Portage-Manley Sand Co.

National Labor Relations Board - Board Decisions

Jul 31, 1951

95 N.L.R.B. 862 (N.L.R.B. 1951)

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLusIONS OF LAW
1. Radio Broadcast Technicians Local Union No. 1215, International Brother-
hood of Electrical Workers, A. F. L., is a labor organization within the meaning
of Section 2 (5) of the Act.
2. All full-time and part-time broadcast technicians and engineers of the Re-
spondent, excluding all other employees, announcers, office and clerical employees,
watchmen, guards, professional employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. Radio Broadcast Technicians Local Union No 121:,, International Brother-
hood of Electrical Workers, A. F. L., was on October 30, 1949, and at all times
thereafter has been the exclusive representative of all of the employees in the
above appropriate unit, within the meaning of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By discriminating in regard to the hire and tenure of employment of Robert
E. Dalton, thereby discouraging membership in the Radio Broadcast Techni-
cians Local Union No. 1215, International Brotherhood of Electrical Workers,
A. F. L., the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By refusing on December 10, 1949, and at all times thereafter, to bargain
collectively with Radio Broadcast Technicians Local Union No. 1215, Interna-
tional Brotherhood of Electrical Workers, A. F. L, as the exclusive representa-
tive of its employees in the aforesaid appropriate unit, the Respondent has
-engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
PORTAGE-MANLEY SAND COMPANY a'nd INTERNATIONAL ASSOCIATION
OF MACHINISTS . Case No. 18-CA-?V,. July 31, 1951
Decision and Order
On April 23, 1951, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in other unfair labor practices
alleged in the complaint. Thereafter, the Respondent filed exceptions
to the Intermediate Report, and a supporting brief.
95 NLRB No. 91.
PORTAGE-MANLEY SAND, COMPANY 863
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member .panel [Members Houston, Murdock, and
Styles].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Inter-
mediate Report , the Respondent 's exceptions and brief , and the entire
record in the case, and hereby adopts the findings , conclusions, and
.recommendations of the Trial Examiner , except .insofar as they are
inconsistent with the Decision and Order herein.
1. We agree with the Trial Examiner 's finding that by asking em-
ployee Spring about the scheduled union meeting and its purpose, and
by threatening to cut the . employees' hours of work in the event they
organized a union , the Respondent interfered with , restrained, and
coerced its employees in the exercise of rights guaranteed them in
Section 7 of the Act. The Trial Examiner 's finding is based upon his
crediting Spring's version of a conversation on April 29,. 1950, be-
tween Spring and Plant Manager Manley,' and discrediting Manley's
version. We find that the Trial Examiner properly resolved the issue
of credibility , and that the conversation between Spring and Manley
took place as related by Spring.'
2. Fred Spring. The Trial Examiner 's finding that Spring was
discharged because of his activities on behalf of the Union, in violation
of Section 8 (a) (3) of the Act, is amply supported by the record.
Thus Spring testified without contradiction . that on the Saturday
preceding the Monday of his discharge , Manley discussed with him
in detail the construction of a conveyor belt for the Respondent 's Essex
plant, a project of several months ' duration . No mention was made of
the impending discharge. The pay checks for Spring and for employee
Lasse, who was also discharged on Monday , were made out the day
before, on ' Sunday , an admittedly unusual procedure . Spring was;
discharged by Manley , who came to Spring 's home early Monday-
morning for the purpose of discharging him. Admittedly, Manley
did not give Spring, an employee of 11 years, any reason whatsoever
for his discharge , and as the Trial Examiner found, Manley's denial
that Spring asked , for an explanation is incredible . On the other hand,
Spring credibly testified , and his testimony was supported by that of
his wife, that he did ask Manley whether the Union was responsible
for his discharge , and that the latter did not deny but intimated that
' The Manley referred to in this Decision and Order is Tom Manley as distinguished from
his brothers Lyle, Dwight, and George Manley.
2In view of the fact that we accept Spring's rather than Manley 's version of his con=
versation, we shall not pass upon the question whether or not the conversation, as related
by Manley, would amount to a violation of Section 8 (a) (1) of the Act.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not agree with the discharge and that he thought his brothers
had done wrong in deciding to discharge Spring.
The Respondent's defenses to the prima facie case of the General
Counsel are unconvincing. The instances selected by the Respondent
to show that Spring did not get along with his fellow employees were
-isolated examples of interemployee friction extending over a period
of 5 years. There was no showing that any of these instances had
been reported to management. With the exception of one employee
who found Spring "sarcastic," none of the Respondent's or the Gen-
eral Counsel's witnesses testified that he could not get along with
Spring.
The contention that Spring was insubordinate was not borne out
in the record. Spring's supervisor, Horton, testified that while
Spring would complain about being ordered to work outside in bad
weather, he would generally do as he was told. Admittedly Horton
never complained to management about this alleged insubordination,-
Iior were there any instances of insubordination immediately preced-
ing Spring's discharge.
The Respondent also claims that it discharged Spring because the
construction work he was doing had been transferred to its Dousman,
Wisconsin, plant. Like the Trial Examiner, we doubt that the trans-
fer was made in good faith. We do not, however, pass on that point,
but find that, even if the construction work was transferred in good
faith, Spring's discharge was caused by his union activity and not
by, the transfer of his construction work. Admittedly, construction
work did not start at Dousman until over 21/2 months after Spring's
discharge. Moreover, only part of -Spring's work at the Portage
plant consisted of construction work for any of the Respondent's
plants; a large part of his work consisted of maintenance work on
existing machinery, which had to be performed in Portage. There-
after, the transfer of the work afforded no immediate reason for
discharging Spring on May 8.
Indeed one aspect of the transfer of the work further supports a
finding that Spring's discharge was discriminatorily motivated.
Clark, the man in charge of the construction work at Dousman, tes-
tified without contradiction that he "inherited" a construction crew
none of whom had any construction experience, and that eventually
he hired an additional member. Spring had worked at Dousman
before, and had had 11 years of experience with the Respondent.
Under these circumstances, we find that had there been insufficient
work for Spring at Portage, the Respondent would have offered him
an opportunity to work at Dousman,_but for his activities on behalf
of the Union.
PORTAGE-MANLEY SAND COMPANY 865
Accordingly, we find that the Respondent discharged Fred Spring
.because of his activities on behalf of the Union in violation of Section
8 (a) (3) and (1) of the Act.
Wilbert Lasse. We agree with the Trial Examiner's finding that
Lasse was also discharged by the Respondent because of his activities
on behalf of the Union. The Respondent claims that it laid off Lasse
because the temporary work for which he was hired had come to an
end. Lasse denies that he was hired for a temporary job, and claims
.that at the time ofthis hiring he was told that his job was permanent.
