Columbus Iron Works Co.

National Labor Relations Board - Board Decisions

Feb 26, 1954

107 N.L.R.B. 1354 (N.L.R.B. 1954)

1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
COLUMBUS IRON WORKS COMPANY and UNITED STEEL-
WORKERS OF AMERICA, CIO. Case No. 10-CA-1539.
February 26, 1954
DECISION AND ORDER
On September 18, 1953, Trial Examiner Samuel Binder
is sued 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 Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
brief, and the entire record in this case, and hereby adopts
the findings, recommendations, and conclusions of the Trial
Examiner, with the following additions.'
We agree with the Trial Examiner that the Respondent
violated Section 8 (a) (3) of the Act by its refusal to hire former
Supervisor Day in a rank-and-file capacity because it feared
that he would be active in behalf of the Union. In making this
finding, the Board is not to be considered as in any way
departing from or disagreeing with the circuit court decision
in the Texas Company case.2 This is not a case involving an
employer's right to, refuse to hire in a nonsupervisory capacity,
a former supervisor discharged because he engaged in union
activities. Former Supervisor Day was laid off from his super-
visory position and was not recalled to that position for eco-
nomic reasons , as the Respondent contended and proved, and not
because of his activities in behalf of the Union. We therefore
consider the Texas Company case inapposite.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
iMembers Murdock and Peterson agree with the Trial Examiner that the Respondent
violated Section 8 (a) (1) of the Act by the interrogation of several employees as to their
union sympathies, membership, and activity. Member Peterson finds that this interrogation
was coercive when considered in the light of the Respondent's discriminatory refusal to hire
Day, and of Foreman Carroll's statement to employee Jones that the latter was lying when
he denied knowing anything about the Union. Because of the comparatively isolated aspect
of Foreman Carroll's questioning of these employees (he is only 1 of 50 supervisors in the
plant, and the incidents occurred long before employee Day was discharged), and because
in any event the remedy in this case will be the same, Chairman Farmer deems it unnecessary
to pass upon this alleged independent 8 (a) (1) aspect of the case and therefore would not
adopt the Trial Examiner's findings and recommendations with respect thereto.
2 Texas Company v. N L. R. B:, 198 F. 2d 540 (C. A 9), reversing 93 NLRB 1358 (Members
Reynolds and Murdock dissenting).
107 NLRB No. 283.
COLUMBUS IRON WORKS COMPANY 1355
National Labor Relations Board hereby orders that the Re-
spondent , Columbus Iron Works Company , Columbus, Georgia,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees with respect to their union
membership or activities.
(b) Discouraging membership in United Steelworkers of
America, CIO , or in any other labor organization of its
employees , by discriminating against any employees with
respect to their hire or tenure of employment , or any term
or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
United Steelworkers of America , CIO, or any other labor
organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection , and to refrain from any or all of
such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in
Section 8 ( a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer Henry Day immediate employment as an employee
at its foundry at Columbus , Georgia.
(b) Make whole Henry Day in the manner set forth in the
section of the Intermediate Report entitled "The Remedy"
for any loss of pay he may have suffered by reason of the
Respondent ' s discrimination against him.
(c) Upon request make available to the Board or its agents,
for examination and copying , all payroll records, social-
security payment records , timecards, personnel records and
reports, and all other records necessary to analyze the
amount of back pay due and the right of employment under
the terms of this Order.
(d) Post at its plant in Columbus , Georgia, copies of the
notice attached hereto as an appendix . 3 Copies of such notice,
to be furnished by the Regional Director for the Tenth Region,
shall, after being duly signed by the Respondent , be posted
by it immediately upon receipt thereof and be maintained by
it for a period of sixty ( 60) consecutive days thereafter in
conspicuous places, including all places where notices to
employees customarily are posted . Reasonable steps shall
be taken by the Respondent to insure that such notices are
not altered , defaced, or covered by other material.
3In the event that this order is enforced by a decree of a United States Circuit Court of
Appeals, there shall be substituted for the words " Pursuant to a Decision and Order" the
words "Pursuant to a Decree of a United States Court of Appeals , Enforcing an Order."
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, of
the steps it has taken to comply herewith.
Member Rodgers took no part in the consideration of the
above Decision and Order.
APPENDIX
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, we hereby notify you
that:
WE WILL NOT interrogate our employees regarding
their union membership or activities.
WE WILL NOT discourage membership in United
Steelworkers of America, CIO, or in any other labor
organization of our employees, by discriminating against
any employees with respect to their hire or tenure of
employment, or any term or condition of employment,
except to the extent permitted by Section 8 (a) (3) of
the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
the right to self-organization, to form labor organizations,
to join or assist United Steelworkers of America, CIO,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain
from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Henry Day immediate employment as an
employee, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
COLUMBUS IRON WORKS COMPANY,
Employer.
Dated ................ By .......................................... . .........
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
COLUMBUS IRON WORKS COMPANY 1357
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by United Steelworkers of America, CIO, herein sometimes called
the Union, the General Counsel of the National Labor Relations Board' by the Regional
Director for the Tenth Region (Atlanta, Georgia), issued a complaint dated February 18,
1953, against Columbus Iron Works Company, herein called the Respondent , alleging that
the Respondent had engaged in and was engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and
notice of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in substance that: (1)
The Respondent, on May 15, 1952, discharged Henry Day, an employee of its Columbus
plant, and thereafter refused to reinstate or reemploy him because he joined and assisted
the Union; and (2) the Respondent by and through its foreman, John Carroll, in April 1952,
interrogated its employees ' concerning their union membership and sympathies and in or
around May 1952 threatened and warned its employees that their membership in and sympathies
for the Union would cause economic benefits to be withheld.2
Respondent filed its answer to the complaint denying that it was engaged in commerce
and denying generally the allegations of the complaint relating to the unfair labor practices.
Pursuant to notice , a hearing was held at Columbus , Georgia, on various dates between
April 14, 1953, and June 18, 1953, inclusive, before Samuel Binder, the undersigned Trial
Examiner , duly designated by the Chief Trial Examiner . The General Counsel and the
Respondent were represented at the hearing by counsel , and the Union by its representatives.
The parties were afforded full opportunity to introduce relevant evidence , to examine and
cross-examine witnesses , to argue the issues orally upon the record , and to file briefs,
proposed findings of fact and conclusions of law, or both, with the Trial Examiner. At
the close of the hearing , the General Counsel moved to conform the complaint to the proof
as to minor matters, and this motion was granted. The General Counsel and the Respondent
argued orally , and their argument is included in the transcript . Thereafter , the Respondent
filed a letter dated August 17,1953, relating to the issues and such letter has been considered.
Upon the entire record in the case , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
Columbus Iron Works Company , a Georgia corporation , with its principal place of business
at Columbus , Georgia, is engaged in the manufacture of farm implements and stoves and the
sale of industrial supplies and commercial refrigeration and air-conditioning equipment. It
was stipulated that "The Respondent in the course and conduct of its business operations
at its Columbus plant during the past calendar year, which period is representative of all
times material herein, purchased raw materials consisting principally of steel , pig and scrap
iron, and supplies valued in excess of $ 3,300,000 , of which amount approximately $ 400,000
was purchased from points outside the State of Georgia . During the same period of time the
Respondent manufactured and sold finished products from its Columbus plant valued in excess
of $3,300,000 , of which amount approximately $400,000 was sold and shipped to customers
outside the State of Georgia." It is found that Respondent is engaged in commerce within the
meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , affiliated with the Congress of Industrial Organizations,
is a labor organization admitting to membership employees of the Respondent.
