Webb Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1965

154 N.L.R.B. 827 (N.L.R.B. 1965)

WEBB MANUFACTURING, INC. 827
meet with us and negotiate for or represent the employees in the above
bargaining unit as their exclusive bargaining representative.
WE WILL. NOT interfere with, restrain, or coerce our employees in the
exercise of rights guaranteed to them by Congress in Section 7 of the
National Labor Relations Act, as amended, by refusing or failing to recog-
nize, meet, or bargain collectively in good faith with Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO, Local No.
405, as the exclusive bargaining representative of our employees in the
above unit.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of their rights to self-organization, to form,
join, or assist any labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
TENNESSEE PACKERS, INC. FROSTY MORN DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain, posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161.
Webb Manufacturing, Inc. and Larry A. Cline and William E.
Montgomery and United Steelworkers of America , AFL-CIO.
Cases Nos. 8-CA-3600, 8-CA-3600-3, and 8-CA-3605. August 31,
1965
DECISION AND ORDER
On June 8, 1965, Trial Examiner Alba B. Martin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions, the brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
154 NLRB No. 63.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner, as modi-
fied herein, and orders that the Respondent, Webb Manufacturing,
Inc., Conneaut, Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
as so modified :
1. Immediately after the word "by" in paragraph 1(a) of the
Recommended Order and in the first indented paragraph of the
notice, insert the words "discharging employees or otherwise."
2. Add the following as paragraph 2(b) of the Recommended
Order and reletter consecutively the subsequent paragraphs :
"(b) Notify Larry Cline and William Montgomery, if presently
serving in the Armed Forces of the United States, of their right to
full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces."
3. Delete the seventh indented paragraph of the notice.
4. Delete the paragraph in the notice immediately following the
last indented paragraph, and substitute the following paragraph :
"All our employees are free to become or remain, or refrain from
becoming or remaining members of United Steelworkers of America,
AFL-CIO, or any other labor organization, except to the extent that
this right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner,
Alba B. Martin in Conneaut , Ohio, on December 9 and 10 , 1964, on complaint' of
the General Counsel and answer of Webb Manufacturing , Inc., Respondent herein.
The issues litigated were whether Respondent violated Section 8(a)(1), (2), and
(3) of the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151, et seq.,
herein called the Act. At the hearing Respondent presented oral argument. The
General Counsel filed a brief which has been considered . At the conclusion of all
evidence decision was reserved on Respondent 's motion to dismiss the complaint.
This motion is hereby disposed of in accordance with the conclusions and recom-
mendations below.
1 The charge in Case No . 8-CA-3600 was filed August 18 and served upon Respondent
August 21 , 1964. The charge in Case No . 8-CA-3600-3 was filed September 3 and
served upon Respondent September 10. The charge in Case No . 8-CA-3605 was filed
August 25 and served upon Respondent August 26. All events herein occurred in 1964.
WEBB MANUFACTURING, INC. 829
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation with its offices and principal place of business
in Conneaut, Ohio, where it is engaged in the manufacture and sale of wooden
window frames and grills. In the course and conduct of its business Respondent
annually ships and transports in interstate commerce products valued in excess of
$50,000 from its place of business in Conneaut, Ohio, directly to States of the United
States other than the State of Ohio. Respondent is now, and has been at all times
material herein, an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
Respondent's plant is run principally by a father and son team, Howard Webb,
president and owner of the corporation, and his son, Dale Webb, vice president of
the corporation and plant manager of the plant. Dale is 25 years old. At the time
of the events herein a number of its approximately 45 employees were 19 or 20 years
old or in their early twenties. The status of Leon Brundage, age 36, Frank Hicks,
and Robert Murray, age 46, as supervisors under the Act, is in dispute.
II. THE LABOR ORGANIZATION INVOLVED
The United Steelworkers of America , AFL-CIO, herein called the Steelworkers,
the Steelworkers Union, and the Union , is now, and has been at all times material
herein, a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The supervisory status of Robert Murray, Leon Brundage, and Frank Hicks
In August 1964, Murray, Brundage, and Hicks were known to the employees as
supervisors over their respective departments, Murray over the cutting and dado
department, Brundage over the railing department, and Hicks over the chipping
department. They took their orders from and were directly under Vice President
and Plant Manager Dale Webb. If they did not have supervisory authority, then
Dale Webb was the only supervisor over the approximately 45 employees Respond-
ent had in August 1964. It was unlikely that the plant manager had no supervisors
between him and the employees.