The Trial Examiner credits his version rather than Supervisor Hor-
ton's as to this matter. While Lasse's testimony showed that at times
he had a faulty memory, the record shows that Horton's was faulty
too, and there is nothing in the record to indicate that the Trial
Examiner, who had the opportunity to observe both witnesses, re-
solved the issue of credibility improperly. Moreover, even if Lasse
had been hired on a temporary basis, the record does not support the
Respondent's claim that at the time of Lasse's layoff there was no
work for him. Lasse, a common laborer, was Spring's helper and
was discharged at the same time as Spring. For the reasons set forth
in discussing Spring's discharge, we do not believe that the eventual
transfer of construction work to Dousman necessitated any layoffs at
the time of Spring's and Lasse's discharges.
Lasse as a common laborer could have been used in various opera-
tions at the 'Respondent's plant. Within 3 weeks of his discharge,
an additional common laborer was hired; by the middle of July, the
Respondent's entire working force was larger than at the time of
Lasse's layoff, and included five laborers hired since then. Despite
the fact that at the time of Lasse's discharge he had been promised
reinstatement as soon as work was available, and this promise had
been repeated when, several weeks after his layoff, he again requested
work,. no job was offered to him when these new employees were
hired. Moreover, at the time of Lasse's layoff, the Respondent re-
tained an employee with less seniority, despite the fact that the record
.shows that Lasse was a satisfactory, employee. When Lasse asked
Manley whether he had been laid.off because of his union activities,
the latter did not reply.
The Respondent claims that it did not know of Lasse's activity on
behalf of the Union. We find this claim without merit. Lasse was
the first employee to suggest organizing a union, and Spring's activi-
ties had been undertaken at Lasse's behest. Manley admitted that he
went to the plant on April 29, the day before the scheduled union
meeting, to find out what it was all about. To accomplish this pur-
pose, he interrogated Spring about the reasons for the employees'
.desire to organize a union. Because of this interrogation, and' Man-
866 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
° ley's announced determination to find out about, the Union, the close
working relationship between Spring and Lasse, and the small size
of the Respondent's plant, we find that the Respondent knew that
Lasse had been active on behalf of the Union. From the facts set
forth above, including the unsatisfactory explanations for Lasse's
layoff; and the failure to recall him when work was available, we
further find that the Respondent discharged Lasse because of these
activities, in violation of Section 8 (a) (3) and (1) of the Act.
No exceptions having been filed to the Trial Examiner's failure to
find that the Respondent violated Section 8 (a) (1) of the Act by
increasing the wages of its employees on April 30 or May 1, 1950,
-the Trial Examiner's finding in that respect is affirmed.
Order_
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Portage-Manley Sand Com-
pany, Portage, Wisconsin, its officers, agents, successors , and assigns,
shall
1. Cease and desist from :
(a) Discouraging membership in the International Association of.
Machinists by discriminatorily discharging any of its employees, or by
discriminating in any other manner in regard to their hire or tenure
of employment or any, term or condition of employment.
(b) Interrogating its employees concerning their union affiliation,
activities, and sympathies, and threatening economic reprisals against
its employees because of their union membership, affiliation, and
activity.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the International Association of
"Machinists or any other labor organization, to bargain collectivelgy
;through representatives of their own choosing, and to engage in con-
-certed activities for the purpose of collective bargaining or other
• mutual aid or protection, or to refrain from any or all of such activi-
ties except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Fred J. Spring and Wilbert.Lasse immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges.
.:'.'(b) Make whole Fred J. Spring and Wilbert Lasse in the manner
set forth in the section of the Intermediate Report attached hereto
PORTAGE-MANLEY SAND COMPANY 867
entitled "The Remedy" for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them.
_ (c) 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 amounts of back pay and the right
of rein statement. due under the terms of the Decision and Order.
(d) Post at its plant at Portage, Wisconsin, copies of the notice
attached to the Intermediate Report and marked "Appendix A.113
Copies of said notice, to be furnished by the Regional Director of the
Eighteenth Region, shall, after being duly signed by the Respondent
or its representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this. Decision and Order
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as, it alleges that
by granting a wage increase to its employees on April 30 or May 1,
1950, the Respondent violated Section 8 (a) (1) of the Act, be and it
hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed June 14, 1950; by the International Association of Ma-
chinists herein called the Union, the General Counsel of the National Labor
Relations Board herein called the General Counsel and the Board , respectively,
by the Regional Director for the Eighteenth Region ( Minneapolis , Minnesota),
issued his complaint dated November 13, 1950, against the Portage-Manley Sand
Company herein called the Respondent alleging that Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the National
Labor Relations Act as amended, 61 Stat. 136 , herein called the Act. Copies of
the complaint , the charge, and notices of hearing were duly served upon Re-
spondent and the Union. With respect to the unfair labor practices the com-
plaint as amended,' alleged in substance that (1) Respondent from on or about
3 This notice , however, shall be and it hereby is amended by striking from the first
paragraph thereof the words , "Recommendations of a Trial Examiner " and substituting
in lieu thereof the words , "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be inserted before the words,
"A Decision and Order ," the words , "A Decree of the United States Court of Appeals
Enforcing."
' At the close of the hearing over the objection of the Respondent , an amendment of the
complaint was allowed adding the allegation that on or about April 30 or May . 1, 1950,
Respondent gave a general wage increase in order to discourage concerted activity and
membership in the Union.
961974-52-vol. 95-56
868 DECISIONS . OF NATIONAL' LABOR RELATIONS BOARD
April 28, 1950, questioned its employees about their union beliefs, activities, and
support, and warned its employees that ' the workweek would be reduced to
40 hours if the Union were successful in organizing its employees ; (2) on or
about May 8, 1950, discharged Fred J. Spring and Wilbert Lasse and has since
failed and refused to reemploy them for the reason that they joined and assisted
the Union and engaged in concerted activities with other employees for the
purposes of collective bargaining and for other mutual aid and protection.
In its answer 3 as amended,3 Respondent denied that it had engaged in or was
engaging in any of the alleged unfair labor practices. The answer further
affirmatively alleged that (1) Lasse's employment was of a temporary nature,
of which fact he had been informed ; that Respondent had no knowledge of
Lasse's union activities at the time of his discharge ; and that the duties for
which he had been hired had been concluded, no one being hired to take his
place ; and (2) that Spring was discharged for insubordination, failure to execute
orders, fighting with fellow employees, committing acts of violence to fellow
employees, and refusing to work at the time and location specified by the Em-
ployer ; and further that the work which had been performed by Spring was
transferred to another plant, and that in view of Spring's deficiencies it was
determined that he would not be a suitable man either to superintend or work
with the program as revised.
Pursuant to notices a hearing was held at Portage, Wisconsin, January 8 and
9, 1950, before Eugene E. Dixon, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. All parties were represented by counsel, partici-
pated in the hearing, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
The General Counsel's motion to conform the pleadings to the proof in matters
not of substance was granted at the end of the hearing without objection.
