John S. Barnes Corp.

National Labor Relations Board - Board Decisions

Dec 11, 1950

92 N.L.R.B. 589 (N.L.R.B. 1950)

In the Matter of JOHN S. BARNES CORPORATION and DISTRICT LODGE
No. 101, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No . 13-CA-157--Decided December 11, 1950
DECISION AND ORDER _
On August 10,1950, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceedings, 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 Inter-
mediate Report attached hereto. The Trial Examiner further found
that Respondent had not engaged in other unfair labor practices
alleged in the complaint and recommended that the complaint be dis-
missed as to them. Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Intermediate Report and supporting briefs.
The Respondent's request for oral argument is hereby denied, as the
record and briefs, in our opinion, adequately present the issues and the
positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs filed by the parties, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
[Text of Order omitted from publication in this volume.]
INTERMEDIATE REPORT
Mr. Richard C. Swander , for the General Counsel.
Schultz & Fahy, by Mr. Edward J. Fahy, of Rockford, Ill., and Haight, Gold-
stein & Haight , by Mr. Edward A. Haight, of Chicago, Ill., for the Respondent.
Mr. J. J. Denny, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed March 25, 1949, by District Lodge No. 101,
International Association of Machinists, herein called the Union , the General
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Reynolds and Murdock].
92 NLRB No. 101. 589
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel of the National Labor Relations Board , by its Regional Director for
the Thirteenth Region ( Chicago, Illinois ),' issued a complaint , dated April 5,
1950, against John S. Barnes Corporation , herein referred to as Respondent. The
complaint alleged that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3) and Section 2 ( 6) and ( 7) of the National Labor Relations Act, as amended,
61 Stat. 136 , herein called the Act. Copies of the charges , the complaint, and
notice of hearing were duly served on Respondent and the Union.
With respect to the unfair labor practices , the complaint alleged, in substance,
that during the months of November and December 1948, and January 1949,
Respondent discharged and refused to reinstate the following named 11 em-
ployees : Melvin Franklin , Julio Silletti, Clarence Shirk, Arthur Hudson, Donald
Krusemeier , Ernest Carlson , Duane Foster , Melvin Richardson , Hans Burkhalter,
Frank Schrom , and Raymond J. Hayes ; 2 that said discharges were effected for
the reason that said employees joined and assisted the Union and engaged in
concerted activity on its, and their own , behalf. The complaint further alleged
that at various times in 1948 and 1949 Respondent interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed them in
Section 7 of the Act by warning them that it was regularly informing itself and
had obtained knowledge concerning their concerted activities in their own
behalf and in behalf of the Union , and by threatening said employees with
reprisals because of such activities . Following Respondent ' s demand therefor,
the General Counsel served on Respondent a "Statement of Particulars " specify-
ing the manner in which it was claimed Respondent had interfered with, re-
strained, and coerced its employees in violation of the Act . By its answer duly
filed, Respondent admitted that during all times relevant herein it was engaged
in interstate commerce within the meaning of the Act , but specifically denied
that it had committed any unfair labor practices as alleged in the complaint.
Pursuant to notice , a hearing was held at Rockford , Illinois , on May 2-5,
1950, before the undersigned Trial Examiner , duly designated by the Chief Trial
Examiner . The General Counsel and Respondent were represented by counsel
and the Union by its representative . Full opportunity to be heard, examine
and cross-examine witnesses , and to introduce evidence pertaining to the
issues was afforded all parties e
Shortly after the hearing opened , the General Counsel announced that Sil-
letti, Krusemeier , and Richardson had informed him that they did not want
the Government "to proceed. in their individual cases." In accordance with
these requests , the General Counsel stated he was "dismissing and . . . with-
drawing their cases from the complaint ." Respondent 's motions made during
the course of the hearing for a dismissal of the complaint were denied. At the
'The General Counsel and his representative at the hearing are herein referred to as
the General Counsel and the National Labor Relations Board as the Board.
2 Some of the names afore-mentioned were incorrectly spelled in the complaint.
8 At the hearing, the undersigned received in evidence as Respondent's Exhibits 2 and 3,
a chart reflecting the dollar value of the total amount of shipments made by Respondent
in the period September 1948 through April 1949, and a similar chart reflecting the ship-
ments made by its pump department during the same period. At the suggestion of the Trial
Examiner, Respondent agreed to extend said charts so as to show the total shipments
and the shipments from the pump department during the remainder of the year 1949.
Since the close of the hearing, such extended charts have been received and the undersigned
has been advised that copies thereof have been furnished to the General Counsel. No objec-
tion having been made by the General Counsel to the reception of said extended exhibits,
the same are hereby received in evidence as Exhibit 2-A and 3-A, and made a part of the
record herein.
JOHN S. BARNES CORPORATION 591
conclusion of the hearing, the General Counsel's motion to amend the pleadings
to conform to the proof with respect to formal matters, not involving substance,
was granted without objection. The General Counsel presented oral argument
at the close of the hearing, and the Respondent has since that time filed a
brief, which has been duly considered.
Upon the entire record in the case, and from my observation of the wit-
nesses at the hearing, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
John S. Barnes Corporation is a Delaware corporation with its principal
office and place of business in Rockford, Illinois, where it is engaged in the
business of manufacturing hydraulic equipment, such as high-pressure pumps,
actuators, and control valves for use in machine tools and other equipment.