'The General Counsel and his representative at the hearing are referred to as the General
Counsel. The National Labor Relations Board is herein called the Board.
2 During the proceedings paragraph 7 of the complaint was amended to include a charge
that Moore, Respondent's secretary-treasurer, had threatened and warned employees against
union activities in or around June, July, and August, 1952.
337593 0 - 55 - 87
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction ; the issues
Henry Day became an employee of the Respondent in 1909 or 1910 and remained on its
payroll continuously from that date until he was laid off on March 21, 1952. During this
long period, Day was employed at various duties in Respondent's foundry. On March 21,
1953, nearly all the personnel in the foundry , including Day, was laid off. There had been
layoffs of employees at times in the past history of the Company but Day had never been laid
off. During all prior layoffs , work of some kind was found for Day. The general foreman of
the foundry, John H. Carroll. Earl Carmack, an instructor, and G. C. Carmack, all
concededly supervisors within the meaning of the Act, were not laid off The Respondent
claimed that this layoff was caused entirely by economic reasons, principally the reduction
in the amount of orders for stoves and the difficulty of obtaining steel and other raw materials
The General Counseldid notseriously challenge, nor did he present any evidence to controvert,
the Respondent's claim that the reason for the plant layoff was economic. In the latter part
of April or early May 1952, the Respondent obtained some orders for "char-broils," a type
of small stove, and started to recall its employees . A series of letters was addressed to its
laid-off foundry employees notifying them to report for work . The last letter was dated July 9,
1952 All personnel in the foundry with the exception of Day was recalled.
The Respondent claimed that Day was a supervisor within the meaning of the Act and the
reason it did not recall Day was that it no longer had any need for his supervisory services
The General Counsel, on the other hand, claimed that Day was not a supervisor, was no more
than a gang leader , and that Respondent ' s failure to recall Day was discriminatorily motivated.
The fact that Day was active on behalf of the Union is abundantly clear and that such fact
was drawn to Respondent 's attention was not controverted Respondent ' s position throughout
the hearing was that its failure to recall Day to his job as a working foreman was wholly
economic.
If Day were a supervisor , no violation of the Act would be involved in the failure to recall
Day to the position he occupied at the time of the layoff whether or not the Respondent was
discriminatorily motivated 4 Thus, it becomes necessary to determine whether Day was
a supervisor within the meaning of the Act at such time.
The Respondent claimed that on or about August 1, 1952, it abolished Day's job and decided
not to recall him
The General Counsel introduced evidence to the effect that on or about August 26, 1952,
Crawford , a representative of the Union , had, among other things, requested Respondent to
give Day a rank -and-file job ; and that Respondent refused to give him such a job because it
was apprehensive that Day would in such event become a member of the union committee
in its plant, a situation which the Respondent considered undesirable . The Respondent's
secretary and treasurer , Moore, denied that the refusal to give Day a rank-and - file job was
based on the aforesaid ground or that he had made a statement to such effect to Crawford.
Accordingly , a second issue presented is whether the Respondent refused Day rank-and-file
employment on the ground that he might become a member of the union committee.
The third issue presented is whether the Respondent unlawfully interrogated its employees
regarding their union affiliations and sympathies.
The fourth issue presented is whether the complaint should be dismissed because the
charging party did not resort to certain grievance procedures contained in a union contract
3The testimony concerning the incidents involved in this proceeding is conflicting and
contradictory and the findings of fact made herein result from the undersigned's attempt
to reconcile the evidence and determine what probably occurred. The findings of fact are
based upon a consideration of the entire record and observation of witnesses. All evidence
on disputed points is not set forth so as not to burden unnecessarily this report. However,
all has been considered and where required resolved. In determining credibility the un-
dersigned has considered inter alia: The demeanor and conduct of witnesses; their candor
or lack thereof; their apparent fairness, bias, or prejudice; their interest or lack thereof;
their ability to know, comprehend, and understand matters about which they have testified;
and whether they have been contradicted or otherwise impeached.
4See Tri-Pak Machinery Service, Inc., 94 NLRB 1715; Accurate Threaded Products Co ,
90 NLRB 1364.
COLUMBUS IRON WORKS COMPANY 1359
executed by the Respondent and the Union on August 26, 1952, to be effective as of August 12,
1952
These questions will be considered seriatim.
B. The facts relating to Day's supervisory status
On and for many years prior to March 21, 1952, Day was designated in Respondent's
records as a "working foreman." The Respondent contended that Day under this designation
had occupied supervisory status for upwards of 15 years and occupied such status at the time
of the layoff.
During the hearing, testimony was received regarding Day's duties over a lengthy period
of time. While all the testimony has been considered, reference will be made herein only to
such facts as appear necessary to an understanding of Day's status at the time of the layoff,
this being the only time when such status appears material.
Prior to 1937, G. C. Carmack (who was called Jug Carmack) was the foreman in charge of
Respondent's foundry. In 1937, C. H. Tidman took over as general foundry foreman and he
occupied such position until June or July 1946, when he was elevated to the position of super-
intendent of the foundry department. After Tidman took over as general foundry foreman,
Jug Carmack became subordinate to Tidman. Tidman's supervision extended over "the
foundry, the cleaning, the cores, the stove department, stove assembly, crate making, sheet
metal, general manufacturing of stoves and castings." About 2 or 3 weeks after Tidman
was made superintendent in 1946, John H. Carroll was promoted to Tidman's job as general
foundry foreman.
When Tidman was general foundry foreman he had under him as supervisory personnel
Carroll,, the latter's father-in-law, Jug Carmack, and Earl Carmack who is Jug Carmack's
son. In addition at that time Henry Day, whose status is at issue here, was, according to
Respondent, in charge of the "cleaning room" and the employees usually stationed there
and had certain other duties which are claimed to have been of a supervisory character.
The cleaning room is considered part of the foundry and is under the overall supervision
of the general foundry foreman. In the cleaning room there are tumbling mills used in finishing
the castings made in the molding room (which adjoined the cleaning room), a section closed
off for sandblasting castings, and another section used for grinding castings
According to Tidman, when he came to work for Respondent in 1937, Day was r_^inmg the
cleaning room. After Tidman took over, he tried to confine Day's work to the cleaning room
but Day had some duties which took him out of the cleaning room. In 1939, the Respondent
instituted a bonus plan, amended in 1942, covering additional compensation which was
applicable to cleaning room personnel. This plan involved incentive compensation based
on the amount of castings passing through the cleaning room. The participants in the plan
were those who worked in the cleaning room, with Day getting a larger amount than other
employees in such room. Day at this period had under him from 3 to 8 or 9 men
depending on the season November, December, January, and February was the heavy season
for the agricultural castings and September, October, November, and early December was
the heavy season for the stove castings
Day's duties in the cleaning room were to do manual work himself as well as to direct the
work of others in packing and unpacking the tumbling mills, in sandblasting and grinding,
and to instruct employees in their duties. Instruction apparently constituted a substantial
part of Day's duties because the Respondent had a large labor turnover and the work of
personnel in the cleaning room was of a semiskilled character.
Day also counted and checked the castings produced in the molding room. The molders
were paid according to the number of castings they made. If a molder made a defective casting,
he was not given credit for such casting. If a casting, however, was properly made but was
broken the molder received credit. It was part of Day's duty to separate the broken and
defective castings. Tidman described Day's duties, in part, as follows:
His duties were to see that the work was cleaned properly, that a minimum amount
of breakage, to see that the grinding was done properly, and to lay out the discount,
separate the discount and the breakage into boxes or compartments for each man,
[ i. e., for each molder].
