The Buncher Co.

National Labor Relations Board - Board Decisions

Jun 30, 1961

131 N.L.R.B. 1444 (N.L.R.B. 1961)

1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant cleaner, the maintenance dispatcher, and the plant clerical em-
ployee in the maintenance department, but excluding office clerical
employees, chauffeurs, the chauffeur-electrician, professional em-
ployees, all other employees, guards, and supervisors as defined in,
the Act.
[Text of Direction of Election omitted from publication.]
Jack G. Buncher , d/b/a The Buncher Company and United
Steelworkers of America , AFL-CIO, Petitioner. Case No.
6-CA-1917. June 30, 1961
DECISION AND ORDER
On September 20, 1960, Trial Examiner George J. Bott 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 he cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed-
exceptions to the Intermediate Report and a brief in support thereof..
Pursuant to the provisions of Section 3(b) of the Act, the Board
had 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 Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations,' with certain modifications in the remedy as-
hereafter set forth.
THE REMEDY
Having found that the Respondent has engaged in and is engaging-
in certain unfair labor practices, we shall order that he cease and
desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
It appears that following the layoffs occurring on January 15, 1960,,
through March 4, 1960, which have been found herein to have been
discriminatory, the Respondent's business operations were more effi-
cient and the workload could be accomplished with a reduced work
1 The Respondent's motion requesting that the Board receive into evidence , as Respond-
ent's Exhibit No. 50, the toll call records of The Bell Telephone Company of Pennsylvania
charged to The Buncher Company at its North Side office , is denied as these records were-
available at the time of the hearing and were not then offered into evidence
131 NLRB No. 172.
THE BUNCHER COMPANY 1445
force. It is therefore possible that some of the employees discrimi-
nated against on January 15 through March 4, 1960, might have been
laid off in a subsequent reduction in force even absent the Respondent's
unfair labor practices. Under these circumstances, we shall order the
Respondent to offer those employees listed on Appendix A, attached
hereto, immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority and
other rights and privileges, dismissing, if necessary, all employees
since then hired. If there is not then sufficient work available for the
remaining employees and those to be offered reinstatement, all avail-
able positions shall be distributed among them without discrimination
against any employee because of concerted activities, in accordance
with the system of seniority or other nondiscriminatory practice here-
tofore applied by the Respondent in the conduct of his business. The
Respondent shall place those employees, if any, for whom no employ-
ment is available after such distribution on a preferential list, with
priority in accordance with such system of seniority or other non-
-discriminatory practice heretofore applied by the Respondent in the
conduct of his business, and thereafter offer them reinstatement as
such employment becomes available and before other persons are hired
for such work.
We shall also order the Respondent to make whole those employees
listed in Appendix A against whom he discriminated for any losses
they may have suffered because of the Respondent's discrimination,
by payment to each of them of a sum of money equal to that which
he would have earned as wages from the date of such discrimination
to the date of the offer of reinstatement or placement on a preferen-
tial list, as the case may be, less his net earnings during said period,
the backpay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289. As
some of the employees discriminated against on January 15 through
March 4, 1960, might have been laid off in a subsequent reduction in
force, even absent unfair labor practices, such possible termination of
employment shall be taken into consideration in computing the back-
pay due these employees under the terms of this Order.
In view of the nature, variety and extent of the unfair labor prac-
tices committed, the Respondent shall be ordered to cease and desist
from infringing in any manner upon the rights of employees guaran-
teed by Section 7 of the Act.
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, Jack G. Buncher,
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d/b/a The Buncher Company, his officer, agents, successors, and
assign, shall :
1. Cease 'and desist from :
(a) Interrogating his employees as to their membership in, or ac-
tivities on behalf of United Steelworkers of America, AFL-CIO, or
any other labor organization in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
(b) Threatening reprisals against his employees because of their
union activities and sympathies or promising benefits to his employees,
if they will abandon the Union.
(c) Requesting employees to engage in surveillance of the union
activities of other employees and report such to the Respondent.
(d) Making statements or engaging in conduct designed to make
its employees believe that Respondent is engaging in surveillance of
their union activities.
(e) Soliciting, urging, or directing employees to join or assist Local
178 or any other labor organization not of their own choosing, except
to the extent that said rights to join or assist labor organizations or
to refrain from such may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(f) Discouraging membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of his employees, by dis-
charging or refusing to reinstate any of his employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
(g) In any other manner, interfering with, restraining, or coerc-
ing his employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings suffered as a
result of the discrimination against them, in the manner described in
the section of this Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to determine employment rights and the
amount of backpay due.
(c) Post at his facilities called Nine Mile Run, Leetsdale, and North
Side locations in Pittsburgh, Pennsylvania, copies of the notice at-
THE BUNCHER COMPANY 1447
tached hereto marked "Appendix B." 2 Copies of said notice, to be
furnished by the Regional Director for the Sixth Region shall, after
being signed by Respondent or his representatives, be posted by Re-
spondent immediately upon receipt thereof and be maintained by him
for 60 days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixth Region in writing,
within 10 days from the date of receipt of this Order, what steps the
Respondent has taken to comply therewith.
21n 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."
APPENDIX A
John A. Cindrick
James H. Roth
Milton Ashford
Henry C. Ivy
Joseph Wytiaz
George Collier
Robert Vinsick
Ronald W. Loughner
Samuel Rutherford
Archie Jackson
John West
William Greene
James Cindrick
APPENDIX B
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 in United Steelworkers
of America, AFL-CIO, or any other labor organization by dis-
criminating in respect to the hire, tenure, or other conditions of
employment of any employee except as authorized by the proviso
to Section 8 (a) (3) of the Act.
WE WILL NOT threaten employees with loss of employment be-
cause of their union activities or promise them benefits if they
will abandon the Union.
WE WILL NOT interrogate employees.
WE WILL NOT ask employees to engage in surveillance of the
union activities of other employees and report to management.
WE WILL NOT tell employees that their union activities are
known to us.
WE WILL NOT urge, solicit, or direct employees to join Local
178, House Wreckers and Scrap Yard Laborers' Union.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of
the Act.
WE WILL offer to those individuals found discriminated against
immediate and full reinstatement to their former, or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges.
WE WILL make whole those individuals found discriminated
against for any loss they may have suffered as a result of the dis-
crimination against them.
All our employees are free to become, remain or refrain from be-
coming, members of United Steelworkers of America, AFL-CIO, or
any other labor organization, except to the extent that this right may
be affected by an agreement in conformity with Section 8(a) (3) of
the Act.
JACK G. BUNCHER, D/B/A
THE BUNCHER 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
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, herein called the Act, was heard in Pittsburgh , Pennsylvania , on May 2, 3, 4, 5,
6, 10, 11 , 12, 13, 17, 18, and 19, 1960, pursuant to due notice to all parties. The
complaint , issued by the General Counsel of the National Labor Relations Board,
and based on charges duly filed and served , alleged that the Respondent had engaged
in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. In its
answer the Respondent conceded that it was engaged in commerce within the meaning
of the Act, but denied the commission of any unfair labor practices.
At the hearing all parties were afforded full opportunity to be heard , to examine
and cross-examine witnesses , to introduce evidence and argue orally. Oral argument
was waived . Subsequent to the hearing, on July 25, 1960, counsel for the General
Counsel and for the Respondent submitted briefs which have been fully considered.