During the year 1949, Respondent, in the course and conduct of its business,
used in its plant large quantities of raw materials and parts valued in excess of
,$250,000, of which approximately 30 percent was shipped to it from points
Outside the State of Illinois. During the same period, Respondent caused
large quantities of its finished products, valued in excess of $750,000, to be
manufactured, of which approximately 60 percent was sold and transported
from its plant in Rockford, Illinois, into and through States of the United
States other than the State of Illinois.
Respondent admits and I find that it is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 101, International Association of Machinists, is a labor
organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
On October 27, 1948, Robert K. Gustafson, business representative of the
Union, received word that three of Respondent's employees were interested
in union representation. That same evening, Gustafson contacted two of these
employees, Silletti and Tony Giometta, at their homes and gave each of them
a supply of union application cards. An active union organizational campaign
among Respondent's employees began the following morning. At that time,
Giometta gave a number of these cards to Melvin Franklin, employed'in Respon-
dent's inspection department, and told him that a number of employees were
organizing a union.
At about 11 a. in. on October 28, Franklin had occasion to go to the small
pump department in connection with his work, and while there, talked to 9
or 10 employees about the Union, gave each of them a union application card
and asked the employees to sign. Five of these men signed the cards imme-
diately and returned them to Franklin. On the same day, he went to the as-
sembly department, talked to 4 or 5 men about the Union, and got 1 or more
of them to sign application blanks. At the noon hour of the same day, Frank-
lin went to the toolroom and talked to 3 or 4 men there about the Union. On
the following morning, Giometta, Silletti, and "different fellows in different de-
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partments stopped in the inspection department and gave [Franklin] their cards,"
which he placed in the drawer of his work bench. During part of this process,
Earl Hicks, foreman of the inspection department, was at his bench, approxi-
mately 5 or 6 feet away. The supply of application cards having been ex-
hausted, Gustafson made arrangements to replenish the stock and met Franklin
at noon on October 29 in front of the plant and there delivered additional ap-
plication blanks to him.
By this time, every one of the approximately 13 employees in the small pump
department had made application to join the Union, and "upwards of 25"
of the 33 men employed in the machine shop had done likewise. By November
5, 42 signed application cards were in Gustafson's possession. At that time,
Respondent had approximately 86 employees.
On or before November 1, 1948, Gustafson telephoned Ernest J. Svenson,
Respondent's executive vice president and general manager, and requested a
conference for the purpose of discussing recognition of the Union as bargaining
agent for Respondent's production employees. This request was, at Svenson's
suggestion, repeated in writing on November 1 by a letter from Gustafson to
Svenson, in which Gustafson further advised Svenson that a majority of Re-
spondent's production employees had designated the Union as their bargaining
agent. Union meetings were held on November 4 and 10, at which Hayes,
Burkhalter, Burkhart, and John Cesar were elected committeemen.
Franklin's services were terminated on November 1, 1948, under circumstances
hereafter detailed. Of the remaining employees alleged in the complaint, as
originally filed, to have been discriminatorily discharged, Hudson and Shirk were
laid off on November 8, and Foster on November 26, 1948. Krusemeier, Richard-
son, Carlson, Burkhalter, Schrom, and Hayes were laid off on December 1, 1948.
On November 5, 1948, the Union filed its petition (13-RC-453) for certification
as bargaining representative for Respondent's production employees. A hearing
thereon was ordered to be held on February 15, 1949. Prior to that hearing, a
duly authorized employee of the Board requested Respondent "to furnish the
Board with certain data concerning its interstate commerce." Svenson refused
to supply the requested information. On or about January 26, 1949, the Regional
Director, in behalf of the Board, issued and caused to be served upon Svenson
the Board's subpoena daces tecum directing Svenson to produce at the hearing
scheduled for February 15, certain documents and books concerning Respondent's
interstate commerce operations. Svenson appeared at the hearing, but explicitly
refused to produce the documents specified in the subpoena duces tecum, and
refused to testify with respect thereto. The hearing was postponed indefinitely
and the Board made application to the appropriate United States district court
for an order directing enforcement of, and obedience to, its subpoena. Respond-
ent resisted this application on the ground that the Board had no authority, in
law, to delegate its subpoena power to the Regional Director. The district
court overruled Respondent's objection and on March 4, 1949, issued its order
requiring Respondent's obedience to the subpoena. Respondent appealed this
decision to the United States Court of Appeals for the Seventh Circuit, which, on
January 5, 1950, filed its mandate affirming the decision of the district court .4
The representation hearing was resumed and closed on January 24, 1950. At its
conclusion, Respondent made a motion before the Board to dismiss the proceeding
on various grounds, including the claim that "a great length of time has elapsed
between the date the petition [for certification] was filed and the final hearing
A 178 F. 2d 156 (C. A. 7).
JOHN S. BARNES CORPORATION 593
in [said] proceeding and, therefore , there is no basis for presuming that a con-
troversy concerning representation still exists ." By its Decision and Direction of
Election, dated February 28, 1950,6 the Board denied the motion in its entirety
and observed "that the principal reason for delay in the disposition of this case
was the Employer's unsuccessful attempt to defeat the processes of the Board."
