Petition for Writ of Certiorari — Midwestern Instruments, Inc. v. National Labor Relations Board

Supreme Court brief1959

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oe MIDWESTERN INSTRUMENTS, NC.,

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NATIONAL LABOR RELATIONS BOARD,

Pte : “Respor rent

ition for a Writ of Certiorari to the Unitetl States. Court

“of Appeals for the Tenth Circuit

Brief for Petitioner, Midwestern Instruments, Inc.

. # . ‘ ° ba ;

AN aor enieaheasstiee

es FARMER, WOOLSEY. FLIPPO & BAILEY

' | By R. J. Wootsty 0 a

? ; a National Bank «at Talsa Building

‘ Tulsa, OkKlahomia.

Attorneys tor Respondent.

COFFEY: & COFFEY

in "Be AL LANGLEY Correy

Odd Me€ reery Bruld brig,

rt “a. sa

Fae . i Sand Springs. OKlahe Tal "

% Fe | » OF Counsel

I. Departure by the Circuit Court from the accepted and_ usual >. —

__Court-of Judicial Proceedings calls for an exercise of the

, 2

QUESTIONS aaa oe Nar sor ees oe

STATUTE cin aie oe

maa ee oe

REASONSRELIED ON FOR ALLOWANCE OF THE WRIT. 7

L_ The Circuit Court mistakes ae of review........... besebieias =

oe Supreme Court's power EAT ane. OO 8

~ TIL ‘The Circuit Court's decision is in conflict with. decisions

of the Courts of other Circuits _—_ Board Review....... 10 -

CONCLUSION .........------00000000 ET TADS SEO

| es "Citations ‘

ce ie :

N.LR.B. vs. Columbia Products Corporation, 141 F. 2d 687,

ee I he acer cs tobcepeecnsonstd - 10.

N.LRB. vs. Union Pacific Stages, Inc., 99 F. 2d 153 (C,A.9) 10,11

N.LR.B. vs: Shen- -Valley’ Meat Packers, 211 F. 2d 289

CCA. a eenteanne 11

_ NLRB. vs. T. A. McGahey, et al, 233 F. 2d 406 (C.A.5).. tl

N.LR.B. vs. England Bros., Inc., 201 F. 2d 395 (C.A.1)....., , 11

NLRB. vs. Mississippi Products; Inc, 213 F. 2d 670 (CA. 5) 11

‘NLRB. vs. J. E. McCatron, et al, 216 F. 2d 212 (CA.9).. | 11

«NLRB. vs. Associated: Dry Good Corb., 209 F. 2d 593

ERR ss aticsai ttc ciolanacelicmptiitiiaseatintoen 11

NLRB. vs. W. T. Grant Company, 208 E 2d 710 (CA. fy \ a

‘Sax vs: NLRB, 171 F. 2d 769 (CA. 7) ccsgcossseccseciesssen 11

‘Universal Camera Corp. vs."N.L.R.B., 340 U. S. . 7, 8, 9

d Wilson & Company vs. NLRB. 126 F.2d 114,117 (C.A.7) 10

‘ ‘Wyman-Gordon Company: vs. NLRw 153 F. 2d 480, sna |

Pie a ad ee nine ARS eae 10°

‘9

INDEX—Continued ."---

€ Seatutes: OA

House of Representatives Committee Labor Raper... a

Labor Management Relations Act (1947), 29 US.C.A. 160(c)

National Labor Relations Act, 61 Seat. 136, 29 USC. ‘8 151;

—

Y -ae hag a i eiossannhaslniabi

United Stes Code, Fide 28, a. elcid Sisekdeciaee

United States Code, Title 29. §158(c)............-- ba oceaenne

APPENDIX A—Decision and Order of N. L. R. Bosco ceeceece-

Intermediate Report’ ....2....---.--- sideband eslignaiie iutihade |

Findings Nak cies chalneecuctha asda ininscinnciiasacohpemndesisulchamuasss -

Atlas Boat Manufacturing Co, Inc. 116 NLRB 565

5 PPE aR eceetaianetsioncoimensinndstoierponnininnescitanicinsneied om

‘Tatil Green Manufacturing Company, 108 NLRB.

__ ERE NNE "SPEEA ON SRR SOO

FW. Woolworth Company, 90 NLRB 289.02... zs

H4ammond Brick Company, 1]1 N.LRB. 6................. ae

Lanthier Machine Works, 116 NLRB 1029, 1037....:... ;

May Department Stores vs.'N.L.RB., 326 US. 376, 386-2

Nacona Boat Company, 116 NLRB 1860, 1865-6.........

NLRB. vs. Solo Cup Co, 237 F. 2d 521, 525

N.L.R.B. vs. Electric Ci i , 178 "F 2d 980, |

7. -_ + 983 <a eccccccecce ; Te eeccece rte ease eee ene eee cw eeneeeees

NERB: vs. Retwinde Manufacturing Co, 120 F. 2d

TE ES alll NR ate ile a

St.. Louis Car Gonipany, fos MiRB 1993....:.:.........

- Conclusion ed eiuaik. Se tT PE

APPENDIX ae Order. of the United dcssee Court

: of Appeals for the Terith Cirovit..........clscsssssssssssssssseeeecieee

- APPENDIX C—Decree of the United States Court « Appeals for

- the Tenth Circuit ba NE NAG A A SO CT

=> . mies : a

e .

, .

‘6

. wr ee

= é

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INDEX—Continued ,

APPENDIX D--Pesiinny portions of the National Labor Rela

"United Seates Code, Title 29, 160(€) 00 tucur” 28a

" United States Code, Title 29, 158(¢) 2. saccade eased 29a -

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i The Supreme Court of, The United States

OCTOBER TERM, 1958, “0.

No.

eee

MIDWESTERN. INSTRUMENTS, ‘INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for ‘a Writ of Certiorari to ie United States Couri

of Appeals for the Tenth Circuit

—. Brief for Petitioner, Midwestern Instruments, Inc.

Assoc ciate Justices of the United States Supreme Court:

_ of the National Labor. Relations Board.

CITATION 10 OPINION BELOW ©

‘cision and order at Washington, D.C., February 25, 1958,

' printed as Appendix A hereto, infra, page la, 119 N.L.R.B.

No. 224. The opinion of the Court of Appeals, officially re-

To the Honorable, the Chief Justice of the United States and

Petitioner prays that a writ of certiorari issue to re-.

view a decree of the United States Court of Appeals for

"the Tenth Circuit, entered in the above entitled,case on.

. April 22, 1959, ordering enforcement of a decision and. order

The National: Labor Relations Board entered its de- -

“a

ported at 264 F. 2d 829, printed as Appendix B hereto,

infra, page 21a, was filed on March 6, 1959.

JURISDICTION

Petition for rehearing was denied on April 9, 1959

_ (Tr. 10). The decree of the Court of Appeals, printed as

Appendix ‘C hereto, infra, page 26a, was entered on April

.22, 1959. The jurisdiction of this Court is invoked under

28 U.S.C., § 1254 (1) providing for review of « cases in the

Courts of — by writ of certiorari. es

QUESTIONS PRESENTED

1. Did. the Circuit Court depart from’ the accepted

and usual course of judicial review, in a way probably .in

-. cenflict with Universal Camera Corp. v. N.h.R.B:, 340 USS.

474, by decreeing enforcement of a decision and order of

- the National Labor Relations Board for reinstatement of

a discharged employee, whose admitted: derelictions for

which he-wWas discharged.and refused’ reinstatement had —

- caused him to be reprimanded and threatened , with dis-

_ charge long before he became active in the union, and

long. before there was any organizational activity in the

plant; and, the record further showing that he was dis-

4 ‘satisfied with his job, was seeking other employment and.

by his own admissions, was: engaging in non-protected

. union activity, at the time, by soliciting union seins i

ships 7 hours of work? :

2. Is an employer. to. be held aecoutitable before the

courts for. casual and perfunctory inquiry -among employees

in the plant about union activity. while an organizational

drive is under way? os

. ’

. ; 2 |

4 STATUTE INVOLVED |

Thé Statute involved is the National Labor Relations -

_ Act, as amended, 61 Stat. 136, 29 'U. S. C. §°151, et seq.,

the pertinent portions of which are set forth in Appendix D -

to this petition, infra, page 28a. Co

> STATEMENT OF THE CASE

“On March 21, 1957, Petitioner, hereinafter : called the —

Company, dischargéd one B. C. Neuman who had been

hired into the plant: about December 15; 1955 (R. 43).!.

