Herbert J. Nichol

HERBERT J. NICHOL - 447 America in a peaceful world. Despite my resignation from the Communist Party, I will continue to fight for these goals with all the energy and sincerity at my command. I am also taking this step because I believe it is one effective means of bringing home, not only to the membership of the International Union but to the people gen- erally, the dastardly and unprecedented requirement that a man yield up his political affiliations in order to make a government service available to the people he repre- sents. This is a dangerously backward step in American political life which threat- ens all of our democratic institutions. Americans have the right to belong to the political party of their choice and trade union members have the right to choose their own leaders. Denial of these principles undermines democracy and gives com- fort to the arrogant reactionaries who seek to put our country on the road to fascism. At the same time, I want to make it absolutely clear that my opinion continues to be that only a fundamental change in the structure of our society, along the lines implied in the very words of the charter of our International, "Labor produces all wealth-wealth belongs to the producer thereof," can lead to the end of insecurity, discrimination, depressions and the danger of war. I am convinced that capitalistic greed is responsible for war and its attendant mass destruction and horror. I am convinced it is responsible for depression, unemploy- ment and the mass misery they generate. The present deepening depression, grow- ing unemployment, and threat of war confirm my conviction that the only answer is Socialism. As a matter of fact, this Socialist concept has always been the guiding principle for American workers. The struggle led by the great Eugene V. Debs, the early fight for the 8-hour work day, the steel and packing struggles led by Bill Foster, the stormy history of the I. W. W. were all influenced by Socialist ideals. As a member of our International Union I have always been proud of and have drawn strength from its basic Socialist tradition. No other union in this country matches ours in its glorious working-class history. Our union, and its predecessor, the Western Federation of Miners, has carried on some of the most bitter and courageous struggles in the history of the labor movement. I have always been in- spired by the fact that early leaders of this union were socialistic in one form or an- other, that Bill Haywood also took the road to Communism and died not only as a great leader of the working class but as an honored and respected Communist. Therefore, I want to make it crystal clear that my belief in Communism is consist- ent with what I believe to be the best interests of the members of this Union and the American people generally and that I am especially happy to be able constantly to remember that it is consistent with the finest traditions of the International Union. I know that sooner or later we will turn this present shameful page in American life, that the reactionary offensive will be beaten back and that the American work- ers will again resume their march on the road to peace, progress and prosperity. Particularly do I know that the day will come when loyalty oaths and affidavits will be a thing of the past, when the true test will again be service to the people and, for trade union leaders, service to their members. In the meantime, I am sure that every member of the International Union joins me in my pledge to fight to keep this International Union strong, to bend every effort to make it even stronger, to continue to keep it on a progressive , militant course, and to do everything in my power to make life in our country happy , secure, pros- perous and peaceful. HERBERT J. NiciiOL. February 1, 1955 Decision and Order On October 22, 1954, the National Labor Relations Board, herein- after referred to as the Board, issued a rule to show cause in the above- entitled proceeding. The rule to show cause stated in substance (1) that the Respondent, Herbert J. Nichol, appeared in behalf of a labor organization involved 111 NLRB No. 69. