East Texas Steel Castings Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1952

99 N.L.R.B. 1339 (N.L.R.B. 1952)

EAST TEXAS STEEL CASTINGS COMPANY , INC. 1339
EAST TEXAS STEEL CASTINGS COMPANY, INC. and UNITED STEEL.
WORKERS OF AMERICA , CIO. Case No . 16-CA-385. June 30,1952
Decision and Order
On November 30, 1951, Trial Examiner C. W. Whittemore 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 certain other
alleged unfair labor practices and recommended that the complaint
be dismissed as to them. Thereafter, the Respondent and the Union
filed exceptions and supporting briefs. The Respondent's request
for oral argument is hereby denied because the record, exceptions, and
briefs, in our opinion, adequately present the issues and the positions
of the parties.
The Board 1 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
Intermediate Report, the exceptions and briefs, and the entire record
in the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications:
1. The Trial Examiner made no concluding finding that the Re-
spondent is engaged in commerce within the meaning of the Act.
He did, however, make findings of fact with respect to the annual
volume of business by the Respondent. As these findings show that
the Respondent's business falls within the jurisdictional requirements
established by the Board, we find that the Respondent is engaged in
commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction in this case.2
2. Discharge of Odes Laminack: The Trial Examiner found that on
April 26, 1951, the Respondent discharged Laminack, foreman of the
molding department, because Laminack made clear to the management
that he would not take part in its discriminatory campaign and in
order to discourage employee membership in the Union. On the
record before us, we are not convinced that Laminack was discharged
for these reasons. The record rather indicates that Laminack was
I 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 [Mem-
bers Houston , Murdock , and Styles].
' Staiitalaus 7m14ement and Hardware Company, Limited, 91'NLRB 618.
99 NLRB No. 162.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for his failure to perform satisfactorily his duties as fore-
man and for drinking at the plant, or coming to work intoxicated,
after being warned on several occasions that such conduct would:'not
be tolerated.
In support of the Respondent's contention that Laminack was dis-
charged for cause, Works Manager Furlani testified that he dis-
charged Laminack because Laminack was not interested in his work,
did not instruct his men, "wandered off from his job," and was drunk
on the job on several occasions. Furlani's explanation of the dis-
charge finds substantial corroboration in the testimony of Assistant
Superintendent Williams and that of Laminack himself.
Williams testified that he and Furlani frequently discussed the
work of Laminack as foreman,3 that he told Furlani that he had seen
Laminack "under influence of liquor and in places where he had no
business to be"; that on two separate occasions in March 1951, after
having found Laminack away from his department, he conveyed to
Laminack Furlani's warning not to wander around the shop, but to
stay in his department with his men; and that because of Laminack's
tendency to wander around the shop he (Williams) had to spend
about half his time in supervising the work of the molding depart-
ment, which was Laminack's responsibility. Williams also testified
that 2 weeks before Laminack's discharge, he saw him drinking on
the job; that he called Laminack out of the shop and "asked him to
quit drinking while he was on the job," and that he reported the
incident to Furlani. While Williams made no recommendation that
Laminack be discharged, the subject matter, according to Williams,
"was brought up in conversation that if he didn't improve that it
might become necessary to discharge him."
Laminack corroborated Williams' testimony in its essentials. He
admitted that on two occasions during his last 4 weeks of employment,
Williams told him that "Furlani would like [him] to stay close around
the job, closed to [his] men." Laminack also admitted that Furlani
warned him about drinking on three occasions. On the first occasion,
which Laminack was unable to fix in point of time, Furlani, after
having observed Laminack joking with one of his men, called him
and said : "Have you been drinking?" and he answered "No." Furlani
then said that "some of these boys smell alcohol on your breath. They
come tell me about it ... I can't tell when you are drinking." Fur-
lani then said "he wanted [Laminack] to quit even taking anything
to drink and coming on the job. He says, these boys smell it on your
3 Furlani testified that he and Williams frequently discussed Laminack 's work as fore-
man, that he was a "problem," that Laminack was not on the job , that he would wander
o8 from the job, and that because of such absence Williams would have to take Laminack's
place in the department to direct and supervise the men.
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1341
breath and they report it to me and -it kind of looks bad, and I told
him I would." About 1 or 2 weeks later , Furlani again questioned him
about his drinking. Laminack replied that he had been out to lunch
and that he drank a "couple of bottles of beer with [his] lunch."
Furlani said, "The boys come and tell me they smell it and say you are
drinking on the job." Furlani asked him "not to drink any more
beer or anything and come to the job with it on my breath and I told
him I would not." The last conversation occurred "about the middle
of April", or shortly after the meeting at the "Y".4 At the end of
his shift at 4 p. in., he and McGuire, Respondent's metallurgist, went
to McGuire's car which was parked on the Respondent's property and
drank a half a pint of gin. Laminack then left McGuire and on his
way to his own car, was stopped by Furlani. Furlani asked him if
he were drinking. Laminack admitted it, but said that he finished
his work and was on his way home. Furlani said : "You know it is
against the rules to drink on the Company property-the boys come
around and tell me you have been drinking on the job-I can't put up
with that," and "I will see you later."
Nor do we agree with the Trial Examiner's conclusion that by
having recommended Christian, a former employee and president of
the Union, for employment as a crane operator, Laminack made it
clear to the management that he would not engage in a discriminatory
campaign against the Union. We draw no such inference from this
episode. There is no showing that Laminack either knew that
Christian was a former president of the Union or that Furlani
believed that Laminack made such recommendation with the knowl-
edge that Christian was a former president of the Union. Nor can
we draw such inference from the fact that Laminack's brother Hulan
Laminack was active in the Union and that Furlani asked Foreman
Laminack to talk to his brother and "straighten" him out. Laminack
did not refuse the request, but on the contrary showed his willingness
to cooperate with Furlani. He said that he "certainly would go over
4 This apparently is the incident which Furlani fixed as having occurred on April 20.
Furlani testified that he met Laminack on his way to the laboratory , and that he was
intoxicated . He reminded Laminack of their last conversation concerning drinking on the
job. Laminack , according to Furlani , replied :
That he wasn't drunk and that he had a drink with our metallurgist , who was
Homer McGuire at the time-He told me it was 4: 00 o'clock, and I told him that
that didn 't make any difference whether it was 4 : 00 o'clock or 8: 00 o 'clock, as long
as he was on our premises , why, he had no right to drink-he told me I was a G. D.
liar , and with that I knew he was burning up and I thought I'd drop it where it was.
I said , I will see you in the morning, and that was it.
Furlani's testimony leaves no doubt that it was the same incident which Laminack de-
scribed as having occurred "around the middle of April ," or shortly after the meeting at
the "Y". As both Furlani and Laminack placed the incident at sometime between April 12
and April 20, the Trial Examiner 's finding that the incident occurred on February 20 is
hereby reversed . We find that it occurred at sometime between April 12 and April 20.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tell [Hulan Laminack]." Laminack testified that after this con-
versation he "went direct over to his bud" and told him of Furlani's
request.
Upon the basis of the foregoing findings and the entire record in
the case, we conclude that the General Counsel has failed to prove by
a preponderance of evidence that the Respondent discharged Odes
Laminack for the purpose of discouraging union membership. Ac-
cordingly, the Trail Examiner's finding as to Laminack is hereby
reversed and the complaint, insofar as it alleges that the Respondent
discriminated with respect to the hire and tenure of Odes Laminaci'
will be dismissed.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, East Texas
Steel Castings Company, Inc., Longview, Texas, its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
CIO, or in any other labor organization of its employees, by dis-
criminatorily refusing to hire or discharging or refusing to reinstate
any of them, or by discriminating in any other manner in regard to
their hire, tenure of employment, or any term or condition of
employment.
(b) Refusing to bargain collectively with United Steelworkers of
America, CIO, as the exclusive representative of all its employees in
the appropriate unit with respect to rates of pay, hours of emViloy-
ment, or other conditions of employment.
(c) Engaging in surveillance of union meetings, questioning of
employees concerning their union membership, threatening them with
reprisals for their union membership or activity, or discriminatorily
and for the purpose of discouraging union membership carrying out
any physical examination program.
(d) 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 United Steelworkers of America,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in collective
bargaining or other mutual aid or protection, or to refrain from any or
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 guaranteed in Section 7 thereof.
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1343
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the following employees immediate and full rein-
statement of their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges:
T. L. Lockridge Garland Newsome Rufus Denton
Z. B. Jones Burley French Vincent Guice
Ezekiel Rogers Lois Gentry R. H. Jones
W. C. Bogan James Carpenter J. L. Pritchett
and to A. L. Christian immediate employment as a crane operator or
a substantially equivalent position.
(b) Make whole the above-named individuals in the manner set
forth in the Intermediate Report in the section entitled "The
Remedy."
(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 due.
(d) Upon request, bargain collectively with United Steelworkers
of America, CIO, as the exclusive representative of all the employees
in the appropriate unit, with respect to wages, hours, and other terms
and conditions of employment, including the application of any
physical examination program, and if an understanding is reached
embody such understanding in a signed agreement.