‘.- The Company’s management thought it had the right

to discharge an unsatisfactory.employee and to refuse him. .

reinstatement if the management had cause to be dissatis-

fied with his work (R. 18), and if that employee, in turn,

had shown himself to be dissatisfied with his job (R. 58,

60,63, 96). ai, eer ae

Sometime prior to his discharge Neuman. had been

criticized and reprimanded ‘by responsible supervision for

"too much talking and loafing (R. 50, 51, 62, 63, 88, 101).

He was known as a chronic loafer (R. 73, 74, 109). He ©

had gained that reputation by reason of being frequently

away from his work station; wandering about the plant,

“engaging ‘others in conversation, all in contravention. of -

Plant rules ¢R. 38,.71, 72, 73, 77, 93, 95, 98, 101).

He has -been guilty of incivilities involving defamation

of the Bible and disparaging remarks about a fellow em-,

: ployee’s. religious beliefs (R. 62); cursing his supervisor

(R. 48); false testimony in which he first denied, but later

~ admitted that he had been: soliciting . Union memberships

Os ¢

_ "Record references are to_the printed record.

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‘on Company time (R. 60). Rig testimony that he was en-

€>

Si.

| walked off (R. 33, 34).

“gaged in assisting with the testing of his~work, as a part

of his assigned duties, when fired (R. 46, 47): is impeached

on, the record (R- 14, 81). - as nA 03,5

The nioving ‘cause for his Aisne is is “updispisied

fact of recordy and as the Trial’ Examiner infers (R. 18), that

he was loafing (R. 73, 88, 89, 103, 108, 109, 112). °

Fhe ies part of the’ ani po complaint that ‘was

' " uphéld and ‘sustained against the Company by the decision

and ‘order of the National Labor Relations Board, -herein-

after referred to for convenience as the Board, involves

two. conversation’. between different supervisors and their

employees. =. fo the discharge. ee :

Petra Nz avarro; whom the Trial Roseman held: to. 4"

reliable, after she had manifested a: very partisan attitude, .

-beeause much the same .could :be ‘said for a Company wit. ~

Mess (R. 16, 11), says that Neuman came. to her work-

station the, days before she was fired and asked her. what

she thought about ‘the Union, She told him that it was up

to each individual; she was a Union member and the Com-.

. pany knew. it when she was hired. Immediately after” her

_ conversation with New , Irvine E. Lowe, her supervisor,

* came to her and -aske rat Neuman said to her, and she

told him the same thing she told Neuman. After persistent -

questioning by counsel, the witness was caused to say that .

‘Lowe asked her if she belonged to the Union; if Neuman.

tried to get her into the Union. Nothing else was said; Lowe

ae |

The other iil was between Charles L.. Cart,

a Jeadman, and Df'B. Piester, the Company’s Production

‘Superintendent. Cart approached Piester and.asked whether, :

‘in-view “of a ee reduction in force, the ey sould, :

S. :75

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. get -rid of the Union leaders, in connection with the lay-

_ off, if they were known. Piester replied that he definitely

~. would not foll&wisuch a “Spiggestion becauge it would put the

"+ Company in a bad position. He did not Say in what way

the Company" would be prejudiced. Piester asked Cart why

_’ Cart came to’him with any such suggestion; and why ‘did

‘ eae é bay :

| , he ‘want <fo. know the Company’s. position in the regard

7 ‘mentioned. Cart said he*was just curious: Piester was ther -

; ‘caused to observe that it sounded like Cart knew who the”

| — leaders were ang wanted to know if. he’ did: and Cart told v

him no. Cart asked Piester if Piester knew the identity

of the Union: leaders. ‘Pigster said “no, but if. he did’ the

Copipeay would not be a Rarty to Cart’s plan. | ¥

_ + Piester further, told Cart he had heard on the outside

of the plant, from ‘a neighbor, the description of a large -

+ fellow who. could be'a leader. of ; the Union, _not.a close

- description, but it fitted Bud: Neuman (R. 70).

Although his testimony does ‘not relate to any charge

that Had beep laid in-the complaint ¢R. 5-8), the Examiner,

“on the. hearing; and at the close of :the Company’s: case, -

' permitted Government counsel, over the objections of | op-

» Posing counsel (R. 117, 118); to use Georgés R. Shaull,

the Union’s Business Agent; as a ‘rebuttal «Witness. “He SS

related a conversation on March 19, with? M. E, Morrow, _ o

Chairman.:of the. Board for Midwestern Instruments, im,

in which he told Morrow the Union was organizing the

plant,and Morrow’ said it ‘wouldn’t do any good to or-

~ Sanize. They would never get a.union in that plant ‘(R. 116). -°

Inva ‘second conversation ‘hetween the witness. and Mor-

- Tow.after Neuman was fired, Morrow ‘said, in the course of

a heated ‘exchange between them, that he, rrow, would.

fre any 220”. ., that he wanted to (R: 117).

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_ On the other hand, the record shows that immediately

' following the first conversation between Shaull. and Mor-

row, Morrow called his supervisors and other key personnel -

together to advise them that he had learned of an attempt

‘being made, to organize,the plant and had. called the meet-

‘ing to’ enlighten those present of the ‘organizational activity

_ . and to instruct them that they were. not, to do anything

e “excep@# discourage any loafing or talking on the job (R. 69).

_ After. the bianeean' ‘and within due course the Honorable

Trial Examiner filed his Intermediate Report: in which he

concluded ‘that Neuman was terminated, not for. his loaf-

ing, but for his Union activities, and although the Company

may have had some cause for dissatisfaction with Neuman’s

work, such dissatisfaction apparently’ became intolerable

‘only: after he had joined the Union. Based thereon the Ex-

aminer*fecommended and the Board ordered Neuman be .

reinstated. Because of Piester’s conversation with Cart and

Lowe’s conversation with Miss Navarro, the Honorable

Trial Examiner concluded that there had beer! unlawful’

interference, restraint and coercion of the Company’s em-

ployees in the .exercise of rights guaranteed them under .

the Act (R. 18). The Board, by a pro forma decision and

order, adopted the Honorable Trial ee

- dations (R. 27). |

The Court of Appeals for the Tenth Circtit upon peti-

tien for enforcement, after answer by the Company, took the

view that the Court had before it only'‘a conventional en-

forcement proceedings and, in an opinion by the Honor-

able Justice Huxman, upheld enforcement of the Board's

__ decision and order:’ Appendix B, infra, page 21a. In. its

- _ opinion the Pdurt did not undertake to distinguish “the au-

thorities relied upon and the points raised and argued in

the Company’ s brief but concerned itself with the one

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proposition of whether or not there was substantial evi-

dence of a violation of the National Labor Relations Act,

without regard to a fair estimate of the worth of testimony

of witnesses in- keeping with the Court’s informed judg-

ment or without regard to the Court's responsibility for

_ seeing to it that the Board keeps within reasonable bounds.

" "> REASONS RELIED ON FOR ALLOWANCE

is Ofte war 7. _:

L .THE CIRCUIT COURT MISTAKES ITS’ POWERS OF

REVIEW.

The Court below, in its opinion, treats .of the subject

matter as.a conventional enforcement proceeding. The pro-

ceeding is legal’ and judicial, not conventional.

The view adopted by the Circuit Court gives to the

Trial Examiner’s Intermediate Report and the Board’s De-

_ cision and ‘Order the prestige duly accorded trials and

decrees in accordance with the judicial process that should -

| be vested only in Courts of ‘record. The hearing ‘before the

Trial Examiner is not a legal proceeding in any case of

the word and the Board's Decision and Order is not a judicial

As said by this Court in Universal Camera Corpora-

tion v. N. L. R. B, supra, it remains for Courts with the

Prestige of the Court of Appeals to determine what is a

fair estimate of the worth of testimony of ‘ witnesses “in

keeping with the Courts’ informed judgment on matters

within their “special competence or both ‘for purposés of

seeing to it that the Board keeps within reasonable bounds.”

The Court below holds to the view that its review is

limited to an inquiry whether an examination of the en-

tire record supports the cenclusion that the Board’s find-

_ ings are supported by substantial evidence, but it fails to.

remember that the responsibility for seeing to it that the

Board keeps within reasonable bounds “is not less real

because it is limited to.enforcing the requirement that

evidence appear substantial, when viewed on the record .

as a whole, by courts vested with the authority and en- —

joying the prestige of the Court of Appeals. ss Universal

aren Corporation, supra.

Accordingly, it naturally itiee that~ euniething more"

than the “judicial echo” of what the Examiner and the

Board have found to be in violation of the Act, is to be .

expected of the Circuit Courts in se nian with their

powers of review. ©

Il. DEPARTURE BY THE CIRCUIT COURT FROM. THE

‘ ACCEPTED AND USUAL COURT OF JUDICIAL

(CEEDINGS. CALLS FOR AN EXERCISE .OF THE SU-

PREME COURT'S POWER ple | SUPERVISION.