When Tidman was general foreman. Day performed personally a substantial amount
of manual labor.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the war years, i. e., from about 1941 to about 1945, Carroll was working from
about 5 o'clock in the morning until 12 or 1 o'clock at night In the morning and until about
3 or 4 o'clock in the afternoon Carroll worked as a molder and thereafter until 12 or 1
o'clock at night Carroll was in charge of the "shakeout" crew.
"Shaking out" consisted, among other things, in turning the molds up and exposing the
castings. Between 1941 and 1945, the shakeout crew worked from about 4 p. m. to midnight.
Beginning in 1945 and until about August 1946, there was a Change in the makeup of the
shakeout crew. Up to this time this crew was composed principally of common labor In
1945 and until about August 1946 all the molders, i.e., skilled labor and all the common
labor, performed shakeout. The working hours ran from 7:30 a. m to 5:30 p. m., and Carroll
had supervisory authority as foreman over all common labor except those in the cleaning
room Carroll was responsible for seeing that the shakeout was performed correctly, that
the condition of sand was right, and was also responsible'for unloading cars of material and
for seeing that slag was removed from in back of the cupola in the foundry, and had certain
other duties as well
Two or three weeks after Carroll was made general foreman in 1946, it was decided to
have the shakeout crew report at 9:30 or 10 in the morning.
When Carroll was made general foreman the only persons in supervisory authority in
the foundry under him were Earl Carmack and Jug Carmack and, according to Respondent,
Henry Day Earl Carmack was an instructor when Carroll became general foreman, and it
was part of his job to take over Carroll's duties in the latter's absence. Earl Carmack was
concededly a supervisor Jug Carmack was at the time of the hearing almost 67 years old,
and had worked for Respondent about 41 years but had no regularly assigned duties. He
came to work most days and was considered a foreman since he had authority responsibly
to direct employees
It will be noted that Carroll had one less supervisor than Tidman had and no one charged
specifically with supervisory authority over the common labor After Carroll was made
general foreman, Jug Carmack noticed that the common labor was loafing. Jug Carmack
suggested to Carroll and Tidman that they turn the common labor over to Henry Day, "that
he would get the work out of them." Jug testified that Day was a leader among the colored
in the foundry and that they respected him. Jug Carmack' s suggestion was adopted so that
in addition to his duties in the cleaning room Day was put in charge of the shakeout crew.
Carroll testified, in this connection, that he went into the cleaning room and "told Henry
that the plans were to put him over the shakeout." Carroll told Day that the hours would be
long but that he would not have to perform personally any of the shakeout. He told Day
that he wanted to get the work out of those men while they were there during the day, that he
(Carroll) had to go off for a while and they were not working, and that he expected Day to work
the men. He knew Day could work men. Day agreed to take on the extra duties.
The additional responsibilities and duties imposed upon Day did not carry a raise in
Day's hourly rate of pay. However, Carroll pointed out to Day that he would get more hours.
Day at that time was making 45 to 50 hours a week. After he took over the shakeout crew,
Day worked 65 to 70 hours a week.
Subject to Carroll's overall supervisory authority, Day's duties after August 1946 in-
cluded responsibility for the operation of the cleaning room, responsibility for the work of
the shakeout crew, responsibility for seeing that the slag was removed from back of the
cupola in the foundry, responsibility for seeing that boxcars containing sand, coke, and
pig iron were promptly unloaded, and responsibility for checking defective and broken
castings. The carrying out of these responsibilities required Day to select the persons
to do various jobs, and to order them about from time to time to keep the work flowing
efficiently
Day denied that responsible direction was entrusted to him, testifying in substance that
insofar as direction of employees was concerned all he did was to relay directions given him
by Carroll. However, Day did concede that on March 21, 1952, when he was laid off, he was
in charge of the shakeout crew, he "was the leader for them," and instructed new men in
the shakeout how to perform their duties. Day testified that during the war years the shakeout
crew worked from 4 p. m. to midnight and his recollection was that this crew was under the
supervision of a man named Haley When asked whether Carroll later on did not run the shake-
out crew from 4 to 12 himself, Day professed not to recall. Carroll testified that Haley
was his predecessor in charge of the shakeout crew.
COLUMBUS IRON WORKS COMPANY 1361
Day testified that between January 1951 and March 21, 1952, the number of men on the
shakeout crew averaged nine. In addition, Day had working regularly in the cleaning room
R. L. Lindsey, a sandblaster, Lonnie Northcutt, who worked in connection with packing
and unpacking tumbling mills, and grinders, who varied in number depending in part on
the season of the year Day instructed new men how to grind and how to pack tumbling mills
and frequently packed tumbling mills himself When sand in the molding room was too dry,
Day would direct the common labor to put water on it. When boxcars with material arrived
at the plant, Day would select some of his crew and bring them out to the cars with in-
structions as to where material was to be unloaded.
According to employees produced by the Respondent as witnesses,5 the common labor would
assemble at the track near the toilet in the foundry every morning at the start of the working
day, and Day would assign thementowork. For example, Willie Clay, who was for a time part
of the shakeout crew, testified that Day would at the start of the day holler, "All right, lets
go," and the men would then start out on their various tasks Clay further testified that if he
"didn't work to suit him{Day] or something, wasn't doingthe job properly like he wanted it to
be done, like I wanted to be stubborn, you know, on the job, or something, didn't want to obey
him, well, he'd tell me I'd have to do it or 'there's the gate' "
Charles Wilson, who was called by the General Counsel, testified that while Day worked
himself, he did tell the men what to do, that Day "would see to all the stuff, you know, he would
tell us when to go in the cars and things like that, he was director." Wilson also testified
that he saw Day telling the men in the cleaning room what to do. In addition he testified
that Day told the common labor working in the molding room what to do around that room, and
that Day was responsible for the condition of the sand. In substance this witness corroborated
in material matters the testimony offered by Carroll as to Day's duties and supervisory
authority.
Carroll testified that after he put Day in charge of the shakeout crew he usually left the
plant at about 5 o'clock. The only person left in authority at that time in the foundry was
Henry Day. Day also kept a record regarding the pieceworkers who did shakeout and reported
that time to Carroll.
It appeared necessary for Respondent to have supervision over the shakeout crew. As
Tidman explained the operation, the shakeout "work had to be done properly and completed
before the next day's operations could start ... if we didn't have a supervisor or a foreman
over it, somebody to direct it, itwouldbe very possible for a man to leave his work improperly
done, sand not let down properly, maybe not even complete a floor. Then the molders couldn't
go to work the next morning. It is an operation thathas a cycle that has to be completed each
day."
Considering the large turnover in members of the shakeout crew, and the calibre of the
employees, the necessity for supervision and responsible direction of the shakeout crew
appears clear, and the testimony of Carroll, Tillman, and Jug Carmack of Day's duties and
activities is credited.
