Barton Brass Works and Precision Machined Parts Co.

National Labor Relations Board - Board Decisions

Jul 21, 1948

78 N.L.R.B. 431 (N.L.R.B. 1948)

-In the Matter of H. J. BARTON, INDIVIDUALLY AND DOING BUSINESS
UNDER THE FIRM NAME AND STYLE OF BARTON BRASS WORKS AND PRE-
CISION MACHINED PARTS COMPANY, EMPLOYER and UNITED CON-
STRUCTION WORKERS OF AMERICA, AFFILIATED WITH THE UNITED
MINE WORKERS OF AMERICA, PETITIONER
Case No. 7-C-140,5.-Decided July 21,1948
Mr. Woodrow J. Sandler, of Detroit, Mich., for the Board.
Mr. Arthur Arduin, of Detroit, Mich., for the Respondent.
Messrs. Irvin F. Sturn and Andrew Agosta, of Detroit, Mich., for
the Union.
Mr. Milford A. Wolfe, of Detroit, Mich., for James Ruck,
complainant.
DECISION
AND
ORDER'
On April 5, 1947, Trial Examiner Isadore Greenberg issued his
-Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
-exceptions to the Intermediate Report and supporting briefs. The
-Respondent requested and was granted permission to argue orally
before the Board in Washington, D. C. On April 19, 1948, the Board
notified the Respondent that it had rescinded its action in granting oral
argument and that, in lieu of oral argument, any party could file a
:supplemental brief or written argument setting forth matters which
would have been covered in the oral argument. The Respondent filed
:a brief in lieu of oral argument.
IThe provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act, which
the Trial Examiner found were violated , are continued in Section 8 (a) (1) and 8 (a) (3)
of the Act, as amended However, this case involves unfair labor practices against a
-supervisor, and the amended legislation now excludes such employees from the protection
-of the Act. This phase of the case is considered below.
78 N. L. R. B., No. 56.
431
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 2 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the exceptions, modifications, and
additions noted below.
1. The Respondent conceded at the hearing that he was engaged in
commerce within the meaning of the Act. However, he took exception
to the finding of the Trial Examiner to that effect, contending that,
inasmuch as Ruck and Plemmons were discharged in January 1945,
jurisdiction in this case must turn upon the commerce facts during
the year 1945. In his view, because all his raw materials were pur-
chased in the State of Michigan during that year and only 7 percent,
or about $28,000 worth, of his finished products was shipped outside
the State, the volume crossing State lines was not sufficient to bring;
the operations within the Board's jurisdiction and the maxim de
minimis applies. We are unable to agree with the Respondent's
position. The facts, as found by the Trial Examiner and concerning
which there is no dispute, show that during 1944 and 1946 the Re-
spondent was engaged in interstate commerce, and we so conclude.
The position of the Respondent is therefore tantamount to this : A
busines's which is interstate in character is not subject to the jurisdic-
tion of the Board during those annual periods when goods cross State
lines in such small volume as to make applicable the maxim de minimis.
The logical extension of this argument is that the Board's jurisdiction
over an employer should turn upon the applicable commerce facts
during a given month, week, or day. To state the proposition is to
demonstrate its unreasonableness. In this case, it would mean that the
Respondent's conduct occurring in December 1944 (such as the lock-out
of its employees) would be governed by the Act, but its conduct in
January 1945 would, not. In any event, however, we are persuaded
and find. that the amount of goods crossing State lines in 1945 was not
within the maxim de minimis 3 and. that the jurisdiction of the Board
over the Respondent is clear. Like the-Trial Examiner, we therefore
find that the Respondent is engaged in commerce within the meaning
of the Act.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -man panel- consisting of the undersigned
Board Members [ Fiduston ,' Murdock, and Gray].
3 "De minimis in the law has always been taken ffo'mean'trifle's-matters of few ddllara
or less." N. L . R. B. v. Suburban Lumber Company , 121 F. ( 2d) 829 , 832 (C. C. A. 3).
cert. denied 314 U. S 693.
BARTON BRASS WORKS AND PRECISION MACHINED PARTS Co. 433
2. The Respondent, relying on the limitation in Section 10 (b) of
the Act, as amended,4 contends that the Board should not consider
certain matters alleged in the complaint because the charges upon
which such allegations are based were filed by the Union more than 6
months after the alleged unfair labor practices took place. We have
heretofore held, as we do now, that this provision of the Act cannot
have a retroactive effect so as to invalidate a charge filed before the
effective date of the amended -Act. Accordingly, we find no merit in
this contention.
3. In agreement with the Trial Examiner, we find that the Respond-
ent interfered with, restrained, and coerced his employees in the
exercise of the rights guaranteed them in Section 7 of the Act (1) by
locking the front doors of his shop during the lunch hour on December
12, 1944, upon becoming aware that his employees were then attending
an organizational meeting elsewhere in the building, and thereby
barring them from reentering the shop ; 6 (2) by telling the employees
on this occasion that, if they wanted to return to work and "forget
all this nonsense," they could do so, but if not, they could "consider
[themselves] through"; (3) by posting a notice to the employees the
very next day to the effect that he was closing his shop;' (4) by laying
off a number of employees at that time; and (5) by statements to
Lockridge on the day he posted the notice, and to Plemmons on several
occasions thereafter, that he would close his shop before he "would
have a union in there."
4. The Trial Examiner also found, as do we, that, on February 11,
1945, about a month after Plemmons' discharge, the Respondent
answered Plemmons' request as to "when things were going to pick up
so that he could be back in there" in the following manner : "I used to
think an awful lot of you, but you stepped your foot in it now. You
were trying to bring the Union in on me. If you wanted to organize
the place, why didn't you bring your cards over and lay them on the
table and talk things over? . . . No one working for the Union
* This limitation provides that "no complaint shall issue based upon any unfair labor
practices occurring more than 6 months prior to the filing of the charge with the Board "
5 Matter of Bernard Fisch et at . d/b/a Union Products Company, 75 N. L. It. B. 591.
"Like the Trial Examiner, we reject the Respondent 's contention that he did not know
,of the purpose of the meeting at that time . Barton, himself , testified that, upon inquiring
during the noon hour as to where the girls were, he was told by an employee that "there
was some talk about a rest room they wanted " and that, after the girls came back , he found
out "the complaint was that they wanted to put Jimmy Henderson ( a foreman ) back to
work " It is thus apparent that one of the known causes for the meeting was to engage
in concerted activities with respect to working conditions Inasmuch as this type of
activity is clearly protected in the Act , we find it unnecessary to pass upon the Respond-
.ent's further contention that he had the right to object strenuously to the dictation of some
of his employees on the selection and retention of a foreman.
' The Trial Examiner fixes the date variously as December 12 and December 13. The
correct date is December 13, and we so find.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can work for me." Although the Trial Examiner relied upon this
statement in connection with his ultimate finding that the Respondent
discriminated with respect to the hire and tenure of employment of
Plemmons, a conclusion which we do not adopt, he failed, apparently
inadvertently, to find that this statement, standing alone, violated
Section 8 (1) of the Act. We are persuaded that the quoted language
of Barton constituted threats of reprisal and, as such, is per se violative
of the Act, and we so find."
5. We do not agree with the Trial Examiner's conclusion that, be-
cause Plemmons aided the Union in its organizing efforts at the shop,
the Respondent discharged and refused to reinstate him, thereby violat-
ing Section 8 (3) of the Act. Rather are we persuaded that the
Respondent discharged Plemmons because it no longer had any work
of the type that Plemmons could do, and because Plemmons was a
part-time employee and part-time work was then discontinued ; and
that it thereafter refused to reinstate him because of the non-avail-
ability of such work.
Crucial on the issue of the availability of work for Plemmons at
the close of the last day of his employment, is Plemmons' admission
at the hearing that he was then aware of the fact that there was no
more work for him. Thus, in reply to the question "And how did
you find out that you weren't working there anymore?" he replied,.
"Well, I knew that there was no more grinding to be done or anything
like that, that they would have to start up on the new parts before
there would be any more work to do." s This admission, as well as
the fact that no untoward incident occurred about that time between
the Respondent and Plemmons to precipitate the discharge, negates
any conclusion that Plemmons' union activity was the motivating
cause of the discharge.
The non-discriminatory character of the discharge is further em-
phasized by the fact that Plemmons was, contrary to the conclusion
of the Trial Examiner, a part-time employee and that his termination
coincided with that of virtually all part-time employees. On the issue
of Plemmons' employment status, we regard as especially significant
(a) that the Respondent deemed it necessary to request permission of
For the reasons already stated by us in prior decisions, we do not adopt the Trial
Examiner's finding that, by the totality of its acts and statements, the Respondent violated
Section 8 (1) of the Act. Matter of Babcock and Wilcox, 77 N. L. R. B. 577 and cases
cited therein.
6
The record is undisputed that a Federal regulation prohibited the commingling of
rejects with regular production, and that, as a consequence, there was no regular production
immediately available and no work for Plemmons.
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 435
Plemmons' regular employer before utilizing his services; 10 (b) that
Plemmons served both the Respondent and the building manager dur-
ing the ensuing 27-week period, and, in addition, took a week off from
the Respondent's shop during December 1944 to work as an inde-
pendent contractor for another party; (c) that Plemmons did not
work a regular shift for the Respondent but maintained split hours;
(d) that the number of Plemmons' working hours per week for the
Respondent was keyed to the rulings of the War Labor Board for
part-time employees; 11 and (e) that Plemmons neither had to furnish
a certificate of availability before starting to work nor had to obtain
a release upon the termination of his employment for the Respondent,
as was required of full-time regular employees. In view of the fore-
going, as well' as the circumstance that, after Plemmons was termi-
nated, operations were placed on a regular schedule with regular
shifts, and all part-time employees except a truck driver were like-
wise terminated, we find merit in the Respondent's exceptions and
conclude that Plemmons was discharged for cause on January 12,
1945.