‘A careful review of cases 5 décided and reported in the

| Tenth Circuit, before and after amendments to the Act,

. discloses that the Court’ below in only three cases* has

Te to enforce a Board order in a discharge case. In

tweWe cases’ the Board’s, order for reinstatement of a -

ged employee has been enforced.

‘Aside from the.‘weight of .impressive numbers, the .

disturbing thing is that the Circuit Court seemingly remains

unimpressed by amendments enacted by Congress for cor-’

“rection of abuses. in connection with the Board's former en-

forcement powers.

2114 F. 2d 513, 140 F. 2d 423, 198 F. 2d 313.

: 3126 F. 2d 414, 131 F.2d 665, 138 F. 2d 410, 138 F. 2d 5.46, 148

FP. 2d° 168, 154°F. 2d 570, 154 F. 2d 719, 149 F. 2d 169, —

2d 50, 192 F. 2d am, 204 F, 2d 579, 215 F. 2d 49.

To enforce the Board’s Decision and Order in the in- |

~ stant case will be to ignore the clear aims and purposes.

. of Section 10(c) of the Act, i as amended, 29 U. S.-C. 166(¢c),~

and to restrain the Company in the exercise of the free

speech guaranteed by Section 8(c) of the Act, as amended,

2 U.S. C. 158(c). See Appendix D, infra, page 28a. Neu-

man’s discharge and tan» s refusal to reinstate him

were for cause. The

based on “the preponderance of the testimony. ” All views,

by” whomsoever ‘expressed, amounted to protected —

Also,. the provision made in Section 10(c), as emendéd.

according to the majority. report of the House Labor Com-

mittee, “is intended to put an end to the belief, now widely

held and certainly justified by the Board’s decisions, that

_ engaging in union activities carries with it a license to

Joaf, wander about the plants, refuse to work, waste time,

break rules, and engage in incivilities and other disorders -

.and misconduct.” The Board would be forbidden, the House

Report adds, from. “inferring” an improper motive when

the evidence. showed cause for discipline or discharge. ;

There is no entatdlihe ollie seins on the.

whole record for enforcing the Board’s Order. But the ré-

viewing court refused to weigh the conflict’ there is in the

evidence by reason of the unreliable testimony that was

given by the witness, Miss Navarro, and the’ discharged:

employee, Neuman. It would have been more. in order

and in keeping with the direction of the Court in the

Universal Camera Corporation case, for the Circuit Court

to] have determined: “what isa fair—estimate-: ‘of the worth ~

of testimony of witnesses.” To say, as the Court does in

the opinion, that “there: is evidence from which the Ex-

, miner and the Board could have found that Neuman

.was discharged for valid reasons and not in violation of

s Decision and {Order is not —

__.. the, Act,-rather-than-as found by the Board that he was

. discharged in violation of the Act,” is to deny the Company

the advantage. of a decision “in keeping with the Courts’ in-

formed judgment. on matters within their special compe-

_, tence or both for purposes of seeing to it that the Board

| keeps within reasonable bounds.”’.

Additionally, it is not fomsieait that there is some evi-

dence upon which to base a finding thet the Act was vio

lated, else Congress did “a tutile thing by making changes

in the Act which now require the Board’s findings, that an

unfair labor fractice has been committed, are to be based on

“the cnepomemee of the testimony,” rather than all “the

testimony.” : | Dx

iit. “THE CIRCUIT COURT'S pectsion 3s IN CONFLICT

WITH DECISIONS OF THE COURTS OF OTHER CIR.

CUTS INVOLVING BOARD REVIEW. .

Tied Petitioner refused to vehentaiity comply with the

Board’s Decision and order upon advice of counsel who saw

in the Intermediate Repent the same “shocking injustices,”

“asinine reasoning,” and “findings that strain the credu-

lity,” condemned in Wilson & Company v. N. L. R: B., 126

F. 2d 114117 (C.A. 7); Wyman-Gordon Company v N. 4

R. B., 153 F. 2d.480, 483, et seq (C.A. 7); N. L. B. ¢.

Columbia Products Corporation, 141 F.2d 687, 688 (C.A. -

2); N. L. R. B. v. Union Pacific Stages, Inc., 99 F. 2d 153

(C.A. ve F :

_ It was further ‘argued to the Court below that sub-

' . stantial evidence is something more than a modicum or

. a scintilla of evidence and an order of the Board that is .

rooted, in imponderables, surmise, guess, speculation or

suspicion of ulterior motives does not meet the test of

———

a Oe eee — | .? 4

substantial evidence. N. ry R. B. v. Shen-Valley Meat

Packers, 211 F. 2d 289°(C.A. 4); N. L. R. B. y. Union

Pacific Stages, Inc., supra. , .

The ‘opinion below, grounded on ‘an Examiner's Re-

port, Appendix A, infra, page la, which turns, in part,

to explain Neuman’s discharge (R. 18) warranted his re

" instatement, is not in keeping with what was said by the

Court in N. L. R. B. v. T. A. McGahey, et a 233 F. 2d 406 |

(C.A. 5), in which the Court held: =)

an proceeding under the National Labor Relations

Act, employer does not have ‘duty of sustaining burden

of giving sufficient explanation for discharge ‘of a par-.

| forbidden motives of interference in employee statutory '

‘Tights, National Labor Relations Act, 10(c) as amended ji

by. Labor Management Relations Act, 7, 29 U.S.C.A.

160(c).”. “eh ;

Also, the opinion by’ the Circuit Court Ykolds that al.

though the evidence with respect to the‘ violation of Sec-

tion 8(a)(1) -of the Aet is rather meager (not substan-

tial), the conduct of Piester and Lowe could well intend °

to influence the employees and interfere with the free ex-

ercise of their organizational rights under the Act. This

Part of the opinion clearly is in conflict with decisions by

other Courts of Appeal. See N. L. R. B. v.-England Bros.

Ins., 201 F. 2d 395 (C.A. 1); Sax v._N. L. R. B., 171 F.- 2d

768 (C.A. 7); N. L. R. B. y. Mississippi Products, Inc.,

213 F. 2d 670 (C.A. 5); N. L. R. B. v. J. E. McCatron, et al, -

216 F. 2d 212 (C.A. 9); ¥. L. R. B. v. Associated Dry Goods

Corp., 209 F. 2d 593 (€.A. 2); N. L. R. B. v. W. T. Grant

Company, 208 F. 2d. 710 (CA. 4), | 7

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‘The Court below, with what appears to be studied in- .

' difference and a disposition to ignore the authorities cited .

_fand relied upon by the Company in its brief, does not

undertake to discuss, much less distinguish, those cases

herein cited. The result will be uneven justice if employers —

in thig jurisdiction are treated differently by the Court _

upon which they are compelled to rely to keep the Board

within reasonable bounds, and employers in other juris .

‘dictions are held to a different course of conduct by reason..

of a difference of opinion between Circuit — in con.

nection with their powers of review.

Seeman the Docteiain below has created important onl

unwarranted exceptions to the basic’ principles embodied _

in the Act and in this Court's opinion, and is in direct con- -

flict with decisions of other Courts of —_— review by —

this Court . essential. :

o For the foregoing reasons, this petition for a writ of

certiorari to the United States Court of Appeals for ‘the

Tenth eee should be granted.

_ Respectfully submitted, /

FARMER, WOOLSEY, FLIPPO & BAILEY

By R. J. Woo.ssy. '

ec Bah ite, National Bank of Tulsa Building

at ne _ Tulsa, Oklahoma; |

we Os Attorneys for Reipentont.

COFFEY & COFFEY

By A. Lanciey Corrry

311 McCreery Building,

a3 Sand Springs, Oklahoma,

Oétober, 1958 Of Counsel. ~

; .

Ya 5 ‘

> .

e Plies &

- ’

la . “. *

: APPENDIX. A

DECISION AND ORDER

On August 16, 1957, Trial Examiner Robert E. Mullin

issued his Intermediate. Report in the above-entitled pro-

ceeding, finding that Respondent had ,engaged in and was

engaging in certain unfair labor practices and recommend-

"ing that it cease and desist therefrom and take: certain

- affirmative action, as wet forth in the copy of the Interme-

‘ . te Report attached hereto. The Trial Examiner. also found

_ ceptions to the Intermediate

and, a |_a supporting brief. -.

The General Counsel. filed no exceptions.

