Nevada Tank and Casing Co.

National Labor Relations Board - Board Decisions

Jun 28, 1961

131 N.L.R.B. 1352 (N.L.R.B. 1961)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Locals, the Respondent reduce to writing and sign the agreement of June 3 including
a maintenance-of-membership provision , a clause permitting reopening for negotia-
tions on union security upon expiration of 120 days and for a contract term of 1
year from date of execution. If no such request is made by the Locals, it will be
recommended that the Respondent upon request of the Locals be required to bargain
collectively with them in respect to terms of a collective -bargaining contract and
if an agreement is reached to sign it.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
,case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Local 23 and Local 67 are labor organizations within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees , shipping and receiving employees,
and truckdrivers employed by the Respondent at its Inglewood, California, plant
excluding office and plant clerical employees , professional employees , guards, and
supervisors , as defined in the Act, constitute a unit appropriate for purposes of
,collective bargaining within the meaning of Section 9(b) of the Act.
4. At all times since February 8, 1960, Local 23 and Local 67 have been and
now are the exclusive representative of Respondent 's employees in the appropriate
unit for purposes of collective bargaining with respect to rates of pay, wages, hours
of employment , and other terms and conditions of employment.
5. On June 3, 1960, the Respondent agreed with the Locals as to the terms and
,content of a collective -bargaining agreement.
6. By failing accurately and completely to reduce the terms of the June 3 agree-
ment to writing and by refusing to prepare for signing and to sign the agreement
,of June 3 the Respondent has failed to bargain in good faith with the Locals and
has thereby violated Section 8(a) (5) of the Act.
7. By such refusal to bargain in good faith the Respondent has interfered with, re-
strained , and coerced its employees in the exercise of rights guaranteed them in
Section 7 of the Act and has thereby violated Section 8(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Nevada Tank and Casing Company and Operating Engineers,
Local Union No. 3, International Union of Operating Engi-
neers, AFL-CIO. Case No. 00-CA-1708. June 28, 1961
DECISION AND ORDER
On April 15, 1960, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, exceptions to the
Intermediate Report, and supporting brief, were filed by the Re-
spondent.
Pursuant to the provisions of Section 3 (b) of the National Labor Re-
lations Act, as amended, the Board has delegated its powers in connec-
tion with this case to a three-member panel [Chairman McCulloch
and Members Rodgers and Leedom].
131 NLRB No. 165.
NEVADA TANK AND CASING COMPANY 1353
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 In-
termediate Report, the exceptions and brief, and the entire record,
and hereby adopts the findings, conclusions, and recommendations
with the following modifications.
We disagree with the Trial Examiner's finding that the Respond-
ent's written offer of reinstatement of October 23, 1959, was an offer
of temporary work, but find, rather, that this was an offer to restore
the employees to their former, or substantially equivalent, positions.'
We find, therefore, that such offer of reinstatement tolls backpay li-
ability from the date of receipt of that offer and also acts as a bar
to requiring that Respondent offer reinstatement to those employees
who rejected this offer.
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, Nevada Tank
and Casing Company, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interference with, restraint, or coercion of its employees in
the exercise of their right to self-organization, to form labor organ-
izations, to join or assist Operating Engineers, Local Union No. 3,
International Union of Operating Engineers, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own free choice, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities 2
(b) Discouragement of membership in any labor organization by
the discharge of any of its employees, or by discrimination in any
other manner with respect to their hire or tenure of employment, or
any term or condition of their employment.
(c) Refusal to bargain with Operating Engineers, Local Union
No. 3, International Union of Operating Engineers, AFL-CIO, as
the exclusive representative of all its employees in a unit appropriate
for the purposes of collective bargainings within the meaning of
Section 9 (a) of the Act, as amended.
1 Contrary to the panel majority, Chairman McCulloch would affirm the Trial Examiner's
finding that the Respondent's reemployment offer merely offered temporary work and
would therefore adopt the remedy on this point recommended by the Trial Examiner in
his report.
2 The proviso wih respect to a union-security agreement authorized by Section '8(a) (3)
of the Act, customarily found in this paragraph of an Order, has been omitted because
Nevada has a right-to-work law Nebraska Bag Company and Robert H Salver, at at,
d/b/a Nebraska Bag Processing Company, 122 NLRB 654, 656.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Make each of the employees named below-and each of the
other employees discriminatorily terminated on September 2, 1959,
at the Respondent's Reno plant-whole for any loss of pay or other
incidents of the employment relationship which they may have suf-
fered by reason of the discrimination practiced against them, by the
payment to each of a sum of money equal to the amount each nor-
mally would have earned as wages between the date of his discrim-
inatory termination by the Respondent enterprise and the date on
which the October 23 offer of reinstatement was received. The em-
ployees entitled to such payment are :
Ralph N. Phillips Mike Tyler James Earl Reynolds
Richard F. Poff Jack Kemp Roland C. Hanks
William E. Vines R. C. Marks Kenneth A. Jackson
(b) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying all payroll records,
'social security payment records, timecards, personnel records and
reports, and all other records necessary for an analysis of the amount
of backpay due in accordance with these recommendations.
(c) Upon request, bargain collectively with Operating Engineers,
Local No. 3, International Union of Operating Engineers, AFL-CIO,
as the exclusive representative of its employees within the bargaining
unit herein found appropriate for the purposes of collective bargain-
ing, with respect to labor disputes, grievances, wages, hours, and
other terms and conditions of employment, and, if an understanding
is reached, embody such understanding in a signed agreement.
(d) Post at its place of business in Reno, Nevada, copies of the
notice attached hereto marked "Appendix." 3 Copies of the notice,
to be furnished by the Regional Director for the Twentieth Region, as
the agent of the Board, should be posted immediately upon their re-
ceipt, after being duly signed by the Respondent's representative and
remain posted for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that these notices are not altered, defaced, or covered by any
other material.
(e) Notify said Regional Director in writing within 10 days from
the date of this Order what steps Respondent 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, Eniorcing an Order."
NEVADA TANK AND CASING COMPANY 1355
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, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees
in Operating Engineers , Local Union No. 3, International Union
of Operating Engineers, AFL-CIO, or any other labor organiza-
tion, by discharging or laying off any of our employees, or by dis-
criminating against them in any other manner, in regard to their
hire or tenure of employment or any term or condition of their
employment.
WE WILL NOT refuse to bargain collectively with Operating En-
gineers, Local Union No. 3, International Union of Operating
Engineers , AFL-CIO, as the exclusive representative of our em-
ployees in a unit appropriate for the purposes of collective bar-
gaining, with respect to rates of pay, wages , hours of employ-
ment, or other terms and conditions of employment.
WE WILL NOT interfere with , restrain , or coerce our employees,
in any other manlier, in the exercise of their right to self-
organization, to form, join or assist Operating Engineers, Local
Union No. 3, International Union of Operating Engineers, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own free choice, and to engage
in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities.
WE WILL make whole each of the employees named below for
any loss of pay or other incidents of the employment relationship
which they may have suffered by reason of the discrimination
practiced against them, in the manner set forth in the Trial
Examiner's Intermediate Report and Recommended Order, as
modified by the Board's Decision and Order.
James Earl Reynolds R. C. Marks
Ralph N. Phillips William E. Vines
Richard F. Poff Mike Tyler
Roland C. Hanks Jack Kemp
Kenneth A. Jackson
WE WILL bargain collectively, upon request, with Operating
Engineers, Local Union No. 3, International Union of Operating
Engineers , AFL-CIO, as the exclusive representative of all our
employees in the bargaining unit defined below, with respect to
labor disputes , grievances , rates of pay , wages , hours of employ-
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, and other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement. The appropriate unit is :
All of the production and maintenance employees of our
Reno, Nevada, plant exclusive of office clerical employees and
supervisory employees as defined in the Act, as amended.
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization.