5Respondent called William W. Bryant, an employee, and expected that such witness would
testify to facts demonstrating that Day was a supervisor. The witness was unwilling so to
testify and his answers to questions propounded to him were such as to cause Respondent's
counsel to plead surprise. Bryant professed not to know the answers to many questions asked
of him Schloth, one of the attorneys representing Respondent in this proceeding, thereupon
testified as to various statements made by Bryant in his presence. The Respondent stated
that the purpose of offering Schloth's testimony was tV impeach Bryant. Bryant's testimony
consisted in large part of claims that he did not know the answer to various questions put
to him. Schloth testified to positive statements made by the witness in his presence and
Swinson's presence to show that the witness was not telling the truth when he professed
not to know. All counsel agreed that Schloth's testimony was not proof of the truth of the
statements made by Bryant in the presence of Schloth and Swinson and, of course, Bryant's
testimony claiming ignorance as to various matters was not proof of the facts which he
professed not to know. General Counsel moved that Schloth's testimony be stricken from the
record. While the Trial Examiner has no doubt regarding the truthfulness of Schloth's
testimony as to statements made by Bryant, the General Counsel's motion has merit as a
matter of law and his motion is granted. Cf. Mitchell v. Swift & Co , 151 F 2d 770; Hernandez
v. State, 22 So. 2d 781, 156 Fla. 356; Rice v. State, 120 S. W. 2d 588, 135 Tex. Cr. R 390.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no doubt in the Trial Examiner's mind that Day personally spent a very substantial
proportion of his time in manual labor . 6 However , despite the fact that he performed manual
labor, Day conceded that he would tell the men "I am looking after you to do the work" or
"I am seeing that you are doing the work and doing it right ." Day also conceded that he would
go into the toilet and run the men out and tell them to go back to work.
I do not believe that it was necessary for Carroll to direct each move that Day made in
shifting the common labor about from one task to another or that he did so , as Day claimed.
Although apparently not possessed of much formal education , Day is an intelligent man It
is highly improbable that Carroll gave him such detailed daily orders as Day claimed were
given ' him or that all he did by way of direction was merely to relay Carroll ' s orders. I
credit the testimony of Carroll that he vested substantial discretion in Day, whose judgment
in regard to the work of the foundry was apparently excellent and whose knowledge of the
work was based on a lifetime of experience.
It may also be observed that on April 17 , 1952, Day signed a work application card filed with
the Georgia State Employment Service. The Trial Examiner issued and the Respondent
caused a subpena duces tecum to be served on the manager of the Columbus. Georgia, office
of the. Georgia State Employment Service requiring the production of this document. The
office manager of such office appeared and stated that under the Georgia statute and the
rules and regulations of the United States Employment Service, which the Georgia State
Employment Service was bound to follow, he was required to decline to produce such document
unless both the employee and employer would agree to its production Day declined to enter
into such agreement and, as counsel for Respondent contended , such refusal created a
reasonable inference that if the card were produced , its contents would adversely affect
him However , after the hearing was closed , a stipulation was executed in which the parties
agreed to the introduction of Day's work application card into evidence . Such document was
received in evidence and added to the substantial accumulation of evidence showing that
Day was a supervisor within the meaning of the Act . This card under item "19. Name, job
and describe exactly what you did and how you did it ," contained the following statement:
Foreman--supervised 75 to 80 colored workers in cleaning room--instructed them in how
to do the work and saw they did the work right Cleaned prior to foreman work. Cleaned
up shop . Also clean plow parts , stoves etc Foreman since 1919.
While quite obviously Day exaggerated in stating that he supervised 75 or 80 employees
in the cleaning room , the Trial Examiner believes the balance of the statement appearing
on the workcard was a true representation of the facts and was made by Day to the person
who interviewed him.
It may be pointed out that Respondent also claimed that Day could and did effectively
recommend hiring and firing Of course, the Respondent had a large labor turnover and
frequently was glad to obtain labor whether recommended by Day or not. However, the
fact appears to be that Carroll had great respect for Day's judgment and I have no doubt
that when Day recommended that a person be hired his recommendation was effective. In
addition, I believe that if Day were to advise Carroll that an employee was not doing his
job properly , that employee would not remain in Respondent ' s employ very long. The testimony
of Carroll regarding the effective character of Day's recommendations as to hiring and
firing is credited.
On the evidence taken as a whole I am persuaded that Day was a supervisor within the
meaning of the Act and had acted in such capacity following his conversations with Carroll
in 1946 when he accepted additional duties to the date of the layoff on March 21, 1952.7 It
follows that the Respondent ' s action in laying off Day or in failing to recall him to the
position he occupied on March 21, 1952, was not violative of the Act.8
6It may be pointed out that in determining whether or not a person is a supervisor, the
fact that he performs manual labor does not create a presumption that he is a nonsupervisory
employee but is merely a factor to be taken into consideration. Cf. Twin Falls Canal Co ,
97 NLRB 1473, where seasonal working foremen who spent about 50 percent of their time
in supervisory work were excluded from the unit as supervisors.
7See Tri-Pak Machinery Service, 94 NLRB 1715; Ohio Power Co. v. N L. R. B., 176
F. 2d 385 (C. A. 6), cert. denied 338 U S. 899; Chautauqua Hardware Co., 92 NLRB 1518
8See Section 2 (3) and (11).
COLUMBUS IRON WORKS COMPANY 1363
B. The Respondent ' s refusal to give Day rank-and-file
employment and the reasons therefor
It is not denied that Moore , Respondent ' s secretary and treasurer , was requested by Craw-
ford, who represented the Union , to give Day rank-and - file employment and that such request
was denied.
The testimony bearing on the reasons for the denial of such request is conflicting, the
General Counsel contending that Respondent was discriminatorily motivated and the Re-
spondent denying such claim In order to arrive at a correct determination of the truth
regarding this question consideration of additional background facts is necessary.
It may be pointed out that no testimony was offered that Day was active on behalf of the
Union, except as a member, beforethelayoffon March 21 , 1952. It will also be observed that no
evidence was offered to controvert the Respondent ' s claim that the layoff on March 21,
1952, was prompted solely by economic reasons. The General Counsel has called attention
to the fact that in previous plant layoffs , Day had always been among those retained However,
in the Trial Examiner ' s opinion, it does not necessarily follow from this fact that Day's
layoff on March 21 , 1952 , was discriminatorily motivated.
After Day had been laid off and had been out of work about 2 weeks he accosted Moore one
morning as he was getting out of his car to go to his office and spoke with him.
The substance of Henry Day ' s story of this encounter was that he appealed to Moore to put
him back to work, and told Moore that he felt his more than 40 years of service with Re-
spondent entitled him to greater consideration than that given to comparatively new employees
Moore, in testifying about this incident , conceded that Day had explained to him that he
believed that he had not " been treated right " and that he understood that Day was complaining
to him. Moore also testified that he was in a hurry at Ehe time and that it was not " salient"
to him from this conversation that Day was asking to be pit back to work , and that all he
gathered from the conversation was that Day had stopped him "to complain about his treatment
and to find out when the plant might start back up."
The Trial Examiner is inclined to believe after due consideration of all the testimony
on this incident and the demeanor of the witnesses that Moore understood that Day was
asking to be allowed to return to work At that time , however , only a few people were working
at the foundry . According to Moore, the Respondent did not need Day's services at the time,
and according to his version of events it was, as yet , undetermined whether Day would be
recalled . Moreover , Moore believed Day was a supervisor and Day's statements to Moore
were not such as to give the latter any reason for believing that Day was at that time asking
for employment as a rank - and-file employee , i.e., in a status other than that of a foreman or
supervisor.