Pursuant to the provisions of Section 3(b) of the Act,

the: ‘Board has delegated its powers in connection with this

case to. a three-member. -Fpnel.

The Board has reviewed the ce of the Trial Ex-

aminer made at the hearing and finds that no prejudicial _

error was committed. The rulings are hereby affirmed.

Board has considered the Intermediate Report, the ex: . |

tions.and brief, and the entire record in the’ case, and

by adopts the findings, conclusions and recommenda. .

of - Trial Examiner.’

ORDER

Upon ‘the entire record in the case’ and pursuant to’

! Respondent argues that the Trial Examiner should not have credited

the testimony of Petra Navarro in view of. his findings that at~

times sie “manifested a very partisan attitude,” and that certain of

her testimony was inconsistent with the testimony of Neuman, the

_ dischargee. We disagree. In our view, the testimony of Navarro was

_ of belief.

call

. 7 ‘

Sa Se

Section 40(@) of the ‘National ‘Labor Relations Act, as

amended, the. National Labor Relations Board hereby orders

that . Midwestern Instruments, Inc., Tulsa, Oklahoma, its

officers, agents, successors and assigns, shall:

1. Cease and desist from:

, “(a) Discouraging membership © in Invernaitingl *

Brotherhood of Electrical. Workers, Local . Union No.

584,. AFL-CIO, or any other labor organization of its

employees, by discharging or refusing to reinstate any of

its employees or by discriminating in any other m

in regard to‘their emplo

“(b) Interrogating any employees, in a manner

: constituting interference, restraint, or coercion or vio-

‘lation of Section 8(a)(1) of the. Aet, as to their at-

- tendance at union meetings or as to. whether they: have .

been solicited to join a‘ union; ~ it. '

“(c) In any other manner interfering . with, re- -

straining, or.coercing its émployees in the exercise of

’ the right to self-organization, ‘to form labor organiza- —

‘ tions,-to’join or assist the International Brotherhood

of Electrical Workers, Local Union No. 584; AFL-CIO,

or any other labor. organizatign, to bargain collectively

through representatives of their own choosing, and

‘to engage in concerted, activities for the purpose of

collective bargaining or other mutual aid or protec-

tion, or to refrain from any or all of such activities, —

except to the extent that such right may be affected .

by an agreement requiring membership in a labor or-

ganization as a condition of employment, as author-

ized in Section 8(a)(3) of the Act.”

2. Take the following affirmative action, which ‘the

Board finds will effectuate the policies of the Act:

* (a). Offer B, C. Neuman immediate and full re-

— to his former ar-Eihatentially equivalent.

* ‘ ‘x ; Sas ”

position without prejudice to his seniogity or other

rights and privileges and\make him whole, in the man-.

ner set forth in the section of the Intermediate Report

entitled ‘The remedy’ for any loss of pay he may have.

suffered by reason of the Respondent’s discrimination; —

_. -“(b) Preserve and make available to the Board, or

- its agents upon request fér. examination ‘and: copying, 4

all payroll records, social-security: payment. records,

timecards, personnel records and reports, and all other.

records necessary to ‘analyze the amount. of back pay er

due; | a, eta

' “(c) Post at its plant in Tulsa, Oklahoma, copies of _ - me

* the notice attached to the Intermediate. Report and

marked -Appendix.? Copies of said notice, to be ‘fur-

. ished by the Regional .Director for the, Sixteenth. Re-

. gion, shall, after being duly signed by the Respondent,

‘be posted by the Respondent immediately upon receipt

thereof and be maintained by it for 60 consecutive days

' thereafter in conspicuous places including‘ all places

where notices are customarily posted. Reasonable steps

': shall be taken by the Respondent to insure that said :

- notices are hot altered, defaced, or covered by any i;

. other material; — aus ape i hare

ae ena ‘

' “(d) Notify the Regional Diréctor for the Sixteenth

Region in writing, within 10 days of the day of this

Order what steps the Respondent has taken Jo comply

-herewith.” - : fiat: .

It is further’ ordered that subsection ‘(b) of para- ,

_ graph 8 of the complaint be dismissed.

alk ; > a

?This notice is amended. by substituting for the words, “The Rec- © | ~*-

ommendations of a Trial Examiner” the words “A Decision and ,

Order.” In the event that this Order is enforced by a decree of a -

United States Court of Appeals, there shall be substituted fof the = +

words “Pursuant to a Decision and Order” the words “Puréudnt to

__ -a decree of the United States Court of Appeals, enforcing an der.”

. This notice is further amended by inserting the words “in a ‘manner

*. constituting interference, restraint, or. coercion in violation of Sec-

. J ion 8 a)(1) of the Act” after the words “We will not interrogate

‘ Ouremployees.”

4a i

“Dated at Washington, D. C., february’ 95, 1958.’

Boyp Lessee Chairman :

Puirie Ray Ropcenil® Member

STEPHEN S. Bean, Member

; (Seal) Lane ie ‘National Labor Relations Boardy oe

2 :

INTERMEDIATE REPORT”

‘STATEMENT OF THE CASE.

- This proceeding, brought under Section 10(b) of the

Labor Management Relations Act, 1947, 61 Stat. 136 (herein

.. called the Act), was heard in Tulsa, Oklahoma, on June 5

and 6,.1957, pursuant’yto due notice to all’ parties. The

‘ Complaint, issued on May 16, 1957, by the General: Counsel _

of the National Labor Relations Board, and based ‘on charges —

duly filed and served, alleged that the Respondent had en-

gaged’ in unfair labor practices, prescribed by Section 8(a)

(1) and (3) of the Act. In its answer, duly filed, the Re-

spondent conceded certain. facts with respect to its buti-

ess operations,. but denied. the commission of the alleged

You labor practices.

All parties. were representeg at the hearing and were. _

* afforded full opportunity to be heard, to examine and cross

examine witnesses, to introduce relevant evidence, to argue

. orally. and to file briefs. At the conclusion of the hearing

a motion by the Respondent to dismiss the complaint was _

iol . # taken ‘under advisement. It is disposed of as appears here-

~ « inafter in this Report. On July 9, an able brief was received

from the General Counsel and on July 10, an unusually ©

, thorough. and comprehensive brief was submitted by coun-

* sel for the — . he See oe a

. a

¢ : ° ot ; ‘ ' ‘.

. Upon the cuitail cain in the case and from my ‘obser-

alton of the witnesses, I make the following:

FINDINGS OF FACT

I. 5 THE BUSINESS OF THE RESPONDENT.

} The Respondent, a Delaware « corpor Hon, ith it its prin-.

cipal offices and plant in Tulsa, Oklahoma, is engaged at

that location in the manufacture, sale, and distribution of

electronic and electro-mechanical instruments. In the.course

and conduct of its operations, it annually ships in inter-

state commerce more than $50,000 worth: of its ‘products to

- points ou ide the State .of Oklahoma. -In’ addition, during

the 12-month’ period immediately preceding the hearing, .

the Respond nt furnished to the United States Government,

pursuant to various contracts, electronic ‘and electro-

mechanical i truments and parts and supplies valued in

excess of $100 000, said. products being directly related to

- the ‘National efense. The Respondent conceded that, ‘for:

_-the purposes ofj this proceeding, it is enga in commerce |

" withiri the meaning of the Act. Upon the Tesi that

is likewise my conclusion and I so find.

PS THE LABOR ORGANIZATION INVOLVED.,

The tndeeiattiaied Brotherhood of Electrical Wikies

-Local Union No. 584, AFL-CIO, herein called the Union, is

a alehor organization within the waren of the Act.

IH. ‘THE UNFAIR LABOR PRACTICES,

A. Sencmiiie OF EVENTS.

" Early in March 1957, an attempt to organize the em-

ployees at the Respondent's ‘plant was initiated. On. about

March 1, B. C. Neuman, an ‘employee in the electrical as-

' sembly shop, contacted George R. Shauyll, business manager '

~ ee

for the Union, and the latter sarangi for an organizational

" mee of the Respondent’ s employees at the union hall.

This eeting, held on the evening of March 8, was attended

by Ne amd: seven of his co-workers, all of whom.

signed union authorization cards that night. The following

day Neuman persuaded 16 other fellow employees to sign

cards and in the week thereafter he also induced several

other employees at the plant to do likewise.’ Qn March.

18, the Union held another’ meeting which approximately

32 employees attended.

On the following. ‘morning, Glee David, foreman of the

electrical assembly shop and,.as such, Neuman’ s immediate

superior, initiated 4 conversation with Neuman during the

_equrse of which he told’ the employee that he jad heard

rumors of an attempt to organize a union and that he would:

suggest th fore the employees considered an anything like

that it would ba well for them to think of the libexal pay

_ raises the Company had granted in the | He added that

at the moment the’ Company was not m g any. money

and could not afford to give any further increases.? That’

same morning, while on a tour of the plant, Mr. .D. B.

