Grimes Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 28, 1961

131 N.L.R.B. 1335 (N.L.R.B. 1961)

GRIMES MANUFACTURING COMPANY 1335
If a majority of the employees in the voting group cast their ballot
for the Petitioner, they will be taken to have indicated that they de-
sire to constitute a separate unit , and the Regional Director is in-
structed to issue a certification of representatives to the International
Brotherhood of Electrical Workers, AFL-CIO, for such unit, which
the Board , under the circumstances , finds appropriate for the pur-
poses of collective bargaining . If a majority of the employees in the
above voting group cast their ballots for the Intervenor , they will
be taken to have indicated their desire to be included in the existing
unit, in which event the regional Director will certify the results of
the election.
[Text of Direction of Election omitted from publication.]
Grimes Manufacturing Company and International Union,
United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO. Case No. 8-CA-25317. June
28, 1961
DECISION AND ORDER
On March 23, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Intermediate Report, together with sup-
porting briefs. The Respondent filed a brief in support of the Inter-
mediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served, a complaint and notice of hearing thereon
having been issued and served by the General Counsel of the National Labor Rela-
tions Board, and an answer having been filed by the above-named Respondent, a
hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1)
and (3 ) of the National Labor Relations Act, as amended , was held in Urbana, Ohio,
on January 24 and 25 , 1961 , before the duly designated Trial Examiner.
131 NLRB No. 168.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing all parties were represented by counsel, and were afforded full op-
portunity to present evidence pertinent to the issues, to argue orally, and to file briefs.
Oral argument was waived. Briefs have been received from the Respondent and
General Counsel.
After the hearing separate motions from both the Respondent and General Coun-
sel were received, proposing certain typographical corrections in the transcript. No
objections having been received, the motions are hereby granted, are made a part
of the record, and it is ordered that the transcript be corrected in accordance there-
with
Upon the record thus made and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Grimes Manufacturing Company is an Ohio corporation, with offices and places
of business in Urbana, Ohio, where it is engaged in the manufacture and sale of
aircraft lighting equipment. It annually ships finished products valued at more than
$1,000,000 from its Urbana plant to points outside the State of Ohio.
The Respondent concedes, and it is found, that it is engaged in commerce within
the meaning of the Act.
II. THE CHARGING UNION
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The issues raised by the complaint stem from organizational efforts begun by a
number of the Respondent's employees in the latter part of February 1960, and
from concurrent layoffs. The chief issue is that of the layoffs. General Counsel
contends that 19 1 of a total of nearly 70 employees laid off between February 1 and
April 16 were unlawfully "terminated" to discourage union membership and activity.
The Respondent denies this claim and urges that all were laid off as necessary re-
ductions in force because of business conditions.
Bearing directly upon General Counsel's theory as to the motive for the 19 layoffs,
as well as being urged as a separate violation of Section 8 (a)( I) of the Act is his
allegation that "the services" of employee Homer Zerkle were "utilized" by the Re-
spondent unlawfully "for the purposes of surveillance of union activities, and to
report ... the names of union sympathizers and adherents." The complaint also
alleges other acts of interference, restraint, and coercion.
B. The 19 layoffs
1. Homer Zerkle
From review of the record the Trial Examiner must state his belief that no
sound foundation of fact was established at the hearing to support the allegation of
unlawful layoff of any one of the 19 employees named. Company records show
that group layoffs had been occurring for some months before any union activity
and continued to occur for many weeks after the layoffs in issue. General Counsel
does not seriously question management's testimony that decline in business required
i These 19 are, with the respective date of layoff :
Richard Black_______________ Feb. 26 Howard Brammer----------- Mar. 4
Richard Brecount------------ Feb. 26 Larry Zimmer_______________ Mar. 4
Robert Evilsizor_____________ Feb. 26 Jerry Toomire_______________ Mar. 5
Paul Jordan_________________ Feb 26 William J. Music ------------ Mar. 11
Carl Osman_________________ Feb. 26 Marvin Baker_______________ Mar 25
Homer Payne________________ Feb. 26 Nita Shy___________________ Apr. 1
Albert J. Smith______________ Feb. 26 Glenna Klotts_______________ Apr. 8
Richard White_______________ Feb. 26 Imogene Freysinger---------- Apr. 14
Thomas Grubb_______________ Feb. 26
William Miller_______________ Feb. 26
Earl Randall________________ Feb. 5
GRIMES MANUFACTURING COMPANY 1337
continuing layoffs. It appears that each of the 19 was told that his or her layoff was
because of "lack of work."
In the opinion of the Trial Examiner the only route by which a conclusion of
unlawful layoffs of these 19 individuals may be reached is one of inference. That is
to say, it must be inferred-since there is no direct evidence-that Zerkle knew
and reported to management the identity of these employees as union adherents and
that management thereafter acted discriminatorily in selecting them for layoff. An
avenue thus paved with inferences is not recommended by the courts for mental
travel.
Both management and Zerkle flatly denied engaging in the alleged collusion or
conspiracy. The only evidence that connivance may have existed comes from a
former employee, Althea Mclnturff. She and Zerkle are the central characters in
what General Counsel aptly terms in his brief a "drama of intrigue and mystery."
In substance it is her claim that after the initial layoffs of February 26, when he,
himself, was laid off, he boasted to her that he was working in cahoots with manage-
ment in ridding the plant of union instigators and sympathizers.
If McInturff's testimony is to be believed in its entirety, then a reasonable inference
might well follow, for she claimed that after Zerkle had told her of his activity she
asked Howard Owen, assistant production manager, if there was truth in Zerkle's tale,
and he confirmed the fact.