Murray discharged Larry Cline August 6 and signed the discharge slip as "super-
visor." 2 In May, Hicks expressed to Vice President Webb dissatisfaction with the
work of an employee and the employee was soon transferred out of Hicks' depart-
ment. It thus appears that Hicks had authority effectively to recommend the trans-
fer of employees. Each of these three men responsibly directed the work of the
employees in his department, told them what order or job to do next, and which
were rush orders. On rush orders they pressed employees for greater speed. These
three men transferred employees from one machine to another and instructed new
employees. Murray adjusted a grievance of an employee. Employees were told to
take their grievances to them. Once evening in July, all three attended a "super-
visors' meeting" to increase production, to try to figure out short cuts, to try to
eliminate mistakes between departments.
Murray and Hicks having visited the Board's Regional Office in Cleveland where
they were shown the language of Section 2(11) of the Act, they concluded that they
were supervisors and because of their supervisory status resigned their positions as
leaders of the shop committee.
Upon the above testimony, most of which was undisputed, and the entire record,
I conclude and find that at the times material herein, Murray, Brundage, and Hicks
had authority, in the interest of Respondent, responsibly to direct employees, to
assign employees, to discharge employees, to hear and adjust grievances, and effec-
tively to recommend the transfer of employees; and that the exercise of such authority
was not of a merely routine or clerical nature but required the use of independent
judgment. It follows and I find that Murray, Brundage, and Hicks were supervisors
within the, meaning of Section 2(11) of the Act.
2 Although Plant Manager Dale Webb also signed the discharge letter and actually
made the decision to discharge Cline , Murray executed the discharge and the reasons
Murray gave Cline were the same ones Dale Webb gave Cline a few minutes later.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Self-organization of the employees and Respondent's reaction thereto
In late July three of Respondent's young employees, David Helberg, William
Montgomery, and Larry Cline, undertook to persuade Respondent's employees to join
the Steelworkers. Helheig obtained Steelworkers cards and these three employees
solicited employee sign.qt,,res on the cards at employees' homes, outside the plant,
and in the plant parkin;; lot during employees' lunch hours and after work. An
organizational meeting for the Steelworkers was planned to be held during the
evening of August 6 in the Moose hall in Conneaut.
Early August 6, just before the beginning of work, Vice President Dale Webb
approached employee Duane Bogart in the plant and asked him if he had heard about
the meeting to be held that night. Bogart replied in the negative. According to the
undenied and credited testimony of Bogart, Vice President Webb required him to
go to the meeting "if invited" and to report to Vice President Webb afterward what
happened at Cie meeting.
Vice President Webb testified that on August 6 about 2 p.m. he learned in a
telephone call from a friend who did not work for Respondent that it was the Steel-
workers Union which was trying to organize the plant. In substance, Vice President
Webb testified that this was the first he had known the identity of the Union involved.
After the conclusion of his day's work that day, August 6, Bogart went to Vice
President Webb's desk in the plant and, according to the credited testimony of
Bogart, told Webb that he was "going for sure" to the meeting. They arranged that
afterward Bogart would telephone Webb. Vice President Webb told Bogart that
Larry Cline was no longer working for the Company (Cline had been discharged a
few minutes before). In substance Webb asked Bogart the identity of the employees
who were behind the union movement and from a list of names singled out several
names, including Cline and Montgomery, whom he suspected. Bogart refused to
reveal any names.
On the witness stand Vice President Dale Webb first admitted and later denied
that at this time he had a list of those he suspected of promoting a union. In his
pretrial affidavit given to a Board agent he admitted that by his own set of marks on
lists of employees on his desk "I use these lists for keeping track of the employees
and their attitude and deciding who works where, when and on what." He testified
here that his symbols on the list stand for employees who come in at different times,
regular employees, those he has to "regulate their jobs more than others," but that
he had no symbol for those suspected of attempted unionization. As in his affidavit
Dale Webb admitted keeping track of employees' attitude, and as in testifying here
he admitted suspecting, on August 6, that Cline and Montgomery, and others, were
engaging in organizational activities; and as Duane Bogart by his demeanor as a
witness impressed me that he was trying, in his difficult position, to tell the truth;
I find on the entire record that, as substantially testified by Bogart, Vice President
Webb asked him the identity of those who were promoting for the Union and let
Bogart know that he suspected Cline and Montgomery among others.
By Webb asking Bogart if he had heard about a meeting, referring to a union
meeting, to be held that evening; by asking him to go to the meeting and report back
what occurred; and by asking him the identity of employees who were promoting
for the Union; Respondent interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act, Respondent thereby violating
Section 8(a)(1).
