Consolidated Aircraft Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1943

46 N.L.R.B. 1120 (N.L.R.B. 1943)

In the Matter of CONSOLIDATED AIRCRAFT CORPORATION, FORT WORTH
DIVISION 1 and INTERNATIONAL UNION OP UNITED Au OMOBILE, AIR-
CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0.
Case No. U-385.-Decided Janicary 16, 19.13
Jurisdiction : airplane and airplane parts manufacturing industry.
Unfair Labor Practices
Interference , Restraint , and Coercion : charges of , dismissed, since three of four
employees by whom respondent allegedly engaged in anti-union conduct and
made remarks derogatory to the union did not have supervisory authority, and
remarks of the fourth employee , a leadman , standing alone, were insufficient
to support such a finding.
Practice and Procedure : complaint dismissed ; dismissal without prejudice dur-
ing course of hearing of 8 (3 ) allegations of complaint with respect to employee
who failed to appear at hearing held not prejudicial.
DECISION
AND
ORDER
On October 24, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had not interfered with, restrained, or coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, as alleged in
the complaint, and recommending that, the complaint herein be dis-
missed, as set forth in the copy of the Intermediate Report annexed
hereto.. Thereafter, on November 10, 1942, the United filed exceptions
to the Intermediate Report and a brief in support of its exceptions.'
During the course of the hearing, the Trial Exaniiner,,on motion of
counsel for the Board, dismissed without prejudice the,,alle'gatidns'.of
the complaint with respect to J. M. Parker, who had failed to appear
at the hearing. Counsel for the United opposed the motion, and asked
that the hearing be continued for the purpose of taking Parker's depo-
sition.2 The Board has considered the record and finds that the ruling
of the Trial Examiner was, not prejudicial; Parker can file' a new,
charge since the dismissal, is without prejudice, and, apart from the
I See footnote 1 of Intermediate Report
2 Subsequently , during the course of oral argument before the Board, counsel for the
United moved to reopen the hearing for the purpose of taking Parker 's testimony. The
notion -ishereby denied.
46 N. L. R. B., No. 132.
1120
CONSOLIDATED AIRCRAFT CORPORATION 1121
8 (3) allegation, there is no showing in the record that his testimony,
if taken, would be material in respect to the allegation in the complaint
that the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of their statutory rights. The Board has con-
sidered all the rulings made by the Trial Examiner at the hearing and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.
Upon request of the United and pursuant to notice, a hearing was
held before the Board in Washington, D. C., on January 5,1943, for the
purpose of oral argument .3 The respondent and the United were
represented by counsel and participated in the hearing.
The Board has considered the Intermediate Report, the exceptions
and brief filed by the United, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint issued herein against the re-
spondent, Consolidated Aircraft Corporation, Fort Worth Division,
Fort Worth, Texas, be, and it'hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Elmer Davis, for the Board.
Mr. Raymond Burk, Mr. J. Al. Hassler, and Mr. E. G. McKinney, of Ft. Worth,
Texas, for the respondent.
Mr. George C. Edwards, of Dallas, Texas, for the United.
STATEMENT OF THE CASE
Upon an amended charge duly filed on April 30, 1942,' by International Union
of United Automobile, Aircraft and Agricultural Implement Workers of America,
'C I. 0., herein called the United, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued its complaint on September 16, 1942,2 against Consolidated Air-
craft Corporation, Fort Worth Division,2a herein called the respondent, alleging
3 During the oral argument , counsel for the United moved to incorporate in the record in
the present proceeding the record in Matter of Consolidated Airai aft Corporation, Plant #3,
Fort Worth Dionsnon and International Association of Machinists , Lodge 776-A, Case No.
R-4712 The motion is hereby denied
I An original charge was filed on April 28 and the amended ' charge on April 30, 1942.
2 Through apparent inadvertence the day of the month on which the complaint was issued
was not inserted in the complaint . The notice of hearing attached to the complaint recites
that it was signed by the Regional Director on September 16, 1942. At the hearing, the
respondent and the United acknowledged due service of the complaint
Za The original complaint referred to the respondent as "Consolidated Aircraft Corporation
Plant No 3, Fort Worth Division " It was agreed at the hearing that the respondent's name
properly should read as set forth above. The words "Plant No. 3" were ' accordingly
ordered stricken from the formal papers.