In its Decision , the Board also noted that question existed "whether certain indi-
viduals who are not presently employed [by Respondent] and who are the sub-
jects of the unfair labor practice charges filed by the [Union in the instant pro-
ceeding] are eligible to vote in the election. In accordance with [its] usual pro-
cedure in such cases," the Board made no determination of the eligibility of
these individuals , but allowed them to cast separate , challenged ballots. The
Board further held that in the event that these challenged ballots were determi-
native of the results of the election, that final disposition of the representation
proceeding "await the outcome of the unfair labor practice proceedings" here
under consideration.
An election was ordered and conducted on March 28, 1950. In that election, 28
votes..were cast for the Union, 39 against, and 14 were challenged.
B. Interference , restraint , and coercion
On the entire record I am convinced that Respondent did not look with favor
on the entry of the Union into its shop . This, of course , was its legal right, no
less than it was the right of the employees to further their interests by organi-
zational activity. To promote industrial peace, however, the Act places limita-
tions on the conduct of both management and employees in the furtherance of
their legitimate objectives. Thus, insofar as is pertinent to the phase of the case
presently under consideration , it is illegal for an employer "to interfere with,
restrain , or coerce employees in the exercise of the [right ] to self-organization,
[or to ] join or assist labor organizations." 6
The General Counsel alleged in his complaint , as supplemented by his "State-
ment of Particulars ," that Respondent , through its officers , agents, and super-
visors, violated the just quoted section of the Act "by warning its employees that
it was regularly informing itself and had obtained knowledge concerning their
concerted activities in their own behalf and in behalf of the Union." If the
preponderant evidence received at the hearing establishes that Respondent had
engaged in such conduct , it must follow as a conclusion of law that it thereby
violated Section 8 (a) (1) of the Act. Such conduct, though more subtle and
shrewd than direct threats of reprisals or other overt acts of interference, re-
straint, and coercion , is nevertheless calculated and realistically must be pre-
sumed to have the effect of intimidating employees in the exercise of rights
guaranteed them by the Act.7
In support of the allegation of the complaint under discussion , the evidence
establishes that on the morning following his appointment as a union commit-
teeman in November 1948, Hayes was told by Foreman Hicks "I see they appointed
you committeeman ." During the same day, and while Hayes was sitting about
6 to 7 feet from Ricks, Svenson came by and asked Hicks "how the Union meeting
was last night," to which Hicks replied : "It had a big attendance, from what I
hear." Though Hicks denied both incidents, I credit the testimony of Hayes
that the quoted statements were actually made. Hicks' testimony on several im-
88 NLRB 871.
6 Section 8 (a) (1) and Section 7 of the Act.
if. if. Donnelley & Sons Company v. N. L. if. B., 156 F. 2d 416 (C. A. 7), cert. den. 329
U. S. 810; Pittsburgh Steamship Company, 69 NLRB 1395.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portant phases of the case was punctuated by lapses of memory and was self-
contradictory with respect to his knowledge of Franklin's union activity. Fur-
thermore, notwithstanding Hicks' status as a foreman, he admitted attending two
union meetings in the spring of 1950, because he "wanted to find out what the
Union was doing." Nor can I credit Svenson's denial of the incident recited
above insofar as it related to him,.or his denial of several other incidents attrib-
uted to him. While his answers on direct examination by his own counsel were
for the most part unequivocal, his testimony on cross-examination was extremely
evasive and cast doubt upon the credibility to be attached to a substantial part
of his direct testimony!
The morning after the Union's second meeting on November 10, Assistant
Foreman Rudberg ° approached Burkhalter and told him, within the hearing
of employee Foster, that "Svenson [knew] everything that was going on as to
the number of fellows at the meeting the previous night-and who was there."
During the same morning, Foreman Hicks told Silletti that Svenson "wanted
to find out how many people attended the meeting the previous night" and that
he (Hicks) informed Svenson that "30 to 40 employees were present at that
meeting."
By reason of the foregoing conduct by Svenson, Hicks, and Rudberg, ° Re-
spondent violated Section 8 (a) (1) of the Act.
C. The discriminatory discharge of Melvin Franklin
Franklin, of Respondent's inspection department, was hired on January 8,
1946, at 85 cents an hour, and continued his employment until November 1,
1948, at which time he was receiving $1.15 per hour. In the interim, he received
an increase in pay approximately every 4 months. Of these raises, 1 was a
general increase granted to all employees, and the remainder were "merit in-
creases" granted to Franklin individually. His job was to inspect machinery
products "in their different stages as they are machined [and] pieces that have
been completely machined." Though there was dispute in the testimony as to
8Illustrative, but by no means all-inclusive of the incidents in Svenson 's testimony
which prompt the characterization of Svenson made in the text, is his testimony pertaining
to a union circular. While being cross-examined with reference to his knowledge of union
activities or meetings , he was asked whether he had ever seen any union circulars about
the plant. He replied that sometime in November or December 1948, he picked up a
union circular in the street, "merely saw the heading," but did not look at the remainder
and, therefore, did'not know whether it publicized a union meeting or not. In view of the
fact that this incident occurred after Svenson had been contacted by the Union and knew
of its demands and after Respondent acquired knowledge of union activities by its em-
ployees! upon which it looked with disfavor, I find it impossible to believe that Svenson
testified truthfully with respect to his lack of interest in the union circular afore-mentioned.