After the meeting that evening Bogart telephoned Vice President Webb and they
arranged to meet at President Howard Webb's boat at the Conneaut Yacht Club.
They met at the boat in the dark and Bogart told Vice President Webb "some of the
things they were going to bargain for" and they talked about those things.
C. The shop committee and its transformation into an independent
labor organization to compete with the Steelworkers
Prior to the employee efforts to bring the Steelworkers into the plant, the so-called
shop committee, which came into existence several years before, had been an orga-
nization established to regulate gift and flower giving to sick and injured employees
and to plan parties and picnics for the employees. For some years Respondent had
been deducting a dollar a month from the wages of all employees, old and young,
and including office girls, which it turned over to the shop committee. The older
employees gave permission for this deduction but the younger employees never did.
All employees were considered "members" of the shop committee although some
of them never signed up for it. The shop committee paid half of the cost of the
several employee functions each year and Respondent paid the other half.
WEBB MANUFACTURING, INC. 831
For some time prior to August 1964, the shop committee had been administered
by the three supervisors, Hicks, Murray, and Brundage. Hicks was chairman and
Murray Brundage were the two "committeemen."
Within a few days of the August 6 meeting of the Steelworkers, Supervisors Hicks,
Murray, and Brundage began to convert the shop committee into a collective-bar-
gaining labor organization to compete with and curb the Steelworkers. Supervisor
Brundage asked at least two young men in the shop to help make the conversion,
and told at least one of them, Terry Lame, that the committee to plan the conversion
would consist of three older fellows and three younger ones. The three older ones
were Hicks, Murray, and Brundage. Hicks and Murray held several meetings at the
latter's house attended also by the three younger employees for the purpose of dis-
cussing and planning the conversion.
On August 11, during working hours, Hicks and Murray left the plant and went
to the Board's Regional Office in Cleveland, Ohio, to seek information about con-
verting the shop committee into an independent labor organization. Although they
were away from the plant 6 hours including the lunch period during their shift and
were punched out or marked out during that period, they were each credited on their
timecards with 8 hours for that day's work even though they were punched in or
marked in only some 3 to 4 hours each. Murray testified in substance that they were
told at the Regional Office that if there was a possibility they were supervisors they
should resign from the shop committee. They read Section 2(11) of the Act and
concluded that some of their duties coincided with some of the provisions of that sec-
tion. Murray testified that they were also advised to get a lawyer, and that they
would need cards signed by at least 30 of the employees in connection with a petition
for an election.
Upon their return to Conneaut, Hicks and Murray asked Supervisor Brundage to
have cards prepared for the shop committee. Brundage had collective-bargaining
cards printed using the same basic language as on the Steelworkers cards. Brundage
testified that he told the printer to bill Frank Hicks for the job and that Hicks paid
for it. Biundage testified that he himself passed out 10 or 15 of these shop committee
cards to employees on company time and some of them were passed back to him
signed. Brundage also asked employee Duane Bogart to pass out some cards and
Bogart did so during working time. So did employee Richard Murphy. Bogart
credibly testified that he passed these cards out right in front of Plant Manager Dale
Webb and that Webb saw him doing it. Although Webb substantially denied this
testimony, by his demeanor and certain parts of his testimony Dale Webb did not
impress me as a credible witness and I do not credit his denial. Employee William
Montgomery credibly testified that these shop committee cards were being passed out
during working hours for 2 days. Employee Terry Laine, who impressed me as an
honest and credible witness, testified that he had a desk which was adjacent to Dale
Webb's desk and that he signed one of the shop committee cards at his desk while
Webb was sitting at his desk. Credited also is Laine's further testimony concerning
the shop committee cards that he and Plant Manager Webb "discussed very generally
the cards and about who signed them. We checked off the list of the employees who
had signed them and who had not signed them." Upon the basis of the testimony
credited in this paragraph, and the entire record, I conclude that Vice President and
Plant Manager Dale Webb knew that the shop committee cards were being distrib-
uted in the plant and signed by the employees on company time.
Somewhat later but still in August, Chairman Hicks called a special evening meet-
ing of the shop committee in the plant lunchroom where all shop committee meetings
were held. The meeting was announced by a typed notice on the company bulletin
board. About 35 or 40 of the plant's 45 employees were present, all on their own
time. At this meeting Hicks, Murray, and Brundage resigned their top posts on the
shop committee, Hicks giving as the reason his belief that they were supervisors,
that their action was in the best interest of the employees, and that their action
"would keep the Shop Committee from being bogged down " This action evidently
also removed them as members of the conversion committee.