NEVADA TANK AND CASING 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge, duly filed and served , the General Counsel
of the National Labor Relations Board caused a complaint and notice of hearing
to be issued and served upon Nevada Tank and Casing Company , to be designated
as the Respondent in this report . Therein , the General Counsel alleged that the
Respondent had engaged in unfair labor practices affecting commerce within the
meaning of Section 8 ( a)(1), (3), and ( 5) of the National Labor Relations Act,
as amended , 61 Stat . 136. By its answer, duly filed , the Respondent admitted the
jurisdictional allegations of the complaint , and certain substantive allegations there-
in; the commission of any unfair labor practice , however, was denied.
Pursuant to notice , a hearing with respect to the issues was held at Reno, Nevada,
on December 1, 1959 , before the duly designated Trial Examiner . The General
Counsel and the Respondent were represented by counsel . The Union was repre-
sented by its, business representative . Each of the parties was afforded a full oppor-
tunity to be heard , to examine and cross-examine witnesses , and to introduce evi-
dence pertinent to the issues . At the close of the testimony, oral argument was
heard . Subsequently , a brief prepared in the Respondent 's behalf was received.
It has been duly considered.
FINDINGS OF FACT
Upon the entire record in the case , and my observation of the witnesses, I make
the following findings of fact:
1. THE BUSINESS OF THE RESPONDENT
The Respondent , Nevada Tank and Casing Company, is now, and has been at all
times material , a Nevada corporation , engaged in the fabrication of steel tanks and
related products at its Reno , Nevada, plant . Its principal stockholders , I find, also
hold stock in the Perkins Welding Works, of Sacramento , California , and serve on
the board of directors for each enterprise . The Respondent was established in
February 1959 ; during that month it leased property for a period of approximately
1 year and purchased a building , intended for use as a productive facility.
Routinely , the Respondent purchases steel in flat sheets; these are rolled into
cylinders and closed with welded heads at each end to form tanks varying in size.
These are sold to Reno jobbers (70 percent ), contractors ( 20 percent ), and public
customers ( 10 percent ); they are designed for fuel oil , gasoline , chemical, and
water storage . Well casings are also manufactured by the firm. In July 1959,
about 75 percent of its production was based on orders ; 25 percent of its production,
dollarwise , was for stock . Since January 1 , 1959 , the Respondent has purchased
goods and materials valued in excess of $50,000 with an out -of-State point of origin.
Upon the available evidence and concessions embodied in the Respondent's answer,
I find that it now is, and at all times material has been , an employer within the mean-
NEVADA TANK AND CASING COMPANY 1357
ing of Section 2(2) of the Act, engaged in commerce and business activities which
affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended.
In the light of the jurisdictional standards which the Board presently applies, see
Siemons Mailing Service , 122 NLRB 81, and related cases. I find assertion of the
Board 's jurisdiction in this case warranted and necessary to effectuate the statutory
objectives.
II. THE LABOR ORGANIZATION INVOLVED
Operating Engineers , Local Union No. 3, International Union of Operating Engi-
neers, AFL-CIO, to be designated as the Union in this report , is a labor organization
within the meaning of Section 2(5) of the Act, as amended , which admits employees
of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
At the outset of the Respondent 's Reno operation, William Walker was designated
company manager ; previously , he had been employed , I find , as a Perkins Welding
Works estimator . The initial Reno location of the firm was considered temporary;
from the outset, I find , its officials planned to purchase other industrial property, and
to build their own plant thereon . Land for this purpose was purchased in July
1959 ; the plans of the Respondent called for the construction of a plant using channel
iron , beams, and galvanized sheet metal plates which Perkins Welding Works would
supply.
Earl Griffith , the first worker employed , was designated late in February 1959, as
a foreman . Thereafter, additional workers were hired ; by June or July 1959, a nor-
mal complement of 10 to 12 men was employed by the respondent enterprise. This
group included Walker, Foreman Griffith , nine production workers, and a book-
keeper. All of the men employed , I find , became aware of the Respondent's plan
to establish a plant later , at some new Reno location ; the subject appears to have
been freely discussed.
Employee discussions with respect to the advisability of unionization began in
May 1959. Business Representative Miller , the Reno representative of the Union,
was visited by some of the firm 's employees during the month which followed and
Employee Reynolds, I find, secured a number of blank authorization cards from him.
Miller's testimony , which I credit in this connection , establishes that no authoriza-
tion cards were given to two former employees of the respondent enterprise early
in June 1959 ; on or about June 22, 1959 , however, Reynolds received cards. These
were signed by Reynolds and three other employees , approximately , shortly
thereafter.
B. The shop meeting
Walker's testimony reflects a concession , I find , with respect to his early awareness
of the employee interest in unionization . The company manager testified , also, that
he had "probably" informed the firm 's Sacramento shareholders-sometime there-
after-about the effort of the employees to achieve union organization . Early in
July, before the July 4th holiday, Walker instructed Foreman Griffith to have the
men assemble for a shop meeting during working hours. This appears to have been
the first and only occasion upon which such an employee meeting was held.
Griffith , pursuant to instructions , summoned the men. The shop machinery was
halted and Walker addressed the assembled group . The testimony of employee
Phillips with respect to the company manager's speech , which I credit , reads as
follows:
Well, the first thing that came up was what the idea was of organizing the
shop at that time . During the course of the talk we were asked just why, spe-
cific reasons why we wanted to join a union , and I replied that job security for
one thing , paid holidays, vacations , because it seemed like we weren 't secure
from-well , when we went to work in the morning whether we would still have
that job that evening and whether our checks would be waiting for us. Every-
thing was up in the air to smooth things over a little bit and ease the tension
in the shop sort of. And, of course, Bill told us that he didn't have any of
those benefits either and if we persisted in it, they would shut the plant down
and make a warehouse out of it and we would be out in the cold. There was
also a mention made of the fact that when and if we did move into the new
quarters that cheap nonunion labor would be hired to move the equipment, and
when the shop opened , in all probability we wouldn 't have a job.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reynolds, whose testimony with respect to this occasion substantially parallels that
of Phillips , recalled a comment by the company manager that he was trying to get a
"15-cent an hour" raise for the men ; the employees recalled , also, that Walker was
told his men were not interested in money, but merely wished to enjoy a few
benefits which other companies provided . I so find . The testimony of Phillips and
Reynolds in this connection was corroborated , also by several other witnesses.'
The company manager's testimony indicated that he had opened the meeting with
a request for any suggestions the employees might have to improve working condi-
tions, which he might be able to grant , and that he had also requested suggestions to
improve production . He conceded that the subject of unionization had been
broached , and that the employees had been advised of the firm 's inability to take on
"additional costs" since profits were low, and since the firm wished to finance its own
expansion . Walker insisted that he had not expressed opposition to unionization,
except to the extent that it might increase costs. He also testified as follows:
The only thing that came up that day was I told them that the shop might be
turned into a warehouse for a period of time because of our high costs and that
we were going to build a new plant and that I would like to keep the employees I
have right now and keep them on the payroll during our move and paying them
to move up the machinery into our new location , which would probably take
about two or three weeks , and that I would like to keep the whole force on while
we were moving and that if I could show that we were making a good profit
and that things were going along smoothly , that we could make this move withi
no interruption at all in our work schedule . I said that there was a good pos-
sibility that I might just have to use labor in putting up the building rather than.
having my skilled employees do it if things weren 't going smoothly.
In the light of my observations , and upon the entire record, I cannot credit the
company manager's version of his address . Nor can I credit his subsequent explicit
denials of a threat to employ nonunion people to move the plant, or possibly to
deprive unionized employees of their jobs.
Approximately I or 2 weeks thereafter , I find , Walker queried Reynolds as to what
the employees were doing about unionization. He was advised that the men felt
unable to do very much about it, and that they planned to "hold off" for a time.
Later, I find , the company manager also asked Phillips how "things were going" with
the Union herein . He was told that nothing had been done because the employees.
were waiting to see which way the wind would blow. Finally , sometime during
August , specifically , Walker questioned Phillips, directly as to why the men had
chosen the Union as their representative. He was informed that the decision of the
employees had been based , partially, upon the Union 's maintenance of a Reno office,
with hiring hall facilities ; the men had felt, as a result , that the Union would be able
to give them better representation than they could secure from a Boilermakers or
Sheet Metal Workers organization headquartered in Sacramento , California, or
elsewhere.