8 While Svenson denied that Rudberg was a supervisor within the meaning of the Act,
I find, on abundant evidence, that Rudberg was in fact such a supervisor. Thus, it was
undisputed that Respondent granted raises to Foster and Burkhalter after requests there-
for were made to Rudberg. Foster and Schrom testified, without contradiction, that
they took orders and received work assignments from, and had their work checked by,
Rudberg. Several of the witnesses referred to him as "foreman" or "supervisor." Svenson
testified that the production schedules, which were regularly furnished to those who
admittedly were supervisors, were also made available to Rudberg. Rudberg, himself,
testified that he "spread" the work out in the department, and kept a record "as to
what jobs go through the department."
10 The preceding findings are based on the credited testimony of Hayes, Burkhalter,
Foster, and Silletti. Svenson, Rudberg, and Hicks either, denied, or did not "remember,"
the statements attributed to them. The entire record, coupled with my observation of
the demeanor of the witnesses involved , cause me to make the credibility findings afore-
mentioned.
JOHN S. BARNES CORPORATION 595
whether or not Franklin had carte blanche to go to the different departments
of the plant as his own discretion directed, there was complete unanimity that
he visited other departments in connection with his work, frequently under
the direction of his foreman. Of the testimony establishing union activity by,
and solicitation of, employees for union membership on Respondent's premises,
it is found that Franklin was the most active in that field.. About 9: 30 a. in.
of October 28, 1948, he received a supply of union application blanks. Having
occasion to go to the small pump department in connection with his work later
that morning (his entry being observed by Rudberg), Franklin gave union appli-
cation blanks to 9 or 10 employees in that department and talked to them about
the Union. Five men signed the cards immediately and returned them to
Franklin. On the same day he went to the assembly department, talked to 4 or
5 employees, and "got some of them to sign up." At noon, he went to the toolroom
and talked to 3-4 men there about the Union. On Friday, October 29, a number
of men from the various departments stopped at his bench in the inspection
department and gave him their cards. Foreman Hicks, whose bench was 5-6
feet away, saw some of the men delivering their cards. Franklin put the cards
in the drawer of his bench. By this time he had received approximately 25
signed application blanks from the 33 employees of the machine shop and the
small pump department of approximately 15 employees had signed up "100
percent."
During the morning of the following Monday, November 1, Hicks came to
Franklin and said to him: "You'd better get your fighting togs on, [Svenson]
wants to see you." Franklin went to Svenson's office and the latter there asked
him : "What have you got against the John S. Barnes Corporation?" Before
Franklin had an opportunity to answer, Svenson accused him of "going around
on company time-forming a union and engaging in activities-which [Svenson]
did not think was good for the majority," and told him that it was Svenson's
responsibility "to see that the majority was served, to guard [their] wishes and
their welfare." Franklin then complained of Respondent's policy of "giving
raises." Svenson produced Franklin's pay record and informed him that the
latter's wages had been raised approximately 28 percent, which he told him,
was more than the intervening increase in the cost of living. Svenson then
stated that Respondent and Franklin apparently "did not seem to get along
and . . . [that he] thought it was best [for Franklin] to sever [his] connections
with the Company." He took Franklin to Kent's office and directed that his
final paycheck be delivered to him. After Svenson left Kent's office, the latter
asked Franklin "What is this all about," to which Franklin replied : "You know-
as well as I do. Mr. Svenson found out that I was engaging in union activity
and I got canned for it." 11
Svenson denied that Franklin's union activities were mentioned during the
incident above related and testified that Franklin voluntarily terminated his
employment "
On the entire record I am convinced and find that Svenson made the statements
attributed to him by Franklin and that the latter was discharged on November
1 for union activity.13 The objective findings heretofore made show clearly that
11 Due to illness, Kent did not appear as a witness at the hearing.
12 Respondent in its brief states, "In Svenson's mind-Franklin had quit."
13 The original charge herein, alleging that Franklin was discharged on November 1,
was filed by the Union, in Chicago, on November 5, 1948. Franklin's zeal in carrying on
the union campaign and the prompt filing of the original charge, are additional circum-
stances which lead me to discredit Svenson's testimony that Franklin voluntarily ter-
minated his employment.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Franklin's activity in that field must have come to the knowledge of Respondent's
supervisory personnel. Furthermore, in a factory as small as Respondent's, it
would be utterly unrealistic to find that such knowledge did not reach manage-
ment." Nor in the light of Svenson's admission on cross-examination that
"there was nothing that took place immediately prior to November 1 which
prompted [him] to talk with [Franklin] on that day," am I able to credit his
testimony that he called Franklin to his office on November 1 in order to merely
"reprimand him for the very things he was doing which were unnecessary."
Significantly, it was either on November 1, or shortly prior thereto, that Gustaf-
son, the union business representative, telephoned Svenson and asked for an
appointment to discuss recognition of the Union." On the entire record, there-
fore, I find that Svenson discharged Franklin on November 1, 1948, because
of his union activity and that Respondent thereby violated Section 8 (a) (1) and
(3) of the Act.