Upon the entire record 1 in the case , and from my observation of the witnesses, I
make the following:
i The Union 's motion to admit In evidence the Regional Director 's report on objections
and challenged ballots in Case No . 6-RC-2513, which Respondent opposes, is granted but
THE BUNCHER COMPANY
FINDINGS OF FACT
1449
1. THE BUSINESS OF THE RESPONDENT
The Buncher Company, herein called the Respondent or Company , is a sole pro-
prietorship of lack G. Buncher , who is engaged in the business of scrap brokering,
scrap reclamation , and construction and leasing of buildings in and around Pittsburgh,
Pennsylvania . At its location at Nine Mile Run in Pittsburgh , Pennsylvania, the
Respondent during the 12-month period ending December 31, 1959 , reclaimed and
sold certain materials to the Jones & Laughlin Steel Corporation , of a value of more
than $50,000. The Respondent concedes , and I find , that Jack G. Buncher, doing
business as, The Buncher Company, is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2, subsection (5) of the Act.
House Wreckers and Scrap Yard Laborers' Local Union 178, affiliated with the
International Hod Carriers', Building and Common Laborers' Union of America,
AFL-CIO, herein called Local 178, is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The setting and the issues
During the pay week ending January 14, 1960, Respondent employed 34 produc-
tion and maintenance employees at Nine Mile Run, the operation with which we
are primarily concerned. On the evening of January 13, 1960, 22 employees of
the Company attended a meeting at the Union's subdistrict office in Homestead,
Pennsylvania, and all signed applications for membership in the Union. On January
14, Mr. M. Peter Jackson, subdistrict director of the Union, dictated and mailed to
Mr. Jack G. Buncher, president of the Company, a registered letter advising him
that a majority of the employees at the Nine Mile Run location had designated the
Union as their representative and asking for a meeting to negotiate a labor agree-
ment. The letter from the Union was delivered to the Company on the morning
of January 15 but there is a dispute about whether it was actually opened or read by
anyone before the afternoon of January 19.
On January 18, the Union filed a petition for election under Section 9(c) of the
Act with the Board. After hearing the Board issued a Decision and Direction of
Election.2 The election has been held but because of certain challenged ballots the
results are inconclusive and the matter remains pending before the Board.
On January 15 the Company laid off five employees and subsequently laid off
eight others. All 13 had attended the union meeting on January 13 and signed
application cards for the Union.
It is the General Counsel's position that, when the Respondent learned that the
Union claimed to represent a majority of its employees, it commenced a campaign
to destroy that majority and used as its weapons the illegal discharge of 13 known
union adherents and certain other acts of interference, restraint, and coercion.
Respondent, on the other hand, denies any knowledge of the organizational activ-
ities of its employees or that it discussed the Union with them in any manner or at
any time. With respect to the discharges, Respondent contends they were all based
on economic considerations and were totally unrelated to any union activity on the
part of any employee.
B. The evidence as to alleged violations of Section 8(a) (1) of the Act;
findings and conclusions with respect thereto
1. General acts of interference, restraint, and coercion
Employee John Cindrick signed a union card, on January 13, 1960, at the union
hall, as did 21 other employees. On January 15, while working at his job, he was
approached by Herbert Green, general manager of the Company and formerly
superintendent of the Nine Mile Run operation, and asked if he knew of any union
meetings or of union cards being passed out which Cindrick denied. Green told
only to the extent that It shows, as part of the chronology of that case about which some
evidence was taken at the hearing in the instant case , that such a report was issued by
the Regional Director on June 20, 1960.
2 Case No. 6-RC-2513, not published in NLRB volumes.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees that he had a letter from the Union stating that the Union represented
a majority of the men and asked Cindrick if he knew anything about it. Green also
told Cindrick, at that time, that there was a limit to what the Company could pay
and that Jack Buncher, president of Respondent , was looking for an excuse to shut
the job down and that "this would probably be it." Green added that everyone
would probably be out of work but that he would still have his job.
General Manager Green also asked employee William Greene, on January 15, if
there was anything Green should know. Greene denied that there was, although he
had also signed a union card on the 13th. He was told by General Manager Green
that Jack Buncher would probably be out on the job early Monday morning "with
fire in his eyes" and that Jack Buncher would shut the job down "over something
like this." The next day Green again approached employee Greene on the job and
repeated his inquiry of the previous day about whether or not anything was going on.
He then told the employees, "Let's face it Bob, I squashed a thing like this once
before." In this conversation Greene was told by his superior that a "couple of silly
bastards around here wanted a union" and if he could find the ringleader he could
"squash this thing." On January 18, Greene was summoned to the office where he
saw Jack Buncher and Herbert Green. Buncher asked Greene if he wanted to tell
him anything about what was going on. Later in the day Greene was again called
in and told by Buncher that he had been turned in "as being the ring leader in this."
On January 20, employee Greene was summoned to the office and again confronted
by Buncher and Green. Buncher told him to "keep quiet" that Buncher was "going
to tell me for a change." Buncher was interrupted by a telephone call and Green
took up the conversation with the employee. He told him that the Company had a
raise in store for the men to take effect at the end of 1959 which was prevented by
the steel strike, but that the Company was working on a hospitalization plan for
the men.
On January 15, at about 10:30 a.m. employee James Roth was questioned by
Moses Pasquarelli, superintendent of the plant, who asked him if he knew anything
about the Union, and added that "We want to get rid of the guys and get back to
normal." Roth denied knowledge of any activity but was told by Pasquarelli,
"Don't be afraid of your job. Let me know."
Milton Ashford was questioned in the company office by Herbert Green on Jan-
uary 15 and asked if he knew anything about a union or had talked with anyone
from the Union. He repeatedly denied it and was asked if he were sure. Green
told him that the Company had received a letter from the Union.
On January 18, John Edditor was sent to the office where he was interviewed by
Jack Buncher and Herbert Green. He was asked if he knew anything about the
Union and told that the Company wanted to stop the Union because it was not the
proper union for the employees. Buncher and Green interviewed Edditor again the
next day and either Green or Buncher told the employee that Respondent knew
who was at the union meeting.3
Charles Epps was sent for by company officials, Buncher and Green, on January
18 and questioned about the Union. Buncher told the employee "that there was
just a few had apples that convinced the men that the union was best for them, and
that he wanted to get rid of the bad apples." Buncher persistently inquired of Epps
whether employee George Collier had given Epps a card or talked to anyone about
the Union. Buncher told Epps that anything he had to disclose would be kept con-
fidential and that his and Green's telephone numbers were in the book. Buncher
also stated that he did not want to shut the plant down but that he would before he
let the Union in. The next day Green talked to Epps and told him "how nice the
company had been to us, and how the guys he has helped out of trouble, and he
didn't see why we wanted to get in the union." Green reminded the employee
that he got a vacation every year and a raise when the Company could afford it and
asked Epps how the employees were thinking.
Aaron Scott was interviewed in the office by company officials three times. after
he attended the union meeting and signed a card In his first interview with Jack
Buncher he was asked if he "knew what he was there for" and if he had gone to
the meeting in Homestead The employee admitted that he had and Buncher asked
him who else was there which the employee refused to divulge. Later in the day
Scott was called back to the office and talked to by Buncher and Green Buncher
again attempted to find out who was at the union meeting and Green reminded the
employee of kindnesses done to him in the past. Buncher told Scott he was either
for Buncher or against him. On leaving the office Scott was told to "think it over "
3In some instances, where an employee had been interviewed by Buncher and Green at
the same time he could not remember which official made the remark in question
THE BUNCHER COMPANY 1451
The next day Scott was again called to the office and met Green and Buncher.
Buncher told the employee that he had found out what he wanted to know because
six or seven employees had gone to Green's home and told him.