Our disagreement with the Trial Examiner's further conclusion
that Plemmons was thereafter discriminatorily refused reinstatement
stems largely from our inability to find, on the basis of the record,
that there was work available for Plemmons in his job or in an equiv-
alent one on the several occasions when he applied. As already found,
part-time employment had been discontinued by the Respondent after
January 12. In addition, it does not appear, nor is it contended, that
the Respondent thereafter engaged a centerless grinder on a part-time
basis to replace Plemmons.
And, although the record does disclose that at the time of the hear-
ing the Respondent had one centerless grinder in its employ on a full-
time basis, we have serious doubts as to whether Plemmons had the
necessary attributes for handling such a position, which called for read-
ing blueprints, estimating, and setting up jobs. Thus, Plemmons ad-
mitted that he could read blueprints only "to a certain extent," that he
was not familiar with the technical terms and instruments used in
10 Plemmons was then employed as a painter and general maintenance man of the build-
ing in which the Respondent ' s shop was located , a job which required about 5 hours a night
of Plemmons ' time, 6 nights a week . The building manager indicated that Plemmons could
work for the Respondent "as long as it didn't interfere with his regular work "
'i we credit the uncontradicted testimony of the Respondent that, at the time Plemmons
was hired , be was told , as were all other part - time employees , that , due to a ruling by the
war Labor Board, his work as a part-time employee would be limited to 30 hours a week.
We also credit his further undemed testimony that Plemmons was thereafter permitted to
work longer hours, when a subsequent ruling by the war Labor Board permitted part-time
workers to work an unlimited number of hours Accordingly , the fact that Plemmons
worked overtime from 1 to 33 hours per week in excess of a regular 40-hour week during 19,
of the 27 weeks, does not, in our opinion , merit the weight and significance given it by the
Trial Examiner.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setting up jobs; and that he had never done machine-shop work until
he was hired by the Respondent, and made no effort after his discharge
to obtain similar machine-shop employment elsewhere.
Under these circumstances, and in view of the fact that, sometime
after January 12, 1945, the Respondent offered, but Plemmons refused,
a paint job in the Respondent's Chene and Erskine Street plant, we are
unable to conclude, as did the Trial Examiner, that the coercive re-
marks made to Plemmons on February 11, 1945, in the course of apply-
ing for reinstatement, establish a discriminatory motivation in the
refusal to rehire. Accordingly, we find merit in the Respondent's ex-
ceptions to the Trial Examiner's finding of discriminatory refusal to
reinstate Plemmons after January 12, 1945.
6. We agree with the Trial Examiner that the Respondent dis-
criminatorily discharged Ruck, a supervisory employee, on January
11, 194512 Although various reasons were urged during the course
of the proceeding in justification of the discharge, the final position,
as presented in 'the Respondent's briefs and exceptions, is substan-
tially as follows : (1) Ruck was at best a "short-time" employee who
was hired upon his representation that he could successfully salvage
certain rejected parts; (2) despite this representation and notwith-
standing an incentive raise, Ruck's method of salvaging failed; (3)
Ruck was thereupon terminated because the Respondent neither needed
him nor could afford him.
The credible evidence establishes that, at the time of Ruck's hiring
on December 15 '13 nothing was said about when his employment would
terminate. It establishes further that Ruck's plan for salvaging the
rejects was adopted and followed to completion by the Respondent.
Significantly, too, within 2 weeks of his original hiring and several
days before the salvage work on the rejects began, Ruck's wages were
raised from $1.40 per hour to $125 per week-a factor which, in our
opinion, serves to emphasize the permanency of Ruck's tenure and to
negate the Respondent's contention that his work was faltering and
needed an incentive. And while the termination of Ruck's employ-
ment coincided with the completion of the salvage operation, we are
satisfied, as was the Trial Examiner, that there was then available un-
completed work which had been assigned to Ruck for production.
In view of the foregoing, including the fact that Ruck's discharge
occurred without warning or advance notice, immediately after he
had told the Respondent that "[he was] not interested in busting up
any unions," we are satisfied that none of the asserted reasons were op-
13 Unlike the Trial Examiner , we find it unnecessary in reaching this conclusion to rely
upon any testimony relating to Plemmons' case
13 At one point in the Intermediate Report, the Trial Examiner inadvertently fixes this
date as December 14
BARTON BRASS WORKS AND PRECISION MACHINED PARTS Co. 437
erative factors in connection with his discharge.14 Rather do we find,
as did the Trial Examiner, that the Respondent discharged Ruck be-
cause of his refusal to cooperate in undermining the Union's organiza-
tional campaign among its employees and because the Respondent
believed that Ruck was sympathetic to the Union's campaign 15
The Respondent contends that, inasmuch as Ruck was a supervisor
when discharged, Section 2 (3) of the amended Act 16 prevents the
Board from finding any discrimination in his hire and tenure. How-
ever, Ruck was discharged early in 1945 at a time when supervisors
were within the Act's protection. We therefore find, for the reasons
stated in flatter of Republic Steel Corporation (Upson Division), 77
N. L. R. B. 1107, that the Respondent has, by the discriminatory
discharge of Ruck, incurred a liability existing beyond the effective
date of the amendments to the Act, which the Board has the power to
adjudicate and to remedy." As to the remedy itself, we find also,
as in the Republic Steel case, that it should be limited to restoring the
discharged supervisor to status quo. Accordingly, we shall not adopt
the part of the Trial Examiner's recommendation to include cease
and desist provisions which would enjoin the Respondent from en-
gaging in a course of conduct no longer unlawful, but shall require
the Respondent to reinstate Ruck. In the latter connection, however,
because there has been an unexplained and unreasonable delay of
approximately 14 months (i. e. from January 11, 1945, to March 4,
1946) in the filing of a charge with respect to the discrimination
against Ruck, we shall order, in conformity with our policy in such
cases, that the Respondent pay back pay, in the manner hereinafter
set forth, only for the period from March 4, 1946, the day on which the
charge was filed, to the date of an offer of reinstatement."'
li We find it unrea.onable to conclude as the Respondent contends , that the above-quoted
words carried an implication that Ruck was no longer the representative of management.
Nor dues this remark place Ruck in the position of encouraging or discouiaging membership
in the rank -and-file union or of engaging in concerted activities with production workers.
15 Coutrai y to the Respondent , we do not regard as controlling on the issue of the
Respondent ' s motivation in the discharge the tart that, when Ruck communicated with the
Respondent after his separation , he neither asked to be reinstated to his former job, nor
made any reference to the fob,
iBThe pertinent poition of section 2 (3) provides that the term "employee" shall not
include an individual employed as a supervisor.
17 For a similar holding with respect to the Respondent's broad contention that the Board
may not adjudicate and iemedv unfair labor practices wheie, as here, the unfair labor
practices Here pending but not yet decided as of August 22, 1947 , the effective (late of the
amended Act, and the charging union has not complied with Section 9 (f), (g), and (h) of
the amended Act, see Matter of Marshall and Bruce Company, 75 N L R B 90, N L R B.
v National Gai mcnt Company and Wells Wear Company, 166 F (2d) 233, 236 (C C A 8)
decided January 7, 1948
i Mattes of Phoenix Mutual Life Insurance Company, 73 N L R B 1463 , Matter of
Cannon Manufacturing Corporation , et at , 71 N L. R B 1059
Member Gray has indicated in the Republic Steel case the extent of his disagreement
with the remedy ordered therein However , inasmuch as the majority position is now the
law, lie accepts it without expressing a dissent
798767-49-- -vol 78 29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent also contends, in effect, that, irrespective of the
power of the Board to order the reinstatement and back pay, it should
not do so because of the change in the Respondent's business after the
discharges . In his brief before the Board, the Respondent offers
additional proof of such changes, in the form of an affidavit, and
requests that the Board reopen the record before disposing of the issue
adversely to him.
The Trial Examiner found, and we agree, that the record is insuffi-
cient to warrant definitive findings with respect to whether or not
conditions in the Respondent's business had so changed after the dis-
charge of Ruck, and particularly since the end of the war, as to render
unavailable a position for Ruck. He recommended the usual remedy
pointing to the opportunity of adjustment to any changed conditions
at the time of reinstatement. The remedy, however, does not specifi-
cally provide for its accommodation to any changed conditions. We
shall so provide by reserving the right to modify the back-pay and
reinstatement provisions herein, if made necessary by a change of con-
ditions in the future, and to make such supplements thereto as may
hereafter become necessary to define or clarify their application to a
specific set of circumstances not now appearing.'`'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, H. J. Barton,
individually and doing business under the firm name and style of
Barton Brass Works and Precision Machined Parts Company, Detroit,
Michigan, his agents, successors, and assigns shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing his
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Construction Work-
ers of America, affiliated with the United Mine Workers of America,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
" JfattUr of Fairmont 0 cauirry, 64 N 7. R B 824, 830
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 439
(a) Offer to James Ruck immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges ; 20
(b) Make whole the said James Ruck for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him, by
payment to him of a sum of money equal to that which he normally
would have earned as wages during the period from March 4, 1946,
the date upon which charges were filed on his behalf, to the date of
the Respondent's offer of reinstatement, less his net earnings during
said period ;
(c) Post at his place or places of business in Detroit, Michigan.
copies of the notice attached hereto marked "Appendix A." 21 Copies
of such notice, to be furnished by the Regional Director for the Sev-
enth Region, shall, after being duly signed by the Respondent or his
representative, be posted by the Respondent immediately upon receipt
thereof and maintained by him for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that the said notices are not altered, de-
faced, or covered by any other material;
(d) Notify the Regional Director for the Seventh Region (Detroit,
Michigan) in writing, within (10) days from the date of this Order,
what steps the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent unlawfully discriminated against Gordon Plemmons
with respect to his hire or tenure of employment, be, and it hereby is,
dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self- organization,
to form labor organizations, to join or assist UNITED CONSTRUC-
TION WORKERS OF AMERICA, affiliated with the United Mine
20 The Board expressly reserves the right to -nodify the back-pay and reinstatement pro-
visions , if made necessary by a change of conditions in the future , and to make such
supplements thereto as may hereafter become necessary in order to define or clarify their
application to a set of circumstances not now appearing.
