Babcock and Wilcox Co.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Babcock and Wilcox Company and United Steelworkers of Amer- ica, CIO. Case No. 11-CA-671. April 29, 1955 DECISION AND ORDER On October 11, 1954, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had not engaged in any unfair labor practices in violation of the Act and recommended that the complaint be dismissed in its entirety. Thereafter, the United Steelworkers of America, CIO, filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, which is attached hereto, the exceptions, and the entire record in the case. After a careful review of the record facts in this case, we are satisfied that the Trial Examiner's findings are supported by the preponderant weight of the evidence and we adopt his findings, conclusions, and recommendations.' [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 1In the 8 (a) (1) section of his Intermediate Report the Trial Examiner, finding that pages 10 through 18 of the Respondent's brief to him "comprise as succinct a rtsumt of the cogent evidence as is possible for me to set forth, and it expresses my complete opinion of the facts as I found them in this phase of the case," quoted verbatim the 8 pages of the briet and adopted as his own the statements of facts, arguments, and credibility reso- lutions contained therein. The quoted pages of the brief constitute almost the entire treatment of the 8 (a) (1) issue in the Intermediate Repoit. While a Trial Examiner is, of course, free to agree or disagree with the contentions and statements of counsel for any of the parties, it is the special function of the Trial Examiner to prepare for the Board an independent and careful analysis of the facts and issues in the case over which he presides The Intermediate Repoit so prepared is accorded great weight by the Board, particularly with regard to the credibility of witnesses In accepting the Trial Exam- iner's recommendations in this case, the Board is not to be taken as approving a general practice by Trial Examiners of adopting extensive portions of briefs submitted to them by any of the opposing counsel in a case as a substitute for an independent analysis of an issue. INTERMEDIATE REPORT STATEMENT OF THE CASE On April 10, 1954, United Steelworkers of America, CIO, herein called the Union, filed with the National Labor Relations Board, herein called the Board, a charge that Respondent Company, through its officers, agents, and supervisors, has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended (61 Stat. 136), and that the Company terminated the employment of Earl C. Cook because of his member- ship in and activities in behalf of the Union in order to discourage membership in a labor organization, and at all times thereafter the Employer has refused to reinstate said Cook because of the above-mentioned activities, all in violation of Section 8 (a) (1) and (3) of the Act. Upon the Union's charge adverted to above, the Regional Director for the Eleventh Region (Winston-Salem , North Carolina) issued his complaint dated May 10, 1954, alleging that Respondent by the acts described above, 112 NLRB No 65. BABCOCK AND WILCOX COMPANY 547 has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act. After answer duly filed denying the alleged unfair labor practices, the issues were joined and a hearing was held in Wilmington, North Carolina, on June 22 and 23, 1954, before John C. Fischer, the Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented and participated therein and had full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Oral arguments were made by both parties and a brief was sub- mitted by Respondent's Counsel. Upon the entire record in the case, and from his observation of the demeanor of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE LABOR ORGANIZATION INVOLVED United States Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act, admitting to membership employees of the Respondent. II. THE BUSINESS OF THE RESPONDENT The Respondent Babcock and Wilcox Company is now, and has been at all times material herein, a New Jersey corporation maintaining an office and plant at Wilming- ton, North Carolina, herein called the Wilmington plant, engaged in the manufacture and sales of watertube boilers and component parts. Respondent, at the Wilmington plant during the past 12 months, which period is representative of all times material herein, manufactured and sold finished products valued in excess of $500,000, more than 90 percent of which, in value, was sold and shipped to customers outside the State of North Carolina On the basis of and by reason of the foregoing facts, it is found that the Babcock and Wilcox Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue Although the complaint alleges that the Respondent by its officers, supervisors, and agents interrogated its employees concerning their union membership, activities, and desires, charged Personnel Manager R L. Burnett with threatening to discharge employees if they joined or retained membership in or engaged in activities in behalf of the Union, and also solicited employees to spy upon and keep under surveillance the union meetings and activities, the principal question arises as to whether or not employee Earl H. Cook was discriminatorily discharged on October 9, 1953. The discharge of Cook was occasioned by the application and enforcement of a plant rule prohibiting solicitation for membership in any organization during duty or working hours. The Company's defense is that Cook was discharged for viola- tion of rule 9, group A, general rules and regulations, which provides that "No employee shall solicit membership in any organization while on duty or during working hours." General Counsel contended in his opening statement that he would prove (1) that Cook, who officially was discharged for violating rule 9, did not in fact solicit membership during working hours, but that the Company was misled in believing that he did, and discharged him erroneously in violation of the Act, and (2) that Respondent supervisory personnel-in fact one of the most influential and controlling supervisors-violated the rules frequently, "in fact that at all times when he found it convenient to do so." General Counsel also argued that the Company could not make a rule such as this one which, he contended, restricts the ordinary, usual, normal conduct and not abide by it, itself, and that in making such a rule and not abiding by it, the only possible inference is that the rule was made to restrict unduly and illegally the normal and reasonable conduct of the people associated together to form a labor union General Counsel admitted, however, that there was nothing wrong with the rules of the Company per se, but contended that the Company discriminatorily enforced this particular rule, and that the rule as designed would work only in a vacuum. B. Background facts The general background facts are well set out in the comprehensive brief submitted to the Trial Examiner by Respondent Counsel. Up until April 1954, the Company had in operation in Wilmington, 2 plants. 