On April 17, the day before th e election conducted by the Board for the em-
ployees at Nine Mile Run, Jack Buncher spoke to Scott. Buncher asked Scott if he
had a can cer in his Leg, whether he would cut it off to save the rest of his body and
Scott stated he would
Union
. Buncher agreed he would do the same and said that if the
Ugat in at N me Mile Run then "Leetsdale and Shore Avenue would want
one." 4
Ronald Loughner was asked by Herbert Green, on January 18, 1960, ". . . what
do you know about this union deal?" Green then asked him if he went to a meet-
ing or signed a card. Later in the day Loughner was sent to the office where he
met Jack Buncher and Green. Buncher asked him if he knew why he was there
and Loughner surmised it was "the union deal" to which Buncher agreed. Buncher
reminded Loughner that the Company "thinks the world and all of you" and asked
him if he knew anything to tell him. Loughner pleaded ignorance and Buncher told
him to let hun or Green know if he found out anything. Later in the day Lough-
ner was again called back to the office by Green. Green, in Buncher's presence,
told Loughner, "some of the colored boys is trying to involve you whites in on this
deal. If you know anything, tell me." Loughner again feigned ignorance and
Buncher stated that he would believe him "for now." The next day Green ap-
proached Loughner where he was working and reproached him for lying on the
previous day. He then called the employee a "no good, ignorant liar." On this
occasion Green had a piece of paper with him and informed Loughner that he had
his name as well as others on the list.
Superintendent Pasquarelli told employee George Collier, on January 15, that
the Company had received a letter from the Union claiming a majority of em-
ployees, that he did not believe the claim and was counting the employees, and that
the Company would shut down the Nine Mile Run operation rather than let the
Union come in. In response to a question by Collier about the equipment, Pas-
quarelli said it would be sold. He 'added that Herbert Green had called Jack
Buncher in Florida and that Buncher had said that he would shut down before he
let the Union come in. Pasquarelli also stated that Buncher did not want to have
anymore to do with the men since they had knifed him in the back after he had been
good to them during the steel strike. Pasquarelli, at the end of the conversation,
told Collier, in response to another question by Collier, that there was plenty of
work but that the Company was "not going for this union deal."
Collier was also called to the company office on January 18 where he saw
Buncher and Green. Buncher told Collier that he was there because of the union
business and that he might "as well come clean" since Buncher knew that he had
passed out union cards. Collier denied it and was told 'he was lying. Green asked
Collier who he rode with and who his friends were. Buncher told him that he was
interested only in the ringleaders and that he did not want the employee "that went
along just to follow the crowd." Buncher told the employee that a "similar thing"
happened once before and the Company solved it by getting rid of the ringleaders,
shutting down and then reopening Collier refused to give the Company any in-
formation despite suggestions by Green or Buncher that the conference was "con-
fidential," that Collier could call -them, if he changed his mind, that Collier had a
family to consider, that he had always worked steady, that he was "messing up" a
good job and a statement by Buncher to Green during the meeting as follows:
"Damn it, Herb, I'm going to change my tactics."
Robert Vinsick, while at work on January 18. was asked by Green whether he
had gone to "that meeting the other night" and if he knew of a meeting. Vinsick
disclaimed knowledge but Green told him that he had heard that Vinsick had gone
to the meeting and signed a card. Vinsick denied the fact but Green persisted by
asking him if he were sure and whether anyone had approached Vinsick with a
union card. Later that day Vinsick was also called to the office and saw Buncher
and Green. Buncher asked him if he knew why he was there and Vinsick volun-
teered that it was on account of the Union to which Buncher agreed. Buncher then
asked him if John Cindrick had approached him about joining the Union and stated
that he knew Vinsick rode home with Cindrick and his brother. Buncher said that
he thought John Cindrick was the ringleader.
On January 19, Herbert Green again talked to Vinsick at Vinsick's working sta-
tion. Green reproached Vinsick for lying to him on the previous day despite the fact
that Green trusted Vinsick. Vinsick denied lying but Green told him he had his
name an a list along with other employees.
' Respondent's other operations
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sammie Lee Rutherford 5 was interviewed by Jack Buncher, on January 18, in
the company office and asked what he had heard about the Union. Buncher stated
that if the Union got in he would have to close the plant down but that he had
enough money for himself. Buncher then asked Rutherford to let him or Green
know if he heard anything about the union meeting. Later that day Rutherford
was again invited to the office and Buncher and Green talked to him. The company
officials on this occasion wanted to know where the employee had gone after work,
who rode with him, whether he went to a meeting and whether he met certain em-
ployees, including Aaron Scott and Henry Ivy.
Archie Jackson was also interviewed by Buncher in the company office about
January 20. Buncher asked him if he knew anything about a union, referred to the
fact that Jackson was a single man, and asked if he intended to get married. Buncher
reminded the employee that the Company had taken care of the men during the
strike, meaning that they had worked during the long steel strike of 1959.
Buncher and Green also questioned James Cindrick in the office on January 18.
Cindrick's brother John had been laid off on the 15th of January and Buncher told
James to tell his brother that if he let Buncher know what he knew he would give
him his job back. Herbert Green added that he would do better than that, he would
pay James for every day he was off. Two weeks later Buncher saw James Cindrick
at his job location and told him that if his brother would come and talk to Buncher
he would have a job with the Company. The references in these conversations to
what an employee "knew" were clearly meant and understood to mean knowledge
about the Union, and I so find. Similarly Herbert Green asked Cindrick on the
15th of January what he knew "about this."
On about January 18, employee West was called to the office and asked by Buncher
in Green's presence if he was "satisfied with what was going on." West feigned ignor-
ance and Buncher asked him if he had heard anything about a union. Buncher
told West that, if he considered himself a friend, he would be expected to tell Buncher
what he heard. Buncher told West that he looked "like a pretty nice fellow" and that
perhaps Buncher could help him someday. A few days later, West was transferred
to the Leetsdale operation of the Company, and, within a few weeks, he was sent in
to see Buncher. Buncher told him that he needed only a certain number of men to
operate the Nine Mile Run operation and, if there was a layoff, and if the Union got
in, the men with the least seniority, like West, would be laid off first. Buncher told
West that without a union , Buncher would see to it that his "friends" worked.
Buncher appealed to West's loyalty stating that he wished he was as loyal as West's
mother-in-law who had worked for Buncher's deceased brother. In this conversation
Buncher said if the Union got in he would shut the place down. Buncher concluded
the interview by telling the employee that he was surprised not to see him with a
group of employees who came to Buncher's home and gave him some information
about the Union, and that if West ever had any reason to come and see Buncher to
stop at the office "any time."
George Parks, a few days after he signed a union card at the January 13 meeting,
was told by Superintendent Pasquarelli that there was a rumor that some of the men
were talking about starting a union and asked if he knew anything about it. Later
Parks was sent for and talked to by Buncher and Green in the office and asked if he
knew who signed cards. Buncher or Green told him that "if they could get to the
bottom it it, find out who started it, well, maybe they could take and stop it, .
there wasn't going to be no union." Buncher also told the employee that "they
would take and close the place down before they would have a union."
Pasquarelli asked Leland,Shearer, on January 15, who and how many employees
had signed cards, and stated that he thought Shearer would tell him, because he was
going to take care of Shearer. On or about the 18th of January, Shearer was also
sent to the company office and questioned by Green and Buncher about the Union.