Then Supervisor Murray nominated employee Terry Laine as the new chairman
of the shop committee and Lame was elected The latter credibly testified without
contradiction that prior to the meeting "apparently the whole plant knew that
Hicks was going to resign," and Dale Webb suggested that "I take the chairman, hip
if I had a chance to."
Supervisor Brundage continued on the shop committee's finance committee and his
signature on checks continued to be one of the two signatures necessary for the bank of
honor shop committee checks.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also at this meeting a negotiating committee was elected consisting of Terry Laine,
chairman , and five other employees . Three of these committeemen , Laine, Barker,
and Murphy , were the same three employees who had earlier served on the conversion
committee with Hicks, Murray , and Brundage ; and three other employees were added:
Kesati, Rivers, and Fails.
This negotiating committee sought and was immediately granted an interview with
President Howard Webb . Both Webbs were present. In the interview the commit-
tee sought recognition of the shop committee as an independent union, a minimum
wage of $2 per hour, and paid holidays. President Howard Webb replied in substance
that he could do nothing at that time because his hands were tied. He added that
"In order to get that (the Shop Committee) through 100 percent of his men would
have to stand behind him."
From the above it is seen and I find that to compete with and curb the efforts of
certain employees to persuade the employees to join the Steelworkers Union, Respond-
ent through its supervisors organized a committee to convert the shop committee
into a collective -bargaining labor organization . Respondent determined how many
employees should serve on this committee and selected the employees to serve on it.
Respondent itself participated in the activities of this conversion committee through
its supervisors. Supervisors sought advise from the Board 's Regional Office in con-
verting the shop committee into a labor organization . Supervisors had the shop
committee 's collective -bargaining cards printed and distributed , and Respondent's
vice president knew that they were being distributed on company time. At this stage
the three supervisors resigned because they thought they were supervisors within the
meaning of the Act, and one of them nominated the new chairman , who had previ-
ously been urged to take the job by Vice President Webb. One supervisor, Brundage,
continued on the shop committee 's finance committee . Three employee-members
of the shop committee's negotiating committee were the same employees who, upon
appointment by supervisors , had served on the conversion committee . This com-
mittee sought and had a meeting with President Webb for the purpose of gaining
recognition and of dealing with Respondent concerning wages, rates of pay, and
paid holidays.
Thus Respondent not only furnished the original impetus for the shop committee
and for its conversion into a collective -bargaining labor organization , but prescribed
the nature , structure , and function of it as a labor organization . Respondent deter-
mined to form a labor organization to compete with the Steelworkers; that that labor
organization should be achieved by converting the shop committee; and who should
serve on a committee to figure out what to do to accomplish the conversion.
In addition to the above elements of Respondent 's domination of the shop commit-
tee in its formation as a labor organization , Respondent furnished the shop committee
with a meeting room at no charge, Respondent allowed it to post notices on com-
pany bulletin boards, and the shop committee's secretarial and banking bookkeeping
was done by one of the Company's secretaries in the company office. Also Respond-
ent checks off dues for the shop committee without permission from at least the
newer employees. Also the shop committee had no provision for membership among
the group of employees it sought to represent for collective -bargaining purposes.
Upon the above evidence and the entire record considered as a whole, I find that
in and since August 1964 Respondent has dominated and interfered with the forma-
tion and administration of the shop committee as a labor organization within the
meaning of the Act, Respondent thereby violating Section 8 (a) (2) and (1) of the Act.
D. The discharge of Larry Cline
Larry Cline, aged 20, worked for Respondent Company from June until December
1963, when he was laid off for lack of work. He was recalled June 5, 1964, and
worked until his dischargeAugust 6, 1964.
Cline was one of the three employees who undertook to persuade the other
employees to sign up for the Steelworkers Cline credibly testified that he visited
about 10 employees at their homes and talked to 3 or 4 employees on the plant park-
ing lot after work, asking them to sign Steelworkers' cards.
Cline was discharged August 6 just after the 3:30 quitting time. As has been
seen above, this was shortly after Vice President Dale Webb, who made the decision
to discharge Cline, had learned that it was the Steelworkers Union that was trying
to organize the plant and was holding the meeting that night. As has been seen,
Dale Webb had early that morning asked Duane Bogart to attend the meeting and
inform on it.
WEBB MANUFACTURING, INC. 833
That there was some connection between the union meeting set for that evening
and the discharge of Cline is suggested by the fact that when Bogart reported to Webb
shortly after Cline was discharged, Webb suspected Cline and others (included Wil-
liam Montgomery) were organizing for the Steelworkers and he volunteered that
Cline was no longer working for the Company. If Cline's union activities and the
impact of his discharge upon the union meeting scheduled for that night were not
uppermost in Webb's mind when he decided to discharge Cline that day no reason
appears why he volunteered to Bogart that Cline was no longer employed.