(e) Post at its plant in Longview, Texas, copies of_ the notice
attached to the Intermediate Report as marked "Appendix A," to be
amended by striking therefrom the name of Odes Laminack.5 Copies
of such notice, to be furnished by the Regional Director for the Six-
teenth Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immediately
upon receipt thereof, 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.
(f) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
6 This notice , however, shall be, and it hereby is, amended by striking from line 4 thereof
the words "The 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 substituted for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United - States Court of Appeals,
Enforcing an Order."
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT is Fiji HER oRDF.RED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated in re-,
gard to the hire and tenure of employment of R. L. Manning, Hulan
Laminack, R. M. Richardson, and Odes Laminack.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint, an amended complaint,
and notice of hearing thereon having been issued and served by the General
Counsel of the National Labor Relations Board, and an answer having been
filed by the above-named Company, a hearing involving allegations of unfair'
labor practices in violation of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act, by the Company, herein called the Respond-
ent, was held in Greggton, Texas, from October 9 to 19, 1951, inclusive, before
the undersigned Trial Examiner.
In substance, the amended complaint alleges and the answer denies that: (1)
From April to September 1951, the Respondent discriminatorily discharged,
refused to hire, and provided with less employment certain named employees'
to discourage membership and activity in the Union; (2) on or about September
10, 1951, the Respondent refused to bargain collectively with the Union although
it had been certified as the exclusive bargaining agent of all employees in an
appropriate unit; and (3) by this and other specified conduct the Respondent
has interfered with, restrained, and coerced its employees in the exercise of,
rights guaranteed by the Act.
At the hearing all parties were represented by counsel, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, to argue orally upon the record, and to file"
briefs and proposed findings and conclusions. Briefs have been received from
the Respondent and the Union.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
East Texas Steel Castings Company, Inc., is a Delaware corporation with its
principal office and place of business in Longview, Texas, where it is engaged
in the steel castings business. In February 1951, the Respondent took over
the operations of a going concern at Longview, which is hereinafter referred
to as the Longview plant.
During the period from February 1 to August 30, 1951, the Respondent
purchased raw materials, such as scrap, cast, and pig iron, of a total value of
I The names and alleged dates of discrimination are as follows :
Hulan Laminack________________ June 1
R. M. Richardson--------------- June 1
A. L. Christian --------------- __ Apr. 24
Odes Laminack_________________ Apr. 26
T. L. Lockridge_________________ Apr. 10
Z. B. Jones--------------------- Apr. 10
Ezekiel Rogers------------------ Apr. 13
W. C. $ogan-------------------- Apr. 17
G. Newsome------------------- Apr. 23
R. L. Manning------------------ May 14
Burley French__________________ Aug. 29
Lois Gentry-------------------- June 11
James Carpenter________________ June 13,
J. L. Pritchett__________________ June 20
Rufus Denton__________________ July 23
Vincent Guice ------------------ Aug. 6,
R. H.Jones --------- ------ _----- Sept. 11
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1345
-$332,026. Raw materials valued at about $66,000 were purchased in interstate
commerce and were shipped to the Longview plant from points outside the State
of Texas. During the same period, total sales were valued at $1,098,009. Of
-this total, sales of finished products valued at more the $200,P00 were shipped
,from the plant to points outside the State of Texas.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and major issues
The events in issue occurred in a relatively small steel castings plant employing
about 200 workers during a 5-month period in 1951 , beginning shortly after
the Respondent , in February , took over its operation . A large proportion of the
.Respondent 's employees , and particularly of those involved in this case, are
Negroes, most of whom had also worked at the same plant for several years
for predecessors of the Respondent . The plant , its production , its employees
and management in general , have been substantially the same for a number
of years ; ownership and top management in the person of John B. Fleeger, vice
president and ' general manager of the' Respondent, were changed early in 1951.
In particular , management officials involved in the complaint and all holding
the same or similar positions with the other companies for varying periods,
include : Assistant General Manager Herschel Nance, who said that his "functions
largely might be covered by the category of personnel director ," Works Manager
- Andrew F. Furlani , and Assistant Superintendent F. Ross Williams.
Nance, however , appears to be the only one of these three management officials
who held any position with a predecessor concern in 1947 , at a time when
-employees made an abortive attempt to organize in the same Union which filed
charges in this case . It is undisputed that coincident with the 1947 organiza-
tional effort, management had its leaders physically examined by the company
doctor and then discharged them . As described fully below , precisely the same
surgical treatment was exercised in 1951 by Nance, with the professional assist-
ance of the same company doctor, Dr. B. A . Swinney, the day after the first
union meeting, which Nance admitted having witnessed . For example , two stal-
wart Negroes , one 6 feet 4 inches and the other 6 feet 3 inches tall, were
summoned from jobs which they had capably performed for 3 years without
illness or physical disability , were sent to Dr. Swinney, were reported by him
to have varicose veins, and by Nance were summarily discharged because, he
said, they did not measure up to certain physical standards which he himself
had set up-standards so strict that even the possession of flat feet was
disqualifying.
Employees remaining after these and numerous other 1951 discharges of union
adherents , nevertheless , continued seeking their legal rights to be represented
by the Union . The Board conducted a representation hearing on June 8. Four
of the five employees attending the hearing , as members of the union committee
or as observers , were thereafter discharged . In August , however, a majority
of the employees voted to be represented by the Union , at a Board election-an
election which Fleeger , as a witness , candidly testified he "felt bad about" and
"would like to have won." On September 6 the Union was certified by the Board
as the exclusive bargaining agent of all employees in an appropriate unit. A
few days thereafter, and despite this certification and election , the Respondent
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
put into effect an incentive system in one department, not only without con-
sulting the Union but also over the protest of the union president, who demanded
negotiation on this system, which clearly was and is an appropriate subject
for collective bargaining. As noted fully below, the union president was dis-
charged following this incident, which is claimed by General Counsel to constitute
a refusal to bargain.
B. Organization, surveillance , and the "physical examination" discharges
The first organizational meeting of the Respondent's employees was held after
the relief of the first shift at about 4 o'clock on April 9, at a point a mile or so
from the plant called the "Y" and formed by converging country roads, the plant
itself being situated in the outskirts of Longview . Three union representatives
were present and for a period of 2 or 3 hours, employees came and left. During
this open-air meeting, according to their own testimony as well as that of em-
ployees present, Nance and Furlani drove slowly around the "Y" and then back to
the plant. According to the plant officials, they merely happened to go by the
"Y," on their return to the plant after visiting a place called "Circle R" to obtain,
Nance said, "a drink of non-alcoholic beverages." Following their testimony,
however , it was established by credible and unchallenged evidence that the dis-
tance directly from "Circle R" to the plant is only eight-tenths of a mile, while
the route actually taken by Nance and Furlani, if their testimony is to be be-
believed, from "Circle R" by the "Y" and to the plant, is one and seven-tenths
of a mile, a fact indicating that purpose, and not chance, motivated their visit
to the "Y" at this time. As Nance and Furlani drove by the "Y", only six or
seven employees were then present. Particularly in view of the fact that most
of the employees who were then present were promptly discharged, the Trial
Examiner is convinced and finds that the above-described conduct of Nance and
Furlani constituted surveillance'
According to his own testimony, Nance went back to the plant at once after
leaving the "Y". Early the next morning, April 10, employees coming to work
saw on the bulletin board a notice signed by Nance , stating:
GENE-AL BULLETIN
To all Employees:
Effective tomorrow, April 10th, the annual physical examinations will be
begun.
Several men will be examined each day and you will be paid for the,
time you lose from work for this purpose at your regular hourly rate.
Nance claimed that he dictated this bulletin during the morning of April 9,
and that although he did not see it posted that day, he was "confident" that it
was, and that he "imagined" it was posted by his stenographer. The stenog-
2 According to the testimony of Odes Laminack , a former foreman, at the close of the
shift on April 9 be saw from a distance someone whom he identified as a company salesman,
Gay Glover , spying upon employees from behind an office building , and then following them
in his car from the plant . Laminack said he recognized Glover from the rear and by his
bald head . Glover , testifying later ,- established by records that he had left Longview early
the morning of April 9 , and could not have been seen by Laminack at the time cited.
Laminack's testimony and his demeanor as a witness in other respects were impressive and
credible, and the Trial Examiner believes that he was honestly mistaken in his identifica.
tion of Glover . His description, according to the Trial Examiner 's observation , fits equally
that of Furiani , and Furlani admittedly was at the "Y" soon after the incident. In the
absence of more convincing identification , however , the Trial Examiner makes no finding
as to who , if anyone, was spying upon employees from behind the office building.
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1347
rapher, if any, was not called as a witness, and the Trial Examiner can place
no "confidence" in Nance's "imagination," having observed him not only as a
witness but also for a period of nearly'2 weeks while the assistant general man-
ager, sitting daily at the counsel table, "watched other witnesses. There is no
credible evidence that anyone saw the bulletin until the morning of April 10,
after the first union meeting. The inference is reasonable that Nance, the only
top management official who had been employed by the concern operating the
plant in 1947 when union organization had been broken up by precisely the same
method, went back to the plant, as he admitted, after seeing employees at the
"Y", located in the files the notice posted in 1947 (credible evidence establishes
that the language was the same), changed the dates, and posted it or had it
posted late that night. The Trial Examiner is convinced, and finds, that the
posting of this notice by Nance was designed and intended by him to remind
employees of what had happened to their union leaders in 1947 and for the pur-
pose of discouraging further organization in 1951, and as such constituted inter-
ference, restraint, and coercion.