Although given the opportunity, no one argued the issues orally on the record
but briefs were duly filed by both the Respondent and the General Counsel.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
- I. THE BUSINESS OF THE RESPONDENT
Portage-Manley Sand Company is a corporation organized under the laws of
the State of Illinois, having its principal office located at Rockton, Illinois, and
operating plants located at Byron and Essex, Illinois ; Dune Park and Michigan
City, Indiana ; Herman, Missouri ; Dousman, Wisconsin ; and a plant located at
Portage, Wisconsin. At the Portage plant, the Company is engaged in the mining
of industrial sand. During the course of its business, it annually mines industrial
sand valued in excess of $500,000, of which amount 66 percent is shipped to points
outside the State of Wisconsin.
I find that Respondent is engaged in commerce within the meaning of the Act.
3 Respondent 's answer having been filed with the Regional Director after the time had
expired for filing the answer as provided in the Board's Rules and Regulations, Series 5,
Section 203.20 was presented to the Trial Examiner with the motion for leave to file
which had been made to the Regional Director. Over objection of the General Counsel,
Respondent's motion was granted and the answer received as part of the record.
3 At the time the above amendment to the complaint was made, Respondent asked leave
to file a written answer thereto for the purpose of setting forth wage increases made in
other of the Respondent's plants. No such answer has been received. However, in view
of discussion on the record between Respondent's counsel and counsel for the General
Counsel and the Trial Examiner , it is deemed that the amended allegation in the complaint
is denied.
PORTAGE -'MANLEY SAND COMPANY 869
II. THE ORGANIZATION INVOLVED
International Association of Machinists is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Interference, Restraint, and Coercion
As a result of their observation and knowledge of the unionization of the
'Columbia County highway employees in the spring of 1950, Respondent's em-
ployees became interested in establishing their own union 4 At noontimes and
after work Lasse discussed the matter with various employees and, having been
secretary of the Dane County 6 Highway Employees Union, his experiences and
activities there were disclosed to the others in these discussions . Finally it
-was agreed, apparently on the suggestion of Lasse, that, since Spring's duties
took him to Madison quite often, on his next trip to Madison he should contact
-the union officials at the Wisconsin foundry for assistance in getting . a union
started. About April 20, Spring talked to the union steward at the Wisconsin
foundry in Madison, informing him of the situation at Portage. On Friday
evening, April 28, a union representative called Spring and arranged for a
meeting of the employees to be held the following Sunday morning, leaving it
-up to Spring, however, to arrange for a hall in case of rain. Spring drove over
to employee Emory Tucker's home that night to inform him of the developments.
The next morning Spring 'informed several employees about the impending
meeting. Lasse also discussed it with several employees. In the course of
these discussions the need for a hall was mentioned apparently in a group of
employees in which both Lasse and Spring were present. Clayton Dumke stated
that he knew the janitor of the Veterans' Hall in Portage and that through
him they might arrange to hold their meeting there. Lasse suggested that Dumke
investigate the possibility during the lunch hour. Dumke did so and reported
that the use of the Veterans' Hall for that Sunday morning was arranged.
That afternoon about 4 o'clock, Respondent's general manager, Tom Manley,
came into the shop where Spring and Lasse were repairing screens and asked
Spring to step outside. According to Lasse's testimony, as Spring and Manley
went out the door he heard Manley mention something about a union. According
to Spring's testimony, Manley asked : "Have you located a hall for your union
meeting?" to which Spring replied that he had nothing to do with the hall.
Manley further asked why the employees "wanted to go union" and queried
Spring as to whether the reason was dissatisfaction with wages, hours, or some-
thing else. Spring replied that he had not "heard much, the only thing is we'd
organized in order to stop some of that language that was used by our foreman."
Manley stated that if the employees wanted to "go union" Respondent would
not stop them but that they would be'cut down to a "forty-hour week and put
on a third shift." ° '
Manley's version of this incident was that he stated to Spring "I understand
that there is to be a meeting and what is it all about?" Spring replied, "Some
of the men want to get rid of Horton, some men would like more money, and
* The county highway employees - had been engaged in some stripping operations at
Respondent's plant at this time.
° The record mistakenly shows it as Dean County . There is no such county in Wiscon-
sin. Dane County, however, is contiguous to Columbia County, of which Portage is the
county seat,
° At this time the plant was operating 0 to 7 days a week with a 10-hour day shift and
an 11-hour night shift.
870 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD•
some would like shorter' liours " Manley then' asked : "Would the men like a
forty-hour week?" to which Spring did not reply..
Even if Manley's version of this incident were to be credited, it is clear that
his request for information about a meeting of his employees, whether or not he
mentioned the word union, was interrogation about their concerted activities, was
so understood by them, and was intended to have and, as will appear, did have
the same coercive and restraining effect on the employees as if the Union had
been specifically mentioned? It might even be said that in its context the question.
to Spring by Manley, "Would the men like a forty-hour week?" constituted a
threat of economic reprisal by Respondent should the employees carry out their
apparent purpose of banding together for concerted action with respect to the
terms and conditions of their employment.
But Manley's version is less worthy of credit than Spring's which is somewhat
corroborated by Lasse. The record amply demonstrates the contradictory and
unreliable nature of Manley's testimony. Thus, he testified on cross-examination
that he told Spring that he was "surprised" at the news of the meeting. Then
he denied making that statement. He also testified unconvincingly that he did
not recall who informed him of the meeting, saying that he heard it on the street
in Portage.8 He further denied that he had received any information about who
was arranging the meeting. As a partial explanation as to why he then went
to Spring for information, he testified that he drove to the plant and Spring
"happened to come out of the building" as he drove up, as if to leave the impres-
sion that his meeting. with Spring was accidental., He then admitted that his
purpose in driving to the plant was to ask. Spring about the meeting but he later
testified that he did not "know as it was necessarily Mr. Spring" he went to see.
By contrast, Spring's testimony on this incident was straightforward, plausible,
and unshaken. I credit Spring.
Accordingly, I find that by asking Spring about the meeting and what motivated
it, Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed them in Section 7 of the Act.
I also find that by informing Spring that in the event the employees organized
a union , the operations would be put on a three-shift, 40=hour basis, Respondent
exceeded the bonds of permissible comment and, in like manner , infringed upon
the rights of its employees a
That this conduct on the part of Respondent was no innocuous incident is
apparent from the result it had on the employees. When Spring came into the
shop after his discussion with Manley, he told Lasse what Manley had said. Both
Spring and Lasse thereupon informed other employees of the incident. Just
before quitting time Tucker came to Spring and suggested that rather than-go
on a 40-hour week they had better forget the Union'and stay on a 60-hour basis.
Up to this time there had been considerable sentiment for a union. But when
7 Jasper National Mattress Company, 89 . NLRB 75.
8 In this connection Manley's testimony implied that he got the information more or less
as a matter of rumor or small -town gossip , yet he further testified that he learned of the
meeting the night before. It will be recalled that it was only the night before that Spring
had received word from the union representative in Madison of his availability for a
meeting, and that Spring had informed only one employee of this fact. In view of Manley's
testimony in effect that he assumed it to be his responsibility to investigate any activity
around the plant , and his great surprise at learning of the meeting , it is unexplainable
why, if he knew of the meeting the .night before, he waited until the close of the
following day to investigate it. .
e Brown and Root, Inc., 86 NLRB 520. It appears Respondent is subject to the Fair
Labor Standards Act and thus is liable for time and one-half for hours worked in excess
of 40 in any one week. •
6
PORTAGE-MANLEY SAND, COMPANY 871
the union official came to Portage for the scheduled meeting the following Sunday
none of the employees appeared.