In his affidavit Webb stated, with reference to Cline, that "I had no knowledge of
his union activity at the time of this dicharge." The record here established, how-
ever, from Webb's own testimony that at 2 p.m. on August 6, Webb learned it was
the Steelworkers Union which was organizing his employees, and that same afternoon
Webb had a symbol opposite Cline's name on his list of employees as being one of
the employee organizers for the Steelworkers. It follows that if Webb had no knowl-
edge at least he had strong suspicion.
Although Dale Webb made the decision to discharge Cline, Robert Murray
did the discharging. According to Cline's uncontradicted and credited testimony,
Murray told him he was being discharged "because of talking too much and going
to the restroom too much." Murray handed him a discharge letter on the Company's
letterhead dated August 6, signed by Murray as supervisor and Dale Webb as plant
manager, and reading as follows:
Mr. Larry A. Cline:
AS OF THIS DATE, YOU ARE NO LONGER AN EMPLOYEE OF
WEBB MFG. INC. FOR THE FOLLOWING REASONS:
INSUBORDINATION: You were rehired with the understanding that
your work and deportment would have to be
satisfactory. Your attitude has been very uncoop-
erative when asked to work overtime.
DEPORTMENT You have been doing excessive talking while on
the job.
Respondent discharged Cline without any warning, although Respondent has
a system of warning employees with written warning notices. Respondent 's posi-
tion, through witness Dale Webb, was that when Cline was recalled to work on
June 5, 2 months before his discharge, Webb told him that his work during his
prior employment with Respondent had been unsatisfactory and that this time
his work and deportment would have to be satisfactory or he would be dis-
charged. Respondent contended in substance that this was a warning to Cline.
Cline credibly denied that when he was reemployed Dale Webb told him his
work during his earlier period of employment had been unsatisfactory. If
Respondent ever told Cline that, the logical time would appear to have been
when he was laid off in December, not when he was taken back the following
June. The fact that Respondent took the initiative to recall Cline in June and
that it reemployed him belie that Respondent considered Cline an unsatisfactory
employee during his earlier 6-month period of employment. I do not find, as
substantially contended by Dale Webb, that Cline was reemployed under a cloud
or that he returned on probation or under a warning.
In his testimony Dale Webb assigned as the reason for Cline's discharge the
alleged facts that Webb sensed a slowdown in production and excessive talking
throughout the plant. In his pretrial affidavit Webb said, "Production in general
was down ' and I knew there was something screwy going on in the plant." In
his affidavit Webb added that Cline "seemed like the obvious one to go."
Respondent's reaction to the self-organization of the employee, as seen above,
strongly suggests that the "something screwy going on in the plant" from Webb's
point of view, was the self-organization of his employees, and that Webb selected
Cline for discharge as an object lesson for those who were promoting the Union.
At the hearing Respondent offered no proof of a drop in production just prior
to Cline's discharge other than the oral testimony of Dale Webb. If Respondent's
records of plant production actually showed a lessening of production during
this period presumably Respondent would have produced those records at the
hearing As Webb was not a credible witness, I do not credit Respondent's
economic defense that there was a slowdown in production. In any case it was
not shown that Respondent believed' that discharging one employee would cure
the alleged drop in production or that Cline was anymore responsible for the
alleged slowdown than all the rest of the employees.
206-446-66-vol. 151 54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the alleged talking in the plant, a certain amount of talking usually
accompanies any self-organizational efforts by employees. There was no rule
against talking in the plant and no credible proof that Cline talked any more
than other employees. Terry Laine, a credible witness and fellow employee of
Cline, testified that Dale Webb told him there was extra talking in the plant
because of the union activities, and Webb mentioned the names of several
employees, including Cline and Montgomery. These were the same employees
whom Webb had marked on his list as promoting the Union. There was no
proof that Cline talked any more than other employees. Laine evaluated Cline
as a "good worker." A reluctant witness, Brewster, testified that he had never
seen Cline leaving his work station to talk to others (contrary to Dale Webb's
testimony). Employee Helberg, a credible witness, testified that Cline talked less
than other employees Helberg could see from his work station; that Cline did not
talk any more than other employees.
In discharging him Supervisor Murray gave Cline as one of the reasons for the ac-
tion that Cline wene to the restroom too often. At the hearing Respondent's defense
did not cite this as a reason. Respondent's witnesses did not mention this reason.