The company officials wanted to know the names and number of employees who had
signed union cards. Buncher asked Shearer to let him know if he heard anything and
Shearer said he would. The next day Shearer was again called into the office with his
brother Harland Shearer, also an employee of the Company. In this meeting the
employees were told by Buncher that they were lying when they said they knew
nothing of the Union and were informed that they would be the first to be laid off
if the Union got in since they had the least seniority. Either Buncher or Green asked
the employees if they would be willing to go with a group to the Union and get their
application cards back. On April 18, Leland Shearer was in the company office with
Buncher, Green, and one Emanuel Reich, who was introduced as "a financial adviser."
All three men participated in the discussion and the employee was told that the Com-
s Called Samuel Rutherford in the complaint.
THE BUNCHER COMPANY 1453
pany did not want the Union and that the Company would close down if the Union
came in . The employee was invited to a party for employees to be given by the Com-
pany that night. It is to be noted that the National Labor Relations Board election
for the Buncher Company employees took place the next day.
Harland Shearer, Leland's brother, was also questioned alone and with his brother
by company officials. On January 18, Green asked him if he knew anything about the
Union and Buncher or Green said that a union had tried to get in once before but the
Company had gotten rid of it. The next day the employee was interviewed again and
asked if it were possible that employee Loughner had signed a card. Harland Shearer
also corroborated his brother's testimony about the joint interview of the employees.
Green and Buncher also talked to Harland Shearer a few days before the Board
election of April 19. Green called the employee off the job and asked him how he
was going to vote. When the employee told Green that things looked bad for the
Company he was asked to point out the section of the operation where the employees
were opposed to the Company. Later, on the same day, Jack Buncher talked with
Shearer on the job and told him that if the Union came in he would close down.
Buncher described the Union as a cancer which should be cut out.
2. Acts of interference, restraint, and coercion relating to Local 178
The complaint, as amended , alleged that Respondent distributed to employees
membership cards and urged and directed employees to join and sign for Local 178.
As set forth above employee Edditor was told, when interviewed on January 18
in the company office, that the Company wanted to stop the Union because it was not
the proper union for the employees. -On January 22 Edditor was sent to the company
office again and there Green told him "I told you that I would get you boys a union,
the right union" and gave Edditor an application card for Local 178, told him to sign
it, Edditor did and left the card with Green. Green gave Edditor other Local 178
cards with instructions to pass them out to the employees. General Manager Green
also had Epps sign a card for Local 178 and subsequently signed up Jackson, Aaron
Scott and the Shearer brothers. Superintendent Pasquarelli gave employee Parks
a card in Local 178 and told Parks that Green wanted to know whether he would sign
it. Parks did.
It is clear from the evidence set forth above that the General Counsel made an
extremely strong prima facie case of interference, restraint, and coercion of employees
by the Respondent. Respondent's witnesses, however, denied every remark attributed
to them by the witnesses for the General Counsel. On the basis of my observation
of the witnesses, and for the following additional reasons, I do not credit Respondent's
denials and find that the events and statements described above by witnesses for the
General Counsel did occur:
Seventeen witnesses with obviously different backgrounds, degrees of education,
experience, and intelligence were called by General Counsel and testified about the
matters set forth above, and described a variety of techniques of persuasion and acts
of interference, occurring , in some cases , on two or three occasions and engaged in by
different company officials. Careful examination of their testimony, and recall of the
demeanor of the witnesses at the hearing, reveals no evidence of a rehearsed or con-
cocted story but a pattern of conduct on Respondent's part which is plausible and
likely. In the remarks attributed by the employees to management, there appeared
a conscious tailoring by company officials to fit the particular employee involved.
For example, if the employee were single, as in Jackson' s case , Respondent inquired
if he intended to get married, but if he were married, as in Collier's case , it was sug-
gested that he had a family to consider. Similarly, newly hired employees like West
and the Shearer brothers were reminded of their lack of seniority in the event of a
layoff, but others were appealed to on the basis of loyalty or gratitude for past favors.
Brothers and cousins were interviewed together (the Shearers, Jackson, and Epps),
some employees were flattered like Loughner who the Company thought "the world
and all of you" but others, were liars and "silly bastards"; threats were mingled with
promises and cajolery with more forceful oral pressure. Buncher told Green that he
would change his tactics and he did with versatility. There was something for every
employee in the dialogue and to credit the employees with a fabricated script in the
circumstances would be to postulate a fantastic conspiracy on their part. This I am
unable to do. With due regard to minor inconsistencies and inaccuracies, frequently
found in the testimony of witnesses, their complete account reveals a cohesive and
believable whole.
On the other hand, I am unable to accept the Company's complete disavowal of
knowledge of the employees' union activity, its disclaimer of even the slightest dis-
cussion of it with employees and its purported casual attitude or disinterest in the
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter, even among company officials. In addition to the statements made to em-
ployees demonstrating awareness of union activity , the following are also significant-
The Buncher Company has never been organized by a union . The registered letter
from the Union , asserting that a majority of the employees had selected the Union
and requesting a conference , arrived at the company office at 10 a.m., January 15-
This letter started a chain of events which included conferences with union repre-
sentatives , charges of unfair labor practices , and a petition for an election, which
took place about 3 months later. When the letter was received Jack Buncher was in
Florida, where he remained until January 17, when he returned to Pittsburgh. Re-
spondent asserts that the letter from the Union remained unopened in its office until
the afternoon of January 19, but I do not credit its testimony to that effect . The evi-
dence shows that a long-distance call was made from the company office to Buncher,
in Florida , at 11 : 16 a.m ., January 15 . General Manager Green , who is in complete
charge of the Company in Buncher 's frequent absences, keeps in touch with Buncher
by mail and telephone , as does James Gambone, the Respondent 's office manager and
accountant . Gambone looks to Green for guidance in Buncher 's absence and al-
though he handled the registered letter , enclosed in a union envelope, on the 15th
and had never seen a similar communication from a union before in his many years
with the Company, did not , according to him, bring it to Green 's attention. Both
he and Green were vague about any calls made to Buncher during his absence but
Green admitted that he may have talked with Buncher on the 15th. Buncher, under
cross-examination , was equally vague about talking to Green long distance on Janu-
ary 15 , admitting only .that it was possible , but asserting he did not know whether he
had a conversation or not. After Buncher had testified , and during the presentation
of Respondent 's case, General Counsel called out of order Robert Embree, an em-
ployee of the Bell Telephone Company, who testified that a person to person call was
placed and completed to Jack Buncher from the Buncher Company , on January 15,
and lasted for 12 minutes . The next day Jack Buncher was recalled and testified that
he spoke to his office from Florida on January 12, 14, and 15 but that the January 15
conversation had nothing at all,to do with union activity of his employees. I find
that during,Buncher 's, Greens' and Gambone's cross-examination by General Counsel
they were aware of the January 15 telephone call and that they were purposely vague
about it until General Counsel produced a witness from the telephone company.
Only then did Buncher remember the call and recall that it had nothing to do with
union activity . The Company 's reluctance to admit the fact of the call earlier is
evidence from which l may and do infer that it pertained to the contents of the letter
from the Union, and I so find.