As amended at the hearing the, complaint alleged that. on April 30 or on May
1, 1950, Respondent granted a general wage increase for the purpose of dis-
couraging the concerted activity or union membership of its employees. The
evidence shows that on April 30, 1950, Respondent granted a general wage
increase to the Portage employees of 10 cents an hour. It further appears that
in its operations Respondent granted other general wage increases during the
year 1950 as follows : At Portage on July 23 and September 19, 1950; at its
Indiana plants in February and October 1950; at Essex in September 1950; and
the Dousman in June, September, and December 1950. Geng's testimony about
these increases was that early in the spring of 1950 it was decided to raise wages
.and prices "before everything was frozen."
There is no testimony or evidence regarding the circumstances or details sur-
rounding the April 30 increase at Portage. While its correlation with the
appearance of the Union at Portage is suspicious, on this record I find that the
allegation is not supported by-the preponderance of the evidence. Accordingly,
I find that Respondent did not grant the increase of April 30 for the purpose of
discouraging the concerted or union activity of its employees.
The Discharge of Fred J. Spring
Spring was employed as a common laborer by Respondent's Tom Manley at
the Dousman, Wisconsin, plant in 1939, at a starting wage of 40 cents an hour.
After about 2 years at Dousman, during which he spent several weeks on detail
to the Herman, Missouri, plant, installing screens and doing maintenance work
there, he was transferred to the Byron, Illinois, plant. There he spent 9 months
in the construction and directing the operation of a new plant. He was then
transferred to Portage where he had charge.of the night operations for about
2 months prior to his being assigned to assist George Manley in construction
and maintenance work. When George Manley left in 1945, Spring took his place
and remained on that work until his discharge on May 8, 1950. At this time he
was receiving $1.25 an hour.
Although up to the middle of 1950 the necessary construction, fabrication, and
installation work for each plant was done on an individual plant basis, being
handled by the personnel of the particular plant involved, Spring was sometimes
called upon to participate in such work at the other plants, at times taking a
crew with him." During his last 2 years with Respondent, the total time so
spent did not exceed more than 6 to 10 weeks, most of his time being devoted
strictly to functions involving the Portage Plant.
At about 6: 30 a. m. on Monday May 8, Manley called on Spring at his home
and found him in the back yard putting up a clothesline. According to Spring's
testimony, as substantially corroborated by Mrs. Spring in hers,u after mutual
"good mornings" Manley said he had something for Spring and handed him an
envelope containing a check for his wages in full, plus 6 weeks in advance,
and another check for 2 weeks' vacation. • Spring said, "I thank you. I supposed
the union done this." Manley replied, "Well that's the way Lyle, 'Dwight, and
10 Par the most part this involved taking one man with him for no more than a day or
two at a time, the Herman, Missouri, job, apparently being the only exception.
11 Mrs. Spring testified that she happened to be coming downstairs when Manley was
talking to Spring in the back yard and overheard the substance of the conversation from
an open window at the landing.
872 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
George wanted it, but I kiind of think they are doing Wrong.,, 1' Then, upon
Manley's request, Spring gave Manley keys to the plant from his key ring and
Manley left.
On direct examination, Manley, while admitting going to Spring's house that
Monday morning before 7 o'clock and giving him the two checks, denied that
Spring made an allusion to the Union, or that he replied "that's the way
Lyle, Dwight, and George wanted it," and that he thought they were doing wrong.
Except for this denial, Manley's direct -testimony does not go into detail as to
this conversation. On dross-examination, however, Manley testified as follows :
[I] Walked around in the yard with the checks in my hand. I said,
"Fred, I have two checks for you." And Fred said, " So, I'm all through."
And I said, "That is correct." Well, that was all. I don't know if there
was anything else to it or not.
He further stated on cross-examination, however, that he told Spring that ""it
was the opinion of the head office that that should be done," and that "Lyle
and Dwight are in favor of doing this." But he denied telling Spring that he
thought Lyle and Dwight were wrong,'or telling Spring anything similar to that.
Manley was then asked, "Did you think that they were wrong?" He replied :
"Well, after the accumulation of various events and so forth, I thought so, yes."
On redirect examination, Manley changed his testimony, stating he' had not
meant to give this last answer and testified that he thought the discharge of
Spring was "all Tight."
I conclude and find from the foregoing, particularly when considered in the
light of the previous analysis of Manley's credibility, that Spring's version of
his discharge is more nearly in accord with the truth. I credit Spring's testimony.
A day or two after his discharge, Spring returned to the plant and told Walter
.Halverson, an office employee, that he would like a letter of recommendation.
Halverson said he would see Manley about it, but that Manley was not, there
at the time. Spring told Halverson to send, him the recommendation when he
obtained it. Halverson referred the question to Karl Geng, the secretary-
treasurer and member of the board of directors of the Company, at the home
office. Geng told Halverson that he would handle it. No recommendation was
ever given to Spring because, in Geng's words, "we certainly didn't feel after
all we had gone through with him that we could give him a letter of recommen-
dation to another company." - •
It is conceded that Spring was never given any explanation for his discharge,
nor was Spring's credited testimony that he had never received any complaint
about his work from General Manager Manley,. or from General Superintendent
Elmer Horton, denied.
Respondent's Contentions
Respondent's defense regarding Spring's discharge in substance is based on
two'premises': (1) That the work Spring was performing at Portage was being
transferred to the Dousman plant, and (2) by reason of Spring's temperament,
his inability to get along with his fellow employees, and his failure and refusal
to execute orders, it was against the best interests of the Company to consider
his transfer to Dousman, either in a supervisory or minor capacity. Respondent
further contends that it was without knowledge of Spring's union activity at
the time he was discharged.
22 Lyle and Dwight Manley are both directors of the Respondent . Lyle also holds the
position of president . George Manley was once connected with the Portage plant but
left in 1945. Apparently he was never financially interested in Respondent.
PORTAGE-MANLEY SAND COMPANY 873
Manley's interrogation of Spring regarding the union activities of the em-
ployees and the threat to Spring to reduce the workweek to 40 hours, as found
above, clearly nullifies the latter contention.
The circumstances regarding the discontinuance of the fabrication and con-
struction work at Portage and the transfer of those functions to Dousman were
described in Geng's testimony as follows :
On December 29, 1949, a director's meeting was held to evaluate the coming year
and discuss the capital expenditures involved in the sizeable construction pro-
gram that was contemplated. Late• in March of 1950, another meeting of the
board of directors was held in which it was decided that the best way to imple-
ment and carry out the construction program was to set up a mixing plant at the
Byron, Illinois, location, and to discontinue sand production at the Dousman
plant and turn it into a construction and fabricating shop with a minimum crew
of about six men. Thus it was contemplated that no further fabrication or con-
struction would be done at any individual plant, but that those functions would
be centralized in the Dousman plant."
