Berg-Airlectro Products Co.

National Labor Relations Board - Board Decisions

Jun 5, 1961

131 N.L.R.B. 982 (N.L.R.B. 1961)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berg-Airlectro Products Company and Odessa Stewart
Local 5806, United Steelworkers of America , AFL-CIO, and its
President, Mathew Ray and Odessa Stewart . Cases Nos. 13-CA-
3343 and 13-CB-819. June 5, 1961
DECISION AND ORDER
On June 30, 1960, Trial Examiner Earl S. Bellman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent Company had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from 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 Company had not engaged in certain other unfair
labor practices alleged in the complaint; and that the Respondent
Union and its president, Respondent Mathew Ray, had not engaged
in the unfair labor practices alleged against them in the complaint.
Thereafter, the Respondent Company and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner with the modification noted.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Berg-Airlectro
Products Company, Chicago, Illinois, its officers, agents, successors,
and assigns, shall:
1 The Respondent Company's request for oral argument is hereby denied as the record,
exceptions , and briefs adequately present the issues and the positions of the parties
9 we agree with the Trial Examiner that Respondent ' s response to Barker during the
meeting of June 17 that "he shut down the plant for Barker" was not, in the context in
which it was made, a violation of Section 8(a) (1) of the Act
8 we agree with the Trial Examiner that Respondent Ray's conversation with Plant
Superintendent Porter and employee Golden, on June 16, 1959, cannot be construed as
tantamount to a request that Porter discharge employee Stewart , and hence that the
Respondent Union and Respondent Ray had not "caused or attempted to cause " the Re-
spondent Company to discriminate against Sewart in violation of Section 8(a) (3) and
consequently had not violated Section 8 ( b) (2) and ( 1) (A) of the Act.
In view thereof , we find it unnecessary to comment on the Trial Examiner's reference
to Denver Building and Construction Trades Council , International Union of Operating
Engineers, Local No. 9 ( Henry Shore), 90 NLRB 1768, and its applicability in circum-
stances which are not here present
131 NLRB No. 123.
BERG-AIRLECTRO PRODUCTS COMPANY 983
1. Cease and desist from :
(a) Discouraging membership in Local 5806, United Steelworkers
of America, AFL-CIO, or any other labor organization of its em-
ployees, by discharging, or in any other manner discriminating against
any employee in regard to his hire or tenure of employment, or any
other term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist the aforesaid Union, or any other labor organization, to
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Odessa Stewart immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her
seniority and other rights and privileges previously enjoyed, and make
her whole for any loss of pay she may have suffered by reason of the
discrimination against her, in the manner set forth in the section of the
Intermediate Report entitled, "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant at Chicago, Illinois, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent Company, be posted by it immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent Company to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
* 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."
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
Respondent Union and Respondent Ray violated Section 8 (b) (2) and
(1) (A) of the Act by causing, or attempting to cause, the Respondent
Company to discriminatorily discharge employee Stewart, and inso-
far as it alleges that the Respondent Company violated the Act by
interrogating its employees and threatening its employees with eco-
nomic reprisals be, and the same is, hereby dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 Local 5806, United
Steelworkers of America, AFL-CIO, or any other labor organi-
zation, by discharging, or in any other manner discriminating
against, any employee in regard to his hire or tenure of employ-
ment, or any other term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist the aforesaid Union, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer Odessa Stewart immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority and other rights and privileges, and
make her whole for any loss of pay she may have suffered as a
result of the discrimination against her.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of Local 5806, United Steelworkers
of America, AFL-CIO, or any other labor organization.
BERG-AIRLECTRO PRODUCTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
BERG-AIRLECTRO PRODUCTS COMPANY
INTERMEDIATE REPORT AND RECOMMENDED ORDER
985
STATEMENT OF THE CASE
Upon duly filed and served charges of Odessa Stewart, an individual , herein also
called the Charging Party, the General Counsel of the National Labor Relations
Board, herein called , respectively , the General Counsel and the Board, by the
Regional Director of the Thirteenth Region (Chicago, Illionis ), issued an order con-
solidating cases, a consolidated complaint , and a notice of consolidated hearing
in the above-captioned cases. The consolidated complaint, dated September 30,
1959, alleged violations of Section 8(a) (1) and ( 3) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act, on the part of Respondent Company, herein
also called the Company, and violations of Section 8(b)(1)(A ) and (2) on the
part of Respondent Ray and Respondent Union, herein also called the Union.
Copies of the aforesaid complaint and notice of hearing thereon were duly served
upon Respondent Company, Respondent Union, Respondent Ray, and the Charging
Party.
With respect to the unfair labor practices , the complaint essentially alleged that
Respondent Union and its president , Respondent Ray, about June 16, 1959 , caused
and attempted to cause Respondent Company to discharge Odessa Stewart "by
requesting , demanding and insisting" that it discharge her because she "engaged in
union or other concerted acitvity"; that about July 2,1 Respondent Company dis-
criminatorily discharged Stewart because she engaged in "union or other concerted
activity" and because of "the requests , demands and insistence" of Ray and the
Union ; that Respondent Company has since failed and refused to reinstate Stewart
for the aforesaid reasons; that the president of Respondent Company, about June
17, "threatened employees with economic reprisals" if said employees "persisted in
having Respondent Union bargain for them"; and that, about June 27, said president
"interrogated employees regarding their union sympathies and intentions."
An answer was duly filed by Respondent Company. An answer was also duly filed
for Respondent Union and Respondent Ray jointly . The aforesaid answers both
admitted certain facts; indicated lack of knowledge as to some matters; denied
the commission of any unfair labor practices ; and were silent as to explanations and
affirmative defenses.
Pursuant to an order duly rescheduling the hearing , a consolidated hearing was
held on January 25, 26 , 27, and 29 and February 2 and 3, 1960 , at Chicago , Illinois,
before the duly designated Trial Examiner . The General Counsel, Respondent
Company, Respondent Union , and Respondent Ray were all represented by counsel,
and participated throughout the hearing. On the second day of the hearing, during
cross-examination of the Charging Party, who was called as the General Counsel's
first witness , a motion by Respondent Company for the separation of witnesses was
granted . After the General Counsel had rested , various motions by the several
Respondents , which taken together essentially sought dismissal of the respective
allegations of the complaint for lack of proof , were argued by all parties; were
duly considered ; and were denied without prejudice to renewal . At the close of
the hearing , further oral argument was heard , particularly by Respondent Company
and the General Counsel as to the alleged independent 8(a)(1) violations . Also the
parties were asked to address themselves , in briefs which all indicated they desired
to file, to several matters which were explained on the record . In addition , a motion
by the General Counsel to conform the pleadings to the proof was granted without
objection .2 Finally, because of certain aspects in this case, I urged the parties (on
the record just before closing the hearing ) to consider the possibility of attempting
settlement.3
'Unless otherwise shown, all dates herein refer to the year 1959
2 There are numerous errors in the transcript , but corrections will be indicated only in
a few instances , and then at points where related matters are mentioned in this report
Accordingly , the statements at lines 15 through 17 , on page 902 , are corrected to read :
I notice that you made your motion to conform pleadings , so it goes Wall the plead-
ings in such formal respects As no one is indicating objection , the motion is granted
Line 8 on page 903 is corrected to read
understanding among yourselves , some understanding by which this matter can be
settled
The sentence at lines 1 and 2 on page 904 is corrected to read
My best wishes in reaching such a conclusion , and what I consider would be a most
happy conclusion , resulting in my not having to write an Intermediate Report.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to extensions of time for filing to April 7, 1960, duly granted by the
Chief Trial Examiner, very able briefs, which have been painstakingly considered,
have been filed by the General Counsel, Respondent Company, and Respondent
Union.4
Upon the basis of the entire record in this case, and from my observation of the
demeanor of the witnesses at the hearing, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Berg-Airlectro Products Company, an Illinois corporation, maintains its principal
office and place of business at Chicago, Illinois, where it is engaged in the-manu-
facture, sale, and distribution of airbrake components and related products. In the
course and conduct of its business operations during the calendar year 1958, the
Company sold and shipped finished products valued in excess of $50,000 directly to
customers located outside of the State of Illinois. During that same year, the Com-
pany sold and shipped finished products valued in excess of $500,000 to manufac-
turing firms located in the State of Illinois; said firms during said period, in turn,
sold and shipped finished products valued in excess of $50,000 directly to customers
located outside of the State of Illinois. On the foregoing admitted facts, I find that
the Company is engaged in commerce within the meaning of the Act, and that it will
effectuate the policies thereof to assert jurisdiction.
II. RESPONDENT UNION AND RESPONDENT RAY
Local 5806, United Steelworkers of America, AFL-CIO, is concededly a labor
organization within the meaning of Section 2(5) of the Act. At the time of the
events in issue in the instant matter, Mathew Ray, Respondent Ray herein, was
admittedly the president of Respondent Union, and its agent , within the meaning of
Sections 8(b) and 2(13) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preface
Before getting into the details of this complex and unfortunate case, the events
of which cover approximately the first half of the year 1959, some prefatory remarks
may assist in orientation. The issues herein arise out of a sorry situation in which
-a new local union, under inexperienced local leadership, was entering its initial
period of labor-management relations, in -a small plant in which management also
was inexperienced in such matters. Moreover, this delicate process was taking place
at a time when the parent organization, which might otherwise have devoted more
time to the affairs of the approximately 100 members of this new local, was occupied
with broader developments which culminated in last year's national steel strike. In
addition, almost from the inception of its organization, misunderstandings, disagree-
ments, and resentments developed among officers of the Union, primarily between
its president, Mathew Ray, and its vice president, Odessa Stewart, which eventually
became so intense and bitter that casualties thereof included not only the unity of
the Union, but also respect for truth on the part of several witnesses at the hearing.
Moreover, it seems possible that some aspects of this case may have become
tinged by racial feelings between non-Caucasians, Respondent Company's employees
being predominantly Negroes and Puerto Ricans.5 And finally, while criticism of a
The last of the above briefs, which Is entitled "Respondent Union's Brief," Is signed
by the same two attorneys who appeared at the bearing for both Respondent Union and
Respondent Ray Their brief indicates that Mathew Ray was removed by the Union from
his office of president Immediately after the hearing In the instant matter; that James H
Griffin, a witness called by the General Counsel, who was vice president of the Union at
the time of the hearing, is now the Union's president; that both the General Counsel
and Respondent Company have knowledge of the fact that Ray is no longer the president
of the Union ; that "both were informed that the fact would be shown in" Respondent
Union's brief ; and that subsequent to the hearing Ray has filed "a decertification petition
against" Respondent Union, Case No. 13-RD-417, of which `Judicial notice can be taken "
In view of the foregoing, said brief will be herein referred to as the Respondent Union's
brief.
S While the Company seeks to keep its employment about equally divided among Negroes,
Puerto Ricans , and Caucasians , none of the employees testifying at the hearing was
Caucasian.
BERG -AIRLECTRO PRODUCTS COMPANY 987
union president, whose financial difficulties lead him to borrow a substantial amount
from a fund maintained by the Company with which he was dealing, is quite under-
standable, it is equally understandable that a man of Ray's tense and aggressive
temperament would deeply resent humiliation at the hands of a tense and aggres-
sive woman, Vice President Stewart.
From the foregoing, it is patent that the numerous contentions of the parties
cannot be considered in a factual or legal vacuum. Further, I believe it would be
well to say at this point that long and careful study of the complicated series of
situations revealed by this rather extensive record, about which a good deal of the
testimony is ambiguous, confused, or flatly contradictory, leaves me with the ulti-
mate conviction that, while Respondents 6 were not as conspiratorial in getting
Stewart out of the plant as the General Counsel contends, neither were all of them
free from taint with respect thereto.
In addition, there are several involved questions, raised by the contentions of the
parties, which must eventually be considered and which it would be helpful to have
in mind as the story unfolds. Among these are whether the termination of Stewart's
employment came about because she quit, as the Respondents essentially contend, or
because she was discharged, as the General Counsel contends; whether Ray actually
caused Respondent Company to do anything; whether what Respondent Company
did resulted from its own independent motives and decision, even if the result
thereof was in line with what Ray desired; and whether, in any event, Ray was
acting for personal reasons and only for himself, thus placing whatever he did out-
side of the scope of his authority as president of the Union, and hence beyond
remedy by the Board.
Generally speaking, many factual details which impress me as of relatively minor
significance have been omitted in making the findings which follow, and numerous
variations in the testimony have not been alluded to, particularly where the weight
of the evidence points to findings not too strenuously contested. However, the
parties may be assured that all of the evidence and all of their ably pressed con-
tentions have been diligently considered, and that credibility of witnesses and in-
herent probabilities have been carefully weighed, in making all findings herein and
in reaching all conclusions. But because of intense feelings in this relatively small
plant, I believe that the purposes of the Act will better be served by treating some
of the credibility issues more with compassion than precision. In short, my failure
to pinpoint all of my reasons for believing or not believing various witnesses on
numerous matters stems partly from my feeling that the future of labor relations
here involved can better be served Eby avoiding branding individual witnesses, so far
as possible, and by indicating rather that several witnesses were lacking in veracity
during parts of their testimony. In any event, much of what appears in this report
has been written more with a sense of sorrow than of censure.
