Low-Temp Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1960

129 N.L.R.B. 840 (N.L.R.B. 1960)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section 111, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lend to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
1 will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against Viola, Wood, Mc-
Laughlin , :and Campbell with respect to their hire and tenure of employment, I will
recommend that it be ordered to offer them immediate and full reinstatement to their
former positions , without prejudice to any privileges or prerogatives previously en-
joyed and to make them whole for any loss of earnings they may have suffered
because of the discrimination against them , by payment of a sum of money equal
to the amount they normally would have earned as wages from the date of the
discharges to the date of reinstatement , less their net earnings during said period,
with backpay computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289.4 I will also recommend that the
Respondent make available to the Board , upon request, payroll and other records
to facilitate the determination of the amounts due under this recommended remedy.
As the discharge of employees because of their union activities goes to the very
heart of the Act, the commission of similar and other unfair labor practices reason-
ably may be anticipated . I shall therefore recommend that the Respondent be
ordered to cease and desist from in any manner infringing upon the rights guaranteed
to its employees 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:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. By discharging William Wood, James E. Viola, and George Francis McLaugh-
lin, Jr ., the Respondent has engaged in and is engaging in unfair labor practices
'within the meaning of Section 8 (a) (3) of the Act.
3. By the foregoing conduct, by discharging Vincent J. Campbell, and by threaten-
ing to discharge employees if they assisted the Union or any other labor organiza-
tion , the Respondent has interfered , restrained , and coerced employees in the rights
guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
4 As to 'Campbell, see Jackson Tile Manufacturing Company, 122 NLRB 764.
Low-Temp Manufacturing Co., Inc. and Houston Cobb and
William G. Mallett. Oases Nos. 10-OA-4301 and 10-CA-4302.
November 30,1960
DECISION AND ORDER
On May 19, 1960, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
129 NLRB No. 99.
LOW-TEMP MANUFACTURING CO., INC. 841
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the said complaint be dismissed,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
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 Leedom and Members
Rodgers and Fanning].
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 Intermedi-
ate Report, the exceptions and the brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions and
recommendations.'
[The Board dismissed the complaint.]
'We agree with the Trial Examiner that the General Counsel has failed to prove the
facts asserted in the complaint. As the General Counsel has therefore not established a
prima facie case of violation of Section 8(a) (3) and (1) of the Act on the part of the
Respondent, Chairman Leedom and Member Fanning find it unnecessary to determine
whether or not the Respondent has proved its special defense of economic necessity of the
layoffs here involved. They therefore do not adopt the Trial Examiner's findings and
conclusions as to that defense. Member Rodgers would adopt the Trial Examiner's
rationale and his conclusions as to the Respondent's special defense of economic necessity
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed under date of October 16, 1959, by Houston Cobb (Case No.
10-CA-4301) and William G. Mallett (Case No. 10-CA-4302), the General
Counsel of the National Labor Relations Board by the Acting Regional Director
for the Tenth Region, on behalf of the Board, on December 15, 1959, issued a
complaint under Section 10(b) of the National Labor Relations Act, as amended,
61 Stat. 136 (herein called the Act), alleging that Low-Temp Manufacturing Co.,
Inc., hereinafter called the Respondent or the Company, had been and is engaged
in certain unfair labor practices in violation of Section 8(a) (3) and (1) and Section
2(6) and (7) of the Act. With the complaint, issued December 15, 1959, was an
order consolidating cases and a notice of hearing.
Pursuant to notice, these consolidated cases came on to be heard before the duly
designated Trial Examiner at Atlanta, Georgia, on March 22, 1960. At the hearing
the General Counsel and the Respondent appeared and were represented by counsel.
Each party was afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant and material evidence, to engage in oral argument
on the record, and to file briefs and proposed findings of fact and conclusions of
law. Each of counsel for the parties filed a brief, which has been considered. This
matter went to hearing on the issues raised by the complaint and timely answer filed
on behalf of the Respondent.