1 of which was an old shipyard which had 369028-36-vol 112-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been under lease from the United States Government . In these two Wilmington plants the Respondent had in its employ over 100 employees . For some time how- ever, the Company had been planning to turn back the shipyard to the Government and move its curtailed operations to a new plant . These projected plans came to fruition on April 16 of this year . On that date the Company announced that ship- yard No. 1 would be closed and returned to the Government , and that, as necessitated by its reduced operations, some 165 employees would have to be terminated. These projected plans proceeded according to schedule. On June 18 of this year another list of emloyees was posted , some 75, and they also have been terminated . This read- justment on the part of the Employer , and the terminations of employees occasioned thereby, was not motivated by any antiunion animus on the part of the Respondent, and General Counsel does not contend the contrary. In general, there were three groups of rules and regulations which were prominently posted throughout the plant. Group A contained rules for which infraction , discharge was the penalty. In that group was the rule complained of. Rule 9 states that no employees shall "solicit membership in any organization while on duty or during working hours." Group B contained those rules for which violation justified a sus- pension of 2 weeks on first offense . Discriminatory enforcement of one of these rules was alleged . Rule 6 of that group states that no employee shall "solicit funds for any organization without written permission." Group C states those causes for which violation shall constitute just cause for written warning on first offense , suspension on second offense, and discharge for third violation . Respondent pleads that these rules were promulgated "to promote general efficiency in the plant." These rules, common to all. Respondent 's plants, read as follows. As a condition of employment, it is understood that an employee 's conduct and general behavior will be consistent with that of good citizenship and shall promote general efficiency in the plant. Conduct contrary to these principles , generally, and the following actions specifically, will be considered as violation of such principles and will not be permitted. 1. GENERAL RULES AND REGULATIONS GROUP A ANY VIOLATION OF THE RULES IN GROUP A SHALL CONSTI- TUTE JUST CAUSE FOR DISCHARGE. No employee shall: 1. Refuse to follow reasonable orders of supervisors, foremen , or lead man. 2. Show wilful disrespect of, or insubordination to, anyone in a super- visory capacity. 3. Sleep while on duty. 4. Falsify records. 5. Incite, or attempt to incite, disorder, either by use of obscene or abusive language or otherwise. 6. Fighting on company property. 7. Wilfully injure or destroy company or consigned property. 8. Bring intoxicants on company property; drink intoxicants on company property; or report for work while under the influence of intoxicants. 9. Solicit membership in any organization while on duty or during work- ing hours. [Emphasis supplied.] 10. Falsely accuse employees or supervisors of dishonesty. 11. Continue poor workmanship. 12. Conduct himself, or his work, in a negligent or careless manner so as to endanger life, limb, or property. 13. Be recurrently absent from his work without permission of his fore- man. GROUP B ANY VIOLATION OF THE RULES IN GROUP B SHALL CONSTI- TUTE JUST CAUSE FOR SUSPENSION FROM WORK FOR A PERIOD OF TWO WEEKS. THE SECOND VIOLATION OF THESE RULES SHALL CONSTITUTE JUST CAUSE FOR DISCHARGE. No employee shall: 1. Possess dangerous weapons on company property. 2. Be away from the job or out of work area without permission. BABCOCK AND WILCOX COMPANY 549 3. Leave job before quitting time or before permitted by foreman or superintendent. 4. Loaf on the property or otherwise wilfully retard the progress of the work. 5. Fail to wear, at all times while working, appropriate gear to protect the person against hazards and the risk of personal injury. 6. Sell merchandise on company property during working hours without written permission. 7. Solicit funds for any organization without written permission. 8. Violate any criminal law. GROUP C ANY VIOLATION OF THE RULES IN GROUP C SHALL CONSTI- TUTE JUST CAUSE FOR WRITTEN WARNING. THE SECOND VIOLATION SHALL CONSTITUTE JUST CAUSE FOR A TWO-WEEK SUSPENSION, AND THE THIRD VIOLATION SHALL CONSTITUTE JUST CAUSE FOR DISCHARGE. No employee shall: 1. Be habitually tardy. 2. Unnecessarily waste materials. 3. Fail to maintain good housekeeping. 4. Play pranks or practical jokes on company property. 5. Violate safety rules, including the removal of Safety Signs, the posting of signs or defacing property, etc. C. Alleged violations of the rules There are three situations in which the above-quoted rules are involved. The first situation concerns the discharge of Cook for soliciting union memberships during working hours in violation of rule A-9. The second situation concerns rule B-6 deal- ing with soliciting funds without permission by employees for funerals, illnesses, and charities for fellow employees, and the third concerns the conducting of a company- wide campaign for the united (community) fund by Superintendent J. S. Golden and R. L. Burnett, personnel manager. General Counsel contends that the rules were vio- lated by management supervisors when it was found convenient to do so and therefore enforcement against Cook was arbitrary and discriminatory. The third situation will be first disposed of. The record shows, Respondent's Exhibit No. II, that Personnel Manager R. L. Burnett was appointed, in