Howard Foundry Co.

National Labor Relations Board - Board Decisions

Nov 6, 1944

59 N.L.R.B. 60 (N.L.R.B. 1944)

In the Matter of HOWARD FOUNDRY COMPANY ( MAGNESIUM DIVISION
and GEORGIA. ORR (AN INDIVIDUAL)
Case No. 13-C-2396.-Decided November 6, 1944
DECISION
AND
ORDER
On June 29, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and Was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a brief. No request for oral
argument before the Board was made, and none was held.
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 filed by the respondent,
and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations made by the Trial Examiner,
except as stated below.'
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
' Reference is made in the Intermediate Report to an individual by the name of Nick
Mizolek. It appears from the record that the correct name of this individual is Nick
Niziolek
The Trial Examiner credits Orr ' s testimony as to the events following the mold incident
which culminated in Orr ' s discharge . While we agree that Orr's testimony as to these
events is credible and that of Cieslak and Miner , untrustworthy , we note certain minor
discrepancies between the statements contained in the Intermediate Report and the testi-
mony in the record with respect thereto . According to the Intermidate Report, Cieslak
testified that he signed Orr's termination slip ; however , the record shows that Cieslak, at
first, could not remember whether he signed such a slip, but that subsequently he denied
doing so. Again, contrary to the Intermediate Report , the record does not indicate that
Miner gave contradictory testimony concerning his whereabouts at the time of the mold
incident. That Miner ' s testimony was largely unreliable , however , as the Trial Examiner
found , is evident from Miner ' s inconsistent statements with respect to the identity of the
person or persons responsible for Orr 's discharge
59 N. L. R. B., No. 19.
60
HOWARD FOUNDRY COMPANY 61
Board hereby orders that the respondent, Howard Foundry Com-
pany (Magnesium Division), Chicago, Illinois, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Molders and Foun-
dry Workers Union of North America, A. F. of L., or in any other
labor organization of its employees, by discharging any employee,
or in any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment;
(b) 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 International Molders and
Foundry Workers Union of North America, A. F. of L., or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole George Orr for any loss of pay he may have suf-
ferred by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages during the period from the
date of the respondent's discrimination against him to the date when
lie first obtained regular employment; less his net earnings during said
period;
(b) Post immediately in conspicuous places throughout the Mag-
nesium plant which it operates in Chicago, Illinois, and maintain
for a period of at least sixty (60) consecutive days from the date of
posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is ordered to cease and
desist in paragraphs 1 (a) and (b) of this Order; (2) that the
respondent will take the affirmative action set forth in paragraph
2 (a) of this Order; and (3) that the respondent's employees are
free to remain or become members of International Molders and
Foundry Workers Union of North America,. A. F. of L., or any
other labor organization, and that the respondent will not discrim-
inate against any union committeeman, steward, or other represent-
ative of its employees by reason of the proper performance of his
functions as such representative;
(c) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAIRMAN HARRY A. MILLIS, concurring : -
This case presents a pointed illustration of the need for special
care and forbearance in administration of collective bargaining rela-
tionships, especially in initial years when inexperience, awkwardness,
and presumption are most evident. The idea, all too prevalent among
some employers, that the obligation imposed by the Act to bargain
collectively with majority representatives of their employees ceases
upon the execution of an' agreement, and by the same token over-
zealousness on the part of union business agents and new committee-
men, are both responsible for much industrial unrest and instability.
Square dealing and considerateness assume in these days ever increas-
ing significance. Let resentment and resistance, especially on the
part, of first line supervision, commonly the first level of grievance
adjustment, obstruct the peaceful machinery set up by agreement and
the whole purpose of collective bargaining is likely to fail. The
attitude of Chini, as disclosed by this record, made impossible the
achievement of mutual respect and cooperation between employee and
management and resulted in a necessity for recourse to this Board.
It is not and must not be a usual function of this,Board to enforce
or administer collective bargaining agreements. That would be very
bad policy. Yet, maladministration of agreements now and then, but
always unfortunately, forces the Board to intervene in order to cor-
rect situations which impinge upon the law. Such is the case
before us.
With this assertion of policy and these observations, I am in
complete agreement with the Board finding that the discharge of
Orr was discriminatory.