C. The demand for recognition
Upon his receipt of seven authorization cards from the Respondent 's employees-
which constituted a majority of the crew-Business Representative Miller called upon
Walker at the firm's plant on August 25, 1959, I find. He identified himself as a union
representative , and claimed designation by an employee majority. He therefore
requested recognition as the exclusive representative of the employees . I find, and
expressed a desire to negotiate an agreement . Authority to negotiate any labor con-
tract was disclaimed by the company manager, who said that such negotiations would
have to be undertaken with the owners of the firm, reachable in Sacramento, Cali-
fornia, at the Perkins plant. After some discussion of wage rates , and the company's
ability to pay higher rates, Walker promised to get in touch with the Sacramento,
owners, and to communicate with Miller thereafter. On Thursday , August 27, 1959,
Miller again met the company manager. The latter reported that he had been able
1 One of these , employee William E . Vines, testified to a comment by Walker that the
men "could" all be laid off and replaced when the Respondent opened its projected new
plant; Vines did not recall that Walker said the men "would" be terminated In the
light of the evidence taken as a whole , however , I have credited the testimony of Phillips
and Reynolds In any event , I find , the purport of the remarks attributed to the company
manager by Vines does not really vary, substantially , from that attributed to him in the
testimony of Phillips and Reynolds , previously noted. The testimony proffered by Vines,
therefore-even were I to accept it-would not affect my ultimate conclusions with respect
to the propriety of Walker 's comments , to be noted.
NEVADA TANK AND CASING COMPANY 1359)
to reach the Sacramento owners; he suggested that Miller would have to get in touch
with them in regard to any contract, since he (Walker) did not have any authority
to negotiate agreements . The business representative requested and received the
names of the Sacramento owners, and their telephone number at the Perkins plant.
On August 31, 1959, at approximately 9 o'clock in the morning, Miller telephoned
one of the Sacramento owners-Mr. Robert F. Bunn, specifically-and addressed
him as follows:
Well, I introduced myself to Mr. Bunn over the phone after knowing that it
was he. . . It was a person-to-person call, and he acknowledged the call as
being Mr. Bunn. . . I introduced myself to him and told him I represented a
majority of his employees and desired to negotiate a contract with his company
covering all the employees at the Nevada Tank and Casing site here at Reno,
and he answered that he couldn't see any reason why he should believe me in
this regard and negotiate a contract. I stated that if it was his desire, we would
go through the proceedings of the National Labor Relations Board, that I
would petition for an election to determine whether I was the bargaining agent
or not, and asked if he would consent to an election, and he answered he would
probably have to. So I told him I would institute the necessary proceedings.
On September 1, 1959, pursuant to this indication, Miller dispatched a number of
authorization cards-signed by the employees of the respondent enterprise-to his
organization's San Francisco office, with a request that a representative petition be
filed at the Regional Office of this agency.
There is evidence in the record which would tend to support a factual conclusion
that the Respondent's management had decided to discontinue the manufacture of
tanks and other products at the Reno operation, prior to Bunn's conversation with
the union business representative. The General Counsel's representative produced,
for the record, a purported corporate minute signed by Albert S. Sarti, president,
Robert F. Bunn, vice president, and Herbert L. Smith, secretary, which reflected a
decision made on August 27, 1959, to discontinue the manufacture of tanks and other
products at the Respondent's Reno plant. Embodied in the minute produced is a
recitation that the Respondent's board had met in Reno, Nevada, pursuant to the
president's call, at 10 o'clock in the morning on the date indicated. The testimony of
Company Manager Walker, however, reveals his insistence that he was not aware
of any board meeting at the time stated, and that he did not attend. There is also
testimony that the minute, itself, despite its tenor, actually was prepared in Sacra-
mento, California, sometime after the meeting was supposed to have ended; the
General Counsel elicited an admission from the company representative responsible
for the minute that the time of the board meeting had been erroneously reported, and
that it had actually been held at 10 p.m. on the 27th. Although the minute's author
could not explain how he could have prepared the minute in Sacramento on the 27th,
under the circumstances indicated, the General Counsel offered it for the record, and
his offer was not resisted. According to the firm's minute, the Respondent's president
had initiated the discussion with an announcement that its fabrication policy would
have to be changed because of the steel shortage caused by the strike then current, and
also because of the unfavorable profit picture shown for the first 6 months of the
plant's operation. According to the minute, also, the following resolution was
adopted:
Resolved, That the manufacturing of tanks and other products be discontinued
due to the shortage of steel caused by the strike in the steel industry, and further
due to the unfavorable profits revealed by the Balance Sheet, prepared by W. N.
Runyon, C P.A. with the firm of Wicklander, Redlin and Runyon, Sacramento,
California, covering the first five months of operations.
In the absence of an effective challenge to the purported minute, I find that the
Respondent's board of directors met, and that the resolution noted was adopted.
Nothing in the record, however, will support a finding that the resolution's adoption
was called to the attention of Business Representative Miller by Bunn , during their
telephone conversation 4 days later Miller testified, credibly, to the contrary. Nor
does Miller appear to have been advised by Walker, at any time during the period
under consideration, that steps would be taken within the near future to implement
the plant closure decision of the Respondent' s management.
D. The discharges
The employees of the Respondent were routinely paid on Friday, for services
rendered during the 7-day period which had ended on the previous day.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Wednesday, September 2, 1959, however, Foreman Griffith approached each
of the employees during their lunch hour, handed out final checks, and advised them
that their services would no longer be required.
The testimony of employee Reynolds indicates that Griffith, initially, merely said
that the Respondent planned to shut down; in response to an inquiry as to whether
the shutdown would be permanent or temporary, Griffith is alleged to have said
"that's all, they are just not going to be no more." Employee Tyler's testimony
establishes, absent contradiction, that he had been assigned to construct four metal
stands for fuel tanks on September 2, 1959. Only two of these had been substantially
completed prior to his receipt of a check, I find. Upon his inquiry as to whether he
was laid off or discharged, Griffith is alleged to have advised him that he was laid off.
In response to Tyler's resultant question as to when he would be recalled, Griffith is
alleged to have replied "You won't. That is it." Employee Phillips testified, also,
that Foreman Griffith described the closure as permanent, coupling this with a state-
ment that there was no more work to be done at the^Reno plant. The foreman,
though still in the Respondent's employ, was not called to testify. Upon the entire
record, noted, I find that he made the statements herein attributed to him; essentially,
he advised the employees that the termination of their employment would be
permanent.
While the checks were being distributed, I find, Walker joined the employee group.
In the presence of employees Richard Marks, Richard Poff, and Ralph Phillips,
employee Michael Tyler queried him as to the reason for the layoffs. According
to the latter, whose testimony I credit, Walker replied that there were several
reasons; when questioned directly by Tyler as to whether the Union had had any-
thing to do with the layoff decision, Walker is alleged to have said, "Well yes."
I so find.2 Tyler's testimony was confirmed by that of employees who reported
that Walker had cited "business reasons, steel strike and union" when queried as
to the management's reasons for the discontinuance of production.
As a witness in rebuttal, Walker did not deny this testimony categorically. His
version of the circumstances accompanying the shutdown reads as follows:
About 9:30, I called my foreman in the office . . . Earl Griffith. I told him
that we were going to cease our fabricating operations at noon. I told him
that I had word that we were going to operate as a warehouse for an indefinite
period of time and that because the steel strike had been going on now for about
a month that our source of material was limited and we were going to be unable
to purchase the steel at warehouse prices on our low-profit margin, and I told
him that we could just tell the men that they were being laid off indefinitely and
that they would be recalled as soon as we could see clear to start fabricating.
As far as I know, that is what he told the men when he handed them their
checks at noon that day.
Walker conceded his absence while Griffith distributed the checks. His testimony
with respect to the further course of events, however, reads as follows:
Right after Earl handed the checks out, I made myself available out in the
shop for any questions they might have, and a group of them came up to me
and they asked me . . . there was Jack Kemp, Richard Poff, Richard Marks,
and I believe Jim Reynolds in this first group. . And one of them asked
me if they were laid off or fired, and I believe this was so he could know
whether he could claim unemployment benefits or not, and I told him he was
laid off. Another man-I don't know who-asked me the reason, and I told
him that among the reasons was the steel strike, which was making our mate-
rial short, and a poor profit picture. I told them I couldn't put my finger on
the reason, whether it was poor manufacturing methods or exactly what it was,
but we weren't making it and we could not pay warehouse prices and continue
in business for steel.