B. Sequence of events, conflicts and credibility
1. Initial events and developments
Odessa Stewart, whose termination of employment is the principal issue in this
case, entered the employ of the predecessor of Respondent Company in December
1953. Stewart's employment has been broken some'three or four times by layoffs
and rehirings, the last layoff being in January 1958. About September of that year,
Stewart telephoned the plant of Respondent Company, whose president is Arthur A.
Berg, and talked with Percy Porter, the plant superintendent,7 about coming back
to work. Porter, who has been the plant superintendent during the entire course of
Stewart's employment,6 told her that as soon as there was an opening he would let
her know. Subsequently, Stewart resumed employment with the Company about
the last of November 1958. She thereafter worked on the first shift, from 8 a.m. to
6 When the term "Respondents" is used herein, it will be understood to mean Respondent
Company, Respondent Union, and Respondent Ray
7A general manager, Harold H. Dobrikin, comes between Berg and Porter in the
managerial hierarchy
s Porter testified that he has worked for Arthur Berg for some 14 years : that the
"previous company" for which he had worked was owned by Berg ; that the plant of said
previous company was located at the "same place, 2630 South Wabash," as Respondent
Company's plant ; and that he started working for Respondent Company when it came
into existence on January 1, 1958. It is clear that, whatever the precise predecessor
relationship may have been, Porter's general supervision of Stewart as an employee dates
back to 1953
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4:30 p.m., in the assembly department, under the direct supervision of its foreman,
Cleveland Reed.
During December 1958, an election was conducted by the Board at the plant of
Respondent Company. Shortly thereafter the Board certified, as collective-bargaining
agent for the Company's production and maintenance employees, United Steel-
workers of America, sometimes herein called Steelworkers, whose staff representative
with respect to said employees has been, at times herein material, Tom Barker.
Early in 1959, before Local 5806, the Union herein, was formed, negotiations for
a contract got underway between Berg and Porter, for Respondent Company, and
a committee, headed by Barker, which included three elected representatives from
the employees, Mathew Ray, Henry Phillips, and Domingo Cortes. During these
negotiations, a union demand for a flat increase of 25 cents an hour was "even-
tionally ironed down" to 121/z cents an hour, as Porter, the principal witness for
Respondent Company expressed it.9 However, agreement could not be reached on
another union demand, one for time-and-a-half for all hours worked in excess of 8
hours in any I day.
During the course of the foregoing bargaining negotiations, the financial problems
of Mathew Ray, who had had several wage assignments , became a matter of con-
siderable concern and discussion. It was sugegsted by Berg that Ray get all of
his bills together so that an attempt could be made to straighten out his tangled
financial situation. Eventually Berg or Porter, or both, were able to get some $400
worth of Ray's bills, which were then in the hands of a credit agency, scaled down
to $300, and Ray was loaned this amount from a fund which the Respondent has
maintained for some years to assist employees over financial difficulties.
The funds used for the foregoing purpose come from the sale of scrap metal and
from profits on vending machines in the plant, and are administered by Porter, all
loans being made without interest. The procedure is largely personal and informal,
small loans being made in cash where repayment is to be made in a short time.
However, when the amount loaned is large and payments thereon are to be made
over a considerable period of time, a regular payroll deduction procedure may be
•followed. Such a procedure was used in the case of the above $300 loan to Ray,
the largest loan ever made from the fund, the existence of which is generally known
to the employees in the plant.10
This said $300 loan, the check for which was dated March 4 and was made
payable to the credit agency involved, was thereafter to be repaid at the rate of $10
per week, the payments to be by payroll deductions through payroll checks made
payable jointly to Ray and Respondent Company and to be deposited by Porter in
the account of the Berg-Airlectro employee fund. In connection with the foregoing
attempt to get Ray's financial status on a sound basis, I am satisfied that Berg also
suggested to Ray, in the presence of other persons engaged in the negotiations, essen-
tially that if Ray should decide to buy such items as a home, furniture, or a car, Ray
should let Berg advise him, as one unfamiliar with the pitfalls of credit procedures
could end up even paying as much as $200 for a $60 suit.
On February 26, the negotiations having not eventuated in a contract, the employ-
ees of the Company went on strike. Whatever actually may have been the posture
of negotiations leading to the strike, at least some of the employees understood that
the principal reason for their striking was for time-and-a-half for all hours worked
in excess of 8 hours in any 1 day. This strike lasted 5 days, and it appears that
6 Berg was not called as a witness ; the only witness other than Porter called by
Respondent Company was Foreman Reed The only witness called by the Respondent
Union was Respondent Ray.
30 The next largest loan, made to a member of management, was for $250 The largest
loans made to employees other than Ray appear to have been for $200 and for $125,
respectively, the larger amount being loaned to the Union's financial secretary about
July 30, 1959 While the testimony of Porter and Ray about the fund and the above
loan from It to Ray Is fairly extensive, I believe that It is unnecessary to go Into greater
detail on this matter This is so because I do not believe that there is warrant in the
record for drawing inferences adverse to the Respondents because of the fact of said loan,
which was arranged with the knowledge of Barker and the other employees on the com-
mittee ; which apparently was motivated by a desire on Respondent Company's part not
to have its labor relations complicated at the outset by wage assignments involving an
elected leader of its employees ; and which was made from a fund set up years ago to
help employees coming In substantial portion from economically underprivileged groups
BERG-AIRLECTRO PRODUCTS COMPANY 989
Stewart was very active on the picket line, as were other employees also." The
strike was terminated on March 3, 1959, when an agreement bearing that date was
entered into between the Company and the Steelworkers.
The provisions of this document, herein called the Agreement, a copy of which is
in evidence, fill 7 legal-length, single-spaced pages and cover, in 13 articles, the
usual fields of a valid collective-bargaining agreement . While other provisions will
be referred to later, for the moment it is sufficient to note only two. As to overtime,
while it is provided that 8 hours "shall constitute a standard work day," there is no
provision for time-and-a-half for hours worked in excess thereof in any 1 day,
the time-and-a-half provision applying only to hours worked in excess of 40 "in
any one week." Respecting its termination, while the initial period was to run to
February 1, 1960, a reopening was provided for in less than 4 months, such reopening
being controlled by the following language, with which article XIII, entitled "Termi-
nation," closes:
provided however, that the parties agree to meet prior to June 30, 1959
for the purpose of negotiating a Wage Structure for the employees covered by
this Agreement. Failure on the part of the parties to reach Agreement, said
Contract shall terminate in its entirety at midnight , June 30, 1959.
The agreement, which was signed by President Berg for the Company, was initially
signed for the committee only by Mathew Ray, in accordance with procedure pro-
viding that it be then forwarded to the offices of the parent organization in Pitts-
burgh for inspection and signature of Steelworker's officials. When it had been
thus signed and returned, the other two employees on the committee, Cortes and
Phillips, also affixed their signatures, thereby completing the signing of the agreement.
Approximately the middle of March, Local 5806, Respondent Union herein, was
formed and its regular officers were elected. The only member of the committee
which had negotiated the agreement to be elected an officer was Mathew Ray, who
was elected president. Odessa Stewart, who had had nothing to do with the negoti-
ation of the agreement, was elected vice president. Emmitt Johnson was elected
the financial secretary and James McCoy the treasurer Also elected was a record-
ing secretary by the first name of Carman, whose last name does not appear in the
record, but who was shortly succeeded by Quincy Collins, who had been the record-
ing secretary for about 10 months at the time of the hearing. Also elected were
guards, three trustees, and five stewards, of whom two trustees, Theaudious Calvin,
Jr, and Ted Calone, and two stewards, Oscar Golden and Evelyn Crockett, are
mentioned later herein.12
Shortly after the Union was formed and its officers elected, Stewart, according to
her version, picked up a check for $10 made out to Ray by the Company, which
had been dropped, along with a few others, on the floor of the plant by a truck-
driver.13 This check, which Steward had but a brief opportunity to observe before
she handed it to the driver who had dropped it, and which Stewart testified had
been endorsed on the back by Ray and had "for deposit" somewhere on it, was
actually, I am satisfied from the record as a whole, either the check, dated March
18, 1959, which was put in evidence by Respondent Company, or one like it, in the
111 do not believe that, with respect to matters in issue herein, the record warrants
concluding that Stewart's picket line activity, in contrast to that of all other employees,
was significantly outstanding or militant.
12 No attempt will be made to indicate the numerous places at which variations in spell-
ing of names appearing in the above paragraph are to be found in the record, but the names
as set out above are the correct ones , and the record is throughout accordingly corrected
13 While detailed testimony by Porter as to how checks are handled raises serious doubts
as to the likelihood of -Stewart's finding such a check under the circumstances which she
testified she did, the driver, whose first name is Ralph, and who does at certain times carry
packages of checks, was not called as a witness ; Stewart's story is not an impossible one,
despite elements of improbability ; and her testimony as to how she happened to see the
check was consistent, even though she was confused as to just what was on it Everything
considered, I accept Stewart's version as to show she happened to see this check, and in
any event, it is clear that Stewart did learn at this time of the loan which had been made
to Ray It should be noted that it is the above happenstance which the General Counsel
contends, along with developments which grew out of it, "goes to the very heart of the
allegation" as to 8(a) (3), and that there is no contention in this case as to any violation
of Section 8(b) (6). Further, the phrase, "those are identified in," at line 22 on page 28,
hereby is corrected to read "those are independent of "
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
series of payroll deduction checks above described, by which Ray was beginning to
pay back the $300 loan of March 4 at the rate of $10 a week. 14
In an interview at the union hall about 3 weeks after the agreement had been
signed, Stewart discussed with Tom Barker a number of elements in the above-
described developments which were causing Stewart, who patently was impressed
with her responsibilities as an officer of the Union, to be concerned about Ray. But
shortly before doing so, Stewart had two conversations with Ray. During the first
one Stewart, who undoubtedly felt that failure to get a provision in the agreement
for time-and-a-half for hours in excess of 8 in any 1 day constituted losing the most
important thing for which they had struck, and who evidently did not understand the
above-discussed practice for signing contracts, asked Ray, with respect to his having
signed the agreement before the others had done so, how he happened "to do such
a thing." 15 Ray replied "something like" that he was "running things" and that
he was "going to get some money out of Art Berg." 16 During their second conver-
sation, which Stewart placed as "a day or two" before she went to Barker about
the matter, Stewart asked Ray:
why was he getting money from the company. And he said that he owed
the company money. And I said that doesn't make sense if you owe the com-
pany money, the check would be made out to the company from you, not from
the company to you. And he said he would explain that later; but he didn't at
that time.
It was thus toward the end of March that Stewart, having not been satisfied with
Ray's answers to her queries, went to Barker with her complaints and misgivings.
When Stewart complained about the signing of the agreement and its failure to in-
clude "the very thing we had struck for," overtime pay after 8 hours in any 1 day,
Barker said that "he knew it already." Stewart then said that Ray "was getting
money from the company"; told Barker about seeing the above-discussed $10 check;
and stated that in view of that, Ray "should be taken out of office because no presi-
dent is suppose to take no money from the company." Barker told Stewart that he
"knew about it already" and had known about it "all along." Barker said that he
thought that a meeting of the Union should be held in -which Ray "would have a
chance to explain this to everybody." Thereafter such a meeting was arranged for
the following Sunday.
At the meeting arranged pursuant to the above developments, held at the union
hall about the last of March or the first of April, Stewart publicly asked Ray to
explain why he was "receiving money from the company." According to Stewart,
Ray said that "in view of the fact that he had a lot of garnishments," Berg had
"offered to help him out"; that he had "gotten money from the company to pay
off his bills"; and that Berg "wanted to help him buy a home and furniture in the
future." The version given by the above-mentioned James Griffin,17 whose de-
meanor as a witness impressed me very favorably, was that in the union meeting
about Ray's "financial status," Ray stated that he had bills which "had pretty well
gotten out of control"; that he had "gotten money from Mr. Berg to pay those bills
so that he wouldn't have too much trouble in the future"; and that Berg had "also
told him that if he preferred buying a house, he would help him to do it." Accord-
ing to Ray's version, in explaining about the help which he had received in meeting
his financial difficulties, Ray related how Berg had said:
14 In making the above findings, I am mindful that Stewart's testimony as to what
was on the check she found does not coincide in some respects with what is on the check
in evidence, but I am convinced that Stewart was confused as to just what she had seen
on the check. It should be noted, however, that Stewart's testimony on this matter, taken
in the light of the record as a whole, shows that Stewart inferred from her impression of
the check that Ray was probably getting money from Respondent Company for something
other than his work as an employee.
