Glidden Company, a Corporation

National Labor Relations Board - Board Decisions

May 3, 1939

12 N.L.R.B. 627 (N.L.R.B. 1939)

In the Matter of GLIDDEN COMPANY, A CORPORATION and INTERNA-
TIONAL LONGSHOREMEN & WAREHOUSEMEN'S LOCAL 1-28 AFFILIATED
WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION
Case No. C-764.-Decided May 3,1939
Paint Warehouse Industry-Interference , Restraint , or Coercion : charges of,
dismissed-Discrimination : charges of , dismissed-Complaint: dismissed.
Mr. Patrick Walker, for the Board.
Carey, Hart, Spencer cC McCulloch, by Mr. Philip Chipman, of
Portland, Oreg., for the respondent.
Mr. Richard Salant, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Longshoremen & Ware-
housemen's Local 1-28, affiliated with the Committee for Industrial
Organization, herein called the Union, the National Labor Relations
Board, herein called the Board, by Charles Hope, Regional Director
for the Nineteenth Region (Seattle, Washington), issued a complaint,
dated March 10, 1938, against Glidden Company, a corporation, Port-
land, Oregon, herein called the respondent, alleging that the respond-
ent 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.
In respect of the unfair labor practices the complaint alleged in
substance (1) that the respondent discriminated in regard to hire
and tenure of employment thereby discouraging membership in a
labor organization in that it discharged Joseph Hoski on September
23, 1937, and refused to reinstate him thereafter; and (2) that by
this and other acts and conduct, the respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act. Copies of the complaint, accompanied
by notice of hearing, were duly served upon the respondent 1 and
the Union.
1 The respondent was served both at its Portland, Oregon, plant and at its central offices
in Cleveland, Ohio.
12 N. L R. B., No. 73.
169134-39-vol. 12-41 627
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following an order issued by the Regional Director on March 16,
1938, extending the date for answer, the respondent filed its answer
to the complaint on April 4, 1938. In its answer, the respondent
denied the alleged unfair labor practices and stated affirmatively
that it had discharged Hoski because he was a temporary and in-
efficient employee.
On -April 13, 1938, Robert M. Gates, Acting Regional Director,
issued an order postponing the hearing, notice of which was duly
served upon all the parties. Pursuant to notice, a hearing was held
in Portland, Oregon, on April 16, 1938, before Thomas H. Kennedy,
the Trial Examiner duly designated by the Board. The Board and
the respondent were represented by counsel and 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 the parties.
During the hearing the Trial Examiner made various rulings on
motions and on objections to the admission of evidence. The Board
has reviewed these rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
At the close of the Board's case, and again at the end of the hearing,
the respondent moved to dismiss the complaint. The Trial Examiner
reserved rulings on these motions at the hearing, but subsequently,
in his Intermediate Report, denied them.
On June 29, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent and
the Union, in which he found that the respondent had engaged in
unfair labor practices affecting commerce as alleged in the complaint.
On July 22, 1938, the respondent filed exceptions to the Intermediate
Report. At the same time it filed a brief, which the Board has
considered, and requested oral argument before the Board. On July
26, 1938, the respondent waived oral argument and filed a supple-
mental brief, which the Board has also considered. As indicated by
the findings, conclusions of law, and order set forth below, the Board
sustains the exceptions to the finding of the Trial Examiner that the
respondent engaged in unfair labor practices.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation with its principal place
of business and office in Cleveland, Ohio. It is engaged in the
manufacture and sale of paints, lacquers, varnishes, and enamels.
GLIDDEN COMPANY 629
It maintains 14 plants throughout the country. The respondent's
total annual business amounts in value to between $40,000,000 and
$50,000,000.
Only the Portland, Oregon, branch is here involved. This branch
consists of a warehouse and office where two or three workers and
two or three salesmen are employed. The Portland branch is con-
nected with and under the jurisdiction of the respondent's San
Francisco, California, plant. The San Francisco plant ships pack-
aged cans to the Portland warehouse, where the packages are broken,
and the cans are labeled and shipped out. Products valued at
approximately $180,000, are sent annually to the Portland branch
from San Francisco. Of this total of incoming material, $120,000 in
value is annually shipped from Portland, Oregan, to points in the
State of Washington and the panhandle of Idaho.
Durkee's Fine Foods, a subsidiary of the respondent, occupies space
in the Portland plant.
II. THE ORGANIZATION INVOLVED
International Longshoremen & Warehousemen's Local 1-28 is a
labor organization affiliated with the Committee for Industrial
Organization. It admits to membership employees of the respondent.
M. THE ALLEGED UNFAIR LABOR PRACTICES
Joseph Hoski was first employed as a warehouseman by the re-
spondent on March 8, 1937. He was hired by Henry Haskell, then
manager of the warehouse. Two weeks after he was hired, Hoski
received a raise in pay, and in May, his wages were again increased.