Walker testified that the firm regularly buys steel in flat sheets from a mill for
about 7 cents a pound, but that in the absence of available mill steel, it would have
to purchase such goods from steel jobbers or warehousemen, essentially steel brok-
ers, charging anywhere from 11 to 14 cents per pound. When questioned as to
whether he had cited the interest of the employees in Union organization as a factor
in the shutdown decision, the company manager went on to testify that:
a During his cross-examination, Tyler did concede that Walker had identified the steel
strike as one of the factors responsible for the decision by the management of the firm to
shut down the Reno operation ; he insisted, however-credibly-that the manager had
attributed the firm's layoff action to several factors, with the interest of the employees in
unionization as one of them.
NEVADA TANK AND CASING COMPANY 1361
I believe that I told them I couldn't-that we could not take an increase
that would be brought about by a strict Union contract. I did not know,that
was a-any kind of a determining factor to start warehousing tanks instead of
manufacturing them, but I probably mentioned that it could very easily be.
In the light of this testimony, the company manager denied the validity of any
argument that the layoffs had been motivated by the activity of employees seeking
union representation; he did concede, however, that the interest of the employees
in unionization and the possibility of an "increase in costs" as a result were factors
which the management of the respondent enterprise had considered in reaching its
decision.
E. The offer of temporary employment
On October 23, 1959, Walker dispatched a letter to each of the dischargees-
.except Roland C. Hanks, presumably-stating that:
Due to the availability of a supply of steel, we are now in a position to once
more start fabricating tanks on a limited basis.
The employees were advised of the firm's desire to rehire a crew for some "inde-
finite" period of time; each of the men was requested to report for work or reply
within 48 hours. Seven of the dischargees-with Jack Kemp, the only exception-
acknowledged receipt of the letter.3
Two of the firm's former employees accepted the employment proffered, Hanks
shortly before the October 23 letters, Jackson shortly after his receipt of the Re-
spondent's letter, noted; one resumed employment a month later. As of the date
on which this case was heard, these men were still in the Respondent's employ.
The other five men reached, I find, rejected or failed to answer the Respondent's
written employment offer. Employee Tyler's response indicated that he was doing
so because he did not wish to return for employment proffered as temporary work;
nevertheless, he reiterated his continued interest in permanent employment, when-
ever the Respondent might be able to offer it.
F. Issues
This case presents three distinct issues. Initially, the General Counsel challenges
the remarks of Company Manager Walker, made in the course of his July address
to the assembled employees, as interference, restraint, and coercion. Additionally,
the September 2 dismissal of every one of the Respondent's production employees-
exclusive of office personnel and supervisors-has been challenged as discrimination
in regard to the hire and employment tenure of the employees involved, reasonably
calculated to discourage their union membership. Finally, the refusal of the Re-
spondent's management to recognize the Union as the exclusive representative of
the firm's employees within a unit appropriate for the purposes of collective bar-
gaining-on or about August 26, 1959, and at all times thereafter-is alleged to
warrant characterization as a refusal to bargain, without justification under the
statute.
G. Interference , restraint, and coercion
Any determination that the conduct of an employer deserves interdiction as
interference, restraint, or coercion-within the meaning of Section 8(a)(1) of the
statute-must be based, not upon conclusions with respect to his intent or motive,
but upon a subsidiary determination that the conduct in question was reasonably cal-
culated to interfere with the free exercise of rights statutorily guaranteed. N.L.R.B.
v. Illinois Tool Works, 153 F. 2d 811, 814 (C.A. 7). In this connection, various
.aspects of the respondent employer's conduct should not be considered separately;
consideration must be given, rather, to the entire course of action attributable to
the firm's responsible representatives. N.L.R.B. v. Poped Brothers, Inc., 216 F. 2d
66, 68 (C.A. 7).
If particular statements, considered in their context can legitimately be appraised
as statements reasonably calculated to interfere with, restrain, or coerce employees
in the exercise of rights statutorily guaranteed, they must be considered violative
of Section 8(a)(1) of the Act, as amended. N.L.R.B. v. Protein Blenders, Inc.,
215 F. 2d 749, 750 (C.A. 8). And contrary to the Respondent's contention-
8 The letters dispatched to three of the men involved, at their last-known addresses,
had to be redirected and forwarded; the letters appear to have been received ultimately,
however. The firm's letter to Kemp, I find, was returned undelivered.
59919 8-62-vol. 131-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence with a tendency to establish that the employees involved may not have been
intimidated, actually, cannot be considered sufficient to vitiate the conclusions noted.
Tested in the light of these decisional principles, Walker's reaction to the pos-
sibility of unionization at the Reno plant clearly deserves characterization as viola-
tive of the statute.
At the outset, it should be noted that the company manager's early awareness of
the interest in unionization displayed by the Reno employees is conceded. And,
although his initial testimony merely reveals a guarded admission that he "prob-
ably" informed the owners of the firm about the union activity of the employees, his
later comments-reflective of certain management decisions with respect to the
future of the enterprise-clearly warrant an inference that he did communicate with
his superiors at the Perkins plant within a short time, and that he was apprised of
their reaction. I so find. When he addressed the employees, therefore, his remarks
may fairly be evaluated-in my opinion-as remarks indicative of his manage-
ment's attitude.
Considered in isolation , the manager 's query as to the reasons 'for any employee
interest in self-organization might well be characterized as innocuous; when followed
by a threat with respect to the possible conversion of the Reno operation into a
warehouse in the face of employee persistence, however, even an expression of simple
curiosity with respect to unionization, can be invested with coercive implications
statutorily proscribed. Here, the threat that any continued organizational activity on.
the part of the employees would induce the Respondent' s management to suspend
productive operations and curtail employment was explicit. And credible evidence
previously noted in this report establishes that Walker also attempted, concurrently,
to solicit an employee abandonment of self-organization, by indicating that authority
to raise the pay of the employees was being sought. Finally-to complete the carrot
and stick appeal-there was an indication that the Respondent's new plant would
be completed by "cheap nonunion labor" and that workers currently in the employ
of the firm might not be retained as production employees.
In the Respondent's brief it is conceded that Walker-who had had no previous
managerial experience-could have used more "judicious" language, but it is asserted
that he merely intended to advise the employees, essentially, that the firm's profit
margin was low and that cost factors would affect future plans. The company
manager's testimony that his remarks were merely intended to convey this innocent
message, however, has not been accepted. Considered as a whole, the available evi-
dence establishes-in my opinion-that the statements attributable to the company
manager at the July shop meeting, despite their freedom from any indication of
personal animus, reflected the opposition of his superiors to the concept of union-
ization, and reasonably tended to inhibit any exercise by the Reno employees of
rights statutorily guaranteed.
Then, too, Walker's subsequent inquiries with respect to the organizational situation
would seem to warrant characterization, under the circumstances , as an improper
indication of the Respondent's interest with respect to a matter of immediate em-
ployee concern, reasonably calculated to interfere with, restrain, and coerce the em-
ployees involved. Cf. Blue Flash Express, Inc., 109 NLRB 591. And I so find.
Even if I could have credited Walker's testimony with respect to the substance of
his July remarks, a similar conclusion would-in my opinion-have been justified.
The company manager did testify that the subject of unionization was mentioned,
and that, in such a context, he advised the employees of their employer's inability to
assume additional costs because of its low profits and projected expansion program.
While the right of any company manager to report the financial difficulties of an
enterprise-and to express the opposition of its management to unionization, gener-
ally, because of its anticipated tendency to increase operational costs-may be
assumed for the sake of argument, such a right must necessarily be considered limited,
since it cannot be exercised in such a manner as-to interfere with, restrain, or coerce
employees in the exercise of rights statutorily guaranteed. The probability that
remarks of the type indicated might be so construed by employees would seem to be
particularly acute at the outset of an organizational effort; seemingly innocent
remarks then attributable to an employer may, nevertheless, suggest, compellingly,
his displeasure with any display of interest in unionization by his employees. Spe-
cifically, I find, remarks with respect to the possible conversion of a productive plant
to warehouse operations for some indefinite time, considered objectively, would
certainly deserve characterization, under such circumstances, as remarks reasonably
calculated to indicate threatened reprisal, even though the representative of the em-
ployer responsible for the statement may intend neither the threat nor the reprisal.