The question of who was to be put- in charge of the new operation at Dousman
arose. Dwight Manley suggested that Spring would be the logical man due to
his long service with the Company. Tom Manley pointed out that "they had had
considerable difficulty with" Spring and was of the opinion that he would not be
able to get the work out and was not the kind of man who could act as superin-
tendent. Lyle Manley added a comment that Spring "apparently wasn't the
most stable man in the world" in view of an incident that had occurred "a couple
of years" prior to that time." It was then decided that an effort should be made
to hire Allan Clark, a former supervisory employee, to take charge of the Dous-
man operation, particularly in view of his buying experience and successful
record operating a crew which Spring, according to Geng's testimony, did not
have.
Although Geng first testified that at this time it was decided that the functions
being performed by Spring at Portage were to be discontinued, it is significant
that there is no indication in Geng's testimony that Spring's discharge was dis-
cussed or even contemplated in the above meeting. On the contrary, Geng testi-
fied that the decision to discharge Spring was made "just 'about the last of
April" and that "the final decision was left in the hands of Lyle Manley." " The
actual decision apparently was made on May 6, since it was late Saturday after-
noon, May 6, that Dwight Manley informed Geng of the decision to discharge
Spring and instructed him to draft the final checks for Spring, and have Horton
come down to Rockton to pick them up 1° The reason given by Geng in his:
testimony for not considering Spring in a subordinate position at Dousman was
that Respondent did not feel "it was possible to change him over into a common
labor classification, didn't think it would be fair to the man to do it, so that
13 The record is not clear just what construction involved, and it is obvious that in its:
ordinary sense construction could not be separated from the individual locations. How-
ever, it would appear that since fabrication and installation were to be handled for alit
plants by the. Dousman crew, it is apparent that Geng meant that all construction work.
also was to be so handled.
11 This incident involved a trip from Portage to Rockton, Illinois, by Spring and three
other employees for the purpose of prevailing upon Respondent to discharge Elmer Horton,
the Portage plant superintendent, because of the latter's swearing at employees. Whether
or not Spring acted as spokesman is not clear, but there can be no doubt that all four
employees acted as a group in this matter.
11 Tom Manley testified that the decision to discharge Spring was made at a meeting
of the board of directors sometime in March.
19 Dwight Manley had been away for a period of 2 or 3 weeks prior to Spring's discharge
and had just returned to Rockton on Saturday afternoon, May 6.
874 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
he either had to go on up or there wasn't any other spot in the minds of the top
management." -
With respect to the Dousman situation, Allan Clark testified that on April 11,
Tom Manley phoned him and told him the- "Dousman plant was a mess, they
couldn't get any sand out of it, but they. had a lot of orders and they wanted to
get the orders filled up because they were going to close down the plant, that
they did intend to make a fabricating plant out of it." Clark took charge of the,
plant immediately after his telephone conversation with Manley. From that
time until June 19, when the last car of sand was shipped, the Dousman plant
continued to produce sand, and it was not until the latter date that preparations.
were begun to change over to fabrication and construction work exclusively. In
July, Respondent started building machinery at Dousman for the Byron plant,
and on July 17, the first item, a conveyor, was shipped to Byron. At the time
Clark took over the Dousman plant. he "inherited" a crew of five men, one of
whom he later displaced with a new man. This crew was a "sand crew" and
had no previous special experience with fabrication or construction.
Although there is no direct evidence to refute the existence of Respondent's
intention of ultimately centering all fabrication and construction in the Dousman
plant, and although the record establishes that the intention was carried out,
there are factors, nevertheless, that raise doubt as to the good faith of Respond-
ent's actions as connected with the Dousman situation.
. Just how crystallized the decision was to discontinue production and turn the
Dousman plant into a fabrication and construction plant in the March director's
meeting or prior to the union activities at the Portage plant, is a question that
first arises, since it appears from Geng's subsequent testimony that either at that.
time or later, there apparently was still some doubt about the matter."' Further-
wore, although Clark testified that he was told, when he was hired, that Re-
spondent "did intend" to change Dousman into a fabricating plant, it is clear
that for the first 2Y2 months at Dousman he was concerned solely with sand
production and apparently with straightening out the "mess" at Dousman.
Moreover, although it appears that Spring's dismissal was contingent upon the
transfer of his functions to Dousman, it was not until about a month and a
half after Spring's discharge that the Dousman plant took over and began
exercising those functions. When it is considered that the Portage plant was
the largest of Respondent's plants and that except for the Byron changes, the
,only substantial construction revealed in the record to be under way as part
of the contemplated "sizeable construction program" was the construction being
done at Portage, the decision to centralize such functions in the Dousman plant,
viewed in the light of the foregoing considerations, seems somewhat odd. Fur-
thermore, it is significant that unfair labor practice charges had been served
on Respondent before sand production was discontinued at Dousman.'s
In any event, since the logic of Respondent's position requires that both
premises thereof be established if its defense is to prevail, the proof as to Spring's
deficiency must be sufficiently convincing to overcome General Counsel's prima
facie case. Respondent's evidence does not convince me.
In addition to the abolishment of Spring's job, Respondent alleges in its
answer that Spring was discharged for (1) insubordination, (2) failure to
execute orders, (3) refusing to work at the time and location specified by the
17 After having testified that the change had been definitely decided upon in the March
meeting, Geng later testified in reference either to that meeting or one in April, that it was
decided that if all construction work was to be done at Dousman and if Clark could be
hired, it would be necessary to discharge Spring.
Is The return receipt shows delivery to Respondent at Portage on June 16, 1950.
PORTAGE-MANLEY SAND, COMPANY 876
Employer, (4) fighting with fellow employees, and (5) commiting acts of,vio-
lence to fellow employees. The record contains no evidence in support of alle-
gations (4) and (5). The evidence in support of the remaining allegations
'either:as an independent reason for_ Spring's discharge-or--in conjunction with.
the transfer of his functions to Dousman is vague,. conclusional, and otherwise
inadequate to sustain Respondent's contention.
Thus, with respect to Spring's refusal to work at the time and location specified
by the Employer, Horton testified that "sometimes it was a little rough to get
[Spring] at it, but he did it," and "lots of times [Spring] kicked on going out
to help fix breakdowns because the weather was rough.". However, Horton also
testified that Spring did not flatly refuse to perform tasks but that "lots of
times" he would try to get out of doing them explaining at one point that "as a
rule" Spring would go out as ordered but that sometimes he would comment that
he had enough to.eat without going out in that weather. Horton admitted, on
cross-examination, that other employees also complained when ordered to work
outside. Nowhere in Horton's testimony is there any specification as to the time
or place where such incidents occurred. Horton further testified that "there
was times" when employees came to him to ask for assignments other than
working with Spring because the latter "was disagreeable with them." But
Horton further testified that although there may have been employees with
specific complaints against Spring, he was unable to recall the names or dates,
pertinent thereto.
