Amerace Corp.

National Labor Relations Board - Board Decisions

May 12, 1975

217 N.L.R.B. 942 (N.L.R.B. 1975)

-942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amerace Corporation , Swan Hose Division andUnited
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC. Case 16-CA-5807
May 12, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
KENNEDY
On February 12, 1975, Administrative Law Judge
Russell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and
conclusion s2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Amerace Corporation, Swan Hose Divi-
sion, Stillwater, Oklahoma, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F 2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge's Decision does not resolve a conflict in
the testimony as to the precise date of the first interview. Cartwright testi-
fied that the first meeting occurred on August 29, 1974, while Cavett testi-
fied that it occurred on August 27, 1974. We find it unnecessary, in reaching
our result herein, to resolve this conflict in the testimony because it is the
substance of the last meeting, not the date of the first, upon which this
decision basically rests
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Admimstrative Law Judge: This case
was heard in Stillwater, Oklahoma, on January 22, 1975.'
The complaint, issued December 11, is based on a charge filed
October 18 by Don M. Weber, field representative for United
Rubber, Cork , Linoleum and Plastic Workers of America,
AFL-CIO-CLC, hereinafter referred to as the Union. The
complaint alleges that Amerace Corporation, Swan Hose
Division,' hereinafter referred to as Respondent , violated
Section 8(a)(1) and (3) of the National Labor Relations Act,
hereinafter referred to as the Act.
Issues
The principal issue is whether Respondent violated Section
8(a)(1) and (3) of the Act by refusing to hire Charles Cart-
wright, hereinafter referred to as Cartwright, because he
joined, assisted, or otherwise identified with the Union or
engaged in union or concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Submission of briefs was
waived by General Counsel and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been,
a Delaware corporation with a hose manufacturing facility in
Stillwater, Oklahoma.
During the past 12 months, which period is representative
of all times material herein, Respondent in the course and
conduct of its business operations manufactured, sold, and
distributed products valued in excess of $50,000 directly to
purchasers located in States of the United States other than
the State of Oklahoma.
I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, is, and at all times material herein
has been , a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Background
The controversy herein arose principally from a series of
three conversations between Cartwright and Respondent's
personnel manager, Donald W. Cavett, hereinafter referred
to as Cavett.
Cartwright said he applied for a job with Respondent but
was refused because his stepfather, Harold Davis (hereinafter
Davis), is employed by Respondent and is a union activist.
Respondent contends Cartwright was not hired because he
was making more money per hour when he applied than he
1 All dates referred to hereinafter are within 1974, unless stated to be
otherwise. _
2 Name of Respondent was amended at hearing
217 NLRB No. 160
AMERACE CORPORATION
would make as an entry level employee for Respondent, and
that to hire him under such circumstances would be contrary
to Respondent's employment policies.
Pertinent Testimony
Cartwright testified that, on or about August 29, he filled
out an application for employment by Respondent and spoke
with Cavett. He said Cavett looked over his application and
asked how he and his stepfather were getting along. Cart-
wright said Davis has worked for Respondent about 4 years,
and that Davis told Cartwright he has been active in the
Union during that period of time, his activities including
distribution of literature and service as a union observer in
last year's union election on August 22.
Cartwright said Cavett talked during the interview about
how much the Company had invested in its antiumon
campaign ,' and about alleged union excesses and shortcom-
ings . Cavett allegedly stated that he could not understand
why Davis wanted a union in that Davis "never had it'so
good."
Cartwright stated, "Then I said I couldn't understand why
they wanted a Union in at Swan anyway that they are the best
paying company around Stillwater." At that point, Cavett
allegedly said he would have to speak with Don Fisher (herein-
after Fisher, the plant manager), because of Fisher's policy
relative to hiring relatives.
After two telephone conversations with Cavett between
August 29 and September 7, during which Cavett said he had
not yet talked with Fisher, Cartwright again met with Cavett,
on September 7, in the office of the latter's secretary. Cavett
again said he had not talked with Fisher and scolded Cart-
wright about being so persistent.
Cartwright testified that he had a final conversation with
Cavett in the latter's office on September 17, during which
Cavett allegedly stated, "Charles, this is the third time you've
been out to see us, and we've decided not to hire you .. .
because of Harold." According to Cartwright, Cavett stated:
"Harold has a good work record, but he doesn't like
his job, and he's emphatically a Union man." And I said,
"I thought you would hire me because of me, not for
something someone else does." And Mr. Cavett said,
"Well, blood's thicker than water, and as long as we can
hire the people we want, we're going to hire people that
are loyal to the Company."
