kids and women has to put up with a man's ignorance . . . . Some of these guys
come in here, think they are going to take this shop over but they are going to get
badly fooled."
Employee Thomas Lewis worked with Ferguson's crew as a helper. On one
occasion after March 9 when the crew was shorthanded, he complained to Ferguson.
Concerning the conversation, Lewis testified credibly and without contradiction as
follows : 22
21 The testimony of Gary shows that he was working for the Respondent at the time
of the hearing herein ; that starting on or about April 26, 1962, he worked short weeks ;
and that from that date until the hearing he was never laid off for a whole week.
21 Galen Britt testified without contradiction that at times Blankenship's crew was
shorthanded ; that he asked Blankenship to get additional help ; that on "one day after
the holiday" (April 23) when the crew was "two men short " he had to quit work because
of exhaustion Hammock testified without contradiction that on May 4 he heard Ferguson
tell Bryant III that if he wanted to get the work out that night he should call back the
"crew walking around on the outside" as he had worked enough that week.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I asked him to get someone to help me, my back was giving me some trouble,
and he said he couldn't help me none, and I asked him, you know, about, well
taking one of the men off of the other crew, they had seven men in one crew
at that time, and he said he couldn't do that, Mr. Bryant was running the plant
like he saw fit, and so I asked him why, and he had said that there was a
couple of hotheads that just kept something stirred up all the time, .. .
The Respondent contends that it laid off the night crew on April 26 because
"business continued to fall off." The Respondent's records, as set forth above, show
that starting with the week ending April 13 the weekly tonnage dropped sharply
and continued low through April and May. The tonnage figures for April and May
were 598,515 and 655,482, respectively. The tonnages for February and March were
685,734 and 821,046, respectively.
While it is undisputed that the Respondent's business fell off after the first week
in April and that the monthly production for April was the poorest of any of the
months from January through May, nevertheless I am constrained to conclude from
the record as it stands that the Respondent's motive was discriminatory in the layoffs
on and after April 26. As in the layoff of March 9, the Respondent abandoned its
policy of cutting hours in order to retain experienced crews. Instead, the day crews
were required to work overtime,23 and the night crew worked short weeks. This also
was contrary to past practice, since the evidence shows that prior to March 9 the
night crews worked longer hours than the day crews Further, the Respondent did
not follow seniority in the selection of employees for layoff.
The incident involving blacksmith Maddox and Bryant, Junior, during the first
week in April, related above, shows that Bryant, Junior, was suspicious of the night
crew.24 On this subject it is significant that he refused to allow Linscomb, a known
leading adherent of the Union, to change shifts with Galen Britt. If the change had
been permitted, then Linscomb would not have been involved in the layoff of the
night crew.
In conclusion, the evidence indicates that if the Respondent had not laid off
employees on March 9, a layoff during the second or third week in April possibly
would have been necessary. However, since the Respondent has become so en-
meshed in its own unfair labor practices, the Trial Examiner is unable to differentiate
between the layoff on March 9 and that occurring on and after April 26. Accordingly,
I find that the Respondent laid off Linscomb on April 26, Stanton on May 3, Enoch
James Britt on May 4, and Gary on May 10 because it knew or suspected that they
were adherents of the Union, and that such conduct was violative of Section 8(a) (3)
.and (1) of the Act.
F. The changes in working conditions after March 9, 1962
The complaint, as amended, alleges that "all hourly-paid production employees in
the Forging Department at Respondent's Beaumont, Texas, plant, exclusive of black-
smiths, clerical employees, professional employees, guards, watchmen and super-
visors, as defined in the Act, constitute a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b) of the Act." Although in its
answer the Respondent denies this allegation, it admits that on or about March 22,
1962, it recognized the Union as the exclusive bargaining representative of the
employees in said unit. At the hearing the Respondent presented no evidence
on this issue. Accordingly, I find the above unit constitutes an appropriate unit
within the meaning of Section 9 (b) of the Act
The complaint alleges and the Respondent's answer denies having knowledge that
on or about February 24, 1962, a majority of the employees in said unit designated
the Union as their representative for the purpose of collective bargaining. John
Flowers, business manager of the Union, testified without contradiction that at a
meeting of the Union held on March 3, 1962, "at least sixteen" of the Respondent's
employees joined the Union. As related and found above, the Respondent recognized
the Union after a check of the union authorization cards against its payroll. Since
the evidence shows that there were only 25 employees in said unit, I find that the
Union represented a majority at all times on and after March 3, 1962.