While Spring admitted on the witness stand that during the last couple of
years of his employment he had on occasion refused to work in the rain as ordered
by Horton, he explained that he did so only when there was other work to perform
inside and when the outside work was not urgent.
It is apparent from the record that the feeling between Horton and Spring
was not cordial and that Respondent was long aware of this since both had
been questioned by management a long time previously regarding an'altercation
they had.. While he testified about engaging in arguments with Spring, Horton
admitted that Spring was not the only employee with whom he had been in-
volved in arguments. Moreover, Horton further admitted that he never dis-
ciplined Spring for any conduct on his part nor did he ever threaten to do so.
Although asked both on cross- and redirect. examination whether or not prior to
Spring's discharge he had ever discussed Spring's shortcomings with any repre-
sentative of management, Horton testified that he did not remember 1B
In a similar vein Edward Frank Houk, plant foreman, testified that he would
tell Spring to do something and that although Spring would do it, "he would
take, his good-natured time going about it"; that in February 1950 he asked
Spring about a screen that was being constructed and that Spring indicated "he
thought it. was a bunch of nonsense." Further describing the incident, Houk
testified that Spring "didn't say too much, but he kept at it slowly." On one
occasion shortly after his return to Respondent's employment in January 1950,
according to Houk's testimony, he heard Spring say he was going to the office
to find out who was boss around there.20
Tom Manley's testimony about Spring was cloaked with the same vagueness
and generality as was that of others of Respondent's witnesses. He testified
110 Geng testified that Horton had discussed Spring's shortcomings with Geng but only
conversationally and not as an official complaint looking toward disciplinary action which
was never mentioned in their conversations nor called to the attention of Spring.
20 It does not appear from Houk's testimony to whom Spring made the remark. Spring
credibly testified without contradiction that he was never told what Houk 's authority was
but that he knew that Houk was acting in a supervisory capacity.
876 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
that "it was difficult to get the men to work with" Spring ; that. "after they
had been with him for a few weeks they wanted to be transferred to some other
kind of work" ; that because of Spring's dissatisfaction with the men manage-
ment supplied to him he was finally authorized to pick his own men to. help him.
Manley at first testified that this authority was granted during Spring's last
year of employment, but on cross-examination stated that it was during the
last 2 years of his employment.
Manley also testified that Spring was continually making derogatory remarks
about Horton's methods or ideas, citing as an example Spring's suggestions
regarding the construction of a conveyor in the spring of 1949 and his criticism
of the manner in which Horton was having it done. On cross-examination
Manley's testimony reveals that his recollection was not clear as to who was
doing the criticizing and that it may have been Horton who was passing judg-
ment on .the job.
There was considerable testimony regarding Spring's alleged propensity for
taking tools from other employees. In support of the generalities appearing in
.Respondent' evidence in this respect, two specific incidents were brought to
light-one in the spring of 1949 involving a pipe wrench which employee Robert
Gray could not find when he went to collect his tools after completing some paint-
ing ; the other involving Gray's request to Spring some 5 years previously for a
maul. Gray reported the missing pipe wrench to Manley who asked if Spring
had not returned it. Receiving a negative reply, Manley told Gray he would
be given another wrench. Gray did not see Spring take the wrench. Regarding
the maul, according to Gray's testimony, Gray had asked Spring for a maul and
.Spring replied "Where did you get that?" I don't like this idea of your scatter-
ing my tools around in the sand." Spring's testimony about the maul incident
was that Gray had asked him for a maul and he said to Gray "There is one there,
and don't forget where you got it." Neither of these incidents is particularly
relevant to the issues as framed by the pleadings. " At most they show, as indi-
-cated in the words of Dumke, that Spring "was very particular about his tools."
If they are of any significance to the case, it is to show how Respondent has
.attempted to magnify trivialities in Spring's several years of employment in
-order to justify his discharge zl
The testimony of Respondent's witnesses Dumke and Gray regarding Spring
(except for the pipe wrench incident, the taking of which Manley testified he
-witnessed), while being subject to the same deficiencies as is the rest of Re-
:spondent's case against Spring, is otherwise valueless for the reason that neither
one ever conferred with nor complained to management regarding Spring prior
to his discharge.
Adding his bit to the generalization offered by Respondent about Spring,
•Geng testified that Spring's inability to get along with fellow employees was
apparent to him by reason of Spring's having "a new helper almost every time
.you turned around." On its face Geng's testimony is subject to question since
it is clear that in Geng's position he had no direct connection with the Portage
-operations and as appears from his testimony and the colloquy between counsel
on the record, he was not familiar with the duties of the employees at Portage.
In any event, his conclusion is impugned by the record. Lasse worked steadily
-as Spring's helper for substantially his entire half year of employment and prior
to Lasse, Demke worked with Spring the "greater share" of his 17 months'
employment with Respondent.
21 Manley testified that it was not only Spring's activities during the last year of his
employment that figured in his discharge , but that the consideration "spread over some
time" longer than a year.
PORTAGE-MAiNLEY SAND COMPANY 877
As indicated in Heider Manufacturing Company, 91, NLRB 1185, indefinite,
vague testimony such as the foregoing is of little probative value. Consequently
Respondent's evidence against, Spring, viewed in, the ,light of Manley's illegal
conduct toward him, would hardly constitute a valid defense to his discharge.
This evidence, when added to the numerous well-recognized. indicia of discrimina-
tion,present in this record as to the circumstances of Spring's employment and
discharge, lead to the conclusion that Spring was discharged for his union
activity and not for the reasons advanced by Respondent. The fact that Spring
was never criticized, disciplined, or warnedo regarding his alleged faults, the
precipitous and peculiar nature of his discharge occurring at his home so soon
after the appearance of the Union on the scene,' and the lack of any explanation
to him for the discharge,' all support this conclusion. In this connection,
Spring's credited testimony as to Manley's remark to him on the day he was
discharged when Spring suggested that his union activity was probably the cause
of Respondent's action, while not a clear-cut admission, certainly has significance
in view of Manley's failure to deny that such was the fact.
In addition to the foregoing, it appears that on Saturday afternoon, May 6,
Manley and Spring had had a conversation about some work that Spring had
just performed for Respondent at the Essex, Illinois, plant. At this time Man-
ley informed Spring that it would be necessary for him to build another conveyor
and install it at Essex as soon as material was available. Together they
checked the material that they would require. Before the start of the next,
-working day, Spring was summarily discharged.
While Spring may have had idiosyncrasies or faults, they do not appear from
this record to have been any more serious than could have been established
about any average employee over a 10-year period. The only damaging fact
vaguely established against Spring was his refusal on occasion to leave inside
work for an outside assignment in bad weather. How many such occasions
there were or when they occurred is not revealed. The only clue is Spring's
own testimony that they occurred during the last couple of years 'of his employ-
ment. That they were not numerous is apparent from Horton's testimony that
usually Spring carried out his orders. There is, nog .indication that such an
incident precipitated Spring's discharge and since no complaint or warning was
ever voiced to him by management about it, it would appear that it became
important in Respondent's viewpoint only in retrospect and as a defensive
rationalization.