2i In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice , before the words : "A Decision and Order," the words : "A
Decree of the United States Circuit Court of Appeals Enforcing."
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
All our employees are free to become or remain members of
the above-named Union or any other labor organization.
HIRAM J. BARTON,
BARTON BRASS WORKS,
PRECISION 1'1.1CIIINED PARTS CO.,
Employer.
By -----------------------------------
(Repie.entatue) (Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Woodrow J. Sandler, for the Board.
Messrs. M. Arthur Arduin and George Stone, of Detroit, Mich, for the
respondent.
Mr. Milford A. Wolfe, of Detroit, Mich ., for the complainant , James Ruck.
Messrs. Irvin F. Sturm and Andrew Agosta, of Detroit, Mich., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge filed on October 9, 1946, by United Construction
Workers of America, affiliated with the United Mine Workers of America, herein
called the Union, the National Labor Relations Board, herein called the Board,
by its Acting Regional Director for the Seventh Region (Detroit, Michigan),
issued its complaint dated October 10, 1946, against H. J. Barton, individually
and doing business under the firm name and style of Barton Brass Works and
Precision Machined Parts Co., herein called the respondent, alleging that the
respondent had engaged and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3), and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint, accompanied by notices of hearing thereon, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent in violation of Section 8 (1) of the Act, has since December
1944 urged, persuaded, and warned his employees to refrain from becoming or
remaining members of the Union; threatened to discharge employees if they
joined or assisted the Union ; interrogated employees as to their union affiliations;
threatened to close his business in order to prevent the organization of his
employees, closed his business almost completely from September 12, 1944, to
January 31, 1945, immediately following the employees' first organizational meet-
ing for the purpose of restraining his employees from joining or remaining meni-
bers of the Union; and, in violation of Section 8 (3) and (1) of the Act, dis-
charged James Ruck on January 11, 1945, because he refused to cooperate with
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 441
the respondent in the latter's anti-union campaign ; and discharged Gordon Plem-
mons on January 6, 1945, because he had joined and assisted the Union.
The respondent duly filed an answer in substance denying the foregoing
allegations, and alleging affirmatively that he discharged Ruck and Plemmons for
incompetence and other reasons.
Pursuant to notice, a hearing was held November 6-8, 1946, at Detroit, Michi-
gan, before the undersigned, the Trial Examiner duly designated by the Chief
Trial Examiner. The Board, the respondent, and the complainant Ruck were
represented at the hearing by counsel; the Union by lay representatives. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. At the close of the
Board's case, a motion of counsel for the respondent to dismiss the complaint was
denied by the undersigned. The undersigned reserved ruling on a renewal of the
same motion at the close of all the proof. The motion is hereby denied. At the
conclusion of the hearing, the undersigned granted a motion to conform the
pleadings to the proof as to such formal matters as names and dates. Although
afforded opportunity to do so, none of the parties presented oral argument and
only the respondent filed a brief and proposed findings of fact and conclusions of
law.'
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Hit am J Barton, has since about 1934 done business under
the assumed name and style of Barton Brass Works, in the city of Detroit,
Michigan, where lie now operates a brass foundry, aluminum foundry and
machine shop under the aforesaid assumed name From approximately March
13, 1944, to April 10, 1946, the respondent also did business under the assumed
name and style of Precision Machined Parts Company in the same city, during
which period, for bookkeeping purposes, he conducted most of the machine shop
operations of his business under the assumed name, Precision Machined Parts
Company, and the foundry operations under the assumed name, Barton Brass
Works. At all times, however, the respondent remained the sole owner and
operator of the entire business, and when he ceased doing business under the
assumed name, Precision Machined Parts Company, he continued to carry on
both the foundry and precision machining operations under the assumed name,
Barton Brass Works. Even during the period in which the respondent did
businesss under both assumed names, he operated his enterprise as one integrated
business, interchanging supervisory and rank-and-file employees and equipment
between the foundry and machine shops, making one income tax return, and
filing combined withholding receipts for employees' income tax deductions.
For cost accounting purposes, however, the respondent kept separate bank
accounts under the two assuuled nannes, Barton Brass Works, and Precision
Machined Parts Company. Orders from customers were taken in the name of
Barton Brass Works, and the costs of the foundry and rough machining operations
',The finding of f,l(t and conclusions of law submitted by the respondent were not dis-
tinguished one from the other , and were numbered from 1 through 10 In accordance
with the findings and conclusions hereinafter made, the undersigned hereby rejects each
and every one of the proposed findings and conclusions submitted by the respondent.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were charged on the respondent's books to that account. The precision machining
operations were nominally "sub-contracted" to the Precision Machined Parts
Company and the costs of those operations were charged to that account.
Precision Machined Parts Company had no "customers" except Barton Brass
Works.
The respondent's entire production during the period of his operations under
the assumed name, Precision Machined Parts Company (until V-J Day, August
14, 1945) consisted of valve guides for airplane engines, which the respondent
manufactured under sub-contracts, and which were used in military airplanes of
the United States Air Forces.
During the said period, the raw materials used in the operations of the
respondent consisted principally of'package ingots of brass. During the calendar
year 1944, the respondent purchased raw materials valued at approximately
$71,000 of which approximately 35 percent was shipped to the respondent from
points outside the State of Michigan. During the same year the respondent's
sales of finished products amounted in value to approximately $411,000 of which
approximately 7 percent was shipped to points outside the State of Michigan.
During the calendar year 1945, the respondent purchased all of his raw materials
in the State of Michigan, but shipped approximately 7 percent of his finished
products to points outside the State of Michigan,' From January 1946 to October
1946, the respondent purchased raw materials consisting of brass and aluminum
ingots, of a value of approximately $30,000, of which approximately 24 percent
was shipped to the respondent from points outside the State of Michigan. During
the same period, the respondent sold finished products consisting of aircraft
valve guides, automobile engine bushings, and aluminum castings, of a value of
approximately $105,000, of which approximately 30 percent was shipped to points
outside the State of Michigan.
The respondent concedes that he is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
United Construction Workers of America, affiliated with the United Mine
Workers of America, is a labor organization admitting to membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The events herein discussed occurred in and around the machine shop operated
by the respondent on East Grand Boulevard, Detroit, Michigan, under the as-
sumed name, Precision Machined Parts Company. On or about December 12, 1944,
all but one of the female employees on the day shift of that shop held a meeting
during their lunch hour, in the rest room of the building in which the shop was
located a At this meeting, the employees discussed the question of whether or not
to join a union, and if so, with which union they should affiliate.' While the girls
were at the aforesaid meeting, and before the end of the lunch hour, the re-
spondent, H. J. Barton, came into the shop and asked employee Gordon Plemmons
2 During this period, up to about V-J Day, August 14, 1945, the respondent's entire
production found its way into military aircraft of the United States Air Forces.
8 The rest room was not part of the premises of the respondent ' s shop, but was one used
also by employees of other tenants of the same building.
4 The above findings are based on the undisputed testimony of employee Lois Lock-
ridge, who impressed the undersigned as a credible witness.
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 443
where the girls were. Plemmons informed him that "one of the girls had told
[Plemmons] that they were going over to the office to ask [the respondent] to
take back on a foreman that had been fired that day."' Thereupon, Barton locked
the doors to the shop, barring the girls at the meeting from re-entering it when
they sought to return to work at the end of the lunch period. Barton met the
returning employees at the door and informed them that if they "wanted to go
back to work and forgot all this nonsense," they could do so, and if they "didn't
[they] could consider [themselves] through."' Atter the end of the day shift
that afternoon, the girls attended another meeting in the lunch room of, the
building. This meeting was arranged by Plemmons, who had been asked by some
of the girls for advice as- to a union with which to affiliate. Pursuant to the
arrangements, two representatives of the Union, as well as Plemmons himself,
were in attendance. At this meeting, Plemmons helped to "sign up" for the
Union a number of the employees, including Lockridge, who were present.'
The next day, December 13, the respondent admittedly posted in the shop a
notice to the effect that he was going to shut down the shop because of his ill
health. At the end of the day shift that day (December 13), the girls on that
shift were given their pay checks and laid off.'
In his brief, the respondent contends that he posted the notice on December 13,
1944, announcing that he was closing his shop, on account of bad health,' because
he had, at about that time, had a large quantity of his product rejected as not
conforming to specifications, by one of his largest customers (the Ford Motor
Company), and because the resulting worry and financial strain created a situa-
tion which "was too much for him." The respondent testified at the hearing
that "any lay-off [of employees at about that time] was due to change in the
production due to the [aforesaid] rejects from Ford Motor and that is all."
Consideration of other portions of the respondent's testimony, as well as other
evidence in the record, however, makes it clear that the reasons above assigned
by the respondent for posting this notice, and putting into effect the lay-off, were
not the real motives actuating such actions on his part. Thus, at one point the
respondent testified as follows in response to questions by his counsel:
Q. Mr. Barton, will you explain to this Court why you posted that notice?
The undersigned bases the above findings on the credited testimony of Plemmons
which was substantially corroborated by that of Barton. The latter at one point in
his testimony stated that when he asked where the girls were, he was informed that they
were at a meeting and at another point, that Plemmons told him, "the gang wanted Jimmy
[the discharged foreman] back"
8 The above findings are based on the credited testimony of Lockridge and Plemmons.
Barton, in his testimony, admitted that the above-described occurrence took place sub-
stantially as above related, but denied that he had told the girls that if they wanted
to go back to work "they would have to forget about this nonsense ." Barton testified
that he merely told the employees that "if they wanted to work, go to work ; if they
didn't want to work, go home." The undersigned, who was impressed by Lockridge as
a more reliable witness than Barton, credits the former's version of the conversation.