15 The quotations in the above paragraph, and in the one which follows it, are from
credited testimony of Stewart
1e Remarks of a similar tenor were also made by Ray on other occasions. In my con-
sidered judgment, it cannot be inferred that such remarks by Ray, an obviously proud if
not haughty man, were equivalent to his admitting that he was being bribed Such re-
marks rather were essentially boasts on Ray's part that the way he was running things
would get more money in the long run for the employees out of Berg than anybody else
could get.
17 See footnote 4, supra.
BERG-AIRLECTRO PRODUCTS COMPANY 991
Now if you are going to buy or want to buy a home or car, or something of
that nature, you can talk to me and I'll tell you how to go about it and what
to do. ,
Because Ray was undoubtedly embarrassed, resentful, and on the defensive at
having his financial problems thus publicly exposed, I doubt that he made a very
clear or convincing explanation of just what had actually happened. Moreover, I
am satisfied that Ray had a penchant for trying to build up his" own status among
his union following by proclaiming influence with and closeness to top management,
particularly President Berg. Hence, while I believe that Berg's offer to help with
respect to future purchases was actually made in terms of his willingness to advise
a "babe in the woods," so to speak, with respect to credit pitfalls, it is under-
standable that Ray could scarcely bring himself to presenting the situation in its
true light. In any event, whatever the relative adequacy of Ray's explanation may
have been, I doubt that the union members present all got a clear picture of the
actual relationship of Berg and the fund to Ray's financial problems.
Be that as it may, I have no doubt, from credited testimony of Stewart, that fol-
lowing Ray's explanation, the meeting continued with Stewart insisting that it
"wasn't fair for [Ray] to accept money from the company." Thereafter Barker
said that the Union:
. .. was so young and our local was so newly formed and we had just received
our charter back, and it would be a shame to break it up. It looked bad and
everybody was entitled to a mistake and if Mathew said he wouldn't take any
more money from the company, we would smooth it over and get along.
Eventually Ray said that he "realized that he had a mistake" in taking money from
the Company to pay his bills; that he "wouldn't accept any more money from the
company; 18 and that they would "try" to get along the best [they] could."
2. Events and developments during June 1959
On June 10, 1959, the first in a series of meetings took place, subject to the
above-quoted provision in article 13 of the agreement, to negotiate "a Wage
Structure." Representing the Company were President Berg and Plant Superin-
tendent Porter, with General Manager Dobrikin occasionally participating. Re-
spondent Union had a new negotiating committee of six, of which International
Representative Barker was the spokesman. The other five committee members
were two officers, Ray and Stewart, two trustees, Theaudious Calvin and Ted
Calone, and Steward Oscar Golden. It will be recalled that the agreement was
to expire on June 30, 1959, if no wage structure was negotiated prior to that date.
No understanding was reached at the first meeting, which was obviously an explora-
tory one. The Union was to prepare a more definite idea for the Company as to
what it was seeking and Berg said that he would have a check made of his books to
determine if any upward adjustment in wages was financially possible.
On June 11, Ray received a telegram calling him home to Memphis, Tennessee,
because of a family emergency. In need of about $100 for the trip, Ray spent a
good deal of time that day trying to borrow some money from the Union, talking
to several members and officers, including Stewart, who then had possession of the
Union's funds. Without going into the details, which are somewhat confused and
must have been none too pleasant for those concerned, Ray was refused the loan,
Stewart being primarily responsible for this refusal.19 Apparently sometime before
leaving for Memphis that day, Ray asked some of the officers to have a meeting
among themselves to decide if union funds could be made available to him. Also
when asked that day before leaving by Stewart about a grievance, much discussed
in the record as the Perez grievance, which had been filed the preceding afternoon
by Felix Perez, Ray told Stewart that she could do as she liked about it 20
18 The checks by which Ray was repaying the loan were payroll checks of the Company,
signed by Arthur A. Berg and made payable to Ray and "Berg Airlectro Products" ; the
fund is clearly controlled by the Company through Percy Porter ; and I doubt if the
employees themselves drew any particular distinction in their minds between getting
money from the Company and getting money from its fund
19 According to Stewart, Ray told her that she "wasn't being smart in not letting him
have the money because he could get anything he wanted from Art Berg " It should be
noted, Incidentally, that prior to Ray's having got the $300 loan some 3 months earlier,
he had unsuccessfully sought assistance from union sources
20 In view of Ray's personal problems at that time, I attach no particular significance
to Stewart's version on this point, that Ray told her "do anything you want to about it
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday morning, June 12, Ray, who stayed in Memphis through Sunday evening,
June 14, telephoned James McCoy, the Union's treasurer, to inquire further about a
loan. McCoy told Ray that no loan could be made to him from union funds. Ray
then telephoned Superintendent Porter about the situation in which he was involved,
and Porter wired $75 to Ray in Memphis that same day, the payroll deductions
for repayment of Ray's enlarged loan to the fund thereafter being increased from
$10 to $15 per week.
About noon on Friday, June 12, all of the women employees were laid off, being
told by Porter to return at noon on Monday, June 15. As to the explanation given
the women for the layoff, Stewart, whose exception to said layoff presently will
be discussed, testified that:
The company later claimed they were laid off because they were moving
machinery, heavy machinery, from one place to another and the women would
be in the way.
I am satisfied, from Porter's convincingly given testimony as to this layoff, that the
only reason for the women being laid off, and the reason Porter gave, was because
they could not be used in moving heavy equipment which was at that time being
moved from the first floor to the second floor of a new building, to which the Com-
pany had expanded early in June, and to which all women employees had been
moved.21
The Union's president being in Memphis at the time of this layoff, and Vice Presi-
dent Stewart being unsatisfied that it complied with the agreement,22 Stewart went on
June 12 to see President Arthur Berg, being accompanied by the steward in her
department, Evelyn Crockett 23 When Stewart approached Berg, he told her that
she should not have "come to him directly over everybody else's head," but should
have "worked up" through her foreman and plant superintendent 24 Stewart told
Berg that she "only came directly to him" because he was not "living up to the
contract." Stewart's position was that under the agreement, Respondent Company
was supposed to lay off "by seniority, and the women in the plant had far more
seniority than the men." During the discussion, Berg "used very objectionable
language," which Stewart told him she did not appreciate. Stewart also told Berg
that she "still believed that he was wrong, so he walked away and wouldn't even
talk to [her] any more."
Because several other companies occupy upper floors in the new building, Re-
spondent Company could not use the elevators as it had anticipated and there were
several interruptions in its moving activities during that weekend. It thus became
necessary that the layoff of the women be extended, so Superintendent Porter tele-
phoned them to report Tuesday noon, rather than Monday noon. Because of re-
porting time considerations, I am satisfied that said calls; extending the layoff from
a total of I day to a total of 2 days, were made well before noon on Monday, and
because I don't want to be bothered with it." The contentions as to whether this griev-
ance, involving an encounter between employee Perez and Assistant Superintendent
Edward J H Karvelius for which both finally were discharged, was handled by Ray or
Stewart are sharply in conflict But I find it unnecessary, after study of the entire
problem, to go into the details of this Perez grievance and of numerous complaints allegedly
made by Stewart but not discussed in this sequence of events, because I do not believe
that it is necessary in determining the ultimate issues in this case, to establish whether
Stewart actually was as much more active than any other union officer in such respects as
she testified that she was
zi Until about the end of May 1959, the Company's plant occupied a two-story building,
at 2630 Wabash, which is on the west side of Wabash and will be called herein the old
building It was around the first of June that the Company expanded to a second build-
ing at 2635 Wabash, on the east side of that street, which will be called the new building
It was in connection with consolidating space to the first two floors of this new building,
which are the floors the Company now occupies, that the moving of heavy equipment was
taking place over the weekend involved.
22As here material, the agreement provides that "seniority and ability to perform the
work shall be the guiding principal in determining the distribution of work" during a
layoff. [Emphasis supplied ]
za My findings as to what transpired on this occasion are made on credibly given testi-
mony of Stewart which was neither contradicted nor corroborated, as Berg was not
called as a witness, and Crockett, one of seven employees called by the General Counsel,
most of whom held union positions, was not questioned about this incident.
14 The grievance procedure of the agreement does provide for such an upward progression
BERG-AIRLECTRO PRODUCTS COMPANY 993
it is undisputed that all of the women employees , including Odessa Stewart, returned
to theircustomary work at noon on Tuesday, June 16.
We come now to a pivotal matter , a conversation which the General Counsel
contends that Respondent Ray had in the men 's washroom in the old building, shortly
after 7 a. in. on Tuesday , June 16, with Superintendent Porter and Steward Oscar
Golden , and which the General Counsel views as the key to "the plot to get rid of
Stewart." This issue , the most closely contested one in the entire case, rests upon
testimony of Golden , and is the occasion upon which the complaint alleges that the
Respondent Union , through President Ray, caused or attempted to cause the dis-
charge of Stewart "by requesting , demanding and insisting " that the Company
discharge her.
All of the Respondents flatly deny, as did their respective witnesses , Porter and
Ray, that any such conversation ever took place . The Respondents all contend
essentially , as the Respondent Union 's brief phrases it, that it is "almost inconceivable
that the parties involved could have been at the alleged place at the time designated
by Golden ." To begin with , Golden had just finished a 12-hour shift , which had
begun at 7 p .m. the preceding evening and had ended at 7 a.m. on June 16. Golden's
timecard shows that he punched out about 7:01 a.m. on June 16, and he normally
would have gone home shortly thereafter , following a brief period for washing up
and changing clothing.25 Further , Ray's shift then worked from 8 a.m. to 4:30
p.m., and his timecard for June 16 shows that Ray punched in at 7:51 a in. More-
over, Porter, who customarily uses a restroom near his office which is located in
the new building , usually comes to work about 7:30 a.m ., and first engages in a
round of activities which require his attention in the new building.
The three briefs devote a score of pages to penetrating analysis of this issue, in-
cluding surrounding circumstances and credibility problems. I have repeatedly and
carefully studied all of the contentions of the parties on this issue , and have analyzed
all of the surrounding circumstances , including some which the parties have not
mentioned . After much deliberation , I have reached the conviction , for reasons
which will be partially explained as I go along , that the truth about this matter
was told by Golden , who impressed me as an essentially honest witness, despite
his obviously deep resentment at Ray's borrowings from what Golden considered
the Company.26
It will be recalled that Mathew Ray had gone to Memphis on June 11, the day
after the first meeting of the negotiating committee with the Company on June 10.
The record shows that on occasion Ray was at the plant during shifts other than his
own to discuss union matters with employees on such shifts. Since Ray was in
Memphis through Sunday evening and worked his shift on Monday , it seems evi-
dent that Ray's first convenient opportunity to see employees on the night shift,
including Steward Golden , a member of the negotiating committee , was to catch
them before they left for home at the end of that shift . Moreover , it will be
recalled that Ray had just received a second loan from the Company, despite his
earlier promise publicly at a union meeting not to borrow anything further from
the Company . Hence, under all of the circumstances , I do not find any difficulty
in believing that Ray came to the plant about the end of the night shift on January
16, and a preliminary conversation between Ray and Golden that morning , to which
we now turn , also seems quite plausible.
Golden credibly testified , and I find, that Golden saw Ray in the dressing room,
which joins the washroom , some minutes before the crucial conversation next to
be discussed ; that at that time Golden told Ray that , as president of the Union, "it
was wrong for him to continue to borrow money from the company , that would
put him in no position to help the people "; and that Ray thereupon replied that he
"would show the people how to get money out of Berg , or maybe Berg liked him
better." 27
' The Company ' s timecards register in hundredths of an hour , rather than in minutes.
The above time , like other timecard notations mentioned later in this report , has been
translated into the nearest approximate minute It is the practice in the plant for em-
ployees to punch out upon finishing work , washing up and changing clothing after punch-
ing out, but to change clothing , before punching in, when coming to work
=e See footnote 18, above Perhaps my treatment of this involved problem will seem
to brief But a full treatment of it, as is also true of other matters herein , would protract
this report
27 Compare footnote 16, above Of similar general import , in my opinion , was another
remark which Griffin testified , on direct examination , that Ray , who speaks very rapidly
and is not always too easy to understand , made to him , to the effect that "if Berg didn't
599198-62-vol 131-64
'994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- This is Golden's version, on direct examination, as to what transpired, following
the above conversation, when Ray called Golden into the washroom, at approxi-
mately 7 o'clock, where Porter was seated nearby:
Matthew Ray told me he was going to have all of the women called back except
Odessa. And Percy Porter told him he couldn't do that; if he did, it would be
a big stink, and if it had to be did, let him do it, fire her, and it would be better
for all, and I told Ray Matthew [sic] that if he tried to do that, Odessa would
make a fool out of him. [Emphasis supplied.]
In view of the moving then underway in the new building, which contributed such
unusual circumstances as to result in the layoff of all of the women employees, I
see nothing implausible about Superintendent Porter coming to the plant early on
June 16, in order to look over the old building where almost all of the men worked,
before entering upon his round of activities in the new building. Golden's version of
the above conversation, on further examination, did not vary essentially from the
above, except that he was uncertain as to the exact time it had taken place,28 and
as to whether it was he or Porter who first made a remark in disagreement with
Ray's proposed line of action.