It is uncontradicted that in late July or on or about August 1, 1952, Moore and Tidman,
the Respondent ' s plant superintendent , had a discussion regarding Day Tidman testified that
this discussion took place " in the first part of August 1952." Tidman stated that he recom-
mended to Moore that Day not be recalled and that Day ' s job be abolished Tidman explained
the reasons for his recommendation to Moore In connection with Tidman's explanation of
his reasons , the following facts should be kept in mind After the layoff , employees in the
foundry were gradually called back to work and the supervisory work theretofore performed
by Day was thereafter performed by General Foreman Carroll or Instructor Earl Carmack
who, among other things , stayed with the shakeout crew until it completed its work. Carroll
received no extra compensation when he stayed late to supervise the work of the shakeout
crew Earl Carmack's wages were , however , augmented by pay on an hourly basis for the extra
time he worked. Sometime after the layoff in March 1952 Carmack was put "on a fluctuating
week," i.e., he worked 2 hours extra 1 week and 3 hours extra the following week. Carmack's
hourly rate of pay was approximately $1.78.
Tidman also testified that for a considerable period of time he had been trying to get the
Respondent ' s management to purchase a wheelabrator tumblast which is a machine used to
clean lightweight castings . Tidman described the wheelabrator tumblast as a machine that
" throws shot or sand against the casting instead of the casting taking a tremendous beating
of tumbling in a central cylinder with a lot of heavy cleaning stars by abrasion , which we have
now and have had. This machine will clean a similar quantity of castings in 4 or 5 minutes
instead of 2 hours by simply throwning the shot against it . The breakage is practically nill
and it doesn't take the experience to pack the machine that it does tumbling mills "
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore told Tidman to go ahead and get the cost figures on the wheelabrator machine.
Tidman got the figures (approximately $ 9,500) and discussed the question of purchasing
the wheelabrator at the same time he discussed with Moore the question of Henry Day's job.
Moore agreed with Tidman that the Respondent should get the new machinery and indicated
that he would put pressure on the management to purchase the wheelabrator tumblast.
Tidman testified that in August 1952 when talking to Moore about abolishing Day's job
he had in mind that normal or high production "would last only a short time and I conceded
the fact that we would possibly do well to have somebody in there for those two months,"
i.e , October and November. However, Tidman was very anxious to get the new machinery
In this connection Tidman testified that what he "had in mind [was]putting all the pressure
I could get to get that cleaning equipment and I was trying to show management what it meant
in dollars and cents , and in what short period it would pay for itself by the elimination of
supervision and manual or common labor ." Tidman summarized his reasons for
recommending that Day not be recalled and for eliminating the latter ' s job as follows:
To reduce cost , and I qualify by saying the short period we had for needing real super-
vision , add the next thing was that I thought we would be having cleaning equipment in
there that would further reduce the necessity of supervision and also reduce the number
of men in the department .9
Moore agreed with Tidman 's recommendations . Moore in explaining the considerations
which motivated him in agreeing with Tidman's recommendations testified as follows:
That the shake-out work . . well, to begin with, that the shake-out work supervision has
been assigned to John Carroll and to Earl Carmack, and that it was being satisfactorily
taken care of, that recommendations would be made for the purchase of a type of cleaning
equipment that would require less labor and practically no supervision.
and further
Well, the main thing that interested me was saving the money.
He concluded,
Well, that's all I needed to have, that the work would be properly taken care of without
any additional expense and that if we were to purchase this machine we would have a
further saving.
It was determined at this time that Day would not be recalled and that his job would be
abolished
It will be noted that from the very inception of this proceeding , the Respondent contended
that Day's separation from Its payroll was wholly for economic reasons. In this connection,
it will be observed that when Respondent 's counsel made his opening statement in the pro-
ceeding, the Trial Examiner asked him "Do I understand that it was purely for an economic
reason that Mr Day was not recalled? " and received the reply, "That is what we expect to
show, Mr. Examiner "
According to uncontradicted testimony of Respondent ' s principal witnesses , Day's status
as a working foreman completely ceased and terminated on or about August 1 , 1952, when Re-
9 It may be observed that the wheelabrator tumblastmachine was not ordered by Respondent
for approximately 8 months after this conversation, the purchase order being dated April 10,
1953, just 4 days before the start of the hearing in this matter. In the meanwhile, the Re-
spondent continued to operate its tumbling machines as it had theretofore. It will also be noted
that Moore realized that even after the wheelabrator tumblast was installed it would still be
necessary to operate some tumbling mills. He testified on this point as follows:
Q. You know when you put this wheelabrator machine in that you will still operate the
tumbling mills, don't you9
A Some of them, Yes.
COLUMBUS IRON WORKS COMPANY 1365
spondent determined to abolish Day's job and not to recall him On the basis of Respondent's
version of its relationship with Day, the severance of the latter from its employ was due
entirely to economic and technological causes. Under the circumstances, Day was an un-
employed person for all purposes under the Act subsequent to about August 1, 1952.
It is also uncontradicted that Crawford, director of District 35, United Steelworkers of
America, CIO, requested Respondent on August 26, 1952, to give Day a rank-and-file job
and that this request was refused.
During the course of the proceedings Moore was questioned by the General Counsel as to
why Respondent would not give Day a rank-and-file job. Moore was asked, among other things,
the following question:
Well, I am not referring to supervision now. I am asking you why wasn't Henry Day
called back to fill a rank and file job that you gave a new employee since the time of the
opening.
Moore replied,
I don't know what Henry Day would be qualified to do, what work he would be qualified
to do, myself.
As Moore himself remarked, "Well, its been pointed out that Henry could do almost any job
in the foundry."
Moore had been associated with the Respondent for over 25 years. Day had been on Re-
spondent's payroll for approximately 43 years. Day's job at the time of the layoff was to
supervise the shakeout crew, the men who packed the tumbling mills, the grinders, and the
sandblast men, and to teach new employees how to perform their jobs, and to work himself.
He was undoubtedly the most experienced mill packer in the plant and it was conceded that he
was a good worker. The Respondent's plant was not so large that Moore did not know what
Day was doing there.io
The Trial Examiner has not the slightest doubt that Moore knew that Day, one of the Re-
spondent's oldest and most experienced employees, had the ability to perform almost any
job in the foundry and is convinced that Moore in making such an answer was dissembling.
At another time Moore was asked "Well, why don't you think an arrangement could be
worked out? [i e , for a rank-and-file job for Day] and he replied, "I've never know Henry
to work, to do any manual labor to any degree."
Moore's testimony in this respect is in sharp contradiction with his own testimony on
another occasion and conflicts with testimony of other management witnesses. For example,
in the record in the representation hearing (10-RC-1865 held April 23, 1952) which was
incorporated in this proceeding by reference, Moore was asked the following in regard
to working foremen of whom Day was one--"And as their name indicates, they also work,"
to which he replied, "That is correct" and in addition he gave the following testimony:
Q. Is that work and supervision integrated or is it separate? In other words, is it
possible to divide their time into percentage of work or percentage of supervision?
A. No, sir
Q. Is it integrated?
A. It is.
The record is replete with testimony of Respondent's own witnesses that Day performed
manual labor. Almost every witness produced by Respondent including Plant Superintendent
Tidman and Foreman Carroll conceded that Day worked manually As a matter of fact when
Moore was being cross-examined regarding the increase in breakage of castings in the
foundry in October and November 1952, he gave the following testimony-
Q. So the fact that you had a lot of breakage indicates that the operation of the tumbling
mills was not satisfactory.
ID Respondent ' s counsel stated: "We will admit for the record that the Company, that
Henry Day from 1927 did do maintenance and production work The Company' s contention
was that he was a working foreman from that time."
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes, that is right.
Q. And who was operating the tumbling mills at that time?
A. I don't know
Q. But that had been Henry Day's job, before the layoff?
A. That is right.
Q. Had you experienced any considerable breakage before the layoff when Henry Day
was working that tumbling?