In May, one Donaldson was hired by the respondent as a second
warehouseman. Hoski and Donaldson, together with Haskell and
A. G. Carlston, the respondent's district sales manager, comprised
the entire staff at the Portland plant.
On July 27, 1937, Bert Shelton, business manager of the Union.
persuaded both Hoski and Donaldson to become members of the
Union. Shortly thereafter, Shelton called on Carlston for the pur-
pose of negotiating an agreement covering the two employees. At
this time, the Union was also negotiating an agreement, later
executed, with Durkee's Fine Foods, and Shelton suggested that
Carlston "include these two warehousemen in the contract so we
wouldn't need to have two contracts for practically the same group."
Carlston approved the suggestion and told Shelton that he would
place the matter before the respondent's San Francisco office.
On July 31, 1937, T. H. Zappert, the head of the San Francisco
plant, wrote. Carlston, ". . . we do not want to come to a written
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with the union but we naturally will observe union wages,
hours, and working conditions. If you cannot handle this matter
quite simply as a verbal agreement with the Union ... then arrange
with Mr. Wymetalik (the manager of Durkee's) for him simply to
hire these men, put them on the payroll, then interhouse you for
their wages ... Mr. Wymetalik already has a written agreement with
the Union ..."
About 10 days later, Shelton again conferred with Carlston.
Carlston expressed concern over the possibilities of a jurisdictional
dispute between the Union and the American Federation of Labor
and of a boycott by the latter. Carlston asked whether it would not
be possible for Donaldson and Hoski to join both the A. F. of L. and
the Union, stating that he would be willing to pay their A. F. of L.
dues. Shelton rejected the suggestion. Carlston made inquiries of
the A. F. of L., and, on learning that the A. F. of L. conceded juris-
diction to the Union, did not renew the suggestion.
Meanwhile, as a result of a dispute between Haskell and Carlston
concerning which of them had final authority at the Portland plant,
Haskell was called back to San Francisco on August 12, 1937, and
did not thereafter return to the respondent's employ. Donaldson,
who had been placed on a monthly salary 2 a few weeks after he had
been hired, and whom Carlston had for some time been grooming to
replace Haskell, was made "manager" on August 23, 1937. Donald-
son who believed he was no longer eligible for membership in the
Union requested Shelton to return his initiation fee. Shelton, how-
ever, concluded that Donaldson was actually only a shipping clerk.
Donaldson told Shelton he would consider remaining a member of
the Union, but he paid no dues thereafter. The record does not show
that any further steps were taken by the Union to reach an agree-
ment concerning the respondent's employees.
On September 23, 1937, Donaldson gave Hoski his check and told
him he was discharged, but stated that he did not know the reason.
Hoski then went to Carlston, who told Hoski that the overhead at
the Portland plant was too great, and that "he believed that I
couldn't hold a job after being employed for a number of months."
As stated above, the respondent assigns as its reason for discharg-
ing Hoski the fact that he had been hired only as a temporary
employee and that he had proved himself inefficient. Pointing out
that Hoski had received several raises, however, counsel for the
Board at the close of the hearing argued that Hoski's temporary
status and his alleged inefficiency had been seized upon belatedly by
the respondent as a pretext and that the real reason for the discharge
was the respondent's desire to rid itself of the Union.
2 Hoski's salary was on an hourly basis.
GLIDDEN COMPANY 631
We find, however, that the record does not support this contention.
Oral testimony was adduced showing that Hoski was employed on
a temporary basis and that he was not considered a satisfactory
employee. Hoski himself admitted he had been hired as a temporary
employee. It was shown that the respondent's custom is to pay
permanent employees from San Francisco, but that Hoski was paid
from Portland and that Hoski "loafed" and had misdirected some
shipments which had cost the respondent $175 in claims. The re-
spondent also introduced convincing explanations for the raises which
Hoski had obtained. Hoski's first raise of 5 cents an hour, obtained
2 weeks after he was hired, was granted by Haskell while Carlston
was away, and without Carlston's knowledge.3 The second raise of
10 cents an hour, granted on May 12, was again given by Haskell
after receiving instructions from Zappert to "pay a sufficient wage."
Donaldson received a higher raise at the same time. The third raise,
occurring in August, was granted by Carlston after a conference
with Shelton, who told Carlston that the respondent's wages were
lower than at competitors' plants. On being informed of this, Carl-
ston telephoned other plants, discovered Shelton's statement was
correct, and accordingly raised both Donaldson and Hoski's wages.
Further, the respondent introduced evidence to explain why' despite
its finding of fault with Hoski, it nevertheless retained him for so
long a period. Carlston testified, and we believe, that he expected to
release Hoski almost from the beginning of Hoski's employment with
the respondent. Several events occurred however, which delayed
Hoski's discharges. First, Haskell objected and insisted that Hoski
be permitted to remain. Then a strike occurred in San Francisco,
which resulted in the respondent's rerouting many of its materials
through the Portland warehouse. At about the same time, the
acquisition by the respondent of a new agent, the Time Tested Paint
Store, temporarily required extra work and attention. In August,
when Haskell left, an added burden was placed on the respondent's
small staff. On September 2, 1937, one Nelson was hired to be trained
as Donaldson's permanent assistant . After this period of training
was concluded, Hoski was discharged.