D. The layoffs in the small pump and machine departments
Duane Foster was employed in Respondent's small pump department from
January 6, 1948, to November 26, 1948, during which time he received two
merit increases . At Franklin's request, he joined the Union about October 28,
but, according to his own testimony, Foster had "very little" to do with its
activity thereafter. About November 11 or 12, Rudberg discussed these ac-
tivities with him, and told him that the men were operating too openly and that
Svenson knew of "what was going on." On the day of his discharge, Kent told
him that because business was poor, Foster would be the first, among others,
to be discharged. He further informed Foster that because of the downward
trend in business, "it would be possibly 6 months to a year before [Foster]
would be able to start back again, if at all."
Hans Burkhalter was employed in the small pump department from March 3,
1947, to December 1, 1948, on which latter date he was senior in service to all
other employees in that department, with the possible exception of one. His
beginning wage was $1.01 per hour. He made requests to Rudberg on five oc-
casions for increases in pay, all of which were granted by Respondent. On
October 28, 1948, Burkhalter, and at least three other employees, and while
being observed by Rudberg who was 6 to 8 feet away, signed application blanks
to join the Union. Thereafter, he attended the union meeting held on November
4 at which he was elected a committeeman. He also attended the meeting of
November 10. The following morning, Rudberg said to him : "You fellows
have got a leak in your organization-Svenson [knows] everything that was
going on as to the number of fellows at the meeting" the night before, and "who
was at the meeting."
On December 1, Burkhalter was called to Svenson's office and told by him
that "due to curtailment in the automotive industry he was forced to shut down"
the small pump department and that Burkhalter would have to be laid off.
Ernest Carlson was employed in Respondent's small pump department from
July 22, 1948, to December 1, 1948. In the interim , he asked Rudberg for a
5-cent raise which Respondent granted him. On October 28, while Rudberg
was about 20 feet distant, Carlson talked to Franklin about the Union and
he joined. the organization the same day. Thereafter, he attended union meetings
14 Jackson Daily News, 90 NLRB 565; F. W. Woolworth Company, 90 NLRB 289.
11 The fact that such a telephone conversation was had was established by Gustafson's
letter to Svenson dated November 1, 1948, received in evidence without objection.
JOHN S. BARNES CORPORATION 597
held on November 4 and 10. On December 1, under instructions from Rudberg,
he went to Svenson's office where the latter told him he was being laid off be-
cause of "a lack of orders ." When Carlson asked whether he ought "to check
to find out if he could get back," Svenson told him "he didn't know whether
[he] could get back or not."
Frank Schrom was hired on May 12, 1948, for work in the small pump de-
partment and was engaged there until discharged on December 1, 1948. He
joined the Union on October 28 at Franklin ' s request and while Rudberg was
only 6 to 8 feet away . During his lunch period he visited the plant of the W. F.
& John Barnes Corporation in the same building and there solicited union mem-
bers. On December 1, he was discharged by Svenson , who told him the termi-
nation was necessary because production was going into a cutdown.
Clarence Shirk was employed in the machine department from August 11,
1941, to November 8, 1948. During that period, he received seven or eight wage
increases , all of which but one, were individual merit increases . Meyers, his
foreman during most of that time, frequently complimented him on his work
and told him that his work did not need checking. Under instructions from
Meyers, Shirk frequently trained new employees in the use of various machines
in his department . He joined the Union on or shortly prior to November 1, 1948,
distributed union application blanks to four other employees and attended the
union meeting held November 4. One day, during early November, in the pres-
ence of Foreman Hicks of the inspection department, Shirk asked employee
Harold Blomberg to join the Union. Noting that Hicks was watching, Shirk
turned to him and asked whether he , too, was "going to join the union. ' On
November 7, he was called to the office by Svenson and told that because Re-
spondent was going to retool the machines and make no more valve bodies and
gear housings that there would be no more work for him. When Shirk asked
whether he would be rehired, Svenson answered , "I don't know."
Arthur Hudson was employed by Respondent on January 30, 1944,'6 at 55
cents an hour . Between that time and the date his services were terminated,
November 8, 1948, he received five or six increases , so that when he was laid
_off he was receiving $ 1.30 an hour . By that time , he was the "oldest" man in
term of seniority in the milling machine department . Four others , junior in
service, were retained when Hudson was discharged . He joined the Union in
the last days of October or early in November 1948, and attended the first two
or three meetings . According to Hudson 's credited testimony , Svenson told
him at the time of his discharge , that his work was satisfactory , but that be-
cause Respondent was retooling the plant , his services would not be required
any longer , but, "if at any time he did, he would call [him] back ." While Sven-
son did not deny the foregoing testimony , he testified that "during the last year
[Hudson] had taken up the hobby of building model airplanes , which, so to
speak, distorted his efficiency and workmanship in relation to the John S.
Barnes Corporation , and that [was ] the main reason" for selecting him for lay-
off. Though Svenson personally chose Hudson for termination he offered no
specific testimony as to how Hudson's outside hobby interfered with his work
at Respondent 's plant, or , in what particulars he failed "to produce his work
in a satisfactory manner," nor did any of Respondent 's supervisory personnel
offer any credited , substantial testimony establishing incompetence by Hudson.