INTERMEDIATE REPORT
For the Board : Gustaf B Erickson, Esquire, Chicago, Illinois
For the Respondent : Laurence C. Mills, Esquire, of Dempsey, Mills, Casey
and Bostleman, 29 South La Salle Street, Chicago, Ill.
For George Orr : George Orr, 6827 South Rockwell Street, Chicago, Illinois.
STATEMENT OF THE CASE
On a charge duly filed on May 9, 1944 by George Orr, an individual ; herein
referred to as Orr, the National Labor Relations Board, herein called the Board,
' On April 9 , 1943 , International Molders and Foundry Workers ' Union of North America,
A. F of L filed a charge based on all the facts here involved ; on October 12, 1943, this
was amended to include a charge of discrimination against one George McCleary as well
as Orr ; on April 29 , 1944 , a second' amended charge was filed, dropping the charge of dis-
crimination with reference to McCleary ; on April 29, 1944, a complaint was issued by the
Regional Director for the Thirteenth Region and the case was duly noticed for hearing
on May 11 , 1944. On May 9, 1944, the Union withdrew the charge and, being notified of
such withdrawal , Orr, on the same day , filed the instant charge, as an individual Orr
dropped his union membership within a month after his discharge from the employment
of Respondent on March 31 , 1943, and has never renewed it Since that time he has not
worked as a molder.
HOWARD FOUNDRY COMPANY 63
on May 11, 1944, by the Regional Director for the Thirteenth Region (Chicago,
Illinois), issued its complaint against Howard Foundry Company (Magnesium
Division), an Illinois corporation with its principal office and place of business
in Chicago, Illinois, herein called Respondent, alleging that Respondent has
engaged in and is engaging in unfair labor practices 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
together with copies of the charge and a notice of hearing thereon, were duly
served on Respondent and Orr on May 11, 1944.
Concerning unfair labor practices, the complaint alleges that on or about
March 31, 1943, Respondent discharged George Orr from his employment with
Respondent and has thereafter refused to reinstate him because he engaged
in concerted activities for the purposes of collective bargaining, by which
action it discouraged and is discouraging concerted activity for the purposes
of collective bargaining, and that thereby Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (3) of the
Act ; that further, Respondent, by its officers, agents and supervisory employees,
while engaged in the operation of the magnesium plant, from on or about
January 19, 1943 to date, made statements disparaging and expressing dis-
approval of International Molders and Foundry Workers Union of North
.. merica, A. F. of L., herein called the Union, of which Orr was a member
in good standing, and discharged and threatened to discharge employees because
of their concerted activities for the purpose of collective bargaining or other
mutual aid or protection, thereby engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act.
On May 19, 1944, Respondent filed its answer with the Regional Director
for the Thirteenth Region, admitting the allegations of the complaint pertaining
to its corporate existence and the nature and extent of its business, and the
existence of the Union as a labor organization, but denying all allegations
pertaining to unfair labor practices.
On May 22 and 23, 1944, a hearing on the complaint was held at Chicago,
Illinois and at Cicero, Illinois, before the undersigned, R. N. Denham, a Trial
Examiner duly designated by the Chief Trial Examiner. The Board and
Respondent appeared and were represented by counsel. Orr appeared as his
own counsel. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to present evidence pertinent to the
issues.
At the opening of the hearing, Respondent moved to have the complaint made
more definite and certain as to substantially all allegations pertaining to the
alleged unfair labor practices. The motion was granted as to the allegations
concerning unfair labor practices within the meaning of Section 8 (1) of the
Act and was denied in all other respects. Counsel for the Board stated on the
record that the Board relied on certain described acts and statements of
named supervisory employees for its proof of the unfair labor practices
referred to. This statement was in lieu of an amendment to the complaint
and was accepted by all parties as such. No request for adjournment was
made following the above recital by Board's counsel although counsel for
Respondent reserved the right to request a further hearing in the event he
should find himself prejudiced by an inadequate opportunity to meet the
allegations. No such request has been made. At the conclusion of testimony
for the Board, Respondent moved the dismissal of the complaint for lack of
proof. The motion was denied. At the conclusion of all testimony, the motion
of counsel for the Board to conform the pleadings to the proof was granted
without objection and made applicable to all pleadings solely for the purpose
618683-45-vol. 59-6
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of correcting recitals of dates, spelling of naives and conforming, minor matters
not affecting the issues raised by the pleadings. An informal discussion of
nthe. issues) andr.,applicable evidence was. held on the record at conclusion of
the hearing. Briefs to the Trial Examiner were waived by,all parties.