In its discharge letter to Cline Respondent cited as a reason for the action Cline's
alleged uncooperative attitude when asked to work overtime. This alleged reason
was not given in Respondent's defense at the hearing. Respondent's witnesses did
not mention this reason.
As in the midst of the organizing campaign Dale Webb ordered the discharge
of Cline, admittedly suspecting him of union activities, on the same day Webb
was violating the Act by seeking and finding an informer to report what hap-
pened at the Steelworkers' meeting; as the entire record showed that, through
the dominated shop committee and other actions found herein. Respondent was
unlawfully seeking to defeat the self-organizational movement of its employees;
and in view of the shifting and unconvincing nature of Respondent's defense,
I find on the entire record that Respondent discriminatorily discharged Cline on
August 6, 1964, because of his union sympathies and activities and in order to
discourage memebership in and activity on behalf of the Union, Respondent
thereby violating Section 8(a)(3) and (1) of the Act.
E. The discharge of William Montgomery
William Montgomery, aged 19, worked for Respondent from June 1963 until
August 31, 1964, when he was discharged. His work took him to all departments
in the plant. He was one of the three principal employees who signed up
employees in the Steelworkers. Montgomery credibly testified that he signed up
about 8 employees in his car in the Company's parking lot during lunch hours,
that he talked to employees also in their homes, and that in all about 10 or 12
employees signed Steelworkers' cards in his presence.
As has been seen above, the record, established that Vice President Dale
Webb suspected Montgomery of organizing for the Steelworkers and had Mont-
gomery tabbed as such on his list of employees.
On August 31, 1964, Vice President Dale Webb handed Montgomery a letter
saying he was discharged "for conducting union activities on company time, and
for throwing sticks at Richard Murphy creating dangerous and hazardous situa-
tions." 3 The letter was signed by President Howard Webb and Vice President
Dale Webb.
The "union activities on company time" related to the following incident. The
day before the gathering in the hotel in Conneaut referred to below, President
Webb stepped up to three employees, including Montgomery, who were talking
in the plant and asked them what was going on. Montgomery replied that "we
are planning a meeting." Later at President Webb's request, another of the three
employees told him it was a meeting arranged for the following night at the
hotel. The record did not show that anything was said about its being a union
meeting, but the Webbs must have learned or suspected it was a union meeting
a To get Murphy's attention while Murphy was working at his saw, on Monday and
Tuesday, August 24 and 25, Montgomery threw a few small pieces of wood at Murphy's
table. Murphy did not complain to Montgomery but complained to President Webb. Webb
did not caution Montgomery, but let this alleged "dangerous situation" go unremedied for
the rest of that week. The following Monday, August 31, in the dismissal letter, he cited
this incident as a reason for the discharge. On the entire record I find that this was
but a pretext and not the real reason for the discharge.
WEBB MANUFACTURING, INC. 835
before writing this language in the discharge letter. The record suggested that
they learned this the following day as they engaged in surveillance of the meet-
ing, as is seen below , or from informers.
Respondent admittedly had no rule against solicitations for unions or other
causes in the plant. A few weeks before discharging Montgomery "for conduct-
ing union activities on company time" Respondent had, through its Supervisor
Brundage and an employee, and to the knowledge of Vice President Dale Webb
as has been found above, distributed shop committee cards in the plan for 2
days and had had them signed on company time; and Vice President Webb had
then discussed who had signed them with employee Laine and had checked off
those who had signed and had not signed . Thus it appears, and I find, that
Respondent was not concerned about union activities on company time as such
but about Steelworkers activities on company time. It follows further, and I
find, that Montgomery was discharged for conducting Steelworkers activities
on company time but others who conducted shop committee activities on com-
pany time were not discharged for it . This disparate promulgation and enforce-
ment of a no -solicitation or no-distribution rule and this discriminatory treat-
ment of Montgomery because of his Steelworkers activities was obviously de-
signed, as the entire record revealed, to discourage further membership in,
sympathy for, and activity on behalf of, the Steelworkers, Respondent thereby
further violating Section 8(a)(3) and (1) of the Act.
F. Surveillance and creating impression of surveillance
The day after President Webb learned there was to be a meeting the next night at
the local hotel, President Webb, Vice President Webb, and Supervisors Murray and
Brundage, individually, drove slowly by the hotel and looked in as the employees
were sitting in the lobby next to the sidewalk in full view of the street through high
picture windows covering the front of the lobby. A Board agent was interviewing
employees one at a time in a room in the hotel, and those who waited, including
employees Montgomery, Cline, Helberg, Murphy, and Rivers, sat in the lobby. A
union official was present. The company officials drove by one at a time over a
period of 20 minutes or more. The two Webbs were going in opposite directions.