writing, and given the responsibility of soliciting the 995 plant employees for contributions to the united (community) fund by J. S. Golden, Respondent's superintendent. Community fund solicitation has become an integral part of the American way of life, nonsocilita- tion rules to the contrary notwithstanding. Obviously, the letter and spirit of ap- plicable rule B-6 was complied with by the written designation of Mr. Burnett as plant chapter chairman for Manufacturing Firms for the year 1954. The second situation involves the soliciting of funds, without written permission, by employees. There is much testimony in the record that employees solicited funds and took up collections without official written permission in various departments of the plant for such causes as funeral wreaths, illness in families, and in one instance, a benefit for an employee whose home burned. Management Officials Burnett and Golden did not observe or were not advised of these violations, perhaps because of their infrequency and trivial interference with production. Such in- fractions, however, could be just cause for suspension from work for a period of 2 weeks but written permission could have been obtained in order to obviate any penalty as was not the case with group A. Employees Pender Earl Reeves, Lester Ingram, and Aaron Reuben testified about these collections. The only specific ones cited were the cases involving the young man whose house burned down and the collection taken to send flowers to Foreman Rulan's mother's funeral. The evidence fails to substanti- ate the charge that this rule was discriminatorily enforced. D. The question Rule A-9 unequivocally prohibited membership solicitation in any organization while on duty or during working hours-the alleged infraction of which occasioned Cook's discharge. The General Counsel does not contend that rule A-9 is per se violative of the Act. General Counsel contends the "Company set up a group of rules designed through their implementation not only to discourage concerted activity in any of its plants, but to kill it [union activity] at its very inception." He suggests that 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company may have had in mind something other than discouraging soliciting memberships in a labor organization, but in the actual day to day putting into effect of rule A-9, the result had been to discourage any effort on the part of the employees to join together or to associate themselves for the purpose of collective bargaining and to represent themselves as a collective group to plant management. It appears to be true, as General Counsel says, that there is no precedent case decided by the Board or courts involving the identical facts in this case and the application of such a non- solicitation rule as this one, A-9. This broad rule forbids membership solicitation while on duty or during working hours not only to unions, but also to all other or- ganizations which would include churches, political parties, or fraternal organizations such as Masons, Elks, Knights of Columbus, the Red Cross, and almost any other conceivable social and fraternal association-and mandatorily, made observance a condition of employment Manifestly, there is a vast difference between solicita- tions for memberships in controversial organizations and solicitations for local charity. With particular reference to union organization, Personnel Manager Burnett testified that there had been union campaigns going on "since the day we started, one union campaign and then another." The promulgation of such a nonsolicitation rule premised to promote general efficiency in the plant of employees while on duty or during working hours was a proper exercise of a prerogative of management as long as this rule was not discriminatorily enforced. There is no evidence in this case that solicitation for membership in any other organization occurred and was countenanced. The Respondent admits that it discharged employee Earl H. Cook on October 9, 1953, for violation of this rule predicated upon written complaints made to management by certain fellow workers. Thus, the principal question for resolution is whether Cook solicited union memberships while on duty or during working hours. E. The solicitation conflict Earl H. Cook started to work for the Company as a welder in February 1951 and continued except for about 7 months until discharged October 9, 1953, for soliciting union memberships on company time. About September 1, Cook signed the union authorization card given him by Ray Schnell at the plant gate and received 10 blank cards to be used in signing up other employees. He testified that altogether, he suc- ceeded in signing 35 fellow employees. Cook testified that he solicited union mem- berships before and after working hours and denied that he solicited during working hours. An absolute contradictory version of Cook's union solicitation is given by other employees. As a matter of fact this case is unique in the respect that the antiunion faction complained to Personnel Manager Burnett that Cook was soliciting in violation of the company rules and urged Personnel Manager Burnett to take action and enforce rule A-9 against Cook. In this connection Burnett testified that there was strong prounion and antiunion sentiment in the plant saying: "Now, during a union campaign such as was going on last fall, there was a lot of feelings on both sides. In the Cook case, numerous employees came to me and complained that Mr. Cook was going all over the plant, that he was soliciting members during working hours, he was going wherever he pleased and we had rules on the bulletin board and we could not understand why we could not enforce them. I said, `Well, I think you are kind of making a mountain out of a molehill.' I said, `I have heard that he is soliciting, but I don't believe that it is as bad as you say it is.' And tney came back another day, a day or two after that and told me he was worse than ever, going all over the plant soliciting people and that Cook had signed them up, that he had signed this particular individual up during working hours, he told me when it was, and I said, `Would you be willing to make a statement to that effect' and he said, `Yes' and so he made a statement to me, told me when it took place and where and some of the conversation, etc., and I had him make a statement that Cook signed him up and