If resolution of the conflict of testimony between Zerkle and Mclnturff were to
be based only upon the Trial Examiner's observation of demeanor on the witness
stand, then the nod of credence would go to the latter. She testified with restrained
self-assurance that invited belief. Zerkle, on the contrary, appeared uncertain of
his own substance and stature, spoke weakly and, as the record shows, repeatedly
thumped the table by the witness chair as if requiring sensory contact with solid
reality.
The Trial Examiner may not, however, properly ignore the undisputed testimony
of a company nurse to the effect that in December 1960, not long before the hearing,
Mclnturff told her that she had "worked for a crummy outfit" and "intended to make
this company pay." This fact absent some explanation from McInturff, clearly makes
unstable a finding that McInturff's testimony came from a disinterested witness, no
matter how calm her demeanor on the stand.
It seems unnecessary to detail here the entire story which Mclnturff claimed as
having been related to her during several visits by Zerkle. Its substance is that
even before the layoffs beginning on February 26 he had been informing manage-
ment officials and that he was still drawing wages from the Company. The Trial
Examiner fully believes that Zerkle did in fact make such boasts to her. His charac-
ter, as displayed on the witness stand, might well require a table to thump upon and
names to drop as well as a "drama of intrigue" for self-bolstering.
It does not automatically follow, in the opinion of the Trial Examiner, that what
he told Mclnturff was the truth.
As noted above, Mclnturff testified that she sought and received confirmation of
Zerkle's story from a company official, Howard Owen. Owen denied her claim,
and the Trial Examiner credits his denial. Owen gave the impression of possessing
the normal quota of commonsense and it is difficult to believe that he would naively
admit, to a former employee already in dispute with the Company regarding an in-
dustrial injury claim, that his superiors were parties to a conspiracy violative of
the law.
In short, the Trial Examiner concludes and finds that there is insufficient credible
evidence in the record to support a finding of fact that the alleged unlawful collusion
between management and Zerkle existed. There is therefore no fact from which it
may be inferred that the 19 layoffs resulted from information obtained by the Com-
pany from Zerkle.
2. The layoffs
The 19 individuals claimed by General Counsel to have been laid off discrim-
inatorily to discourage union membership are listed , together with the date of layoff,
in footnote 1, above.
It is noted that the presence of the name "Earl Randall" in this list seems unex-
plained . It is both alleged and established by company records that this individual,
who was not a witness , was laid off on February 5, long before any organizational
activity was begun at the plant.
As to the remaining 18 employees there is evidence that each of them, before
layoff, had signed a slip or a list indicating desire to be represented by the Charging
Union . There is no credible evidence , however, to establish that management was
aware that any of them had signed anything.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is evidence that 5 of 10 employees laid off on February 26 actively par-
ticipated in obtaining names to slips or a list : Smith , Jordan , Miller , Black, and
White. Only as to one of the five (White ) is there evidence from which it might
be surmised that any management representative knew of his activity . According
to White, he was warned before his layoff by his foreman , Don Martin , that he
had better keep his "mouth shut about the Union " for his "own good ." Not only
did Martin deny making any statement about the Union after January 1, 1960, but
White fixed the date of the occurrence as either February 21 or 22. Other evidence
establishes that actual organizational efforts, in getting names, did not begin until
after a visit had been made to union headquarters in Springfield , Ohio , and that this
visit was made on February 22. This lack of certainty in the record will not firmly
support a finding , in the opinion of the Trial Examiner , that Martin in fact uttered
this warning to White.
As to employee Brammer the Trial Examiner finds, on the basis of his credible
testimony , that on February 26, the date of the first 10 layoffs and a week before
his own on March 4 , he was told by his foreman , Young, that if he wanted to hold
his job he had better have nothing to do with the Union . While this warning was
clearly coercive , it does not establish that management was aware he had signed
a slip . Indeed according to his own testimony , when Young asked him if he had
anything to do with the Union he replied "No."
It is the Respondent 's contention , as heretofore noted , that all 19 layoffs here
involved as well as many more were necessitated by business reasons. There is no
evidence in the record upon which it may be found that a recession in business de-
mands did not exist at the material time.
Nor is there sufficient credible evidence to support a finding that the selection of
these 19 individuals was unlawfully discriminatory-that is, that even if layoffs were
economically necessary management should have selected others instead of these 19.
A quick check of company records, in evidence and unchallenged by General
Counsel , shows that from the latter part of November 1959 , through July 1960, there
were group layoffs almost weekly , totaling about 250 employees.
In short , the Trial Examiner concludes and finds that the preponderance of evi-
dence does not support the allegations of the complaint as to the layoffs.
As to incidents of interference , in addition to that involving employee Brammer
and Foreman Martin noted above the record contains evidence only as to one of
any consequence. An employee still working at the plant at the time of the hearing,
Thatcher , testified somewhat vaguely that about February 26, 1960 , the same fore-
man asked him if he had anything to do with the Union , and told him if he was
smart he would have nothing to do with it.
To the Trial Examiner these two incidents , even if the latter occurred , in a plant
of some 800 or 900 employees are so isolated as to warrant no conclusion of an
unfair labor practice.
[Recommendations omitted from publication.]
Brunswick Corporation and Richard H. Lemay and Frederick
J. Knapik
Local 107, United Brotherhood of Carpenters and Joiners of
America , AFL-CIO [Brunswick Corporation ] and Richard H.
Lemay and Frederick J. Knapik. Cases Nos. 1-CA-3112(1-2)
and 1-GB-628(1-2). June 28, 1961
DECISION AND ORDER
On August 2, 1960, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had not engaged in any unfair labor practice
alleged in the complaint and recommending that the complaint be
131 NLRB No. 167.