7 The above findings are based on the undenied, credited testimony of Plemmons, which
was corroborated in part by that of Lockridge.
8 The above finding is based on the credited, undenied testimony of Lockridge Barton,
whose testimony as to the time of the above-described lay-off was vague, did not deny
that he had laid off some employees immediately after posting the notice, and at about
the time when "there was the beginning of" labor trouble in his shop, but testified that
he could not remember the exact date of the lay-off, except that he "believed" some were
laid off before, and some after the posting of the notice.
9In support of the above contention, the respondent introduced into evidence a state-
ment from a physician to the effect that the respondent had been continually under the
physician 's care since 1942, and that "it is very important that this patient avoid physical
and mental strain."
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Arduin ) Will you answer that, Mr. Barton?
A Yes I didn't feel good, I think they ganged up on me a little faster
than what I could take it.
Q. Well, you say they ganged up on you, will you please be a little more
explicit?
A. Yes, the main thing was the rejects from the Ford Motor, put me on the
spot I didn't know how I stood with the Air Corps inspectors, I didn't know
whether they were going to-we did have a pretty good reputation over
there, and I didn't want anything to happen to ruin it for the duration, that
was number one. The next thing, when these rejects came back from Ford,
instead-we got the rejects instead of money. We was carrying a heavy
payroll and buying lots of stock and we were not borrowing any government
money or any bank money, we were doing it on our own, and we didn't have
any credit set up, and we missed the money, and I was put to it for finances
and then just at this time the labor destat bance Caine ap and that was another
headache, because I hadn't figured on anything of that kind, of hadn't even
thought about at. [Emphasis supplied.]
Q. Now what way did you figure the labor disturbance would hinder you?
A. I didn't know. It isn't what a fellow knows that is going to happen
that hurts him, it is what he don't know that is going to happen. It is the
worry of what might happen, and I had weak supervision at the time, and
it threw all the detail on 1ne. I didn't have anyone that I could turn to very
much. I had to carry the thing alone.
Under cross-examination, the respondent testified as follows :
Q. (By Mr. Sandler.) Now, Mr. Barton, you testified that one of the
reasons you put up a notice, one of the reasons, you said, was that there
was a labor disturbance at that time, is that correct?
A. Disturbance of everything.
Q. Yes, but you stated-
A. Scrap coming back, the labor trouble, rejects from the Ford Motor
coming back, labor disturbance, the financial disturbance, and change in
supervision.
Q What was the nature of the labor disturbance that came up at that
time?
A. It was the notice from the War Labor Board, that the Mine Workers
wanted an election to decide on a union.
Q. You mean the National Labor Relations Board?
A. I think it was, I don't know.
Trial Examiner GREENBERG. Well, it was the National Labor Relations
Board, we all know that.
The WITNESS. I guess it was.
Q (By Mr. Sandler.) As a matter of fact, you got your notice from the
National Labor Relations Board-
A. That is right.
Q. Some time after you had put up this notice, isn't that correct?
A. I don't remember the dates.
Q. Don't you remember that you got your notice from the National Labor
Relations Board after you had put up this notice?
A. I don't know whether it was after or before, I don' t remember.
Q. Hadn't you already started to lay- off some employees pursuant to the
notice you put up, prior to your receipt of a notice from the Labor Board?
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 445
A. Any layoff was due to change in the production due to the rejects from
Ford Motor, and that is all.
Q. Immediately after you posted the notice we are talking about, did
you not start to lay off some employees ? You put up a notice saying you
were going to close the plant down, and isn't it true that you started to lay
off employees immediately , pursuant to that notice? Forgetting the reasons,
isn't that true? -
A. I believe there were some laid off before that notice.
Q Pardon me?
A. I believe there were some laid off before I put up the notice.
Q. Isn 't it true? I am sure that-
A. And some after, that is right.
Q. And-
A. Whatever the records show on the books, I don't remember the names
or the dates. I can get that from the records.
Q. Now you knew prior to the receipt of that notice from the Labor Board,
that there was some labor unrest in your plant, didn't you, Mr. Barton?
A. That was the day the girls didn't conic back to work.
Q. That is right.
A. That is right.
Q. And you knew that that was a labor disturbance, that was labor unrest?
A. That is what I called it. [Emphasis supplied.]
In addition to the respondent's own testimony, as above set forth, the record
contains other evidence shedding light on the motives which led the respondent,
first, to announce that he was closing the shop, and secondly, actually to lay off
a number of employees For example, as Lockridge testified, the respondent
stated to her on December 12 (the day he posted the notice) that "lie wouldn't
have a union in [his plant ]," and that "he would close his business up before he
would have a union in there ." Plemmons likewise testified that a day or two
after December 13, and again shortly after the first of January 1945 , Barton told
him that he [Barton] "didn't want the Union in his shop," and that "lie would
sell the shop out before he would have the Union in there." 10 Moreover, according
10 The undersigned credits the above -quoted testimony of Lockridge and Plemmons.
Barton denied that he had ever told Plemmons or anyone else that he would "rather
close the place down if the Union got in " The undersigned does not credit this denial.
Both Plemmons and Lockridge impressed the undersigned as more reliable witnesses than
Barton, whose testimony as to many important details was self -contradictory and vague.
Moreover , as has been noted , Barton admitted that he was motivated in posting the
December 13 notice , which announced that he was going to close his shop , not only by
his illness and other troubles , but also, in part , by his fears as to the consequences of
the organizational activities of his employees , to which lie referred as "the labor dis-
turbance ." In view of this state of mind on the part of the respondent which admittedly
led him, among other reasons , to threaten to close the shop , Plemmons ' and Lockridge's
testimony that Barton , in conversations with them , threatened to close the shop before
he would allow it to be unionized , seems highly believable
In view of the foregoing , and of all the other circumstances , the undersigned infers that
the respondent was aware of the fact that his employees were engaging in organizational
activities , and, consequently , rejects the contention put forward in the respondent ' s brief
( p 14) that "there is no evidence that [ Barton] knew of the purpose of the meeting
[of December 121 " In fact, the respondent himself testified that the one girl employee
who did not attend the meeting told him, in response to his inquiry as to where the
girls were, that " there was some talk about a rest room they wanted ," and that "after
the girls came back" lie "found out the complaint was that they wanted to put Jimmy
Henderson back to work. .. 21 It is thus plain that the respondent knew at the time
that the girls were engaging in concerted activities with respect to grievances.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the testimony of Plemmons, which the undersigned credits, on February 11,
1945, when Plemmons, after being discharged, asked Barton for reinstatement to
his job,11 Barton told him abong other things that "the Union had caused him
to lay off . . . several girls . for around sixty days." And on the
same occasion Barton berated Plemmons for having told him that the "girls
was coming over to the office to see [Barton] about taking back Jimmie
Henderson" when Plemmons "knew better than that" and "knew where those
girls was at all the time." Also pointing towards the underlying reason which
motivated the respondent to post the notice, and lay off the employees on
December 13, is the remark made by Barton to James Ruck on or about December
16, a day after Ruck was hired by the respondent as his chief inspector. On
the said occasion, as Barton was showing Ruck through the plant, the latter
remarked that there did not seem to be a sufficient number of employees to handle
the work Barton answered that "lie had some labor trouble there, and he laid
off quite a few of the girls." 12
In support of his contention that the ht.) -off in question was clue to the necessity
of re-working the rejected parts which had been returned to him by the Ford
Motor Company, the respondent further testified that the girls were laid off
"while we held up regular production, until we got all these rejects out." How-
ever, the lay-off in issue, which occurred on December 13, 1944, could not pos-
sibly have been caused by the work of correcting the defective parts, since, as is
undisputed, the work of salvaging the rejects did not begin until on or about
January 3, 1945.
From all the evidence, the undersigned is persuaded, and therefore finds, that
the respondent locked the doors to his shop on December 12, 1944, while the em-
ployees were attending their first organizational meeting, '3 posted the notice on
December 13, 1944, announcing to his employees that he was going to close
his shop, and on the latter date laid off a number of the employees, because
the respondent was opposed to the organizational activities in which he knew
the employees were then engaged, and in order to discourage them from con-
tinuing such activities Even if we were 'to accept as fact the respondent's con-
tentions that his illness, and certain problems affecting his business, played
some part in motivating him to announce the closing of the shop, and effectuating
The subject of Plemmons' subsequent discharge is discussed below.
12 The above finding is based on the testimony of Ruck, which is credited by the under-
signed With regard to this conversation, Barton testified as follows :
Q. Mr. Ruck stated on the stand that you had labor trouble at that time
A There was the beginning of it.
Q. Well, now, he said that you had laid off a number of girls. Is that true or not?
A We did lay off a bunch of girls, sure.
Q Well, did you lay off any girls before he was hired?
A. I don't remember.
Q. Did Mr. Ruck ever say to you that you didn't have enough girls to do the job?
A. No. No.
13 The respondent explains bis locking of the doors to the shop while the employees were
holding their meeting, by his alleged anxiety to protect the tools and equipment in the
shop from thievery by possible trespassers, while the employees were absent The record,
however, shows that on the occasion in question the shop was not deserted, and thus unpro-
tected from possible interlopers, but that a number of employees, including Plemmons,
Jean Blackwell, and "a couple of other girls," were admittedly at work in the shop at the
time For this reason, and because all of the surrounding circumstances, including Bar-
ton's statements to the girls when they returned to work. refute the respondent's explana-
tion, the undersigned finds that the respondent locked the doors in order to demonstrate
to the employees his opposition to their organizational activities, and as part of his cam-
paign to discourage them from such activities.'