the time of the day or the time of night it was and where it took place." Respondent Counsel Smith at this point read into the record a statement dated October 7, 1953, as follows: "I, W. A. O'Quinn, do hereby certify that one Earl Cook did solicit and sign me to a membership in the CIO Union Organization at 2:30 a. in. o'clock just outside of bay one in the shop going toward the lunch stand, signed W. A. O'Quinn, 3016." This statement was subsequently admitted in evi- dence as were the following statements of employees F. W Harrell and J. E. Smith: "10/8/53 I Frank W. Harrell do hereby certify that one Earl Cook did solicit and [sic] sing me to a membership in the CIO union organization at 7:10 p. m. on 10/8/53 at North end at bay three. F. W. Harrell"; and statement of: "October 14, 1953. This is to certify that Earl Cook contacted me in Bay two, near the cross town track, the night of October 8, 1953, at approximately five or ten minutes past 11:00 BABCOCK AND WILCOX COMPANY 551 o'clock and tried to get me to sign a CIO card. I was at my work station at the time. J. E. Smith." In response to the complaints Burnett testified: "I made an investigation myself. I went out in the shop particularly in the SAS shop and asked employees in the shop if Earl Cook had solicited them to join a union during working hours and I found some said he had solicited them to join the union but it was not during working hours, it was during lunch time or off time and I found quite a few who said he had solicited them during working hours, some of them volunteered and said that they had signed a card, I did not ask them whether they signed a card, I know that whether they signed a card or not is none of my business, but they were solicited during work- ing hours, violation of the Company rules and that is why I made the investigation. I found that Mr. Cook had solicited people during working hours, had signed up people during working hours and I put a card on Mr. Cook's clock card and told him to come over and when he came over I gave him a statement why he was being terminated." There is also testimony by Red Smith substantiating the O'Quinn solicitation. Smith was accompanying O'Qumn at the time and saw him sign the card. In answer to Counsel's question: "What did he say about signing you later, if anything," he testi- fied: "Well, I could see that he was trying to get me to sign and he said he would see me later, he only had one card then-he said that was all he had." Employee J. E. Smith testified that Cook solicited him testifying: "I will tell you how it happened. It was about five minutes after the whistle blew to go back after supper and he walked over, Earl walked over to me, he walked over and says, `Smitty, let me sign you up."' When Smith refused to sign, Cook assailed him with an un- printably foul characterization. Smith, who was antiunion anyway, thereupon re- ported him to Burnett. Frank Harrell, a materiel expediter who ranged the entire plant checking materiel, was in Cook's area on the night of October 7 and was referred for signing up to Cook by a fellow welder, Hooks. Harrell testified: "So I did not have too much to say and Cook did not either that night, so the next time I was back down there again checking on some materiel and I said, `Well, O. K., if you want me to sign, I will sign up' and I was mad at the time and wanted more money and I signed the card. 'So Mr. Burnett asked me the next evening, I came in early as I always do, and he said, `Did you sign a card' and I said, `Yes Sir, 1 most certainly did.' He said `Will you sign a statement to that?' and I said, `Yes Sir' and signed it. So I went and signed the statement and gave it to him and that is all he had to say to me about it, he said, `O. K.' " It appears that Harrell was angry at the time because he had not received a raise recently and when Cook overheard the complaint, he joined in the conversation. Asked about the disposition of the card after signing it Harrell testified: "I put it on the side, we were doing a county sinkage and I put the card on the outside and told Cook where I would put it, there was a piece of steel that was a base running across into the bay. I was in the material pile when Cook came along and I picked up the card and he went away, Cook went the other way and nobody saw me sign the card, nobody seen Cook get the card." Leroy Hooks substantiated this activity saying: "Me and Mr. Cook was welding side by side." In answer to Counsel Mintz' question- "What did Mr. Cook say to you about the Union?" Hooks stated: "That night I had went out to the drink stand and came back by and Cook was standing there smoking a cigarette, well we all take a break now and then and get to talking and he asked me if I had signed and I told him I had not and he asked me about signing and I said I would let him know later." Hollis Evans, a colored boy who was the "crane follower" impressed me as a most sincere and fairminded witness and he said that Cook solicited him on three separate occasions His testimony, to me is illustrative of Cook's attitude and ap- proach. In part it reads: "Well, the first time he talked with me, he asked me what did I think about the Union and I told him I did not think nothing of it, and he asked me did I want to join the union and I told him no. He said, `How about signing you up' and I told him I was not interested in it, so he said, `you better let me sign you up' and I said, `No' and I said, `Aint you kind of scared to do that, this is working hours' and he said, `Hell, we don't care.' He said `Let me sign you up' and I told him, `No, I am not interested.' So I went on my job and he says, I started off and he say, `Think it over and let me know' and I told him o. k. I went on and I had one or two left to weld. So as we went on the job later on that night he saw me again and he said, `Have you made up your mind yet' and I told him no, I had not made up my mind. He said, `You better let me sign you up' and I said, `No, I have not made up my mind' and that is where I left him again." R. B. Roebuck, toolroom attendant, testified that Cook discussed the union cam- paign over a period of a week or 10 days when visiting the toolroom in course of his 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duties but Roebuck told him that he was not interested and there was not too much said about it after that. R. T. Sykes testified that "I was