On the foregoing, and on all the record, having heard and observed the
witnesses and considered all the evidence offered and received, the undersigned
makes the following: ,
FINDINGS OF FACr
I i)-11: BUSINESS OF BESPONDEN1
Respondent is an Illinois corporation wi ith its principal office at 4918 Bloom-
ingdale Road,\Chicago, Illinois It operates three manufacturing plants, viz
a magnesium plant and an aluminum plant, both in Chicago, Illinois and a
bronze plant at Aurora, Illinois, where it is engaged in the manufacture, sale
and distribution of brass, bronze, aluminum and magnesium castings for air-
plane parts, tanks, machine guns, heavy artillery and ships, all of which are
devoted solely to the war effort. Only the magnesium plant is herein involved.
Respondent concedes that it is engaged in commerce within the meaning of the
Act and that the Board has jurisdiction in this matter 2
II THE ORGANIZATION INVOLVED '
International Molders and Foundry Workers Union of North` America, A. F.
of L. is a labor organization admitting employees of Respondent to membership.
III THE UNFAIR LABOR PRACTICES
A Intel-feienae, iestialiat and coelcloii
Although Respondent has operated for a number of years as a foundry- cour
pany in the Chicago area, it has never before handled magnesium Its mag-
nesium plant, with which this controversy is concerned, is a new project, having
been built by the Defense Plant Corporation in 1942. At the,tinie the acts com-
plained of took place, the plant was still in an unfinished condition although
production operations had already started.
For several years, Respondent has operated under a closed shop contract with
International Molders and Foundry Workers Union of North America, affiliated
with the A F. of L, which contains the general provisions of that Union's
standard contract and has been applied to the magnesium plant operations
This contract prohibits the hiring of journeyman molders who are not in good
standing with the Union, but permits non-union laborers and helpers to be
hired, provided they join the Union within 30 days ; however, when the Union
is unable to furnish journeymen, the employer is also permitted to hire non-
union men, provided they, too, join the Union within 30 days, in the same
manner as non-union laborers and helpers. During all the times here in-
volved, the latter condition prevailed, and in order to maintain the closed-shop
conditions and to insure that new employees made timely applications for Union
membership, arrangements were made between the Union and Respondent to
2 Respondent stipulated that it moves substantial quantities of magnesium , aluminum
and brass in interstate commerce to its plants in Illinois as raw material , valued at more
than $1,000, 000 per annum ; and similarly moves substantial quantities of finished castings,
in interstate commerce from its plants in Illinois , valued at more than $1,700 ,000 per
annum.
HOWARD FOUNDRY COMPANY 65
have each new employee introduced to the committeeman of the Union in the
department where such new employee was to work . The failure of the Director
of Personnel and the Superintendent to observe this in the rapidly expanding
organization , was one of the circumstances that contributed to the - situation
here under consideration.
Within the plant, each department elected its own committeeman to serve
on the shop committee , while one employee was elected to act as shop chair-
man. His functions may be generally likened to those of a chief steward,
through whom all grievances and other matters pertaining to relations between
the employees and management were cleared in the first instance, usually from
the committee men, whose ditties are comparable to those of department
stewards. Obviously many grievances were adjusted on the spot by the coin-
mitteemen, and many more by the shop chairman , without going beyond the
foremen immediately involved . The shop chairman had no general authority
to represent the union beyond the presentation of more or less routine griev-
ances and the settlement of such grievances on the spot , insofar as he could
do so without appealing to the business representative . Orr, however, who was
shop chairman at the times here involved , appears to have taken a more active
part than other chairmen in the matter of general conditions, although, when-
ever situations arose which either were beyond his jurisdiction or which he
thought were beyond his capacity to handle, he, too , called on the business agent
of the union for authoritative advice and assistance.'
At the times that are pertinent herein , Joe Chini was Superintendent of
the Foundry ; the Director of Personnel Relations was one MacClay ; Daniel H.
Miner was foreman in charge of squeezer molders, and Stanley Cieslak was
molder foreman . MacClay and Chini., respectively left the employ of Re-
spondent in the early summer and fall of 1943 . Their whereabouts are not
now known and because of this, Respondent was unable to produce them to
testify in this proceeding.
By the fall of 1942, although the buildings were not completed and only a
part of the equipment had been installed , the foundry had started production
with a small portion of the employees it would , and did, ultimately require.