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 447
the lay-off, these acts would, under the circumstances revealed by the record,
still be illegal, since as appears from the respondent's own admissions, and the
above findings, his concern with and opposition to the employees' organizational
eftorts, or as he put it, the "labor disturbance," were also, at least in part,
instrumental in causing him to take the aforesaid actions. Butler Bros. V.
N. L R. B, 134 F. (2d) 981, 985 (C C A 7). ceit denied, 320 U S 789; Kansas
City Pouer & Light Co. v N L R B 111 F (2c1) 340. 349 (C. C A 8) ; Cupples
Co. l t f'rs. v. N L R B , 106 F. (2d) 100, 117 (C. C A. 8).
The undersigned further finds that by his statements to Plemmons and Lock-
ridge that he would close his shop before lie "would have a union in there,"
by barring his employees from re-entering the shop atter they held their first
of ganizational meeting on December 12, 1944, by telling them on this occasion
that if they wanted to icturn to work and "forget all this nonsense" they could
do so, but if not, they could "consider themselves through," by posting a notice
to the employees on December 13, 1944, to the effect that he was closing his shop,
and by laying off a number of employees on the latter date, and by the totality of
such statements and acts, the respondent interfered with, restrained, and co-
erced his employees in the exercise of the rights guaranteed in Section 7 of the
Act, thereby committing unfair labor practices within the meaning of Section
8 (1) thereof.
B. The discriminatory discharges
1. Gordon Plemmons
Plemmons was employed by the respondent as an operator of a "centerless
grinder" from the early part of July 1944 to January 12, 1945, the date of his
discharge" Duiing this time he was continually in the respondent's employ,
except for a period of about 1 month, during which he left to accept a higher
paying job with another employer, and at the end of which he was induced to
return to the respondent's employ by an offer of higher wages. Plemmons' pay
at the beginning of his employment by the respondent was $1.10 per hour ; upon
his return to work for the respondent it was raised to $1.30 per hour."
At the time Plemmons was first hired by the respondent, he was employed as
a painter and general maintenance man by the management of the building in
which the respondent's shop was located. This work, which Plemmons per-
formed at night, after the various offices and shops occupying the building closed
for the day, required about 5 hours a night of Plemmons' time, 6 nights per
week. When the respondent hired him, it was with the understanding that
Plemmons was to keep his job as the building maintenance man. Plemmons
was assigned by the respondent to the day shift, which ran approximately from
7: 30 a. in. to 3: 30 p. m. Occasionally, as Plemmons testified, and the under-
signed finds, the respondent would request him to put in more time, in which
ease he would put in as many as 16 hours, working on both the day shift and
the second shift. On such occasions, if the extra hours in the respondent's
"Plemmons' testimony that his employment by the respondent began in May 1944, and
ended about July 5 or 6 , 1945, is apparently in error, since it was stipulated at the hearing
that according to the respondent 's records , Plemmons ' first week in the respondent's em-
ploy ended on July 12, 1944, and that his last day of work was January 12, 1945 The
undersigned bases his findings as to these dates on the aforesaid stipulation.
15The aboie-stated facts are undisputed except that the respondent testified that he
paid Plemmons $1.20 per hour when the lattei retained to his employ after the month s
hiatus This discrepancy is without significance
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop would conflict with his maintenance work for the builcln,g management,
he would report the facts to the latter, and would receive permission to put
in the extra time for the respondent, since "it is helping the army, the war
effort." 16
At the time Plemmons entered the employ of the respondent, he was a member
of the Union-a fact of which the respondent was aware at the time. As has
been noted, when the female employees of the shop began their organizational
activities on December 12, 1944, they asked Plemmons for adN ice, with the
result that the latter arranged a meeting for them with representatives of the
Union At the said meeting, Plemmons helped to enlist a number of the girls
in the Union. The respondent's reaction to these organizational steps on the
part of his employees has already been described. Subsequent to this meeting,
as Plemmons testified without contradiction, and the undersigned finds, Plem-
mons recruited several additional employees foi the Union in the shop, and
conferred several times in the lobby of the building with the international rep-
resentatives of the Union, who came to consult him with respect to the Union's
efforts to organize the respondent's employees Some time after the meeting of
December 12, the respondent told Plemmons that lie (the respondent) had had
a conversation with one of the girls in the shop whom he suspected of being an
advocate of the Union, and had been told by her that she had "no interest in the
Union and didn't want anything to do with [it]." "She thinks," continued
the respondent to Plemmons, "she has pulled the wool over my eyes, but I
don't believe her story at all . Somebody in the plant is watching her every
minute she is in the plant." "
About December 27, 1944, the respondent received notice from the Board, of
a hearing on a petition filed by the Union for investigation and certification of
representatives of the respondent 's employees 18 After the respondent received
the aforesaid notice, lie questioned Plemmons with respect to it, asking him what
the initials of the Union, which appeared in the notice, stood for ; Plemmons
16 The above findings are based on the credited testimony of Plemmons . The respondent
testified that he employed Plemmons as a "part time worker, " with the understanding that
lie was to work no more than 30 hours per week , that he would work for the respondent
only at such times as would not conflict with Plemmons ' "other job" , that as a result,
"his hours were more or less split", and that the 30 -hour-per-week limitation on the time
Plemmons was to put in for the respondent lasted until " later in the year," when there
was a ruling by some government agency that the "hours [ of a part time worker] were
unlimited" This testimony is not credited by the undersigned As was stipulated at the
heaiing, the respondent's own records show that during Plemmons ' second week in the
respondent 's employ (which is appaiently the first full week he worked ), lie worked 481/2
hours in the respondent ' s shop During the succeeding weeks , and until the end of his
employment , he worked , respectively, the following number̂ of hours per week' 61; 52;
57%; 67%., 46; 40% , 68%; 73; 2S1/ ; 58; 27; 501/ , 55]/2 , 431/ ; 23; 37, 59%, 65%;
56 ; 58% ; 351/ ; 41 , 43 ; 21% ; 10 The last week shown is for the period from January 7,
1945, to January 12, 1945, the date of Plemmons' discharge. These figures completely
rebut the respondent ' s testimony that Plemmons was a "part time worker " ; that he was
limited to 30 hours work per week, and that he was unable to put in regular hours of
work for the respondent because of a conflict with his other job The records, rather,
corroborate Plemmons' testimony, that he would frequently put in overtime hours in the
iespondent's shop in addition to a regular full shift
11 The above finding is based on Plemmons ' credited testimony The undersigned does
not credit Barton's denial that he had had such a conversation with Plemmons.
18 The undersigned takes judicial notice of the fact that when a union files such a peti-
tion, it claims therein to be the collective bargaining representative of a substantial number
of the employees of the employer involved in such proceeding
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 449
answered that the initials denoted, "United Construction Workers of America."
On the evening of the same day, the respondent again questioned Plemmons
about the notice, on this occasion inquiring whether Plemmons was sure he
knew nothing about the "letter"; Plemmons denied having seen it or hearing
"of [it] being sent out." When the respondent then asked Plemmons what he
"thought about the Union coining in," Plemmons told him that he "was a member
and that [he] didn't have any objections of a Union, of course." 1'
Immediately after the first of January 1945, -Plemmons was instructed to work
on the "third shift," i. e., from 2 a. in to 7 a. in. According to Plemmons' un-
denied testimony, which the undersigned credits, that was the first occasion during
the time of Plemmons' employment in the building, that such a shift had been
operated in the shop. When Plemmons reported for work at 2 a. in. after
receiving the aforesaid instruction, he found that he was the only employee
working those hours?°
Upon being transferred to the third shift, Plemmons was assigned to work
on the centerless grinder, correcting the defects on the rejected parts which had
been returned to the respondent by his customer, the Ford Motor Company,
because the said parts had not been machined to specifications. It is undisputed
that only the most capable of the respondent's machine operators were selected
to work on the aforesaid salvage job 21 It is also undisputed that the salvage job
on the rejects was completed about January 11, 1945.
On or about January 12, 1945,22 Plemmons was laid off, being told by one of the
respondent's supervisors that he would be recalled when there was more work to,
do. He has never been recalled to work by the respondent.
The respondent has advanced varying explanations for discharging Plemmons,
and subsequently refusing to reinstate him. In his verified answer, the respondent
avers that :
The employment of Gordon Plemmons by respondent was terminated on
January 12, 1945, for the reasons that said Plemmons was unable to perform
satisfactorily the work assigned to him, that said Plemmons was at the
time of his employment by respondent, also employed full time in the care
and maintenance of the building located at 2832 East Grant Boulevard and
at the same time was pursuing the business of an independent painting
contractor, as a result of which a conflict arose between the hours of his
19 The above findings are based on the testimony of Plemmons. The respondent admitted
having consulted Plemmons, among others, with respect to the notice, but denied having
asked him "what he knew about it."
Y0 The above finding is based on Plemmons' credited testimony, which was corroborated
by that of the respondent.
21 It is thus clear that Plemmons was considered by the respondent to be one of his best
operators, and the undersigned so finds. This finding is further supported by Plemmons'
testimony that he had been several times commended by the respondent as being "the
best operator [the respondent] had," and that he had been on some occasions assigned to
train other employees to operate the centerless grinder, and by the respondent' s admission
that he had asked Plemmons to "break in" one other employee, and that Plemmons "did
well for the length of experience he had."