On cross-examination Cartwright said he was introduced
to Cavett 2 or 3 years ago, at a company picnic, and that he
said "Hi" to Cavett several times since then, when they met,
although they never had a conversation. Cartwright said Ca-
vett did not discuss his application during any interviews.
Cavett testified that he had never met Cartwright prior to
the time the latter applied for a job at Respondent's plant.
Cavett stated that, after he was introduced to Cartwright
August 27, the two of them "went over the application as to
the possibility of shifts that he could work ... ." Cavett said
Cartwright stated that he was Davis' stepson, to which Cavett
replied that he was interested in Cartwright as an individual.
3 The Union lost the August 22 election at Respondent 's plant.
943
Cavett said Cartwright told him he was still employed as a
carpenter.
Cavett's version of the September 7 interview was:
Q. What took place on September 7?
A. At that-in that meeting-it was a short
meeting-he elaborated on how he could not believe in
what his father-in-law was doing, that he felt there was
no need for a Union, and again I told him I was not
interested in what his father-in-law was doing, it was he
that I was interested in, not his father-in-law.
Cavett said he could recall no discussion of unions at this
meeting.
Cavett testified that he interviewed Cartwright again Sep-
tember 17, at which time they reviewed Cartwright's applica-
tion and Cavett said he was making more than Respondent
could pay; that he felt Cartwright would not be satisfied with
lower pay. Cavett said he left the conversation to talk with
Fisher and recommended they not hire Cartwright because of
the pay differential. Cavett then advised Cartwright of the
decision. Cavett testified that it was company policy to advise
Fisher of all applications from relatives of current employees.
There is no policy against hiring relatives,
On cross-examination, Cavett said he has known Davis
about 5 years and did not know about Davis' union activity.
He said he did know, however, that Davis was a union ob-
server at the election. He stated that, possibly, he could have
met Cartwright at one of the Company's family picnics, but
he did not know-usually about 1,300 people attended. Ca-
vett said he first knew that Cartwright was Davis' stepson
when the former told him August 27.
Analysis
Uncontradicted testimony shows, and it is found, that Ca-
vett had in his current files, during August and September
1974, approximately 400 applications for employment.
Additionally, uncontradicted testimony shows,- and it is
found, that Fisher established and followed the policy as
plant manager of requiring that he be informed in advance
when Cavett planned to employ a relative of a current em-
ployee, or when a decision was made by Cavett not to employ
a relative. In such instances, the final decision to hire or not
to hire a relative is made jointly by Fisher and Cavett. In all
other instances, Cavett alone makes final decisions relative to
hiring.
The record is devoid of any evidence or testimony that
Cartwright was active in, or even interested in, any union or
concerted activities. To the contrary, Cartwright in his tes-
timony acknowledged telling Cavett during the interview of
August 29, "Then I said I couldn't understand why they
wanted a Union in at Swan anyway that they are the best
paying company around Stillwater." He said he told Cavett
that Davis' interest in the Union "was probably a family thing
with him."' It is found that Cartwright was not a union
member or union supporter during any period of time rele-
vant herein. However, the record clearly shows, and it is
4 The portion of Cartwright's testimony relating to his disinterest in the
Union was confirmed by Cavett, but the latter testified Cartwright's state-
ment was made September 7, rather than August 29
944- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found, that Davis was a union observer at the election of
August 22, 1974. Based on that fact, and the testimony of
Cartwright undisputed on this point, it is found that Davis is
an active union supporter.
Cavett testified that he has known Davis approximately 5
years, and that he was present at the union election and saw
Davis acting as an observer. However, when asked on cross-
examination whether he knew if Davis "was quite active in
the Union," Cavett replied that he did not know. Cartwright
testified that Davis mentioned to him Davis' "passing out
literature" and acting as a union observer, but there was no
testimony or evidence showing that Cavett knew about the
literature or any other activity by Davis, except his having
acted as an observer. It is found that Cavett knew Davis was
a union supporter, although he may not have been aware of
the extent of union activity on the part of Davis.
There was testimony that was intended to show that Cavett
knew who Cartwright was when the latter applied for a job,
but a finding on this point is not necessary. Cavett testified
that Cartwright told him during the first interview, on Au-
gust 27, that he was Davis' stepson. The crucial conversation
was the third interview, on September 17.