welding alongside of Cook and Cook said: `Shorty, have you signed a union card,' and I said, `No,' and he said, `Would you sign a union card,' and I said `My father did not raise any crazy children,' and I got up and walked away from him." W. H Holley testified that he had a conversation with Cook shortly before he was discharged-answering counsel: "Yes Sir, he came to me during working hours and asked me about signing a union card and I told him I was not interested." Asked whether Cook exhibited any union cards he stated: "Well, after working hours he asked me, said `Bill, let me fix you up', and he said, `Here is how many I have solicited tonight' and pulled a bunch of cards out of his pocket and said, `I will get that many more tomorrow night.' " Holley stated that this conversation ensued when they were coming out of the plant saying: "I did not see them or count them, he had a handful, it looked like as many as he could hold in his hand, and pulled them out of his pocket." D. M. Blanton was the final witness called by Respondent who testified directly ini connection with Cook's solicitation of membership. He testified that Cook talked with him at the "clock-out hours" when they were going out from work at 4 a. in. and further stated: "He told me the night before, see, that he did not have any cards but he would be in a position the next night, and I saw him in the afternoon and he told me then he would see me at supper time." W. A. O'Quinn was the first employee to report to Personnel Director Burnett that Cook was soliciting membership in the Union. O'Quinn presented himself as a sub- stantial and sincere witness. He had been with the plant: "Ever since December 1951." His testimony was in accord with that of Red Smith heretofore recorded. He stated: "He [Cook] caught up with us and was talking with us [enroute to the coke stand] and asked did we want to join the Union and I told him I believed I would and so he gave me a card and I signed it and gave it back to him and we went on to the stand and went back to our work. He told Mr. Smith that he did not have another card but would see him later. . . . The first time he approached me was on the out- side of the gate setting in my auto, the next time he approached me was in number one bay during working hours and the next time was over in number four bay just before lunch one night." In answer to Counsel Mintz' question: "Mr. O'Quinn, why did you make this report?" He replied: "I felt like it was my duty to make it. I did not like the Union and never had liked it." Q. By that you mean your duty to yourself? A. Yes, I felt like Cook had just as well stay on his job and work as I had to, stay on mine. Q. Was he off the job? A. Yes, sir, he was a lot of times. On cross-examination to General Counsel McCormick, he stated that this was the fourth time he had been importuned by Cook when he took the card and signed it. Counsel asked: "Did Red Smith sign one then?" O'Quinn answered: "No, Mr. Cook said he did not have nary another card and he said he would see him later." Whether O'Quinn repented his action or was otherwise motivated is not material here. Suffice to say after his shift was off and he had left the plant for the night, he went all the way back to the plant and reported all of the facts to Mr. Burnett say- ing: "I told him that I thought it was my duty to come and tell him about it. Cook was down there signing up people on the job." And his final statement to Counsel McCormick when asked why he signed the union card was: "Well, to get rid of him, to keep him from aggravating me to death all of the time." The unimpeached evidence, above recited and relied upon, constitutes the resolu- tion of the principal question in this case. I find that Cook solicited union members while on duty and during working hours and that he was discharged for so doing. Counsel for the Respondent, in an exhaustive and compelling brief to the Trial Ex- aminer, expressed the law applicable to the facts as I find them, and I adopt the fol- lowing statements to express my views: "The law, as Respondent understands it, does not require that an employer embrace unions; only that it remain neutral and keep `hands off' during a campaign." This the Respondent without doubt attempted to do. For instance, Superintendent Golden testified that these rules were in effect at all of the Respondent's plants, and that employees had been discharged under these rules when management discovered violations of them. Golden also testified that he had directed Burnett to investigate the Cook situation . Burnett also stated that past viola- tors had been discharged. "In summary, we have, therefore, a situation where a rule had been enunciated for plant efficiency; where a union campaign was going on; where an employee repeatedly violated the rule and solicited other employees; where these repeated violations were BABCOCK AND WILCOX COMPANY 553 brought to the attention of management; and where management after independent investigation, determined that the employee had in fact solicited in violation of the rule; and where therefore, the employee was discharged." Accordingly, I find no illegal discharge nor refusal to reinstate Earl C. Cook in violation of 8 (a) (3) of the Act. F. Interference, restraint, and coercion It was agreed between Counsel that we were not here dealing with any independent violation of Section 8 (a) (1) other than such as go to prove a discriminatory en- forcement of rule A-9. The allegations in the complaint charging interference, re- straint, and coercion are comprehended in paragraphs numbered 6, 7, and 8. Para- graph numbered 6 recites that Respondent, by its following-named officers, super- visors, and agents, at the Wilmington plant, on or about the dates set opposite their names, interrogated its employees concerning their union membership, activities, and desires: Personnel Manager R. L. Burnett----------- October 12, 1953. Drum Department Foreman Weiss__________ October 12, 1953 (dismissed at hearing). Night Foreman Robinson----------------- October 14, 1953. O. W. McClelland (night leaderman)________ October 14, 1953 (added by amendment at hearing). Respondent, by its Personnel Manager R. L. Burnett, at the Wilmington plant, on or about October 15, 1953, threatened to discharge its employees if they joined or re- tained membership in, or engaged in activities on behalf of, the