22 Plemmons testified that he was laid off on January 5 or 6, 1945. However, it is plain
from the record that he was mistaken as to this date, since : 1. It was stipulated that
he worked for the respondent during the week beginning January 7 and ending January
12, 1945 ; 2. Plemmons himself testified that he "worked there till . . . all of that scrap
[the rejects] was finished" ; 3 The record shows that the salvage job on the rejects was
not finished until about January 11.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment by respondent and the hours of his employment in his other
activities. Respondent further says that at and previous to January 12,
1945, all of his contract work had been substantially completed and there
remained to be worked upon approximately 20,000 rejected valve guides,
which had been rejected and which had to be re-worked to close tolerances,
necessitating shutting part of the plant clown, re tooling, re-grinding, etc,
and that said Plemmons was incapable of performing such work. Respond-
ent further says that in addition to said Plemmons, many other employees
were laid off for the same reasons.
In his brief (p. 11), the respondent contends that although Plemmons started
to repair the rejects on the centerless grinder, that method of making the cor-
rections proved to be unsuccessful, and, although there was "at least a week's
work on repairing the rejects" still to be done, "the work had to be done on the
lathes by the most experienced men and there was nothing further for [Plemmons]
to do." At the hearing, the respondent testified that Plemmons worked on the
third shift until the repair job on the rejects was finished, and that after that
"we cut off all the part time workers, and put on the regular shifts, as far as
production and orders came in." When asked by his counsel why Plemmons'
"services were finally terminated." the respondent reiterated, "I just got through
explaining that. When the repairs were done, we discontinued the part time
workers. . . .
It is thus apparent that the respondent's various explanations for Plemmons'
discharge are mutually contradictory ; e. g, lie contends on the one hand that
Plemmons was incapable of doing the repair work, and therefore had to be
discharged, and on the other, that after Plemmons finished the repair job, he
had to be discharged because there was no more work for part time employees
like Plemmons to do. But more than that, the contentions standing by themselves
are not supported by the record. For example, as has been above set forth,
the respondent alleges in his brief that the method of repairing the rejects on
the centerless grinder was tried, and then discontinued in favor of re-working
them on lathes, and that, since Plemmons was a centerless grinder operator,
that left no work for him to do on the rejects. -But at the hearing, the respondent
testified that Plemmons' "main job [after the first of the year] was to do the
routine grinding on the balance of the repair jobs, after they had been re-
machined." Thus, even if it be true that the method of repairing the rejects
was changed from that of doing it entirely on the grinder to that of re-machining
the parts on lathes, it is clear from the respondent's own testimony, that a
certain amount of grinding on the centerless grinder remained to be done, after
the re-machining on the lathes-and that Plemmons not only was capable of doing
that grinding, but in fact did so. Moreover, the respondent testified that after
completion of the repair job, Plemmons was discharged because the respondent
had no further work for part-time employees. That explanation falls, however,
when, as has been above found, we remember that the respondent's own employ-
ment records reveal that Plemmons, far from working for the respondent as a
part-time worker, worked from 1 to 33 hours per week overtime, in addition to his
regular 40-hour shift, during 19 of the 27 weeks during which he was employed
by the respondent. On the basis of these facts, the undersigned must reject
the respondent's contentions that Plemmons was discharged because he was a
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 451
part-time employee, and that one reason for his discharge was that his outside
employment conflicted with his hours of employment by the respondent za
In view of the foregoing, the undersigned is not convinced by any of the justi-
fications put forward by the respondent for discharging Plemmons.
At the time the repair work on the rejects was started in the respondent's
shop, all parts comprising the respondent's regular production had been retained
in another plant operated by the respondent 24 After Plemmons had been trans-
ferred to the third shift, he had a conversation in the shop with the respondent,
who told him that "he didn't want any more material brought over [to the shop
in which the conversation took place] until he found out where he was at on
this-on the Union," and that he "just wouldn't operate a plant where there was
a Union." 25 After Plemmons' discharge, he applied several times for reinstate-
ment, but was refused each time, on the ground that there was still no work for
him to do On February 11, 1945, meeting the respondent in the building, Plem-
mons again asked "when things were going to pick up so that [he] could be
back in there." The respondent replied, "I used to think an awful lot of you,
but you stepped your foot in it now. You were trying to bring the Union in
on me. If you wanted to organize the place, why didn't you bring your cards
over and lay them on the table and talk things over?" Then the respondent added,
"no one working for the Union can work for [me]." During the same conver-
sation, the respondent remarked that the Union had mailed letters to several
of his employees, and "he didn't know anyone that could have given their ad-
dresses except [Plemmons] " 20
The foregoing, as well as the other evidence in the record which reveals the
respondent's determination to defeat the Union's attempts to organize his plant,
even at the cost of laying off union adherents among his employees, persuades
the undersigned, and it is therefore found, that the respondent was aware of
Plemmons' aid to the Union's organizing efforts in the respondent's shop, and
that the respondent's hostility to such union activities on Plemmons' part was the
real reason for Plemmons' discharge, and for the respondent's subsequent refusal
to reinstate him.
23 During the 8 weeks of Plemmons' employment in which he worked no overtime, he
Worked 12 hours (the first week of his employment), 281/2 hours, 27 hours, 23 hours, 37
hours, 351/2 hours, 211/2 hours, and, during his last week of employment, 10 hours. Plem-
mons credibly testified, and the undersigned finds, that there were several occasions when
work was slow in the shop when he was sent home by the respondent ; that his activities
outside the respondent's employment at no time conflicted with his work in the re-
spondent's shop ; and that he woiked on outside painting jobs only when "things would get
slow around the company."
24 The evidence is undisputed that a Federal regulation prohibited the intermingling of
rejected work with regular production.
2S The above finding is based on Plemmons' credited testimony. The respondent' s denial
that he had made the above-quoted statements to Plemmons is not credited.
2e The above findings are based on the credited testimony of Plemmons. On the basis of
the entire record, including the respondent's justifications for discharging Plemmons, the
undersigned does not credit the respondent's testimony that "some time in February" he
told Plemmons that he had discontinued part-time workers, but that he "would be glad
to have him come over there on a full time basis." The undersigned further notes that
this testimony by the respondent is in direct conflict with his claim that he discharged
Plemmons and thereafter refused to reinstate him, because he had no work in his shop
which Plemmons was capable of performing. The undersigned likewise does not credit
the testimony of the respondent's witness, Marshall, that after Plemmons' discharge, when
the possibility of reinstating Plemmons was discussed, the latter told him he would not
work with the two girls then operating grinders in the respondent' s shop. Plemmons'
denial that he had ever refused to return as long as any other employee was working in
the shop, is credited
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record, the undersigned finds that the respondent
discharged Gordon Plemmons on January 12, 1945, and has since refused to rein-
state him, because of his activities on behalf of the Union, and that the respondent
has thereby discriminated in regard to Plemmons' hire and tenure of employment,
thereby discouraging membership in the Union, and interfering with, restraining,
and coercing his employees in the exercise of the rights guaranteed in Section 7
of the Act.
2. James Ruck
Ruck was hired by the respondent as his chief inspector on December 15, 1944, at
a starting rate of pay of $140 per hour. On January 1, 1945, Ruck's wages weie
raised to $125 per week. He remained continuously in the respondent's employ
until on or about January 11, 1945, the date of his discharge." As chief inspector,
Ruck's duties were to supervise the floor inspectors and final inspectors, and
generally to be responsible for seeing to it that the respondent's pi oducts were
being manufactured in accordance with specifications
At the time Ruck was hired by the respondent, approximately 20,000 valve guides
manufactured by the respondent for the Foi d Motor Company had been returned
to him because the said parts did not conform to blue-print specifications. After
examining these rejects, Ruck suggested a plan to the respondent whereby the
rejected parts could be re-machined so as to make them conform to specifications,
without the necessity of re-melting them and putting them through the manufac-
turing process from the beginning. Ruck testified that his plan was opposed by
Plant Manager Richard Tellberg, who insisted that the rejects be thrown into
the melting pot, but that he convinced the respondent to adopt his recommenda-
tions, and that work on the salvage job accordingly began on January 3, 1945, and
was successfully completed on January 11 Although the dates of the beginning
and completion of the salvage job, as finally performed, are not disputed, the
respondent contends that the plan for repairing the rejects pi oposed by Ruck, after
being tried for a day or two, proved to be unsuccessful, that thereafter other
employees of the respondent devised a different system of effectuating the repairs ;
and that after the latter system was put into operation, the salvage job was suc-
cessfully completed without any aid from or participation therein by Ruck. In
support of these contentions, the respondent testified that at the time he hired
Ruck, he "asked him what he thought he could do about [the rejects]," and that
Ruck suggested that he could "save the parts" by putting them through "a center-
less grind operation" ; that lie "told [Ruck] it would be all right to try it out," but
that "after 2 or 3 days it didn't work out so good," whereupon Ruck advised the
respondent to "send [the rejects] back to the foundry and re-work them " Under
cross-examination, the respondent reiterated that when Ruck first came to work
for him, Ruck recommended an operation for the salvage of the parts, but that
"within a few days [the respondent] discovered that that would not work " The
respondent testified further that after Ruck's plan failed, he brought Foreman
Frank Marshall and Plant Manager Richard Tellberg into the shop," and that the
latter two devised a plan whereby the rejects were to be corrected by a lathe
27 The evidence as to the exact date of Ruck ' s discharge is in conflict Ruck testified, and
the letter of recommendation given him by the respondent indicates , that his last clay in
the iespondent ' s employ was January 11, 1945 , as found above The respondent 's pay-roll
records show that Ruck worked for the respondent until January 16, 7,945 The dis-
crepancy , m dates does not go to the issues herein
28 At the time Marshall and Tellberg spent most of their time in other shops operated by
the respondent.