In substance the complaint sets forth, with respect to alleged violations of the
Act, that on or about October 14, 1959, the Respondent discharged and thereafter
failed and refused to reinstate its employees, Houston Cobb and William G. Mallett,
who filed the charges herein. These discharges and subsequent failure and refusal
to reinstate Cobb and Mallett, it is said, was because of their membership in and
activities on behalf of the Union and because they engaged in concerted activities
with other employees for the purpose of collective bargaining and other mutual aid
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and protection. The complaint alleges interrogation of employees concerning their
membership, activities, and desires and the union membership, activities, and desires
of other employees, by Vice President Casey (on August 18, September 17, and
October 1, 13, and 21, 1959), and by Plant Foreman Sowell (on September 17,
1959); that by Casey and Sowell the Respondent threatened to discharge employees
if they joined or retained membership in, or engaged in activities on behalf of, the
Union; and that the Respondent by its supervisor and agent, Plant Foreman Sowell,
on or about September 21, 1959, threatened an employee that the Employer would
take away existing benefits if the Union got in.'
In addition to denials of substantive violations of the Act as set forth in the com-
plaint, the answer sets out an affirmative defense:
Respondent states that Houston Cobb and William G. Mallett, among numer-
ous other employees, were terminated due to lack of materials and due to lack
of available work, both caused in part by strike among various steel producers
and the consequent slackening in the construction industry. William G. Mallett
was recalled to work and recommenced work on December 3, 1959. Houston
Cobb was likewise recalled to work on December 3, 1959, but has failed to
present himself for work after said recall notice.
Upon the entire record in the case, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF LOW-TEMP MANUFACTURING CO., INC.
Low-Temp Manufacturing Co., Inc., the Respondent herein, is now and has been
at all times material herein a Georgia corporation, with its principal place of busi-
ness in Jonesboro, Georgia, where it is engaged in the manufacture of stainless steel
products. Respondent, during the 12 months immediately preceding the hearing
herein, which period is representative of all material times, sold and shipped prod-
ucts valued in excess of $50,000 directly to customers located outside the State of
Georgia.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association , AFL-CIO (herein called the
Union ), is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
For some 13 years the Respondent Company has been engaged in the fabrication
of custom-built, stainless steel products including kitchen equipment for hospitals
and hotels. The Company manufactures walk-in refrigerators and any other equip-
ment having to do with hotel and restaurant equipment, or outside custom stainless
steel products. The Company conducts its business on a bid basis, which means
that it takes blueprints and specifications and then figures a price and quotes dealers,
who in turn quote general contractors or the Government or whomever the dealer
may sell to. In other words, this manufacturer acts as wholesaler in sales to dealers
on a bid basis.
The Sheet Metal Workers' International Union, AFL-CIO, by Assistant Business
Agent Thomas Carl Brown of Sheet Metal Workers' Local Union No. 85, began an
organizing campaign in late August 1959, among the employees of the Respondent.
Thereafter a representation petition was filed with the Regional Director and a
representation hearing was held on September 14, 1959. Case No. 10-RC-4465.
The Board ordered an election among the employees in the unit found to be
appropriate and such an election was held on November 29, 1959. The results of
the election were not then conclusive because of challenged ballots. Of the 36 em-
ployees in the unit, 27 voted in the election which, without regard to 4 challenged
votes, resulted in 14 votes for union representation to 9 against. In March 1960,
following disposition of the challenges, the Union was certified as collective-
bargaining representative for the group. (Of the 4 challenged votes the ballots
3 Certain other allegations of the complaint concerning interrogation of employees and
surveillance were dismissed on joint motion of counsel at the hearing The General
Counsel stated that witnesses he depended on to prove his allegations refused to respond
to subpena, and that It was not his intention to apply for enforcement of the outstanding
subpenas.