The explanation advanced by Nance and Fleeger, to the effect that physical
examination of all employees at this time was made necessary by a change in
insurance underwriters, fails to find any support in actual events or credible
evidence. Had the pretext merit, it is reasonable to believe that all employees
would have been examined, and as promptly as possible. Actually, however,
only 40 or 50 employees of the total payroll list of about 200 were examined
after posting of the notice, and none have been examined since the late spring
or early summer. At the hearing Nance announced, however, that the idea
had not been abandoned, and that he intended to continue carrying it out some-
time in the future. In view of this statement of intention, the Trial Examiner
will specifically recommend that the Respondent, before resuming this program,
if resumption for any legitimate reason is necessary, negotiate upon request
with the Union, the certified bargaining agent of all its employees in an appro-
priate unit, concerning its procedure and applicability. In no other way, it
appears to the Trial Examiner, may the employees 'of the Respondent be freed
and remain free from the threat and fear that their union activity will bring
to pass the intent voiced at least implicitly by Nance on the witness stand'
Further convincing evidence that immediately upon learning of union activity
Nance proceeded to set up both physical and behavior standards so restrictive
that a ready made excuse for discriminatory discharges would thereafter be
available , was the posting by him on April 10 of another bulletin, listing 31
"rules," violation of any one of which would be "cause for immediate discharge."
These rules included prohibition against distributing handbills "in or about
the plant," spreading false reports "detrimental to harmonious relations between
employees and the Company," advocating "overthrow of the American Social
Order,"' refusal to "follow an orderly procedure in the adjustment of grievances,"
8 The term "annual" In the above notice seems to be wholly without justification, under
any interpretation of the evidence. The present Respondent had controlled the plant only a
little over 2 months. And there is no credible evidence that there had been any physical
examinations , except of applicants for employment, required or given since 1947. Nor has
the Trial Examiner failed to consider the testimony of Pleeger,, Nance, and Dr. Swinney
that plans for physical examinations were discussed before April 9. One relevant docu-
ment, a letter from Nance to Dr. Swinney setting out "physical qualifications," bears the
date of March 22. Not only is the actual date of the letter in some doubt, since as found
below other documents produced by the Respondent were dated back, but the letter itself
makes no reference to "annual " or periodic examinations It states : "Pre-employment
physicals, injuries, etc., will be referred to you as in the past."
' Nance did not define his conception of "the American Social Order ." The subject is one
upon which the Trial Examiner hesitates to take official notice.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insulting another employee, failure to "attain the average efficiency of the de-
partment in which employed,"" assignment of wages "without consent of the
Personnel Manager," "running ... on plant property," and "removing foreign
particles from eyes of fellow employees without authority to do so." At the
close of this remarkable document, Nance urged the employees, "Let none of us be
'off the beam."' Although Nance claimed that a similar bulletin had previously
been posted, no credible evidence establishes this as a fact, and the Trial
Examiner considers his testimony to be wholly untrustworthy.
Promptly on April 10 Nance, through Furlani, began sending to Dr. Swinney
employees who attended the "Y" meeting and others active in the Union. Six
were thereafter discharged for "physical disqualifications," according to the
Respondent's claim. These discharges will be considered first.
During the morning of April 10, employees T. L. Lockridge, Z. B. Jones, and
Garland Newsome, while talking in a group, were approached by Assistant
Superintendent Williams, were told by him that they had been seen at the "Y"
meeting the evening before, and were asked if they had "joined up."' They
replied in the affirmative. Later the same day Lockridge and Jones were sum-
moned from their jobs and.sent to the office of Dr. Swinney, and in the after-
noon were summarily discharged by Nance. Newsome was put on Jones' job
for a few days, but on April 17 he also was sent to the doctor and then discharged.
Lockridge had not been examined since being hired in 1946. Although he, had
asthma in 1946, he was employed, and his testimony is undisputed that during
this long period he had never lost any time because of it, nor had he ever been
to a doctor for any treatment. The Respondent offered no evidence to show,
as claimed in its amended answer, that he was "incompetent to perform the
work" or that he lacked "physical qualifications to do the work." The fact
that he had performed his duties satisfactorily for a period of 5 years appears,
to the Trial Examiner, to be a more credible and convincing measure of his
"physical qualifications" and "competence" than Dr. Swinney's uncorroborated
examination of the employee or his report to Nance. The doctor's sole written
notation on his report of April 10 is: "this man's asthmatic condition is appar-
ently more severe. rales in chest. think the work he is doing is detrimental to
his health." (Italics supplied.) It is noteworthy that the doctor-perhaps
because he had not examined the employee since 1946, expressed his 1951 written
opinion in such guarded terms as "apparently" and "think." Having looked
Lockridge over the doctor told him, "I expect we better get you away from out
there. You're a young man now. You might turn into something bad." As a
witness for the Respondent, however, Dr. Swinney was more verbose, and said
that sometime "within 36 hours" he told Nance, orally, "that this man's history
and his physical examination showed that he was an asthmatic and that asth-
matics in my opinion, and also from the instructions they gave me, had no place
in the plant of the East Texas Steel because he was a hazard to himself and it
would become an aggravated condition if he worked in that dust out there."
On cross-examination, the only "history" Dr. Swinney cited was Lockridge's own
statement that he had been discharged from the Army in 1946 with bronchial
asthma. He admitted he did not even have before him the record of his pre-
hiring examination of the employee in 1946.
a No explanation was offered as to how this mathematical improbability was to be
accomplished.
Williams denied making this statement and inquiry . His denial is not accepted as
credible . Each of the three had attended the meeting . Nance and Furlani admitted having
driven by the meeting place.
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1349
Nance did not wait 36 hours. The same afternoon he discharged Lockridge
'because, he said, "he failed to meet our physical requirement." On Lockridge's
"'payroll removal" slip, Nance wrote as the reason for the dismissal: "failed
to pass annual physical examination." As noted above, the use of the word
"annual" lacks any credible explanation, since the Respondent had been in
existence only 2 months and Lockridge had received no physical examination
since he had applied for employment by another concern some 5 years before'
The Trial Examiner finds no merit in the Respondent's contentions as to its
reason for Lockridge's discharge. Credible evidence establishes, and the Trial
'Examiner finds, that this employee was discriminatorily discharged on April
10, 1951, because of his union activity, and for the purpose of discouraging mem-
bership in the Union.
Z. B. Jones, an individual 6 feet 4 inches in height and weighing 185 pounds
and, according to his undisputed testimony, of sufficient ability as a molder that
his work had been complimented by his own foreman, by Williams and by Nance,
'before April 10, was also discharged the day after he had attended the "Y"
meeting, and was told by Nance that he was being let go because of a varicose
vein on his leg. Jones' credible testimony establishes that he had acquired the
varicose vein as a boy of 14, that most of his life up to his present age of 37 had
been spent at hard, manual labor, and that he had never been bothered by it or
because of it had lost working time. It was present at the time he was hired at
the plant in 1948 after examination by Dr. Swinney. Also according to his
credible testimony, when stripped at the doctor' s office on April 10, he was told
to turn around, and then the doctor said, "Just like I thought, getting worse,"
and no more.
On his written report to Nance, the doctor said : "varicose veins getting
larger-becomming (sic) a hazzard (sic) to himself doing steel work." As a vis-
ibly perspiring and uncomfortable witness for the Respondent, Dr. Swinney
said, in part, on cross-examination :
Gentlemen, I tried on every one of these examinations, as soon as I got
through the examination and had time, either that day or the next day I
called Mr. Nance and explained the case to him or he came to my office and
I explained to him, and I says-now, this particular patient ( Z. B. Jones)
I told him, "This man has a very large varicostic and they are a hazard,
if he ever snags one of them working around steel, tears a hole in one or
snags his leg around one of those varicose veins, he will develop a varicose
ulcer." That ulcer may be somewhere from maybe one month, if he is
lucky-I have seen them go for years that they didn't heal up. I said, "He
is a definite hazard to the company."
As the record shows, 38 pages later, when asked to recall when he had discussed
Z. B. Jones with Nance, he said : "I don't remember discussing with him about
this man.... "
The Trial Examiner can place scant reliance upon Dr. Swinney's testimony.
The Respondent, in its answer, contends that Jones was discharged because
he was "not physically fit to carry on the work in which he was engaged without
endangering his own safety, resulting from natural liability on the part of the
company." The record Is barren of any credible evidence to support that part
of the Respondent's claim which is susceptible to interpretation.
The credible evidence establishes, and the Trial Examiner finds, that Z. B.
,Jones was discriminatorily discharged because of his union activity, in which
.he was a leader, and to discourage union membership.
215233-53-86
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garland Newsome, the third of the group accused by Williams of attending
the "Y" meeting , is also a molder of 3 years' employment at the plant, and was
among the first to engage in active union organization. Newsome, as a man
of 40, is an individual of no small stature, standing 6 feet 3 inches and weighing
218 pounds. He was not sent to Dr. Swinney on April 10, but took over Z. B.