Everything considered, I am satisfied that Porter, who had already called back
the women for that noon, and who must immediately have realized how preposterous
Ray's idea was, interrupted Ray's remarks to Golden, by telling Ray so. I also
believe that, because of growing irritation with Stewart, Porter also added that if
getting rid of Stewart "had to be did," he would find his own way of taking care of
it. Further, I have no doubt that thereafter Golden told Ray that if he tried to carry
out his idea, Stewart would make a fool out of him. Moreover, I am convinced that
Ray made his obviously foolish statement to Golden because he was incensed at
Golden's earlier remark about borrowing money from the Company; that said remark
had caused Ray's resentment toward Stewart on this score to flare up; that Ray had
.conceived his obviously half-baked idea on the spur of the moment in order to
intimidate Golden by showing off in front of Porter; that Porter, who had not been
forewarned on this matter, and had had experience with union officers going over
his head directly to Berg, assumed that Ray was talking about going to Berg; and
that Porter immediately tried to head off such a foolish move on Ray's part.
Finally, since I believe that the foregoing interpretation of what happened on the
morning of June 16 is consistent with the picture of the situation which I get from
my analysis of the evidence as a whole, I find that the above conversation occurred
essentially as Golden, a setup and leadman over a group of 10 employees when he
testified under subpena by the General Counsel, and who had no apparent reason
for fabricating such an episode, convincingly testified that it did 29
About 4 p.m. on June 17, the second meeting on the wage reopener took place in
Berg's office, between Berg and Porter for the Company, and the Union's negotiating
.committee, headed by Barker. Berg, who had just shortly before the meeting
received a financial statement from his auditors, informed the union committee that
he was in bad shape financially, was losing money, and could not afford any increase
in wages. Berg then offered the auditors' report to Barker for his inspection.
Barker pushed it back without looking at it, and said that the Union wanted more
-money anyway. Berg insisted that his financial condition showed that he could not
afford it. As the pitch of voices and tempers increased, Barker declared that regard-
less of what the financial statement showed, the Union wanted wage increases, and
that Berg was going to have to give them or the plant would be shut down
Berg, who obviously had also become angry by this time, told Barker that he
would save him the trouble of closing down the plant, and that rather than pay
increases when he was losing money, he would shut down the plant for Barker.
Berg thereupon turned to Porter and told him to close the plant. Porter just sat
there. Berg reiterated that he was not going to give increases and lose more money;
give him some money, he would close the plant," and which Griffin, a careful and obvi-
ously conscientious witness, testified on cross-examination could have referred to getting
money through union negotiations
28 Porter's testimony indicates that it would not have been long after 7 o'clock before
practically all of the employees would have left the washroom
"The above findings are made without primary reliance upon circumstantial evidence of
a corroborative nature, namely, evidence showing that on two subsequent occasions shortly
thereafter, Golden discussed the above conversation with two other members of 'the union
negotiating committee, first with Theaudious Calvin about 9 p in on June 16, as Calvin
.convincingly testified, and next with Odessa Stewart, on the afternoon of June 17, as
both Stewart and Golden testified
BERG-AIRLECTRO PRODUCTS COMPANY 995
he again told Porter to shut down the plant. Porter just looked at Berg, who there-
upon told Porter that he meant it, and for the third time ordered Porter to shut down
the plant. Porter then got up from his chair as the meeting ended, and went into
the plant and told everybody working on the 3 to 11 p.m. shift that the plant was
closed 30
Just after the above meeting, Stewart noticed that Berg was talking to Ray, who
evidently then went home immediately.31 Stewart went to Berg and told Berg that
Ray could not do whatever it was that he wanted Ray to do; that if Berg "wanted
to talk to anybody at all, he was to talk to Tom Barker because he was still down-
stairs." Berg thereupon told Stewart that he was not talking to her; Stewart told Berg
that she was not talking to him either; and the conversation thereupon ended.
Thereafter Stewart "left the plant and went to the corner tavern."
When he had completed shutting down the plant, Porter met with Berg and
"several other company officials," who undertook to convince Berg that by shutting
down, "he had violated the contract." 32 Within some 10 or 15 minutes, Berg agreed
that they "were right" and that they "should re-open the plant again." Porter there-
upon sent one of the employees, who was still standing around outside the plant, to
ask the union committee to return. Shortly thereafter, Stewart, Golden, and Calvin
came back to Berg's office, where they were told by Porter that Berg and Barker
both "had hot tempers"; that there was no point in the situation; and that the Com-
pany had "again re-opened the plant." At this time, approximately 45 minutes after
Porter originally had left the room to shut the plant down, the telephone rang; it was
International Representative Barker, who was inquiring as to what was happening.
Porter, who answered the telephone, told Barker that it was "no good for both sides"
for Berg and Barker to have been at "each other's throats." Barker agreed, and
Porter told him that they had convinced Berg that he was wrong and that they were
reopening the plant. Barker said "good," and asked if some of the committee were
present. Porter named the three committeemen in the room, and Barker asked to
speak to Stewart, who thereupon went to the telephone.33
When Stewart "took the phone," Barker told her that Berg "wanted to re-open
the plant," and asked her how things looked. Stewart told him that "things looked
pretty good from the outside"; that she thought that they should "stick to our original
plan and not discuss anything until we all sit around the table" to talk to Berg. What
Barker's reply was is not shown by the record, but it is apparent that upon con-
cluding the conversation, Stewart told Berg that she did not have "the privilege and
right to tell him what to do with his plant," but that she wanted to ask him if he would
meet the next day with the whole committee so they could "sit around the table and
discuss this thing." Berg said that regardless of Stewart's decision, "I have re-
opened my plant and I will meet with the committee tomorrow morning at 8 o'clock."
It was by then between 6 and 6:30, and Stewart went home. She returned to the
plant later that night around 10 or 11, where a number of employees were standing
around talking, but no one was working.
At 8 a.m. on June 18, the union committee, except for Barker, met with Berg and
Porter. The committee asked Berg to pay the second and third shift for being
off work the day before. Berg refused to pay the third shift, but indicated willing-
ness to pay second-shift employees. The committee told Berg that since Barker was
not there, they did not know their standing or what to do, and asked that he allow
them "time so we could seek legal advise, which he did." The committee then went
to "the service station on the corner" and tried to contact Barker by telephone.
They were unable to reach him but talked to a union lawyer. Later that morning,
upon being able to reach Barker by telephone, Stewart told Barker that she wanted
to know what their position should be and that according to the agreement no-
lockout clause, they should not have been locked out. Barker told Stewart that the
Steelworkers "would back us up in anything we wanted to do." So the committee
apparently told Barker that they were not going to go back to work that day but
so The above findings as to what occurred at this meeting are made upon my analysis of
all of the evidence, particularly upon the versions given by Stewart, Calvin, Ray, and
Porter, that of Porter being the most complete and convincing. It should be noted that
the complaint alleges independent violation of Section 8(a)(1) by virtue of threats made
by Berg at this meeting, and that there is no allegation as to the shutdown itself
91 I do not credit Ray's testimony that he did not speak to Berg after this meeting
32 The agreement provided that, during its term, there should be no lockouts, strikes,
slowdowns, or work stoppages "for any causes whatsoever "
sa Findings in the above paragraph are made on credibly given testimony of Porter,
which I find not in essential conflict with that of Stewart, upon whose testimony findings
in the next paragraph are based.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were "going to hold a meeting and talk this thing over." The committee then re-
turned to Berg's office , where Stewart , as she testified , had this to say to Berg: "I
told him that we were going to remain out and we would have a meeting and after
we found out what we were going to do, we would let him know." 34
On the morning of Friday , June 19 , the employees received letters from the Com-
pany notifying them to return to work. About 1 o'clock that afternoon , a meeting.
was held at the union hall, which was attended by nearly everyone who worked at
the plant . Barker was not there at the opening of the meeting . What follows in this
paragraph is Odessa Stewart's version , largely in her own words , although quotation
marks are not used, of what transpired at that meeting. There was discussion of the
fact that they could never find Barker when they needed him . Stewart asked Ray
if he had approached the Company to have her fired. Ray admitted that he had,
explaining that he had done so because Stewart was always taking things upon
herself and was pushing the Company too far . During the course of the meeting,
there was a lot of general confusion . Barker eventually came in , and Stewart asked
him why he had telephoned the Company when he knew the employees were out in
the street. Barker told her that he had a right to call the Company any time he
wanted to. There is nothing in Stewart 's version to indicate that a decision was made
on the legal status of the people who had not gone back to work. In any event, it is
clear that substantially all of the employees did return to work , including Stewart, on
the morning of Monday , June 2235
Ray's testimony as to what happened differs from that of Stewart primarily in that
he denied that he had made any statement that he had tried to get Stewart fired. Ray
testified that James McCoy, the treasurer , said, "Mrs. Stewart, you are taking on
too much responsibility . You are doing things that are not even your duties as
vice president of the Local Union ." Ray further testified that two other individuals
present said similar things , one indicating that Stewart and Ray "should try to work
together ," because that was the way to "build the local union instead of tearing it
down."
Everything considered , I am not convinced that Ray admitted that he had tried
to get Stewart fired, but I am satisfied that Ray, and at least one or two other in-
dividuals , insisted that Stewart was taking too much on herself. I also believe that
Stewart criticized Barker, as she testified.
Although matters had not been settled, the employees returned to work on the
morning of Monday, June 22. During that afternoon, Berg and Porter met for
about an hour with Barker and the union committee. According to Stewart, Berg
"apologized for his outbursts"; said that in the future he would "conduct himself at
all of the meetings like a gentleman"; continued to refuse to pay anything to the
third shift; indicated a willingness to pay the second shift for the time they were
sent home; 36 and asked Stewart "to submit some forms as to what [it] was that we
really wanted" with relation to the wage structure. The following day, Stewart
submitted two typewritten pages of proposals to Percy Porter.
Respondent Company and the union negotiating committee met again on Friday,
June 26. Berg gave back the proposals to Stewart; told her that they were sloppy
and inadequate ; and asked that he be given "something better to go on "
About 12 o'clock on Sunday, June 28, a meeting which Ray had called at the
union ball was attended by some 14 members , including Stewart, who estimated
that the membership at that time was 78 or more. Barker was present at the meet-
ing and asked that a strike be authorized, essentially as a smokescreen, so that the
news would get back to Porter, although Barker himself did not believe that there
34 While Ray was with the committee, I am convinced that it was Stewart who was
taking the position that they had been locked out, in violation of the contract : that
Stewart was doing most of the talking for the committee, both with Berg and with
Barker; and that beginning with the conversation the day before, when Porter said they
were ready to reopen the plant, Stewart's behavior reasonably led Berg and Porter to
believe that she was primarily responsible for the employees not returning to work when
Berg said that he was ready to reopen his plant
15 It should be noted that James Griffin testified that Porter, who said that lie assumed
that Griffin had quit, at first insisted that Griffin file a grievance in order to get back to
work. But after a few days , Griffin was taken back , possibly without doing so, a point
not clear in the record
ae While the record does not show when it occurred , it is evident that second-shift
employees eventually were paid for the period of 45 minutes when the plant , according to
the Respondent Company's theory, was actually closed In its brief, the Company takes
the position , incidentally , that employees who did not "return to work for several days"
after Berg reopened the plant were clearly "in the status of strikers "
BERG-AIRLECTRO PRODUCTS COMPANY 997
was going to be a strike. A vote was thereupon taken, and it was decided to
authorize a strike at midnight on June 30 if an agreement had not been reached by
then.
Stewart did not work on Monday, June 29, but went to work the following day,
June 30, about 8 o'clock. Upon entering the plant, Stewart noticed that assembled
and unassembled parts had been put on slides, preparatory to being moved, and
that some were being moved. About 10 o'clock she went to Porter and asked him
why everything was being moved out. Porter told Stewart that Barker had tele-
phoned the plant the day before to say that there would definitely be a strike, so
because he needed the parts he was moving everything to the other plant.37
At noon on June 30, a meeting was called at the plant of all of the employees then
at work. This meeting, at which it is alleged that Respondent Company illegally
interrogated its employees, was evidently called because only 14 had participated
in the earlier strike vote, and because Berg wanted to be sure whether or not there
actually would be a strike that midnight. It does not appear that any union officials
were opposed to the idea of having such a meeting, and Porter assembled all of
the employees then at work. At the outset, Berg told the more than 50 employees
present essentially that he wanted to know whether they were actually going to
strike, so he would know whether to make preparations for closing the plant. Berg
then asked the employees to vote on the matter and to let him know what they
actually were going to do. Berg then went out of the meeting , leaving it in charge
of the union officers, and taking all of the supervisory personnel with him when he
left. With Ray apparently thereafter in charge of the meeting, there was some
discussion . I am satisfied that a consensus was eventually reached , whether by
formal vote or not is uncertain , and that said consensus was that the employees, who
had quite recently lost some time, preferred to extend the contract rather than to go
on strike. This decision was thereafter reported to the Company.38
About 3 p.m. on June 30, Barker met the committee in the hall outside of Berg's
office. He told the committee "that all steel contracts had been extended for four-
teen days," and that he was going to tell that to Berg. The committee, headed by
Barker, then went into Berg's office, where they met with Berg, Porter, and General
Manager Harold Dobrikin. At the outset, Barker explained that contracts "had
been extended fourteen days retroactive." Berg said that he did not want a 14-day
extension but rather a 24-day extension, and one which would not be retroactive.