16 This is the date he was first employed according to Respondent 's records which were
received in evidence upon stipulation with the General Counsel. Hudson testified that he
was first employed in March 1940.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
The General Counsel seeks to sustain the charge of discrimination against
the employees laid off in the machine department and the small pump depart-
ment by reason of the following circumstances: (1) Respondent' s union animus
and its illegal activities as heretofore found in Section III B, supra ; (2) the
disproportion of union members laid off, and the concentration of layoffs in the
departments that were most heavily organized ;. and (3) the failure to recall
laid-off employees when the staff was later augmented.
Respondent, on the other hand, contends that the layoffs were due to: (1)
Adoption of the J. I. C. Code; ( 2) need for retooling and overhauling machinery;
and (3) lack of work.
With respect to the circumstances relied on by the General Counsel and the
effect to be given thereto, there can be no question that each of them individually
is, and certainly when considered collectively are, factors to be considered in
discrimination cases. In themselves, however, they are not, on the record made
here, sufficient to establish discrimination within the meaning of Section 8 (a)
(3) of the Act. While the case made by the General Counsel may be enough
to establish a prima facie case of discrimination and therefore make it incumbent
upon Respondent to go forward with proof to establish by a preponderance of
the evidence that the layoffs were nondiscriminatorily motivated,17 we are pres-
ently dealing with the contentions of the General Counsel that the cited
circumstances are, in and of themselves, sufficient to conclusively establish
discrimination.
Thus, with respect to the General Counsel's first point, it is not inherently
impossible that an employer who entertains union animus and who is guilty of
the illegal conduct heretofore related, may still find himself in a position where,
as Respondent contends here, that it is necessary to discharge union members
for economic reasons, or indeed for any reason other than for a purpose pro-
scribed by the Act 18
With respect to his third point, it is true that in 1949 Respondent failed to
recall the men laid off in November and December 1948. However, in light
of its established policy that a laid-off employee is reemployed "in the same
manner as any other person who may apply for work," Respondent's failure to
recall the men laid off cannot, under the facts established by this record,
constitute evidence of discrimination."B
There remains for consideration the alleged disproportion of union members
laid off, and the concentration of such terminations in the small pump and
machine departments. Here, the General Counsel seeks to establish discrimina-
tion by reason of the fact that all the men laid off in these departments were
union members. To attach to this circumstance the conclusive significance
attributed to it by the General Counsel, would mean that Respondent could not
under any conditions discharge a single employee in the small pump department
without being accused of discrimination, for that department was staffed only
17 Jasper National Mattress Co., 89 NLRB 75.
is H & H Manufacturing Co., 87 NLRB 1373.
19 Except for Hudson's credited testimony that Svenson promised to recall him if need
developed, none of the other laid-off employees exacted, or received, such a pronrise. The
General Counsel made no attempt to otherwise impeach Svenson's testimony as to Respond-
ent's policy in recalling laid-off employees. That a single exception was made by the
promise to Hudson, is not sufficient, in my mind, to discredit Respondent's otherwise
undisputed testimony in this respect.
JOHN S. BARNES CORPORATION 599
by union members. 20 In rejecting the conclusion sought by the General Counsel,
I am not unmindful of the fact that though a union enjoys 100 percent member-
ship in a plant or department, that circumstance does not alone preclude dis-
criminatory conduct by an employer. If, in selecting employees for dismissal
or layoff, he chooses union leaders, or others active in the union, because of such
leadership or activity, and prefers for retention in his employ persons who are
relatively inactive or disinterested in the union, he has engaged in discrimination.
The question in all cases becomes a question of fact-was the employer guided
by nondiscriminatory factors, or by antiunion consideration."
In the machine department, the General Counsel points to the fact that the
seven men laid off between November 26 and December 1 were, likewise, all
union members. The complaint, however, alleges that only 3 men in that
department were discriminatorily laid off, and as to 1 of these 3, Silletti,
the General Counsel conceded at the hearing that this employee had voluntarily
left Respondent's employment and, therefore, dismissed his case from the com-
plaint. As to the remaining 4 union members who were laid off, there was
neither allegation nor proof of discrimination, and it would, therefore, be un-
warranted speculation on my part to assume that any discriminatory motive
was involved in connection with their termination. This leaves but 2 union
members discharged in the machine department concerning whom proof of dis-
crimination was offered at the hearing. At the time in question, "upwards of 25"
employees in that department, constituting 75 percent of a total complement of
33 men, had joined the Union. In the light of this ratio, no significance can be
attached to the mere number of layoffs in that department. By the same token,
I am not impressed by the fact that the layoffs occurred in the 2 departments
most heavily organized. These departments were by far the most heavily
staffed and, if reductions were demanded because of economic necessity, it was
to be expected that they would be more numerous in the more heavily staffed
departments.
On the other hand, I am convinced by a preponderance of the evidence and
find that the principal reason for reducing the staff was a substantial reduction
in the volume of business transacted by Respondent in the fall and winter of
1948. Thus, the undisputed evidence established that the dollar value of goods
shipped by Respondent dropped from a monthly average in the sum of approxi-
mately $68,000 during the first three-quarters of 1948 to a monthly average of
.approximately $53,000 during the last quarter of that year. This latter average
was substantially maintained during the first 2 months of 1949. The monthly
average for the entire year 1949 was about $58,000. In keeping with the reduc-
tion in its volume of business, Respondent reduced its entire working staff from
86 on October 31, 1948, to 73 on November 30, and 60 on December 31, 1948.