LOW-TEMP MANUFACTURING CO., INC. 843
when opened showed 3 for the Union making a final total of 17 votes for the Union
and 9 ballots cast against .) At the hearing herein, Houston Cobb, William G.
Mallett, Sherman George Shockley, Billy Bostwick, and Bobby Ray Shockley were
called as witnesses in support of the case of the General Counsel.
Each of these men were or had been employees of the Respondent.
The case presented on behalf of the General Counsel by his counsel seeks to show
that Foreman Paul T. Sowell sought to ascertain if the Union was coming into the
plant and in one instance , upon being told by Sherman Shockley that he thought
the Union would be successful, Sowell remarked, "If I [the employee] was building
crates and he didn't have a full day's work building crates he'd have to send me
home."
Further in support of his case, the General Counsel through Cobb, Mallett, Bost-
wick, and Bobby Ray Shockley introduced testimony that Foreman Sowell instructed
the employees to assemble at the plant near the end of the working day of October
13, 1959, and that all of the employees at work that day heard a speech by William
B. Casey, vice president and general manager , at which time Casey, it was said, asked
the employees why they wanted a union , and in particular why the employees wanted
an international union. Cobb at this meeting answered General Manager Casey and
stated that a union was wanted by employees to represent them in order to secure
better wages and better working conditions and that Cobb then told Casey that an
hourly wage of about $3 an hour was then being paid in plants overlapping the
Respondent's sales area , such as New York, Philadelphia, and Miami; that Casey's
answer to that was "If that was the way I [meaning Cobb] felt about it that he might
as well go to Miami." Further testimony shows that the end of the speech Cobb
approached Casey and asked him in effect if Casey thought the Union was being
organized by the employees as a personal attack on him, to which Casey answered,
"I said all I'm going to say. It looks like the jobs will have to go." On the following
day, October 14, Cobb was discharged. Cobb said that after being informed by an
employee that his card had been pulled from the timeclock rack, he immediately went
to Sowell and asked him why his card had been pulled. Cobb said that Sowell had
,told him the job was being discontinued and they would not require his further
services; that he asked Sowell for a letter of recommendation who told him he could
come back and pick it up; that later in the day he asked Sowell if the Union was the
cause of his being dismissed to which there was no answer and further, he said to
Sowell, "It looks like if the Union is a reason, they are going to have to do away
with all the jobs" to which Sowell replied, "Yes. We can do that, too."
The General Counsel maintains that the remarks of Sowell on and after the
occasion of the discharge of Cobb, taken in connection with the reported statement
of Casey after his October 13 talk to the employees was over, in which he was
alleged to have said, "I have said all I am going to say.. . 'It looks like the jobs
will have to go"; and the fact that Cobb told Casey why the employees wanted a
union, demonstrates that the timing of the discharge, together with the Respondent's
outspoken opposition toward the union organizing drive, provides unmistakable
evidence of discrimination. Cobb received a letter of recommendation dated Octo-
ber 16, 1959, signed by Foreman Sowell, in which his 4-year record of employment
with the Company was mentioned, the capacities in which he had worked, the state-
ment that he was 'a good and conscientious worker, and that the reason for dis-
missal was because his job was discontinued.
The layoff or discharge of William G. Mallett, who had entered the employ of
the Company in February 1959, who had signed a union authorization card in August
1959, and attended the representation hearing on behalf of the Union (as had Cobb),
and who was one of the employees who heard General Manager Casey's speech on
October 13, follows, according to the facts presented by the General Counsel at this
hearing, in general, the situation attendant to the discharge of Cobb. Mallett was
given a letter stating that his job was discontinued.