There is also a basic inconsistency in Respondent's expressed feelings about
.Spring. On the one hand there is Geng's implication that Spring's continued
employment was not considered infeasible except as it involved his promotion
to the direction of the Dousman operations and that in fairness to Spring he
had to advance in the status of his employment or go out. On the other hand,
Respondent would not give Spring a letter of recommendation ; yet, being un-
worthy of a recommendation, Respondent saw fit to give him a substantial termi-
nation payment.
12 Jasper National Mattress Company, 89 NLRB 75 ; J. C. Lewis Motor Company, ,Inc.,
80 NLRB 1134.
za Montgomery Ward d Co., Inc., 93 NLRB 640; The Red Rock Company, 84 NLRB 521 ;
Quest-Shon Mark Brassiere Co., 80 NLRB 1149, enfd. 185 F. 2d 285 (C. A. 2) Nov. 9, 1950.
To what extent Lyle Manley dominated the managerial function is not revealed. However,
being president of the Company it is significant that Spring's discharge was decided upon
by Lyle Manley almost immediately upon his return to the business after an absence
during which the Union made its appearance at Portage.
2'Heider Manufacturing Company, supra ; McKinney Lumber Company, Inc., 82 NLRB
38; Atlantic Company, 79 NLRB 820.
878 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
Even if I were to accept the change made in the Dousman operations as bona
fide, and not having been effected for the purpose of establishing a defense
(which I do not do), in view, of the foregoing I conclude and find that Respond-
ent's defenses as to Spring's discharge are without merit. I further find that
Respondent discharged Spring because of his union activity thereby discrimi-
nating against him in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
The Discharge of Wilbert Lasse
Lasse was hired at the Portage plant on November 7, 1949, by Respondent's
Superintendent Elmer Horton, at a starting rate of 75 cents an hour. After 3 or
4 days of cleaning railroad cars he was assigned to construction and maintenance
and remained in that work as Spring's helper until his discharge on May 7, 1950.
During the course of his employment, Lasse received two increases, an indi-
vidual increase on April 1, 1950, of 10 cents an hour, and an additional 10 cents
an hour as the result of a general increase granted all hourly paid employees at
the Portage plant on or about April 30, 1950.26
With respect to the first increase, Lasse testified that=about 2% weeks before
his discharge Horton informed him that he was receiving a 5-cent raise which
Lasse had asked him about previously.. It was Lasse's further testimony that
right after he had been hired Horton had promised him "if your work is satis-
factory and everything, why, you will get a raise." Horton testified that during
his first week of employment, Lasse asked for a raise and Horton told him he
would have to get him broken into the job before he could raise him. Although
he testified that he did not remember making the promise attributed to him, by
Lasso, Horton did not deny it. To the extent the foregoing testimony is con-
flicting, I credit Lasse.
There is also a conflict between the testimony as to what representations re-
garding the duration of his employment were made by Horton to Lasse at the
time lie was hired. Lasse's version was that when he first talked to Horton about
a job he told Horton that he was looking for a steady job and that Horton replied,
"That's what we want, somebody that is steady and we can depend on." A few
days later, according to Lasse's direct testimony, when he reported for work pur-
suant to a telephone call from Horton, the latter told him, "You will have a
steady job if you work out all right." On cross-examination, Lasse testified that
Horton told him that if he "was a steady man and wasn 't coming to work half
crocked all the time like some of them were," he would have a steady job.
These statements were denied by Horton. His version was that in the initial "
interview he told Lasse that if he found he could use him for the winter he would
get word to Lasse, and that when Lasse did report to work he was informed by
Horton that the job was "for. the winter and cleaning cars."
In the resolution of this conflict I again credit Lasse's version in preference to
Horton's. The vague, indefinite, conclusional quality of Horton' s testimony has
already been noted. In addition to these qualities, Horton's memory often failed
him, sometimes on points that under the circumstances herein one would expect
him to remember. Thus, on cross-examination, having been asked if he had
anything to do with the decision to discharge Spring, he first answered with the
statement that he thought "that was the wishes of headquarters." When the
question was repeated, he answered, "I don't remember." Lasse's testimony, in
contrast, was definite and detailed and except for his dogmatic position on the
26 In his testimony, Lasse stubbornly insisted that be had been granted only one wage .
Increase of 5 cents on hour during his employment with Respondent which, he testified,
was given him about 21h weeks before his discharge. It is obvious that Lasse was in error
in this respect, but I do not attribute any dishonest motive to him thereby.
0
PORTAGE-MANLEY SAND COMPANY 879
amount of his wage increases which in itself, bespeaks of mistaken conviction
rather than ulterior motive, his testimony was unshaken. In any event, to have
promised Lasse a wage increase a few days after he started working for Re-
spondent as found herein, would hardly be expected in connection with a tem-
porary job.
With these preliminary findings in mind, we turn to an examination of the
-circumstances of Lasse's discharge and Respondent's defense thereto. .
About 3: 30 Sunday afternoon, May 8, according to Lasse's credited testimony,
Horton drove up to his home. Lasse asked him inside.. Horton said he could
not come in but that he bad Lasse's last check for him saying, "Oh, I just give you
.a raise and now I got to lay you off because we haven't got enough work." Horton
.added, however, that as soon as the volume of work increased he would reinstate
.Lasse.2' The next day, Lasse returned to the plant for his clothes. There he
met Horton and asked him for a letter of recommendation. Horton took him
into the office and asked Manley to write him a letter of recommendation. While
Manley was writing it, Lasse asked him if his discharge had anything to do with
the Union. Manley stopped writing for a moment but did not answer Lasse's
-question. Several weeks later, Lasse went back to the plant to see if there was
any opening there. It was indicated that there was not, but Horton again prom-
ised to put him on when something became available. ,
The record shows that at least five people were hired on various dates after
the discharge of Lasse "-all apparently at the common labor rate. Horton ad-
mitted that although he knew that Lasse was seeking reemployment, he did not
offer any of these jobs to him. In explanation he testified that Lasse was not
qualified to perform the,job Hall was hired for, and that although Hurd had never
worked for him, he felt that Lasse was not as good a man for the job Hurd was
hired for because Lasse did not want'to work nights. However, it appears that
Hurd was not hired for night work but for day work.
Geng testified that Lasse's discharge was not decided upon or considered
by the Rockton officials but that Horton made the decision to discharge Lasse
at the time Horton learned of Spring's discharge when he went to Rockton to
pick up Spring's checks. Asked if there had been any discussion at that time
between him and Horton about Lasse's discharge, Geng testified "oh, there may
have been some discussion." Further questioning of Geng brought out that
when Horton got Spring's check, he told Geng "that as long as that, was Lyle
Manley's decision, that it would be necessary for [Geng] to make a check for
Lasse, too, because he was Spring's helper and there would no longer be any
need to have him there."