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a decertification proceeding 1 before the Board under Section 9 (c) (1) (A) (ii) of the National Labor Relations Act, as amended; (2) that allegations were made to the Board that the Respondent, during a brief recess occurring during the course of the hearing in that proceeding, made intimidating and coercive threats to the peti- tioner therein of such an aggravated nature as to constitute grounds for suspension or disbarment from further practice before the Board; and (3) that the Board's Regional Director, upon direction of the Board, had made an investigation of the alleged misconduct and had submitted a report of that investigation to the Board.2 The rule to show cause further stated that, upon consideration of those portions of the Regional Director's report attached thereto, it appeared that the Respondent may have engaged in misconduct of such an aggravated nature as to constitute grounds for suspension or disbarment from further practice before the Board, pursuant to Sec- tion 102.58 (d) (2) of Subpart C of the Board's Rules and Regula- tion, Series 6, as amended. Accordingly, the Board ordered that the Respondent show cause in writing, under oath, on or before November 15, 1954, why he should not be suspended or disbarred by the Board from further practice before it. The Board's rule further provided that "if no answer is filed .. . the statements in the Regional Director's report . . . shall be deemed to be admitted as true and may be so found by the Board...." The Respondent filed no answer to the rule to show cause within the time specified, or at any other time. The hearing in the decertification proceeding, referred to above, was held on July 20, 1954, shortly after a strike sponsored by the United Electrical, Radio and Machine Workers of America, the in- cumbent labor organization, here called the UE, had ended, appar- ently unsuccessfully. Melvin Mitchell, an employee of the employer involved in the decertification proceeding, had worked during the strike and had filed the petition which sought to decertify the UE 3 During a recess in the decertification hearing, a conversation ensued between the Respondent, Herbert J. Nichol, who appeared in the proceeding as a representative of UE,4 and Mitchell, in the presence of Maurice Sandler, the Employer's treasurer, Henry B. Kandel, 'Miller Metal Products, Inc., 5-RD-110 (not reported in printed volume of Board De- cisions and Orders). 2 Certain portions of the Regional Director 's report were attached to the rule to show cause. The portions so attached omitted only that part of the report consisting of the Regional Director 's conclusions , analysis , and recommendation . The portions of the re- port attached to the rule to show cause are attached hereto and marked as an appendix. 3 The findings in this paragraph of the text are based in large part upon the record, made in the decertification proceeding, of which the Board hereby takes official notice. 4 The Respondent is not a lawyer. HERBERT J. NICHOL 449 its labor relations director, and Vincent Fertitta, another UE representative. According to sworn affidavits of Mitchell, Sandler, and Kandel, in this conversation Nichol stated in substance that : Mitchell might be acting in the proceeding as the paid agent of his employer; Mitchell was a "scab"; the employer would soon discharge Mitchell; Mitchell would be blacklisted from employment elsewhere; and, if he should succeed in finding another job, he would be hit on the head with a wrench and suffer "bleeding at the throat." In a sworn affidavit submitted by Nichol, he gave a somewhat dif- ferent version of the conversation in question. However, Nichol ad- mitted in his affidavit in substance that he called Mitchell a "scab" and that he, Nichol, warned Mitchell that "frequently things had been known to fall on scabs." Nichol denied, however, having said any- thing about "bleeding at the throat." Fertitta, Nichol's associate, submitted a sworn affidavit in which he, in substance, confirmed in large part the account of the conversation given by the petitioner and the two employer representatives, but Fertitta did "not recall Nichol making any remarks about `bleeding at the throat' or any similar remark." In view of the foregoing, we do not credit the denials of Nichol and Fertitta and find that Nichol made the statements attributed to him by Mitchell, Sandler, and Kandel, as set forth above.5 Concluding Findings During a recess period in the course of a statutory hearing con- ducted by the Board, the Respondent, a representative of a labor or- ganization which was a party to the proceeding, made threatening statements, including threats of violence, to the petitioner who was also an employee of the employer involved in the proceeding. The Respondent, in anger, made these statements because the petitioner, Mitchell, worked during a strike sponsored by the labor organization which the Respondent represented and because Mitchell filed a peti- tion to unseat that union as the representative of the employees. Such statements were intended to and inherently were calculated to cause the petitioner to abandon the pending proceeding or were phrased with the intent otherwise to adversely affect it. The statements clear- ly tended to have a restraining effect upon the proceeding. It also ap- pears clear that the statements, under the circumstances, amounted to conduct which, in a proper proceeding, might properly be viewed as violative of Section 8 (b) (1) (A) of the Act. The Respondent's conduct patently breached the obligation of parties or their represent- 5 The substance of the sworn affidavits, referred tQ above, appear in the Regional Di- rector's report. See Appendix hereto. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD atives participating in a statutory proceeding to behave in a dignified and decorous manner and, under all the circumstances, was contemptu- ous of the Board and its processes. Accordingly, we conclude that the Respondent's statements, which we have found he made, amounted to misconduct of such an aggra- vated nature as to constitute ground for suspension from further prac- tice before this Board pursuant to Section 102.58 (d) of Subpart C of the Board's Rules and Regulations, Series 6, as amended. THE REMEDY Under all the circumstances, in order to preserve and protect the orderly administration of the Act and effectuate its policies, we shall suspend Nichol from the privileges of practicing before this Board or its agents fora period of six (6) months, beginning fifteen (15) days after the date of our order herein. Order The National Labor Relations Board hereby orders that the Re- spondent, Herbert J. Nichol, be, and he hereby is, barred and pro- hibited from, directly or indirectly, practicing or appearing before this Board as counsel, attorney, representative, or agent (of record or otherwise) or from aiding or assisting any person in the preparation, prosecution, or defense of any matter or proceeding before this Board, or before any Regional Office or agent of this Board, for a period of six (6) months, beginning fifteen (15) days after the date hereof. Appendix REPORT OF REGIONAL DIRECTOR Pursuant to the instruction as set forth in your memorandum of August 9, 1954, I have conducted an investigation of the incident which occurred during a recess in the hearing held on July 20 in the above case [Miller Metal Products, Inc., Case No. 5-RD-110] and make the following report. During the recess which spanned the testimony of Mitchell, the "RD" Petitioner the UE representative, Nichol, addressed certain remarks to Mitchell.' These remarks as paraphrased by Company Attorney Seff, who was not present in the hearing room when they were made, appear on page 42 of the record, as follows : You will always be a scab. Does the Company pay you for your testimony? If they don't you ought to ask them for money. 1 Hearing Officer Knadler and Attorney Self had left the Hearing Room Present in the room during the recess were only Petitioner Mitchell, Company Treasurer Sandler, Pur- chasing Agent and Labor Relations Director Kande], and UE Field Representative Nichol and Vincent Fertitta. HERBERT J . NICHOL 451 They have offered money to other people. If you ever go to work any place else you may find that a wrench will fall down and hit you on the head. On July 30, 1954, "RD" Petitioner, Mitchell, Company Treasurer Sandler and Purchasing Agent and Labor Relations Director Kandel swore in a joint affidavit submitted by Seff to Chairman Farmer that UE Representative Nichol made the following statement to Mitchell : You will remember your actions for the rest of your life. You will be bleeding at the throat and you will be the first one to be fired. You are a scab and you will always be known as a scab. You will find it very difficult to get a job and when you finally get one, you will have a wrench fall on your head. How much is Mr. Miller paying you for doing this? If you haven't got your cut, I'd advise you to look into it, as Mr. Miller has offered other employees money to testify. You know the people in the plant have no use for you as you were always known as a goldbricker. Each person present during the recess was interviewed alone and his affidavit was then taken by an Examiner. The pertinent parts of each such affidavit are set forth below : Petitioner Mitchell: Nichol said the following to me, but I am not sure of the se- quence. He told me that if I wasn't getting paid, that I should look into it, as some of the other people were getting paid. He told me that I would be bleeding at the throat. At that time I told him that he looked as if he was already bleeding at the throat. He told me that I was a scab and would always be branded as a scab, and that I would be the first one to be fired, and would not be able to find work elsewhere. Nichol said that if I "ever did find a job, a wrench would fall and hit you (meaning me) on the head." Nichol also said that I was a "goldbrick." Treasurer Sandler: I believe that one of the first remarks that Nichol made to Mitchell was that he would be "bleeding at the throat." Nichol then said, "WTell you should be proud of what you are doing, scab- bing on your fellow employees. You know what happens to scabs ; they are the first ones to be fired, and Miller will get rid of you