The hotel was on Conneaut's busiest street on the direct access route between two
and the Company's plant. However, the plant finished its day's work at 3:30 p.m.
and this meeting or gathering occurred at night.
The testimony concerning the four officials' driving by and looking in was undenied
and unexplained by the defense. As has been seen above President Webb learned the
previous day that the meeting was to be held and where, and he had been curious
enough to learn this information by interrogating employees. As has been seen
above he learned or suspected it was a union meeting and cited Montgomery's
"planning" it in the plant as a pretext for discharging him.4
In a conversation with employee Rivers some days later President Webb told
Rivers that he knew Rivers was at the hotel, that he heard about every meeting, that
he knew what was going on, and that he had a man who knew when meetings were
held.
Upon the above evidence and the entire record considered as a whole, I believe
and find that Respondent's four officials drove by the hotel on this occasion to discover
the identities of the employees there present with the union official, Respondent thereby
keeping this gathering under surveillance in further violation of Section 8 (a) (1) of
the Act. Further, President Webb's statement to employee Rivers a few days later
that he knew Rivers had been at the hotel on that occasion, that Webb had a man
who knew when union meetings were held and that he heard about every meeting
and knew what was going on, reasonably created in employee minds an impression
of surveillance by Respondent of employee union activities, Respondent thereby
further interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed under Section 7 of the Act, Respondent thereby further violating
Section 8(a)(I).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
* On the entire record I believe and find that Montgomery was mistaken in remember-
ing this gathering at the hotel as having occurred after his discharge.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Respondent having unlawfully discharged Larry Cline and William Montgomery
because of their actual or suspected union activities, and not having offered them
reinstatement, I recommend that Respondent offer to Cline and Montgomery imme-
diate and full reinstatement to their former or substantially equivalent positions,5
without prejudice to their seniority and other rights and privileges, and make them
whole for any loss of pay they may have suffered by reason of the discrimination
against them by payment to each of a sum of money equal to that which he nor-
mally would have earned as wages from the date of his discharge (August 6, 1964,
in the case of Cline and on August 31, 1964, in the case of Montgomery) the date
of the discrimination against him, to the date when, pursuant to the Recommended
Order herein, Respondent shall offer him reinstatement, less his net earnings during
said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to
be computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. The backpay obligation of Respondent
shall include the payment of interest at the rate of 6 percent to be computed in
the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As provided
in the Woolworth case, I recommend further that Respondent make available to
the Board on request payroll and other records in order to facilitate the checking
of the amount of backpay due.
Respondent having dominated and interfered with the formation and administra-
tion of the shop committee as a labor organization, I recommend that Respondent
withdraw all recognition from the shop committee as the representative of any
of its employees for the purpose of dealing with it concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions of employ-
ment, and completely disestablish the shop committee as such representative.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act and the danger of their com-
mission in the future is to be anticipated from the Respondent's conduct in the
past. The preventive purposes of the Act will be thwarted unless the Order is
coextensive with the threat. In order therefore to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strike which burdens and obstructs commerce
and thus effectuate the policies of the Act, I shall recommend that Respondent be
ordered to cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Webb Manufacturing, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning union meetings and the identity of
employees promoting for the Union: by asking an employee to spy upon a union
meeting and report to Respondent what occurred there; by keeping a gathering of
employees with a union official under surveillance; by creating the impression of
surveillance by Respondent of employee union activities; and by other acts, Respond-
ent interfered with, restrained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1).
4. By dominating and interfering with the formation and administration of the
shop committee as a labor organization, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (2) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Larry
Cline and William Montgomery, thereby discouraging membership in, sympathy for,
IThe Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
WEBB MANUFACTURING, INC. 837
and activity on behalf of, United Steelworkers of America, AFL-CIO, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce
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 the
entire record in the case considered as a whole, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I recommended that the Respondent,
Webb Manufacturing, Inc., of Conneaut, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of America, AFL-CIO, or
any other labor organization of its employees, by discrimination in regard to the
hire and tenure of their employment or any term or condition of their employment.
(b) Dominating or interfering with the formation and administration of the shop
committee as a labor organization, or any other labor organization, of its employees.
(c) Recognizing the shop committee, or any successors thereto, as the representa-
tive of any of its employees for the purpose of dealing with Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment.
(d) Interrogating employees concerning union meetings and the identity of
employees promoting for the Union.