And, similarly, statements suggestive of a possibility that outside employees might
be hired to erect a new plant, and to move machinery into the new facility-over
NEVADA TANK AND CASING COMPANY 1363
a 2- or 3-week period-would certainly deserve such characterization, particularly
when coupled with a veiled observation that such a course of action might be adopted
if "things" did not go smoothly. I so find. Sheridan Silver Co., Inc., et al., 126
NLRB 877. When statements of the type indicated are made to a captive employee
audience assembled on company time and property to hear an address by the re-
sponsible representative of their employer--particularly in the context of some prior
references to employee organizational activity-they must be considered part of a
course of conduct statutorily proscribed. Thus, even on the basis of Walker's testi-
mony, a finding adverse to the Respondent would, in my opinion, be warranted.
Previously, this agency has held that language of prophecy reasonably calculated
to suggest that the unionization of employees might ultimately lead to the loss of
their employment will not be considered coercive in the absence of any threat that the
employer involved will use his economic power to make the prophecy come true. In
this case, however, the observations attributable to Walker pursuant to any view
of the record, considered in context, clearly suggested that the management of the
respondent enterprise would exercise its discretion to effectuate certain forecasts if its
Reno employees failed to eschew self-organization. Since the company manager
functioned, clearly, as the responsible local representative of the firm's management,
which certainly possessed the power to translate prophecy into reality, his comments,
whether couched in language of certainty or probability, obviously tended to impede
and coerce employees in the exercise of rights statutorily guaranteed. I so find.
H. Discharges
As counsel for the Respondent has observed, the burden of proof with respect to
the allegations of the complaint rests upon the General Counsel; under the statute,
such charges must be established by a preponderance of the evidence. N.L.R.B. v.
Kaiser Aluminum & Chemical Corp., 217 F. 2d 366 (C.A. 9), W. C. Nabors, d/b/a
W. C. Nabors Company, 89 NLRB 538, 540 enfd. 196 F. 2d 272 (C.A. 5). Tested
by this criterion, however, the evidence adduced in the General Counsel's behalf
clearly established a prima facie case with respect to the impropriety of the Respond-
ent's motivation for the September 2 discharges. Challenged layoff action must be
evaluated, obviously, in the light of his previous declaration that the Respondent's
management might well be persuaded to make the Reno plant a warehouse if
the employees failed or refused to give up their interest in unionization . In fact,
almost immediately after the presentation of a recognition demand by the Union's
representative, the management of the firm did effectuate the change forecast by
the Reno manager, causing him to dismiss the entire rank-and-file employee comple-
ment. These discharges, therefore, clearly reflect discrimination of the precise
type forecast by the company manager, reasonably calculated to discourage the
unionization of the employees affected.
One question, however, remains. May the evidence thereafter adduced in Re-
spondent's behalf be considered sufficient to overcome the General Counsel's prima
facie case? Cf. Law, et al., d/b/a E. B. Law & Son v. N L.R.B., 192 F. 2d 236, 238
(C.A. 10); Montgomery Ward & Co. v. N.L.R.B, 107 F. 2d 555, 560 (C A. 7);
N.L.R.B. 17th Annual Report (1952), p 135. To that question this report must turn.
The Respondent has readily admitted that, on September 2, 1959, all of its em-
ployees were released. It argues, however, that the reasons which prompted the
Reno plant closure were "purely" economic . During August and September, counsel
for the Respondent points out, the recent nationwide steel strike was current?
In the firm's behalf, it is asserted-on the basis of testimony-that the sheet steel
inventory of the Reno plant, with respect to many sizes and gauges, became sub-
stantially depleted because of the strike. No contention is made-insofar as I can
determine-that inventory depletion made a suspension of Reno productive opera-
* Strike action had been initiated on July 15, 1959, 15 days after the contracts between
various basic steel companies and the United Steelworkers of America expired The
possibility of an early work resumption did not become apparent. generally. until October 9,
1959, when the President created a board of inquiry under Sections 206 and 207 of the
Labor-Management Relations Act to investigate the strike issues Thereafter, pursuant to
procedures established by the statute, the United States District Court for the Western
District of Pennsylvania, on October 21, 1959, enjoined the strike The effectiveness of
the district court's order was subsequently stayed, however, pending the determination
of successive appeals United Steelworkers of America v. United States, 361 U S 39.
Except at certain basic steel plants, which constituted a minor portion of the industry,
union members did not resume work until some time after the United States Supreme
Court's November 7, 1959, decision noted.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions unavoidable; the Respondent merely argues that continued production to
order-as distinguished from production for stock-could not have been conducted
economically. Company Manager Walker testified, for example, that tank con-
struction with steel sheets of miscellaneous sizes might require two or three welds,
rather than one weld, and that the costs of construction would thus be increased.
He also testified that any replenishment of the Reno plant's inventory by the purchase
of sheet steel from brokers would be more expensive-for reasons previously
noted-than replenishment by the purchase of sheet steel directly from mills. This
testimony was not disputed.
Counsel for the Respondent also cited an additional factor in this connection.
Elsewhere in this report, it has been noted that the owners of the respondent enter-
prise own and operate a similar Sacramento , California , plant known as Perkins
Welding Works; in their brief, counsel note a testimonial indication that the owners,
confronted with a difficult situation because of their depleted steel supply, pre-
ferred to "divert" some steel to their California plant, thus intensifying the supply
problem of the Reno operation.
Elsewhere in this report, reference has been made to the purported August 27
decision of the Respondent to discontinue tank manufacture at the Reno plant
due to the strike-caused steel shortage:
.. . and further due to the unfavorable profits revealed by the Balance Sheet,
prepared by W. P. N. Runyon, C.P.A. with the firm of Wicklander, Redlin
and Runyon, Sacramento, California, covering the first five months of operations.
It should be noted, however, that the Respondent has made no effort to produce the
balance sheet in question, for the record, to support its contention that an economic
justification existed for the Reno plant closure. Absent such evidence, the present
record cannot be considered persuasive enough to support a conclusion that an
unsatisfactory 1959 earnings record-from February to June, specifically-affected
the decision of the Respondent's management to suspend operations 2 months
later.5
Considered as a part of the whole record, the General Counsel's presentation, it is
true, cannot be said to have rebutted, completely, Respondent's contention that the
depleted Reno steel supply influenced its managerial decision to suspend produc-
tion. An acknowledgement that the depleted steel supply could have been a factor
in that decision, however, cannot really settle every question with respect to the
Respondent's basic motivation for the discharges herein challenged. Discharge
action, clearly, may be administratively proscribed if the employer's motivation can
be said to derive from his reaction to union activity on the part of the discharged
employees, even though some other justification for employee terminations may be
present. To state the matter differently, the existence of some justifiable ground for
employee terminations will not be considered an effective defense, if it did not,
actually, provide the "moving cause" for the employer's challenged action. Wells,
Incorporated v. N.L.R.B., 162 F. 2d 457, 460 (C.A. 9); Sunshine Biscuits, Inc. v.
N.L.R.B., 274 F. 2d 738 (C.A. 7). Cf. N.L.R B. v. Hudson Pulp & Paper Corpora-
tion , 273 F. 2d 660 (C.A. 5).