By the beginning of 1943, there were several hundred employees working, and
at present three or four times that number are on the pay roll.'
Those employees who served as shop committeemen and shop chairmen prior
to February and March 1943, appear to have enjoyed short tenures. Most
of them quit or were discharged for reasons that are not here in issue, and
one was promoted to be a foreman . Except in the case here involved, there
is no charge that any of the discharges of the committeemen or shop chairmen
were discriminatory in nature , nor were the causes of such discharges shown.
However, the testimony of Daniel Miner, squeezer molder foreman , who had
severed his connection with Respondent on the day before he testified, plays
a significant part in indicating the attitude of the superintending and manage-
3 On one occasion, Orr, as shop chairman, with the approval if Chini, made a survey of
the night shift to determine the cause of a persistent discontent on that shift, during which
he interviewed each employee, reported his findings and at the same time recommended the
release of two men whom he discovered were not performing their duties. On another
occasion, with the knowledge of management, Orr caused a petition to the State Board of
Health to be circulated, requesting an inspection of the gas conditions in the foundry. Such
an inspection was made but the results were not developed at the hearing.
d The exact amount of employment at the plant at the present time was not shown by the
testimony although it is obviously in excess of 1,000 persons.
66
0
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meat personnel toward those who, as committee members, actively represented
the Union and attempted to protect the rights of the employees in the shop.
Miner's testimony concerned his relations with Joseph J Schroeder, a molder,
and was confirmed by Schroeder. Schroeder began work at the respondent's
foundry on February 11, 1943, and was immediately placed in Miner's depart-
ment as a squeezer molder. Shortly after Schroeder had been employed, John
Murphy, the committeeman from his department, was discharged. It was at
about that time that Orr became shop chairman Orr had previously known
and worked with Schroeder in another plant and, to fill Murphy's place, sug-
gested to Schroeder that lie take over the representation of the employees in
the squeezer molding department, as their committeeman Schroeder apparently
was a capable worker who attracted Miner's attention soon after being em-
ployed At the time, one of the shifts in the squeezer molders department was
without a foreman and Miner thought he saw foreman kiualifie tions in
Schroeder. He cultivated him with the result that they soon became close
friends, both in the shop and outside, and spent much of their free time playing
golf. Miner had told Schroeder about the possibility of his being made a fore-
man, and both in the shop and outside, had many conversations with him on
the subject of Schroeder's union activities in previous employments where he
had served as steward and on various committees Miner warned him to stay
away from such activities in Respondent's shop When Schroeder was invited
by Orr to take the job of committeeman, lie told Miner of it Miner advised
against accepting the assignment, and, according to his own testimony, told
Schroeder that if he seriously wanted the foreman's position, he "would have
two strikes on him if he took the committee job, with the third strike coming
up", obviously implying and intending to imply that Schroeder could hardly
expect to receive consideration from management for, appointment as a foreman
if he became a committeeman. Miner testified that in these conversations, he
was not attempting to intimidate Schroeder, but was merely giving him some
friendly advice on a wholly personal basis While the employer may, in certain
circumstances, be excused from responsibility for expressions of purely personal
opinion by a foreman, this was not such an opinion but was intended to advise
Schroeder as to management's attitude It is found that by these conversations,
Respondent did, through Miner, interfere with, restrain and coerce Schroeder
in the exercise of the rights guaranteed in Section 7 of the Act
There is no substantial evidence that' the management of Respondent ob-
jected to the presence of the Union, as such, within the plant, or to any of
the employees being members of the Union. The existence of the closed'sliop
contract which had been renewed several times, torecloses this. Its objec-
tion appears to have gone deeper„and took the form of resentment toward ag-
gressive assertion by the union representatives in the shop, of the rights of
the employees under the contract. Chini, from the description of him, is a hot
tempered and impetuous superintendent who was jealous of his authority, con-
stantly pushing for more find more production, impatient with the union con-
tract and inclined to regard Orr as an interloper who was encroaching on his
prerogatives. He treated the presentation of grievances or complaints over
working conditions and other matters as an invasion of his right to "run the
shop". Much of the conduct on which this complaint is based came from Chini.
It was generally conceded that profanity is a', recognized part of the foundry
vernacular and is broadly used by both the workers and their supervisors.