Union. Respondent, by its Personnel Manager R. L. Burnett, at the Wilmington plant, on occasions on or about October 25 and October 30, 1953, solicited its employees to spy upon and keep under surveillance the union meetings and activities of its employees, and to advise it of the names of its employees who were members of the Union or were active on behalf of the Union. As heretofore alluded to, Respondent's attorneys submitted a comprehensive brief to the Trial Examiner with extensive citations of Board and court cases ap- plicable to or bearing on the facts in this case, in addition to their closing arguments. General Counsel McCormick made a clear and logical opening statement of what he hoped to establish, and closed his case with a detailed argument on the facts as he interpreted them-documented with several Board decisions. The cases cited by counsel on both sides have been carefully considered by the Trail Examiner. That portion of Respondent's brief to me, contained in pages 10 through 18, com- prise as succinct resume of the cogent evidence as is possible for me to set forth, and it expresses my complete opinion on the facts as I found them in this phase of the case. On the basis of the Board and court precedents in such a situation, I adopt as part of my own factual report, the language appearing in Respondent's brief, pages 10 through 18, which immediately follows THE ALLEGED INTERROGATION Paragraph 6 of the complaint charges that certain named supervisors on or about certain named dated interrogated employees concerning their union membership, activities and desires. These will be discussed in sequence. (a) Personnel Manager Burnett-For the benefit of the Trial Examiner in resolving the issues of credibility necessary for a finding in this allegation, the Respondent feels that it would be helpful if it summarized Burnett's peculiar position in the Respondent's plant. Burnett was Personnel Manager and had been so for a number of years. In the course of his duties as Personnel Manager it was his job to handle all per- sonnel and employment problems, including employee grievances and com- plaints. It was also his obligation to know, and be well acquainted with, as many of the employees as possible. This he attempted to do. Respondent feels that it was good personnel relations for Mr Burnett in the course of his duties, to inquire of employees how they were feeling, how they were getting along in their jobs, how their families were, and if they had any complaints. As a supervisory official however, it was also his job to investigate possible viola- tions of plant rules. His position therefore, in the plant was, and is, an anomaly, as are the positions of all personnel managers, inasmuch as he was the inter- mediary-the go-between-representing management to the employees, and employees to management. .554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With this in mind what does the record show regarding these "interrogations?" It shows in brief the following conversations between Burnett and certain enu- merated employees. (1) Employee Cook-The complaint alleges that Burnett interrogated em- ployees on or about October 12, 1953. The only conversation which allegedly occurred between Burnett and Cook took place "some time in October." There, the record shows that Cook and Working Leader Troy Brown were talking together before working hours, and Burnett walked over and spoke to Brown. There then ensued a conversation which Cook described on page 24 as "very funny." The conversation which was largely between Burnett and Brown does not show anything remotely resembling 8 (a) (1) interrogation of Cook. In any event the complaint says that "interrogation" by Burnett oc- curred on October 12, and the record shows that Cook was discharged on October 9. (2) Employee Walter Lewis-The record shows that a conversation occurred between this employee and Burnett also "sometime in October." A close ex- amination of this employee's testimony, in the opinion of Respondent, shows it to be unworthy of credence. There are certain inconsistencies which the Respondent feels can not be argued away on any valid basis. For instance, Lewis nominated this conversation on page 33 as the first time that he had talked with Burnett, but on page 43 states that such was the second time. He testified on page 33 that such conversation occurred between No. 3 and No. 4 bay; but on page 57 stated that such conversation occurred between No. 4 and No 5 bay. In substance this conversation, whenever it was and wherever it occurred, was substantially the same in both testimonies. The only dif- ference is in the explanation of the background for such conversation. In it, both Burnett and Lewis testified that Burnett said that Lewis' brother was going crazy. Burnett testified that he was not referring to union activity, but rather was referring to an incident which had happened earlier for which the brother could have been discharged. He was only suspended for two weeks. It is reasonable therefore, that Burnett was telling Lewis that if his brother didn't straighten out and stop playing around, he was liable to lose his job. (See page 34 where Mr. Lewis testified that "Mr. Dick" said to him, "You know I could have fired him," for that incident). There was also testimony by Lewis to some conversation in which he testified that Burnett said to him, "Walter, you know there is a little bit of propaganda out there at the gate," and Lewis said, "I had seen this stuff out there," and Burnett stated, "You can do me a lot of favor just like you did before and one of the other unions have gotten down to the gate and you helped me keep them out before and you can help me keep them out now," to which Lewis replied, "I ain't going to do no harm." This conversation according to Lewis occurred three weeks before the conversation regarding Lewis' brother. This would therefore, set the date and the conversation as some time during the month of September 1953. Yet on page 60 and 61 he denies that the conversation regarding his brother was the second conversation with Burnett, and occurred two or three weeks after the conversation just referred to. Further examining the credibility of this witness, the Respondent would call to the attention of the Trial Examiner his testimony regarding the "Garland inci- dent." For instance, he states on page 35 that Mr. Burnett told employee Gar- land's father