(e) Asking employees to spy upon union meetings and report to Respondent what
occurred at them.
(f) Keeping gatherings of employees with union officials under surveillance.
(g) Creating the impression of surveillance by Respondent of employee union
activities.
(h) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their rights to self-organization, to form labor organizations, to join
or assist United Steelworkers of America, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3), as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer reinstatement to Larry Cline and William Montgomery in accordance
with the recommendations set forth in the section entitled "The Remedy."
(b) Make whole Larry Cline and William Montgomery for any loss in pay they
may have suffered by reason of Respondent's discrimination against them in accord-
ance with the recommendations set forth in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all records necessary to analyze the amount
of backpay due and the rights of Larry Cline and William Montgomery under the
terms of this Recommended Order.
(d) Withdraw and withhold all recognition from the shop committee as the rep-
resentative of any of its employees for the purpose of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely disestablish said shop committee as such
representative.
(e) Post at its plant in Conneaut, Ohio, copies of the attached notice marked
"Appendix." 6 Copies of said notice, to be furnished by the Regional Director for
Region 8 (Cleveland, Ohio), shall, after being signed by the Respondent's represent-
ative, be posted by the Respondent immediately upon receipt thereof, and be main-
s In the event that this Recommended Order shall 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 is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and order".
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
Notify the Regional Director for Region 8 in writing, within 10 days from the date
of this Decision, what steps the Respondent has taken to comply herewith?
7In 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 Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, 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 discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization, by discriminating against our
employees in any manner in regard to their hire and tenure of employment, or
any term or condition of employment.
WE WILL NOT dominate or interfere with the formation or administration of
the shop committee as a labor organization, or any other labor organization of
our employees.
WE WILL NOT recognize the shop committee, or any successor thereto, as the
representative of any of our employees for the purpose of dealing with us con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment.
WE HEREBY disestablish the shop committee as the representative of any of
our employees for the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions of
employment, and we will not recognize it or any successor thereto for any of
the foregoing purposes.
WE WILL NOT interrogate employees concerning union meetings and the iden-
tity of employees promoting for any union.
WE WILL NOT request any employee to spy upon a union meeting and report
to Respondent what occurred there.
WE WILL NOT spy upon a gathering of employees with a union official.
WE WILL NOT create the impression that we are spying upon the union activi-
ties of our employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist United Steelworkers of America, AFL-CIO, or
any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Larry Cline and William Montgomery immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges previously enjoyed.
WE WILL make whole Larry Cline and William Montgomery for any loss of
pay suffered by them by reason of the discrimination practiced against them in
accordance with the recommendation of the Trial Examiner' s Decision.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named labor organization, 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.
WEBB MANUFACTURING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
ETS-HOKIN CORPORATION, ETC. 839
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 aplication
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland , Ohio , Telephone No. Main 1-4465.
Ets-Hokin Corporation and R. D. Neill , d/b/a Rose Construction
Ets-Hokin Corporation and Local Union No . 428, International
Union of Operating Engineers , AFL-CIO
Local Union No. 769, International Brotherhood of Electrical
Workers, AFL-CIO (Ets-Hokin Corporation ) and R . D. Neill,
d/b/a Rose Construction
International Brotherhood of Electrical Workers, AFL-CIO (Ets-
Hokin Corporation ) and R. D. Neill, d/b/a Rose Construction
Local Union No. 769 , International Brotherhood of Electrical
Workers, AFL-CIO (Ets-Hokin Corporation ) and Local Union
No. 428, International Union of Operating Engineers, AFL-
CIO
Local Union No . 769, International Brotherhood of Electrical
Workers, AFL-CIO and International Brotherhood of Electri-
cal Workers, AFL-CIO and R. D. Neill , d/b/a Rose Construc-
tion and Ets-Hokin Corporation , Party to the Contract. Cases
Nos. 28--CA-939, 28-CA-945, 28-CB-f62, 28-CC-137, 28-CB-263,
28-CC-138, 28-CB-264, 98-CC-139, and 28-CE-3. August 31,
1965
DECISION AND ORDER
On February 4, 1964, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in certain unfair labor practices alleged in
the complaint and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Respondents filed exceptions to the
Trial Examiner's Decision and briefs in support thereof. The
Respondents also filed supplemental briefs in support of their posi-
tions. The General Counsel filed an answering brief and a supple-
mental memorandum in support of the Trial Examiner's Decision.
The Respondents also requested oral argument. The request is denied
as the record, including the exceptions and briefs, adequately present
the issues and the positions of the parties.
154 NLRB No. 52.