Numerous of the witnesses were called upon to quote Chini and others, in de-
scribing the acts complained of. In referring,to their testimony, the substance
HOWARD FOUNDRY COMPANY 67
rather than the language, is used, for the profanity, while lurid at times, adds
little, if anything, to the real meaning of the statements made. In consider-
ing the testimony, the fact that profanity may have been used has not, under
the circumstances, been given weight.
In the exercise of the grievance procedure, when he had to go beyond the
foreman directly interested, Orr, as shop chairman, usually presented griev-
ances in company with one or more other members of the committee. On such
occasions, the management was usually represented by Chini and MacClay,
and Orr generally Acted as spokesman for the employee group. Orr's presenta-
tions ordinarily made up in forcefulness and energy, what they lacked in diplom-
acy, and Chini's reaction usually was one of resentment which frequently wound
up with the statement that he, and he alone, was running the foundry. In
such meetings, when reference was made to the Union and the contract in
discussing special cases, such as sub-scale wages, or matters pertaining to the
operation of contract provisions, Chini's frequent comment was to the effect
that he didn't care about the Union or the contract, and that he was running
the shop. On another occasion, when there had been a discharge and a brief
work stoppage, both of which Orr and Joseph Holli succeeded in adjusting
with MacClay during Chini's absence, Chini called Orr and Holli to his office
and berated them for causing "a strike". They attempted to explain that
they had no part in the stoppage, but Chini, iii a burst of temper, pounded the
table, asked who they thought was running the plant, threatened to transfer
Orr to the Aurora plafit and Holli to the aluminum plant, and ordered there to
stop bringing grievances to him. On still another occasion, while talking
with Nick Mizolek, who had been elected a member of the committee, Chini
warned him, again in a burst' of rage, to watch what he had to say as a
committeeman or he would be discharged. Mizolek, in testifying to this, stated
that he didn't believe Chini really knew what he was saying ; that the out-
burst just "came out". MacClay on the other hand, appears to have had more
self control, but his statements, according to the testimony of Orr, were equally
discouraging. He attempted to evade the provisions of the contract and its
wage scale by telling Orr that government orders had superseded the con-
tract, and when Orr asked for the privilege of posting on the bulletin boards,
reports on the various meetings with management, MacClay denied the priv-
ilege with the statement that the other men of the plant did not need to know
what went on in the meetings. The foregoing general conduct of the two
representatives of management who were most intimately connected with the
shop personnel and personnel matters, together with. the fact that a number
of the committeemen and shop chairmen had been removed from the pay roll
after very short service in their official capacities, engendered a feeling among
at least a portion of the employees within the plant, that Respondent was
unwilling to do more than tolerate committeemen to the extent that they
were compelled to do so, and that active membership on the committee was
an invitation to a discharge for conduct which otherwise probably would be
overlooked. There is no testimony as to the manner in which the members of
the committee or other shop chairmen who preceded Orr, fulfilled their duties
on behalf of employees. The fact, however, that so many of them were dis-
charged or quit shortly after taking office could not but have had an effect;
it was not looked upon by the employees as a more coincidence, nor can it be,
in the light of Miner's advice to Schroeder and Chini's statement to Mizolek.
These facts, with the well known attitude of Chini, and the findings above set
out, lead to a finding that by the foregoing conduct of Chini, MacClay and Miner,
at the magnesium plant, Respondent did, in fact, restrain, coerce, and intimidate
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees in the - exercise of their rights as guaranteed in Section 7 of
the Act G
13. The discharge of George O1r
Prior to the construction of the magnesium plant here involved, Respondent
had had no experience with that material upon which to base the construction
of the new plant In a molten state, and while being cast, magnesium gives off
large quantities of noxious'and disagreeable gases In the original construc-
tion of the plant, the facilities for carrying off these gases admittedly were in-
adequate and created working conditions which not only were highly disagree-
able but which were believed by the employees to be a serious health menace.