Any determination as to the sufficiency of the evidence proffered by the Respond-
ent, with respect to the impact of the basic steel strike-specifically, any conclusion
as to its effectiveness to overcome the General Counsel's prima facie case-must
necessarily take certain aspects of the entire situation into consideration-
(1) The effectuation of the September 2 mass discharge almost immediately after
the Union's presentation of its request for recognition and the negotiation of a trade
agreement. Business Representative Miller, as has been noted, initially addressed that
request to Company Manager Walker on August 25, 1959. The latter, clearly, may
be presumed to have communicated with his superiors immediately; on August 27,
1959, he reported previous contacts with them regarding Miller's request. Walker's
testimony includes a report that he called Sacramento to order some steel and
related his conversation with Walker to Vice President Bunn ; he placed the call on
the "same day that Mr. Bunn was in" according to the transcript. Upon the entire
record and my recollection, I have concluded that Walker's testimony was correctly
reported, but that he misspoke himself, and intended to state that he spoke to Bunn
on the day of Miller's visit. The Respondent's corporate minute, produced for the
5 When employee Michael Tyler was hired early in July, he was advised by Foreman
Griffith, I find, that the firm planned to move to it new location, and that if he proved to
be a satisfactory worker, he would have a "good chance" to remain in the firm's employ
Such comments, from an admitted supervisor, can hardly be said to suggest concern with
respect to the prospects of the enterprise
NEVADA TANK AND CASING COMPANY 1365
record in the firm's behalf, reveals a managerial decision on the morning of the 27th
to suspend tank production at the Reno plant; under the circumstances, the absence
of any reference in the minute to the presumptive unionization of the Reno em-
ployees, as a factor in the management's closure decision, cannot be considered
sufficient, alone, to warrant a conclusion that the decision was reached without
reference to the development noted. The actual effectuation of the firm's decision
on September 2, 1959, also, must be considered significant; the employment of the
Reno workers was terminated very shortly after Miller's August 31 conversation
with the Respondent's vice president, Robert F. Bunn, during which the latter had
been advised by the union representative that a petition for certification would be
filed to establish the status of the organization as a majority representative of the
employees. In this connection, incidentally, note should be taken of the fact that
discharge notices were issued in the midst of a workweek. Routinely, the Respond-
ent had paid its Reno employees every Friday, for a workweek ending Thursday
night. Yet-despite the management's decision, purportedly reached in Reno on
the morning of Thursday, August 27, to effect this plant closure-no effort appears
to have been made to assure the suspension of production that day, upon the com-
pletion of a regular payroll period. Even if we could assume that, for some valid
reason, corporate decisions with which we are now concerned were actually reached
at a Sacramento board meeting, the delay in their effectuation must be considered
unexplained. Despite the relative proximity of Reno and Sacramento-the cities
are approximately 150 miles distant from each other-and despite the availability
of several alternative means for prompt communication , the Respondent 's officers
are said to have elected to advise Walker of their closure decision by letter. No
reason for their adoption of such a slow procedure has been offered. And Walker,
incidentally, could not produce the letter; ultimately, he conceded that it merely
contained a copy of the corporate minute. He could not recall the date of its
receipt. When the employment of the Reno workers ended, one of them at least, was
found in the midst of a lengthy task, newly assigned, which had been only partially
completed. This fact, considered in the light of every other relevant aspect of the
record, certainly tends to_impair the persuasive quality of any contention that the
Respondent's September 2 action was intended to effectuate a closure previously
planned for economic reasons. I so find.
(2) The statements of Company Manager Walker-both for employees and for
the present record-with respect to the firm's motivation for the plant closure. Credi-
ble employee testimony, noted elsewhere in this report, establishes to my satisfaction
that the company manager-when questioned by Reno workers as to the reason for
the shutdown-attributed it both to the steel strike's impact and to the interest of
the employees in unionization . Walker, indeed , conceded as much ; he testified,
substantially, that managerial apprehension with respect to the possible cost in-
creases which a "strict" trade agreement might generate had "probably" been
cited by him to the Reno employees as a factor which could "very easily" have been
determinative of the firm's decision to cease tank production. As a witness, we may
note, the company manager did not thus hedge his testimony ; he conceded, ex-
pressly, that the interest of the employees in unionization, and the possibility of
resultant increased costs, were among the factors actually considered by the man-
agement of the firm, prior to its closure decision.
(3) The availability of sheet steel. Despite the Respondent's contention that its
Reno sheet steel inventory was depleted to an extent rendering further production-
which might require the use of odd lot steel sheets-uneconomic, there can be no
doubt that the total steel supply available to the Respondent and Perkins Welding
Workers was sufficient, during the period with which this case is concerned, to permit
continued tank production at both establishments.6
In the Respondent's behalf, it is conceded that tank production at the Perkins
plant, subsequent to the Reno shutdown, equaled the total production attributable
to both establishments prior to the September 2 layoffs; the record establishes that
this resulted from a diversion of steel destined for the Reno operation to the Perkins
plant. Since the available evidence, previously noted, establishes that the Reno
Some unidentified inventory taker is alleged to have advised employee Phillips,
1 month prior to the plant layoff, that the Reno plant had a supply of steel sufficient to
produce light tanks for 6 months. Because the testimony of Phillips in this connection
was clearly hearsay, I have not relied upon it ; the Respondent, however, did not object to
its receipt , and made no attempt to contradict it, specifically. Walker conceded that the
firm had a steel inventory early in September sufficient to permit fabrication of its
"general line" of tanks for at least 40 days.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shutdown, and the resultant "diversion" of available steel to the Perkins plant, de-
rived, substantially, from the Respondent's unwillingness to permit the unioniza-
tion of its employees, the diversion cannot be defended as one "purely" motivated
by economic considerations. Significantly enough, also-after the Respondent was
advised, in late October, that a Regional Office complaint would be issued in this
case if no informal settlement could be reached, and after the October 21, 1959,
issuance of a Taft-Hartley national emergency injunction against the continuation
of the basic steel strike-the Respondent was able to make an October 23 announce-
ment that it had a sufficient supply of steel available to permit resumption of tank
fabrication within 48 hours. Under the circumstances, certainly, an inference would
seem to be warranted that the steel shortage cited by the Respondent to justify its
closure decision had been more contrived than real; evidence adduced in the Re-
spondent's behalf cannot be considered sufficient to impair the validity of such an
inference.
' Each relevant aspect of the situation, therefore, can be said to warrant an inference
that the Respondent's determination to suspend Reno tank production derived from
managerial opposition to unionization.
Such a conclusion is strongly supported by evidence which establishes that none
of the employees involved received a prior intimation that layoffs might be possible
because of the Respondent's supposedly depleted inventory. It is clear, also, that
Vice President Bunn of the respondent enterprise, during his August 31 conversa-
tion with Union Representative Miller, gave no indication whatever of the Respond-
ent's prior decision to effectuate a Reno shutdown; his silence in this respect-com-
pounded by his positive indication of readiness to permit the initiation of a petition
for certification with this agency-despite his awareness of a probability that the
projected shutdown would render any such procedure nugatory, reveals a lack of
candor strongly suggestive of resentment. And, finally, reference should be made
to Foreman Griffith's indication-while engaged in the distribution of final checks
to the employees involved-that the September 2 closure of the Reno plant would
be permanent rather than temporary.? These factors-together with those previ-
ously noted-Rend to support the conclusion herein that the desire of the Respond-
ent's management to forestall unionization, rather than its desire to retrench, was a
determinative shutdown factor.
Even if one could assume, for the sake of argument, that,the organizational ac-
tivity of the Reno employees may not have provided the Respondent's board of di-
rectors with an exclusive motivation for the September 2 layoffs, available evidence
would clearly warrant a conclusion that the Board's desire to forestall union recog-
nition was one of the motivating reasons for its action. In such a case, the Re-
spondent could be said to have had two reasons for its challenged discharges: one
unlawful and the other proper. Such an inference would not avail the respondent
enterprise, however, it is well established that an employer violates Section 8(a)(3)
of the statute when employees are discharged partly because of their participation in
a campaign to establish some union as their representative, and partly for other
reasons. N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2);
N.L.R.B. v. Minnesota Mining & Manufacturing Company, 179 F. 2d 323, 327
(C.A. 8); N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C A. 1). In this
connection, also, no significance may be attached to the fact that the Respondent
may not have been aware of the identity of the particular employees who favored
the Union, or that its officials may not have been aware of the identity of those
who had signed membership application cards. Nor, indeed, can it even be said
to matter that one or more of the employees subjected to employment discrimina-
tion may not have participated in union activity. Since the Respondent clearly re-
sorted to plant closure primarily to thwart unionization, its entire course of action
in that respect must be considered improperly motivated. This agency, therefore,
may reject as immaterial any contention that some victims of the Respondent's
discrimination may not have been union members, or that the firm's management
may have had no knowledge of their union membership or activity. Robert L. Jack-
son, Sr., et at., d/b/a Capital City Candy Company, 71 NLRB 447; J. B. Wood,
an individual, d/b/a Wood Manufacturing Company, et al., 95 NLRB 633; Ameri-
can Bottling Co, 99 NLRB 345; 352, enfd. 205 F. 2d 421 (CA. 5); Heat Timer
Corporation, 124 NLRB 1256. I so find.