The General Counsel in his case attempted to show that Cobb and Mallett were
entitled by reason of assignment or otherwise to jobs which, on the following day,
were filled by other employees. The General Counsel asserts that the facts sur-
rounding the discharges of Cobb and Mallett overwhelmingly establish elements of
discrimination, and show that union activities, particularly participation in the repre-
sentation hearing, show company knowledge; and that timing of the discharges and
inconsistencies between letters of dismissal and the Respondent's defense at the
hearing establish that the given reasons for the discharges are pretext only.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After their respective discharges or layoffs Cobb and Mallett each were offered
reemployment by the Company. Mallett accepted and returned to work. Cobb
refused the offer and has not since been reemployed by the Company. The offer of
reemployment to Cobb was made by letter or memorandum from Shop Foreman
Sowell under date of December 7, 1959, in which Sowell pointed out that Cobb had
been advised on December 2 that work would be available for him on December 7,
1959; that on December 4, Cobb said he would report for work on December 7; and
that on December 7, the day Cobb was supposed to have reported back to work,
according to Sowell's letter
. . . you called by phone and advised that your attorney advised you not to
accept your job on the basis of our previous letter. This is to notify you that we
will hold open your job until 8 a.m. Thursday, December 10, 1959.
Testimony was taken my me during the course of the General Counsel's case con-
cerning job classifications and rates of pay which, the General Counsel contends,
showed discrimination against Cobb and Mallett in that they were capable of per-
forming jobs performed by employees after their respective discharges who had
less seniority or less experience or less ability than they had.
Foreman Sowell did not, during the course of his testimony, particularly dispute
this contention. Job classifications mentioned and shown on the record were lay-
out jobs, assistant layout jobs, forming jobs, rough grind, welding, finishing and
grinding, and painting as well as miscellaneous jobs such as porter, stock clerk,
maintenance, and truckdriver.
The Respondent, in its case, has more or less ignored the accusations of unfair
labor practices set forth in the complaint and has relied principally upon the affirma-
tive defense set up by it with respect to business operations during the period subse-
quent to the beginning of the general steel strike about July 1, 1959.
The facts as shown by the Respondent on cross-examination of witnesses called by
the General Counsel above named, and on the testimony of General Manager Casey
and Foreman Sowell, seem to me to prove the special defense set out by the Respond-
ent in its answer to the complaint.
As shown by the record herein, the Company is dependent on supplies of ma-
terials, such as steel, for its continued operation, and is dependent upon the con-
struction industry for work for its employees.
The Company offered testimony through Casey and Sowell that they conferred
early in September 1959, concerning the possibility of having to curtail operations,
which would entail some layoffs of employees, and worked out a method of pro-
cedure in case such an event should occur. No formal seniority plan had been ob-
served by the Company ,prior to this time so that in working out a plan of layoff
Casey for the first time with Sowell set up a method by which classification seniority
and ability to perform more than one job were rated -as prime factors The first
layoffs came on October 2, 1959, when seven men were affected. Three other men,
including Cobb and Mallett, were laid off on October 14 At about this time 2 ,men
voluntarily quit, making a total reduction in force of 12 from the then-working force
of 35. The Respondent had prepared and offered in evidence at the hearing a
seniority list showing the classification, date of employment and date of termination,
and layoff or quit of each of these 35 employees. The evidence shows clearly, on
the basis of seniority, that neither Cobb nor William G. Mallett held seniority over
anyone in their respective departments at the time of their layoff. The General
Counsel, in his case, tried to offset seniority against the other factor of ability. The
testimony offered in this respect is not persuasive so far as I am concerned, since it
called only for the opinion of employees as to who was able or not able to do a
better job.
Looking forward to the settlement of the steel strike, the Respondent in early
December 1959, recalled to work several employees including Cobb and William G.
Mallett. Mallett reported to work on December 3, and has worked steadily since, at
least up until the time of the close of this 'hearing Cobb, as 'above related, tele-
phoned Foreman Sowell on December 7 and refused -to accept reemployment. On
the same day Sowell again offered work to Cobb by letter. The Respondent says that
the letter of December 2 was an unqualified offer of available work, and that the let-
ter of December 7 was still another attempt to recall Cobb The Respondent main-
tains that Cobb has forfeited any right to request reinstatement at a date subsequent
to the receipt of those letters.