On January 19, 1943, George Orr was hired and placed under the foreman-
ship of Miner, where he spent most of his time on experimental work. He is
an experienced molder and had been a member of the Union for a considerable
time, but immediately preceding his employment by Respondent, had worked
in a foundry where, because of a closed-shop contract, he had been compelled
to maintain membership in the appropriate CIO union. Shortly after he took
employment with Respondent, Orr began to complain to Miner about the gas
condition. He also freely expressed himself on the subject to the other em-
ployees. At that time, one Tom Kirby was shop chairman, and John Murphy
was committeeman from Orr's department. About two weeks after Orr's em-
ployment, Kirby and Murphy were discharged, and for purposes of temporary
shop representation, Orr, at Murphy's request, stepped into Murphy''-s place
As Murphy put it, lie expected to be out only two or three days, and asked 'Orr
to "hold things together" until he got back. In a meeting with MacClay con-
cerning the discharges of Kirby and Murphy, which Orr handled, MacClay
refused to return Kirby and Murphy to the magnesium plant but offered them
jobs at the Auroi a plant of Respondent Kirby rejected the offer, while Murphy
accepted He subsequently was returned to magnesium plant and is employed
there at the present time A day or two following this meeting, Orr was elected
shop chairman and from that time forward, pursued his official duties aggressively
and energetically.
The prompt and apparently effective attention he gave to all grievances com-
ing to him soon gained the confidence and support of most of the employees.
Grievances which formerly the men had not bothered to mention, were brought
to him, with the result that within a short time, Orr and his committeemen
were presenting six or eight such grievances to management each week. The
collective morale of the employees also became strengthened and the impulse
to protect their members and 'leaders from real or imagined mistreatment
reached a point where sporadic work stoppages became difficult to avoid.
As has been stated, in early 1943, the construction work at the new' plant
had not been completed. One wall had been left open to lead into a-projected
adjoining building. Machinery and equipment was still only temporarily placed
s It is noted that all the acts coniplamed of were committed by employees who no longer
are in the employ of the Respondent and who , except Miner , have not been so employed for
from 6 to 9 months Since the departure of Chini and MacClay , one Bunte has been
engaged as Industrial Relations Manager and Benjamin Wiseman has been Director of
Labor Relations since April 1943 According to Mizolek , it was impossible for the union
representatives to talk to Chini and MacClay . He felt , however , that with the advent of
Bunte and Wiseman , conditions have improved and the committee now has less difficulty
in getting along with Bunte and 'Wiseman although they do not always see eye to eye on
every question raised There is no complaint by the committeemen at the - present, time
concerning the attitude of either management or its representatives toward the exercise
by the committeemen and the shop chairman , of all their reasonable functions.
HOWARD FOUNDRY COMPANY 69
and to some degree, safety factors normally to be expected had not yet been
completely installed or established. During this period, Chini was driving for
more and more production, and Orr, as shop chairman, was demanding relief
from the admittedly bad gas accumulations and miscellaneous other objection-
able conditions. On the subject of production, Orr arrived at an agreement
with Chind that there was to be no yardstick of individual production based upon
some pace making record, but that every man would be "on his own" to pro-
duce , according to his best ability. The heavy turnover of labor was also a
factor considered by Orr, Holli and Chini. This resulted in setting up a com-
mittee composed of management and union representatives to pass on discharges;
but there is no evidence that such committee ever functioned. Meanwhile, Orr
continued to spend considerable time away from his work investigating griev-
ances and repeatedly harped on the poor ventilation. He also severely criticized
Chini's failure to follow the agreement to introduce new employees to their
respective committeemen so that they could be enrolled in the, Union. The
outcome of these activities by Orr, which no one disputes were in connection
with his duties as a shop chairman, was an order by Chini to Orr that he remain
at his bench and devote only a stated period of each day to grievance matters,
and the inauguration of a formal grievance procedure which required that all
grievances be in writing.
Orr apparently made himself unpopular with most of management by his de-
mands for correction in working conditions, especially the ventilation. Each
complaint on this subject was met with the statement that fans had been on
order for a long time but priorities interfered with delivery. Actually, however,
although the condition was one that had existed from the start of production
in 1942, fans were not ordered by Respondent until January 29, 1943. They
were received and installed early in April. Subsequently two more were ordered
and installed, and at the time of the hearing there was a requisition pending.for
an additional $100,000.00 worth of ventilating equipment. Respondent's main
criticism of Orr, as reflected by its conduct throughout the hearing, was that
Orr was unreasonable in his persistent demands for correction of the gas con-
dition, since the plant was new, not fully completed and the fans were not im-
mediately available. The delay in ordering ventilating fans and the failure
of Respondent to fully advise Orr what it had done to correct the condition, is
not consistent with this position. Orr was properly urging the correction of
an admittedly bad condition. Reasonable handling of such complaints, as they
apparently are now being handled by l3unte and Wiseman, in all probability
would have done away with many of the complaints and avoided much of the
ill-feeling that was engendered by Chini's vehemence, his table pounding and
his threats to transfer Orr and Holli to other plants of Respondent as reprisal
for,bi"irtg the -employees' grievances to hire.