Jones' job for a few days. On April 17 he was ordered to take a physical exam-
ination and on April 23 was discharged by Nance under almost exactly the same
conditions of Z. B. Jones.
Newsome also had varicose veins, which had been in his possession for 20
years and were present when he was hired, after examination by the same
doctor, at the same plant, in 1948. He had never lost any time nor had they
ever interfered with his work.
The Respondent's contentions as to Newsome are the same as to Jones and
Lockridge, and for the same reasons the Trial Examiner finds them to be
wholly without merit. The claim that Newsome was physically unqualified for
work in a foundry is refuted not only by his 3 years' of satisfactory service
at the plant taken over by the Respondent, but also by the fact that after being
discharged, he passed the physical examinaion at General Motors, Saginaw,
Michigan, plant, and worked in its foundry there.
The Trial Examiner is convinced by the credible evidence, and finds, that
Newsome, like Lockridge and Jones, was discriminatorily discharged to discour-
age union membership and because of his leadership in its organization.
Ezekiel Rogers began work at this plant in 1943 as a laborer. In the spring of
1951 he was a "swing grinder operator." He also attended the first union meet-
ing at the "Y" and was there when Nance and Furlani drove by. The Trial
Examiner is convinced and finds that he was seen there by the two officials.
On April 12 he was sent to Dr. Swinney. After examining him Dr. Swinney said
his blood pressure was "a little high," and he had "a murmur around his heart,"
and told him to cut down on his coffee "a little bit." The next day, April 13,
he was fired by Nance, being told by him that he had heart trouble and high
blood pressure.
The day after his dismissal , according to his credible, unchallenged testimony,
he consulted another doctor who checked and rechecked his heart and found
"nothing the matter," and who informed him that his blood pressure was "0. K."
Shortly thereafter, he sucessfully passed the preemployment physical examina-
tion at another concern, and has been working at building construction ever
since then.
The Respondent claims that Rogers was discharged "because of lack of physical
qualifications to work in a foundry and steel plant with safety" to himself "and
to fellow employees." The claim lacks any proof other than questionable opinion,
and is completely refuted by his long term of satisfactory service. The Trial
Examiner concludes and finds, from the preponderance of credible evidence, that
Rogers actually was discriminatorily discharged because of his attendance at
the union meeting and for the purpose of discouraging union membership.
W. C. Bogan began work at the plant in 1946 as an arc welder. In the spring
of 1951 he was an active leader in organizing the Union, and was present at the
"Y" meeting when Nance and Furlani drove by. Shortly thereafter, he was
asked by his foreman, T. F. Jones, if he had attended that meeting and he ad-
mitted the fact. On April 13 he was sent to Dr. Swinney and was summarily
discharged by Nance on April 17.
According to Bogan's own testimony, he had known he had high blood pressure
since 1940, but he had been passed for employment in 1946, and his work had
never been interrupted except for about 30 days in 1950, following heat prostra-
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1351
Lion. Upon his return to work he had continued his work at a cooler location.
And according to the credible testimony of Foreman Jones, Bogan's work up to
the time of his discharge had been satisfactory and he had no reason to let him
go.
Nance claims he discharged Bogan because of his blood pressure. Dr. Swinney
made this comment while being examined as,to Bogan^: "If you came to me as a
private patient with that kind of blood pressure, I would put you to bed at once."
It appears that Bogan was not Dr. Swinney's patient, for he promptly went from
the Respondent's plant to another welding job, at which he worked continuously
until just before the opening of the hearing.
The Trial Examiner finds no merit as to the Respondent's contentions concern-
ing Bogan. The credible evidence establishes, and the Trial Examiner concludes,
that the real reason for Bogan's discharge was his activity on behalf of the Union,
and to discourage union membership.
Burley French had been employed' at the plant since 1944. During this long
period he had been injured while at work on two or three occasions. After re-
covering from a burn, which kept him from work about 2 months in early 1951,
he was given the task of keeping the plant yard clean.
There is no evidence that French engaged in marked union activity, but he
joined, and he testified credibly, and the Trial Examiner finds that on one oc-
casion he asked Fleeger something about the Union and Fleeger told him he
"wasn't allowed to talk" about it.
He was sent to Dr. Swinney for examination on April 27. According to the
doctor, he found French in "pretty bad" condition. He had only four teeth, the
doctor said . And he had high blood pressure. He also testified that he called
Nance at once and told him that "this man had a hypertension that was
dangerous and that he had a kidney infection that needed immediate treatment,"
and he "didn't think he should be kept on the payroll any more."
Despite French's critical condition, if the doctor is to be believed, Nance ig-
nored the report for 4 months, until the day after the Union won the election.
On that day, according to the employee's credible testimony, Nance told him,
"You want the union-I am going to give you the Union," paid kiim off, and
warned him, "Go ahead away from the plant and don't come back or I will have
you put in jail." It appears that Nance, in his "category of personnel director,"
did not hesitate to express, by vivid conduct, his opinion of the election when
Fleeger merely said he "felt bad about" and "would like to have won."
The answer claims that French was discharged on August 29 "because of physi-
cal disqualification to work without endangering his own health and safety as
well as the health and safety of others." No evidence was adduced to show how
the health and safety "of others" was or could be affected by French, whose
job was picking up paper in the plant yard. Nance explained that he did not
dismiss the employee upon the doctor's report because "he's an old nigger and
he had been around the plant for a long time and I didn't-I had a place for him
at the time or we had a place for him and I just didn't choose to let him go, sir."
When asked why he had finally "let him go," Nance gave this somewhat
confused reply:
Well, the general manager of the company made a change in our operations
to some extent which effected Burley French's work category and-pertaining
to his attention, I suppose-this is a presumption on my part, that he was-
had been put to doing work which he wasn't able to do, and he instructed
me to remove him from the payroll. Can you hear me, Mr. Rhea?
J352 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Fleeger, on this point, testified :
I, of course, knew, that Burley was there sometime after the physical, and
when we got to a point where the job was going to be abolished or that we
needed an able-bodied man in that job I told them to let him go.
Furlani's testimony, however, clearly refutes Fleeger's statement that that job
was abolished, or "going to be abolished." And no evidence was adduced to
show that French was not fully capable of continuing at his job of cleaning the
yard. Furlani testified, credibly, that "one of the laborers" had been doing
French's work since the latter was fired.
The Trial Examiner finds no merit in the various contentions of the Respond-
ent as to Burley French. He concludes and finds that French was discrimina-
torily discharged on August 29 to discourage membership in the Union.
0. The refusal to hire A. L. Christian and the discharge of Foreman -Laminack
A. L. Christian was a crane operator for one of the Respondent's predecessors
from 1944 to 1947. As noted above, the Union began to organize the employees
early in the spring of that year. Christian was elected president of the local.
He was given a physical examination and promptly fired. Nance admitted having
known him during that period.
The credible testimony of Assistant Superintendent Williams and Foreman
Odes Laminack establishes and the Trial Examiner finds that the Respondent
was in need of the services of an experienced crane operator in April 1951.
Laminack, who had been Christian's supervisor in 1947, inquired as to Christian's
whereabouts and asked another employee to have him come to the plant. Chris-
tian, then not working, came to the plant and applied to Laminack for employ-
ment. Furlani came along at that point, and Laminack told the works manager
that here was a good crane operator available for hire, and that they needed one.
Furlani told Laminack, "Don't let him get away until I go up to the office and
check." Later Furlani told Laminack that he "couldn't hire him under any cir-
cumstances," because "he was there at the time the other union activity was going
on." In the meantime, Laminack had told Christian to see Nance. Christian did
so, and Nance told him to come back the following Saturday. The Trial Examiner
finds, from the credible evidence in the record, that this conversation with Nance
took place on or about April 24. Christian returned on April 28, and Nance took
his address and telephone number and said he would call him. He has never
called Christian nor sent for him. Several weeks after April 26 Christian sent
in a written application. Nance has never answered it'
The Trial Examiner is convinced and finds, from Nance's own testimony, that
he knew of Christian's union activity in 1947, and for this reason refused to
hire him. Such refusal to hire, at a time when the Respondent was in need
of a crane operator, was clearly discriminatory, and designed to discourage
union membership.
Odes Laminack began work at this plant in 1943 as a molder, and in 1945
became a foreman, a position which he continued to hold under the Respondent's
management until he was discharged on April 26, 1951.
The Respondent's answer, in a number of words, advances a number of reasons
for discharging this foreman who for a long period had had supervision not
° Furlani denied knowing Christian or anyone applying for the crane operator's job, and
denied talking to Laminack about either the job or Christian. Furlani, who engaged in
surveillance with Nance, as is shown by his own tefitithony. was an untrustworthy witness
His denials are not accepted as credible. Nance's unreliability as a witness has already
been plainly established.
EAST TEXAS STEEL CASTINGS COMPANY, INC . 1353
only of about 40 men on 2 shifts but also of'another foreman. The reasons given
are as follows :
. .. inefficiency as a foreman and not discharging his duties as a foreman
in the plant. He was incompetent and failed to discharge his duties as a
foreman. Also because of, and in connection with, his incompetency and
his lack of attention to his responsibilities and disposition not to assume and'
carry out his responsibilities, he, during working. hours, and while on the
job, engaged in drinking intoxicating liquors and after being warned by the
management that the use of alcohol or intoxicating liquor would not be
tolerated on the job, continued the use of alcohol and drinking on the job,
getting drunk on occasions. Further, and in connection with his mentioned
conduct, lie was discourteous to his superior, the works foreman, and on
occasions used harsh language toward the foreman. Such conduct, mean-
ing all of his mentioned conduct, was within the presence of all or part of
the employees of the company and destroyed his value to the company as
foreman.