Piester, production superintendent, entered the stockroom

“and engaged, the two employees ‘tHtre, in. conversation. Ac-’

cording to Richard B. Claver and James K: Nave, the two

storeroom men on duty,. Piester asked them if they had

been to the union meeting the night before. When both

answered. in the affirmative Piestér proceeded to discuss the

subject of unions in general. In so doing he stated that he -

had once been a unign member himself and that he felt

that if a union organized the plant there were some privi-

oe, leges the employees might lose and others they might gain.

~ 1 At the hearing Neuman conceded that he cane some of these -

signatures on Company time.

2The foregoing finding is based on Neuman’s testimony which Mr.

Ove did not deny while on the stand.

ri ; as |

& . ; m -

_ He suggested that the men think about the matter carefully

and be sure they -did the right thing. During’ the course of

the discussion Nave declared to the superintendent, “You

can’t blame me for attending a union meeting.” According

to the employee, Piester then assured him with the remark,

“No, that’s apprivilege that you have . . . I don’t blame you

~ at ap! I just heard that you attended a union meeting.¥°

ss At about this same: time Chicted Cart, a leadman in

the electrical . assembly ° shop,‘ went to Piester to-suggest -

that in the event of a layoff the Company could rid itself

of the union adherents by the simple expedient of including

_ the leaders in any reduction. Cart testified that the produc-

tion superintendent- immediately negdtived this proposal

on the ground that to follow it would involve the Company

in serious difficulties. In their subsequent conversation, how-

ever, Piester asked if, in view of his suggestion,-Cart knew

' who the union leaders were. The latter stated that he did

not. Then, according to Cart, Piester related the description

-of an employee whom a neighbor had told him was the

union leader. Cart testified that the description fitted Neu-

man. On March 19, Shaull telephoned Mr. .M. E. Morrow, .

chairman of the board of directors for the Respondent, to

tell him that the Union had begun an organizational cam-

paigh among his ‘employees. According to Shaull, Mr. Mor-

row told him “it wouldn’t do us no good to organize .. .

_we would never get a union in that plant.”® Petra Navarro,

an eniployee in the coil winding department, testified that: .

,; just before her shift began work on March 20, Neuman

‘came to her work place and engaged in a short conversation —

*The foregoing findings are based on ‘the credited testimony of

Claver and Nave which was not contradicted or denied by Mr. Piester.

‘The parties stipulated that, Cart is not a supervisor within the

méaning of the Act.

*Shaull’s testimony as to this conversation was neither contradicted

nor denied. . °

ii oe

about the Union. According to Navarro, immediately after -

‘Neuman left, Irvin E. Lowe, her supervisor,* came to her

Position to ask whether Neuman had discussed the Union.

Lowe denied that he ever had such a conversation with :

her. This conflict is resolved infra.

«On the morning of March 21, Neuman ne

That afternoon Shaull telephoned M. E. Morrow to protest

-the dismissal.. There followed a heated exchange between

the two in which Shaull admi y used profanity. It was —

undenied, however, that during the course of this conver-

sation Mr. Morrow declared. that he would “fire any...............

cilities deals: Saupe . he wanted to .. .-that vp eeetet et

- union was ever going to organize that plant... they. had

tried it before and didn’t have any success” iil that “he-

would come out and clean out the whole union .. .’”

B. NEUMAN’S DISCHARGE.

This. employee was hired in Dec®mber 1955, for work

asa wireman in the: electrical assembly shop, where he j

was engaged, during most: of his employment in making

oscillograph harnesses. 8 He was terminated on the morning |

of March 21, 1957: G. R. Morrow, president of the: Respon-

dent. and son of M. E. Morrow, testified that he ordered the .

discharge after he had observed Neuman ‘for 15 minutes

during which time the employee. did nothing but loaf at

the harness tester’s bench. Neuman conceded that’ he had

$ Although Lowe is. referred to as a leadman in certain portions of .

the transcript, he himself testified that he was: a- “supervisor fore-

man.” The Respondent conceded that he was a saperenes within the °

meaning of the Act.

.1These quotations are- from Shaul!’ s: “uncontradicted . testimony.

*These are electtonic instruments used to record and log ‘data in

_ many different types of dynamic analysis. As a device for recording

‘abnormal strains they are used in-cgnjunccion with gauges and other

| imstruments which check on the performance of aircraft, jet en-

_ gines —_ —* missiles.. :

a %. , ,

‘ . es J wt % —_—_—

be . 5

. 9a

' spent about 10 minutes there. and {upon lesirning that the

harnéss was in working order, started back to his bench to

begin another job. At that moment Foreman David accosted

him to announce ‘ you are slowing up production and that’s

a good enough -reason. to let yqu go.’”® Neuman asked if

that meduit he was being fired and the foreman answered in‘

_ the affirmative. The employee then left tke the. plant. me

At Be ‘time it was shop practice for the wireman, upon

completing an oscillograph harness, the assembly of which

would réquire from 2 to 3 days, to bring it to an employee

a nearby bench who was designated as harness tester. The —

latter then performed certain tests on the instrument which

disclosed whether it had been correctly assembled. Nor- .

mally, the tester could determine within 5 to 10 minutes _~

whether ‘a harness was in working order. In the event he |

found defects the hafness was returned for correction to

the wireman who had assembled it. According to Neuman, it

was part of his duties to assist: the tester during the latter’s

‘examination of the completed harness. His testimony in this

regard, however, was not convincing and it was not cor-.

roborated by any other witness. It was denied by Foreman

David, who testified that a wireman had no such responsi- _

bility, and Walter L. Wood, the harness tester, who stated |

sthat it was not necessary_ that ‘the wireman assist him in

any way while he was checking a harness. On the other

" hand,-Wood also testified’ that Neuman and the other wire-

men frequently stayed at.the testing bench while he ex- |

amined their work, and that in so.doing, they waited five.

_and sometimes. ‘ten minutes during which they did nothing

but watch and talk with him. He further testified that no

supervisor had ever complained regarding this practice of

_ the wiremen. He also stated that on the morning of March 21,

* The quotation is from Neuman’s testimony. It was not contradicned a

» , Rordenied by David. . :

10a

Neuman was at his bench ‘for 10 to 15 minutes, that during

. that time Mr. G. R. Morrow walked by andl withiri 2 to 3

minutes thereafter Neuman returned to his own bench.

_ Mr. G.R. Morrow testified that.on March 21, he re-

turfled to the plant after being absent for 2 weeks on a

business trip and immediately set out ‘on a routine tour of

- the departments to check on their operations. Upon entering .

_ the large room which housed the electrical assembly shop

under Foreman David and the coil winding. department

under Foreman Irvin E. Lowe, he noticed an employee

whom he did not know who was standing idly at the tester’

~ bench. Upon inquiring of Lowe, the foreman identified the

employee as Neuman, and described him as “one of the

chronic loafers in the electric shop.” According to Mr.’ Mor.

row, he remained wi LBwe for a short while. and then.

after having observed ‘Neumansdo nothing for 15 minutes.

he. went directly to the office of Superintendent Piester where

he ordered that Neuman be discharged immediately. Piester

_ remarked that he had had trouble with Neuman before and

then instructed David, who was present in the office, to notify

Neuman of his dismissal. Mr. Morrow conceded that he did

not ask Piester or anyone else to review Neuman’s work

record and stated that his.decision was based solely on his

own observation of Neuman that morning.

. There was much tontimony about Neuman’s employ-

ment history with the Respondent. Superintendent .Piester .

testified that on three different oecasions during the pre —

: ceding year he had directed that Neuman be reprimanded

| or talking on the: job. Foreman David testified that in July ©

or August, 1956, he told this employee to improve the quality

of his work and quit talking. About 2 months later he repri-

manded Neuman: again for the same reason and told him

that. unless there was an improvement he would be termi- —

nated. He further testified that in December it had been —

lla ?

examination, however, David conceded that this last repri-

mand was directed not to Neuman alone but to’ the whole

shop and that on that occasion he had had to admonish all

_of his employees as g group for their tardiness in reporting

for work and in returning from rest periods. Accesding to

David, at this fime, “most everybody was getting lax .