504086-43-vol 46--71
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent had engaged in 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 notice of hearing, were duly
served upon the respondent and the United-
With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) on or about April 29, 1942, discharged one J. M Parker
from employment at its Fort Worth plant and has at all times since failed and
refused, to reinstate him for the reason that he joined or assisted the United
or engaged in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection; (2) on various stated dates in April 1942
engaged, by four named individuals, in certain specified conduct and made cer-
tain specified remarks derogatory to the United and favorable to the Inter-
national Association of Machinists, affiliated with the American Federation of
Labor, herein at times called the Machinists' During the hearing the respondent
filed an answer in which it denied that it had engaged in any unfair labor
practices.
Pursuant to notice, a hearing was 'held at Fort Worth,, Texas, on September
28 and 29, 1942, before William B Barton, the Trial Examiner duly designated
by the Acting Chief Trial Examiner. The Board and the respondent were rep-
resented by counsel and the United by a representative ; all participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence, bearing upon the issues was afforded all parties At
the close of the Board's case,' counsel for the Board moved that the allegations
of the complaint with respect to J M. Parker be dismissed. Counsel for the
respondent joined in the motion, but the United's representative opposed,it and
urged the undersigned to order that Parker's deposition be taken. The under-
s,gned granted the motion of Board's counsel without prejudice.' At the close
of the hearing counsel for the Board moved that the complaint be conformed
to the proof with respect to dates and spelling. There was no objection. The
motion was granted. Also at the close of the hearing counsel for the respondent
moved that the complaint be dismissed. Ruling was reserved on this motion.
It is'hereby granted in accordance with the findings of fact, conclusions of law,
and recommendations set forth below. At the close of the hearing counsel for
the respondent reserved the right to file a brief with the undersigned and the
parties were allowed until October 6, 1912, for that purpose. None of the parties
have availed themselves of this opportunity.
Upon the entice record in the case and from his observation of the witnesses,
the undersigned makes the following : -
The conduct and remai ks specified in the comp'aint consisted of soliciting employees to
become membeis of the Machinists, giving one of them a Machinists' membeiship applica-
tion card and stating, "Sign this If you will, we might get a raise-we got one in Cali-
fornia" ; advising employees to quit wearing United buttons if they wanted to work, as the
plant was or soon would be A F. of L ; thieatening employees with discharge if they did
not cease wearing United buttons ; requesting or demanding that a number of employees tear
up their United cards , stating to a United men her that he had better let no one there know
he was a member as the fact would do him no good.
I Board counsel indicated at the time of his motion that Parker had failed to answer two
telegrams about the case sent to him by the Regional Director Pai kei's apparent residence
at the time was Berkeley, California In granting without prejudice the motion of Board
counsel the undersigned commented on the d stance of Berkeley from Fort worth, observed
that there might be good reason for failure of Parker to reply to the telegrams, and stated
that a dismissal without prejudice would make renewal of Parker 's case possible if there
were meritorious reasons therefor.
CONSOLIDATED AIRCRAFT CORPORATION 1123
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corporation, with its principal office at San Diego,
California, has plants at San Diego and at Forth Worth, Texas. The respondent
manufactures airplanes and airplane parts. Of the sundry raw materials used
by the respondent at its Fort Worth plant, the principal one is steel. During the
first six months of 1942, the raw materials used at the Fort Worth plant exceeded
$500,000 in value More than 90 percent of these raw materials originated in
States of the United States other than Texas. All airplanes manufactured by
the respondent at its Fort Worth plant are delivered at this plant to the United
States Army. All of such airplanes are either bombers or transports used by the
armed forces of the United States. Airplanes so delivered to the United States
army during the first six months of 1942 were valued in excess of $1,000,000.°
II. THE ORGANIZATION INVOLVED
International Union of United Automobile, Aircraft and Agricultural Imple=
ment Workers of America, C. I. 0., is a labor organization admitting to member-
ship employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES-
The complaint alleges and the respondent denies that the respondent inter-
fered with, restrained and coerced its employees within the meaning of Section
8 (1) of the-Act by certain specified conduct and remarks of Glenn Nelson,
Luther M. Mayfield, George Stephens and Herman E. Sandell, who, the Board,
contends in its evidence, were lead men. There is a conflict in the evidence
as to whether. these employees were lead men or had supervisory authority at,
the time of their alleged conduct and remarks. The undersigned will, therefore,
resolve that issue with respect to each of these employees.