A. Not ordinarily, no
It had been admitted at the outset of the hearing that Day was a good worker and Jug Carmack,
a supervisor and the former general foreman of the foundry and one of the Respondent's
oldest and most trusted employees, conceded that Day was the best man in the foundry
The Trial Examiner is convinced that Moore who had been associated with the Respondent
since 1927 knew that Day had performed manual labor and Moore ' s testimony that he had never
known Day to work or to do manual labor to any degree is not credited.
Elrod Jones , a molder employed by Respondent , who was called as a witness by the
General Counsel , testified among other things that he was an observer for the Union in
connection with the Board-conducted election of employee representatives held on June 25,
1952; that on that morning , , before the election actually took place , he was in the office of
Respondent's counsel, W. Edward Swanson , in connection with his duties as a union observer
and that Mr . Moore in his presence , and apparently in the presence of others, said, among
other things , that "so far as Henry[Day ]was concerned he was completely out of Columbus
Iron Works."
Moore testified in regard to this incident that while he had said that Day would be ineligible
to vote he did not say either in words or substance that Day was out of or'would never be
employed at Columbus Iron Works.
Swanson, Respondent ' s attorney , volunteered himself as a witness and testified as to the
events of June 25, 1952, in his office , in part , as follows
Mr. Moore did make a statement in connection with the Henry Day situation He did mention
Henry Day's name , but under oath I state that he did not say what Elrod Jones stated
that is, that he was never going to be hired again, that he was out of Columbus Iron Works
Company, and that the Company never did intend to recall him or reemploy him.
The testimony of Swinson and Moore is credited.
At the election held on June 25, 1952, the Union was elected to represent certain of the
Respondent's employees.
Day was very active on behalf of the Union during the representation hearing on April 23,
1952 ( 10-RC- 1865), and was consulted during the course of the hearing several times by Craw-
ford, the union representative. Moore was present at the hearing and observed Day's conduct.
It also appears that Day was so active on behalf of the Union during the election that Swanson,
counsel for the Respondent , was impelled to write a note to the National Labor Relations
Board representative conducting the election to the effect that he had " noticed Henry Day
and some of the persons not on the eligible list have come down to the polls and have stayed
too long to vote and I am informed that they are staying around in the neighborhood of the
polls compaigning for the Union."
Following the election , the Union and the Respondent entered into negotiations for a con-
tract . The negotiation meetings between Respondent and the Union took place between July
12 and September 1, 1952 The Union was represented by William H. Crawford , the director
of District 35, United Steelworkers of America , and a three-man union committee , and the
Respondent was represented by Paul H. Moore, secretary-treasurer of the Respondent, and
W. Edward Swinson , counsel for the Respondent.
Before these negotiations were consummated by the execution of a contract , Day com-
municated with Crawford ' s office in Atlanta and advised his secretary that a clause involving
insurance had been left out of the contract and that he believed such clause should be included
therein. The clause in question had been agreed upon verbally between the parties theretofore
and Respondent believed that it had reached a "gentlemen ' s agreement" in regard to such
clause and had thereby obviated the necessity of including such clause as a formal part of the
contract . However, as a result of Day's call to Crawford ' s office and the expression of his
views and the views of others in the Union who shared Day's opinion in the matter , further
meetings between the parties on this point were necessitated.
COLUMBUS IRON WORKS COMPANY 1367
The facts regarding Day's objections to the omission of the insurance clause from the
contract were brought to Respondent ' s attention by Crawford . Moore and Swinson , Respondent's
attorney , remonstrated with Crawford after they found out about Day's call to the latter's
office. Moore and Swinson pointed out that Day was not even a member of the bargaining
committee Crawford conceded that Day was not a member of the committee but stated that
Day was a member of the Union and was entitled to express his opinions Finally, the union
contract was redrafted to include an insurance clause although the amount of insurance was
not doubled as Day apparently thought it should have been.
We come now to a consideration of the testimony of Crawford regarding the reasons
expressed to him by Moore as to why the Respondent would not give Day a maintenance
and production job, i.e , a nonsupervisory position.
Crawford , who appeared to the Trial Examiner to be a convincing and trustworthy witness,
testified that during the course of the contract negotiations , i.e , between July 12 and September
1, 1952, he had discussed the problem of Day's employment with Moore Crawford testified
in part that at some point in the discussions " Moore told us, among other things, in the course
of the conversation that Henry Day would never work back at the Columbus Iron Works again.
He wasn't desirable and they didn ' t intend to have him " Crawford also testified that one of
the conversations about Day took place after he and the conferees representing the Respondent,
i e , Moore and Respondent's attorney , Swinson, had "figured that they had come to an
agreement ." It was at this point in the negotiations that he[Crawford]said he had one or two
things to take up and oneofthethings " was the question of Henry Day " It was then , according
to Crawford , that "I got the reply that the job had been abolished and them not having any
contract that there was no seniority clause that they had to observe of any one."
Another conversation regarding Day took place on August 26, 1952, the day that the union
contract was actually executed Moore's recollection , contrary to that of Crawford , was that
this was the only conversation that took place between himself and Crawford involving a
request for rank-and-file employment for Day.
The record shows that on this occasion , after the union contract was executed , Crawford
turned to the three members of the Union ' s bargaining committee and advised them that he
wished them to retire , which they did. It was Crawford ' s recollection that there was left
in the room only Moore , Swinson, and himself . Moore's recollection in regard to this con-
versation was to the effect that Schloth, Swinson ' s law partner , was also present.
Crawford testified as to this conversation, in part as follows-
I told them that I wanted to have a talk with them privately about Henry Day, that it
wasn't clear to me , taking into consideration that here was a man with right on 43 years
with that company and to be cut off entirely with no thought given to him at all and no
provision made for him to work . He had never worked any place else , and I thought
it was just inhumane to treat a man like that I thought that there certainly should be
some real consideration given because they had hired these other men back, part of
them, at least, at that time and they were hiring others. That was when Mr . Moore told
me that Henry Day would not work back in there again because he knew that as soon as
he went back to work at the plant that he would be elected on the Union committee and
that would make for bad labor relationship in the plant.
That Crawford was pleading at thistimefora rank-and-file job for Day was made abundantly
clear in the testimony of Moore covering the same conversation . The following testimony
was given by Moore pursuant to questions put to him by his own attorney , Swinson
Q. At the end of the conference and when the union committee was beginning to leave,
did Mr. Crawford ask for a private conference with you and me?
A. He did.
Q. Was that conference then immediately held?
A. It was.
Q. Would you give us your recollection , briefly, but give the substance of what happened
in that conference
A. In effect it was this: Mr . Crawford questioned me as to the probability of recalling
Henry Day.
Q. Did he ask you to recall Henry Day either as a supervisor or as a production em-
ployee'?
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I don't know that he said, will you recall him as a supervisor or will you recall
him as a maintenance and production employee , but he did ask to recall him and that
he would be interested in maintenance and production work.
Q. Well, you understood he was asking you in behalf of the union to put Henry Day
back to work:
A. Right
Q. In the language used by Mr Crawford , did he indicate that if Henry Day was not
recalled as a supervisor, that he thought he would be interested in taking a job as a
maintenance and production employee?