Barker told Berg that he could not give that to him. I am satisfied that an impasse
wasreached on this point, the Union offering a 14-day retroactive extension, while
the Company demanded a 24-day, nonretroactive one 39 Before the meeting broke
up, Stewart asked Berg "why was everything being moved out of the plant " Berg
denied that anything was being moved, and wanted to know where Stewart got her
information. Stewart told Berg that she saw "things loaded up to be moved," and
that she had spoken to Porter about it. Berg asked Porter if he had told Stewart
that, and "Percy said, no."
When the union committee had gone out on to the street following the meeting,
Barker told them "there definitely would be a strike that night." Stewart thereupon
went home and did not return to the plant until the following morning
As a result of conversations on the evening of June 30 'among three of the mem-
bers of the negotiating committee, Ray, Golden, and Calvin, and discussions be-
tween Ray and other employees at the plant, it was decided to offer Berg the agree-
ment he wanted, in order to avoid ^a work stoppage.- Later that night, through tele-
phone conversations involving Ray, Porter, and Berg, the details of which need not
concern us , such an offer was made and accepted, and arrangements were com-
pleted by midnight for Berg and Porter to meet with the above-three committee
members at the plant around 7 a.m. on July 1.
sz Apparently said other plant was one operated by President Berg's father
Is The above findings are made upon my analysis of the testimony of Stewart , Ray, and
Porter, which is in general agreement as to the nature of the meeting and the absence of
supervisors by the time employee opinion was taken Ray's testimony is clear as to the
nature of the result , along the lines above indicated , and Porter testified that the Company
was told that the employees had decided not to strike If Stewart's somewhat ambiguous
testimony is actually to the contrary as to the result of the vote , it is not credited, under
all of the circumstances It would also appear , from Porter 's testimony , that some mem-
bers of the union committee , Ray in particular , were uncertain as to which of the two
strike votes actually was controlling
39 The testimony of Stewart, from which the quotations in the above paragraph are
taken, is in agreement with that of Ray on the above difference in positions , and I am
satisfied that to the extent Porter's testimony differs, Porter was in error
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Events of July 1 and developments thereafter
If any attempts actually were made by Ray or others to inform Stewart of the
foregoing developments, a problem upon which the evidence leaves considerable
doubt and concerning which we need not protract this report, I am convinced that
any such attempts were in any event unsuccessful, and that Stewart knew nothing
about the foregoing developments until she reached the plant on the morning of
July 1, after an extension agreement, providing for 24 days without the retroactive
feature, a copy of which is in evidence, had been signed by Berg and Porter, for the
Company, and by Ray, Golden, and Calvin, for the Steelworkers.
Having signed this extension agreement at their early morning meeting on July 1,
it was decided by those signing that the best way to make known to others con-
cerned what had happened would be to hold a meeting of employees before the 8
o'clock shift started operations. This plan was followed, and a meeting of em-
ployees, with Berg as the first speaker and Ray speaking after him, was just getting
under way when Stewart, understandably quite surprised at the situation, entered
the picture around 8 o'clock that morning While there is ambiguity and conflict
in the evidence as to just what happened after Stewart got to the plant, it is undis-
puted that Stewart punched in on her timecard that morning after entering the plant,
that she left the plant in high dudgeon before the end of the meeting, which con-
cluded sometime around 8:30; and that before leaving the plant, Stewart had erased
the punch-in time on her timecard.40
After putting her timecard back in the rack, Stewart went to where the group of
employees, which included some from the night shift, as well as those from the
day shift, were listening to Berg, who was holding up a copy of the extension
agreement and explaining that the Company and the Union had agreed to a 24-
day extension, during which time lie would be able to determine whether any in-
crease in production would enable him to pay increased wages. Stewart interjected
a remark to the effect that the negotiating committee was supposed to know about
such things, and demanded to know who had signed the "damn extension." Berg
pointed to Ray and Porter said that it was a matter between Stewart and Rav
Ray then told Stewart that he was the president of the Union and the one to tell
the employees what to do. Stewart who undoubtedly had been taken quite by sur-
prise, and who admittedly was "terribly upset" and in a "very agitated" state of
mind, walked away from the meeting, calling out as she did so. "I wonder how much
did they get paid for this " 41
40 After deliberation on the matter, I have decided that a more precise finding as to
when and why Stewart erased her punch-in time is unnecessary, in view of the issues.
and unwarranted, on the basis of all of the evidence Among other things, there is
nothing on the one hand to indicate that Stewart ever told any representative of manage-
ment why she had erased her time: ever was asked by any such representative when or
why she had done so; or ever was criticized by any such representative for having done
so On the other hand, the likelihood of Stewart's story on this matter, namely, that
she erased her punch-in just after having punched her timecard, because she was told by
three girls who were standing near the timeclock, Steward Evelyn Crockett, Recording
Secretary Quincy Collins, and an office girl named Mildred, that none of the employees
had punched in, while essentially corroborated by testimony of both Crockett and Collins,
is seriously undermined , among other reasons, by the fact that the timecards of Crockett
and Collins, which are in evidence, show that both of these women must have punched in
before the meeting. Further, Collins' timecard, translated from hundredths of an- hour
into minutes , shows that she punched in on July 1 at 7 51 a in Hence Collins must have
punched in before having any conversation with Stewart, who testified that she got to the
plant "around five to eight," after which she changed shoes and "then punched my
timecard."
41 The above summary of what took place during the first part of the meeting, while
Stewart was present, is made upon my analysis of the testimony of Stewart, Calvin, Ray,
and Porter The last-quoted remark, from credited testimony of Ray, is in line with the
initial charge filed by Stewart shortly after leaving the meeting Just what transpired
during the remaining approximately 15 minutes of this meeting after Stewart left it is
not clear from the record, but it should be noted that the length of the meeting was due
partly to the fact that, as Porter and Ray both testified, there were frequent pauses so
that Domingo Cortes, who had been on the committee negotiating the original agreement,
could translate and "explain to the Spanish people." Incidentally , all of the witnesses at
the hearing spoke English , some with an accent
BERG-AIRLECTRO PRODUCTS COMPANY 999)
Before leaving the plant, Stewart told Recording Secretary Collins and an office
girl, Mildred, that she was "going to the Labor Board." 42 Stewart also told
Calvin, a union trustee and one of the three committeemen who had just signed
the extension agreement, that she was "going to the Labor Board and get help for
the people. This is not the way it should have been." 43
Upon leaving the plant, Stewart went to the Board's Chicago office, where she"
filed the initial charge in Case No. 13-CB-819. Said charge was against "Matthew"
Ray, President, Local 5806," and alleged essentially that on and after March 1959,
Ray, in violation of Section 8(b) (6) of the Act, had "caused or attempted to cause""
the Respondent Company "to pay or deliver money for services which were not:
performed, nor were to be performed." Having filed this charge, Stewart was told
at the Board's office to go back to work. Upon leaving the Board's office about
11 a.m., with the intention of returning to the plant after lunch, Stewart telephoned
the plant; talked with Mathew Ray's brother, Dement Ray; and told Dement Ray"
she was returning to work. Dement Ray told Stewart that that "wasn't necessary"
because [she] had been fired." Thereafter Stewart did not return to the plant on,
July 1, or directly contact any supervisor as to her whereabouts during the rest of-
that day.44
In the meantime, on the morning of July 1, shortly after the employees had
started working following the conclusion, around 8:30, of the above-discussed
meeting, Foreman Reed noticed that Stewart was not at her place of work, as were
the other employees in the assembly department. So Reed went to Superintendent
Porter's office; told Porter that he could not find Stewart; and asked Porter if he-
knew where Stewart was. Porter did not, and as neither Porter nor Reed had given
Stewart permission to leave the plant, Porter told Reed to check Stewart's time-
card 45 Reed thereupon did as Porter suggested. He found that Stewart's punch-in,
time had been erased and that there was no punch-out time shown on the card. Reed
then reported what he had found about the condition of Stewart's timecard to Porter
when 'Porter came to see Reed in the assembly department "around something to"
nine," near where the department steward, Evelyn Crockett, was working. Porter
thereupon told Reed, as credibly testified by Crockett, who overheard the following
remarks, that "Odessa had automatically quit her job when she walked off without
telling anyone where she was going," and Reed said, "Okay." 46 After the fore-
going conversation, Porter removed Stewart's timecard from its customary place in-
the rack.
The versions of Stewart and Porter agree that it was around 8 a.m. on Thursday,
July 2, that Stewart returned to the plant, but there are otherwise substantial varia-
tions in their testimony as to the events of that morning. This is the gist of Porter's
testimony. Between 8 and 8:15 that morning, Porter saw Stewart walk into the
plant, not dressed and ready to start work as she should have been by 8 o'clock, but
"in her street clothes and ... swinging an umbrella with her purse." Stewart
411 credit Crockett's testimony that she learned about this from Collins, and not from
Stewart.
43 The above quotation is from credited and corroborated testimony of Stewart, Calvin
testifying that before leaving the plant Stewart told him that she "would have to go and'
get some legal advice from the Labor Board " It should be noted, incidentally, that while
Calvin testified that Ray had Informed him the night before that they "could have an
extension," and that he believed that Ray had "got that from the International," there is"
nothing to indicate that Calvin or anyone else made any such explanation to Stewart
"I am convinced that Stewart's foreman, Cleveland Reed, was in error in insisting that
Stewart returned to the plant around noon on July 1, and that she got her check that day
Both Stewart and Porter consistently testified that Stewart did not return until July 2, and'
that it was on that day that she got her check. Apparently all three of the briefs accept
July 2 as the date upon which Stewart first returned to the plant
'a So far as here pertinent, an official notice TO ALL EMPLOYEES, kept posted by
the timeclock and dated February 3, 1959, provides •
Your Time Card is your assurance that you will receive full credit for the hours you
have worked Register when you arrive at the start of your shift, and when you
leave at the end of your shift.
If you leave during your working hours because of some emergency, obtain your-
Foremans' or your Superintendents' approval. (Sic) Punch "out" when you leave
and "In" when you return.
18 The quotations In the above paragraph are from testimony of Crockett. The testi-
mony of Porter and Reed is ambiguous as to where the second of their two closely spaced'
conversations that morning about Stewart took place, and Is that Porter merely said that
Stewart "must have quit."
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
walked up to Porter and said, "I hear that I am fired." Porter replied, "No, you
quit." Stewart then, without asking to be put back to work, and using first either
the phrase , "since I am fired," or the phrase , "since I have quit," said that she was
"entitled to [her] money." Porter told Stewart that she could have it but that it
would take a while, as he had to send for it.47 Stewart's termination check had not
been received at the plant by the time Porter left around noon for his Fourth of July
weekend in St. Louis.48
According to Stewart, this is what happened on the morning of July 2. Stewart
got to the plant just about 8 o'clock. She went to punch in but found no timecard
for her in the rack She then went to the lockerroom, changed her "shoes anyway
and came back out," walked over to Porter, and asked him if she was fired. Porter
said, "No Odessa, you quit." Stewart then said that she did not quit, and asked, "Did
I tell you that I had quit?" Porter replied "No, you didn't tell me that you didn't
either." Stewart said, "I didn't quit; I went to the Labor Board." But Porter re-
plied, "You still quit." Stewart then asked if he had her check ready. Porter said
that he would call and see if it was ready. Stewart thereafter got her check in
"less than a half hour."
While the matter is not free from doubt, I believe that Stewart's version, except
for the speed with which she got her check, and possibly as to whether she had
changed for work before the conversation , is essentially the more accurate one. In
any event , I am confident that Porter did not give Stewart any reason other than
that she had quit; that Porter did not discuss the erasure on the card, her failure to
check out upon leaving the plant, or her failure to tell anyone where she was going;
that Stewart consistently insisted that she had not quit ; that Porter admitted that
Stewart had not told him that she had quit; that although Stewart did not specifically
ask to be put back to work, Porter continued to insist that Stewart had quit; and
that it was only after Porter had thus reiterated that she had quit that Stewart
possibly desirous of having some "vacation money" for the Fourth of July weekend,
asked for her check; and that sometime later that day she received it.