Hammock testified that- After the layoff of March 9, Bryant III told him to
cut down the rest periods between heats to 10 or 15 minutes; the rest period "usually"
was 30 minutes before the layoff; for a lone period of time before the layoff there
had been a telephone in the forge shop with which the employees had been able
23 Employee M A Atwood, a helper in Blankenship's crew, testified without contradic-
tion that after March 9 his crew worked "a few Saturdays." The Respondent's records
do not show any Saturday work.
24 Other facts in this connection will be related hereinafter
OIL CITY BRASS WORKS 141
to receive and make calls; the telephone was disconnected after the layoff; he spoke
to Bryant III about the telephone, asking him what he should do in case an employee
got hurt; Bryant III told him that he would "just have to get out and call"; at the
time he did not know that the telephone had been installed in the saw shed; the
ringing of the telephone could not be heard when it was in the saw shed; and after
the layoff the locks on the gates were changed.
Maddox testified that: He spoke to Bryant III about the lack of a telephone,
asking him what he should do in case an employee was injured; Bryant III said, "I
will see Dad about it"; the following night when he asked Bryant III if he had
checked on the telephone, Bryant III replied, "Sure did, but that is the way Dad
wants it"; it was necessary to take rest breaks between heats "for the iron to get
hot and for another thing, ... it was so hot in there that you just couldn't fight it";
before the layoff on March 9 as blacksmith he took "regular" breaks; and when
he worked with Ferguson's crew, Ferguson charged up a break of 30 minutes on
the timecard "but he didn't take it." 25
Linscomb testified that: Before the layoff on March 9 the rest periods were
"approximately thirty minutes between each heat"; after the layoff and when he
worked for Hammock the breaks were "between fifteen and twenty minutes, around
there"; from the start of his employment (July 28, 1954) until the layoff on March 9
there had always been a telephone in the forge shop with which employees could
make and receive calls; when the telephone was disconnected after the layoff, he
complained to Bryant III; Bryant III told him Bryant, Junior, "wanted it that way";
before the layoff the employees had been free to use the gates leading to the plant
during rest periods in order to go to "a little store on Crockett Street there, we would
go in and out and get cigarettes , ice cream and stuff .... On the SP side, the alley,
well, we would walk out there and sit down on some benches, cool and get some
fresh air"; after the layoff the gates were locked; on two or three nights the black-
smiths did not have keys to the gates ; 26 when he complained to Bryant III about
the locked gates, he replied that he had "got orders to lock them"; on one night
when he was waiting for a gate to be unlocked so he could go to work, Bryant,
Junior, came out of the office and asked him if the gate was locked; he replied, "Yes,
sir, you know that gate is locked. You ordered them to all be locked"; and
Bryant, Junior , then said, "Well , if business don't pick up looks like I am going to
have to lock it up and go fishing." Concerning a barrier between the forge shop
and the machine shop , Linscomb was questioned and testified as follows:
Q. Did you ever have a conversation with Mr . Bryant about the West Berlin
fence?
A. Yes, sir.
Q. Would you tell me about that?
A. That West Berlin fence, what we were referring to was a fence between
the foundry and the machine shop. Prior to the union , those doors and gates
were left open and I had all the freedom to go to the plant, machine shop, any
place I wanted, and after the March 9 lay-off he locked the gates and I couldn't
go in to get the maintenance man to come repair my hammer or anything else.
I had to get a foreman to go in there. And we got to referring to it as the
West Berlin fence.
Q. Who referred to it as the West Berlin fence?
A. All of us guys working there.
Q. Did Little Billy ever tell you about the welding shop, what would happen
if you went into the welding shop9
A. Yes, sir, he told us when we passed the welding shop we would be fired.
Employee Thomas Lewis, Jr., testified with respect to the gates on the day shift,
.. they had some locked before, but usually when we come down in the morning,
it stayed open until we left or once they came by and locked them, but here since the
lay-off they locked them altogether, and if you had to get out sometimes they would
let you out and sometimes they wouldn't . . You had to find the kev for them."
Lewis had a conversation with Bryant III about the barbed wire that had-been strung
25 Atwood testified , ". . . on Shorty Blankenship 's side we didn 't have no breaks, you
might as well say . . . . After the lay-offs Noon hour was about the only time we got a
little break and that was around twenty to thirty minutes " Galen Britt testified that
before the layoff on March 9 "we had a thirty-minute break between heats"; that after
the layoff and while he was working for Blankenship "I was cut down to anywhere from
ten to fifteen, twenty minutes Sometimes wouldn't even get one [break]."