The Respondent offered no evidence as to who, if anyone, was the "works,
foreman." And no credible evidence was offered to who that any or all of
the alleged conduct was in "the presence of all or part of the employees."
Laminack's superior was Williams, assistant superintendent. Williams, who
testified at. length about Laminack, mentioned no incident of his discourtesy or
of 'the use of harsh language. On the contrary, Williams not only 4admitted,
that he did not recommend Laminack's discharge, but also that he did not know,
before the event, that he was to be discharged. This fact has significance in
reflecting doubt not only upon the subsequent testimony of Furlani, but also upon
the merit of the Respondent's contention that drinking on the job was one factor
bringing about Laminack's discharge. Williams was the only witness for
management to recall any credible incident of this nature. In substance,
Williams said that sometime in April he talked to Laminack behind the ware
house during working hours and that Laminack had been drinking. Had the
occasion been of any special seriousness it is reasonable to believe that Williams
at least would have recommended his discharge. Furthermore, it is apparent
that drinking at the plant, by foremen, has not been an uncommon practice.
Foreman Hall, a witness for the Respondent, admitted that he himself drank on
the job. Credible evidence establishes, and the Trial Examiner finds, that after
Laminack was discharged, employee James Carpenter was instructed by Wil-
liams and Hall to "ride" Foreman Hubert Lemmonds around in his car to "sober
him up," after the latter reported for work late and drunk.
The testimony of Furlani, previously found to be an untrustworthy witness
on other matters, was confused and contradictory as to Laminack. He claimed,
"I discharged Laminack because he was drunk," and said that the occasion was
on April 20, when he became "drunk on the job." Almost immediately there-
after, however, he identified the occasion as having been after the close of the
shift, and not on the job but outside the plant. On cross-examination he vacil-
lated between April 20 and March 20 as the date when he decided to discharge
Laminack. Finally, when faced with a statement he had given to a Board agent
on May 24, he admitted that the incident of April 20 actually occurred on Febru
arr20, and that after-February 20 he never saw Laminack drink. Thus, Fur-
Ianf clearly refuted his own claim made on direct examination.
Nor can the Trial Examiner, place any reliance upon other testimony of
Furlani to the effect that since, February. 1 he and Williams "talked about"
Laminack "continually" and his failure to perform his duties as foreman, and
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such talks with Williams were "an every day occurrence." This patently,
false claim finds small support in Williams' testimony e
In short, the Trial Examiner finds that the evidence adduced by the Re-
spondent,itself--deprives of-merit its claims as to why Laminack was discharged.
Specifically, it is found that Laminack was neither incompetent nor was he
drunk on the job on April 20.
Other facts lead inescapably to the real reason for the foreman' s dismissal.
His brother, Hulan Laminack, a molder in his department, was an early
leader in the union movement, having been approached by Murphy before the
meeting of April 9. Credible evidence shows and the Trial Examiner finds, that
shortly before this meeting Furlani approached Foreman Laminack and said :
"I heard the union man was looking for your brother." Then he said : "You
better go over and talk to your bud and kind of get him straightened out .. .
It could reflect back to you."
On April 24, 2 days before his own discharge, he recommended to Furlani that
he hire A. L. Christian, head of the Union in 1947. It was thus made clear
to management that Laminack would not take part in its discriminatory
campaign.
The Trial Examiner is convinced by the preponderance of evidence and the
pattern of antiunion events, including the open campaign being conducted by
management to discourage membership in the Union, and finds that for the
same purpose of discouraging union membership, the Respondent discharged
Odes Laminack.
D. The discharge of R. L. Manning
Manning, hired at the plant in 1950, was a grinder in the cleanup department
on the night shift under Foreman E. D. Bowles, when the latter recommended
his discharge on May 14.
In substance, the circumstances preceding and leading up to the discharge
seem to have been as follows : Bowles caught Manning apparently asleep on
the job Thursday night, May 10, and again on May 11. On the latter occasion
he told the employee to go home, get some sleep, and return the next night.
Manning-did not. return until the -following +Monday, May. 14. Before the em-
ployee reported that afternoon Bowles recommended to his superior, T. F. Jones,
that Manning be fired for failing to come back on Saturday as instructed.
Jones transmitted the recommendation to Nance, and when Manning came in
he was paid off. This account of events is based upon the testimony of Bowles
and Jones, the only supervisors in positions to know precisely what happened.
For some unaccountable reason, however, Nance on some date made out a "pay-
roll removal" slip stating on it that Manning had "voluntarily quit," and in its
answer the Respondent claimed that Manning was not discharged but that he
quit.
In any event, General Counsel alleges that Manning was discharged because
of his union membership and activity. There is no evidence that he was par-
ticularly active, although it is shown that he joined. Of critical importance,
however, is the failure of any evidence to show that his union membership was
known to or suspected by any supervisor or member'of management. On the
contrary, according to Manning's own testimony, the night before he was
6 Nor does the Trial Examiner find credible the testimony of Fleeger that he and Furlani
discussed Laminack's discharge long before its occurrence. Had such discussion happened
and discharge been contemplated, it is reasonable to believe that Williams , the foreman's
immediate superior , would have been consulted or at least notified.
EAST TEXAS STEEL CASTINGS COMPANY, INC . 1355
"let out" Bowles told him, while he was outside the plant, to come on in and not
talk "with the Union people,"-a remark which does not indicate that Bowies
considered Manning to be a union member.°
',In, short, the evidence adduced by both General Counsel and the Respondent
fails to support the allegations of either.
It is concluded and found that credible evidence does not sustain the allega-
tions of the complaint that R. L. Manning was discharged to discourage union
membership. It will be recommended that the allegations as to this employee
be dismissed.
E. Curtailment of employnvent of Hulan Laminack and R. M. Richardson
It is General Counsel's claim, in effect, that the Respondent discriminatorily
deprived Laminack and Richardson of their normal amount of work for a
period beginning about June 1, because of their union membership and activity.
Richardson was not called as a witness and the record is barren of any
credible evidence as to his union activity, if any.
There is ample evidence that Hulan Laminack's interest in the Union was
known to management, as revealed in the foregoing section covering his brother's
discharge. And the testimony is in agreement that for an undetermined period
beginning about June 1 the employee, a molder, was given only 3 days of work
each week instead of the 6 he had been working.
It is the Respondent's contention, supported by records unrefuted by Gen-
eral Counsel, that lack of orders necessitated a reduction in certain molding
operations. Although there is some credible evidence that at about this time
an undetermined number of patterns were sent to another plant, with which
Fleeger is also connected, thus indicating the possibility that work was pur-
posely removed from the Longview plant, there is no substantial evidence
that the patterns thus transferred were those upon which Laminack would
have worked. Nor does the evidence show exactly how long Laminack worked
on ,a reduced schedule. Sometime before the hearing he was again working
5 days a week.
In view of the state of the record as to these two individuals, the Trial
Examiner concludes and finds that the evidence is insufficient to sustain the
allegations of the complaint as to them. It will therefore, be recommended
that the complaint be dismissed as to Hulan Laminack and R . M. Richardson.3°
F. The discharges of Lois Gentry, James Carpenter, Rufus Denton, and Vincent
Guice
All four of the above-named individuals on June 8 attended the representa-
tion hearing, above referred to, as members of the union committee or as observ-
ers. Nance and Fleeger also took part in the hearing. It is reasonably inferred,
and found, that both Nance and Fleeger saw these employees on this occasion.
Gentry and Carpenter'were fired within the next few days, Denton and Guice
somewhat later. The discharges will be considered in chronological order.
Lois Gentry worked in the cleaning department on the night shift under Fore-
man Bowles. During the latter part of April he was asked by Bowles if he had
° Bowles' remark to Manning was, however, unprivileged and constituted interference
and restraint.,
11 Hulan Laminack also testified that on April 9 he was followed by Gay Glover in a car
to the "Y" meeting. As noted heretofore , Odes Laminack also mistakenly identified Glover
as spying upon employees the same afternoon. Records unshaken by General Counsel
establish that Glover was not in the vicinity of Longview at the time.
1356 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
joined the Union. He admitted, the fact and Bowles told him, on that occasion,
and again about 2 weeks later, "not to talk to any of the boys about the union." ".
Gentry testified credibly, and, the Trial Exainer finds, that he reported for,
work as usual on Thursday, June 7, but was told by Bowles there would be no
work for him that night because the sand mill was broken.12
Gentry was present the next day, June 8, at the Board hearing, and both Nance
and Fleeger well knew he was there. He did not return on Saturday, he said,
because. his wife was ill, but he reported for work as usual on Monday afternoon.;
He could not find his time card in its place and went to the office where Nance,
asked him if he had not been at the hearing. Gentry admitted it. Nance asked
him why he had not talked to him at the meeting and the employee replied that
he had had nothing to talk about. Nance then told him he was being removed
from the payroll because he had not worked on June 7.