On July 2, after receiving her check, Stewart went to the Board's office and filed
the charge in Case No. 13-CA-3343, which alleged violation of Section 8(a) (1),
( 3), and (4) of the Act, specifying that the Respondent had discharged Stewart on
July 2, 1959, because of "her membership and activity in behalf of" the Union; be-
cause she "initiated a proceeding against the Company" ; and because she "furnished
testimony in support of such proceedings." 49
Sometime on July 2, Ray asked Foreman Reed where Stewart was and Reed told
him that "she quit." When Ray tried to get further details, Reed said that all he
knew was that Stewart had quit, and suggested that Ray see Porter, who, it will be
recalled, left the plant at noon on July 2 for a weekend in St. Louis. Hence, Ray
was not able to see Porter until Porter returned to the plant the following Monday,
July 6. On that day, Ray took Stewart's steward, Evelyn Crockett, with him to see
Superintendent Porter. Ray opened the conversation by saying, "I understand that
the company is saying that Mrs. Stewart quit." Porter replied that that was "right,"
and Ray asked "on what ground." Porter said that Stewart had "walked in here
and punched her card and left the premises without notifying the immediate su-
perior or anybody else"; that Stewart did not "return to work"; and that so far as
he was concerned, Stewart had "just quit." Ray then asked if that was the position
that Porter was "going to maintain " Porter made no reply or further explanation
and, Ray, whom I am convinced has never been requested by either Stewart or
Crockett to file a grievance on Stewart's behalf, walked out with Crockett.50 With
47 Payroll checks of the Respondent are made out at an associated plant a mile or more
away where a checkwriting machine used in connection therewith is available
48 The Company ' s plant was closed on Friday , July 3, as the Fourth fell on Saturday in
1959. According to Porter , who testified that it would have been impossible for Stewart's
check to have been returned within half an hour of the time she asked for it , he later
learned that Stewart picked up her check "about 12 •30 during the lunch period "
49 Whatever may have been the basis for an 8 ( a) (4) allegation, there is no 8(a) (4)
Issue in the case at bar Further , nothing in this charge , which was not amended, makes
any reference to the Respondent Company having been influenced by the Respondent
'union or Respondent Ray.
so The above findings are made on credited testimony of Ray, which is consistent with
-Porter's testimony and which is not contradicted , as Crockett was not asked about this
matter when called as a witness . I am convinced , from all of the evidence , not only that
Stewart did not file a grievance on her own behalf , as she admitted , but that she did not
attempt to get anyone else to file a grievance for her Stewart ' s testimony on the griev-
BERG-AIRLECTRO PRODUCTS COMPANY 1001
respect to the foregoing conversation, it should be noted that both Ray and Porter
very probably were by then aware of the respective charges which Stewart had
filed, and their discussion may well have included reference to said charges.
Stewart made her last visit to the plant on Monday, but the testimony is in con-
flict as to what transpired on that occasion, and as to whether the Monday involved
was July 6, or a week later, July 13. Stewart's presentation of the sequence of
events on direct examination contains nothing about her visiting the plant subsequent
to the above-discussed events of July 2. This matter was first covered on cross-
examination by Respondent Company, when Stewart admitted that she had gone
back to the plant a week or so after the July 2 visit; that on that occasion, Fore-
man Reed wanted to know what she was doing at the plant; that she had told Reed
that she wanted to get some things out of her locker and to see her steward about
filing a grievance; and that that was all that Reed said to her.51 Later, during cross-
examination by the Respondent Union, and questioning by the Trial Examiner,
Stewart insisted that she had gone to the plant on July 6, "the last day permissible
under the contract" for the filing of a grievance; 52 that she reminded Reed that
under the grievance procedure, "the first step is to speak to the foreman"; that she
told Reed that he knew that she had a grievance because she "had been fired"; and
that Reed said, "Okay, so you spoke to me."
This is the version given by Reed of a conversation which Reed repeatedly as-
serted, with apparent conviction, hadtaken place on Monday, July 13. Stewart asked
Reed if he had filed "a grievance against her." 53 Reed told Stewart that it was not
his job to do so. Stewart then said that she had been "told to come and ask" her
foreman why she had been fired Reed thereupon said, "Odessa, I didn't fire you,
evidently you quit." Stewart then said, "You are not going to tell me why you fired
me." When Reed did not say anything further, Stewart "walked out," saying as she
did so, "You'll hear about it."
Essentially corroborating Foreman Reed's version is testimony by Superintendent
Porter that Reed reported to him that Stewart had come in "a week or so later,"
asking if Reed had "filed a grievance on her." 54
It has already been sufficiently noted that Stewart's testimony about filing a
grievance generally is inconsistent and unconvincing. By contrast, Reed's explana-
tion as to how he has to check who is missing each day in assigning work in his.
department lends credence to his evident conviction that it was not until July 13
that Stewart paid her second visit to the plant. Further, the fact that securing the
immediate supervisor's statement as to the reason for -a separation would be usual
procedure lends credence to Reed's version as to the essential nature of the conversa-
tion, except that logically what Stewart would have been asking about was whether
Reed had filed or made any complaint about or against her to his superiors, concern-
ing her work or behavior. Further, I do not think that the meeting of the Union
ance phase of the case is too self-contradictory and unconvincing to be worthy of detailed
discussion. I believe that this testimony was essentially more an afterthought than any-
thing else, and I doubt that Stewart, because of her deep suspicion and resentment at
the time of the events now under consideration, thought of filing a grievance as a serious
and effective step in meeting her problem In any event, having taken recourse to the
Board's processes, as Stewart clearly had a right to do, questions as to why Stewart did
not file a grievance, and her failure to do so, are immaterial, except as they have bearing
on the credibility of Stewart as a witness. All such matters, including Ray's equally
implausible testimony and demeanor about certain parts of his extensive affidavit, have
been fully and carefully considered as bearing on the involved credibility questions in
this case.
51 On the same page of the transcript as the above, Stewart first testified that she did
not ask Ray if he would file a grievance for her because Ray "is a company man " Yet a
dozen lines later, Stewart testified that she "asked the president and the steward to file
one," and that she did not file one herself because it was Ray's "place to file a grievance
for me." The foregoing is illustrative of the inconsistency in Stewart's testimony about
filing a grievance
52 The contract provides that a grievance be taken up with the foreman within 2 work-
ing days ; the plant was not in operation on July 3, 4, and 5
53 Emphasis has been supplied in the above quotation. It is significant that Reed twice
used the word "against" In his testimony on this point
54 The emphasis in the above quotation has been supplied. Just as Reed twice used
"against" In his testimony, Porter twice used "on" in his. I deem it significant that
neither Porter nor Reed themselves used such words or phrases as "for" or "on behalf
of" in their testimony about this
7002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Sunday, July 12, to which we next turn, shows that "Stewart's grievance had be-
come an issue among the Union members," as the General Counsel contends in his
brief, thereby demonstrating that Stewart must have tried to file a grievance on
July 6, hence placing her conversation with Reed on that date, rather than on July
13. In fact, I think that what occurred in the union meeting of July 12, next to be
considered, is consistent with Stewart's going to the plant the day after it to find out
\what position her foreman, with whom she had not yet talked on the matter, was
taking withrespect to the reason for her termination.
After painstakingly considering the evidence and contentions, I conclude and find
that Stewart last visited the plant on July 13; that on that day she got some things
from her locker and explained to Foreman Reed that she had been "told to come and
ask" him why she had been fired; and that the conversation thereupon proceeded
essentially as Reed testified that it did, except that there was no discussion during
the conversation about Stewart filing a "grievance" within the meaning of the union
.contract, but that rather Stewart questioned Reed as to whether he had made any
complaints against her, with Reed acknowledging that he had not done so, and ex-
plaining that Stewart had not been discharged but that she "evidently" had quit.
On Sunday, July 12, a meeting of the Union took place at its hall. This is the
version thereof as credibly given by employee Russell Williams, the only one of the
seven witnesses called by the General Counsel who had not at some point held some
1kind of office in the Union. The question as to what Ray was "going to do about
Odessa Stewart" came up and Ray answered that "there was nothing that he was
going to do" about Stewart. At that point some "guy asked him why he wasn't going
to do anything," and Ray said that it was because Stewart "went down to the Labor
Board" and filed a charge against the Union, and for that reason he was not "going
to do anything about it, see, because his hands was tied." And then this "guy asked
him who tied his hands, and he said he tied his hands himself." Then "the guy got
into an argument" with Ray about the matter and Ray "ordered the guard at the
door to have the guy thrown out."
Testimony of Theaudious Calvin, the union trustee and committee member re-
#erred to above, establishes that he was "the guy" whose name Williams did not
know, and corroborates the above testimony of Williams, except that Calvin's version
makes no mention of Ray having explained that Stewart had filed a charge against
the Union.
Ray's version of the July 12 meeting was that it was at a different meeting during
which he asked "the guards to remove" Calvin; that while he did say at the July 12
meeting that his "hands were tied about Odessa," he explained "to the members
that my hands were tied" because if Stewart had wanted the Union to represent her
in what the Company was contending was not a discharge, but rather a quit, she
would have come to the Union "instead of going to the Labor Board."
Everything duly considered, I believe and find that the material part of the July
12 meeting occurred, essentially as Williams testified, except that Ray's explanation
about Stewart going to the Board having tied his hands was given in more detail.
I believe, for instance, that Ray, who has some difficulty expressing himself, tried to
make clear that his position was that when one turns from somebody who has been
the representative to other people, "you automatically strikes yourself from the
people that are representing you in the past," and that by going to the Board Stewart
had tied his hands, in that she went against him and the Steelworkers. Furthermore,
I find no testimony that Calvin or anyone else at this meeting was accusing Ray of
refusing to process any grievance that anyone claimed that Stewart had tried to file.
And finally, while it is understandable that the General Counsel, in view of the con-
versation on the morning of June 16 involving Golden, Ray, and Porter, should inter-
,pret Ray's remarks as tantamount to an admission on his part that his hands were
tied because he had tried to get the Company to discharge Stewart, I believe that
language difficulties, and the inadequacy of memory over a period of time, leaves it
equally plausible that what Ray was trying to convey on July 12 was that by.his
foregoing line of reasoning, he had come to the conclusion that his hands were tied.55'
At another union meeting, sometime around the middle of June, Ray made addi-
tional statements which are in issue. Recording Secretary Quincy Collins testified
emphatically that at this meeting, which Ray had "called because of the disturbance
that was going on within the Union," Ray stated that:
56 It must be borne in mind that the extensive affidavit of Ray which was received in
evidence was admitted solely on credibility issues. Hence statements therein have "no,
independent testimonial value." See Sealtest Southern Dairies Division, National Dairy
,Products Corporation, 126 NLRB 1223, footnote 4, and the text at that point.
BERG-AIRLECTRO PRODUCTS COMPANY 1003
anyone causing trouble or disturbance in the Union would be removed
from his or her office and fired, because he had the authority to pull cards and
fire them-and fire people.
The version of this matter given by Steward Evelyn Crockett was:
Well, I may not have the words like he said it, but it was something about that
if anybody else caused any disturbance that he would see that they would be
removed and see that their cards would be pulled , or something like that.
Crockett, when asked "removed from what," testified that she understood that to
mean from union office. Crockett also testified that while ,they had union cards as
well as timecards, and while all that Ray had said was that he would get their cards
pulled , she "took it for granted that it was the timecard" about which Ray was
.talking.
Ray's explanation of the meeting was that he had "been having a lot of trouble"
-with or among the membership of the Union ; that it was at this meeting that he had
asked the guards to remove Calvin; that he had also said that he "would have your
cards pulled"; that he said that he had the authority to do so under provisions of
Steelworker 's constitution pertaining to "the discipline of the officers or members";
and that while he did not "explain to the members what card [he] was talking
about," he was talking about the union membership card.
Crockett impressed me as a more credible witness than Collins , and I am satisfied,
.from her carefully given answers, that Ray did not use any such term as "fired."
Moreover, while it is understandable that Crockett, who appeared to have no dif-
ficulty with the English language or its colloquial connotations , and who, as Stewart's
steward, may well have been mystified at the position of the Respondent Company
.that Stewart had "automatically quit" her job, would construe Ray's remarks to
apply to timecards , rather than to membership cards, it is again not implausible
that Ray, who obviously was talking about removing from union office those whom
he felt were creating a disturbance , was also talking about removing, lifting, or pull-
ing their union membership cards. In any event , I do not consider the evidence
on this meeting, duly weighed in total context, sufficient to establish that Ray was
,threatening to get those creating what he considered a disturbance discharged from
their jobs, although I believe it is obvious that Ray was throwing his weight around
in order to keep opposition to him in the Union in line, and to impress all with
his authority and with his determination to keep that authority and to use it in
whatever way might prove necessary.
After the expiration of the 24-day, nonretroactive extension agreement, which had
.been signed on the morning of July 1, Respondent Company and Respondent Union
negotiated a job classification, with a pay increase of 5 cents an hour, retroactive to
.June 30, 1959.