During 1949, it was gradually increased, mostly by 1 man per month, until at
the end of 1049, the staff numbered 72. On the entire record, I find that there
was economic justification for reducing Respondent's staff in November and
December 1948.
The J. I. C. Code, promulgated in September 1948, was "the first attempt to
standardize transmission structures." Its establishment involved extensive
changes in Respondent's operations. Respondent concedes in its brief, however,
that the code "is still in a state of development, and it is expected that several
20 See Federal Mining Co., 20 NLRB 192 ; The Texas Company, Inc. (Puerto Rico), 60
NLRB 424.
21 The Triplex Screw Company, 25 NLRB 1126.
GOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years will be consumed before it will actually set forth a practical structure for
manufacturing parts for.stock." Though Svenson testified at length, and with
some enthusiasm, about the effect such a code has and will have on the industry,
he being one of its sponsors, I am persuaded that it affected Respondent's opera-
tions during the period under consideration only slightly. On the other hand,
I am not prepared to find that it played no part in Respondent's decision to
reduce its staff. I am likewise convinced and find that the need for retooling
also played some part in the decision to reduce the operating staff in November
and December 1948. Thus, though in prior years, Respondent spent approxi-
mately $4,000-$5,000 for repairing and retooling machinery, it spent approxi-
mately $25,000 for that purpose since November 1948.
In light of the foregoing findings, I find that Respondent did not violate
Section 8 (a) (3) of the Act in laying off Foster on November 26, 1948, nor
by laying off Carlson, Burkhalter, and Schrom on December 1, 1948, all of
whom had previously been employed in the small pump department. As previ-
ously indicated, because this department was 100 percent organized, the only
basis for a finding of discrimination against the four men in question would
be that they were selected because they were union leaders, or were among its
most active members. The record, however, will not support a finding that the
selection was made on either of these grounds. While it is true that Burkhalter
was a committeeman, no evidence was offered that he was more active than his
fellow committee members Burkhart and John Cesar, whose services were not
terminated. Of the remaining three, Schrom and Carlson had been employed
by Respondent less than 7 and 5 months respectively, and there was no evidence
of union activity on their part. Foster admitted that he had "very little" to do
with the Union, other than membership. There was no evidence that he even
attended any of its meetings. On the entire record, I am convinced and find
that the General Counsel has not sustained the burden of proving that any of
these four men were selected for layoff or discharge because of their union
activity and, accordingly, I shall recommend that the allegations of the com-
plaint pertaining to their discharge and refusal of reinstatement be' dismissed.
However, and notwithstanding the finding of necessity for a reduction of the
staff heretofore entered, I am persuaded that Respondent violated Section 8
(a) (3) of the Act by the discriminatory selection it made in reducing the staff
in the machine department.
The record leaves in doubt what policy, if any, Respondent had in selecting
employees for layoffs when such action was demanded for economic reasons.
Thus, when Svenson was asked by his own counsel, just before an overnight
recess on May 3, 1950, what that policy was, he answered as follows : "The
John S. Barnes policy, in case of layoff, is to use the merit system-that is to
say, the first to be let go would be those who had been with us the shortest
time. Then, in case they should have been with us an equal time, we use the
merit system-[we] give weight to both length of service and ability." 22 At the
very opening of the hearing on the following morning, he was asked by his
own counsel "to go over again the Company policy with regard to layoffs." He
then testified as follows: "Making it as simple as I know how, when business
conditions force us to lay off men, we always look to the ability of the individual
first, before taking any step. If we have two individuals of about the same
22 Hayes' undenied testimony, as hereafter found, that Svenson told him that one of the
reasons he was being selected for layoff was that he "was one of the youngest there-in the
amount of months that [he] had worked there" indicates that Respondent, in some
instances at least, resorted to the seniority method in selecting men for layoff.
JOHN S. BARNES CORPORATION 601
ability, then we look to the number of years in service with the organization,
and keep the one who has been with us the longest time." It must readily be
apparent that this testimony is self-contradictory.
In any event, I am satisfied that the layoff of Shirk and Hudson in the ma-
chine department was justified on neither theory nor policy. Both were among
the two oldest employees in that department, more than a score having been
engaged thereafter and all of whom were retained when Shirk and Hudson were
laid off. Shirk was first employed on August 11, 1941. The six or seven indi-
vidual merit increases granted him constitute evidence that he was a satisfac-
tory and competent workman. Meyers, Shirk's foreman during most of the
latter's period of employment, frequently complimented him on his work and
told him that his work did not need checking. Apparently, because he was a
competent employee, Shirk often trained new employees in the use of various
machines in his department. The slight criticism of his work by Arrick has not
swayed me from my judgment in finding that Shirk was a competent workman.
Arrick did not enter Respondent's employment until May 26, 1948, and though
he testified as foreman of the machine department, he did not reach that status
until after Shirk was laid off. On the entire record, therefore, I find that Shirk
was laid off because of his union membership and activity and that Respondent
thereby violated Section 8 (a) (1) and (3) of the Act.