Mr. Piester and David conceded that they had never dis-

cussed any of Neuman's deficiencies with G. R. anew

_ Prior to his discharge.

tenis is don sume ettdnges Yet David! wes satistek

with Neuman’s work record. In January, 1957, the employee

was eligible for his annual vacation. However, he wanted to

take- it during the following summer. Since the Company:

rules provided that in the event of a layoff no vacation pay

would be allowed, Neuman asked David if there was any

: reason why he could not take his vacation in July rather

a than during the winter. David told Neuman there was no

| Teagon to expect that he would be laid off and that, there-

_ fore, he could plan on taking his vacation in July." Neuman

‘conceded that on two occasions in 1956 David had repri-

mended him for ‘‘elhing and hilling tmee.“" He also testi- :

One other witness for the Respondent should be mentioned. This .

was Berl R. Hall, foreman of the servo shop, who testified that

he had seen Neuman in his department several times in February

and March and that on each occasion Neuman was talking to Hall's

employees during working hours. Hall indicated that he considered

these visits wnautoriaed ahd» dergiction on Neumal's . On

the other hand, he conceded that he never Nev-

oe ak iae 0 ae Gn as be aie shale oe oe

ter to Neuman’s foreman, or to any of his superiors in manage-.

ment. In view of these concessions it is obvious that Mr. G. R.

Motrow had no knowledge of any such incidents at the time: he

ordered Neuman’s discharge.

"The foregoing finditig is based on the mutually corroborative tes-

timony of Neuman and David. ;

The. quotation is from Neuman’s testimony.

. er

necessary to reprimand Neuman a third time. On cross:

yar

= e “12a eae

‘ fied, and in: this. -re his testiniony was undenied, that

in-about December 1957; David had complimented. him on

his work and that’ in two other instances, once in January

1957, and on another occasion in February, Charles Cart,

his leadman, told him that he was the “fastest and best man

he had.” Late

‘The General Counsel ielies on another ineiliant to sub

‘stantiate the allegation that Neuman was discriminatorily

terminated. Petra Nhyarro testified that on the morning of

March 21, Mr. G. R. Morrow and Foreman: Lowe were |

standing within a short distance of her work bench and

that she saw Lowe point across the room at Neuman and

declare to the plant president “There is the boy that “caused ..

the whole deal.”” Both Morrow and Lowe denied that any

' - such remark was: uttered. They conceded that they had

‘had a conversation at the time and place fixed by. Navarro

and that duning the course of.their discussion Lowe had,

in fact, pointed at’ Neuman. According to the plant presi-

dent -and the foreman, however, their conversation was

concerned solely with Neuman’s loafing which Mr. M

row. had just noted. The Respondent.-vigorously attacks

Navarro’s credibility. It is-true that sokge portions of her

testimony were ‘contradicted even by Neuman" and that

at times while on the stand she manifested a very partisan ~

attitude. However, much the same could be said for some

of Lowe’s testimony. It is the heavy responsibility of the

Trial Examiner to resolve sugh conflicts in the record to

the best of this ability. At times he must rely to some extent

on his reaction to the manner in which the testimony was -

13 The « quotation is from Neuman’s | testimony. ~

;'4For example; Navarro testifed that “after the conversation in ques

tion she saw somebody other than David come out on the work

‘ floor to oe gegen into the foreman’s office. Neuman, how-

ever, testified tha it was David himself who came to his ‘vom

bench and. asked that he come into the shop office.

given and the comparative demeanor ofthe witnesses while

on the stand. That is largely the situation here, and on that

basis, as to this incident, it is my conclusion that Navarro’s

- testimony is the more reliable and that Lowe did point out

_ Neuman to the plant president with the remark that he

was’ the one who “caused the whole deal. ” Moreover, be- |

cause of this conéJusion as to her credibility in this connec-

tion, I also find that, as Navarro also testified, on March 20

_ Lowe questioned her as to whether Neuman had d pought to

get her into the Union. . 8

The summary unishment meted .out to Neurhan was

admittedly un by all standards -at the Respondent’s

Gant. Piester ified ‘that he could only recall two in-

stances in which he had ordered a man terminated for loafing

. during the approximately 3 years that he had been super-

intendent. In both cases the employee had just been hired

and was still on probation. David testified that he had never

discharged anyone for loafing or talking too much. and,

furthermore, that he knew of no employee who had ix

dismissed for that reason: Mr. G. R. Morrow conceded that

Neuman was the first employee whose discharge he had

_ ver recommended for: loafing. He likewise testified that

“It has not been customary. practice to fire people at Mid- }

western at all.”

The Respondent was, indeed, free, as its fia pre

at the hearing and in their brief, to fire Neuman for a good

reason, a bad reason, or no reason, so .long as the reason

was not, in fact, the employee’ s union activities. At the

same time it is also pertinent to recall a soni@what recent

observation of the Court of Appeals for the Eighth Circuit ee

| that under the Act here involved “a justifiable ground for -

| dismissal is no defense if it is a pretext ‘and not the moving

cause,” N. L, R. B. v. Solo Cup Company, 237 F. 2d 521,

. =

pointed out Neuman to

l4a

525 (C.A. 8). Mr. G. R. Morrow denied that he had any

knowledge of Neuman’s union activities. However, he ad-

mitted having heard, some two weeks earlier, that the

Union was trying to: orgat the plant, and Lowe, who

the “cause of. the whole.

deal,” had interrogated Navarro about Neuman’s union

activities. the day before. For this reason it is my conclu-

sion, and I find, that Mr. Morrow did know about Neuman's

interest in the union prior to ordering that the employee be

discharged. Moreover, in view of this knowledge on Mr.

Morrow’ 's part, Neuman’s prominence in the organizing

campaign, the abruptness of his discharge, the unconvine-

ing reasons: advariced to explain it, and Mr. M. E. Morrow's

comment subsequent to the dismissal ee TR

_ union was ever going to organize that plant,” it is my con-

clusion that Neuman was terminated, not for his loafing,

but for his union activities. Although Neuman clearly had

no more than an average employment récord and the Re

spondent may have had some cause for dissatisfaction with

his work, as the Court of Aap for the Third Circuit pb-

served in a similar case, “it apparently became intolerable

only after he had joined the uniof.” N. L. R. B. v. Electric

City Dyeing Co., 178 F. 2d 980, 98: (C.A. 3). For. the rea-

sons set out above, I find that by.its discharge of Neuman

the Respondent violated Section = oe) (3) of the Act.

C. ConcLusions AS TO THE ALLEGATIONS or INTERFER-

ENCE, RESTRAINT, —. Coane. °

I further find, on the foregoing tenia, that the haiiee :

’ dent violated Section 8(a) (1) of the Act by.the conduct (1)

of Superintendent Piester in questioning Cartas to the

- identity of the union leader at the plant (Atlas Boat Manw-

facturing Co., Inc., 116 NLRB 565, 572-573; Hammond Brick

_Company, 111 NLRB 6; St. Louis Car Company, 108 NLRB

§ lia

1523; Bowling Green Manufacturing Company, 108 NLRB

1608), and (2) of Foreman Lowe in questioning Navarro

as to whether Neuman had sought to persuade jher to join

. the union. (Idem). ‘On the other hand, I do not find any |

:. coercive element in the testimony as to Piester’s conversa-

tion with Nave and. Claver. As the record reflects this dis-

_ cussion, although Piester asked them whether they had

attended the .union meeting the night before, and in his

discussion of the relative merits of organization suggested

that the employees might lose some benefits, he also con-

ceded that the employees might gain other privileges. This

type of speech is plainly protected ‘by Section 8(c). Cf.

Lanthier Machine Works, 116 NLRB 1029, 1037; Nacona

“i ‘Boat Company, 116 NLRB 1860, 1865-1866. So, too, was the.

conversation which David had with \Neuman in which he ~

suggested that the employee should ‘carefully weigh the.

.- Merits of a union and consider all that \the Company had

‘ done for its employees. These. last two. incidents involving

Piester and David were’ alleged by the General Counsel's’

complaint to have involved violations of Section 8(a)(1).

I disagree and will recommend that Section 8{b) of the

complaint, which contains this allegation, be —

IV. THE EFFECT OF THE UNFAIR LABOR: PRA CES

‘UPON COMMERCE. . \

» The activities of the ities set forth in’Section

above, ke in connection with the operations -of the *

ndent described in Section 8, above, have a close, in-

timate, and substantial relation trade, traffic and: com-

‘merce among the several State#and tend to lead to labor

' disputes burdening and chetrocting « commerce and the free

flow thereof.

V.. THE REMEDY.

Having found that the iceiadees has lcosvane and

i * 16a

is engaging, in unfair labor practices, I will recommend

- that it cease and desist therefrom and take certain affirma-

tive action designed to effectuate the policies of the Act.