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 453
operdtion, rather than a grinder operation, which plan proved to be successful in
saving 95 percent of the rejects. Tellberg testified that he had observed Plem-
mons' work on the rejects on the centerless grinder (presumably in accordance
with Ruck's plan), but that Plemmons "didn't make any headway on it";-"his
method didn't work." Tellberg also testified that Ruck told him, "Well, it is no
use fooling with them. Take them back to the melting pot and melt them up,"
and that finally he [Tellberg] and Marshall and a few other employees had to do
the salvage job Marshall in substance corroborated Tellberg's testimony, and in
addition testified that Ruck had admitted to him that he (Ruck) "knew nothing
about machinery" He also testified that under the plan originated by himself
and Tellberg, whereby the rejects were to be repaired on a lathe, it was not neces-
sary for them to go through a centerless grinder operation, not even to smooth
down any roughness left by the lathes Another of the respondent's witnesses,
Litchfield, who worked for the respondent as a part-time draftsman during the
period herein involved, testified that while the rejects were being repaired, he
spoke to Ruck "nearly every day"; that his "inquiry [about the rejects] was
always, `How are things going9' and Mr. Ruck's reply was, `Well, we will have
them out in a few days' and, `Things are going okay'"; but that he never saw Ruck
working on the rejects at any time.
There are certain inconsistencies in the testimony adduced on behalf of the
respondent which have led the undersigned to entertain some doubts as to its
probative value. Thus, it will be remembered that Ruck was hired by the re-
spondent on December 14, 1944. The respondent testified, as above set forth,
that immediately after being hired, Ruck had proposed a plan for repairing the
rejects which proved, within. 2 or 3 days, to be unworkable, and that thereafter
Ruck's connection with repairing the rejects ceased, and he "was in the back
room attending to the final inspection and packing " 2° The record shows that on
January 1, 1945, more than 2 weeks after Ruck was hired, the respondent raised
his wages from $1.40 per hour to $125 per week. It is difficult for the undersigned
to believe that the respondent would have granted so substantial an increase to
Ruck, if, as the respondent testified, Ruck had by that time already demonstrated
his inability to get the rejects repaired, and had been relegated to such minor work
as packing parts for shipment. The undersigned is also impressed by the un-
reliability of the respondent's witnesses, Tellberg, Marshall, and Litchfield. For
example, Tellberg, obviously attempting to bolster the respondent's contentions,
testified to at least two matters on which the record proves him to be in error.
He testified first that Plemmons worked "part time on the centerless grinder,"
only came into the shop occasionally, and only put in from 5 to 6 hours per day
for the respondent 3° As we have seen, the respondent's pay-roll records com-
pletely rebut the contention that Plemmons was a part-time worker, and establish
that the latter worked in the iespondent's shop. not only a full 40-hour week, but
generally put in overtime in addition, ranging from 1 to 33 hours per week
Secondly, Tellberg testified that Plemmons "started to work"" on repairing the
rejects, but that "he couldn't make any headway on it. He couldn't do it," and
that there was no other work in the plant at the time which Plemmons could do.
29 Tellberg also testified that after he took over the repair job, Ruck did not help in any
way, and that thereafter Ruck did not do "much of anything" but worked "more as a
shipping clerk, packing and stuff like that."
3° Under cross-examination, Tellberg finally admitted that he didn't "recall exactly what
[Plemmons'] hours were."
S' See p. 450, supra.
79 8 7 67-4 9-vol. 78-30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to this, as has been above noted, the record establishes, and the re-
spondent himself admitted, that Plemmons continued to work on the rejects on
the centerless grinder until the salvage job was completed Marshall's testimony
is likewise marked by unmistakable indications of unreliability. Thus, lie testi-
fied that the rejects were finally repaired on "the Logan lathes," which he did
not believe Plemmons was able to operate, and that after the lathe operation the
rejects did not have to be ground This testimony is flatly contradicted by the
respondent's admission, above set forth, that Plemmons did continue to grind the
rejects on the centerless grinder, until the salvage job was done. Marshall testi-
fied also that Ruck had admitted to him that he "knew nothing about machinery"-
a completely incredible statement in view of Ruck's detailed testimony with
regard to his approximately 28 years of experience on many types of machines,
and his experience in responsible jobs dealing with the operation of machinery-
which an exhaustive and searching cross-examination completely failed to shake.
Finally, Litchfield testified that he had "nearly every day" during the period the
rejects were being repaired, asked Ruck how the repair job was coming ; that
Ruck always replied that things were "going okay" and the repairs would be
completed in a few clays ; but that lie never saw Ruck at any time do any work
on the rejects. The undersigned is impelled to wonder why, if as Litchfield testi-
fied, Ruck apparently had nothing to do with repairing the rejects, Litchfield
asked Ruck nearly every day how the job was coming along.
In view of the inconsistencies and unreliable character of the testimony adduced
by the respondent, and on the basis of the record as a whole, the undersigned
credits the testimony of Ruck that his plan for the salvage of the rejects was
adopted and followed to completion by the respondent 22
On or about January 11, 1945, the day the salvage job on the rejects admittedly
was completed, Ruck was discharged by the respondent. In his answer, the
respondent gives the following reasons for discharging Ruck :
James Ruck, an employee, was laid off on January 12, 1945, for the reason
that said James Ruck was engaged as chief inspector upon his representation
as to ability and as to his having certain connections which would lead to the
obtaining of business for respondent; the representations made by said Ruck
were untrue in that'he was unable to perform the work assigned to him
and was unable to obtain any business for respondent as he represented he
could do; that at the time he was laid off the work consisted in the reworking
of the rejects mentioned in the preceding paragraph, and that said Ruck was
unable to perform any of the work required to be done in connection there-
with. Respondent further says furthermore, that said Ruck as well as many
other employees were laid off at or about the same time for the reason that
the contract work of-respondent had been substantially terminated by that
time, and that there was no other work in prospect except the reject work
hereinbefore mentioned.
In his brief (p. 9), the respondent contends that he discharged Ruck because he
had so few orders on hand that he felt impelled to reduce the number of his
employees, and because he did not require Ruck's services any longer. At the
12 On January 11, 1945, the day Ruck was discharged, the respondent gave him a letter
of recommendation reading as follows.
Mr. Ruck has served in the capacity of chief inspector and process engineer for the
undersigned. His work is completed and we take pleasure in recommending him.
[Emphasis supplied.]
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 455
hearing, the respondent attributed Ruck's discharge to the facts that: "every-
thing was wound up" with respect to repairing the rejects; he did not know
"whether we were going to get more orders or whether we weren't"; and "we
didn't require (Ruck's] services any further, and I had to economize and keep the
pay roll down. $125.00 a week at that time was quite an item."
The contention, advanced in the respondent's answer, that Ruck proved in-
capable of getting the rejects repaired, has already been discussed above. The
undersigned has, on the basis of all the credible testimony, rejected it The
respondent's allegation in his answer that one reason for Ruck's discharge was
that lie had falsely represented, at the time of his employment, that he could
obtain business for the respondent, seems to have been abandoned by the re-
spondent by the time of the hearing, as is indicated by the respondent's testimony,
quoted above, and by the contentions in his brief. In any event, the undersigned
credits Ruck's testimony that he made no representation to the respondent at the
time he was hired, or at any time while he was in the respondent's employ, that
lie could obtain business for him 3S
In support of the respondent's contention that there were so few orders on hand
at the time Ruck was discharged, that he felt impelled to reduce the number of
his employees, the respondent's bookkeeper testified from the office records with
respect to the number of orders on hand at the time. From the summary of that
testimony as contained in Appendix A to the respondent's brief, the undersigned
is in no position to determine exactly how many unfilled orders were on hand on
or about January 11, 1945. For example, that summary shows that on October
24, 1944, the respondent received an order from Ford Motor Company for 50,000
valve guides, of which 17,000 were shipped in 1945 (including 10,500 repaired
rejects). Whether the remaining 6,500 guides (excluding the rejects) were
shipped before or after the date of Ruck's discharge, the record does not show.
Similarly with respect to an order dated November 13, 1944, for 28,500 parts, the
record shows that the last shipment thereon was made on February 19, 1945,
(including 1,400 rejects). There is no showing of the number of non-rejected parts
included in this order, which were still on hand to be worked on, at the time Ruck
was discharged. And the same testimony shows that shortly after Ruck was
discharged, namely on January 18, January 27, February 1, and February 15,
1945, the respondent received orders for a total of 159,630 parts. It will be remem-
bered that the war did not end until August 14, 1945, some 7 months after Ruck
was discharged. The undersigned infers from this, and from the fact that con-
siderable orders were received by the respondent shortly after the date of Ruck's
discharge, that the respondent was in a position to anticipate 'the continuance of
a large volume of work in his shop at the time he discharged Ruck. This infer-
ence is further supported by Ruck's testimony, which the undersigned credits, that
he had been given a schedule of production by the respondent to guide him in
his work, showing the work on hand, from which he deducted each shipment of
parts, as the parts were completed, and that this schedule, at the time he was
discharged, showed that the respondent still had on hand uncompleted work other
than the salvage job which had just been completed, which had been assigned to
Ruck for production 33
33 It did appear from both Ruck's and the respondent's testimony that in attempting to
secure reinstatement in the respondent 's employ , after he had been discharged , Ruck told
the respondent that he might be able to obtain certain types of work for his shop.
34 The respondent 's ^ denial that he had furnished Ruck with such a schedule of produc-
tion is not credited.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quite aside from the above-discussed factors which have persuaded the under-
signed to discount the explanations advanced by the respondent for discharging
Ruck, the record contains testimony, which if believed, effectively rebuts these
explanations, and establishes that the respondent, on the occasion of discharging
Ruck, himself revealed his real reason for taking such action. This testimony,
together with testimony regarding events preceding the (late of the discharge,
is summarized below.
The day following Ruck's employment by the respondent, he was informed by
the latter that some of the girls had been laid off as a result of "labor trouble."