Hudson was employed in the machine department, at least since January 30,
1944, received 5 or 6 increases up to the time of his layoff and, at that time, en-
joyed seniority over a score of other operators retained on November 8, 1948.
Under the circumstances, I find that neither seniority nor incompetence were the
motives that prompted Hudson's selection for layoff but that he was discharged
by reason of his union membership and activity. This conclusion is buttressed
by Respondent's failure to keep Svenson's promise to recall him to service, not-
withstanding its employment of 20 additional new operators after Hudson's dis-
charge, and whose future work performance would at most be a gamble. In-
cluded in this group of new employees were 4 mill operators, the particular task
in which Hudson was engaged at the time of his discharge. On the entire record,
I am convinced and find that Hudson was selected for termination by reason of
his union membership and activity and that by such conduct, Respondent vio-
lated Section 8 (a) (1) and (3) of the Act 23
E. The layoff of Raymond J. Hayes
Respondent engaged Hayes as an inspector on April 26, 1948, and laid him off
December 1 of the same year. He joined the Union late in October, attended
four or five of its meetings and was elected a committeeman in November.
On the morning following his election, Hicks said to him, "I see they appointed
you committeeman." When he was laid off on December 1, Svenson told him
that he was being laid off "because they did not have the orders." When he asked
Svenson whether his work had been satisfactory, the latter referred him to Kent
who was present, who then told Hayes that his work was satisfactory. Svenson
further explained that one of the reasons that he was being selected for layoff
was that he "was one of the youngest there-in the amount of months that [he]
had worked there."
Undoubtedly, Hayes' known status as a union committeeman and the low
ratio of inspectors retained (50 percent as against 70 percent in the other de-
partments) create a suspicion that Hayes' union activities played a substantial
as See W. C. Nabors Co., 89 NLRB 538.
929979-51-vol. 92-40
,602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part in the decision to dispense with his services . Neither , or both of these
factors, however , are sufficient to establish that Hayes was in fact discharged
:for his union activities . In this connection , it is noted that while Hayes was
competent , even Franklin testified , as did Hayes' foreman , that Hayes was the
least competent of all the inspectors . Furthermore , Hayes was junior in serv-
ice to all the other men in the department.
On the entire record, therefore , I find that the General Counsel has not estab-
lished by a preponderance of the evidence that Hayes was discharged because of
his union membership or activity , and shall recommend that the allegations of the
complaint charging that he was discriminatorily discharged or denied reinstate-
ment be dismissed.
V. The remedy
Having found that Respondent has engaged in unfair labor practices , it will
!be recommended that Respondent cease and desist therefrom and take certain
. affirmative action which will effectuate the policies of the Act.
It has been found that Respondent discriminated in the hire and tenure of
employment of Melvin Franklin , Clarence Shirk, and Arthur Hudson. It will be
recommended that Respondent offer each of them immediate and full reinstate-
ment to their former or substantially equivalent position without prejudice to
their seniority or other rights and privileges . It is further recommended that
.Respondent make each of them whole for any loss of pay he may have suffered by
.reason of Respondent 's discrimination by the payment of a sum of money equal
to that which each would have earned as wages from the date on which he was
:laid off as heretofore found , to the date of an offer of reinstatement , less his net
earnings during that period. Said loss of pay shall be computed on the basis
of each separate calendar quarter , or portion thereof, during the period from
Respondent 's discriminatory action to the date of a proper offer of reinstatement.
The quarterly periods, herein called "quarters ," shall begin with the first day of
.January, April , July, and October . Loss of pay shall be determined by deducting
from a sum equal to that which Franklin , Shirk, and Hudson would normally.
have earned for each such quarter or portion thereof , their respective net earn-
ings, if any, in other employment during that period. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other quarter.
In order to ensure compliance with the foregoing back -pay and reinstatement
provisions , it is recommended that Respondent be required upon reasonable re-
,quest, to make all pertinent records available to the Board and its agents.
In my opinion , Respondent 's conduct discloses a fixed purpose to defeat self-
-organization and its objectives . Because of Respondent 's unlawful conduct and
its underlying purpose, I am convinced that the unfair labor practices found are
persuasively related to the other unfair labor practices proscribed by the Act and
that the danger of their commission in the future is to be anticipated from the
•course of Respondent 's conduct in the past. The preventive purpose of the Act
will be thwarted unless the recommendations are coextensive with the threat.
In order , therefore , to make effective the interdependent guarantees of Section 7,
to prevent a recurrence of unfair labor practices , and to minimize strife which
burdens and obstructs commerce, and thus to effectuate the policies of the Act, it
will be recommended that Respondent cease and desist from infringing in any
manner upon the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following :
24 F. W . Woolworth Company, 90 NLRB 289.
JOHN S. BARNES CORPORATION
CONCLUSIONS OF LAW
603
1. District Lodge No. 101, International Association of Machinists , is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Melvin
Franklin , Clarence Shirk, and Arthur Hudson, thereby discouraging membership
in the Union, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not discriminated in regard to the hire and tenure of em-
ployment of the other persons alleged in the complaint to have been discrimina-
torily discharged , or to have been discriminatorily denied reemployment.
[Recommended Order omitted from publication in this volume.]