Without detailing all the occasions, Orr, usually in collaboration with Holli,
was responsible for quieting several disturbances among the men after brief
work stoppages had occurred, and, as has been noted, appears to have made a
constructive effort to maintain peaceful labor relations so long as he felt the
men were not being imposed upon. In each instance, he, with Holli or others, in-
duced the men to continue working while they tried to have corrective measures
taken by management. The last of these occurred on Saturday, March 27, 1943,
a few days before Orr's discharge. When he reported for work on that day, John
Kluck, one of the coremakers, was discharged by Foreman Crandall.' for failure
to remain for overtime work the night before. The failure was caused by amis-
The former shop chairman who had been promoted to a foreman's position.
,70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding of orders. In the absence of Orr who was late that morning, Kluck
reported his discharge to Holli. Meanwhile the coremakers and molders refused
to work. Holli interceded with Crandall, who refused to permit Kluck to con-
tinue at his job. Holli then telephoned Lorenz, the anion international represent-
ative, who instructed him not to let the men walk out and promised to come to
the plant as soon as he could About this time Orr appeared and on being advised
as to what had happened, he, too, interceded with Crandall and also directed the
men to resume,their work while the affair was being adjusted. -Orr,-Holli, Kluck,
Lorenz, and one or two other committeemen then called on MacClay, who, after
hearing the facts, ordered Crandall to put Kluck back at work At this time,
Chini was away for the week-end.
The next work day, Chini called Orr, Holli and Elmer Brennwald, another
committeeman, to his office Crandall also•was present. During this meeting,
Chini referred to the Kluck incident of the preceding Saturday, accused Orr of
inciting a strike and threatened to transfer Orr to the Aurora plant and Holli to
the aluminum plant. The meeting was it stormy one in many respects and again
touched on the gas conditions and the demands of Chini and Crandall for more
production from the men. That also was when Chini said, "I don't give a God-
dam, for the Union," and ordered Orr and Holli not to bring any more complaints
to him.
There is no question but that Orr kept the nien union-conscious, and forcefully
kept their welfare before management, but there is no evidence that any of his
complaints were unfounded. Just before quitting time. of the,day last referred
to, Monday, March 29, the incident occurred which, Respondent contends, led to
Orr's discharge! Brennwald, it finisher, with his crew of three, had just com-
pleted a large mold and one member of the crew had gone to another part of the
plant for some unexplained reason. Such molds are made in two parts, the
bottom being known as the "drag" and the top portion as the "cope". These
parts weigh about 300 pounds each. When finished, the cope is placed on top
of the drag, which has previously been placed on a 36-inch roller conveyor and
the completed mold is then pushed to the point where it is to be poured. ` At the
time in question, the roller conveyor was temporarily laid on the floor, elevated
on 2 x 4 timbers. The drag, of the mold in question was in place on the conveyor
and the cope was resting on some wooden horses nearby. It is possible for the
four men making up the crew to "cope" the mold by hand-that is, lift the cope
by means of two long pipes that fit in rings at the respective corners of the frame,
and carry it to the drag where it is placed on top of the latter piece and held by
pins which fit into holes in the cope. However, because of the weight and size,
this normally is done by an overhead crane. On this occasion, the crane had gone
out of commission and Foreman Cieslak ordered the men to do the job by hand.
Through some misunderstanding, Brennwald received the impression, also, that
Cieslak intended to have them close the molds by hand in the future, as well.
Such procedure necessitated two of the men, while carrying the cope, to walk
across the roller conveyor on which the steel rollers are about four inches in
diameter and about one inch apart. The men would thus be required to walk
on the easily turned rollers,-an admittedly dangerous practice. Brennwald
observed the danger and went to the other end of the mold shop, told Orr that
Cieslak was going to require them to close the mold by hand in the future, and
got him to cone up and look at it and also, to help him close the mold, and to
remonstrate with Cieslak about the dangers involved in the hand closing process.
7 The facts leading up to the discharge are not seriously in dispute The facts sin round-
ing the actual discharge must be drawn from sub§tantialconflicts in the evidence. produced
by Respondent.