Additional reasons for crediting the employees ' account of their employer's
knowledge and interest in their union activity are found in Respondent 's implausible
description of the actions and reactions of company officials on and after January 19,
the date on which Buncher testified he saw or learned of the union communication
for the first time. Buncher returned from Florida on Sunday evening, January 17,
and, according to him did not go to his office at the North Shore location until the
afternoon of the 19th and was not informed by his office during that time that a
letter had been received from the Union . On the 18th and the morning of the 19th
of January , he spent all day at Nine Mile Run going over all jobs which the Com-
pany intended to eliminate . When he got to his office after lunch , an envelope con-
taining unopened mail, received during his absence , was handed to him , and he pro-
ceded to open the contents which included the Union 's demand and letters from the
National Labor Relations Board enclosing a petition for election filed by the Union,
and a charge of unfair labor practices. Buncher stated that he showed Green the
union letter and asked him what be knew of the situation . Green , according to
Buncher, said he knew nothing and that is "all I did at the time." Buncher made it
clear to Green that as far as union activity was concerned Green was to leave it
alone. In Buncher 's words, " I would take care of it . It was up to me ." Buncher,
according to him, had no further discussions with Green or any other supervisor
about the union matter and a few days later he returned to Florida . He did not
believe, he testified , that the Union represented a majority of his employees, as the
Union claimed , yet he discussed the matter with none of his officials. Buncher's
complete causalness and disinterest is difficult to believe . He explained his aloofness
on the ground that the employees would eventually vote in an election and that
would be the end of the matter; yet at another point, he testified that he was in-
experienced in these matters and did not know where the petition filed by the Union
with the Board for an election would lead.
Green 's account of his reactions upon receipt of the Union 's demand is equally-
unrealistic and implausible . Green, like Buncher , did not believe the Union 's claim
of majority status . Although he was completely in charge of all operations in
THE BUNCHER COMPANY 1455
Buncher's absence , and was in the middle of a serious layoff problem , to be de-
scribed in more detail in section III, C , below , and although Buncher would leave the
city again as he frequently did, he engaged in no discussions with Buncher about the
union demand , or the letters from the Board about the charges or the election pe-
tition , and never discussed them with his superintendent , Pasquarelli , who was in
complete charge of the Nine Mile Run operation, except to casually mention it to
him and immediately drop the subject . He testified that he told Pasquarelli only
that "there was something going on between the Steelworkers and the men out here..
I think I mentioned that Jack received a letter from the Steelworkers , or something,
to the effect they represent the men out at the job." Pasquarelli 's reaction was an
equally cool but unbelievable "Is that right" when Green told him about the letter..
He proceeded about his business , according to him, and although he saw Green prac -
tically every day, the employees and their union activities were never mentioned
again.
On the basis of all above, therefore , I find that the witnesses for the General
Counsel testified credibly about the alleged acts of interference , restraint , and coer-
cion and that Respondent's denials are not to be credited . I find , further, and con-
clude , that Respondent by (a) interrogating employees about their union activities
and the activities of other employees ; (b) threatening employees with loss of em-
ployment if they continued in their union activities ; (c) promising employees bene-
fits if they would discontinue their union activities ; (d) requesting employees to
engage in surveillance of the union activities of other employees and report said
activities to the Respondent ; (e) soliciting and directing employees to join or assist
Local 178; and ( f) statements and conduct causing employees to believe that Re-
spondent was engaging in surveillance of their union activities , has interfered with,
restrained , and coerced employees in the exercise of rights guaranteed them under
jthe provisions of Section 7 of the Act and has thus engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. Alleged acts of interference committed by Robert McNabb and James Maynard
whose supervisory status is in issue; findings and conclusions with respect thereto
Considerable testimony was taken about the supervisory status of McNabb and
Maynard . A review of the entire record, however, reveals no statement or action
by Maynard which could constitute a violation of the Act even if he were a super-
visor under the Act. I find it necessary , therefore , to treat only with McNabb's
alleged supervisory authority . McNabb did make statements to employees which,
if binding on Respondent , would be a violation of Section 8(a) (1) of the Act. He
told John Cindrick, for example, that the job would be shut down because a few
"silly men" wanted a union and he made substantially the same remark to Collier.
McNabb denied all remarks attributed to him by employees, but l do not be-
lieve him. McNabb's demeanor was poor; he was evasive, visibly frightened or
embarrassed and clearly reluctant to tell a straight story. His account of how he
happened to sign a card for Local 178 was fantastic . I find that McNabb did make
the statements and others like them set forth above. On the other hand , although I
do not credit McNabb generally , I find on the basis of other testimony in the record
that he is not a supervisor under the Act. Some of General Counsel's employee
witnesses described McNabb as a "boss" but he was also described by others as a
"pusher," which in plant idiom is less than a "boss" or actual supervisor . The record"
is clear that McNabb had no power to hire or fire, transfer, suspend, lay off, recall,
promote, reward or discipline other employees , nor is there any evidence that he
ever recommended such action effectively . The record is also silent about any
grievance McNabb adjusted but, on the other hand , at least one employee testified
that only Pasquarelli could do that. The little evidence in the record indicates that
employee personal problems, such as time off , would have to be resolved by
Pasquarelli.
It appears that the extent of McNabb's authority is to assign and direct men.
Employees generally testified that he tells them what to do, when to do it and where
to do it. There is no evidence that McNabb, however, uses independent judgment
in the assignment or direction of the men . McNabb is a mechanic and the record
is clear that he spends a substantial part of his time, perhaps as much or more
than 50 percent, working along with the rest of the men. Pasquarelli testified that he
instructs McNabb where he wants the power equipment moved or what repairs he
wants made , and designates the man or crew that McNabb shall use and McNabb,
merely transmits the instructions . There is no evidence to controvert this testi-
mony in the record. McNabb is hourly paid, receives overtime for extra hours
worked and his hourly rate is lower than a number of other employees. On the
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis of the entire record I find that McNabb's assignments and directions do not
involve the exercise of independent judgment but are of a routine nature, and that
since there are no other indicia of his supervisory authority in the record he is not a
supervisor within the meaning of Section 2 (11) of the Act.
C. The discriminatory terminations and transfers; findings and
conclusions with respect thereto
The complaint, as amended at the hearing, alleged that Respondent discriminatorily
discharged 13 employees and discriminatorily transferred 3 of them to other locations
of Respondent prior to their terminations. The alleged discriminatees and dates of
severance and transfer are as follows:
John A. Cindrick, 1-15-60.
James H. Roth, 1-15-60.
Milton Ashford, 1-15-60.
Henry Ivy, 1-15-60.
Joseph Wytiaz, 1-15-60.
George Collier, 1-18-60.
Robert Vinsick, 1-19-60.
Ronald Loughner, 1-19-60.
Samuel Rutherford (transferred) 1-19-60, (terminated) 2-4-60.
Archie Jackson, 2-12-60.
John West (transferred) 1-24-60, (terminated) 2-12-60.
William Greene (transferred) 2-8-60, (terminated) 2-19-60.
James Cindrick, 3-4-60.
The above employees make up the total of 13 employees laid off by the Company.
All of the alleged discriminatees joined the Union on January 13, 1960, all, with the
exception of Ivy and Wytiaz, were questioned shortly thereafter about the Union,
some were laid off or transferred on the day of their interrogation 6 and most within
48 hours to 3 weeks from the date they joined the Union. The employees, with one
exception, had not been reprimanded about their work in any way; Jack Buncher
admitted that there was nothing seriously wrong with the work of any of them and
that they would be rehired if needed. None of the 22 employees remaining after
the layoff who did not join the Union were affected in the layoff and some of the
employees retained had less service with the Company than those let go. The Com-
pany made it its business to find out who had joined the Union and admitted to
certain employees that it had a list of union adherents. The layoff occurred in a
context of improper interrogation, and threats of reprisal demonstrating, along
with other acts of interference described in more detail above, a clear antiunion
animus.
It would appear, therefore, that the General Counsel made out a strong prima
facie case of discrimination. The Respondent, on the other hand, made out a strong
case that the layoffs were economically justifiable. The existence of economic
reasons in a reduction in employment is not controlling, however, where there also
exists reasons which are concerned with employees' activity protected by the Act.