The Respondent points out, and this is supported by all of the evidence herein,
that the only knowledge of union activity on the part of Cobb and Mallett attribut-
LOW-TEMP MANUFACTURING CO., INC. 845
able to Respondent consists of the fact that each of them attended a public hearing in
the offices of the Board at the representation proceeding on September 14, 1959; that
neither one testified, made an appearance, or filed a petition bringing on the hearing,
and that their presence along with others certainly did no more than imply interest
in the proceedings. At the hearing, the Trial Examiner asked counsel for the General
Counsel whether it was intended that the Trial Examiner draw an inference of
animus and knowledge of union activities by the mere presence of Cobb and William
Mallett at this hearing who, on their own testimony, were present only to advise
the union representative concerning job classifications with the view toward the
Board's ultimate finding of an appropriate bargaining unit; the General Counsel said
that it showed knowledge on the part of the Company that these two men were en-
gaged in union activities.
In the whole context of this case, I believe and find that the General Counsel has
failed to prove by the preponderance of the evidence that the Company discriminated
against any employee, including the Charging Parties herein, by reason of their ac-
tivities for or on behalf of the Union or concerted activities in connection with the
activities of any other employee regarding union organization or representation.
The General Counsel points out that the conversations between Sowell and Cobb
and what is reported by witnesses called by the General Counsel in connection with
the talk given by Casey, are not denied by either Casey or Sowell, though each did
testify; and, the General Counsel says, extremely significant is the fact that none of
the statements made to Cobb by representatives of the Respondent are denied in the
record. It seems to me that such denials would be implicit and are unnecessary on
the basis of the facts presented by the General Counsel in his case. The Respondent
elected, with what I consider propriety, not to answer the General Counsel's case in
these respects simply because it was unnecessary so to do.
On the record herein, the Trial Examiner is constrained to find that the General
Counsel has failed to carry the burden of proof of the facts asserted by him in his
complaint. With respect to the reported remarks of General Manager Casey to the
employees at the October 13 meeting, the testimony of the witnesses called by the
General Counsel who reported what Casey said cannot be accepted as full context
of Casey's remarks. I cannot find and will not find that Casey at that time urged
the organization of a company union to be subsidized by him in the form of furnish-
ing legal advice to be paid for by the Respondent Company. I expressly find that
there is not sufficient testimony to support the contention that Casey at that time
engaged in an effort to dissuade, illegally, his employees from joining the Union in
favor of an independent organization. As remarked, the General Counsel has made
much of the fact that certain statements made by his witnesses were not contradicted
by the Respondent. This contention fails in the instant case. In N.L.R.B. v Com-
bined Century Theatres Inc., et at., 278 F. 2d 306 (C.A. 2), affirming in part 123
NLRB 1759, the court said:
The statement of a party, not inherently improbable or impossible, is entitled to
the weight the trier of fact believes he should attach to it.... It needs no support
or corroboration to achieve validity.... The fact that a third person allegedly
present was not called to testify by either side is of no controlling or conclusive
significance as to the validity of either such party's testimony, particularly when
the name and business of the witness was known to the several litigants and
process was available to both equally. All such matters are validly brought to
the attention of the trier of fact below, and properly urged, but are of no great
significant value to this Court, once the trier of fact below has come to its
decision.
There is no evidence to contradict the special defense put in by the Company-in
the light of the failure of proof by the General Counsel, I need not pass on this
defense. Should it be required of me, I would find that the facts offered in support
thereof are uncontradicted and stand for the weight to be accorded thereto.
Upon the basis of the foregoing findings of fact, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. The Respondent, Low-Temp Manufacturing Co., Inc., is engaged in commerce
and in activities affecting commerce within the meaning of Section 2(6) of the Act.
2. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]