On September 19, 1959, Stewart filed the last of the charges involved in the instant
matter. This charge is the first amended charge in Case No. 13-CB-819. It alleged,
for the first time, violations of Section 8(b) "(1) and (2)," in that about June 16,
1959, the Union, by its President Ray, "caused and attempted to cause" the Company
to discriminatorily discharge Stewart
C. Conclusions
1. The independent 8(a)(1) allegations
The facts as to the two alleged independent 8(a)(1) violations, threats on the
part of President Berg of economic reprisal about June 17, 1959, and interrogation
of employees by him about June 27, have already been fully spelled out in the con-
text in which they occurred. No purpose would be served by reviewing these facts
here, as they can readily be reviewed by checking the three paragraphs- noted in the
margin.56
As to Berg's alleged threats, it is clear that what Berg said took place before only
the bargaining representatives of the Company and the Union, and in the heat of a
bargaining session, during which International Representative Barker was demanding
-that President Berg agree to pay increased wages, which Berg was insisting that he'
was unable to do, because his auditors' report showed that he was losing money.
When Barker, nonetheless, insisted that Berg would have to grant increases or the,
plant would be shut down, Berg, obviously incensed at what must have impressed.
se As to the alleged threats of June 17, see the two paragraphs on page 995 which pre-
,cede footnote 30 For the facts involved in the alleged interrogation, the actual date of
-which was June 30, see the paragraph on page 997 which concludes with footnote 38.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him as unreasonableness on the part of the Union's spokesman, told Barker that he
would save him the trouble, and thereupon ordered Porter to close the plant. It took,
in fact, three such directions on Berg's part before Porter acted; Barker, in the mean-
time, indicating no deviation from his position that without more money the Union
would close the plant.
What occurred was patently an impasse in bargaining relations, with both sides
threatening to use their ultimate economic weapons, the result in either case being
the closing of the plant, the Union by strike, and the Company by lockout, both
equally illegal under the agreement then in effect between the parties, which still had
almost 2 weeks to run. That it was Respondent Company which carried out the
threat, thereby violating the agreement, is not in issue in this case. In any event,
through the good offices of Superintendent Porter and others in management, Berg
was persuaded to see his error and was cooled down sufficiently to reopen the plant,
all within 45 minutes. And it is apparent to me that Barker also, within that same
period of time, was ready to let bygones be bygones. I believe that would have been
done, had it not been that Vice President Stewart, who was the ranking member of
the union committee which returned to Berg's office that afternoon, took the position,
evidently acquiesced in by Barker, that the employees should remain out of the plant
until the legal posture of the lockout could be determined, a position the only clear
result of which appears to have been the loss of at least 2 days' work on the part of
most of the employees.
I do not believe that a realistic appraisal of what transpired just before Porter
closed the plant on June 17, taken in its unusual context, justifies holding that Berg,
in violation of Section 8(a)(1) of the Act, "threatened employees with economic
reprisals if the employees persisted in having the Respondent Union bargain for them
with respect to wages, hours, and conditions of employment," as alleged in the com-
plaint. It accordingly will be recommended that said allegation of the complaint be
dismissed.
I am similarly convinced that the allegation as to interrogation must fail. As more
fully appears hereinabove, Berg's reasons for wanting the more representative strike
vote, which was taken by the officers of the Union some 12 hours before the agree-
ment was to expire on June 30, was an understandable business reason, namely, so
that he would know whether or not to make preparations for closing the plant.
Moreover, I am satisfied that union officers cooperated both in deciding to conduct
this vote and in calling the meeting. I am further convinced, as earlier found, that
no expression of employee opinion as to whether to strike or to extend the agreement
took place until after Berg and all members of management and supervision had
left the meeting.57
Everything considered, including the two Board decisions cited in the General
Counsel's brief, as well as several other Board decisions, I find the pattern of events
pertaining to the alleged interrogation in the instant matter materially distinguishable
from anything which has come to my attention basing a Board finding of violation
of Section 8(a),(1) of the Act. Accordingly, not being convinced that a violation
has been established in this respect, it will be recommended that the allegation of the
complaint as to interrogation be dismissed.
2. The allegations as to Odessa Stewart's discharge pertaining to Respondent Union
and Respondent Ray
This is the position taken in the General Counsel's brief as to Odessa Stewart's
termination. Stewart did not quit but- was discharged because, by her "vigorous
activity on behalf of the employees" and the extent of her persistence "in fighting for
the rights of her fellow-employees," she became "a thorn in the side of" Respondent
Union and its president, Respondent Ray, and because her insistence "upon adherence
to the contract" resulted in making "bed mates" out of Respondent Company and
Respondent Union.
67 The General Counsel conceded, during oral argument (the transcript of which con-
tains numerous errors which no attempt will be made to correct), that there was only
one meeting in the plant involving a strike vote In his brief, he relies on testimony of
Quincy Collins to support his position that such a vote was taken in the presence of man-
agement representatives A close reading of Collins' testimony on this point shows that
it is, at most , ambiguous as to whether or not Berg left the meeting before the employees
voted . But even if an interpretation favorable to the General Counsel were conceded
with respect to Collins' testimony, I would not credit such testimony of Collins against
that of Stewart, Ray, and Porter, cited above in footnote 38, all credibility factors duly
considered
BERG-AIRLECTRO PRODUCTS COMPANY 1005
Turning more specifically to Ray, who is characterized as the Company's "favorite
son," the General Counsel's brief contends that this "financial favoritism of Respond-
ent Company to Respondent Ray provides the underlying motive for the discharge
of Stewart." Pointing out that the Company "expressed concern over Respondent
Ray's financial problems" while the agreement was being negotiated, and made the
original $300 loan to Ray "lust one day after the contract was signed," the General
Counsel contends that when Stewart, insisting that Ray "should be removed from
office" because he was receiving money from the Company, forced the situation into
the open, International Representative Barker saved Ray from such -a removal "by
pointing to the infancy of the Local." Thereafter, on June 11, by refusing Ray a loan
from union funds, Stewart, the admitted critic of Ray, "had now pressed the thorn
deeper into his side." However, the Company "again saved its favorite son from
financial embarrassment" by wiring $75 to him in Memphis, thereby demonstrating
that the Company "would go to any length to accommodate Respondent Union
through" President Ray, and that for "the mere asking he could obtain practically
any favor he desired."
Coming now to the conversation on the morning of June 16, involving Respondent
Ray, Superintendent Porter, and Steward Oscar Golden, which the General Counsel
characterizes as "regarding the plot to get rid of Stewart," the brief pictures Ray
as "motivated by the desire to rid himself, Respondent Union and Respondent Com-
pany of the thorn that continually pricked their sides," and Porter as "happy to erase
from the picture the only true fighter that the employees had," as Porter was well
aware of 'Stewart's "strong union feelings and activities" and also of her "persistent
criticism of the way that the Respondent Company administered the contract."
However, Porter, "being a wise conspirator and realizing the implications of the plot,"
,disagreed with Ray's idea of how to proceed against Stewart, and "suggested that he
could do the job cleaner by firing her." Thereafter, when Stewart left the plant with-
out permission during the meeting on the morning of July 1 to go to the Board to
file a charge, "Porter and Reed concluded within an hour" that she had "automatically
quit," thereby actually discharging her under such circumstances that there is "no
doubt that Porter was finally putting into effect the plot of June 16, 1959."
The above epitome of the General Counsel's position as to Stewart's discharge
applies to all of the Respondents, the allegations of the consolidated complaint as to
Stewart being too closely related for complete severance. However, in approaching
such a complex problem as that now before us, one must find a starting point, and
I have decided to consider the allegations as to the Union and Ray first. Hence
portions of the General Counsel's brief pertaining only to Respondent Company are
being reserved for the present, and we will proceed to summarize such major con-
tentions in the Respondent Union's brief as have not already been considered in
resolving conflicts and in making factual findings earlier stated, such as the findings as
to the conversation of June 16 involving Porter, Ray, and Golden.
The Respondent Union's brief contends that even assuming such a conversation
on June 16, the statement attributed to Ray by Golden does not constitute a cause or
an attempt to cause discrimination against Stewart, in violation of the Act, essentially
because said statement "is less than a request," and even if held to be a request, it is
not sufficient to constitute a "cause or attempt to cause," in violation of Section
8(b)(2) of the Act, in view of the distinction made by the Board between mere
"attempts ' to persuade" and attempts to cause.
The Respondent Union's brief next contends that, in any event, the Union is not
responsible for the acts and conduct attributed to Ray, even though Ray was "of
course its agent," because Ray was not acting within the scope of his authority and
was acting for personal reasons, rather than on behalf of the Union.58 The Union's
brief also contends that it is not liable for backpay for Stewart, even if a violation
were found, because the preponderance of the evidence establishes that Stewart
quit; because the Union's relationship with the Company at that time was such that
the Company would not have complied with a request by the Union to discharge an
employee; and because the Company had other reasons for discharging Stewart, if
she was discharged.
"This able section of the brief, with respect to what appears to be a novel problem in
a case of this type, is persuasively written It is not more fully summarized because, as
will presently appear, I do not believe it necessary to reach this problem, although I find
myself in fundamental sympathy with the position of the Respondent Union in this section
of its brief, and probably would, under the highly unusual circumstances of this case,
reach conclusion similar to those advanced therein, if I felt it incumbent upon me to pass
on this matter.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fixing one's eyes on only certain highlights of the total picture, there is an aura
of plausibility to the General Counsel's theory, which is succinctly summarized in.
the following language in the Respondent Company's brief:
The theory of the General Counsel's case is that the Company conspired with
Ray, the Union's president, a complaisant representative of the Union, to get
rid of Stewart, a militant representative of the employees. The implication is
that the relationship between the Company and the Union was a "sweetheart"
one, or saved from being such only because of Stewart.
But when the details are all carefully examined, and alternative explanations for
the various elements in the involved pattern of facts are duly weighed, plausibility
gives way to doubt, and eventually to rejection of what mature judgment shows to be
an oversimplification, which ignores too many factors and relies on others to which,
no adverse inferences necessarily should be attached.
Obviously Ray had not enjoyed being laughed at by Stewart at the meeting when
he had had to explain his finances, and must have felt that Stewart had been giving
him a hard time. As Ray admitted, he had determined not to let Stewart get in his
way. Hence having been publicly humiliated by his vice president, who admittedly
believed that she was the only militant representative of the employees among the
officers of the Union, and feeling that Stewart was usurping his functions, I have
no doubt that Ray was trying to throw his weight around in various places, including
during union meetings, in an effort to retain the upper hand, or perhaps we should
say to keep at least one leg of the pants in the Union's unhappy family. Thus a
personal desire on Ray's part to get rid of Stewart is understandable and, on all
of the evidence, must be conceded to have existed.
However, having said all of this, it does not necessarily follow that what eventu-
ally happened to Stewart, while resulting essentially in wish fulfillment for Ray, was
caused by Ray, much less by the Union, for Respondent Company, as will appear
more fully in the next section of this report, had its own reasons for becoming fed
up with what I am satisfied it felt, on the basis of developments during June,
amounted to inflexibility and vindictiveness on the part of Stewart, a woman as im-
pressed with 'her own importance as she was inexperienced in the give and take
of labor-management relations. Moreover, I am not persuaded that Steelworkers,
the certified bargaining agent of the employees involved, which is not a party to the
instant case, is inclined to be particularly soft on employers, and it is significant that
tangible contract gains, including the two increases in wages, were made at times
when Stewart was not a member of the respective bargaining committees.
In addition, in view of the regretable financial circumstances of an employee, whom
his fellow employees had elected to their bargaining committee and later to the
presidency of their local, I cannot subscribe to the view that the two loans made by
Respondent Company to Respondent Ray prove that he was its favorite son, whose
any request would almost automatically be granted. Without respect to the desir-
ability of such loans as a matter of general principle, it is noteworthy that, in the
case of each loan, Ray had been unable to secure funds from union sources; Ray
was in apparently genuine financial need in each case; both loans were made from
a long-established fund for such purposes; and regular payroll deduction repayments
were provided for in each case. Moreover, a desire on the part of the Respondent
Company to avoid having the inception of its labor relations complicated by garnish-
ments against an elected representative of its employees is as plausible a motive for
the unusual size of the initial loan as an attempt to get leverage over the Union by
patronizing Ray into a favorite-son status. And finally, if I were to accept the view
that Ray was merely the weak and submissive tool of Respondent Company, it
would be difficult to see how Ray would be in a position to cause the Company to do
anything, for a mere tool does not cause a hand to take action.
In any event , it is my considered judgment that there is in this case neither a
pattern of events, nor a complex of permissible inferences, which can bolster up
the conversation of June 16 into a telltale outcropping of a deep-veined conspiracy,
thus affording a basis for holding that the Respondent Ray, and through him the
Respondent Union, caused the Respondent Company to discriminate against Odessa
Stewart In addition, I am satisfied that said conversation of June 16, about which
detail findings have already been made,59 cannot be said to constitute even an attempt
to cause Stewart's discharge. This is so for several reasons.