In such a case all circumstances must be weighed to determine what really motivated
the employer in the layoff. As a corollary, the existence of valid reasons for dis-
charge is no defense if the selection of employees for termination is illegally moti-
vated in a proper reduction in staff 7
With respect to the economic and business reasons, asserted by Respondent as the
only considerations entering into its decision to lay off the 13 employees in question,
Respondent introduced considerable oral and documentary evidence which I find
established the following:
The Nine Mile Run operation of Respondent, with which we are primarily con-
cerned , consists of two plants, the function of both being to reclaim and separate
iron from nonferrous or waste material commonly called slag. The ferrous material
is obtained from two sources, slag from the Jones and Laughlin mill, brought to the
Nine Mile Run operation by barge, and from the Duquesne Slag Company dump
0 John Cindrick, Roth, Ashford, Loughner, Collier, Vinsick, and Rutherford.
7 NLRB. v. Whiten Machine Works, 204 F. 2d 883, 885 (C.A 1) ; NLRB v. Solo Cup
Company, 237 F. 2d 521, 525 (C.A 8) ; N.L R B. v Jamestown Sterling Corp, 211 F. 2d
725 (C A 2) ; N L.R B. v. Jones Sausage Company, et al, 257 F 2d 878 (C A 4) ,
E. E. Ma.ieroni et al, d/b/a Home Restaurant Drive-In, 127 NLRB 635; Lithium Corpora-
tion of America, Inc, 116 NLRB 602 ; William A. Mosow, 92 NLRB 1727; Layton Oil
Company, 128 NLRB 252.
THE BUNCHER COMPANY 1457
at Nine Mile Run . This dump consists of an area of about 200 acres. The Re-
spondent started with a very small and simple operation in 1951 and with the use
of a crane, a power shovel, and a bulldozer, dug and reclaimed scrap from the dump
with the use of a magnet operated on a crane. Next the Company designed a small
portable plant and then developed two intricate and integrated permanent plants by
a process of redesigning, reconstructing, and modifying over the years up to and
through the strike period in the basic steel industry ending in November 1959.
Through the strike period there were 34 or 35 employees employed in the operation
of 1 of the 2 plants, in operating the equipment and in constructing and modifying
the various components of both plants. The Respondent asserts that it decided it
had too many employees on the payroll and determined to eliminate a number of
them. When and how this decision was made is in dispute and will be considered
later. We will confine ourselves, at this point, to the basic economic considerations.
In the process of extracting ferrous material the raw material, the slag, is dug
from the dump by power shovels and loaded into trucks which transport it to the
plants where it is dumped into hoppers. The material is then conveyed through the
plant, and by the use of magnets, shaking and fractionating, the fine ferrous end
product is obtained. Prior to January 15, 1960, three power shovels were used but
after the 18th of January only one was operated which fed the plant to capacity.
In December 1959, total loads of raw material dumped into both plants for process-
ing was 5,767; in January 1960, it was 5,161; in February, it was 6,278; in March,
6,441; and in April, 6,474. Between December 1, 1959, and January 15, 1960,
however, the date of the first layoff, the crew size ranged from 32 to 34. Between
January 20 and April 30, 1960, the crew size ranged from 20 to 24 with 22 pre-
dominating. The increase in productivity of approximately 11 percent in April over
the previous December was accomplished with a cutback in the work force of
approximately 35 percent. Shipments to Jones & Laughlin in the first 4 months of
1960 of ferrous material were only insignificantly lower than in the first 4 months of
1959.
An analysis of the number of regular and overtime hours of employees during
representative periods before and after the layoff such as in 1957, 1958, 1959, and
1960, shows no abnormality. As a result of the reduction in work force, without
any loss in production or productivity, Respondent has made savings in wages of
$1,464.55 per week and a total saving from the day of the first layoff, January 15
to April 28, 1960 (immediately prior to the hearing in this case), of $19,293.48.
Other factors substantiate the Respondent's position that there existed good busi-
ness reasons for the reduction in force. For example, of the original 200 acres of
the slag dump only 7 or 8 acres remained to be worked. This small acreage will
take only about 11/2 to 2 years to process which was a factor in limiting the capital
investment on the jobsite and in addition the small area remaining for processing
did not require the same amount of heavy equipment such as shovels and hi-lifts.
I find on the basis of the above evidence that there existed at the time of the
layoff in question economic justification for a reduction in staff under normal business
practices. All circumstances must be considered, however, in determining what
motivated the Respondent in making the reductions.
The General Counsel urges that the timing of the terminations, among other
things, beginning on the very day the Union's letter requesting recognition was re-
ceived, indicates that the discharges were discriminatorily motivated, and I agree.8
The Company contends, however, and offered evidence to show that the layoff had
been under consideration since early December 1959 and that it had no knowledge
of any employee union activity before Buncher opened the letter from the Union,
which he maintains was sometime during the afternoon of January 19.
In subsection B, above, I found that the Respondent knew as early as January 15,
1960, that its employees had interested themselves in the Union and it is unnecessary
to repeat the basis for that finding here. With respect to the Company's claimed
prior plan and preparations for a layoff, however, Respondent offered the following
evidence. General Manager Green testified, that he had a conversation with Jack
Buncher sometime prior to Christmas 1959 about the Nine Mile Run operation,
that Buncher was dissatisfied with the number of personnel and wanted to start
"depleting the force." On Green's suggestion it was decided not to do anything
about the matter until after the approaching holidays. On January 2, 1960, accord-
ing to Green, he went to the Nine Mile Run operation and toured the facility with
8 N.L.R.B. v. Southern Desk Co., 246 F. 2d 53, 54 ( C.A. 4) ; Special Wire Goods, Inc.,
115 NLRB 67, 80.
599198-62-vol. 131 93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Pasquarelli checking where changes in the staff could be made. On
January 4 he again went over the layoff problem with Pasquarelli in the latter's
office but the final determination to lay off five men was not made until January 11
to be effective January 15. This, of course, would have been before Respondent
knew that anyone attended a union meeting or engaged in union activity as far as
the record in the case is concerned It appears that Jack Buncher had returned to
Florida about January 7 and did not return to Pittsburgh until January 17, 1960.
Green testified that on Buncher's return he called Green and inquired about the
cutback, but became very provoked when Green told him he had laid off only five
men on the 15th. Buncher said he had meant "more like fifteen." Green questioned
that figure but Buncher told him that nevertheless Buncher was going to the job
to inspect it and see what he could do. He told Green to meet him at Nine Mile
Run the following morning, January 18, which Green did.
On Monday morning January 18 Buncher and Green made a tour of the Nine
Mile Run location checking jobs and, according to Green, Buncher checked off jobs
that could be eliminated On that day the Company terminated Collier and sub-
sequently terminated or transferred the other complainants.
Jack Buncher testified that he definitely reached the conclusion to cut back in
early December. This decision was based on his observation of a smooth running
plant when it started full operations after the basic steel strike was concluded in early
November 1959. He determined that in view of the modifications and repairs in
the plant that a smaller staff would be sufficient. He corroborated Green by stating
that he spoke to him about the problem in the middle of December but agreed
with Green that the terminations should not start until after the holidays. Upon
his return from Florida he, on January 5, viewed the running of an experimental
pilot plant in the company of Jones & Laughlin officials and when the test was
successfully completed told Green that there was no excuse for delaying the layoff.
He testified that during that week Green assured him that everything was being
taken care of with reference to cutting back. Buncher again left for Florida, returned
on January 17 and was disappointed to learn from Green that he had laid off only
five men. He corroborated Green about the decision to meet the next morning at
the plant and the tour and discussion of the layoff on the 18th and 19th of January
at Nine Mile Run.