7 Despite testimony by walker suggestive of a contention that Griffith had not been
instructed to make such representations, nothing in the record can be considered suffi-
ciently persuasive to warrant rejection of a conclusion that he did make statements of
the tenor noted.
NEVADA TANK AND CASING COMPANY 1367
Upon the entire record, therefore, it is concluded and found that the Respondent
terminated the employment of its production and maintenance employees for the
purpose of discouraging their union activity generally, and that such action con-
stituted an unfair labor practice under Section 8(a)(1) and (3) of the Act, as
amended.
1. Refusal to bargain
(a) The appropriate unit
In the General Counsel's complaint, the employee unit appropriate for the pur-
poses of a collective bargain at the Reno plant, within the meaning of Section 9(b)
of the statute, is alleged to include "all production and maintenance employees at
Respondent's plant" exclusive of office clerical workers and supervisory employees
as statutorily defined. While the Respondent's answer includes a denial, pro forma,
that the employee group thus described constitutes an appropriate unit for collective-
bargaining purposes, it has not seriously contested the allegation set forth in the
complaint with respect to this aspect of the case. Pursuant to well established
agency policy, production and maintenance units, exclusive of office clerical work-
ers and supervisors, are considered presumptively appropriate. In the absence of a
serious contest, therefore, I find--consistently with established precedent-that the
production and maintenance employees of the Respondent's Reno plant, as alleged,
constitute a unit appropriate for the purposes of a collective bargain, within the
meaning of Section 9(b) of the Act, asamended.
(b) Majority designation of the Union as a bargaining representative
There is no dispute in this case with respect to the size of the employee group
within the appropriate unit herein found; nor is there a dispute as to the identity of
the men included. At all material times, noted elsewhere in this report, the Re-
spondent employed nine production and maintenance workers in its Reno estab-
lishment-exclusive of a bookkeeper, Foreman Griffith and Company Manager
Walker. Designation and authorization cards, prepared by the Union and signed
by seven of the firm's nine employees, were proffered and received in evidence;
they clearly purport to invest the Union with authority to bargain with employers
on behalf of the signers. Four of the cards were dated June 29, 1959; although
the other three were undated, available evidence establishes, beyond any doubt,
that they were signed and submitted to Union Representative Miller prior
to his August 25 demand for recognition, previously noted. I so find. On August
25, 1959, therefore-and at all material times thereafter-the Union clearly repre-
sented a majority of the Respondent's employees in the unit herein found ap-
propnate for the purposes of a collective bargain. By virtue of its majority status,
I find, the Union has' been entitled, at all times since the date indicated, to act as
the exclusive representative of employees within the appropriate unit, under Sec-
tion 9(a) of the Act, as amended.
(c) The refusal to bargain
Upon the entire record, there can be no doubt that Business Representative Miller
expressly requested the Union's recognition as the exclusive representative of the
Respondent's Reno employees, during his August 25 visit to the company manager.
There can be no doubt, either, that he expressed the Union's desire to negotiate an
agreement in behalf of the employees involved. No specific contention has been
made in the Respondent's behalf that Miller's request ought to be considered nuga-
tory, on the ground that Walker lacked authority to recognize the Union or negotiate
a trade agreement. Should any such contention now be advanced, the Respondent's
explicit concession with respect to Walker's supervisory status, within the meaning
of Section 2 (11) of the statute, would dictate its rejection; since Miller's demand for
recognition was presented to the Respondent's authorized managerial agent, it was
sufficient, I find, to advise the Respondent with respect to the Union's statutory
claim. Should the record be held insufficient to require such an inference, it would
still call for the conclusion that Business Representative Miller presented an effective
recognition demand-together with a request for the initiation of contract negotia-
tions-during his August 31 telephone conversation with the Respondent's vice
president. I so find.
It is argued in the firm's behalf, however, that no refusal to bargain eventuated.
-Reference is made to Vice-President Bunn's initial expression of doubt with respect
to the Union's status as a majority representative; counsel for the Respondent as-
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
serfs that Miller, thereafter, suggested the utilization of this agency's certification
procedure to resolve all doubts with respect to the Union's status, and that Bunn
merely acquiesced, stating that he would probably consent to an election. Counsel
argues that-since the Respondent did not demand an election conducted by this
agency, but merely indicated its readiness to have any representation question re-
solved through such procedure-no merit can be found in the General Counsel's
contention that its position was merely a pretextual or sham one, not based upon
any good-faith doubt as to the Union's majority. Summit Mining Corporation v.
N.L.R.B., 260 F. 2d 894 (C.A. 3), enfg. 119 NLRB 1668 as modified. In the
cited case, the Court of Appeals for the Third Circuit observed:
Thus, it is clear that the union offered the petitioner alternate methods of re-
solving the recognition issues and petitioner adopted one of them. . Ac-
cordingly, the cases concerning employers who demanded a Board election and
thereafter through coercive and intimidatory acts dissipated the union's ma-
jority prior to the election are inapposite. The petitioner herein merely chose
one of the two alternatives proposed by the union and thus clearly does not
fall in the same category as those employers whose demand for an NLRB
election was a mere pretext or sham, not based on a good faith doubt as to the
union's majority. . . . The acts committed subsequently are not relevant for
they are merely persuasive evidence of the actual intent of an employer who
demands a Board election. (Emphasis in original.)
And since the available evidence does not reveal any union endeavor to present
evidence of its status as a majority representative, the Respondent has contended,
also, that no conclusion with respect to any bad-faith rejection of a union proffer
would be warranted.
Upon the entire record, however, considered in the light of relevant decisional
doctrine , these contentions must be rejected.
At the outset, note should be taken of various factual distinctions between the
Summit Mining case and the situation with which we are now concerned. The
record made in the case cited dealt with a union 's claim to represent an employee
majority, accompanied by a request for a conference at which the union's right to
recognition could be proven . In response to an inquiry, thereafter , as to the manner
in which the problem of the Union's recognition request might be resolved, the
organization 's representative suggested alternative procedures ; one of these involved
a Board-conducted election. According to the court of appeals, the employer
accepted the last suggestion in good faith . The decision reflects a judicial deter-
mination , therefore , that certain subsequent unfair labor practices attributable to the
employer derived from his untoward reaction when confronted with an unrelated
plant situation ; absent any proof of a demand by the employer for an agency-
conducted election , to determine the union's majority status, the court refused to
consider the subsequent unfair labor practices sufficient to warrant a conclusion
that the firm 's antecedent acceptance of the union 's election suggestion had been
tainted with a questionable intention.
In this case , available evidnce cannot be said to require such restraint . The Re-
spondent's decision to suspend tank production at the Reno plant-whereby the
employee complement organized by the Union would be eliminated-clearly followed
the representation claim of Business Representative Miller closely; the evidence pre-
sented in the Respondent's behalf will support a conclusion that it preceded any ref-
erence to the availability of the election process. As previously noted, also, Bunn's
failure to mention the protected plant closure during his August 31 telephone con-
versation with the union representative reveals him to have been less than candid.