The Respondent 's answer claims that Gentry was discharged on or about
June 6:
because of his irregular work habits, his failure to be on the job with,
regularity, and report for work with regularity, and because his work was
unsatisfactory. He was absent from work without notice to the company,
and without making any excuse to the company for such absences on various
dates and occasions during the several months during which he was employed,
and particularly from and after March 7, 1951.
It is reasonable to believe that management had in its possession a record of
Gentry's attendance. No such records were offered to support the claim of
absences either before or after March 7. The Respondent raised this issue in
its pleadings, which the Trial Examiner finds in this respect are not sustained by
credible proof. Bowles' unsupported claim that Gentry "didn't seem to be
interested in his work and was laying off so much that I just recommended he be
discharged" is a mere rewording of the pleadings and can be accorded little
more weight.
The only pertinent record produced by the Respondent, his payroll removal'
slip, has plainly, by error or intent, been falsified. It bears the date of issuance
of June 7, and the signatures of Nance and T. F. Jones. Gentry worked the
night shift, and Jones on the preceding day shift. Gentry was not due to report
for work until the hour Jones was due to leave. Furthermore, although Jones,
with the slip before him while testifying, insisted that he signed it and Gentry
was discharged on the date it bears, June 7, he also testified that he did ,not
make the decision to discharge the employee until Bowles came to work on
Monday, June 11.
Under this circumstance of confusion and contradiction of the Respondent's
records and witnesses, the Trial Examiner finds there is no merit in its con-
tentions as to the dismissal of Gentry.
The inference is reasonable and the Trial Examiner concludes and finds that
the real reason for this employee's dismissal was his union activity as particu-
larly exhibted by his attendance on behalf of the Union at the Board hearing
on June 8, and that the discharge was discriminatory, for the purpose of dis-
couraging union membership.
"Bowles did not specifically deny making these remarks. He merely denied generally
"making any effort to find out who belonged to the Union or who didn' t belong to the,unlon,-
and that he knew Gentry belonged to the Union.
"Gentry's testimony on this point is unrefuted by Bowles , who was in charge of the.
shift.
EAST TEXAS STEEL CASTINGS COMPANY, INC . 1357
James Carpenter was employed in the furnace department laboratory from
June 1950 until June 13, 1951. His duties in general were to run analysis on
metal--after it was poured. He worked long hours, frequently from 4 o'clock
do the afternoon until 8 o'clock the next morning, although in the intervals
between pourings he had a good deal of spare time, and often was sent on
errands by management. His testimony is uncontradicted that he was given
standing permission by his supervisor, Homer McGuire, to go out and eat or do
errands during such spare time, without punching out.
Carpenter's testimony is corroborated by Foreman Roy Hall, a witness for
the Respondent, that it was a common practice for employees on the night
shift to leave the plant for coffee without punching out. Furthermore, Foreman
Hall also admitted having asked Carpenter to go out with him for coffee 18
At about midnight of the shift Carpenter started in the afternoon of June 12,
Hall "came by" and asked the employee to go out for coffee with him. They
went in Hall's car, and returned in about 20 minutes. Upon their arrival Nance
was there awaiting him, with several foremen and a guard. Nance called them
all into the office, and before the others as witnesses, summarily discharged
Carpenter; so he said, for leaving the premises without permission. Nance was
unmoved by the employee's protests that he had permission.
There is no credible evidence that Nance had ever before been at the plant
-this early in the morning. The evidence is plain that he had purposely come
there with the intent of entrapping Carpenter in an apparent violation of one
of the various restrictive rules he had posted on April 10.
The Respondent's answer claims that the employee was discharged because
of leaving his job without permission and for tardiness. No credible evidence
and no records were offered to support the claim to tardiness." The testimony
of the Respondent's own witnesses' deprives its other claims of merit.
The real reason for the discharge, the Trial Examiner is-convinced and finds,
was the employee's activity on behalf of the Union. He had previously handed
out union cards and was on the union committee at the June 8 hearing attended
by Nance. It is further found that Carpenter was discriminatorily dismissed to
discourage union membership.
Rufus Denton had been an employee at this plant for about 2 years at the
time of his discharge in July 1951. He worked in the cleaning room, chipping
castings.
The Respondent claims, in its answer, that this employee was dismissed because
of "insubordination and refusal to cooperate with his foreman and to comply
with the safety rules of the company."
As in other cases described above, the Respondent's own witnesses are in
such sharp dispute that it is difficult to determine precisely what proof it relies
upon.
Events in the plant immediately before the discharge appear to have been
as, follows : Denton had left his grinding machine to check castings for cracks
in the steel, which clearly and according to his foreman, Bowles, was a part
of`his job. In order to see, he pushed up his safety goggles, worn while at
78 As in other cases, management officials were in notable contradiction as to Carpenter.
F'urlani claimed the employee' s duties were such that he should have been on the job all
the time. Williams, however, like Hall, admitted that the laboratory men had time on
their hands.
14 The Respondent placed in evidence a document signed by Williams and headed "Per-
sonnel Report. ' Its text merely states that Williams asked Carpenter to stop visiting
with other employees. It bears a date of May 29. Williams had nothing to do with the
discharge of Carpenter and the document has no bearing upon Nance's discharge of the
employee.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the grinding machine. Bowles came up to him, told him he was going to have
him sign a "slip" and would be back in a few minutes. Shortly thereafter, the
foreman returned with a slip , which he told the employee was a "warning slip,"
and asked him to sign it, but at the same time told him he did not have to sign
if he did not want to. Denton decided not to sign and so Bowles had another
employee sign the slip . The document was placed in evidence by the Respondent.
It reads-all but the inserted text being printed as on an office form :
PERSONNEL REPORT
Name : Rufus Denton. Badge No. 359
Department : Cleaning Date 7-20-51
Remarks : This man has been reminded that it is against the rules to
run a grinder or Chipping hammer without his goggles . He has also been
told that he will be subject to discharge if caught again.
( Signed ) E. D. BowLES,
Foreman.
(Signed ) C. R. RussELL.
Witness.
Denton continued to work until July 24 when , upon reporting for work, he
found no card in the rack . He went to the office , and was there told by some
woman that he had been fired . The next day he called Nance, seeking explana-
tion . Nance would give him none over the telephone , but told him to come to
the' office for that purpose.' He went to the office where, as had Carpenter; he
found Nance surrounded by management witnesses . One of them was T. F.
Jones, a sort of general foreman over Bowles . Jones told the employee that he
had been fired for not wearing his goggles.
Bowles, as a witness , at first claimed that he recommended Denton 's discharge
"because he wouldn 't cooperate with me on safety rules," and explained that he
meant, by failure to cooperate , the employee 's not wearing his goggles . One page
later in his testimony , however , he claimed that he recommended Denton's dis,
missal because he would not sign the warning slip.
As to the first point claimed by Bowles,-not wearing the goggles, the foreman
admitted that he had never warned Denton before July 20. No evidence was
offered to show that he failed to wear his goggles after July 20. The slip signed
by Bowles himself , quoted above, is merely a statement of a warning given that
the employee was subject to discharge if caught again.
As to the second point-Denton 's failure to sign the slip, not only does the
document itself show no place provided for the employee's signature , ,but, during
his testimony Bowles admitted that he told Denton he did not have to sign it.
Moreover , as to warning slips in general , Furlani testified that the only one
he knew of where an employee was asked to sign, was this one concerning Denton.
Further confusion in the Respondent 's evidence is caused by Bowles ' testimony
that an employee could take off his goggles to check castings and Jones ' testi-
mony that he should not.
In short , there is no credible evidence in the record that either Bowles or Jones
recommended Denton 's discharge . It appears that he was warned , on July 20,
whether there was justification for the warning or not , but the offense, if any,
was not thereafter repeated , according to Bowles ' own testimony.
The>Respondent 's witnesses have deprived its contentions of merit.
It is reasonably inferred, and the Trial Examiner finds, that Nance seNed'upon
the issuance of the warning slip as a pretext for discharging Denton . Accord-
ing to Jones it was Nance who made out the payroll removal slip , and,n6t
himself.
EAST TEXAS STEEL, CASTINGS COMPANY, INC. 1359
The real reason for the discharge, the- Trial Examiner, concludes and finds, was
the employee's union activity. Sometime after the meeting at the "Y", another
meeting was held at a hall in Longview. Denton took a number of employees to
this hall in his car. The next morning, according to his credible testimony,
Bowles asked him what kind of a car he was driving, and when the employee
described it, sent him to the office. Nance and Fleeger were there. Nance asked
.him if he was not satisfied. with °his pay, and-Fleeger asked him if he thought the
Union could do more for him than he would.` He was then sent back to work.
On June 8, despite his previous lecture by Nance and Fleeger, Denton appeared
as a member of the union committee at the Board hearing. This union activity,
the Trial Examiner is convinced and finds, precipitated his discharge, which
was discriminatory and violative of the Act.
Vincent Guice also worked in the cleaning department, operating a burning
torch, on the day shift and under Foremen B. F. Ararat and T. F. Jones. Arant
was his immediate supervisor.
The Respondent, in its answer, claims that Guice quit on August 6 after being
told he must do a better job.