Moses Pasquarelli, superintendent of the Nine Mile Run operation, also gave
evidence of a decision to cut employment made prior to January 15, 1960. He
testified that he first learned of a contemplated layoff from Green on January 2,
when Green told him Jack Buncher was unhappy and to start thinking about laying
some men off. Green, after discussing the problem with him, told him to give the
matter more thought and it would be considered again on the following Monday.
On Monday, January 4, he and Green discussed the matter again and continued to
talk about it all that week without a final decision on names or numbers. On
January 11 Green appeared in Pasquarelli's office again and insisted that the matter
under advisement had been considered long enough and that Pasquarelli should
decide on some individuals immediately so that their names could be given to the
timekeeper for severance on Friday Pasquarelli agreed and gave Green five names:
John Cindrick, Wytiaz, Ivy, Roth, and Ashford. Pasquarelli also testified that he
gave the names of the five employees to Timekeeper Chase for layoff and then that
day personally notified John Cindrick, Wytiaz, and Ashford that they were to be let
go Friday and the next day told Ivy and Roth. Timekeeper Frank Chase testified
that on January 11 Pasquarelli told him to arrange to have five men laid off as of
the 15th and he called the North Side office and requested that termination papers
be prepared for Cindrick, Roth, Wytiaz, Ivy, and Ashford.
I do not believe the Respondent's account of a preliminary decision to make a
cutback in December 1959 culminating in a final decision to lay off five men on
January 11 as of the 15th of the month. Pasquarelli's testimony that he personally,
as ia favor, told John Cindrick. Roth, Ashford, Ivy and Wytiaz on January 11 or
12 that they were to be laid off on January 15 is incredible when viewed in the light
of the remarks he and Green made to some of those men subsequent to January 11.
Roth was asked by Pasquarelli, on the 15th, what he knew about the Union and told
not to be afraid of his job but to let Pasquarelli know. Green interrogated John
Cindrick, on January 15, about union activities and told him that the union activities
would be an excuse for Buncher to shut down. Similarly, Ashford was questioned
about the Union in the company office by Green, on January 15, and told that the
Respondent had received a letter from the Union To address these remarks to men
whose employment had been suddenly severed and who could not be expected to be
kindly disposed toward the Company would be risky industrial relations to say the
THE BUNCHER COMPANY 1459
least.9 In addition , Cindrick dewed that Pasquarelli gave him prior notice of the
layoff and although Ivy, Roth, Ashford, and Wytiaz were not called in rebuttal, the
whole tenor of their testimony on direct, which I credit, is to the effect that they
had no knowledge, prior to joining the Union on the 13th, that they, or anyone else,
were to be laid off. When they were laid off by Pasquarelli on the evening of the
15th their final checks came as a surprise and their conversations with Pasquarelli at
that time about the reasons for the layoff so indicate . Other witnesses for 'the
General Counsel also testified that there were no rumors of a layoff prior to their
union applications. If the five men who were laid off on the 15th were told of their
proposed layoff on the 11 th, such information, in a plant of only 34 employees, would
have been a matter of common knowledge instantly. In addition, Wytiaz and Cin-
drick had been told by McNabb earlier in the week that they were to "push the dump"
Sunday, that is, work that day removing boulders and waste from roads, which is a
further indication that there was no management decision to separate them on the
11th. In these circumstances, I discredit Pasquarelli 's and Green's testimony that
there was a firm decision to lay off any specific individual on January 11 and Chase's
testimony that he was told to have the final pay prepared on that day.
On the other hand, I do not think it unlikely that Buncher, Green, and Pas-
quarelli may have had some general thoughts and conversations about a possible
cutback prior to the advent of the Union. I find, however, that the final decision
to eliminate employees did not come until January 15, when the Company became
aware of the union activities of the employees, and that it was substantially motivated
by a desire to eliminate known or suspected union adherents.
Neither Green, the Respondent's general manager, nor Pasquarelli , who is in com-
plete charge of Nine Mile Run, ever indicated to Buncher that the operation was
overstaffed. Green visits the operation every day and talks to Pasquarelli about job
problems, yet Green and Pasquarelli did not discuss the matter among themselves
until January 2, 1960, at the earliest. At that time Green did little more than tell
Pasquarelli that Buncher was unhappy and to give the matter some thought. With
all the thought that Pasquarelli purported to give the matter he was admittedly un-
able to come up with the names of any employees to be specifically eliminated until
January 11, according to his testimony. Buncher testified that what he had in mind
in early December was a reduction of 15 jobs. Such a cut would have meant a
saving in labor cost of about $1,500 a week, yet Buncher, without any reluctance,
accepted Green's suggestion that the layoff be delayed until after the holidays, and it
was in fact delayed until January 15. This generous treatment of employees does
not square with the precipitate layoff, without notice, of all 13 men named in the
complaint. Although Buncher was solely involved in the determination to make a
drastic cutback he took no part in its planning or execution until January 18, at the
earliest, but returned to Florida leaving Green with the problem. Although Green
talked with Buncher by telephone, and Buncher did not return until the 17th of
January, the record is barren of any evidence of discussions or statements by either
about the problem and Green apparently made no progress reports to Buncher. The
casual handling of the whole matter by the principal parties involved indicates that
if a cutback were contemplated at all in December and early January,io it was not
pressed seriously by anyone in management but became of immediate importance
only when, on January 15, the Company learned that the Union had organized the
men and sought recognition. On that date the Respondent accelerated any plans
it may have had for a layoff and precipitately and abruptly discharged Cindrick,
Roth, Wytiaz, Ivy, and Ashford in order to thwart the Union's organizational efforts.
Buncher's testimony that he, with total unawareness of union activity at his Com-
pany, called Green on his return to Pittsburgh, was annoyed to find that only five
men had been laid off and made arrangements with Green to meet him the next
day at Nine Mile Run to survey the facility for the purpose of making additional
reductions, solely on an economic basis, is discredited. General Manager Green
told employee Greene, on January 15, that Buncher would be out on the job Monday
(January 18) "with fire in his eyes." Green and Pasquarelli interrogated other
employees about the Union on January 15 in a context of threats and it is clear,
therefore, that on that date they knew that Buncher would not only be at the opera-
tion on the following Monday but that he would be there in an unhappy frame of
mind because of the Union.
Jack Buncher did visit the job on January 18 and 19 but if he had any thoughts to
reduce employment for economic reasons they were now colored by an intention to
6 WTVJ, Inc, 120 NLRB 1180, 1186, enfd 268 F 2d 346 (CA 5)
10 The addition of two employees, Ashford and Harlan Shearer, to the Nine Mile Run
operation in December did not seem to concern Buncher or Green
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quickly ascertain the Unions strength 'and eliminate its adherents. This is the only
proper inference that can be drawn from his intense and repeated questioning of
employees on those dates as set forth in greater detail in subsection B, 1, above. In
addition, his instructions to Green and Pasquarelli to make additional cuts in the
staff land his participation in the decisions about jobs to be cut, in such a context
of interference, restraint, and coercion, indicates that the decisions were motivated,
at least in substantial part, by antiunion considerations, and I so find. Buncher told
Green how many jobs he wanted eliminated, Green discussed the matter with Pas-
quarelli and Pasquarelli, for the most part made the final decisions to lay off or
transfer. All officials participated in the acts of interference described above and
Pasquarelli's ultimate conclusions could not help but be determined by the views of
his superiors. The decision to make a staff reduction at the time, therefore, despite
the economic factors which have justified it, was not only triggered by the advent of
the Union, but the selection of the employees to be laid off or transferred was also
motivated by antiunion considerations in substantial part.