It will be recalled that rather than making any kind of a request to Superintendent
Porter concerning Vice President Stewart, President Ray told Steward Golden what
sn See the paragraph on page 993 which ends with footnote 27 and the three paragraphs
following it, particularly the last of those three
P
BERG-AIRLECTRO PRODUCTS COMPANY 1007
he was "going to have" done, and that both Porter and Golden immediately pointed
out why it was too foolish to be done, even attempted. In my analysis of this con-
versation, I have already explained that Ray was simply putting forward a half-
baked idea on the spur of a moment of resentment at Golden, who had lust, so to,
speak, rubbed salt in an old wound by criticizing Ray for having secured the second
loan, which Ray had received only 4 days earlier. All factors carefully considered,
I find that Ray's conversation of June 16, while clearly betraying his wish, cannot
be considered a request that Superintendent Porter discharge Stewart, much less "an
attempt,to cause," particularly in view of the distinction made by the Board between
"attempts to persuade," and attempts to cause which are violative of Section 8(b) (2),
in the decision cited in the margin.60 Hence it becomes unnecessary to reach a num-
ber of other pertinently put and very interesting contentions in the Respondent
Union's brief, all of which have been carefully considered, and with some of which,
as earlier indicated, I am in basic agreement. Accordingly, on the record as a whole,
it will be recommended below that all of the allegations of the consolidated com-
plaint against Respondent Union and Respondent Ray be dismissed.
3. The allegations as to Odessa Stewart pertaining to Respondent Company
In view of what has been said in the immediately preceding section of this report,.
it is obvious that the portion of the allegation in the consolidated complaint against
the Company to the effect that it discharged Stewart because of requests, demands,
and insistence of Respondent Union and Respondent Ray must fail, and it will be-
recommended below that said allegation be dismissed.
We turn now to the remaining allegation of the complaint, that Respondent Com-
pany discriminatorily discharged Stewart because she engaged in union or other
concerted activity, and thereafter refused to reinstate her.
Stewart had worked as an employee under Porter's general supervision since 1953,
and her work had never been criticized. In fact, counsel for Respondent Company
specifically stated at the hearing that the quality of Stewart's work was not in issue,
and her foreman, Cleveland Reed, told Stewart, on the occasion of her last visit to
the plant on July 13, 1959, that he had not made any complaint against her, that
she had not been fired, and that she "evidently" had quit. Similarly, when Stewart
saw Superintendent Porter at the plant on July 2, Porter denied that she had been,
fired, told Stewart rather that she had quit, and thereafter insisted, despite Stewart's
denial that she had quit and her explanation that she had gone to the Board, that
Stewart nevertheless had quit.
To be sure, Stewart had erased her punch-in time and had left the plant in an
understandably upset condition on the morning of July 1, without obtaining the-
approval of either Reed or Porter. Clearly, under the above-quoted notice posted
by the timeclock, Stewart should have secured the permission of either Reed or
Porter to leave, and should have punched out upon leaving. Instead, Stewart erased
her punch-in time, a procedure technically not covered by the notice, and one which
was not calculated to defraud the Company of any payment for time not worked.
Presumably Stewart, who testified, without contradiction and with corroboration,
that an office girl by the name of Mildred, who was not called as a witness, told her
that she could erase her punch-in time, figured that if her card showed no punch-in
time, there was no necessity for punching out or for getting permission to leave.
But be all that as it may, Stewart's timecard erasure was never so much as men-
tioned to her by any representative of management, as has already been pointed out
above, in footnote 40, supra, and it was not mentioned by Porter in his explanation
to Ray and Crockett on July 6 as to why the Company was going to maintain the
position that Stewart had "just quit."
In my opinion, a careful reading of the above-found facts surrounding Stewart's
termination shows that, within less than an hour of the time a "very agitated"
Stewart had left the plant on July 1, after challenging the signing of the "damn
extension" and wondering aloud "how much did they get paid for this," Porter,
without ever having asked Stewart anything about her intentions, reached the deci-
sion, which he conveyed to Reed within Crockett's hearing, that Stewart had "auto-
matically quit"; that the Respondent Company has since maintained essentially this
position; and that what it has relied on to support said position has been essentially
that Stewart left on July 1 without getting permission, and did not return until the
morning of July 2, at which time, it will be recalled, Stewart insisted that she had
not quit.
e0 See Denver Building and Construction Trades Council: International Union of
Operating Engineers, Local No 9 (Henry Shore), 90 NLRB 1768
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leaving aside Stewart's reason for not returning to the plant after lunch on July
1, that Dement Ray told her over the telephone that she had been fired,61 it is clear
that Stewart had been away from the plant a little less than 24 hours when she
returned about 8 a.m. on July 2. It is also equally clear that such relatively brief
absences from work are not customarily causes for any kind of discipline at the
Company's plant. For instance, Porter testified that a lot of employees take time
off without permission; that such behavior is a frequent occurrence with certain
people; that some women take time off because "something happens to the kid"
and that some men `Slook like they have a hangover' ; that some employees call in
and report and "some do not"; and that, as to disciplinary action against employees
who take time off without calling in:
We have warning slips. And too many days off without permission or being
excused, will [be] cause for discharge. Sometimes we give them two days off
[for] the first offense. And the second offense a week off; and the third, the
next time, we discharge them.
Moreover, Reed testified that even employees who would automatically be dis-
charged for being "off three days without calling" are sometimes taken back to work
if they have a good reason for having been absent. Further, what the agreement
then in effect provided for was not loss of employment, but rather that an employee
would lose seniority rights for being absent for 3 consecutive days "without proper
notification to the company unless such employee has a legitimate reason substan-
tiated by satisfactory proof."
Under all of the circumstances, the treatment which the Respondent Company
accorded Stewart, an employee whose work was satisfactory, was scarely in keeping
with the Company's usual procedures. Everything considered, I am satisfied that
the Respondent Company did not believe that Stewart actually had quit her job. I
am convinced and find that its action, in taking the position, within an hour of her
having left the plant, that she had "automatically" done so, and its failure to offer
her an opportunity to return to work when, within some 24 hours, Stewart insisted
that she had not quit, and its further failure thereafter, when the Respondent Com-
pany was served with a copy of the charge which Stewart filed to the effect that she
had been discriminatorily discharged, taken together are tantamount to discharging
Stewart on July 2, 1959, and thereafter refusing to reinstate her.
Why would the Company thus treat a satisfactory employee, whose ability as a
worker had long been known to its superintendent? I think that a review of certain
salient facts as to Stewart's activity in the union during the preceding weeks will
supply the answer.62
It will be recalled that on the morning of Tuesday, June 16, when Ray expressed
a desire to be rid of Stewart, Porter told Ray that "if it had to be did," it would be
better for all concerned if Porter fired Stewart. And it will also be recalled that it
had been just the preceding Friday, June 12, while Ray had been in Memphis, that
Stewart had gone over Porter's head directly to Berg, claiming that the layoff of the
women employees, for valid reasons which Porter had explained in making that
short layoff, was a violation of the agreement. The altercation between Stewart
and Berg at that time had reached the point where Berg used what Stewart con'-
sidered objectionable language before walking away. Thus shortly before Porter's
remark to Ray on June 16, top management of Respondent Company had had an
experience with Stewart, completely independent of Ray's attitude toward her,
which could have generated a feeling of hostility toward Stewart, even assuming
that Stewart's behavior prior to that point had done nothing to differentiate her
from other leaders of the Union. In short, Stewart's activities on June 12, what-
ever may have been her preceding record as a union leader of outstanding militancy,
would be sufficient, in my opinion, to have planted a question in management's
mind as to what was to be done, if it could not get along with Stewart, thus account-
inc for Porter's use of "if" in connection with his expression as to the possibility
of having to get free of Stewart.
n In a small plant news travels fast, and I have no doubt that by the time the "auto-
matically quit" pronouncement which Crockett had overheard Porter deliver to Reed had
been making the rounds for an hour or two, the employees' version had been abbreviated
to the more realistic fact that the Union's vice president had been fired
02 Since it is my opinion that the answer now about to be given would not be materially
clearer if we were to go into numerous earlier matters which are in conflict, and in many
respects ambiguous as to time and content, I have not, as earlier noted. discussed a
number of such matters in this report, thereby substantially curtailing the length hereof
See footnote 20, supra.
F
BERG-AIRLECTRO PRODUCTS COMPANY 1009
With the foregoing setting in mind, Stewart's role in the events of the next 2
weeks, when -discerningly 'appraised, affords the answer to our above-stated basic
question. Without recounting details here, it will be recalled that on the very next
day, June 17, after Berg had closed the plant; after Porter had been instrumental
in persuading Berg to reopen it; and after Barker had indicated his apparent will-
ingness to let bygones be bygones; it was Stewart, as the ranking union officer then
present, whose position resulted in what the Respondent Company considers a strike
of some 2 days' duration.63 Moreover, even after Berg, during continued negotia-
tions with the Union on June 22, had "apologized for his outburst" and had prom-
ised that he would in the future "conduct himself at all of the meetings like a
gentleman," Stewart, at a meeting in the plant on July 1, had become very agitated,
albeit understandably when seen in prospective, and had demanded to know who
had signed the "damn extension" and had left the meeting, calling out as she did
that she wondered how much they got paid for doing so.
Before proceeding to my concluding finding, let me refer the reader back to
what was said in the preface, wherein I attempted to epitomize the general nature
of the problems in this case, closing with the statement that much of what herein
appears has been written "more with a sense of sorrow than of censure." And let
me remind the parties that, just before closing the hearing, I urged them to consider
the possibility of attempting to settle this case.
But since it falls unhappily to my lot to have to pass judgment, I conclude that,
despite what I realize the Respondent Company must consider justifiable provoca-
tions, its above discussed action with respect to Stewart would never have occurred
had it not been for her activity as vice president of the Union. Accordingly, since
such activity was not of a character which would warrant discharge or refusal of
reinstatement, I find that on July 2, 1959, the Respondent Company discharged
Odessa Stewart, and that it has since refused her reinstatement, because Stewart en-
gaged in union or other concerted activities, and that the Respondent Company has
thereby violated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Company set forth in section III, above, occurring in
connection with the operations of Respondent Company described in section 1,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce, and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Company has engaged in and is engaging in
certain unfair labor practices affecting commerce, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
It has been found that Respondent Company, by discharging and failing to re-
instate Odessa Stewart, has discriminated against her in regard to her hire and
tenure of employment, and has thereby violated Section 8(a)(3) and (1) of the
Act. It will therefore be recommended that Respondent Company cease and desist
from such discrimination, and from in any manner interfering with the exercise by
its employees of rights guaranteed in Section 7 of the Act. It will also be recom-
mended that Respondent Company offer Stewart immediate and full reinstatement
to her former or substantially equivalent position, without prejudice to her seniority
or other rights and privileges.64 It will further be recommended that Respondent
Company make Stewart whole for any loss of pay suffered by reason of the afore-
said discriminatory treatment, by payment to her of a sum of money equal to that
which she normally would have earned, less her net earnings, from July 2, 1959, the
date of the discrimination against her, to the date of an offer of reinstatement to sub-
stantially equivalent employment, computing the amount of backpay due in the
customary manner 85 It will be further recommended that Respondent Company
preserve and, upon request, make available to the Board, payroll and other records
to facilitate the checking of the amount of backpay due.
w See footnote 34, supra, and the three paragraphs in the body preceding It
"The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
e5 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L R B.,
311 U.S 7; and F. W. Woolworth Company, 90 NLRB 289, 291-294.
599195-62-voL 1 S1 65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. Local 5806 , United Steelworkers of America , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Odessa
Stewart, Respondent Company has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (3) of the Act, and has also thereby inter-
fered with, restrained , and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, thus engaging in unfair labor practices within the meaning
of Section 8 (a)( I) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting corm
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 756, International Brotherhood of Electrical Workers,
AFL-CIO, and its agents , including Robert Palmer , Business
Agent ; Robert Lee, President ; P. L. Graham , Vice-President;
and A. O. Bush , Member of Executive Board and The Martin
Company. Case No. 13-CC-123. June 5, 1961
DECISION AND ORDER
On January 31, 1961, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief,' and the entire record in
this case, and hereby adopts the findings, conclusions,2 and recom-
mendations of the Trial Examiner, with the following additions :
The Trial Examiner found, and we agree, that the Respondents,
Local 756 and Robert Palmer, induced and encouraged employees of
Gable Electric Service to refuse to install cables prefabricated by
The Martin Company, an object being to force Gable to cease handling
these products of Martin, and further to force Gable to cease doing
business with Martin; and that the Respondents thereby violated
Section 8(b) (4) (i) and (ii) (B) of the Act.
'The Respondents ' request for oral argument is denied as the record , exceptions, and
brief adequately set forth the position of the parties.
2In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's find-
ings and conclusions that Respondents Lee, Graham , and Bush did not engage in any
proscribed conduct.
131 NLRB No. 120.