With respect to Nelson, the evidence shows that in April 1942' he entered an
airplane where James P. Whitaker and Earl Rich, employees in the electrical
department, were working. On this occasion Nelson stated to these two employees
that he wanted to tell them something for their own good. He said that- "the
boys" were complaining about the United buttons these employees were wearing.:
Nelson told Whitaker and Rich that unless they were careful some tools which
were not theirs would be placed in their boxes and they would be accused of:
theft. He advised them to get rid of their United buttons. Irnmediateiy after'
this conversation Nelson left the airplane.
The evidence shows that Nelson became a lead man on April' 18th Althonnh
some of the testimony specifies the date of this conversation as prior to that
time, Whitaker testified definitely and without contradiction that Nelson at:
the time was wearing a lead man's button. The undersigned credits Whitaker's.
testimony on this subject and finds that Nelson was a lead man at the time of the
conversation.
Whether by Nelson's remarks to Whitaker and Rich on this occasion the
respondent has violated the Act depends on the importance of Nelson as a lead
man and his general relationship to the respondent. John Hassler, the personnel'
director at the Fort Worth plant, testified, "The lead man is not responsible for
6 The respondent admits that it is engaged in interstate commerce within the meaning of
the Act.
'r All dates in this Report refer to the year 1942.
1121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the production of the work. He is responsible for getting the thing done in the
best possible manner, and it is believed that he has the ability to 'do it in the
best manner and for that reason he is made a lead man." He further character-
ized the lead man as one who "because of, experience and because of schooling
or because of knack" is the natural leader picked for the group. The only kind of
report the lead man makes out is one which tells the oncoming shift the status of
the work. He does not have authority to hire or discharge or to discipline em-
ployees, but is under a, duty to report irregularities without recommendation to
some superior such as the assistant foreman. He may be paid more or less than
others in the group in which he is the lead man. An assistant foreman of the
department is in most instances the lead man's immediate superior.' Some smaller
departments, however, do not have an assistant foreman and in those instances
the departmental foreman is the lead 'man's immediate superior. Above the
departmental foremen in their order of authority at the Fort W orth plant are
general foremen, assistant factory managers, the factory manager, the division
manager, and a vice president. Whether either the United or the Machinists view
lead men-as supervisory employees is doubtful. ' Both of these labor organizations
admit lead men to membership. The machinists have lead men on that 'labor
organization's grievance committee in the Fort Worth plant. The record is silent
as to whether the respondent in any way restricted the union activities of its
lead men either on or off the company's premises..
Nelson indicated with respect to the conversation detailed above that he
cautioned these employees about wearing their United buttons in an effort to
protect them because he feared as a result of talk he had heard that some of the
Machinists might place in their boxes tools which did not belong to them in an
,effort to get them into trouble and get rid of them. Such an interpretation of the
conversation is not unreasonable.
'The undersigned is of the opinion in any event that since the evidence as'dis-
cussed further below does not show the commission by the respondent of other
-unfair, labor practices, the remarks of Nelson to Whitaker and Rich; standing
alone, are insufficient to support a finding of interference, restraint, and coercion
in violation of the Act.
With respect to Mayfield's conduct and his supervisory status, Edward J.
Kraft, 'an electrician in the Fort Worth plant, testified that Mayfield in April
and May interrogated Kraft about his United membership and told, Kraft not
to let anybody know he was a member because membership would not do him
any good ; reminded Kraft that he was on probation for thirty days and told
'him the best thing he could do was to tear up his United membership card;
told Kraft on one occasion when watching him at his work, "Yes, that's just like
a C. I. O. man"; stated that he had succeeded in preventing the discharge of
two named employees who had been caught loafing ; 6 and asked Kraft to sign
a Machinists' membership application blank. Kraft testified that Mayfield was
his lead man at the time of the conduct and remarks discussed above. - Kraft
also testified that when he reported for work at the respondent's plant in April,
Frank Williams, whom Kraft identified as foreman of the electrical • depart-
ment's night crew, introduced him and another employee to Mayfield as a lead
man, stating that Mayfield would instruct the two as to their duties. Kraft
described Mayfield's duties as follows: "Well, when we would report to work,
we would report to him and he designated what plane we worked in and what
we would do, what part we were to install, and every night when they came
around he would have a report on what we would do. He also takes that.repoit
']Kraft later determined that these two employees were members of the Machinists.