to come back to the office. He testified on page 56 of the record when asked if he had testified that Burnett called Garland's father back to the office, "No, I did not do that, I did not do that." He then states that he said that Mr Burnett called Garland back to the office, and that Garland's father told him of this. But then, in the next sentence he admits that he did not hear Burnett call Garland back to the office and Garland told him of this. In other words we have Lewis' testimony that he was present when Burnett called Garland's father back to the office. Then we have him testifying that Garland told him that his father was called back to the office Then we have him testifying that Garland's father told him that Garland was called back to the office. But he then admits, to sum up his testimony, on page 57 that he was not present, did not know who called who back to what office, and that in any event he was not present in the office during the conversation between Burnett and someone in the Garland family, whomever that might be. Finally there is a further contradiction in his testimony which should be enumerated. The first regards the time of the posting of notice of layoff, and two weeks notice of such. This testimony begins on page 54 and is as follows: BABCOCK AND WILCOX COMPANY 555. By Mr. SMITH: Q. You said you had no notice that you would be laid off prior to April 16- A. April 16th is the first day I ever saw it. . . . No, it was not there on the 15th. Q. It was not there on the 14th? A. No. Q. When was your last day of work out there? A. April 16 was my last day. Q. That is when the notice was posted up there? A. Yes . . . I was laid off on the 16th day of April. But on the other hand, Mr. Lewis states on page 65 as follows: By Mr. SMITH: Q. Well, I am asking you was the notice put up there two weeks before the 16th of April9 A. It was supposed to be put up there two weeks before. Q. Then you knew two weeks in advance . . . when you were to be laid offs A. Yes, sir. Q. You knew two weeks in advance you were to be laid off the 16th day of April. A. Yes, and I worked right up to the day. (3) Employee Robertson-Employee Robertson testified on page 99, that October 14th was the only time when Burnett ever came over to where he was working and started a conversation. Regarding this conversation he says on page 66, after Burnett had asked him how he was getting along, that "Someone brought up organized labor, what do you think, do you think they will give you what they promise you?," and Mr. Burnett stated, "They will tell you what they will do for you until they get in and once they get in, why they will do what they want to for you." (4) Employee Ingram-Employee Ingram testified that he and Burnett had a talk about Ingram's son before working hours in July, 1953. He stated that Mr. Mr. Burnett said that he had had some visitors out at his house. Ingram then stated that Burnett told him that he had better have a talk with his son and have him straighten up, that his days were numbered. Mr. Burnett, dealing with this testimony stated on page 148, testified that, "I remember talking to Steve . . . he had been missing a terrible lot of time and as a matter of fact just prior to the time Bull, his father, talked to me, he (the son) came up to me and told me he was going to quit, that he did not think he could make it and I told him he better get Steve to a doctor and send him to a specialist and find out what was wrong with him. He had been missing too much time and that he was in pretty bad shape, and he said that he had had him to several doctors and did not know what in the world to do with him but he would work on him and try to straighten him out, that is the conversation I remember." In explaining any remarks that he might have made that the boy's days were numbered, Mr Burnett testified that the only thing that he could have meant was that if the boy did not straighten out to where he could work regularly that they would just have to let him go. He also stated that he had asked the boy to stay on and not quit; and that he did not recall anything about the "visitor visit." (5) Mr. Steve Ingram-Steve Ingram testified that Burnett never mentioned the union to him, and the General Counsel admits that none of his testimony could remotely constitute 8 (a) (1). (6) Mr. Houston-Employee Houston testified on page 112 that in response to his question about getting a raise, Burnett said, "You are getting your raise this week " Houston was then asked, "What else did he tell you9," and he testi- fied that Burnett asked what he had been hearing about me, and "I told him I did not know, and he said-I said, Is it about the union, I have not signed a union card." That is as far as I know, he said, "I do not want to hear of it." There are two interpretations that can be placed upon that sentence. Either Burnett did not want to hear anything about union activity, or he did not want to hear of the employee signing a union card. The Respondent believes the former interpretation the more reasonable and logical. (7) Employee Justice-Employee Justice testified on page 127 that, "I mentioned the union . and he asked me what I thought of the union." This employee also testified on page 128 that Burnett said that he understood that the witness had signed a card, and stated that it was not the signing of the card that counted, but the way he voted. And the witness stated that he then asked, 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Well, what do you mean by that, Dick?," and Burnett said , "Well, I mean you vote anyway you want to . you use your own opinion ." This conversa- tion took place during nonworking hours. Parenthetically, it might be here stated also that Justice testified that Burnett asked him if Cook had signed him up during working hours. These then , are the conversations upon which the General Counsel relies to prove that Burnett interrogated employees in violation of the Act, concerning their union membership , activities and desires. (b) Foreman Robinson-The only conversation which the record shows what occurred between Robinson and any employee was that between Robinson and employee Robertson . Initially, the Respondent would call to the attention of the Trial Examiner that the complaint alleges that such interrogation oc- curred on October 14th ; the record shows that this conversation occurred on November 5th. The