A. He did.
And later Moore testified as follows:
Crawford asked me if we would take him back And, of course, I thought he meant take
him back in the same job that he was in before.... And I told him that that iob had
been abolished
Then[Crawford]asked why couldn't we consider taking him back in a maintenance and
production job, that he would be interested in that
In reply Moore told Crawford:
That I didn't think an arrangement that would be satisfactory to Henry and would be good
for the Company or - would be satisfactory to the company could be worked on an a
maintenance and production job, that Henry had made considerably more money in the
job he was in and in a maintenance and production job he would have to take a much lower
rate 11 and would not be permitted to put in the hours he had before, and for that reason
I didn't think an arrangement of that kind would be satisfactory.12
On further questioning of Moore, Respondent's counsel read parts of Crawford's testimony
to Moore, who did not materially contradict Crawford's statements regarding the August
26, 1952, conversation except for Crawford's testimony to the effect that Moore had advised
him that Day would not be employed by Respondent because he (Moore) knew that as soon
as Day went back to work the latter would be elected to the union committee and that would
make for bad labor relations in the plant
Crawford in his direct testimony appeared frankand straightforward and cross-examination
did not in any respect lessen the Trial Examiner's impression of him as a trustworthy
witness i3
ii After the layoff Northcutt, who had been a laborer working under Day as a mill packer,
was made a gang leader in the cleaning room in April 1952 and given a raise in pay from 80
cents to 86 cents per hour. After the union contract was executed on August 26, 1952, the
lowest rate of pay for common labor was fixed at 92 cents per hour, the same rate that Day
had earned as a working foreman and the rate for gang leader was fixed at range between
92 cents and $1.04 per hour. (See Respondent's Exhibit No 26.)
12 That Moore was under no illustion that Day was unwilling to accept a rank-and-file job
was made clear on cross-examination when in testifying concerning Day and a rank-and- file
job, he said, . , but I didn't say, he wouldn't want it. I said I did not think he would be
satisfied."
laRespondent's counsel in his closing statement pointed out that "Crawford's testimony
certainly should lead you to believe that the Union contract now in force and effect was
obtained without any showu-ig of hostility, but with pleasant negotiations on the part of the
Company. "
In this connection, the Trial Examiner noted that Crawford volunteered that he thought
"the negotiations were conducted honestly and fairly" and "there is no tendency to take
unfair advantage, I don't think that we tried to take any unfair advantage of the company
and I don't think they tried to take any of us,"
It appeared that there was no attempt on Crawford's part to exaggerate the differences
between the Union and the Respondent. His attitude reflected frankness and candor. It may also
COLUMBUS IRON WORKS COMPANY 1369
It was clear that both Moore and Crawford had a partisan interest in the matter , Crawford
as the union representative , Moore because he does not want Day to be an employee of Re-
spondent . These factors have of course been considered and weighed.
Based on his observation of the demeanor of the respective witnesses , and the manner in
which they told the story of the August 26, 1952, conversation, the Trial Examiner credits
Crawford. 14
The Trial Examiner has carefully considered Moore's testimony to the effect that he would
not give Day a maintenance and production job because there would be a substantial difference
in Day's income as a maintenance and production employee compared to what his income as
a supervisory employee had been and that if Day were employed in a rank-and-file job he
would not be happy.
That Day's happiness was an important consideration inMoore's mind in the circumstances
of this case is much to be doubted The Trial Examiner is of the opinion that what was on
Moore's mind was not Day ' s happiness but rather a feeling that Day's aggressiveness on
behalf of the Union might, if he were given a rank-and - file job, be a source of possible
future labor trouble and that such possible labor trouble could be avoided by keeping Day
out of the plant as an employee . In this connection it will be recalled that it had been clearly
demonstrated to Respondent that Day was a very aggressive union member who may have been
responsible for the insertion of the insurance clause as a formal part of the union contract
and who may also have been responsible for the delay in the execution of such union contract.
While Moore testified that he had no feeling of ill will against Day despite the latter ' s union
activities and while it is not improbable that Moore had no affirmative desire to injure Day,
he did wish to avoid future possible labor problems which he anticipated might result if Day
became a member of the union shop committee . Moore's thinking in this regard was clearly
shown in the statements made by him to Crawford when he referred to Day becoming a
member of the union committee as a reason for not giving Day a rank-and -file job.
Moore's statement to the Trial Examiner to the effect that he did not want to give Day
a maintenance and production job because the latter would be an unhappy and dissatisfied
employee over his loss of status and reduced income had an air of plausibility about it.
However, such air of plausibility was materially weakened when it appeared that Moore,
upon being pressed by Crawford to give Day a rank - and-file job in the light of the employee's
43 year period of service for Respondent , and upon being pressed on the further ground that
his refusal to give Day a rank - and-file job was "inhumane ," told Crawford that he would not
give Day such employment because Day would become a member of the union committee
and that would make for bad labor relationship
The Trial Examiner is convinced that Moore would not have made the latter statement
had it not represented his actual reason for refusing Day a maintenance and production
job E
Moore's statement to Crawford of his reasons for refusing Day rank-and - file employment
revealed his basic motivation in the matter , namely, to keep Day out of the plant as an em-
ployee because he apprehended that Day would become a member of the union committee,
an event he considered undesirable
be pointed out that "Once a violationofthe statute is shown . . it is immaterial that previous
thereto the Respondent engaged in no unfair labor practices , demonstrated no hostility
towards the Union, or enjoyed an amicable relationship of long standing with the Union."
Todd Shipyards Corporation. 98 NLRB 814, and cases cited therein.
14 It will be observed, among other things, that Crawford testified that only one of Re-
spondent ' s attorneys was present at this conference . Moore's rdcollection was to the effect
that both attorneys were present. Although both attorneys testified as witnesses in this
proceeding, one to contradict testimony given by Elrod Jones, who attributed certain statements
to Moore which Moore denied having made (discussed in the text hereinabove), and the other
to impeach William W Bryant, neither contradicted the testimony of Crawford regarding
the statements made by Moore to him in the presence of one or both such attorneys.
15 There was no testimony that Respondent had any policy against retention of personnel
who were downgraded such as prevailed in Lily-Tulip Cup, 88 NLRB 892. As a matter of
fact, Jug Carmack was downgraded from general foundry foreman to ordinary foreman and
was retained. In addition Moore claimed that Respondent had a considerate policy towards
its old emplcyees and gave them preference for jobs.
137 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore's action in refusing employment to Day because he was apprehensive of Day's
possible union activity in the event he became an employee was proscribed by the Act.16
C. Interrogation
About April 8, 1952, Foreman Carroll stopped Elrod Jones, a molder employed by Re-
spondent , while he was at work and asked him if he could talk with him privately They went
to a room on the second floor where Carroll questioned Jones about his knowledge concerning
the Union . Jones told Carroll he didn't know anything about it whereupon Carroll told Jones
he was lying. Carroll testified on cross-examination that he asked Jones a few questions
about the Union; that he asked him , " Did the union try to get in? Didn't they have a meeting
last night? " and "When are they going to get in down there? " Carroll voiced his objections
regarding the Union to Jones by telling him, "Its hard to get along . If you want to change a
man or anything you got to go through all this crap " and "I said I been in it before."
In April 1952 Carroll asked Forb Lewis, another employee, how the Union was coming
along
In July 1952 Carroll asked Andrew Cotton, another employee, whether he was in the Union
Carroll conceded he questioned 6 or 7 employees.