CONSOLIDATED AIRCRAFT CORPORATION 1125
from you and turns it in to his superior."" The evidence adduced by the re-
spondent gives a different version as to Mayfield's relationship to the respondent
at the times mentioned by Kraft in his testimony. MMuyfield testified that when
Williams, whom Mayfield identified as the departments lead man, introduced
Kraft to him, Williams told Mayfield to show Kraft how to do his work ;that
there were,two other employees, neither of whom was a lead man in the depart-
ment, who were at the time also showing less experienced employees how to
do their work. Mayfield testified that he did not become a lead man until
August 22nd and there was no foreman or assistant foreman in the department
in April and May, but only a lead man, Williams ; that Mayfield gave instruc-
tions up to the time he became a lead man to about three to five less experienced
employees ; that whereas prior to August 22nd all Mayfield did was to give
instructions to employees, after that date it was his duty to ascertain what jobs
should be done and check that each job was done in the best possible manner.
In corroboration of Mayfield, Hassler, the respondent's personnel director in the
Fort Worth plant, testified that Mayfield did not become a lead man until August
22nd and that it was the custom at the time of the remarks and conduct at-
tributed to Mayfield for the more experienced men to instruct or assist the
"green" men in the'plant.10 It is reasonable that the giving of such instructions
was the custom because the Fort Worth plant was a new and growing organiza-
tion, a fact which made necessary the use of experienced employees to teach
those without experience.
In April and gay both Mayfield and Kraft were classified 'on the respondent's
pay roll as "helper general." 11 Both started their work-at the wage rate of
sixty-eight cents per hour, the respondent's normal base rate of pay for beginners
on its night' shift. Each received 'the same "automatic" increases and it was
not until August 22nd that Mayfield was promoted to a higher rate of pay than
Kraft.
On the basis of the evidence as detailed above the undersigned finds that
Mayfield was not a lead man and did not have supervisory authority in April and
May at the time of the remarks and conduct attributed to him by Mayfield."
I , l
° The reports the various employees made by Mayfield were apparently oral, but the reports
be in turn made were in wilting.
10 Hassler testified as follows on this subject :
Q (By Mr. Buck ) Is it or not the custom in the plant for experienced. men to
instruct or assist the raw recruits in the performance of the work?
A. Very definitely it is the custom. As a matter of fact nearly a thousand of them
were hired here in Foit Worth and sent to San Diego ,and trained and brought back
here and when they were brought back here they were scattered over that big plant-
Oftentimes one experienced man would have eight or ten green men with him while
his rate of pay was identical with what the green employees was. That is the purpose,
to teach as many people as quickly as we possibly can. That is a method of doing that.
Q In the development of that plant out there, state whether or not it has been the
custom to use the more experienced men to impart information and training to those
that were less experienced?
A. That is right.
Q. It has been acase-
A. (Interrupting ) Necessity.
Q. Men of the same rank and wage and duties to help each other?
A That is right.
Q. That is the system that you have employed in developing your plant's
A Yes, sir.
"Kraft is still classified on the pay roll as "a helper general," and Mayfield remained
classified as such until August 22nd.
The undersigned ,is convinced that graft may have been mistaken in testifying that
Williams introduced Mayfield in April as graft's lead man. Even if such a statement were
made, however, the undersigned does, not view it as showing conclusively that Mayfield was
a lead man. ,
1126 DECISIONS OF NATTONIAL LABOR RELATIONS BOARD
Since he was not a lead man and did not have - supervisory , authority it is
unnecessary to determine whether the remarks and conduct attributed to him
by Kraft took place.
With respect to the cond 'ict and supervisory status of Stephens , Whitaker
testified that three or four=ways after he went to work at the respondent's Fort
Worth plant in April , Stephens asked him to sign a Machinists ' membership
application card, Stephens saying at the time that the United may have been
all right in the plant where Whitaker had worked, but not in the respondent's
Fort Worth plant . At the time of this alleged conversation Stephens ' duties
were similar to those of Mayfield, as described above, in that Stephens was
giving instructions to a group of about five employees . When Whitaker began
work for the respondent , Nelson , discussed above, assigned Whitaker to "the
gun crib" " and introduced him to Stephens , who was working there. Stephens
then proceeded to show Whitaker "the working parts of the gun" and to give
him instructions regarding them. Stephens was similarly instructing approxi-
mately four other employees who also 'about that time were assigned to "the
gun crib " Whitaker described . Stephens ' duties as follows : "He instructed the
men on what to do on the operations .' of the guns , on the cleaning of them,
correct cleaning , and so forth , and he kept the gun records ; made out reports
on them. . . . He would post . . . what date they were cleaned and all that."