real soon." Nichol then said, "You will have a difficult time get ting a job anywhere, and when you finally do, a wrench will fall on your head." Nichol then added "How much is Mr. Miller pay- ing you for doing his dirty work. If Mr. Miller is not paying you, you better look into it because he has offered to pay other 344056-55-N ol. 111 30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people. I listened in on a telephone conversation where Mr. Miller offered money to someone to do what you are doing." Labor Relations Director Mandel: Nichol then started to address his remarks to Melvin Mitchell, the petitioner. I believe that he started off by saying, "and you Mitchell, how much is Miller paying you for testifying, and if you haven't got your cut you had better get it, as I know he paid others. You are a scab and will always be known as a scab, all your life, wherever you work. When you do get a job you will find that a wrench will fall on your head." Someplace in the re- marks, Nichol stated to Mitchell, "and you will be bleeding at the throat." Nichol also remarked that Miller would fire Mitchell be- fore long. UE Representative Nichol: I do not recall how the conversation turned to Mitchell. I be- lieve that it started by my asking him how he liked working with scabs. To which I believe Mitchell replied "all right." Then I recall I said to him something about the fact that he was a young fellow and had probably never worked in any other shop except Miller Metals, and that I thought that he probably didn't know most older workers don't look favorably on working with scabs or strikebreakers, and that was the kind of reputation that fol- lowed a man from one shop to another. I believe that I said that I had known fellows who had scabbed in strike many years ago who were still referred to in uncomplimentary terms. As I recall Mitchell said rather flippantly that it didn't bother him what other workers thought of him. I replied that it wasn't always a question of what workers thought of him; that frequently things had been known.to fall on scabs heads because most workers con- sider strike breaking a pretty serious thing. At that point I said I don't know whether Mitchell got paid for going back to work during the strike and if he didn't he wasn't getting equal treatment because we had heard that the Company had offered financial rewards for coming back to work during the strike. I didn't make any remark about "bleeding at the throat." I do not know what he is referring to. .UE Representative Fertitta: Fertitta stated that the conversation started by Nichol's first addressing his remarks to Kandel as to the amount of production the Company was getting and the fact that the Company should take back its old help. Thereafter, "Nichol then asked Mitchell, the RD petitioner, `How do you like working with scabs?' EQUITABLE GAS COMPANY 453 Mitchell said, `People don't worry me.' Nichol then said that people like Mitchell help companies break strikes. Mitchell said that at least he was working and the others were out pounding the bricks. Nichol then said something about there having been a strike at Locke Insulator where some people helped to break the strike but after everything was over the Company got rid of all the strikebreakers. Nichol told Mitchell that he was a young man and he, Nichol, didn't know if Mitchell had any other jobs or had only worked at Miller that when you are known as a scab you carry the name for the rest of your days. Nichol said that he has known cases where scabs have had things falling on their heads because strikebreaking was a very serious matter." "I do not recall Nichol making any remark about `bleeding at the throat' or any similar remark." EQUITABLE GAS COMPANY and INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, LOCAL UNION No. 149, A. F. L., PETITIONER. Case No. 6-RC-1506. February 1, 1955 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Elmer E. Hope, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner desires to represent all physical employees in the planning and development department, gas measurement division, of the Employer's gas utility system, comprising three classifications of meter inspectors, either in a separate unit, or as part of the broad unit it now represents. The instant petition is a sequel to one which the Petitioner filed in 1953 requesting a segment of these meter inspec- tors, which petition was dismissed as inappropriate because of the narrow scope of the group sought.' The Petitioner contends that its present request for all like meter inspectors throughout the system •corrects the defect of its prior petition. The Employer, on the other hand, urges that the group now requested is still too narrow in scope 'Case No 6-RC-1202 (not reported in printed volumes of Board Decisions and Orders). 111 NLRB No. 60.