Cavett testified that he hired 23 employees during Septem-
ber and October, after his third interview with Cartwright on
September 17. He also testified that no special training or
experience is necessary for employment, and that Cartwright
was qualified for any of the entry level jobs available at Re-
spondent's plant.
In support of his complaint, General Counsel relies on
several factors. Most important is Cartwright's testimony
concerning the third interview, held on September 17, at
which time he allegedly was told by Cavett that he was not
being hired because of his stepfather's union activities. Cart-
wright said no other reason was given by Cavett for not hiring
him. Cavett denied that testimony, and said he told Cart-
wright "I felt he was making too much ... making too much
money and would not be satistied with the wage that we could
give him at that point." Cartwright's application shows em-
ployment from November 1973 to the present as a self-
employed carpenter at $5 per hour, with the comment "work
is not steady." Respondent's entry level jobs pay $2.89 per
hour. Cavett testified that he told Cartwright he would not
be hired, immediately after Fisher agreed not to hire Cart-
wright, because of the latter's present earnings being higher
than his entry wage at Respondent's plant would be.
Determination of the controversy thus rests upon assess-
ment of the interview of September 17. Based on observation
of the witnesses, their demeanor, and the nature of the tes-
timony, Cartwright's version of the interview is credited. Ca-
vett's knowledge of Davis' union activity, his evasive tes-
timony when asked why he did not tell Cartwright at the first
interview that the latter's present hourly wage presented a
problem, and his shifting stance on the hiring-of-relatives
question created doubts about his testimony as a whole. Fur-
ther, Cavett testified that hiring of relatives required the com-
bined decision of him and Fisher. He testified that he con-
ferred with Fisher and they reached a decision, after which
he told Cartwright he would not be hired. Under such cir-
cumstances, it would be logical to have Fisher testify about
that decision. Fisher was not called as a witness . Under such
circumstances, the record favors Cartwright's recitation of
events. It is found that Cavett told Cartwright on September
17 that the latter would not be hired because of his stepfa-
ther's union activity. Jobs then having been available, Cart-
wright's being qualified and available for the jobs, and Ca-
vett's telling Cartwright he would not be hired because his
stepfather was a union supporter, it is clear that the allega-
tions of the complaint are proved. It is so found. J. P. Stevens
& Co., Inc., 179 NLRB 254 (1969); The Colonial Press, Inc.,
204 NLRB 852 (1973).
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with Respondent 's operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that Respondent be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act. I shall also recommend that Charles Cartwrightbe made
whole by Respondent for any loss of earnings he has suffered
as a result of Respondent's discriminatory refusal to hire him,
with the sum to-be paid to him computed in accordance with
the formula approved in F W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon computed in the
manner prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact, and the entire record,
I make the following:
CONCLUSIONS OF LAw
1.. Amerace Corporation, Swan Hose Division, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to employ Charles Cartwright for dis-
criminatory reasons, Respondent has engaged in, and is en-
gaging in , unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact and conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
AMERACE CORPORATION 945
ORDERS
Respondent Amerace Corporation, Swan Hose Division,
Stillwater, Oklahoma, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to employ any person in order to discourage
membership in United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO-CLC, or any other labor
organization.
(b) In any like or related manner interfering with, restrain-
ing„ or coercing its applicants or employees in the exercise of
the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer to employ Charles Cartwright in the first availa-
ble job opening for which he is qualified, and make him whole
for any loss of pay he may have suffered by reason of Respon-
dent's discrimination against him, in the manner described in
the section of this decision entitled "The Remedy."
(b) Post at its place of business in Stillwater, Oklahoma,
copies of the attached notice marked "Appendix."6 Copies
of said notice, on forms provided by the Regional Director for
Region 16, after being duly signed by an authorized represen-
tative of the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicious places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 16, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
6 In the event that the Board's Order is enforced by a Judgement of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to s Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After affording all sides an opportunity to present evidence
and state their positions, the National Labor Relations Board
has found that we have violated the National Labor Relations
Act, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization , to form , join, or
assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protection
To refrain from the exercise of any such activities
WE WILL NOT refuse to employ any person in order to
discourage membership in United Rubber, Cork, Lino-
leum and Plastic Workers of America, AFL-CIO-CLC,
or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our applicants or employees in
the exercise of the rights guaranteed to them in Section
7 of the National Labor Relations Act.
WE WILL offer to employ Charles Cartwright in the
first available job opening for which-he is qualified, and
make him whole for any loss of pay he may have suffered
by reason of our discrimination against him.
AMERACE CORPORATION, SWAN HOSE
DIVISION