At the time of the conversation with Whitaker, Stephens was classified by the
respondent on its pay roll as an "installer general helper ." He did not wear a
lead man's button , but wore a button bearing his name and department number
such as the employees generally wore. He had worked approximately nine
months for the respondent at its San Diego, California plant. He began work
at the Fort Worth plant on April 6 , 1942, after a transfer from San Diego. At
the 'time of his conversation with Whitaker he was receiving 83 cents an hour,
which was equivalent to the wage received by all employees who had received'
the usual automatic increases after beginning work at the respondent's base
rate of 60 cents an hour."
It appears that Whitaker himself did not in any realistic sense view Stephens
as a supervisory employee at the time of his conversation with Stephens as stated
above . In description of his relationship to Stephens soon after he began work
at the Fort Worth plant Whitaker testified , "I was still under Glenn Nelson,
working with Stephens ." The undersigned finds that at the time of the conversa-
tion between-Stephens and Whitaker the former was not a lead man and did not
have supervisory authority. ,
,With respect to the conduct and supervisory status of Sandell, the evidence
shows that Sandell also in April asked two of the employees to sign a Machinists'
membership application . He offered such a card to Olan T Harrell and another
employee ; indicating that the Machinists had obtained for the employees a raise
in pay in the respondent 's California plant and the same thing could be done in
the Fort Worth plant . Harrell, describing Sandell's duties , testified that, after
be was assigned to work on the assembly line, Sandell "went after parts for us
and directed us around in the jobs that we was to do and helped us to do them,
showed us anything that we couldn 't do. He was there, and anything that we
" Those in "the gun crib" apparently worked on machine guns.
i4 Stephens, however, apparently had received increases totaling 20 cents an hour, as he
had -begun his employment at 5 cents below this base rate. After his conversation with
Whitaker lie received further increases which brought his pay to 98 cents an hour when he
became a lead man in August Eight cents per hour of h,.s pay was a bonus, which all
employees on the night shift received.
CONSOLIDATED AIRCRAFT CORPORATION 1127
couldn't do, he was there to do it or show us how to do it." On cross-examination,
however, Harrell testified as follows :
Q. (By Mr. Brick.) You say Sandell showed you the things to do?
A. That is right.
Q. Kind of led the way?
A. That is right. -
Q. He didn't pretend to be a foreman?
A. No, sir. -
Q. You knew he wasn't?
A. Yes, sir.
Q. You knew he wasn't even the lead man?
A. Yes, sir.
Q. He was just a helper like you were?
A That is right, he was just an experienced man that was in front of us.
That is all.
On the basis of Harrell's testimony the undersigned finds that Sandell was not a
lead man and did not have supervisory authority at the time he asked Harrell to
join the Machinists as set forth above.
At the time of the conduct and remarks of Nelson, Mayfield, Stephens, and
Sandell, only Nelson was a lead man. Mayfield, Stephens, and Sandell were not
lead men and did not have supervisory authority. The respondent, therefore, is
not responsible for their conduct or remarks. As stated above, the undersigned
does not view the remarks of Nelson, standing alone, as sufficient to support a
finding of interference, restraint, and coercion.
The undersigned will recommend dismissal of the allegations in the complaint
that the respondent has interfered with, restrained, or coerced its employees
within the meaning of Section 8 (1) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAN
1. The operations of the respondent occur in commerce within the meaning of
Section 2 (6) of the Act.
2. International Union of United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, C. I. 0, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. The respondent has not interfered with, restrained, or coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, within the
meaning of Section'S (1) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and -conclusions of law the
undersigned recommends that the complaint against Consolidated Aircraft Cor-
poration, Fort Worth *Division, be dismissed. '
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as, amended, effective October 14,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D. C., an original and four copies of a statement in writing setting forth such
1
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceptions to the Intermediate Report or^to any other part of the record or pro-
ceeding ( including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further 'provided in said Section 33 , 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 the order transferring the case to the Board.
Wm. B . BARTON,
Trial Examiner.
Dated October 24, 1942.