Nowhere in Horton's testimony is there any corroboration of Geng's testimony.
If anything the implication of Horton's testimony would seem to contradict
Geng. Thus Horton, in answer to the General Counsel's question, "did you dis-
charge Mr. Lasse on May 7 or did you lay him off?" Horton answered, "well,
when he was laid off, I did not-I went down and got his check...."
Respondent's defense to Lasse's ' discharge is that it had no knowledge of
his union activity prior to the discharge, that Lasse had been hired on a tem-
porary basis and was so informed when he was hired, and that the duties for
which he had been hired had been concluded.
Although there is no direct evidence to show that Respondent was aware of
Lasse's union activity prior to his discharge, it is clear that Respondent was
aware of Spring's. From the unerring way in which Manley "sought out and
ze Although Horton's version of this incident is somewhat different , he did not deny the
remarks attributed to him by Lasse.
27 Irving Hall, Stokes, Gerald Galvin, George N. Mantley, Harold D. Harmon, and Hurd.
880 DECISIONS:.OF NATIONAL LABOR RELATIONS BOARD
questioned the one employee who. had made the initial contact with the Union"
it seems likely that' Respondent's information about the union activity of its
employees went beyond mere information about Spring's participation. As be-
tween Lasse and Spring it would appear that Lasse's part in the employees'
concerted activity would be and was more obvious and subject to comment than
was Spring's. In the first place, Lasse- had previous union experience and as a
union official which made him the center of information for his fellow employees
with respect to questions and explanations regarding the function and proce-
dures of unions as experienced by Lasse. Moreover, while it is true that Spring
made the initial contact with the Union, it is significant that he did so at Lasse's
suggestion. Significant also is the fact that it was at Lasse's prompting that
Dumke arranged the Veterans' Hall for the abortive meeting. These facts
coupled with the consideration that the union activity took place in a small
plant with a total of approximately 30 employees located in a small, community
compel the inference that Respondent was aware of Lasse's union activity at
the time he was discharged. In accordance. with the well-established Board
principle, I so find.28
Having rejected Respondent's testimony that Lasse's employment was tem-
porary and that • he was so informed when he was hired, it is clear that no
defense can be bottomed on that contention.
The contention that the duties for which Lasse was hired had been concluded
is somewhat ambiguous. However, viewed in either of its two interpretations,
I find it to be without merit. Having refused to accept Respondent version that
Lasse was hired "for the winter and cleaning cars," termination of the car
cleaning duties at the plant, of course, is irrelevant, if indeed the performance
of that function by Respondent's employees had ended prior to or at the time of
Lasse''s discharge.29 In any event, it is clear that Lasse's normal duties did
not involve car cleaning and that after being assigned as Spring's helper, he
assisted in car cleaning only on occasions when Spring was away or when the
car cleaning people were shorthanded.
Having refused to accept as bona fide the defense of the transfer of the fabri-
cation and construction from Portage to Dousman in the case of Spring, it is
obvious I must reject its application to Lasse. However, as indicated in con-
nection, with Spring, even if I were to believe that Respondent's position as
to this transfer was taken in good faith, I would still find, as I do, that the
preponderance of the evidence from the record as a whole establishes that Lasse
was discharged because of his union activity. Thus in addition to many of the
same circumstances which were indicative of the discrimination against Spring,
we have in the case of Lasse the merit increase of 10 cents an hour that was
granted him just a few weeks before his discharge, 80 and the hiring of additional
employees with full knowledge that Lasse desired reemployment and after
he had been twice promised reemployment.
IV. THE EFFECT OF THE -UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent, set forth in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
28N. L. R. B. v. Link-Belt Co., 311 U. S. 584, 602; N. L. R. B. v. Abbott Worsted Mills, .
127 F. 2d 438; Jasper National Mattress Company, 89 NLRB 75.
29 Respondent's'testimony was that the car cleaning functioning had been taken over
by the railroad company. Lasse testified that he observed Respondent's employees
cleaning cars after his discharge. Resolution of this conflict is deemed unnecessary.
®o Empire Pencil Company, 86 NLRB 1187; E. C. Brown Company, 81 NLRB 140.
PORTAGE-MANLEY SAND, COMPANY 881
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 prac-
tices, the. undersigned will recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent. has discriminated in regard to the hire
and tenure of employment of Fred J. Spring and Wilbert Lasse, it will be recom-
mended that the Respondent offer to each immediate and full reinstatement to
his former or substantially equivalent position $' and make each whole for any
loss of pay he may have suffered by reason of the Respondent's discrimination
against him by payment to each of a sum of money equal to that which he
normally would have earned as wages from the date of his discharge to the
date of the Respondent's offer of reinstatement, less his net earnings during said
period." Loss of pay shall be computed on the basis of each separate calendar
quarter or portion thereof during the period from the Respondent's discrimina-
tory action to the date of a proper offer of reinstatement. The quarterly periods,
herein called quarters, shall begin with the first day of January, April, July,
and October. Loss of pay shall be determined by deducting from a sum equal
to that which each employee would normally have earned for each such quarter
or portion thereof, his net earnings, if any, in any other employment during
that period. Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quarter." It will also be recommended that the
Respondent, upon reasonablp request, make available to the Board and its
agents all payroll and other records pertinent to an analysis of the amounts
due as back pay.
The unfair labor practices found above reveal on the part of the Respondent
such a fundamental antipathy to the objectives of the Act as to justify an
inference that the commission of other unfair labor practices may be antici-
pated in the future. It will be recommended, therefore, that the Respondent
be ordered to cease and desist from in any manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. The International Association of Machinists is a labor organization admit-
ting to membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of employment of Fred
J. Spring and Wilbert Lasse, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and 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 and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
ffi The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
sa Crossett Lumber Company, 8 NLRB 440. Spring 's termination pay shall be con-
sidered as earnings during the period which that payment was purported to cover.
33 F. W. Woolworth Company, 90 NLRB 289.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
`WILSON AND COMPANY, INC. and AMALGAMATED MEAT CUrrERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL. Cases Nos. 16-C A-.
and 16-RC-578. July 31,1951
Decision and Order
On February 5, 1951, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled consolidated proceedings
finding that the Respondent had not 'engaged in unfair labor practices
and recommending that the complaint herein be dismissed in its en-
tirety as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner further recommended that the objections
to the election filed herein by the Union be overruled, and that Union's
request to set aside the election of September 8, 1950, be denied.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in this case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that in Case No. 16-CA-306 the com-
plaint against Wilson and Company, Inc., Oklahoma City, Oklahoma,
be, and it hereby is, dismissed, and
IT IS FURTHER ORDERED that in Case No. 16-RC-578 the petition for
certification of representatives filed by the Union therein be, and the
same hereby is, dismissed.
CHAIRMAN HERZOG, dissenting :
I cannot agree with my colleagues' conclusion that the complaint
should be dismissed and the Employer's interference with the election
excused.
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Reynolds and Murdock].
95 NLRB No. 103.