And his concomitant indication of the Respondent 's readiness to participate in
a suggested consent election-without reference to the fact that a plant closure
decision had already been reached-will, in my opinion , justify a conclusion that
the Respondent actually expected to avoid any need to bargain with the Union, and
that Vice President Bunn 's profession of doubt with respect to the organization's
status as majority representative , was not made in good faith. Upon the entire
record , the course of conduct attributable to the Respondent appears to have been
motivated by a desire to forestall a demand for immediate recognition , and thus to
gain time within which action could be taken enabling the Respondent to avoid
its statutory obligation. Scott & Scott, 113 NLRB 911, 932-933, enfd. 245 F. 2d
926 (C.A. 9); N.L.R.B. v. Trimfit of California, Inc., 211 F. 2d 206, 209-210
(C.A. 9); see also N.L.R.B. v. Knickerbocker Plastic Co., Inc., 218 F. 2d 917,
922-923 (C.A. 9); N.L.R.B. v. W. T. Grant Company, 199 F. 2d 711, 712 (C.A.
NEVADA TANK AND CASING COMPANY 1369
9); N.L.R.B. v. Parma Water Lifter Co., 211 F. 2d 258, 263 (C.A. 9); N.L.R.B. v.
Geigy Company, Inc., 211 F. 2d 553, 556. Joy Silk Mills, Inc. v. N.L.R.B., 185
F. 2d 732, 741 (C.A.D.C.); Transainerican Freight Lines, Inc., 122 NLRB 1033,
1040-1042; Heat Timer Corporation, supra. I so find.
The declared readiness of the Union to initiate a petition for certification cannot
be considered an acknowledgement of the Respondent's unqualified right to test
the validity of its claim to designation by a majority of the firm's Reno employees;
the record establishes that the business representative of the Union declared his
readiness to invoke the election process without knowledge of the Respondent's pre-
conceived plan to render that process nugatory by the destruction of the appropriate
bargaining unit. In any event, the Respondent's plant shutdown appears to have
been effectuated before the filing of any representation petition in the Union's behalf;
under the circumstances, clearly, no argument could possibly be advanced that the
Union ought to be considered estopped from the presentation of a refusal to bargain
charge, or that its charge ought to be quashed. Compare A. L. Gilbert Company,
110 NLRB 2067, 2069-207 1, in this connection.
Upon the entire record, I find that the Respondent enterprise-when it failed and
refused to recognize the Union as the exclusive representative of its Reno plant
employees and rejected the labor organization's bid to initiate contract negotiations,
on August 26, 1959, and throughout the subsequent period with which this case is
concerned-refused to bargain in violation of its statutory obligation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, since they occurred
in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and would tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent engaged in and continues to engage
in certain unfair labor practices, it will be recommended that it cease and desist
therefrom, and take certain affirmative action, including the posting of appropriate
notices, designed to effectuate the policies of the Act, as amended.
Specifically, it has been found that the Respondent terminated the employment of
nine employees designated elsewhere in this report on September 2, 1959, to dis-
courage union membership, in violation of Section 8(a)(3) of the Act, as amended;
thereby, also, the employees of the Respondent, generally, were interfered with, re-
strained, and coerced in the exercise of rights statutorily guaranteed. Although the
record reveals an oral offer of reemployment to one of the discriminatees, prior to
October 23, 1959, followed by the dispatch of written reemployment offers to each
of the other discriminatees, on the date indicated, I am satisfied that the Respondent
merely offered temporary work. The proffer of such work cannot be considered
sufficient to absolve the firm of its obligation to make a reinstatement offer.
Combined Century Theaters, Inc., et al., 123 NLRB 1759; Stokely Foods, Inc., 91
NLRB 1267, 1280, 1289, enfd. 193 F. 2d 736 (C.A. 5); cf. Electric City Dyeing
Co., et al., 79 NLRB 872, 897, enfd. 178 F. 2d 980, 983 (C.A. 3); Continental Oil
Company, 12 NLRB 789, 806. Nevertheless, the demonstrated willingness of three
of the discriminatees to accept reemployment on the terms offered-particularly in
view of their continued employment until the date when this case was heard-would
seem sufficient to justify a recommendation that the Respondent not be required to
make nine reinstatement offers. It will be recommended, therefore, that the Re-
spondent offer each of the employees laid off on September 2, 1959, with the exception
of those who may have accepted reemployment already, immediate and full reinstate-
ment to his former or a substantially equivalent position, without prejudice to his
seniority or other rights and privileges. See Chase National Bank of the City of
New York, The San Juan, Puerto Rico, Branch, 65 NLRB 827, for a definition of
the phrase "former or substantially equivalent position" as here used. Additionally,
it will be recommended that the Respondent make each of the employees laid off
on September 2, 1959, whole for any loss of pay, or other incidents of the employ-
ment relationship, which they may have suffered by reason of the discrimination
practiced against them, by the payment to each of a sum of money equal to the
amount which he normally would have earned in the Respondent's employ between
September 2, 1959, the date on which discrimination was practiced against him, and
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of his actual reemployment , or the date of any unconditional reinstatement
offer which the Respondent may hereafter make pursuant to the recommendations
noted elsewhere in this report , less his net earnings during the period indicated.
Crossett Lumber Company, 8 NLRB 440, 497, 498; Republic Steel Corporation v.
N.L.R.B., 311 U.S. 7, ff. The pay losses for which it is recommended that each of
these employees be made whole should be computed on a quarterly basis, pursuant
to the formula which the Board now utilizes. F. W. Woolworth Company, 90
NLRB 289, 291-294; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344
U.S. 344 if. In this connection , also, it will be recommended that the respondent
enterprise , to facilitate expeditious compliance with the recommendations made
above in regard to backpay , preserve and upon request, make available to the Board
and its agents , all pertinent payroll and other records
The course of conduct attributable to the Respondent , herein found to be improper,
goes to the very heart of the statute and indicates a purpose , generally , to limit the
lawful rights of employees ; I am persuaded that the unfair labor practices found are
closely related to similar unfair labor practices , the future commission of which may
reasonably be anticipated , in view of the course of conduct found attributable to
the Respondent in this report. The preventive purposes of the statute will be frus-
trated unless the remedial action recommended in this case, and any order which
may prove to be necessary, can be made coextensive with the threat. In order,
therefore, to make the interdependent guarantees of Section 7 effective, prevent any
occurrence of the unfair labor practices found , minimize industrial strife which
burdens and obstructs commerce , and thus effectuate the policies of the statute, it
will be recommended that the Respondent cease and desist from infringement, in
any other manner, upon the rights guaranteed by the aforesaid statutory provision.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact , and upon the entire record in this
case, I make the following conclusions-
1. Nevada Tank and Casing Company, designated as the Respondent herein, is
an employer within the meaning of Section 2(2) of the Act, engaged in commerce
and business activities which affect commerce within the meaning of Section 2(6)
and (7) of the Act, as amended.
2. Operating Engineers , Local Union No. 3, International Union of Operating
Engineers , AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act as amended , which admits employees of the Respondent to membership.
3. By interference with , restraint , and coercion of its employees in their exercise
of rights guaranteed in Section 7 of the Act, the Respondent engaged and has
continued to engage in unfair labor practices within the meaning of Section 8(a)(1)
of the Act, as amended
4. By its discharge of the nine employees named below on September 2, 1959, and
by its subsequent failure or refusal to offer any of them effective and complete rein-
statement, the Respondent engaged and has continued to engage in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the Act, as amended.
James Earl Reynolds William E . Vines Roland C. Hanks
Ralph N. Phillips Mike Tyler Kenneth A. Jackson
Richard F. Poff Jack Kemp R. C. Marks
5. All of the production and maintenance employees of the Respondent's Reno,
Nevada, plant, exclusive of office clerical employees and supervisory employees as
statutorily defined , constitute a unit appropriate for the purpose of a collective
bargain within the meaning of Section 9(b) of the Act, as amended.
6. At all times since August 20, 1959 , Operating Engineers, Local Union No. 3,
International Union of Operating Engineers , AFL-CIO , designated as the Union
herein , has been entitled to act as the exclusive representative of all employees within
the unit described above, for the purposes of collective bargaining , within the mean-
ing of Section 9(a) of the Act as amended.
7. By its failure or refusal to recognize the Union as the exclusive representative
of the employees in a unit appropriate for collective bargaining , previously noted,
on or about August 26, 1959 , and by its refusal to bargain with the organization
designated , the Respondent engaged and has continued to engage in unfair labor
practices within the meaning of Section 8(a)(5) of the Act, as amended.
8. The unfair labor practices found are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]