record also shows , as Robertson himself testified on page 67, that two employees suggested that he go into Robinson's office and discuss the situation with Robinson ; that the foreman would tell him about his previous union experiences . He did so, and Robinson told him of certain relations which he had had with the union several years ago . This testimony was summed up by the employee himself on Page 70 when he said, "He was just telling me his experience and he said it might be organized labor, everything in the plan might be good and then it might be bad; that I can't tell you." In examining this witness' credibility the record is replete with exact dates, and the exact time on those dates, when this employee had discussions with supervisors. For instance , he states on page 75 that he went into Robinson's office at one minute past five. This is then changed to five minutes past one on November 6th. He then states that he stayed with Robinson until about ten minutes after 2.00 A. M., on the same date. On page 67 he states that this employee came over on the night of November 5th just after 8:00 and urged him to talk to "Big Mike" about his experiences . On page 68 he testifies that just after 1.00 or 1:00 A. M., on November 6th, this employee came over and suggested that he go and talk with Foreman Robinson with the remark that he "Won't tell you anything against it or for organized labor, he will just tell you his experiences." Yet under cross-examination by Mr. Smith , Counsel for Respondent, he con- veniently forgot details connected with his association with the union and his activities for it. By Mr. SMITH: Q. Now you remember very clear , Mr. Robertson , minutes and hours and dates and you said you were doing it because you were signing people up in the union. . A. Yes, absolutely. Q. Now with all of that background can't you tell us the day and hour that you signed up with the union? A. Well, No sir, I can't do that. I can't tell the exact date . . . it was either the very last of September or the first of October... . Q. But you are not sure of the date? A. No. Q. Well, let's say you joined up about the last of September or first of October. Now I am asking you when did you take cards to sign other people up? A. I would say somewhere about the 5th to the 10th of October. Q. Would you have any idea of what hour of the day? A. About 7.00 in the evening. Q. Now I am asking you about those dozen that you signed, and I don't want to know, but do you know which ones you signed up first, don't name it? A. No. Q. You would not know which one of those? A. No-I know absolutely, yes, the first one I signed. Q. What day did you sign him? A. I don't recall that date. Q. Do you know the date and hour you slowed down on this union activity? A. No sir, I don't know the date and the hour. Q. Can you give us the dates and hours of any other events except the time you talked with Mr. Burnett , the time you talked with Mr. Robinson, and the time you talked to Mr. Shingleton . Do you have any other dates or hours you can point to? CONTINENTAL TIRE AND RUBBER COMPANY, INC. 557 A. No, sir, I don't believe I can. Q. Did you write those down as they happened? A. Yes. Even more important, however, he testified on pages 84 and 85, with regard to his precise record of such "interrogations," that he kept such recordings on a card, a union card, and that he still had the card handy, and that he had it with him. Yet, later on when Mr. Smith had in hand this alleged record, he cross-examined Robertson as follows, which appears on page 89: Q. Mr. Robertson, did you have this card in your pocket about which you were talking about while ago? A. Yes. Q. This writing appears to have been done all at one time. Did you do it all at one time? A. I recopied off of a dirty card. Q. When did you do that? A. That also I don't know, I would say I don't know, a long time before I was laid off, I know one day there, one afternoon I took it . . . . and put it down on that. In summing up this testimony the Respondent turns to the words of the em- ployee himself. He states on page 87 that he went in and asked Foreman Robin- son about his experiences in the union on company time, that the foreman did not send for him,and that the foreman did not try to keep him out of the union. (c) Working Leader McClellan-With respect to this paragraph, added to the complaint at the hearing, the record shows only one conversation between such foreman and an employee. This occurred between McClellan and employee Houston. The time and date of such conversation are nowhere shown in the record. Houston testified on page 110 that McClellan called him into his office and talked about being in the union. In answer to the query, "What did he say," Houston stated on page 111 that McClellan, "Told him the bad points of it;" that he could not recall anything specifically, but was just general conversation. Al- though McClellan was probably injudicious in this act, it hardly constitutes inter- rogation within the meaning of the Act. With respect to the complaint contained in Paragraph 7, that Personnel Man- ager Burnett threatened to discharge employees if they joined the Union or re- tained membership in, or engaged in activities on behalf of, the union, Respondent can only state that there does not appear in the record any evidence or testimony to support this allegation. With respect to Paragraph 8 of the complaint that Burnett solicited employees to spy upon and keep under surveillance union meetings and activities of its em- ployees, and to advise it of the names of its employees who were members of the union or were active on behalf of the union, Respondent can only state that there is not one scintilla of evidence to support any such allegation. In conclusion, I find that the General Counsel has not sustained the burden of prov- ing the allegations in his complaint by a preponderance of the evidence as required under the Act. CONCLUSIONS OF LAW 1. Babcock and Wilcox Company is, and at all times relevant herein was engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] Continental Tire and Rubber Company, Inc. and United Rubber Cork, Linoleum & Plastic Workers of America, CIO, Petitioner. Case No.10-1ZC-2913. April 29,1955 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election dated December 22, 1954, an election by secret ballot was conducted on January 14, 1955, 112 NLRB No. 71.