About 2 or 3 weeks after the layoff on March 21, 1952, Charles Wilson did some work for
Carroll near the latter 's home in Phoenix , Alabama Carroll and Wilson had a conversation
in which the Union was mentioned Wilson wanted to know if the layoff had anything to do with
the Union and Carroll told him-he didn't think so Carroll used some language about a mess,
from which Wilson apparently drew the implication that Carroll was holding the Union re-
sponsible for everything being "messed up now ." Carroll ' s version of the conversation was
as follows:
16 The case at hand is substantially different from N L. R. B. v. The Texas Company,
198 F 2d 540 ( C. A 9), since in the latter case the supervisory employee was discharged
for refusing to obey instructions and was denied rank-and-file employment because he had been
insubordinate . In the, present case there was no claim of refusal to obey orders , the Re-
spondent claiming that Day ' s severance from his job as a working foreman was wholly economic
and disclaiming any retaliatory motive in not recalling him to work either as a supervisor or
as a rank-and- file employee . The problem presented is not why Day's job as a supervisor
was abolished or why he was not recalled to such position , but rather whether as a fact Re-
spondent ' s refusal to grant him rank-and-file employment was retaliatory , i. e., for past union
activities while a supervisor , or for certain other reasons testified to by Moore , or because
the Respondent apprehended ' that Day would , after obtaining a rank-and - file job, become a
member of the union committee which the Respondent did not want to happen The Trial
Examiner has credited Crawford ' s testimony to the effect that Moore told him that the latter
was the reason and accordingly it appears that Respondent was motivated by a desire to inter-
fere with rank-and-file activity , an activity which Congress immunized against reprisal.
See Phelps Dodge Corp. v. N. L. R. B., 313 U. S 177. N L R. B. v. Laughlin Steel Corp.,
301 U S. 1, 32 , 34. See also Holme & Seifert , 102 NLRB 347, where the Board found a violation
of Section 8 (a) (3) because the employer discharged an employee representing a threat to
the stability of the employer ' s relations with an incoming union.
Cf. Pacific American Shipowners Association , 98 NLRB 582 , 592, where the following
language appears:
As to Theusen , we find that he was entitled to the protection of the Act notwithstanding
the fact that his previous employment with the Respondent Alaska was in a supervisory
capacity . Although Theusen held a supervisory job during a trip for the Respondent
Alaska which ended in June 1948 , his request on January 5, 1949 was for "a job going
to sea." ( emphasis supplied). Since Theusen was qualified to hold virtually any job in
the stewards department of a ship , and had, prior to January 1949, sailed in nonsuper-
visory positions , we view his request, so broadly stated by him, as encompassing a non-
supervisory position
See also John Hancock Mutual Life Insurance Company, 92 NLRB 122,enfd. 191 F 2d
483 (C A., D. C.), cited by the Board in the Pacific American case.
Montgomery Hardwood Flooring Company, 72 NLRB 113; Jos. N. Fournier, Rome-Lincoln-
Mercury Corp., 86 NLRB 397; N. L. R. B. v. Waumbec Mills Inc., 114 F. 2d 226 (C A. 1).
COLUMBUS IRON WORKS COMPANY 137 1
I was talking to Charles, what a mess I was going to be in when I tried to get my men
up, when we started back up. I said it was going to be a mess, some will be out at Fort
Benning. I said you don't know where they're liable to be working
As the Trial Examiner has indicated heretofore, he considers Carroll a frank, honest, and
straightforward witness. His testimony as to his conversation with Wilson is credited
The views expressed in Syracuse Color Press, 103 NLRB 377, and earlier cases makes
it clear that the Board would, in the circumstances of this case, hold that Carroll's conduct
in interrogating employees concerning their union membership and activities was proscribed
by the Act. The Trial Examiner holds that Carroll's interrogation of Respondent's em-
ployees regarding their union membership and the actions taken at union meetings violated
Section 8 (a) (1) of the Act. Cf. Standard-Coosa-Thatcher Company, 85 NLRB 1358.
D. Arbitration
Two days before the close of the lengthy hearing in this proceeding the Respondent offered
in evidence copies of the contract it had entered into with the Union (Respondent's Exhibit No
26) and called specific attention to articles IV, V, and XII containing antidiscrimination,
grievance, and discharge provisions. The Respondent took"the position that under the policies
of the Board that this question with reference to Henry Day, the entire question, is covered
by this contract, that the remedy, if there be remedy, is to be pursued by the grievance
procedure under that contract and not by this unfair labor practice action "
Respondent's answer to the complaint did not make reference to the grievance, or any other
provision of the contract Respondent made no claim that such provisions were a bar or im-
pediment to the institution of this proceeding until the hearing was approaching its close
When the Union through its representative, Crawford, requested that Day be employed in
a rank-and-file job, the Respondent did not at that time or at any other time request or even
suggest to the Union that the matter be handled through the grievance procedures set forth
in the contract
Insofar as the record in this proceeding discloses, the first time that Respondent claimed
that the grievance procedures should have been followed was almost 10 months after Re-
spondent was requested to give Day a rank-and-file job and had firmly refused to do so.
Under the circumstances of this case, the Trial Examiner is not persuaded that the complaint
should be dismissed because the Union did not pursue possible rights available to it under the
grievance procedures of the contract As Section 10 (a) of the Act, as amended, expressly
provides, the Board's power to prevent unfair labor practices shall not be affected by any
other means of adjustment or prevention that has been or may be established by agreement,
law, or otherwise 17
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection
with the operations of the business 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 unfair labor practices, the Trial Examiner
will recommend that it cease and desist therefrom and take certain affirmative action which
will effectuate the policies of the Act
Having found that the Respondent discriminated in regard to the employment of Henry
Day, the Trial Examiner will recommend that it offer Day immediate employment as a rank-
and-file employee in its foundry at Columbus, Georgia, with back pay from the date, after
August 26, 1952, when the Respondent first employed any individual in any job for which Day
IICf, Todd Shipyards Corp., 98 NLRB 814; Monsanto Chemical Company, 97 NLRB 617;
Consolidated Edison Co., 309 U S 261; N. L. R. B v. Walt Disney Productons, 146 F 2d
44, 48 (C. A. 9).
1 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was qualified , to the date on which Respondent makes the aforesaid offer of employment. It
will be further recommended that the Respondent make Day whole for any loss of pay he may
have suffered by reason of Respondent ' s discrimination by payment of a sum of money equal
to that which Day would have earned as wages from the date of the discrimination to the
date Respondent makes an offer of employment to Day , less his net earnings during said period.
Said loss of pay shall be computed in the basis of each separate calendar quarter , or portion
thereof, during the period from the Respondent ' s discriminatory action to the date of the
aforesaid offer of employment . The quarterly periods , hereinafter called "quarters ," shall
begin with the first day of January , April , July, and October . Loss of pay shall be determined
by deducting from a sum equal to that which the employee would normally have earned for each
quarter or portion thereof , his net earnings , if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back - pay liability of any other
quarter . In this connection it will be further recommended that Respondent be required, upon
reasonable request, to make all pertinent records available to the Board and its agents.
It has also been found that Respondent unlawfully interrogated its employees regarding the
Union through its foreman , John H, Carroll.
In view of the nature of the unfair labor practices committed , the commission by the
Respondent of similar and other unfair labor practices may reasonably be anticipated. The
remedy shquld be coextensive with the threat . It will therefore be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the employment of Henry Day, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
3. By engaging in the acts and conduct summarized in section V, above, entitled "The
Remedy," including discrimination, and thus interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
POE MACHINE & ENGINEERING COMPANY, INC.and UNITED
STEELWORKERS OF AMERICA, C.I.O. Case No. 6-CA-587.
February 26, 1954
DECISION AND ORDERS
On June 19, 1953, Trial Examiner Frederic B. Parkes, 2nd,
issued his Intermediate Report intche 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 Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint and recommended that these allegations be dismissed.
Thereafter , the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
107 NLRB No. 287.