26 As related above, on one occasion the keys were taken from Maddox by Bryant III.
Hammock testified that "one night" after the layoff the keys to the gates were taken
away from him.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over the gates after the layoff. When Lewis asked Bryant III about the barbed wire,
he replied, "How do you like my concentration camp9" Lewis also testified that
before the layoff the employees were free to go into the machine shop to "get cokes
or something like that, and we could go in there to talk ... to a couple of fellows";
but that after the layoff "they locked these two gates and kept them closed and gave
us orders not to go up there any more, and that is where the expression West Berlin
wall came up." Concerning the removal of the telephone in the forge shop, Lewis
testified, "I don't remember the exact time it was, but I know after the lay-off there
for awhile we didn't have no phone back there, and I didn't know that the phone
in the saw shed was connected up, but I do know that lots of time we would work
over past the time that the saw boys wasn't working, and they would lock the door
and there wouldn't be no way that you could get into the saw shed after they locked
the doors. I think Mr. Hoffman, he is the night watchman, I think he locked it up
at 5:00 o'clock. If you worked after 5.00 o'clock, and were on time, there wasn't
no way we could get to the phone."
Bryant, Junior, testified that barbed wire was strung over the gates "to keep people
from climbing over the gates we had been losing a lot of the tools and stuff out
of the plant." As to the reason why the telephone was disconnected in the forge shop.
he testified, "I moved it out into the saw building, . . which is right across the street
from the forge shop . . We had some telephones that we had to move around
in the plant, particularly in our office upstairs, . and we felt that it was more
advantageous to have this phone in the middle of the plant instead of just one point
I decided that I didn't want to have the phone on my line if I made calls in
the evening. Also, under the old set-up the men in the forge shop could get outside
calls. I didn't consider it was necessary for them to get outside calls as it might
cause them to waste time." Concerning the reason for the locking of the gates he
was questioned and testified as follows.
Q. In connection with the gates, "The reason we took these measures was to
keep tools and equipment and material from leaving the plant and also to stop
our people from running down the street while they were on duty "
A That's correct, too, sir, I remember that
Q. Prior to the union weren't the men permitted to go outside and get a
pack of cigarettes or to go outside and sit on a bench when they so felt, if the
foreman gave them permission?
A. Yes, they were.
Q. So now you locked the gates so they couldn't do that?
A. That's right. If they were hurt outside that gate, I am still responsible for
them.
Q. Wasn't that also the case before the union came into the picture when the
men were allowed to do that9
A. That's right.
Bryant III testified, in substance, that Bryant, Junior, never gave any orders to
shorten the rest periods; he himself gave such orders during February and not during
March because "the breaks were being excessively taken .. . we tried to get produc-
tion up. Some of the breaks were running forty-five minutes at night." 27 Concern-
ing the gate between the forge shop and the machine shop, Bryant III testified, "They
were opened at one time and the reason they were closed was, as Mr. Lewis testified,
they would go up and have a soda pop and visit, this, that, and the other, and that
was the reason, right there, that they were closed, because they were distracting the
machinists " As to the reason for the barbed wire over the gates Bryant III testified
to the following:
There's always been three strands of barbed wire over the top of the gate. I
have noticed on several occasions that the barbed wire has been bent down,
there's been mud on the top of the Trinity Street gate. on the Neches side, not
the Neches side, but the Crockett Street side, and where it is very apparent that
somebody has climbed in and out of the shop.
We thought it was a good idea to take and put some added protection over
the top of that
Even with the barbed wire that we strung over the top of the gates, not two
months ago, three months ago, I caught two little Negro children climbing over
the barbed wire, with all of that that's up there, climbing in the plant to play,
particularly on the week ends. It was just to keep personnel out of the plant,
not personnel that worked for us, but persons on the outside, outsiders, from
coming into the plant.
27Ferguson testified that after the layoff of March 9 he was not directed to shorten the
rest periods and that as far as his crew was concerned he did not shorten them.
OIL CITY BRASS WORKS 143
It is undisputed that the Respondent after the layoff of March 9 changed the hours
and days of work of the employees on the night shift, locked the plant gates during
working hours, and disconnected the telephone in the forge shop. I credit the above
witnesses for the General Counsel and find that the Respondent shortened the rest
periods after the layoff of March 9. It is clear from the record that the Respondent
made the above changes in working conditions in reprisal for the union activities of
the employees. It is also undisputed that the Respondent did not advise or consult
with the Union concerning the changes. Accordingly, I find that by these unilateral
changes the Respondent violated Section 8(a)(1), (3), and (5) of the Act. I do not
find that the stringing of barbed wire over the gates was violative of the Act.
G. The meeting of May 2, 1962
The complaint alleges a violation of Section 8(a) (5) of the Act in that "On or
about May 2, 1962, Respondent terminated bargaining negotiations with the Union
because the latter filed the instant unfair labor practice charges."