. HOWARD FOUNDRY COMPANY 71
Orr did-, as requested. After some conversation with Cieslak about the dangers
involved, Orr finally asked who would be responsible if one of the men fell and
broke his arm or leg . Cieslak said he would assume the responsibility, whereupon
Orr retorted, in effect "If a man falls and breaks his -- arm or leg, can I break
your arm or leg?" This appears to have been only a part of the colloquy
between Cieslak and Orr, which, while not described by any witness in detail,
was said to have been colored by what the witnesses refer to as "foundry lan-
guage." 8 At the end of the exchange, Cieslak remonstrated with Orr over the
language he used, whereupon Orr apologized and went back to his work.
Neither Cieslak's or Miner's testimony as to exactly what immediately followed
the mold incident can be fully credited. According to Cieslak, he discharged Orr
as soon as he made the above quoted statement, and refused to accept Orr's
apology which, he said, came some five or ten minutes later. Miner, on the other
hand, told a conflicting story of the discharge and concluded it by stating that he
witnessed the incident, filled out a termination slip for Orr's discharge and
placed it on Chini's desk that evening. Cieslak testified that he, too, had signed
a termination slip giving as the cause of the discharge, Orr's threat toward him.
Actually, Orr never received any termination slip, and the only such document
in evidence, is a third termination slip, not in the handwriting of either Cieslak
or Miner, dated March 31, 1943, signed only by Chini and giving as the reason
for the discharge, "Creates disturbances among fellow workers. Has threatened
foreman on 3/29/43." This recites that Orr's last day of employment was March
31, 1943. In the absence of Chini, none of the witnesses was able to explain how
this termination slip came into existence.°
Although the plant operated on the basis of 8 hour shifts, it was the practice
to work the day shift for 10 hours, from 7: 30 a. in. to 6 p. in. This customary
two hours of overtime became a substantial fixed factor in the earnings of the
men. On Tuesday, March 30, the day following the mold incident and also the
meeting in Chini's office about the Kluck matter,.Orr, Holli, Kluck and at least
one other committeeman were sent home at 4 o'clock without explanation. Holli
asked Crandall and Chini for the reason but they refused to answer him. When
Orr asked Miner, he was told it was because of the Kluck affair. The next day,
March 31, 1943, there was considerable unrest in the plant and indications that
there might be another work stoppage in protest of sending their committeeman
home early.1° Orr called a meeting in the court yard of the plant at noon of that
clay and addressed the men. He severely criticized Chini and his treatment of
the employees. His speech, couched in the vernacular of the foundry, was blunt,
intemperate and provocative, when measured by normal standards. It was di-
8 There is some conflict -as to whether Cieslak had announced that thenceforth the mold
would be closed by hand, and whether Orr actually first helped close the mold and then had
his conversation with Cieslak, and was referring to future dangers. It is not deemed essen-
tial to make a finding on this question. It appears immaterial whether the conversation
referred to the immediate danger or the future perils of the practice, although the credible
testimony of Orr indicates that he was referring to the practice, in the belief that Cieslak
intended to follow it in the future.
8 Cieslak testified that he discharged Orr on the spot and then went to Miner's office and
notified him what he had done. Miner testified variously that he was present and observed
the incident and also that he learned of it later and then he discharged Orr. Orr's testi-
mony, which fits into the documentary proof, was that he knew nothing of the discharge
until the afternoon of the 31st when he was sent to MacClay's office, ostensibly to take a
telephone call, but actually to be told of the discharge. Orr's version of the mold incident
and the subsequent happenings is credited.
1° Miner testified he could not recall the incident of these men being sent home ; that it
was unusual for one or two men to be sent home early but that sometimes whole depart-
ments had been stopped at 4 o'clock when their work was out of line with other depart-
ments.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rected chiefly against Chini, whose attitude, he said, was like a Nazi saboteur.
He called him a slave driver and probably some other uncomplimentary things.
He told the men that if they-were going to have a union to make it a good strong
union that could walk out if necessary, but urged them not to take any work
stoppage action over the treatment lie and the other members of the committee
had received by being sent home early, and to allow their differences to be worked
out along orderly lines"
Shortly after he had resumed work following the noon speech, Cllirii came to
Orr's bench and told him he was wanted on the telephone in the front office. He
went to MacClay's office. This was only a ruse to get Orr out of the foundry
without attracting attention The record reflects the following as to this mci-