Having found that: the Respondent Aiscriminatorily dis-

charged 'B..C. Neuman on March 21, 1957, I will:recommend

‘that the, Respondent offer him immediate and full reinstate.

ment without prejudice to his seniority or other. rights and

privileges, and ‘make him whole for. any loss of earnings

that he may have suffered by payment to him of a sum of

money equal to that which ke normally would hae earned .

from the aforesaid date of his discharge to the date of the .

Respondent's offer of reinstatement, less net earnings during

said period. The back pay provided for herein shall be com-

puted in accordance with the formula stated in F. W: csi }

worth Company, 90 NLRB 289.

I will also recommend that’ the Nespenians,. upon rea-

sonable request, make available to the Board and its agents,

all payroll and other records pertinent to an analysis of

the amount ‘due as “back pay.

a Since I have found that the Respondent, by various

._acts, interfered with, restrained, and coerced its employees

ticularly because the discriminatory discharge found he

in goes “to the very heart of the Act” (N.L:R.B. v. Entwistle-

Manufacturing .Co., 120 F. 2d 532,. 536° (C.A. 4), and indi-

_eates a purpose to defeat the self-organization of its em-

| oy tes Sorin car

mitted are related, to other unfair labor practices proscribed

and that the danger of their commission in the future is to

be anticipated from Respondent’s conduct in the past. Ac

cordingly, in order to make effective the. interdependent

_ guarantees of Section 7 and thus effectuate the policies of

‘the Act, . will recommend that the. Respondent cease and de-

G ‘ ' 17a

‘sist from in any manner i ringing ‘upon the: right of em-

ployees guaranteed by the \Act.. May. Oaeereaent Stores v.

N. L. R. B.; 326 U. S. 376, 392.

Upon ‘the basis of the foregoing iedinainii of fact and upon: .

‘the entire record i in the case, I make the following:

CONCLUSION OF LAW =

1. The Respondent is, and at all times relevant herein,

was, engaged in commerce within the meaning of. Section

ae (6) and (7) of the Act. :

rf.

2. ‘The Union is a labor eamiitainiiinds within the ‘mean-

ae of Section 2 (5) ‘of the Act.

3. By discritninating in vomed to ‘the hire and tenure.

of employment of B. C. Neuman, thereby ‘discouraging

/ membership in the Union, the Respon nt, has engaged,

and is engaging, in unfair labor practices within vagal mean-

ing of Section B(a)(3) of the Act.

4. By interfering ‘with, restraining, and coercing its

ployees in the exercise of the rights guaranteed in Sec-

- tion 7 of the Act, Respondent had engaged, and is engag-

~ing; in-unfair. labor practices within the — of See

tion 8(a)(1) of the Act. :

. . -5. The aforesaid ie labor ie are | fair labor

Practices affecting commerce within the meaning of Sec--

ton 2-(6) and (7) of the Act.

ae The Respondent did not interfere, restrain or co-

erce its employees in the manner alleged in subsection (b) .

of ‘paragraph 8 of the complaint. : °

- or any other labor-orga

criminating in any other manner in regard to their em-

RECOMMENDATIONS |

i? Upon the basis of ‘Oe foregoing findirigs ‘of dont and

conclusions of law and upon the entire. record of the case,

I recotamend. that the Respondent, its officer's, agenits, suc-

cessors, and assigns, shall:

. o

1. Cease andes from:

(a) Discouraging shaders in :iieciainaiiaal Brother-

hood of Electrical wine Leal Union Noe. 584, AFL-CIO,

ation of ‘its. employees or by dis-

ploythent;

(b) ‘intetvogsting any emplojeds as ‘40 their attendance

_.at union meetings or as to whether they have been solicited

” join a union;

“(c) In any other manner interfering with restraining,

or coercing its employees i in the exercise ‘of the right to self-

organization, to form ‘labor organi: ‘ttions, to join or assist

the International Brotherhood. of Ei. :trical Workers,. Local

Union No. 584, ‘AFL-CIO, or-any ot.er jabor organization,

to bargain collectively through representatives of. their owt

choosing, and to engage in concerted a¢tivities. for the pur-

pose. of collective bargaining or other mutual aid or pro-

tection, or ‘to ‘refrain-from any or all-of suc activities’ ex:

cépt to ,the. extent. that such right: may be ted by an

agreement requiring ‘membership in a labor organization | |

asa condition of emplo,mefit, as authorized in Sectiow, B(ay”

(3) of the Act..

». 2. Take the iitieibie iittemative sei. which I

will effectuate the policies:of the Act:

A a) Offer B. C. Neuman ‘immediate and full reinstate 3

eee Wa ee!

ment to his former or substantially equivalent position with. . :

out prejudice “to his seniority or other rights and privileges gp ‘i

- and make him whole, in the -manner set forth in the section

| entitled “the remedy” for any loss of pay he, may have suf-

fered by reason of the ReSpondent' s diserimination;

| -(b) — request, make available to the Bova, or its.

agents, for’ examination and: ‘copying, all payroll records,

’ social-security payment records, timecards, personnel rec-

ords and reports, and all other records ny to analyze

the amounts of back pay due; .

g. (e) Post at its plant in Tulsa, Okishoina, copies of the

-notice attached hereto and marked Appendix. ‘Copies of

said: notice, to be furnished by the Regional Director for

- the, Sixteenth Region, shall, after being duly signed by

the Tespondent, be posted by. the Respondent immedigtely

upon receipt thereof and be maintairted by it for 60 con-

all places where notices, are ‘customarily ‘posted. Reasonable

steps shall be taken by the Respofident to insure that said

-Rotices are not altered, defaced, or covered by any other

: material; ee %' «

( a) Notify the heaenad Director for the Sixteenth Re-

gion, in writing, within.20 days from the: receipt of this

Intermediate Report, what steps the en has taken

to rw, herewith.

ee sie ‘recommend, for the: reasons. set forth earlier

- heréin, that subsection: (b) of — 8 of the complaint

be dismissed. *

I further recommend that iti, on or before” 20 days !

“from the receipt of Intermediate Report; ‘the Respondent

notifies said Regional tor in writing that it will comply

“>

ies A a ae

20a

ae . * . .

with the foregoing endations,. the National. Labor

Relations Board issue an oMder requiring the Respondent to

“take the aforesaid action. pice en j

Dated at Washington, D. C., this 16 day of August, 1957.

Rosert VE. Mutim, .

Trial Examiner. _ | .

21a

- APPENDIX B

UNITED STATES COURT OF APPEALS

+. FOR THE TENTH CIRCUIT.

On Petition for Enforcement-of an Order of the

National Labor Board

_ No. 5944

_ NATIONAL LABOR RELATIONS BOARD, Petitioner,

MUDWESTERN INSTRUMENTS, INC., Respondent.

(Filed in the United States Court of Appeals for the Tenth

Cireuit, March 6, 1959—Robert B. Cartwright, Clerk)

Frank Sperandeo (Jerofhe D. Fentoff,. — J. Mce-

Dermott, Marcel Mallett - Prevost, Fannie M. Boyls,

' Donal R. Klank were on the brief) for Petitioner. _

R. J. Woolsey and A. Langley Co y (Farmer, Woolsey, .

Flippo & Bailey; Coffey and ey, were on the briefy

for eee ‘ f

Before HUXMAN, MURRAH and BREITENSTEIN, |

_ United States Circuit: Judges.

Pa . ;

« HUXMAN, Circuit Judge.

This is a conventional enforcement proceeding by the

National Labor: Relations Board: against respondent, Mid-

western Instruments, Inc., pursuant to Section 10(a) of

the National Labor Relations Act. The Board found that

respondent. violated Section 8fa)(1) and (3) of the Act

by interrogating employees regarding their union leadership _

“and activities of fellow members, and by discharging em-

| _ 22a

. ?

ployee B. C. Neuman because ‘of his union leadership

Based. upon its findings, it issued a cease’ and desist order .

requiring respondent. to cease and desist from its ‘unlawful

conduct, reinstate Neuman, make him financially whole,.

and post appropriate notices. It is thiggorder which it. asks

us ty enforce. oe me

A“ There is. iia conflict in the evidence in this

‘case. There is evidence from. which the examiner and the

Board could have found that Neuman was discharged for

valid reasons and not in violation of the Act, rather than .

as found by the Board that he-was discharged in violation

of the Act. Our review is limited to an inquiry whether an

examination of fhe entire record supports, the conclusion

-- that the Board’s findings ‘are earraeaal ‘by substantial evi-

’ dence.!