Concerning this meeting, Flowers testified as follows:
Article 22 dealt with the company's prerogative of running their business.
And it gave them the sole right to perform and operate their business without
any union interference. And they said they could not live with that.
Mr. Benckenstein said they would not accept it, that it would cause a hardship
on him and his company, and at this time I get up to pull off my coat to hang
it up, just like I did when I come in here, and when I came back to the table I
said, "Well, looks to me like the best thing for us to do, that you are not going
to agree on anything at all, we might as well just go on through the contract
and mark it up 'No' just to save time."
And when I made this statement Mr. Benckenstein said, "Well, are you calling
off the meeting?"
I said, "Well, I certainly am not. I just made that remark in passing."
And he said, "Well, you are not bargaining in good faith. And we are not
going to discuss it any further. Just go on and file some more unfair labor
practices, charges, and we will meet you in court." . I said, "Well, you mean
to tell me you are not going to meet with us any further?"
And he said, "That's right, we don't intend to meet with you any further."
So with those remarks I picked up my coat and put it back on and we left
Bryant , Junior , testified that the negotiations were broken off during "one session."
In this connection he testified, "Well, the thing is that the business manager got up
and took off his coat and turned around and said, `Well, boys, we might as well
go home if this is the way it's going to be, you know, if they are going to object to
everything, let's call it off.' And some of the boys during the excitement there, or
something, I don't know, they all called it off, and that was it. .
While I credit Flowers' version of the meeting, I do not find that the Respondent's
conduct on this occasion amounts to a refusal to bargain. It appears that the
meeting broke up because of a misunderstanding or argument between Flowers
and the Respondent's attorney during the heat of discussion of the contract terms.
Further, the evidence discloses that the parties had four bargaining meetings after
May 2.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated against Mitchell, Manning,
Miller, Allen, Mobley, and Potts by laying them off on March 9, 1962, by discharg-
ing Kimball on March 15, 1962, and against Linscomb, Stanton, Enoch James Britt,
and Gary be decreasing the number of working days on and after March 29, 1962,
and laying them off on April 26, May 3, May 4, and May 10, 1962, respectively.
Accordingly, it will be recommended that the Respondent offer Mitchell, Manning,
Miller, Allen, Mobley, Potts, Kimball, Linscomb, and Stanton immediate and full
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement to their former or substantially equivalent positions without prejudice
to their seniority or other rights or privileges,28 and make them and Britt and Gary
whole for any loss of pay suffered by reason of the discrimination by payment to
each of them of a sum of money equal to that which he would have earned as wages
from the date of the discrimination to the date of reinstatement, or to June 22, 1962,
in the case of Britt, less his net earnings during such period in accordance with the
formula prescribed in F. W. Woolworth Company, 90 NLR-B 289, together with
interest on such sums, such interest to be computed in accordance with the formula
prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
4. By discriminating with respect to the hire, tenure, and other terms or conditions
of employment of Mitchell, Manning, Miller, Allen, Mobley, Potts, Kimball, Lins-
comb, Stanton, Britt, and Gary, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. All hourly paid production employees in the forging department of the Re-
spondent's Beaumont, Texas, plant, exclusive of blacksmiths clerical employees, pro-
fessional employees, guards, watchmen, and supervisors, as defined in the Act, con-
stitute an appropriate unit within the meaning of Section 9(b) of the Act.
6. The Union has been at all times on and after March 3, 1962, the exclusive
representative of all the employees in the aforestated appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
7. On and after March 9, 1962, by changing unilaterally the hours and days of
work and other terms and conditions of employment of its employees the Respondent
has refused to bargain and has engaged in unfair labor practices within the meaning
of Section 8(a) (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that Oil City Brass Works, Beaumont,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Interrogating employees concerning their union membership and activities,
threatening them with reprisal because of such activity, and soliciting employees to
engage in surveillance of the union activity of other employees.
(b) Discriminating against employees in regard to their hire or tenure of employ-
ment or any term or condition of employment because of their membership in or
activity on behalf of the Union or any other labor organization.
(c) Changing unilaterally the hours and days of work or other terms and condi-
tions of employment of its employees.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form labor organizations, to join
or assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Mitchell, Manning, Miller, Allen, Mobley, Potts, Kimball, Linscomb,
and Stanton immediate and full reinstatement to their former or substantially equiv-
alent positions without prejudice to their seniority or other rights or privileges, and
make them and Britt and Gary whole in the manner set forth in section V, above,
entitled "The Remedy."
The evidence shows that some few days before the hearing herein, the Respondent
offered temporary work to some of the above as new employees without seniority.