Finally, the respondent's oral testimony is supported by docu-
mentary evidence which negates any inference that the respondent
seized on Hoski's temporary status and his inefficiency as pretexts to
cloak an anti-union bias. On March 6, 1937, Hoski was hired. On
March 15, Zappert wrote Carlston : "I ... understand that a tem-
porary man has been hired to assist in straightening out the
s Hoski was hired by Haskell , a friend of Hoski's brother. It is apparent that Hoski
was Haskell 's protege and that at least some of the difficulty between Carlston and Haskell
was over the continued employment of Hoski.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stock.... As soon as the temporary man's work is done, let him go.
Meanwhile, look around for an adequate man to assist Haskell."
On March 19, Carlston replied to Zappert, "We will hire another
good warehouse man as Henry's (Haskell's) helper to be on
steady ... The extra man we now have don't seem to fill the bill."
On March 24, as stated above, Hoski received his first wage raise
from Haskell. On May 15, Hoski and Donaldson's wages were in-
creased and on June 5, Carlston reported these increases to Zappert.
On June 7, Zappert wrote Carlston : "You state that Hoski is on at
500 per hour. When was he rehired. I understood . . . that you
had let him go. Is he being rehired temporarily or what is his
status." On June 10, Carlston replied to Zappert explaining that
Hoski had been retained on the "extra list" because of increased work.
On June 17, Zappert wrote Carlston : "I note that Hoski has been
retained owing to the increased work you had in connection with the
strike . . . I presume as this extra work slacks off and ceases to exist
you will take Hoski off the pay-roll...." On July 8, Zappert again
wrote Carlston noting that Hoski was still on the pay roll and stat-
ing, "I can't understand why this is and I wish you would please let
him go immediately." Hoski and Donaldson joined the Union on
July 27. On July 29, Zappert wrote to Carlston again urging the
latter to reduce the force to two men. On July 31, Zappert, after
conferring with Haskell, wrote that he had told Haskell "we should
get along without Hoski as soon as he (Haskell) got back from his
vacation." It was in this letter that Zappert suggested that Carlston
deal with the Union by including Hoski and Donaldson under
Durkee's contract. Again on August 2, Zappert observed that two
extra men had been temporarily hired, and wrote : "In view of the
fact that I have been writing you that Hoski was one too many, it
seems strange that two additional people should have to be taken
on . . ." After a request by Zappert for a full report on the abilities
of the employees at the warehouse, Carlston wrote : "Hoski is not the
type of man I want-Too slow-He was broke in wrong-He actually
loafs around the warehouse." At the same time, Carlston praised
Donaldson highly. On August 12, as stated above, Haskell left. On
August 23, Donaldson was promoted to the position left vacant by
Haskell. At the same time, Carlston wrote Zappert, "I am confident
he (Donaldson) will do a good job with two men-Donaldson and
one other." On September 2, one Nelson was hired with a view
toward training him as Donaldson's only assistant. As stated above,
on September 23, 1937, Hoski was discharged.
The chronology of events and this correspondence convinces us that
Hoski's status as a temporary employee and his inefficiency were not
afterthoughts seized upon by the respondent as a pretext for Hoski's
GLIDDEN COMPANY 633
discharge. It is evident that the respondent was having difficulty
with the management of the Portland branch, partly because of a
dispute between Carlston and Haskell and partly because of Carl-
ston's frequent absences on sales trips which resulted in his delaying
the carrying out of Zappert's orders. The internal situation at the
warehouse, coupled with the increased business from various sources
during the summer of 1937, resulted in the prolonged retention of
Hoski in the respondent's employ.
Except for one instance, the record is devoid of any evidence which
might show an attempt by the respondent to dissuade its employees
from membership or activities in the Union. Inasmuch as this one
alleged anti-union statement was attributed by Hoski to Haskell,
who had left the respondent's employ 6 weeks before Hoski's dis-
charge, and inasmuch as there is no other evidence tending to show
any hostility on the part of the respondent toward the Union, we
find that, in view of the evidence concerning Hoski described above,
the record does not support the allegations of the complaint that
Hoski was discharged for union membership or activity or that the
respondent has interfered with, restrained, or coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
We will, therefore, dismiss the complaint.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The operations of the respondent, Glidden Company, a corpo-
ration, Portland, Oregon, occur in commerce, within the meaning of
Section 2 (6) of the Act.
2. International Longshoremen & Warehousemen's Local 1-28,
affiliated with the Committee for Industrial Organization, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (1) and (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
complaint against Glidden Company, a corporation, Portland,
Oregon, be, and it hereby is, dismissed.