Other evidence in the record supports a finding that selection of employees for
layoff and transfer was improperly motivated. After 5 or more days of intense
interrogation it is reasonable to assume, considering the size of the staff involved,
that Respondent knew the identity of every one of the 22 employees who had signed
union cards, indeed the Respondent told employees it knew who had joined the
Union. A total of 13 employees were caught in the layoff and all were among the
22 applicants for union membership. Eleven of the thirteen had been interrogated
about the Union by company officials and one had had a threat made to him by
McNabb, whom I have found not to be a supervisor under the Act, but who acted as
the Respondent's messenger in calling employees to the office for interviews. The
13th employee, Ivy, appears in Buncher's inquiry of Rutherford about whether Ivy
had gone to the meeting with him. Similarly, the Respondent, in its attempts to get
information about the Union paid particular attention to the activity of certain
employees. Vinsick, for example, was asked by Buncher if John Cindrick had ap-
proached him about the Union and told that Buncher considered John Cindrick the
ringleader. Epps was asked on January 18 if Collier had given him a union card
and Collier was laid off that night. Harland Shearer was also asked, when inter-
viewed by company officials, whether Loughner had signed a card. Loughner was
laid off the very next day. James Cindrick, after his brother John had been laid
off, was told that if John would tell the Company what he knew about the Union
he would be reinstated, and the Shearer brothers, after being told by Buncher that
they would be the first to be laid off in a reduction in force, since they were the
newest employees, were told to go to the Union and get their cards back which they
indicated they would. The Respondent's interest in the union activity of an em-
ployee, even after he was laid off (Cindrick), in the activity of others just prior to
their layoff, purportedly for economic reasons, and in the activity of others still
employed and never laid off while telling them that they would be the first to go if
the Union came in , indicates clearly that the employee's union activity was a prime
factor in determining whether he left, stayed or returned to employment during
the cutback.
With respect to the selection of particular individuals for layoff or transfer, the
Company offered evidence of the basis for its selections. It would appear from
Buncher's, Green's, and Pasquarelli's testimony, that with one exception, namely,
Collier, Buncher claims no involvement in the actual selection. Green, although
purporting to have discussed the men with Pasquarelli for a substantial period of
time, appears to state that he left the final selection to Pasquarelli. Pasquarelli gave
his reasons and these reasons, considered apart from the considerable evidence of
antiunion motivation described herein, cannot be said to be completely untenable,
although many of them appear to be petty and inflated. However, in evaluating
the asserted bases for selection it must be considered that Jack Buncher testified
that there was nothing seriously wrong with the work of any of the men, that he
never had any serious complaints about their work and that they would be rehired
if needed. He stated that one of the men, Ivy, would not have been let go if
Buncher had been present. It is appreciated that in an economic cutback, selection
of men equally competent requires fine decisions, particularly in the absence of a
seniority agreement or practice, and the Company's business judgment is not to be
lightly cast aside and errors in judgment substituted for proof of discrimination
The Company's asserted reasons for its selections, however, cannot be considered
apart from the considerable evidence indicating discrimination in selection set forth
above.
Considered in that light they do not overcome the General Counsel's case.
I find and conclude that, although the Respondent had economic justification for a
THE BUNCHER COMPANY' 1461
reduction in staff to the number now presently employed, it was substantially moti-
vated in reducing its staff when it did in order to destroy the Union's majority status
and that a substantial factor in its selection of the employees listed in Appendix A
for transfer or layoff, or both, was the employees ' known or suspected union activity.
III so timing an otherwise proper reduction in staff and discriminatorily selecting
employees for transfer or layoff the Respondent violated Section 8(a)(3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III , above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and , such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8 (a) (1) and ( 3) of the Act , it will be recommended that Re-
spondent cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent discriminatorily laid off or discriminatorily
transferred and laid off the employees listed in Appendix A, attached hereto, it will be
recommended that Respondent offer them full and immediate reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority or
other rights and privileges , and, in the event that there is insufficient work for all
such employees entitled thereto , to dismiss , if necessary, all persons newly hired
after the Respondent 's discrimination . If there is not then sufficient work available
for the remaining employees and those to be offered reinstatement, all available
positions shall be distributed among them without discrimination against any em-
ployee because of concerted activities , in accordance with the system of seniority or
other nondiscriminatory practice heretofore applied by the Respondent in the con-
duct of his business . The Respondent shall place those employees , if any, for whom
no employment is available after such distribution , on a preferential list, with priority
in accordance with such system of seniority or other nondiscriminatory practice
heretofore applied by the Respondent in the conduct of his business , and thereafter
offer them reinstatement as such employment becomes available and before other
persons are hired for such work.
It shall also be recommended that Respondent make whole those employees listed
in Appendix A against whom it discriminated for any losses they may have suffered
because of the Respondent 's discrimination , by payment to each of them of a sum
of money equal to the amount he normally would have earned as wages from the
date of such discrimination to the date of the offer of reinstatement , or placement
on a preferential list, as the case may be , less his net earnings during said period,
the backpay to be computed in the manner established by the Board in F. W. Wool-
worth Company , 90 NLRB 289. I shall also recommend that Respondent preserve
and make available to the Board, upon request, payroll and other records necessary
to determine employment rights and the amount of backpay due.
It will also be recommended , in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any man-
ner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. United Steelworkers of America , AFL-CIO, and House Wreckers and Scrap
Yard Laborers ' Local Union 178, affiliated with , International Hod Carriers', Build-
ing and Common Laborers' Union of America , AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of the
employees listed in Appendix A, thereby discouraging membership in the Union, the
Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
4. By engaging in the conduct set forth under Section III, B , 1 and 2, above, Re-
spondent interfered with , restrained , and coerced its employees and has engaged in
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaging in unfair Labor practices within the meaning of Section 8(a)(1)
of the Act.
5. 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.]
Ford Motor Company ( Sterling Plant , Chassis Parts Division)
and Joseph S. Urban , Thadeusz L. Pilawski , Walter E. Huff,
Elmer G. Bialk
Local 228, Inernational Union , United Automobile , Aircraft and
Agricultural Implement Workers of America , (UAW) AFL-
CIO and Joseph S. Urban , Thadeusz L. Pilawski , Walter E.
Huff, Elmer G. Bialk. Cases Nos. 7-CA-1856,7-CA-1883,7-CA-
1884, 7-CA-1885, 7-CB-446, 7-CB-455, 7-CB-456, and 7-CB-457.
June 30, 1961
DECISION AND ORDER
On May 26, 1960, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they 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 Union had not engaged in certain other
alleged unfair labor practices and recommended that the complaint
be dismissed as to these allegations. Thereafter, the Respondents
filed exceptions and supporting briefs. The General Counsel filed a
brief in support of the Intermediate Report.
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 In-
termediate Report, the exceptions and briefs, and the entire record in
these cases,' and hereby adopts the findings, conclusions and recom-
mendations of the Trial Examiner except as modified herein.
In agreement with the Trial Examiner, and for the reasons given
in the Intermediate Report, we find that the Respondent Company
violated Section 8(a) (3) and (1) by suspending and later discharg-
ing employee Urban and by discharging employees Pilawski, Bialk,
and Huff, and that the Respondent Company further violated Sec-
tion 8 (a) (1) by prohibiting Urban from engaging in organizational
activity during his nonworking time. However, contrary to the
Trial Examiner, we do not believe that the record here establishes
i As the record and the exceptions and briefs adequately present the issues and the
positions of the parties , the Respondents ' requests for oral argument are denied.
131 NLRB No. 174.