OIL CITY BRASS WORKS 145
(b) Rescind all unilateral changes made on and after March 9, 1962, in the hours
and days of work and in other terms and conditions of employment of its employees.
(c) Upon request bargain collectively with the Union as the exclusive representative
of the employees in the above-described unit with respect to rates of pay, wages,
hours of work, and other terms and conditions of employment, and embody in a
signed agreement any understanding reached.
(d) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary for the determination of the amounts of backpay due under these
recommendations.
(e) Post at its plant in Beaumont, Texas, copies of the attached notice marked
"Appendix B." 29 Copies of said notice, to be furnished by the Regional Director
for the Twenty-third Region, shall, after being duly signed by the Respondent or its
authorized representative, be posted by Respondent immediately upon receipt thereof
and maintained by it for a period of 60 days thereafter in conspicuous places including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps it has
taken to comply herewith.30
In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
so In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewit1;
APPENDIX A
ALL EMPLOYEES EMPLOYED IN THE FORGE SHOP ON MARCH 8, 1962
Employee Hare date Employee Hate date
Otis R. Ferguson-------- 10-29-44 Galen Britt ------------ 3-16-57
Alfred Puente__________ 11-28-47 W. E. Maddox_________ 10-15-58
Arthur A. Mitchell------ 9-7-48 L. R. Miller____________ 12-29-58
Eddie H. Kolander______ 8-7-51 Thomas A. Lewis, Jr_..._12-30-58
W. J. Johnston---------- 8-25-52 Willie Fontenot--------- 2-24-59
Tom Gary_____________ 2-19-53 G. L. Blankenship------ 10-6-59
John R. Hammock------ 6-10-53 James ::ock____________ 8-9-60
R L. Linscomb_________ 7-28-54 James Britt ------------ 10-24-60
Charlie L. Allen________ 12-28-54 3. L. Stanton---------- 1-26-61
Darvin Durham_________ 2-9-55 Jessie L. Mobley________ 5-18-61
Earl Kimble___________ 4-18-55 M. A. Atwood__________ 6-5-61
O. L. Mitchell__________ 11-3-55 Norman Potts__________ 6-12-61
Jesse L. Turner_________ 2-27-56 Robert C. Mendoza------ 6-23-61
J. E. Wright ----------- 6-14-56 Edward Breaux_________ 3-2-62
George L. Manning----- 8-28-56
APPENDIX B
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 NOT interrogate our employees concerning their union membership
or activities, threaten them with reprisal because of such activity, or solicit them
to engage in surveillance of the union activity of other employees.
WE WILL NOT discriminate against our employees in regard to their hire and
tenure of employment or other terms and conditions of employment, because
of their membership in or activities on behalf of international Brotherhood of
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boilermakers , Iron Ship Builders, Blacksmiths , Forgers and Helpers , Local 587,
AFL-CIO, or any other labor organization.
WE WILL offer ,to; the foljot ing , employees, immediate and. full reinstatement:
to their former or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges:
Otto L. Mitchell Jessie L. Mobley
George L . Manning Victor Norman Potts, Jr.
Leroy R. Miller Robert L. Linscomb
Charlie Lee Allen David L, Stanton
Earl Kimball, Jr.
WE WILL make whole the above employees and Enoch James Britt and Tom
Gary for any loss of pay suffered as a result of our discrimination against them.
WE WILL rescind all unilateral changes made on and after March 9 , 1962,
in the hours and days of work and in other terms and conditions of employ-
ment of our employees.
WE WILL, upon request , bargain collectively with the above -named labor or-
ganization as the exclusive bargaining representative of all employees in the
appropriate unit with respect to rates of pay, wages , hours of employment, and
other terms and conditions of employment , and if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist the above union, or any other labor organization , to bar-
gain collectively through representatives of their own choosing , to engage in
concerted activities for the purposes of collective bargaining or mutual aid or
protection, or to refrain from any or all such activities, except to the extent that
such rights 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.
All our employees are free to become , remain , or refrain from becoming or re-
maining members of International Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local 587, AFL-CIO, or of any other labor or-
ganization , except to the extent that this right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment , as author-
ized in Section 8(a) (3) of the Act, as amended.
OIL CITY BRASS WORKS,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone No. Capitol
8-0611 , Extension 296, if they have any question concerning this notice or compli-
ance with its provisions.
Cushman Motor Delivery Company and Walter E. Flack
Local 710, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Walter E. Flack.
Cases Nos. 13-CA-4543 and 13-C. B-1140-°2. March 6, 1963
DECISION AND ORDER
On June 5,1962, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent Company and the Respondent Union had engaged in and
141 NLRB No. 10.