The Respondent placed in evidence a payroll removal slip indicating in an
appropriate column that Guice "voluntarily quit," and stating as a "detail
explanation of reason" :
This man was told he must do a better job. He said that he would find
another -job.
Apparently as an afterthought, someone added the following notation on the
face of the document:
This man has been given the second chance with us.
Thus doubt as to the merit of the claim of, quitting is raised by the Respond-
ent's own document. Further doubt is cast by Foreman Jones' testimony on
cross-examination. Upon being asked when, he had spoken to Guice about a
certain matter he replied :
That was on the day he was discharged, the particular time I have in mind.
The actual events relating to the employee's termination, the Trial Examiner
is persuaded by Guice's credible testimony, are as follows: With permission,
Guice had not worked on August 4, a Saturday. When he came in Monday
morning? August 6 Foreman Arant told him he had better have his work caught
up by' 4 o'clock or hunt up another job. Guice remarked that he guessed, he
could find one. Shortly thereafter, Jones came up to Guice and said, "Mr. Arant
said you said you could get another job." Guice admitted having said so,
whereupon the foreman ordered the employee to follow him. They went to the
time clock, where Jones punched out the employee's card, and the latter was
told to wait on the porch for his check. The facts plainly establish the dis-
charge, and not the quitting, of Guice.
The Trial Examiner finds unworthy of belief the testimony of Arant that
on the morning of August 6 he reprimanded Guice for burning a casting, and
Jones' testimony that he came up a few minutes later with a similar reprimand,
upon which Jones walked out. Had Guice been burning castings as frequently
as, Jones claimed, it is reasonable to believe he would have been discharged-long
before August 6. Furthermore, it is noteworthy that the Respondent introduced
no "Personnel Report" as to Guice.
" At about the same time Fleeger sent a four-page letter to all employees , urging them
that they would "be better off without any union."
1360 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
As noted above, Guice was present at'the• Board hearing on June 8.1' About
2 weeks before his discharge, Jones asked him if he had joined the Union. Guice
replied that he had, and Jones then asked how many others had done likewise.
Guice told him he did not know but that-he hoped all employees had.joined.
The Trial Examiner is convinced and finds that Guice's union activity was
the real reason for the discharge, and that Jones seized upon Guice's remark to
Arant, which plainly had been precipitated by the foreman, as a pretext for the
dismissal.
G. The discharge of J. L. Pritchett
J. L. Pritchett, employed at the plant since 1947, was working as a crane
operator at the time of his discharge on June 20. According to the Respondent's
answer he was dismissed
because of his reckless use of equipment of the company, and the reckless
and careless manner in which he operated an overhead crane, causing dam-
age of the property of the company and endangering the safety of 'fellow
employees, as well as because of his having on occasions failed to report for
work during regular work 'hours, or at the, commencement of his regular
work period and delaying the work in the department.
No evidence was offered by the Respondent to support the allegations relative
to his failure to report for work and that- portion of the answer is found to be
wholly without merit.
As to the claim of carelessness in operating the crane, the Respondent's case
rests mainly upon the testimony of Williams, assistant superintendent, who dis-
charged him and who was not his immediate supervisor but superior to the two
foremen who were supervisors over Pritchett : Odes Laminack and his successor
-Hall. Doubt upon Williams' credibility regarding Pritchett is cast by his own
'admission that he had received no reports from either Laminack or Hall of
having warned or, cautioned Pritchett- as to his operation of the crane. The
assistant superintendent claimed only that he had had a complaint from Foreman
T. F. Jones, at one time a substitute for Hall, the complaint being that Pritchett
had"dragged the chains?'' Not only did Jones, as a witness,, fail to corroborate
this claim; but Jones has been found above to have had an active part in the
campaign of ridding the plant of union members.
In apparent support of his testimony, the Respondent placed in evidence a
document purporting to be a memorandum from Williams to Furlani, bearing
the date of June 18, which cites a number of claimed derelictions on Pritchett's
part. The Trial Examiner can place no reliance upon the validity of this docu-
ment as proof of anything, not even of the date it bears. Although Williams
blandly said that this report was the usual report made by him to Furlani, he
later admitted that it was made up for his "own protection," and "in case there
was any questions concerning it." Although this memorandum refers to claimed
incidents as early as June 4, there is no evidence that he had ever before made a
written report on this employee. He further admitted that he never gave Pritch-
ett any warning that his job was in jeopardy, and further admitted that he had
,never heard of or used warning slips for employees "
16 Although Guice was•not questioned on this point , the finding rests upon the undisputed
testimony of Murphy , the union representative.
11 In view of warning slips placed in evidence by the Respondent in other cases, noted
above, this admission on the part of the assistant superintendent casts further doubt upon
their validity.
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1361
In view of Williams' testimony regarding this document, the Trial Examiner
places no reliance upon his testimony as a whole regarding this employee.
There is no question but that on one or two occasions minor accidents had
occurred during the brief period Pritchett ran the crane. Credible evidence
makes plain , and the Trial Examiner finds, that the crane and not the operator
was. at fault. Nor is there any dispute that the, crane had been in-faulty, condi-
tion for some time. Nor is there any convincing evidence that in any accident
was any damage caused to materials or individuals.
The Trial Examiner is convinced, and finds, that there is no merit in the
Respondent's contentions as to Pritchett.
Pritchett was, however, an active union adherent. He attended the "Y"
meeting, and solicited others to sign union cards. During the latter part of
April, Williams told him he thought he was interested in the Union and asked
him to let it alone before he got into trouble. During the first week in June,
Williams came to,, him and `said that,he..had warned- him once. about "talking
'union"' and told him he would get "into serious 'trouble."
On June 20, while operating the crane, the motor again stopped due to fault
of its repair, and a few metal flasks were knocked over. None was damaged.
Williams, however, promptly discharged Pritchett.
The Trial Examiner is convinced, and finds, that Williams discharged Pritchett
on June 20, not for carelessness but for his union activity, and that an accident
beyond the employee's control was seized upon as a pretext. The discharge
was discriminatory, and violative of the Act.
H. The refusal to bargain and the discharge of the union president
The complaint alleges, the answer does not deny, the Board found on August
15,18 and the Trial Examiner now finds, that a unit of the Respondent's em-
ployees appropriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act, includes all production and, maintenance em-
ployees at its Longview plant, the storeroom, billing, and production clerks, the
melters, the chief chemist, chemists, and chemist trainees, but excluding the
metallurgist, guards, clerical employees, and supervisors as defined in the Act.
At a Board-conducted election on August 28 a majority of the employees in
the above unit voted for the Union, and on September 6 the Regional Director
certified that the Union had been designated by a majority of the employees.
The Trial Examiner concludes and finds that on August 28 the Union was, and
at all times since then has been, the exclusive representative of all the employees
in the said unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions of employment.
On September 7, Murphy, representative of the Union, wrote to Nance specifi-
cally requesting a meeting "at the earliest possible moment" for the purpose
of negotiating a contract covering "wages, hours, working conditions, and
other conditions of employment." In the same letter Murphy informed Nance
of the identity of the recently elected officers of the Union, including Roy H.
Jones as president.
On September 10, Nance acknowledged receipt of the above letter, stating
that it was "being forwarded" to Fleeger, with whom "negotiations of the type
in question will have to be carried on." For some reason unexplained in the
record, also on September 10, Fleeger wrote to Murphy as well , on the letterhead
of another steel castings company in Tulsa, Oklahoma, stating that he had
received` Murphy's letter to'Nance'and could not set a date for a meeting because
18 95 NLRB 1135.
1362 DECISIONS dF NATIONAL LABOR RELATIONS BOARD
he would "be on trips" until the end of September. He further stated, however,
"I will return to Tulsa during the first week in October and will contact you."
Nor is it reasonably explained in the record why Nance, who claimed' that
his "functions largely might be covered by the category of personnel director,"
lacked authority to meet with the union representatives.
In any event, on the same day that both Nance and Fleeger answered the
letter which one said was being forwarded to the other, and both made it plain
that no immediate negotiating date would be set, as requested, the Respondent
proceeded unilaterally to set up a new pay schedule for the union president and
the' molding crew on the night shift. It was this act of the Respondent which
General Counsel claims to have constituted refusal to bargain in good faith-
The change in computing pay was effectuating an incentive system, planning
and studies for which had been made long before the election and which had
previously been set up in certain other departments. General Counsel claims
only that the Act was violated by extension of the plan to another department,
after the election, and particularly after the Union had formally asked to
negotiate concerning pay rates, working conditions, etc.
Jones' crew worked under the new system on the September 10 shift. At the
beginning of the shift on September 11, Jones and the other employees affected
went•to Furlani to protest against continuance of its applicati9p. It appears that
Jones acted as the spokesman for,the group, and he asked that Furlani negoti-
ate the issue with the Union. Furlani refused, saying in effect that he had
nothing for the Union to negotiate, and asked Jones if he was refusing to
work. Jones insisted that he was not refusing and was willing to continue
working under the old system, but did not want the new system. Furlani then
told Jones to punch out and had Nance get his check.