Ruck suggested that the girls be called back to work, since he felt that it would
be advantageous for the respondent to utilize the experience they had gained in
the plant. The respondent acceded to this suggestion, but stated that he wanted
certain of the girls discharged after they were recalled. Later, after the girls
had been put back to work, the respondent singled out some of the girls, and
despite Ruck's protestations that they were "doing a fine job," insisted that Ruck
discharge them, on the ground that in the respondent's opinion they were "trouble
makers," and belonged to unions." Ruck refused to discharge them, whereupon,
at the respondent's request, Plant Manager Richard Tellberg signed releases for
these girls.98 A few days after Christmas of 1944, as has been noted, the re-
spondent received a notice of hearing on the Union's petition for certification as
collective bargaining representative of the respondent's employees. The re-
spondent admittedly consulted Ruck with respect to this notice. On this occasion,
as Ruck testified and the undersigned finds, the respondent seemed very angry,
and Ruck remarked, "With lives at stake, why try to fight a union or anything
else?" To this the respondent replied that he "didn't care anything about that,
if they got in he could always sell out." 3'
After this conversation with the respondent, Ruck and Tellberg, as the un-
disputed testimony shows, were sent by the respondent to the Board offices to
request an adjournment of the hearing on the Union's petition. Here Ruck met
,two representatives of the Union, Sturm and Agosta, who were present at the
conference During the day of January 11, 1945, and before Ruck was discharged,
Ruck ate his lunch in a restaurant located in the same building as the respond-
ent's shop. He saw Agosta and Sturm, who also happened to be having lunch
in the same restaurant. He greeted them, and after saying a few words to
them, seated himself at the same table with Plant Manager Tellberg and com-
pleted his lunch. Tellberg left the restaurant before Ruck.
Upon Ruck's return to the shop, he was met by the respondent, who said, "I
understand you were talking to two of the Union representatives in the restau-
rant." Ruck admitted this, whereupon the respondent continued, "Well, you
know, if the Union gets in you won't be able to do this and you won't be able
to do that " To this Ruck replied, "I am sorry, but I am not interested in busting
up any unions. I am not here for that purpose." At this point, the respondent
said, "Well then, you are through. Let's go and get your check." Ruck and
65 The above findings are based on Ruck's credited testimony. The respondent' s denial
that lie had asked Ruck to discharge any employees because they were pro-union, is not
credited As has been indicated, the undersigned was not impressed by the respondent as
being a deldable witness
36 The undersigned does not credit Tellberg's denial that he had authority to discharge
employees or to sign releases, since the respondent testified that "Dick Tellberg and I
signed all release skips "
"The above findings are based upon Ruck's testimony which the undersigned credits
despite the respondent's denial that lie had made the above-quoted statements.
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 457
Barton then went to the office, where the respondent gave him his check and a
letter of reconimendation.is
The undersigned is convinced from the foregoing and the record as a whole,
and he therefore finds, that the respondent discharged Ruck because he resented
Ruck's refusal to discharge employees on the grounds that they were pro-union,
and because he believed that Ruck was sympathetic to the Union's efforts to
organize the respondent's employees."
From the entire record the undersigned concludes and finds that the respondent
discharged James Ruck on or about January 11, 1945, because of Ruck's refusal to
cooperate with the respondent's campaign to undermine the Union's organiza-
tional campaign among his employees and because the respondent believed that
Ruck was sympathetic to that campaign. The undersigned further finds that
the respondent thereby discriminated with respect to Ruck's hire and tenure of
employment, discouraged membership in the Union, and interfered with, re-
strained, and coerced his employees in the exercise of the rights guaranteed in
Section 7 of the Act
IC. THE EFFECT OF THE UNFAIR LABOR PILICTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate and substantial relation 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 the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that he cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act. The
undersigned has found that the respondent discriminated in regard to the hire
and tenure of employment of Gordon Plemmons and James Ruck, thereby dis-
couraging membership in the Union. In order to effectuate the policies of
the Act. it will be recommended that the respondent offer to both of the afore-
11 The above findings are based on Ruck's ciedited testimony Tellberg did not testify
with respect to the above-desciibed incident in the restaurant. The respondent denied
Buck's testimony
19 The above finding is predicated in part on the evidence of the respondent's hostility
to the Union which the undersigned has heretofore credited, including the respondent's
threats to close his shop before lie would permit it to be organized, his lay-off of the girls
on December 13, 1944, because of their organizational efforts, and his discharge of
Plemmons because of the lattei's pio-union activities. The respondent in his brief seeks
to rebut any inference of anti-union hostility on his part by pointing to evidence that
two of his employees otten wore shirts in the shop which bore the insignia of a Packard
local of the CIO, which he allowed them to do without criticism, and that he once con-
tributed a paid advertisement to the official paper of the CIO in Detroit While it may be
tine that the respondent did not resent some of his employees wearing the insignia of
other unions than the Union herein involved, and that he even contributed a paid ad to
the CIO, the undersigned is convinced from all the evidence that the respondent very
much opposed the organization of his employees by the Union herein involved. For exam-
ple, while the retold shows that the respondent willingly hired Plemmons, although lie
knew him to be a union man, he discharged him when he discovered that Plemmons was
helping the Union organize his shop. A failure to demonstrate hostility to unions in
general does not rebut hostility to a specific union organizational campaign, especially
where such hostility is as convincingly established as it is by the record herein
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said employees immediate and full reinstatement to their former or substaiitnilly
equivalent positions '0 without prejudice to their seniority or other rights and
privileges, and that lie make each of them whole for any loss of pay he may have
suffered by reason of the discrimination practiced against him, by payment to him
of a sum of money- equivalent to that which lie noimally would have earned as
wages, from the date of his discharge to the (late of offer of reinstatement, less
his net earnings 41 during said period
In view of the unfair labor practices found to liar e been committed by the
respondent, constituting violations of Section 8 (1) and (3) of the Act, the
undersigned is of the opinion and finds that there is danger of the Commission
of other and additional unfair labor practices, since the violations thus far
engaged in by the respondent have led to discrimination to such degree as would
cause the average employee reasonably to conclude that any union or concerted
activity on his part would lead to discrimination with respect to his tenure and
condition of employment This disclosed attitude of the respondent towards
organization by his employees, and the continuous threat which it implies, re-
quires a cease and desist order as broad as the threat.' It will therefore be
recommended that the respondent cease and desist from in any manner infring-
ing upon the rights guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact and on the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Construction Workers of America, affiliated with the United Mine
Workers of America, is a labor organization within the meaning of Section 2
(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Gordon
Plemmons and James Ruck, the respondent has engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices attecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
90In accordance with the Board 's consistent interpretation of the term, the expieasion
"former of substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico , Branch, 65 N L R. B 827
The respondent contends that after the discharge of Plemmons and Ruck, particularly
since the end of the war, conditions in his business have so changed that positions which
these two employees could fill are no longer available. The testimony adduced at the hear-
ing with respect to this issue was not sufficient to furnish a basis for making definitive
findings with respect thereto The Board 's usual remedy of reinstatement with back pay
will therefore be recommended If, in fact, the respondent' s business situation is such
that the services of Plemmons and Ruck are no longer requned, the Act , of course , does not
prohibit him from discharging them, or from adjusting their compensation to a peacetime
basis , providing this is clone on a non-discriminatory basis
41 Matter of Crossett Lumber Co . 8 N. L R. B 440, 497-498
42 See May Department Stores Company, etc v N L R. B , 326 U S 376, Matte, of
IVashi,igton National Insai anmce Go, 64 N L R B 929 ; Matter of C D Beck it Company,
63 N. L R B. 1426: Matter of Caroline Mills, Inc . 64 N L B B 200
BARTON BRASS WORKS AND PRECISION MACHINED PARTS CO. 459
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Hiram J. Barton, individually and doing
business under the firm names and styles of Barton Brass Works and Precision
Machined Parts Company,-his agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Construction Workers of America,
affiliated with the United Mine Workers of America, or any other labor organiza-
tion of his employees by discharging, laying off, or refusing to reinstate any of
his employees, or in any other manner discriminating in regard to their hire
and tenure of employment or any term or condition of their employment;
(b) In any manner interfering with, restraining, or coercing his employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist United Construction Workers of America, affiliated with the United
Mine Workers of America, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Gordon Plemmons and James Ruck immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges ;
(b) Make whole the said Gordon Plemmons and James Ruck for any loss of
pay they may have suffered by reason of the respondent's discrimination against
them in the manner provided herein in the section entitled "The remedy" ;
(c) Post immediately at his place or places of business located at Detroit,
Michigan , copies of the notice attached hereto marked "Appendix A." Copies
of such notice, to be furnished by the Regional Director for the Seventh Region,
shall, after being duly signed by the respondent's representative, be posted by
the respondent immediately upon receipt thereof and maintained by him for
sixty (60) consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the respondent to insure the said notices are not altered, defaced, or
covered by any other material;
(d) Notify the Regional Director for the Seventh Region (Detroit, Michigan)
in writing, within ten (10) days from the date of the receipt of this Intermediate
Report what steps respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Di-
rector in writing that he will comply with the foregoing 'recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen V5) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Washing-
ton 25, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon, and any party or counsel for the Board may, within the same period, file
an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
-
ISADORE GREENBERG,
Trial Examiner.
Dated March 21, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our eln'-
ployees in the exercise of their right to self-organization, to form labor
organizations , to join or assist UNITED CONSTRUCTION WORKERS OF AMERICA,
AFFILIATED WITH THE UNITED MINE WORKERS OF AMERICA, or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Gordon Plemmons
James Ruck
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
HIRAM J. BARTON,
BARTON BRASS WORKS,
PRECISION MACHINED PARTS CO,
Employer.
By--------------------------------------
(Repregentative ) ( Title)
Dated---------------------------
This notice must remain posted\for 60 days from the (late hereof, and must
not be altered , defaced, or covered by any other material