There was evidence as follows: Early in March 1957,

employee, Neuman sought out the Business Manager of the

International Brotherhood of Electrical Workers; Local —

Union No. 584, AFL-CIO, and arranged with him to call a

Union meeting for the purpose of organizing Respondent's

. employees. The seven employees. who attended the meeting —

signed Union authorization cards. The:next day Neuman.

persyaded sixteen other employees to sign similar cards,

during the. following weeks enlisted several more memi*

bers. During this organization period, Charles Cart, a com-

pany employee, suggested to Production Superintendent

: Piester that in the evént of a layoff, respondent could rid _.

itself of union adherents by including the leaders ‘in any

reduction. Piester rejected this proposal on the ground that.

it would in e Respondent in serious difficulties. He, how-

ever, cre, “le whether, as suggested by his layoff pro

posal, he knew who the union leaders were. Cart replied

1. Universal Camera Corp. V. N. L. R. B., 340°U. S. 474.

. 23a Si

that he did not. Piester then described an: ities whom a

: neighbor had told him was’the union leader. The descrip- __

tion fitted Neuman. , 4

On March 19, the Union’s Business -Manager telephoned '

M. E. Morrow, Chairman of the Company’ s Board of. Di-

. rectors, and informed him of the organizational. activities.

Morrow told him it would do him no good to organize for “

he would never get a union in that plant. On the morning

of March 20, just before the work shift ’ ‘began, Neuman

engaged employee Petra Navarro in a short conversation

| about the Union. When Neuman‘ left, Supervisor Lowe ap-

proached Navarro and asked. her whether Neuman had dis-

cussed the Union and, in particular, whether he had tried

to get. her into the Union. te

“On the following morning, Neuman was -discharged

” under these circumstances. It was Neiman’s job as a fire- ar

man to make oscillograph. harness, the assembly of which

takes from two to three days. Upon the completion of a har-

hess, it is the shop practice for the wireman ‘to take the’ har-

ness to the harness tester at a nearby bench and wait there

_ for some time? while the harness is: being tested, a process

which usually takes only five or ten minutes. No supervisor

had ever complained about this practice of waiting while

. the testing went on. On the morning in cota Neuman

completed a harness, took it to harness te Wood and

~, watched the testing for about ten or fifteen minutes. -While

- Neuman was waiting for the completion of: thé test, Presi-

dent G.’R. Morrgw-entered the room and paused to talk to

Foreman Lowe. During this conversation, Lowe pointed

_ &ross the room toward Néuman.and told Morrow, “There

i .:

_ *There is some evidence that some ‘electricians would watch pan

testing for only part of the time ‘required to complete” the test.

. There is also evidence that Neuman was observed at the testing bengh,,

for 10 or 15 minutes. .

24a

eo’

"is the boy that caused the whole deal.” A few minutes later

' President Morrow went to the office of Superintendent

- Piester and demanded that Neuman be discharged. As Nev-

man started back to his bench, Foreman. David approached *

him 3 unced, “You are slowing up production and

that is a enough reasqy to let you go.” Neuman asked

if that meant that he was ) ee, fired, and received an

_ affirmative reply. ‘

Later that same day, the Union’s Business Agent Shaul!

telephoned M. E.. Morrow, Chairman of the Company's

Board, to protest Neuman’s discharge. Admittedly, they had |

a heated conversation and apparently much profanity was.

used. Acco to Shaull’s testimony, Morrow said that he.

would MI hiiicciw, catia see eae he wanted to.

eee: | pean ....... union was-ever nti to organize .

that plant * * * they had tried it before and didn't. have

any success’ and that “he would come out and clean out

_the whole union , ae ee Mon |

Respondent testified that Neuman was discharged for —

loafing. That statement, however, must be weighed in the

light of all other relévant testimony and deductions drawn

therefrom. It is of some significance that regular employee

- had ever been discharged for loafing ’ or talking too much.

_Davids<Neuman’s foreman, testified that he had never dis

charged anyone for loafing or talking too ‘much, and that .

he knew of no one who had ever been discharged for that

reason. There is justification for the ‘conclusion that Neu-

man’s dereliction in this respect became of grave concern.

only after it was known that he was the leader in the

Union organization movement. The ‘antipathy and \antago-

nism of Company officials toward the Union and its aver-

:sion toward a union shop are well established by the record.

4. Ca

=, | acl . .

_ The evidence with respect to the violation of Section 8

(a) (1) of the Act is rather meager. There is, however, no

conflict in this -part of the record. It stands admitted that

' peg Page Piester questioned employee Cart as to

the identity of the union leaders and that Foreman Lowe

questioned .Navarro as to whether Neuman had tried to .

persuade her to join the Union. Such conduct could well

intend to influence the employees and interfere with the

free exercise of their organizational rights under the Act.

The order of the Board will be ENFORCED .-

—\

~ UNITED STATES COURT OF APPEALS

No. 5044

_ NATIONAL LABOR RELATIONS BOARD, Petitioner,

‘ Sf.

ae INC., , Respondent. |

Before: \ 3

‘HUXMAN, MURRAH and BREITENSTEIN,

United States Circuit J udges.

THIS CAUSE cante on to be. Monk: vibe’ the peti-

' tion of the National Labor Relations Board for the enforce.

ment of a certain: order issued by it against Midwestern ;

Instruments, Inc’, its officers, agents, ‘sutcessors and as

signs on February 25, 1958. The Court heard argument of

respective counsel on January 5,.1959, and has considered

the briefs and transcript of record: filed in ‘this cause. Qn »

March 6, 1959, the Court, being fully advised in the premises,

handed down its decision enforcing the- Board’s order. ;

ON CONSIDERATION WHEREOF, it is paren) é

judged and:decreed by the United States Court of Appeals

for the Tenth Circuit that the said order of the National La- -

bor Relations Board in said proceeding be, and the same

is hereby enforced; and that said Midwestern Instruments,

27a

Inc., its officers, agents, successors and assigns abide by and

perform the directions of the Board-iff said order contained,

_ WALTER A. HUXMAN,

Judge, United States Court of

Appeals for the Tenth Circuit

Dated: April 22, 1959.’ oe

A true copy,

TESTE:

Robert B. Cartwright,

i ‘ : Clerk.

2°

x ‘

a ;

PAs

28a

APPENDIX D

29 US.C.- 160(c)

The testimony taken by such ‘member, agent, or agency

or the Board shall be: reduced to writing and filed with the }

. Board. Thereafter, in its: discretion, ‘the Board upon notice |

may take further testimony or hear argument. If. upon the

preponderance of the testimony taken the Board shall be

of the opinion that any person named in the complaint has

engaged in or is engaging in any such unfair labor practice,

then the Board shall state its findings ‘of fact and shall issue

_, and. cause to be served on such person‘an order requiring -

such person to cease and desist from such unfair labor

practice, and to take such affirmative action including re-

instatement of employees with or without.back pay, as will

effectuate the pglicies of this subchapter: Provided, that

- where an order. directs feinstatement of an employee, back

‘pay may be required of ‘the employer or labor organization,

- as the case may be, responsible for the discrimination suf-

fered by him:"¥And provided further, that. in determining

’ whether a complaint shall issue alleging’a violation of gub-

. section (a)(1) or (a)(2) of Section 158 of this title, and

in deciding such cases, the same regulations and_-rules of.

décision shall apply irrespective of whether or not the labor

organization affected is affiliated with a‘labor organization

national or international in scope. Such order may: further —

require such person to make reports from time to time

_/ showing the extent to which it has complied with the order.

If upon the prepénderance of the testimony taken the Board

/. Shall not be of the: opinion that the person named in the

/ complaint has engaged in or is engaging in any such unfair

labor practice, then the Board ‘shall ‘state its findings of

fact and shall issue an order dismissing the said complaint.

No-order of the Board shall require the reinstatement of

- _. eee

29a

any individual as an employee who has been suspended

' or discharged, or the payment to oy» of any back pay, if .

' such individual was suspended: or discharged for cause.

In case the evidence is presented. before a member of the -

Board, or before an examiner or examiners thereof, such

member, or such examiner or examiners as the case may be,

shall issue and cause to be served on the parties to the pro-.

ceeding a proposed report, together with a recommended

order, which shall be filed with the Board, and if no excep-

tions are filed within. twenty days after service thereof upon. |

suoh parties, or within such. further period as the Board .

may authorize, such recommended order shall become the

order of the Board and become effective as therein pre-

ea 29 U.S.C. 158(c)’

The expressing of any views, argument, or opinion, or

the dissemination thereof, whether. in written, printed, graph-

ic, or visual form, shall not constitute or'be evidence of an

unfair labor practice under any of the ‘provisions of this .

subchapter, if such expression contains no threat of reprisal.

- or force or promise of benefit. a Ser ky

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.