Jones promptly reported the incident to Murphy, who unsuccessfully tried
at once to reach some official by telephone. On the following day, September 12,
Jones and Murphy visited Nance. Murphy demanded that Jones be reinstated
and that the Respondent negotiate 'concerning the piecework system.' Nance
agreed only to transmit the demand to Fleeger, and promised to call Murphy
the next day. He did not call the next day, but on the 14th Murphy called him.
Nance told him that Jones would not be reinstated, a position which the Respond-
ent maintained up to and including the hearing.
The Respondent claims that Jones quit, and was not discharged. The claim
has no merit-,and is unsupported by credible evidence. Even if the claim were to
be accepted at face value, it is clear from Nance's own testimony that on
September 12, the next day, he was informed that Jones desired reinstate-
ment, and no reason was advanced for refusing to put him back to work.
The credible evidence shows, and the Trial Examiner concludes and finds
(1) that Jones, the union president, was discriminatorily discharged on Sep-
tember 11 because he insisted that the piecework or incentive system be negoti-
ated with the Union, as it applied to his department ; " and (2) that by this
discharging Jones and declining to negotiate concerning the issue of the in-
'BIt is also found that a few weeks after the "Y" meeting, Jones' foreman, Hubert
Lemmonds, asked him if he had joined the Union and further asked if he did know the
employees would be discharged for joining. Such questioning constituted interference,
restraint , and coercion. '
EAST TEXAS ' STEEL CASTINGS COMPANY, ,INC. 1363
centive system, as above described, the Respondent failed and refused to bar-
gain in good faith R0
I. Concluding findings
In conclusion, the Trial Examiner concludes and finds that the Respondent
has interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed by the Act by a continuous campaign since April 9, 1951,
designed to discourage union membership and activity, and by the following
specific acts and conduct : Surveillance of the union meeting on April 9 by
Nance and Furlani; inauguration and application of the'physical examination
program beginning April 10,; the discriminatory discharges of the following
employees on dates set opposite their names :
T. L. Lockridge__________ April 10 Lois Gentry_____________ June 11
Z. B. Jones -------------- April 10 James Carpenter--------- June 13
Garland Newsome -------- April 23 Rufus Denton___________ July 20
Ezekiel Rogers__________ April 13 Vincent Guice___________ Aug. V 6
W. C. Bogan_____________ April 17 J. L. Pritchett___________ June 20
Burley French___________ Aug. 29 R. H. Jones_____________ Sept. 11
Odes Laminack---------- April 24
therrefusal to hire A. L Christian on April 24; Williams' inquiry of Lockridge,
Jones, and Newsome on April 10 if they had joined the Union ; inquiry of W. C.
Bogan by Foreman Jones if the employee had attended the union meeting ;
Nance's statement to Burley French on August 29 that he would "give him the
Union" at the time of his discharge ; Foreman Bowles' warning of employee
Manning not to talk to the union people ; Bowles' questioning of employees
Gentry and Guice as to their union membership; Williams' warning to Pritchett
to leave the Union alone or get into trouble ; questioning of employee R. H. Jones
by Foreman Lemmonds if he had joined the Union ; and the refusal to bargain
in, good faith on September 11, 1951.
It`is further found that the Respondent has not, discriminated against , Man-
ning, Hulan Laminack, or R. M. Richardson.
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 its operations described in Section I, above, have a close, inti-
mate, 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.
20 Two negotiating meetings have since then been held, the parties stipulated , the first
on September 26 and a second on October 8. None was held during these proceedings.
It was further stipulated that at a prehearing conference at the Regional Office, counsel
for the Respondent voiced willingness to negotiate concerning the incentive plan-a tacit
admission that the Respondent recognized that the subject is a proper one for negotiations.
This indication of willingness , however, does not remedy the fact that refusal was made,
on September 11, by discharging Jones and by putting the system into effect, unilaterally,
in his department despite his protest. Although General Counsel makes no claim of refusal
to bargain before September 10, in determining the issue as of that date, the Trial Examiner
notes that as early as June 8, at the Board hearing, the Respondent was made formally
aware of the Union's claim to represent a majority of its employees. On August 20, after
clear knowledge of the Union's claim, the system was installed for the day shift an the
molding department.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard,to the
hire and tenure of employment of certain employees as 'follows :
T. L. Lockridge__ April 10
Z. B. Jones -------- April 10
Garland Newsome----- - April 23
Ezekiel Rogers ---------- - April 13
W. C. Bogan____-__-._ April 17
Burley French___________ Aug. 29
Odes Laminack__________ April 24
Lois Gentry_____________ June 11
James Carpenter--------- June 13
Rufus Denton ----------- - July 20
Vincent Guice------------ Aug. 8
J. L. Pritchett___________ June 20
R. H. Jones ------------- ,Sept. 11
A. L. Christian---------- April 24
It will be recommended that the Respondent offer to each of them immediate
and full reinstatement (in the case of A. L. Christian immediate placement) to
their former or- substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and that they be made whole for any
loss of pay they may have suffered by reason of the discrimination against
them, by payment to each of them of a sum of money equal to that which he
normally would have earned as wages from the date of the discrimination to
the date of the offer of reinstatement , less his net earnings n during such period.
The back pay shall be computed in the manner established by the Board, and
the Respondent shall make available to the Board payroll and other records to
facilitate the checking of the amount due.2'
It will be recommended that the Respondent, upon request, bargain collectively
with the Union with respect to wages, hours, and other terms and conditions
of employment , and if an understanding is reached embody such understanding
in a signed agreement.
The character and scope of the unfair labor practices engaged in by the
Respondent indicate an intent to defeat self-organization of its employees. It
will therefore be recommended that the Respondent cease and desist from in
the exercise of the rights guaranteed by the Act.
Upon the basis of the above findings of fact and upon the entire record in
the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAw
1. United Steelworkers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
T. L. Lockridge, Z. B. Jones, Garland Newsome, Ezekiel Rogers, W. C. Bogan,
Burley French, Odes Laminack, Lois Gentry, James Carpenter, Rufus Denton,
Vincent Guice, J. L. Pritchett, R. IT. Jones, and A. L. Christian, thereby dis-
couraging membership in the Union , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. All production and maintenance employees at the Respondent's Longview
plant, including the storeroom, billing, and production clerks, the melters, the
11 Crossett Lumber Company, 8 NLRB 440.
22 F. W. Woolworth Company, 90 NLRB 289.
EAST TEXAS STEEL CASTINGS COMPANY, INC. 1365
chief chemist, chemists, and chemist trainees, but excluding the metallurgist,
guards, clerical 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.
4. United Steelworkers of America, CIO, was on August 28, 1951, and at all
times since then has been, the exclusive bargaining representative within the
meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for
the purposes of collective bargaining.
5. By refusing to bargain collectively with the Union as the exclusive bar-
gaining representative of the employees in the 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.
6. 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not engaged in unfair labor practices as to R. L.
Manning , Hulan Laminack, and R. M. Richardson.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in UNITED STEELWORKERS OF AMERICA,
CIO, or in any other labor organization of our employees, by refusing to
hire, by discharging any of our employees, or in any other manner dis-
criminating against them or applicants for employment in regard to their
hire and tenure of employment or any term or condition of employment.
WE WILL NOT interrogate our employees concerning their membership in
or adherence to UNITED STEELWORKERS of AMERICA, CIO, or any other labor
organization, or threaten reprisals for such membership or adherence.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist UNITED STEELWORKERS OF AMERICA, CIO, or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other mutual aid or protection, and
to refrain from any or all of 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.
WE WILL bargain collectively upon request with UNITED STEELWORKERS of
AMERICA, CIO, as the exclusive representative of all employees in the fol-
lowing bargaining unit, with respect to rates of pay, hours of employment,
and other conditions of employment, including physical examinations, and
215233-53-87
1366 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
if an understanding is reached , embody such understanding in a signed
agreement : `
All production and maintenance employees, including storeroom, billings
and production clerks, the welters, the chief chemist , chemists , and chemist
trainees, but excluding the metallurgist, guards, clerical employees, and
supervisors as defined in the Act.
WE WILL offer to the following individuals immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges, and make them whole for any
loss of pay suffered as a result of the discrimination against them :
Odes Laminack
T. L. Lockridge
Z. B. Jones
Ezekiel Rogers
W. C. Bogan
Garland Newsome
J. L. Pritchett
Burley French
Lois Gentry
James Carpenter
Rufus Denton
Vincent Guice
R. H. Jones
A. L. Christian
All of our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
the hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
EAST TEXAS STEEL CASTINGS COMPANY, INC.,
Employer.
By -----------------------------------------------
(Representative ) (Title)
Dated.--------------------
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material. ,
PHOTOSWITCH, INCORPORATED and INTERNATIONAL UNION OF ELECTRI-
CAL, RADIO AND MACHINE WORKERS, C. I. O. Case No. 1-CA=850.
,June 30, 1952
Decision and Order
'On July 26, 1951, Trial Examiner Louis Plost issued his Inter-
mediate 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 Inter-
mediate Report attached hereto: Thereafter, the Respondent 'filed
exceptions to the Intermediate Report.'
%
1 This document , although entitled "Respondent's Bill of Exceptions to the Intermediate
Report and Recommended Order of the Trial Examiner ," is actually a combined statement
of exceptions and brief in support thereof.
99 NLRB No. 170.